Frigger v Lean [No 2]

Case [2016] WASCA 212


FRIGGER -v- LEAN [No 2] [2016] WASCA 212



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2016] WASCA 212
THE COURT OF APPEAL (WA)
Case No:CACV:65/201524 OCTOBER 2016
Coram:MARTIN CJ
BUSS P
MURPHY JA
30/11/16
31Judgment Part:1 of 1
Result: Application for leave to appeal, and the appeal, dismissed
B
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Parties:ANGELA FRIGGER
HARTMUT FRIGGER
GRAEME TREVOR LEAN

Catchwords:

Abuse of process
Application to permanently stay proceedings
Claim based on substantially the same facts as previous unsuccessful claim
Turns on own facts

Legislation:

Nil

Case References:

Allmark v Mossensons (a firm) [2006] WASCA 127
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 11] [2016] WASC 365
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 6] [2014] WASC 105
Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133
Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3] [2010] WASC 2
Frigger v Campbell-Smith [2010] WASC 353
Frigger v Lean [2012] WASCA 66
Frigger v Lean [2015] WASC 125.
Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69
Leybourne v Habkouk [2012] NSWCA 212
Professional Services of Australia Pty Ltd (Administrator Appointed) v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2010] WASC 38
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S)
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2010] WASC 113
Re Luck [2003] HCA 70; (2003) 78 ALJR 177
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28
Trawl Industries of Australia Pty Limited v Effem Foods Pty Limited (1992) 36 FCR 406
Tyne (Trustee) v UBS AG [2016] FCA 241
Wing Luck Foods v Lay Choo Lim [1989] WAR 358
Zavodnyik v Alex Constructions Pty Ltd [2005] NSWCA 438; (2005) 67 NSWLR 457


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FRIGGER -v- LEAN [No 2] [2016] WASCA 212 CORAM : MARTIN CJ
    BUSS P
    MURPHY JA
HEARD : 24 OCTOBER 2016 DELIVERED : 30 NOVEMBER 2016 FILE NO/S : CACV 65 of 2015 BETWEEN : ANGELA FRIGGER
    HARTMUT FRIGGER
    Appellants

    AND

    GRAEME TREVOR LEAN
    Respondent


ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

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AGLC
Frigger v Lean [No 2] [2016] WASCA 212
Case
[2016] WASCA 212
Decision Date

CaseChat Overview and Summary

The matter of Frigger v Lean [No 2] involved the applicant, Frigger, seeking a permanent stay of proceedings against the respondent, Lean, on the basis that the claim was an abuse of process due to it being substantially based on the same facts as a previous unsuccessful claim. The case was heard in the Supreme Court of Queensland. The dispute centered around whether the applicant's current claim was an abuse of the court's process because it was based on substantially the same facts as a previous claim that had already been dismissed.

The primary legal issue for the court to decide was whether the applicant's claim constituted an abuse of process, specifically whether it was an abuse for the applicant to pursue a claim that was based on substantially the same facts as a previous unsuccessful claim. The court had to determine if the applicant's current claim turned on its own facts or if it was merely a reiteration of a previous claim that had already been dismissed by the court. The court also had to consider whether the applicant's claim was an abuse of process by virtue of the applicant's conduct in bringing the claim.

The court dismissed the application for leave to appeal and the appeal. The court found that the applicant's claim did not constitute an abuse of process. It held that the applicant's claim turned on its own facts, and it was not substantially based on the same facts as the previous claim. The court also found that the applicant's conduct in bringing the claim did not amount to an abuse of process. The court held that the applicant's previous unsuccessful claim did not prevent the applicant from pursuing a new claim based on different facts. The court concluded that the applicant's claim was not an abuse of process and dismissed the application for leave to appeal and the appeal.

Orders

Orders of the court

Application for leave to appeal, and the appeal, dismissed

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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