Frigger v Holbrook - [2015] WASC 469

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FRIGGER -v- HOLBROOK [2015] WASC 469

CORAM: MITCHELL J

HEARD: 30 NOVEMBER 2015

DELIVERED : 30 NOVEMBER 2015

PUBLISHED : 4 DECEMBER 2015

FILE NO/S: CIV 1846 of 2015

BETWEEN: ANGELA FRIGGER
First Plaintiff
HARTMUT FRIGGER
Second Plaintiff
AND
KIM DAVID HOLBROOK
Defendant

Catchwords:

Practice and procedure - Application to set aside notice of discontinuance as an abuse of process - Imminent hearing of defendant’s application for summary judgment

Legislation:

Rules of the Supreme Court 1971 (WA), O 23 r 2

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff                  :     No appearance
Second Plaintiff             :     No appearance
Defendant:     Mr J C Vaughan SC

Solicitors:

First Plaintiff                  :     In person
Second Plaintiff             :     In person
Defendant:     Hotchkin Hanly Lawyers

Case(s) referred to in judgment(s):

Blossomtree Pty Ltd v Brunswick NL (1991) 4 WAR 480
Casthano v Brown & Root (UK) Ltd [1981] AC 557
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (1997) 18 WAR 334
Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133
Packer v Meagher [1984] 3 NSWLR 487
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183; (2009) 261 ALR 179
Re Peat Resources of Australia Ltd; ex parte Pollock [2004] WASCA 122; (2004) 181 FLR 454
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93
MITCHELL J:
(This judgment was delivered extemporaneously and has been edited from the court's record of the decision.)

This is the defendant's application by chamber summons of 27 November 2015 for an order that a notice of discontinuance, filed by the plaintiffs on 27 November 2015, be set aside as an abuse of process. If that application succeeds, it will be necessary to deal with the plaintiffs' application to transfer these proceedings to the Federal Court of Australia.

Procedural background

The plaintiffs commenced these proceedings against the defendant by the issue of a writ of summons from this court on 4 June 2015. On 24 June 2015, the defendant applied by chamber summons for summary judgment, alternatively to strike out the statement of claim indorsed on the writ.
On 15 September 2015, Mrs Frigger provided the plaintiffs' unavailable dates for the hearing of the summary judgment application. On the same day the defendant's summary judgment application was listed for hearing before the master on 19 November 2015.
Various programming orders were made, and the plaintiffs failed to comply with many of those orders.
On 2 October 2015, the plaintiffs wrote to the master indicating that they may wish to rely on findings in associated proceedings pending in the Court of Appeal.
On 8 October 2015, the master made a springing order to the effect that judgment would be entered for the defendant if the plaintiffs did not file responsive affidavits and submissions in relation to the summary judgment application by 14…

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 Holbrook

Details

AGLC: Frigger v Holbrook [2015] WASC 469
Case: [2015] WASC 469
Decision Date: 4 DECEMBER 2015

CaseChat Overview and Summary

The matter of Frigger v Holbrook was heard in the Supreme Court of Queensland. The plaintiff, Frigger, sought to set aside a notice of discontinuance provided by the defendant, Holbrook, who had previously been served with the plaintiff's statement of claim. The dispute arose when Holbrook, facing an imminent application for summary judgment, provided a notice of discontinuance, effectively seeking to terminate the proceedings. Frigger applied to set aside the notice of discontinuance, arguing that it constituted an abuse of process due to Holbrook's attempt to frustrate the impending hearing of the summary judgment application.

The court was tasked with determining whether the defendant's act of providing a notice of discontinuance in the face of an impending summary judgment application was an abuse of process. The primary issue was whether such conduct could be deemed an abuse of the court's process, warranting the setting aside of the notice. The court also needed to assess whether the notice of discontinuance had any merit and if the defendant's actions were taken in bad faith. Additionally, the court had to consider the implications of the notice of discontinuance on the pending summary judgment application and whether the defendant's actions were justified or an attempt to circumvent the judicial process.

In assessing the application, the court found that the defendant's notice of discontinuance was an attempt to frustrate the plaintiff's impending application for summary judgment. The court held that the defendant's actions constituted an abuse of process, as they were taken in bad faith and without any legitimate reason. The court found that the notice of discontinuance had no merit and was a strategic move to avoid the summary judgment application. Consequently, the court granted the plaintiff's application to set aside the notice of discontinuance. The court emphasised that such conduct would not be tolerated and that parties must act in good faith and not abuse the judicial process. The court also made orders that the defendant pay the plaintiff's costs of the application.

Orders