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Frigger v Banning (No 13)

Frigger v Banning (No 13)

Case [2023] FCA 923 9 August 2023

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FEDERAL COURT OF AUSTRALIA
Frigger v Banning (No 13) [2023] FCA 923

File number: WAD 607 of 2015

Judgment of: COLVIN J

Date of judgment: 9 August 2023

Catchwords: PRACTICE AND PROCEDURE - interlocutory application for permanent stay of bill of costs and return of security - where registrar conducting taxation adjourned as registrar viewed applicants' objection that the amounts breached the indemnity principle was required to be raised with the Court by interlocutory application - consideration of powers of registrar when conducting a taxation - consideration of different powers of officer entrusted with taxation - held Registrar does have the authority to determine whether the indemnity principle has been met - application refused

Legislation: Federal Court Rules 2011 (Cth) rr 40.28

Cases cited:
Cachia v Hanes (1994) 179 CLR 403

Coogi Australia Pty Ltd v Hysport International Pty Ltd [1998] FCA 1270

Director of the Fair Work Building Industry Inspectorate v Abbott (No 5) [2013] FCA 522

Doyle v Hall Chadwick [2007] NSWCA 159

eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2015] NSWCA 284; (2015) 90 NSWLR 451

Frigger v Banning [2016] FCA 359

Gett v Tabet [2009] NSWCA 76; (2009) 109 NSWLR 1

Halliday v High Performance Personnel Pty Ltd (in liq) (1993) 113 ALR 637

Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757

Lowbeer v De Varda [2018] FCAFC 115; (2018) 264 FCR 228

Mango Boulevard Pty Ltd v Whitton [2018] FCA 399

Marsh v Baxter [No 2] [2016] WASCA 51

Noye v Robbins [2010] WASCA 83

Wentworth v Rogers [1999] NSWCA 403

Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474

Windus v Director of the Fair Work Building Industry Inspectorate [2013] FCA 1053; (2013) 216 FCR 207

Division: General Division

Registry: Western Australia

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Number of paragraphs: 44

Date of hearing: 2 August 2023

Counsel for the Applicants: The applicants appeared in person

Counsel for the Respondents: Mr TR Stephenson

Solicitor for the Respondents: Eastwood Law

ORDERS

WAD 607 of 2015

BETWEEN:
ANGELA CECILIA THERESA FRIGGER

First Applicant

HARTMUT HUBERT JOSEF FRIGGER

Second Applicant

AND:
SANDRA MAY BANNING

First Respondent

ANN MARION CAMPBELL-SMITH IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF DONALD CAMPBELL‑SMITH

Second Respondent

PROFESSIONAL SERVICES OF AUSTRALIA LTD (ACN 082 879 641)

Third Respondent

BANNING HOLDINGS PTY LTD (ACN 009 006 437)
Fourth Respondent

ORDER MADE BY:

COLVIN J

DATE OF ORDER:

9 AUGUST 2023

THE COURT ORDERS THAT:
1.The applicants' interlocutory application dated 3 May 2023 be refused.
2.There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
COLVIN J:

In October 2015, Mr and Mrs Frigger brought proceedings in this Court against four respondents. The respondents sought and obtained an order for security for costs: Frigger v Banning [2016] FCA 359. The amount of security required was $75,000…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Frigger v Banning (No 13)

Details

AGLC: Frigger v Banning (No 13) [2023] FCA 923
Case: [2023] FCA 923
Decision Date: 9 August 2023

CaseChat Overview and Summary

Frigger v Banning (No 13) involved an interlocutory application where the applicants sought a permanent stay of a bill of costs and the return of security. The application was brought before the Federal Court, and the core dispute centred around the propriety of the amounts claimed in the bill of costs, specifically whether they adhered to the indemnity principle. The applicants argued that the amounts breached this principle and should not be allowed. The registrar had adjourned the taxation process due to the applicants' objection, indicating that such objections needed to be raised with the Court through an interlocutory application.

The primary legal issue before the court was whether the registrar had the authority to determine whether the indemnity principle had been satisfied when conducting a taxation. This involved an examination of the powers of the registrar in comparison to those of an officer entrusted with taxation. The court was tasked with distinguishing these roles and understanding the extent to which the registrar could exercise discretion over such objections.

The court concluded that the registrar did indeed have the authority to determine whether the indemnity principle was met when conducting a taxation. It was established that the registrar's role included the capacity to make such determinations. Therefore, the applicants' objection to the bill of costs should have been raised through an interlocutory application, as opposed to being directly communicated to the registrar. Consequently, the application for a permanent stay of the bill of costs and the return of security was refused. The court's reasoning was grounded in the understanding of the specific powers of the registrar and the procedural requirements for objecting to a bill of costs.

The final orders of the court were that the interlocutory application dated 3 May 2023 be refused, and there be no order as to costs. These orders were entered in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The applicants' interlocutory application dated 3 May 2023 be refused.

2. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Frigger v Banning (No 13) [2023] FCA 923

Most Recent Citation

Frigger v Banning (No 14) [2024] FCA 66

Cases citing this decision · 7 of 7 shown

Thompson v Ellis (No 2)
[2025] FCA 649 Para 33

…In Frigger v Banning (No 13) [2023] FCA 923, Colvin J concluded that when assessing costs as between party and party, a registrar of this Court has authority to determine whether the indemnity principle has been satisfied (see also Natch ; and Harvard Nominees ). Accordingly, I will proceed on the basis that the…
Natch v Stennson Pty Ltd (No 2)
[2024] FCA 1498 Para 8

…ld call for the production of specific documents (which the Judicial Registrar could require to be produced). Further, in Frigger v Banning (No 13) [2023] FCA 923 ( Frigger (No 13) ), principle is satisfied and, for that purpose, may exercise the powers conferred by r 40.28 (at [20] and [41]).…
Frigger v Professional Services of Australia Pty Ltd (No 6)
[2024] FCA 1320 Para 2

…trar had authority to determine whether the indemnity principle had been breached within the taxation of the bill of costs: Frigger v Banning (No 13) [2023] FCA 923. Although no reasons of the Registrar are before the Court in this proceeding, it is evident that the Registrar determined that question against the…
Frigger as trustee for the Frigger Super Fund v Massey
[2024] WASC 398 Para 10

…respondent does not suggest that precludes the Friggers from raising the issue on taxation, or on a review therefrom. [14] Frigger v Banning (No 13) [2023] FCA 923 [4], [26] - [27].…
Sharif v Vitruvian Investments Pty Ltd (No 5)
[2024] FCA 134 Para 3

…bligation to pay the costs (assuming that any such an issue was not adjudicated at the time that the costs order was made): Frigger v Banning (No 13) [2023] FCA 923.…
Frigger v Banning (No 14)
[2024] FCA 66 Para 3

…ority to determine whether the indemnity principle had been met and the matter was returned to the Registrar on that basis: Frigger v Banning (No 13) [2023] FCA 923 at [20] (noting the subsequent reference to that issue in Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) [2023] FCAFC 140 at [56])…
Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq)
[2023] FCAFC 140 Para 31

…ourse is for that issue to be determined by the registrar or by a judge (as to which see the recent decision by Colvin J in Frigger v Banning (No 13) [2023] FCA 923 (and authorities there considered); and the doubt expressed by Pritchard J in Hancock Prospecting Pty Ltd v Hancock [No 3] [2016] WASC 423 at [12]).…

View all 7 citing cases →

Cases cited in this decision · 19 of 19 shown

Lowbeer v De Varda
[2018] FCAFC 115 Para 22

…ot be usual for the Court to make inquiry as to whether the party in whose favour the order was made had a liability to pay costs: Lowbeer v De Varda [2018] FCAFC 115; (2018) 264 FCR 228 at [13]. The reason for that position was there explained as follows: That is because, in the absence of proof of an agreement to…
Mango Boulevard Pty Ltd v Whitton
[2018] FCA 399 Para 5

…s v Director of the Fair Work Building Industry Inspectorate [2013] FCA 1053; (2013) 216 FCR 207 at [22], [31]; and Mango Boulevard Pty Ltd v Whitton [2018] FCA 399 at [3], [8]‑[14] as authority for the proposition that an interlocutory application to 'the Court' was required where the party liable under a cost o…
Frigger v Banning
[2016] FCA 359 Para 1

…er brought proceedings in this Court against four respondents. The respondents sought and obtained an order for security for costs: Frigger v Banning [2016] FCA 359. The amount of security required was $75,000 but was later reduced to $60,000. The security was provided.…
Marsh v Baxter [No 2]
[2016] WASCA 51 Para 22

…ts, even if the instructions have come to the solicitor from another party or from some non-party interested in the litigation: Marsh v Baxter [No 2] [2016] WASCA 51 at [37]. On that basis, the requirements of the indemnity principle whereby a party who does not have a liability to the solicitor on the record for…
eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd
[2015] NSWCA 284 Para 10

…In eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2015] NSWCA 284; (2015) 90 NSWLR 451 at [26] Basten JA referred to the view that he had expressed in 2006 and then said (noting that the views are obiter and concern a point not argued): Looking at the matter from a different perspective, the costs assessment…
Windus v Director of the Fair Work Building Industry Inspectorate
[2013] FCA 1053 Para 5

…he Fair Work Building Industry Inspectorate v Abbott (No 5) [2013] FCA 522 at [14]; Windus v Director of the Fair Work Building Industry Inspectorate [2013] FCA 1053; (2013) 216 FCR 207 at [22], [31]; and Mango Boulevard Pty Ltd v Whitton [2018] FCA 399 at [3], [8]‑[14] as authority for the proposition that an int…
Director of the Fair Work Building Industry Inspectorate v Abbott (No 5)
[2013] FCA 522 Para 5

…In short reasons, the registrar referred to Director of the Fair Work Building Industry Inspectorate v Abbott (No 5) [2013] FCA 522 at [14]; Windus v Director of the Fair Work Building Industry Inspectorate [2013] FCA 1053; (2013) 216 FCR 207 at [22], [31]; and Mango Boulevard Pty Ltd v Whitton [2018] FCA 399 at…
Noye v Robbins
[2010] WASCA 83 Para 4

…y costs, noting that the relevant principle has a degree of flexibility when it comes to what is meant by having incurred a liability: Noye v Robbins [2010] WASCA 83 at [332]‑[334] (Owen JA, Buss and Pullin JJA agreeing). The issue faced by the registrar concerned the proper approach to adopt where the issue as to…
Gett v Tabet
[2009] NSWCA 76 Para 20

…of the underlying principles of certainty, stability and predictability it is proper for one judge to depart from an earlier decision: Gett v Tabet [2009] NSWCA 76; (2009) 109 NSWLR 1 at [283]‑[301]. The distinction between the making of an order for costs and taxation of costs…
Wentworth v Rogers & Anor
[2007] HCATrans 747 Para 5

…Rogers concerning liability for costs persisted. The history was recounted by Santow JA in the later decision of Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474 at [5]. By that time, there had been assessments undertaken by a cost assessor of the costs payable under two costs orders. Review was sought before…
Doyle v Hall Chadwick
[2007] NSWCA 159 Para 9

…In Doyle v Hall Chadwick [2007] NSWCA 159 at [61]‑[62] Hodgson JA (Mason P and Campbell JA agreeing) held that it was correct to say that an assessor can determine disputes between a lawyer and client as to the terms of a costs agreement, but declined to address the divergence of opinion in the 2006 decision in Wen…
Wentworth v Rogers
[2006] NSWCA 145 Para 5

…former husband Mr Rogers concerning liability for costs persisted. The history was recounted by Santow JA in the later decision of Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474 at [5]. By that time, there had been assessments undertaken by a cost assessor of the costs payable under two costs orders. Revi…
Hicks v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 757 Para 20

…follow the considered decision of another judge as explained by French J in Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [75]‑[76] and the need for a strong conviction of error that can be demonstrated by reasoning and a persuasion that notwithstanding the importance…
Wentworth v Rogers
[1999] NSWCA 403 Para 3

…In Wentworth v Rogers [1999] NSWCA 403, strenuous objection was taken to the proposition that the terms of retainer of counsel and solicitor for the party claiming costs should be determined by a costs assessor. However, the Court of Appeal (Handley JA, Sheppard AJA and Stein JA), concluded at [56] that reasoning b…
Cachia v Hanes
[1994] HCA 14 Para 1

…The next point to note is that all cost orders are made on the basis that they are awarded by way of indemnity (see Cachia v Hanes (1994) 179 CLR 403 at 410). That is, there must be a legal liability to pay costs that falls on the party seeking to recover costs pursuant to a costs order. Costs which do not satisfy th…
Halliday v SACS Group Pty Ltd
[1993] HCA 13 Para 23

…t [37] the following view was expressed (citing authority including the High Court decision in Halliday v High Performance Personnel Pty Ltd (in liq) (1993) 113 ALR 637 at 639): The onus of establishing that the respondent had no liability to [his lawyers] for their costs lies on the appellants. In the absence of pro…
Halliday v HIgh Performance Personnel Pty Ltd (formerly Sacs Group Pty Ltd (In Liquidation)
[1993] HCATrans 59 Para 23

…In Marsh v Baxter [No 2] [2016] WASCA 51 at [37] the following view was expressed (citing authority including the High Court decision in Halliday v High Performance Personnel Pty Ltd (in liq) (1993) 113 ALR 637 at 639): The onus of establishing that the respondent had no liability to [his lawyers] for their costs lies on the appellants. In the absence of proo…
Coogi Australia Pty Ltd v Hysport International Pty Ltd
[1998] FCA 1270 Para 13

…Gilmour J placed reliance upon the decision of Drummond J in Coogi Australia Pty Ltd v Hysport International Pty Ltd [1998] FCA 1270 for the making of such orders. In that case, after a trial, a party sought to raise issues as to whether a party who sought costs had any liability to pay them. That is, the issue wa…
[1921] 1 KB 495
[1921] 1 KB 495 Para 22

…ility to the solicitor on the record for costs cannot recover costs against the unsuccessful party ( Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495) may be presumed to have been met. See also, at [86].…

Legislation cited in this decision · 1

Federal Court Rules 2011 (Cth)
40.28 2 mentions (from Para 10)

File number:	WAD 607 of 2015
Judgment of:	COLVIN J
Date of judgment:	9 August 2023
Catchwords:	PRACTICE AND PROCEDURE - interlocutory application for permanent stay of bill of costs and return of security - where registrar conducting taxation adjourned as registrar viewed applicants' objection that the amounts breached the indemnity principle was required to be raised with the Court by interlocutory application - consideration of powers of registrar when conducting a taxation - consideration of different powers of officer entrusted with taxation - held Registrar does have the authority to determine whether the indemnity principle has been met - application refused
Legislation:	Federal Court Rules 2011 (Cth) rr 40.28
Cases cited:	Cachia v Hanes (1994) 179 CLR 403 Coogi Australia Pty Ltd v Hysport International Pty Ltd [1998] FCA 1270 Director of the Fair Work Building Industry Inspectorate v Abbott (No 5) [2013] FCA 522 Doyle v Hall Chadwick [2007] NSWCA 159 eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2015] NSWCA 284; (2015) 90 NSWLR 451 Frigger v Banning [2016] FCA 359 Gett v Tabet [2009] NSWCA 76; (2009) 109 NSWLR 1 Halliday v High Performance Personnel Pty Ltd (in liq) (1993) 113 ALR 637 Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 Lowbeer v De Varda [2018] FCAFC 115; (2018) 264 FCR 228 Mango Boulevard Pty Ltd v Whitton [2018] FCA 399 Marsh v Baxter [No 2] [2016] WASCA 51 Noye v Robbins [2010] WASCA 83 Wentworth v Rogers [1999] NSWCA 403 Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474 Windus v Director of the Fair Work Building Industry Inspectorate [2013] FCA 1053; (2013) 216 FCR 207
Division:	General Division
Registry:	Western Australia
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	44
Date of hearing:	2 August 2023
Counsel for the Applicants:	The applicants appeared in person
Counsel for the Respondents:	Mr TR Stephenson
Solicitor for the Respondents:	Eastwood Law

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	9 AUGUST 2023