Frigger v Banning (No 8)

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.