Frigger v Professional Services of Australia Pty Ltd
[2013] WASCA 26
FRIGGER -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [2013] WASCA 26
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 26 | |
| THE COURT OF APPEAL (WA) | 08/02/2013 | ||
| Case No: | CACV:23/2012 | 24 JANUARY 2013 | |
| Coram: | PULLIN JA | 24/01/13 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ANGELA FRIGGER HARTMUT FRIGGER PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD DONALD CAMPBELL-SMITH as executor of the estate of MARTIN BANNING KIM HOLBROOK |
Catchwords: | Appeal Practice and procedure Application to amend appeal notice to appeal against orders made after the appeal notice was filed Turns on own facts |
Legislation: | Nil |
Case References: | Johnson v Johnson [No 3] [2000] HCA 48; (2000) 201 CLR 488 Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FRIGGER -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [2013] WASCA 26 CORAM : PULLIN JA HEARD : 24 JANUARY 2013 DELIVERED : 24 JANUARY 2013 PUBLISHED : 8 FEBRUARY 2013 FILE NO/S : CACV 23 of 2012 BETWEEN : ANGELA FRIGGER
- First Appellant
HARTMUT FRIGGER
Second Appellant
AND
PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD
First Respondent
DONALD CAMPBELL-SMITH as executor of the estate of MARTIN BANNING
Second Respondent
KIM HOLBROOK
Third Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : SIMMONDS J
File No : CIV 2265 of 2006
Catchwords:
Appeal - Practice and procedure - Application to amend appeal notice to appeal against orders made after the appeal notice was filed - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
First Appellant : In person
Second Appellant : No appearance
First Respondent : Mr T Stephenson
Second Respondent : Mr T Stephenson
Third Respondent : Mr G Flynn
Solicitors:
First Appellant : In person
Second Appellant : No appearance
First Respondent : Holborn Lenhoff Massey
Second Respondent : Holborn Lenhoff Massey
Third Respondent : Hotchkin Hanly Lawyers
Case(s) referred to in judgment(s):
Johnson v Johnson [No 3] [2000] HCA 48; (2000) 201 CLR 488
Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427
(Page 4)
1 PULLIN JA: The appellants applied for leave to amend the appeal notice to include an appeal against costs orders made by Simmonds J on 16 October 2012. After hearing the submissions of the parties I dismissed the application, with reasons to follow. These are the reasons.
2 Before I set out the details of the application, I should mention that Mrs Frigger, who appeared on behalf of the appellants (the Friggers), applied for an adjournment in order to instruct counsel to represent her. In addition, Mrs Frigger claimed that she did not know that the application to amend had been listed for hearing. She said that she thought the application was listed merely for directions. However, that latter submission was flatly contradicted by her affidavit sworn 22 January 2013, which deposed in par 4 that on 16 January 2013 she received an email from her former solicitor, David Thompson, who advised her that the application was listed for hearing on 24 January 2013.
3 According to Mrs Frigger, Mr Thompson, of Thompson Downey Cooper, who has had conduct of the appeal, has recently terminated his retainer agreement and the Friggers are now self-represented. Mrs Frigger says that the appellants intend seeking legal representation. Mrs Frigger said that she wanted counsel to appear. Appeals concerning costs orders should not be drawn out. Adjourning the application would draw out an already drawn-out costs appeal.
4 I indicated that there was sufficient material before me to deal with the application, that the matter was straightforward, that Mr Thompson had filed an affidavit which, in effect, constituted submissions as to why the amendment should be allowed, and that it would be prejudicial to the Friggers to adjourn because it would only result in the incurring of further costs, which the appellants would have to meet. As a result, I declined to adjourn the application.
5 As to the application to amend, I should preface what follows by saying immediately that there can be no injustice because of the refusal of the application to amend. The appellants are free to institute a separate appeal, although they will require leave and an extension of time. The appellants' chance of gaining leave to appeal and an extension of time will be the same, regardless of whether the additional appeal is by separate appeal or brought in these proceedings, had leave to amend had been granted.
(Page 5)
The background and this appeal
6 The unamended appeal notice reveals that the appeal, as presently constituted, is against 10 orders, all but one relating to costs, made in relation to an application by the first and second respondents for freezing orders against Computer Accounting & Tax Pty Ltd and the Friggers. To gain the freezing orders, the second and third respondents were obliged to give an undertaking as to damages.
7 Subsequently, the freezing orders were discharged on 14 July 2010. The appeal against the costs orders is an interlocutory appeal. Leave to appeal is required. Some of the costs orders were made over 18 months before the appeal was instituted. The Friggers will have to seek an extension of time in relation to the appeals against those orders and any other orders made more than 14 days before 30 March 2012, which is the date on the appeal notice.
The proposed new appeal
8 Several months after this appeal was instituted, an application was made by the second and third respondents to discharge the undertakings they had given. An application was also made by the Friggers seeking compensation which was, in effect, an application to enforce the undertaking. Orders were made by Simmonds J on 16 October 2012, releasing the second and third respondents from the undertakings and dismissing the Friggers' application for compensation or enforcement of the undertaking. These orders have not been appealed against.
9 A costs order was made by Simmonds J against the Friggers in relation to their application for compensation or enforcement of the undertaking, and a second costs order was made against the Friggers in relation to the second and third respondents' application to be discharged from the undertakings. These orders were made on 16 October 2012.
10 The Friggers could have filed an appeal notice and sought leave to appeal against the 16 October 2012 orders. Mrs Frigger said she did not do so because she did not want to pay the court fee on filing an appeal notice. Thus the Friggers decided they would follow the course of trying to amend the appeal notice in this appeal in an attempt to avoid the filing fee on a separate appeal notice.
11 If the appeal notice had been amended as the Friggers requested, then the appeal would be against costs orders made over six months after the appeal was commenced. It is not necessary to decide whether it is
(Page 6)
- possible to amend an appeal notice to appeal against orders made after the institution of the appeal. None of the parties made submissions about this. The application to amend was refused on discretionary grounds.
12 The factors relevant to the exercise of discretion were as follows:
(a) Interlocutory appeals are supposed to be brought promptly. That is why the time for institution of such an appeal is limited to 14 days, and why the Supreme Court (Court of Appeal) Rules 2005 (WA) require that the appellant's case be filed seven days thereafter: r 26(1), 32(2)(a). If the Rules had been adhered to, this appeal or the associated leave application and extension of time application would already have been heard and determined. However, even though the Rules were not complied with, the appellants' case has been filed and the respondents' answers have been filed. An order has been made for the appeal book indexes to be settled. If grounds had been amended, the appellants' case and the respondents' answers would have to have been amended. This would have delayed the progress of this appeal.
(b) The course the Friggers would like to follow would result in extra costs which, incidentally, would likely exceed the filing fee on a separate appeal. Those costs are:
(i) the costs of bringing this application;
(ii) costs thrown away by the three respondents as a result of the need to amend the respondents' answers;
(iii) costs the Friggers would have to pay to new solicitors to amend the appellants' case;
(iv) costs relating to the adjournment to another date; and
(v) the costs of the parties in attending that further application.
(c) The solicitor on the record for the applicants on the freezing orders application was Holborn Lenhoff Massey. Subsequently, when the application was made for an order discharging the undertakings and to resist the Friggers' application for compensation, Eastwood Sweeney Law appeared. If an order were made amending the appeal notice to allow the existing appeal to consider the 16 October 2012 orders, the first and second respondents would be forced to decide which of the two firms of
- solicitors should be involved. They should not be forced into that position merely because the appellants would like to save filing fees.
- (d) The appellants contend, via Mr Thompson's affidavit sworn 6 November 2012, that the decisions in relation to costs on 16 October 2012 arise from the same factual background as the present appeal and that the appeal against the costs orders of 16 October 2012 will 'involve consideration of similar principles' to the existing appeal. It is true that, in relation to each application for an extension of time or for leave in relation to each costs order, it may be necessary to consider whether the judge's discretion miscarried. In that sense, the same legal consideration might apply, but whether leave should be granted, whether an extension of time should be granted and whether there was any error in relation to the making of a particular costs order will depend on the factual circumstances relating to each costs order. The circumstances relating to each costs order will differ. Why a costs order was made in 2009 might have no bearing at all on why an interlocutory costs order was made in October 2012.
The recusal application
13 Finally, I need to mention that Mrs Frigger made an application that I recuse. This application was only made when I made observations indicating that it would be against the Friggers' interests to adjourn the application. No particulars were given in support of the application. An allegation of reasonable apprehension of bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension, and the asserted conclusion that a judge might not bring an impartial mind to bear upon the issues that are to be decided: Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [67]. No facts and circumstances were particularised by Mrs Frigger, with the result that no fair-minded lay observer might reasonably apprehend that I would not bring an impartial and unprejudiced mind to the resolution of the question I was required to decide: Johnson v Johnson [No 3] [2000] HCA 48; (2000) 201 CLR 488 [11]. As a result, I refused to disqualify myself from dealing with the application.
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