Frigger v Banning (No 8)

Case [2019] FCA 1319

FEDERAL COURT OF AUSTRALIA

Frigger v Banning (No 8) [2019] FCA 1319

File number: WAD 607 of 2015
Judge: COLVIN J
Date of judgment: 21 August 2019
Catchwords:

PRACTICE AND PROCEDURE - application to amend statement of claim and add additional respondents - where proposed statement of claim involved a wholesale change to the application - where proposed statement of claim raised new claims alleging defamation and malicious prosecution - whether proposed statement of claim failed to comply with previous orders - whether steps could be taken in the proceedings by the applicants as bankrupts - application dismissed

PRACTICE AND PROCEDURE - application to substitute executor of deceased estate in place of deceased respondent - application allowed

BANKRUPTCY AND INSOLVENCY - where applicants are bankrupts - whether the claims in the proceedings are of a kind that can be advanced by the applicants as bankrupts - where statutory stay of all proceedings - consideration of s 60 of the Bankruptcy Act 1966 (Cth) - where proceedings deemed to have been abandoned by trustee in bankruptcy -consideration of effect of deemed abandonment of proceedings for present application - whether certain claims are in respect of a personal injury or wrong and subject to the exception in s 60(4)
Legislation:

Bankruptcy Act 1966 (Cth) ss 60, 116

Federal Court Rules 2011 (Cth) rr 9.09, 9.24
Cases cited:

A v New South Wales [2007] HCA 10; (2007) 230 CLR 500

Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366

Bell v Cribb [2013] WASC 32

Cole v Challenge Bank Limited [2002] FCAFC 200

Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713

Duckworth v Water Corporation [2012] WASC 30

Eleizer v The Owners - Strata Plan No 51682 [2017] NSWSC 278

Freeman v Joiner [2005] FCAFC 149

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

Frigger v Banning [2016] FCA 359

Gore v Prentice (Trustee), in the matter of the Personal Insolvency Agreement of Gore [2012] FCA 660

Holbrook v Professional Services Australia Pty Ltd [2012] WASC 444

Jamieson v R [1993] HCA 48; (1993) 177 CLR 574

Kitay, in the matter of Frigger (No 2) [2018] FCA 1032

Little v Law Institute of Victoria (No 3) [1990] VR 257

Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204

McJannett v Daley [No 2] [2012] WASC 386

Moss v Eaglestone [2011] NSWCA 404; (2011) 83 NSWLR 476

National Australia Bank Ltd v Nyasa Nominees Pty Ltd [2019] WASC 107

Newman as trustee for the Bankrupt Estate of Keet v Bain [2013] FCA 558; (2013) 213 FCR 370

Nugawela v Commissioner of Taxation [2018] FCA 1458

Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1

Savage v Australian Unity Funds Management Ltd [2011] NSWCA 270

The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475; [2006] 1 Qd R 307

Theissbacher v MacGregor Garrick & Co [1993] 2 Qd R 223

Tyne v…

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AGLC
Frigger v Banning (No 8) [2019] FCA 1319
Case
[2019] FCA 1319
Decision Date

CaseChat Overview and Summary

Frigger v Banning (No 8) concerned an application by Mr and Mrs Frigger to amend their statement of claim and add additional respondents. The applicants sought to raise new claims for defamation and malicious prosecution. The respondents opposed the application, arguing that the proposed statement of claim did not comply with previous orders and that the applicants as bankrupts were not permitted to take further steps in the proceedings. The court was required to determine whether the proposed statement of claim complied with previous orders, whether the applicants could take further steps in the proceedings as bankrupts, and whether certain claims were in respect of a personal injury or wrong and subject to the exception in section 60(4) of the Bankruptcy Act 1966 (Cth).

The court dismissed the application to amend the statement of claim and add additional respondents. The court found that the proposed statement of claim did not comply with previous orders and that the applicants as bankrupts could not take further steps in the proceedings. The court also found that the proceedings had been deemed to have been abandoned by the trustee in bankruptcy and that the stay being in operation, these proceedings could not be used to bring new claims. The court noted that the proposed statement of claim involved a wholesale change to the application and raised new claims that were not permitted by the previous orders. The court also found that the proposed statement of claim did not comply with previous orders of the Court.

The court allowed the application to substitute the executor of the deceased respondent's estate in place of the deceased respondent. The court noted that one of the respondents, Mr Donald Campbell-Smith had passed away since these proceedings were commenced. The court allowed an application to be brought for orders to the effect that the executor of his estate be made a party to these proceedings and Mr Campbell-Smith be removed as a party. The court also made directions for the hearing of an interlocutory application for the dismissal of these proceedings with costs. The court ordered that Mr and Mrs Frigger do pay the respondents' costs of the hearings on 12 June and 29 July 2019.

Orders

Orders of the court

1. The application by the applicants for leave to file a statement of claim in terms of the minute of proposed amended statement of claim dated 7 May 2019 and to add additional respondents is dismissed.

2. The applicants do pay the respondents' costs of the application to be assessed if not agreed.

3. The second respondent be removed as a party and Ann Marion Campbell-Smith in her capacity as executor of the estate of Donald Campbell-Smith be added as the second respondent with effect from the date of this order.

4. The respondents' interlocutory application dated 24 July 2019 be listed for hearing on 26 September 2019 at 10.15 am.

5. On or before 4 September 2019 the respondents do file and serve an outline of submissions not exceeding five pages and any affidavits in support of their interlocutory application.

6. On or before 18 September 2019 the applicants do file and serve an outline of submissions not exceeding five pages and any affidavits in opposition to the interlocutory application.

7. There be leave to the respondents to apply on or before 4 September 2019 for orders varying order 2 to seek orders by way of indemnity costs.

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

I note that the respondents maintain that the proposed pleading is otherwise defective and seek to bring an application dismissing the proceedings on the basis that there should be no further opportunity afforded to Mr and Mrs Frigger to plead a case. However, those are matters for a later time, if and when the need arises.Summary of decision For the following reasons, these proceedings are not of a kind that can continue to be advanced by Mr and Mrs Frigger as bankrupts. There was a statutory stay of all claims in these proceedings that arose upon the bankruptcy of Mr and Mrs Frigger and that stay continues. In addition, the proceedings are now deemed to have been abandoned by the trustee in bankruptcy. The stay being in operation, these proceedings cannot be used to bring new claims. It follows that leave could not be granted to Mr and Mrs Frigger to take any further steps in the proceedings (including leave to file the proposed pleading). In addition, the proposed statement of claim does not comply with previous orders of the Court. For that further reason, leave to file the proposed statement of claim should be refused. It follows that there should not be orders joining the additional respondents. The respondents have filed an interlocutory application for the dismissal of these proceedings with costs. I will make directions for the hearing of that application. One of the respondents, Mr Donald Campbell‑Smith has passed away since these proceedings were commenced. In the course of the hearing I allowed an application to be brought for orders to the effect that the executor of his estate be made a party to these proceedings and Mr Campbell‑Smith be removed as a party. Those orders should be made. The respondents having succeeded on the application, there should be orders that Mr and Mrs Frigger do pay the respondents' costs of the hearings on 12 June and 29 July 2019. As these reasons confirm the operation of a statutory stay, Mr and Mrs Frigger are not able to file any further documents in these proceedings unless specifically permitted to do so by order of the Court.Issues for determination at this stage After some earlier versions of the statement of claim were proposed, on 8 March 2017 Barker J dismissed an application for an order that would have permitted Mr and Mrs Frigger to file what was then described as a proposed substituted statement of claim. The consequence of that order was that there was no statement of claim because necessarily implicit in the application was an abandonment of the existing pleading and a recognition that there needed to be a new pleading. Therefore, as the matter currently stands there is no statement of claim. In those circumstances, on 16 March 2018 I made orders concerning the filing of a proposed new pleading. I directed that it be no more than 15 pages in length and be in accordance with paras 5.11 and 5.12 of the Commercial and Corporations Practice Note. I also ordered that it not characterise any conduct as fraudulent or dishonest or attribute any improper motive to any party but rather plead any state of mind or purpose or object of a party objectively. I also directed that the proposed statement of claim shall not contain matters of detailed evidence or legal argument or submissions. I made these directions having regard to the problems that had been found with previous pleadings.

Ratio Decidendi

Legal Principle Established

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