Frigger v Banning (No 7) - [2018] FCA 1074

FEDERAL COURT OF AUSTRALIA
Frigger v Banning (No 7) [2018] FCA 1074

File number: WAD 607 of 2015

Judge: COLVIN J

Date of judgment: 17 July 2018

Cases cited: Frigger v Banning (No 3) [2017] FCA 221

Date of hearing: 17 July 2018

Registry: Western Australia

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Category: No Catchwords

Number of paragraphs: 11

Counsel for the First Applicant: The First Applicant appeared in person

Counsel for the Second Applicant: The Second Applicant did not appear

Counsel for the First, Third and Fourth Respondents: Mr TR Stephenson

Solicitor for the First, Third and Fourth Respondents: Eastwood Law

Counsel for the Second Respondent: The Second Respondent did not appear

ORDERS

WAD 607 of 2015

BETWEEN:
ANGELA CECILIA THERESA FRIGGER

First Applicant

HARTMUT HUBERT JOSEF FRIGGER

Second Applicant

AND:
SANDRA MAY BANNING

First Respondent

DONALD CAMPBELL-SMITH

Second Respondent

PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD (ACN 082 879 641) (and another named in the Schedule)

Third Respondent

JUDGE:

COLVIN J

DATE OF ORDER:

17 JULY 2018

THE COURT ORDERS THAT:
1.The application for leave to file a statement of claim in terms of the minute of proposed statement of claim filed 10 April 2018 be dismissed.

THE COURT FURTHER ORDERS THAT:
2.The applicants do file and serve a signed minute of proposed statement of claim by 28 August 2018.
3.If the minute is prepared and signed by Mr and Mrs Frigger personally it shall comply with the orders made on 16 March 2018.
4.If the minute is prepared and signed by a legal practitioner it shall be in a form that the practitioner considers is reasonable and proper based on instructions provided to the practitioner.
5.The matter be re-listed for a further case management hearing on 14 September 2018 at 9.15 am at which time the court will consider whether the proposed statement of claim is in a form that should be entertained as a proposed claim in these proceedings.
6.If the court is of the view that the claim is not in an appropriate form the court will consider at the hearing on 14 September 2018 whether the proceedings should be dismissed.
7.The applicants do pay the respondents costs of the application to file a statement of claim in terms of the minute of proposed statement of claim.
8.The applicants do pay the respondents costs of the application for orders allowing a new statement of claim following the decision of Justice Barker on 8 March 2017 including any reserved costs in respect of that application.
9.The application for an interlocutory injunction be adjourned to a date to be fixed after 14 September 2018.
10.The costs of the application for an interlocutory injunction be reserved.

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

REASONS FOR JUDGMENT
COLVIN J:

In this matter I have before me an application for orders to enable a new pleading to be received in circumstances in which…

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 7)

Details

AGLC: Frigger v Banning (No 7) [2018] FCA 1074
Case: [2018] FCA 1074
Decision Date: 17 July 2018

CaseChat Overview and Summary

Frigger v Banning (No 7) involved an application by the applicants, Mr and Mrs Frigger, to be allowed to file a statement of claim. The respondents, Mr and Mrs Banning, opposed the application. The case was heard in the Federal Court of Australia. The applicants sought to file a new statement of claim that had been drafted by a legal practitioner. The respondents argued that the new statement of claim was not in an appropriate form and that the proceedings should be dismissed.

The legal issues before the court included whether the applicants should be permitted to file a new statement of claim, and if so, in what form. The court considered the procedural history of the case, including previous orders made by Justice Barker on 8 March 2017 and 16 March 2018. The court also examined the requirements for the form and content of a statement of claim under the Federal Court Rules 2011.

The court held that the application for leave to file a new statement of claim should be dismissed. However, the applicants were given the opportunity to file a signed minute of a proposed statement of claim by 28 August 2018. The form of the minute would depend on whether it was prepared and signed by the applicants personally or by a legal practitioner. The matter was re-listed for a further case management hearing on 14 September 2018, at which time the court would consider whether the proposed statement of claim was in an appropriate form. If not, the court would consider whether the proceedings should be dismissed. The applicants were ordered to pay the respondents' costs of the application to file a statement of claim, as well as the costs of a previous application for orders allowing a new statement of claim. The application for an interlocutory injunction was adjourned, and the costs of that application were reserved.

Orders

Orders of the court

1. The application for leave to file a statement of claim in terms of the minute of proposed statement of claim filed 10 April 2018 be dismissed.

THE COURT FURTHER ORDERS THAT:

2. The applicants do file and serve a signed minute of proposed statement of claim by 28 August 2018.

3. If the minute is prepared and signed by Mr and Mrs Frigger personally it shall comply with the orders made on 16 March 2018.

4. If the minute is prepared and signed by a legal practitioner it shall be in a form that the practitioner considers is reasonable and proper based on instructions provided to the practitioner.

5. The matter be re-listed for a further case management hearing on 14 September 2018 at 9.15 am at which time the court will consider whether the proposed statement of claim is in a form that should be entertained as a proposed claim in these proceedings.

6. If the court is of the view that the claim is not in an appropriate form the court will consider at the hearing on 14 September 2018 whether the proceedings should be dismissed.

7. The applicants do pay the respondents costs of the application to file a statement of claim in terms of the minute of proposed statement of claim.

8. The applicants do pay the respondents costs of the application for orders allowing a new statement of claim following the decision of Justice Barker on 8 March 2017 including any reserved costs in respect of that application.

9. The application for an interlocutory injunction be adjourned to a date to be fixed after 14 September 2018.

10. The costs of the application for an interlocutory injunction be reserved.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	WAD 607 of 2015
Judge:	COLVIN J
Date of judgment:	17 July 2018
Cases cited:	Frigger v Banning (No 3) [2017] FCA 221
Date of hearing:	17 July 2018
Registry:	Western Australia
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Category:	No Catchwords
Number of paragraphs:	11
Counsel for the First Applicant:	The First Applicant appeared in person
Counsel for the Second Applicant:	The Second Applicant did not appear
Counsel for the First, Third and Fourth Respondents:	Mr TR Stephenson
Solicitor for the First, Third and Fourth Respondents:	Eastwood Law
Counsel for the Second Respondent:	The Second Respondent did not appear