Frigger v Professional Services of Australia Pty Ltd [No 2]
[2016] WASCA 68
•22/04/2016
FRIGGER -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [No 2] [2016] WASCA 68
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 68 | |
| THE COURT OF APPEAL (WA) | 22/04/2016 | ||
| Case No: | CACV:118/2014 | 24 MARCH 2016 | |
| Coram: | BUSS JA MURPHY JA | 24/03/16 | |
| 48 | Judgment Part: | 1 of 1 | |
| Result: | Appellants' application for stay dismissed Appellants ordered to pay indemnity costs of stay application | ||
| 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 |
Catchwords: | Practice and procedure Application by appellants to stay their appeal pending resolution of new litigation in Federal Court Turns on own facts Appeal already well advanced Significant time and expense incurred Appellants seeking to raise multiplicity of matters in new proceedings No evidence to support allegations of fraud Costs of application indemnity costs Selfrepresented litigants wellversed in litigation No merit in stay application Applicants acted unreasonably |
Legislation: | Nil |
Case References: | Banning Holdings Pty Ltd v Holbrook [2009] WASC 178 Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR 225 Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 10] [2015] WASC 380 Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 7] [2014] WASC 360 Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 8] [2015] WASC 166 Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343 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 [2008] WASC 133 (S) Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2010] HCA Trans 139 Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3] [2010] WASC 2 Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3] [2010] WASC 2 (S) Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364; (1988) 81 ALR 397 Frigger v Clavey Legal Pty Ltd [2015] WASCA 217 Frigger v Clavey Legal Pty Ltd [No 2] [2015] WASCA 258 Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21 Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21 (S) Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [2013] WASC 229 Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [2013] WASC 229 (S) Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 2] [2013] WASC 394 Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 3] [2014] WASC 24 Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 4] [2014] WASC 165 Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 6] [2014] WASC 384 Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 7] [2014] WASC 441 Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 8] [2015] WASC 104 Frigger v Mervyn Jonathon Kittay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 5] [2014] WASC 195 Frigger v Professional Services of Australia Pty Ltd [2015] WASCA 3 Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69 Holbrook v Professional Services of Australia Pty Ltd [2012] WASC 444 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 4] [2015] WASCA 253 Quancorp Pty Ltd v MacDonald [1999] WASCA 101 Ridout v O'Brien [2004] WASC 137 Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 Tey v Optima Financial Group Pty Ltd [2012] WASCA 192 Walton v Gardiner [1993] HCA 37; (1993) 177 CLR 378 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FRIGGER -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [No 2] [2016] WASCA 68 CORAM : BUSS JA
- MURPHY JA
- 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
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : SIMMONDS J
Citation : COMPUTER ACCOUNTING AND TAX PTY LTD (in liq) -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [No 7] [2014] WASC 360
File No : CIV 2265 of 2006
Catchwords:
Practice and procedure - Application by appellants to stay their appeal pending resolution of new litigation in Federal Court - Turns on own facts - Appeal already well advanced - Significant time and expense incurred - Appellants seeking to raise multiplicity of matters in new proceedings - No evidence to support allegations of fraud
Costs of application - indemnity costs - Selfrepresented litigants wellversed in litigation - No merit in stay application - Applicants acted unreasonably
Legislation:
Nil
Result:
Appellants' application for stay dismissed
Appellants ordered to pay indemnity costs of stay application
Category: B
Representation:
Counsel:
First Appellant : In person
Second Appellant : No appearance
First Respondent : Mr C V Eastwood
Second Respondent : Mr C V Eastwood
Solicitors:
First Appellant : In person
Second Appellant : No appearance
First Respondent : Eastwood Sweeney Law
Second Respondent : Eastwood Sweeney Law
Case(s) referred to in judgment(s):
Banning Holdings Pty Ltd v Holbrook [2009] WASC 178
Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR 225
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 10] [2015] WASC 380
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 7] [2014] WASC 360
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 8] [2015] WASC 166
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343
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 [2008] WASC 133 (S)
Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2010] HCA Trans 139
Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3] [2010] WASC 2
Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3] [2010] WASC 2 (S)
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364; (1988) 81 ALR 397
Frigger v Clavey Legal Pty Ltd [2015] WASCA 217
Frigger v Clavey Legal Pty Ltd [No 2] [2015] WASCA 258
Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21
Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21 (S)
Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [2013] WASC 229
Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [2013] WASC 229 (S)
Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 2] [2013] WASC 394
Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 3] [2014] WASC 24
Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 4] [2014] WASC 165
Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 6] [2014] WASC 384
Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 7] [2014] WASC 441
Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 8] [2015] WASC 104
Frigger v Mervyn Jonathon Kittay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 5] [2014] WASC 195
Frigger v Professional Services of Australia Pty Ltd [2015] WASCA 3
Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69
Holbrook v Professional Services of Australia Pty Ltd [2012] WASC 444
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 4] [2015] WASCA 253
Quancorp Pty Ltd v MacDonald [1999] WASCA 101
Ridout v O'Brien [2004] WASC 137
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93
Tey v Optima Financial Group Pty Ltd [2012] WASCA 192
Walton v Gardiner [1993] HCA 37; (1993) 177 CLR 378
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
- TABLE OF CONTENTS
Introduction 7
Supreme Court and satellite litigation: overview 8
Mr and Mrs Friggers' appeal in this matter 17
Proceedings concerning PSA's Deed of Company Arrangement 17
- The Final Orders Judgment and the Slip Rule Judgment 17
CIV 2001 of 2009 18
The Original Proceedings - application for suspension of costs orders 20
CIV 2765 of 2010 - proceedings by Mr and Mrs Frigger against CAT's liquidator 22
- Deed of Company Arrangement of PSA 24
Federal Court proceedings: WAD 607 of 2015 and WAD 674 of 2015 24
The alleged 'plan' 27
Mr and Mrs Friggers' written submissions 28
The oral submissions advanced on behalf of Mr and Mrs Frigger 30
Disposition 37
Conclusion as to stay application 43
The question of costs 43
Schedule 1 - appeal chronology 46
- REASONS OF THE COURT:
Introduction
1 This matter came before the court on 24 March 2016 pursuant to a registrar's notice to attend dated 2 February 2016:
• to consider the appellants' application for a stay of their appeal dated 21 January 2016, filed 25 January 2016;
• for the appellants to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) for failure to file the appeal books.
2 The appeal is against a decision by Simmonds J in which his Honour dismissed an application by the appellants (Mr and Mrs Frigger) to be joined as parties to proceedings in the General Division of this court, CIV 2265 of 2006. Those proceedings have generated much litigation in both the General Division of the Supreme Court of Western Australia and this court, as discussed below.
3 By their stay application, Mr and Mrs Frigger sought the following orders:
• The appeal be stayed pending the resolution of Federal Court WAD 607 of 2015 and WAD 674 of 2015.
• Costs in the appeal
4 In substance, Mr and Mrs Frigger sought a stay of their appeal because they have recently commenced proceedings in the Federal Court of Australia which they contended will (somehow) have the effect of, or lead to, the setting aside or variation of various judgments and orders made by this court, and by the General Division of the Supreme Court of Western Australia, going back over many years. They contended that if the Federal Court makes orders which have the effect of, or provide the basis for, setting aside or varying the judgments of the Supreme Court of Western Australia, the appeal herein would become otiose, and that accordingly, the interests of justice require that their appeal to this court be stayed.
5 On 24 March 2016, we dismissed the stay application and made a springing order requiring that Mr and Mrs Frigger file the appeal books on or before 4.00 pm, 7 April 2016. We said that we would subsequently give reasons. These are our reasons. These reasons also deal with the respondents' application made on 24 March 2016 for indemnity costs.
Supreme Court and satellite litigation: overview
6 It is convenient to commence with a broad overview of the proceedings in CIV 2265 of 2006, and other, more material (for present purposes), satellite litigation associated with those proceedings.
1. In proceedings CIV 2265 of 2006 (Original Proceedings), Computer Accounting and Tax Pty Ltd (CAT) sued Professional Services of Australia Pty Ltd (PSA) and its director, Mr Martin Banning, for alleged misleading or deceptive conduct in relation to the sale of a service station to CAT in 2003. CAT was a corporate vehicle used by Mr and Mrs Frigger for investment purposes.1
2. The Original Proceedings were heard by Simmonds J, who gave judgment for CAT on 9 July 2008: Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd2(Original Judgment).
3. On 6 May 2009, Simmonds J made costs orders in the Original Proceedings: Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd3 (Original Costs Orders).
4. PSA and Mr Banning appealed the Original Judgment on the question of damages (Original Appeal). The appeal was heard on 22 July 2009.
5. In the interim, prior to the hearing of the Original Appeal, Mr Banning had died and his estate was represented by Mr Campbell-Smith. PSA had also, in the meantime, in March 2009, entered into a Deed of Company Arrangement.4 The Deed of Company Arrangement made provision for the judgment debt under the Original Judgment to be paid to CAT from the sale of certain assets owned by Banning Holdings Pty Ltd. Banning Holdings Pty Ltd was a company controlled by Mr Banning prior to his death, and in which he held a 50% shareholding.5 Also, by the time of the hearing of the Original Appeal, CAT had already been paid, in June 2009, the judgment sum of $1,165,661.54.6 In this regard, CAT had successfully resisted an application for a stay of Simmonds J's orders pending the determination of the Original Appeal.7 The Deed of Company Arrangement of PSA generated its own disputes and proceedings, some of which are discussed later in these reasons.
6. Mr and Mrs Frigger contend (and there is no dispute) that the judgment sum of $1,165,661.54 was paid by CAT to Mr and Mrs Frigger.8
7. On 23 October 2009, the Court of Appeal delivered reasons allowing the Original Appeal and reducing substantially the quantum of damages to which CAT was entitled: Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2]9 (Original Appeal Judgment). An advance copy of the Original Appeal Judgment was made available to the parties' solicitors in accordance with Practice Direction 8.1 on 22 October 2009.10
8. Orders had been made by consent by the parties to that appeal following the Original Appeal Judgment, but before those orders were extracted, CAT, through Mr and Mrs Frigger, effectively resiled from its agreement as to the relevant orders, and a dispute accordingly arose about the relevant orders consequential upon the Original Appeal Judgment. These matters were addressed by the Court of Appeal in a further judgment, delivered 7 December 2009: Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] (S)11 (Final Orders Judgment).
9. The Final Orders Judgment dealt with, amongst other things:
(a) the amount paid to CAT pursuant to the Original Judgment in excess of the amount which the Court of Appeal found to be a proper award for damages in the Original Appeal Judgment (the Overpayment Sum);
(b) the costs of the appeal; and
(c) the Original Costs Orders.
10. Pursuant to the Final Orders Judgment, the court ordered CAT to pay 80% of the appellants' taxed costs of the appeal. The court also set aside the Original Costs Orders, and remitted the question of costs to Simmonds J for reconsideration in light of the Court of Appeal's reasons (Costs Remitter Order). (The Court of Appeal's orders appear to have been entered on 16 December 2009.)
11. In relation to the Overpayment Sum, the Court of Appeal ordered (Overpayment Orders):
4. The respondent [CAT] do pay to the appellants [PSA and Mr Banning's executor] the sum of $716,188.45 plus interest at 6 per cent per annum from 2 June 2009 until 23 October 2009 in the sum of $16,835.33 plus further interest at 6 per cent per annum from 23 October 2009 being $117.73 per day to the date of payment.
5. The respondent [CAT] do pay to the appellants [PSA and Mr Banning's executor] the sum of $59,634.27 plus interest at 6 per cent per annum from 5 June 2009 until 23 October 2009 in the sum of $1,372.41 plus further interest at 6 per cent per annum from 23 October 2009, being $9.80 per day to the date of payment.
12. An application by CAT to the High Court for special leave to appeal the Original Appeal Judgment was dismissed: Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd.12
13. Following the adverse decision against CAT in the Court of Appeal, Mr and Mrs Frigger, amongst other things, resolved to place CAT into voluntary liquidation on 3 December 2009, and subsequently passed a resolution for a members' voluntary winding-up on 12 December 2009.13 On 21 January 2010, in response to an application by PSA, Simmonds J appointed a provisional liquidator to CAT in company proceedings COR 2 of 2010.14 Further, in COR 2 of 2010, on 6 May 2010, Master Sanderson made an order that CAT be wound-up in insolvency following non-compliance with a statutory demand and no application having been made to set it aside.15 CAT never paid the respondents the amount ordered to be paid to them under the Overpayment Orders, which stood at a sum in excess of $800,000.16
14. In his judgment in relation to the winding-up of CAT in insolvency, Master Sanderson said:17
[T]he investigations by Mr Kitay [CAT's liquidator] indicate [CAT] is insolvent. No elaborate examination ofMr Kitay's evidence is necessary. [CAT] is indebted to [PSA and Mr Banning's executor] in an amount of over $800,000. It does not have the capacity to make that payment. It is therefore not able to meet its debts as and when they fall due and it is prima facie insolvent.
In opposition to this application Mrs Frigger filed two affidavits, the first sworn 3 March 2010 and the second sworn 27 April 2010. In both affidavits Mrs Frigger pointedly fails to address Mr Kitay's claim she has refused to produce the books and records of [CAT] and has failed to complete a report as to activities. That does not go to the question of whether or not [CAT] is insolvent. It does, however, raise questions as to Mrs Frigger's bona fides.
Given the position of [CAT] the only way that Mrs Frigger's evidence could establish [CAT] is solvent would be for her and her husband to personally undertake they would meet the debts of [CAT] as and when they fell due. No such undertaking is found in either affidavit. Mrs Frigger does maintain she and her husband have sufficient assets to meet the debts of [CAT], but they do not undertake to make payment of those debts.
15. There was no appeal from Master Sanderson's judgment to wind-up CAT in insolvency.
16. Mr and Mrs Frigger have since commenced, or otherwise been involved in, a myriad of other proceedings in the General Division of the Supreme Court, as well as proceedings in this court and in the District Court, in relation to matters associated with the preceding litigation or the events with which the litigation is concerned. These include, amongst other matters:
(a) Freezing orders made against Mr and Mrs Frigger by Simmonds J in December 2010: Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd[No 3]18 (Freezing Orders). The Freezing Orders were made in the context that:
(i) on 23 October 2009 (the day of delivery of the Original Appeal Judgment and the day after an advanced copy had been given to the parties' solicitors), Mr and Mrs Frigger registered a charge, allegedly created on 10 September 2009, over property of CAT to secure loans allegedly made by Mr and Mrs Frigger to CAT in the sum of $2 million;
(ii) on 13 November 2009, Mr and Mrs Frigger arranged for the lodgement of absolute caveats over parcels of real estate registered in the name of CAT; and
(iii) on 3 December 2009, Mr and Mrs Frigger resolved to put CAT into voluntary liquidation.19
(b) This court's dismissal of various appeals by Mr and Mrs Frigger including in relation to a range of costs orders made against them in connection with the Freezing Orders and other matters: Frigger v Professional Services of Australia Pty Ltd20(the Omnibus Costs Judgment). In the Omnibus Costs Judgment, the court allowed a cross-appeal by PSA and ordered that Mr and Mrs Frigger pay costs on an indemnity basis given their 'improper' conduct in making false statements in affidavits.21
(c) Proceedings concerning the Deed of Company Arrangement of PSA, including proceedings in which Mr and Mrs Frigger sought orders to the effect that the deed be, or be declared to be, terminated: Banning Holdings Pty Ltd v Holbrook.22 See also [8] - [21] below.
(d) Proceedings commenced by Mr and Mrs Frigger against their former solicitors, Clavey Legal Pty Ltd, in the District Court in relation to their retainer in respect of certain matters in connection with proceedings in the Supreme Court in February/March 2010: Frigger v Clavey Legal Pty Ltd [No 3]23 (Retainer Dispute Judgment). The hearing occupied 12 days and Mr and Mrs Frigger's claims were dismissed, with the trial judge making serious adverse findings concerning the honesty of Mrs Frigger, including in relation to Mrs Frigger deliberately swearing false affidavits, including with the intention of misleading the High Court.24 In a supplementary costs judgment,25 the District Court made special orders as to costs against Mr and Mrs Frigger on grounds including that they had made unfounded allegations of fraud and perjury against their solicitors and that Mr and Mrs Frigger's conduct of the proceedings was improper and unreasonable (Retainer Costs Judgment).26
(e) An appeal by Mr and Mrs Frigger against the Retainer Dispute Judgment in CACV 56 of 2015, with the notice of appeal having been filed on 2 April 2015 (Retainer Dispute Appeal). There is a long interlocutory history with respect to that appeal, involving two interlocutory judgments of this court: Frigger v Clavey Legal Pty Ltd27 and Frigger v Clavey Legal Pty Ltd [No 2].28 The appellants' case was ultimately filed on 6 November 2015. Mr and Mrs Frigger have also commenced an appeal against the Retainer Costs Judgment in CACV 162 of 2015.
17. In relation to the costs of the Original Proceedings, which were the subject of the Costs Remitter Order by the Court of Appeal, there were certain claims by Mr Banning's estate and PSA for costs orders against CAT in respect of which Simmonds J gave leave to proceed pursuant to s 471B of the Corporations Act 2001 (Cth). In relation to those matters, Simmonds J, with the consent of CAT's liquidator, also granted leave to Mrs Frigger, on 18 February 2011, to conduct the defence of those claims for costs against CAT. Leave was given on the condition that Mr and Mrs Frigger appoint solicitors for that purpose.29
18. Despite leave being given to Mrs Frigger in that regard, Mr and Mrs Frigger also sought to be personally joined to the Original Proceedings, ostensibly for the purpose of dealing with the claims for costs against CAT. Simmonds J refused that application on the basis that, amongst other things, it was inappropriate to allow them to be joined as parties, as his Honour had previously ordered that Mrs Frigger be given leave to conduct the defence of the claims for costs against CAT: Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd30 (Joinder Decision).
19. On 22 September 2014, Mr and Mrs Frigger filed an appeal against the Joinder Decision, and it is that appeal which Mr and Mrs Frigger now seek to stay (Joinder Appeal).
20. In October 2014, Mr and Mrs Frigger, in the Joinder Appeal, sought a stay of the Joinder Decision pending the determination of the appeal. That application for a stay of the Joinder Decision was dismissed by this court: Frigger v Professional Services of Australia Pty Ltd31 (Stay Dismissal Decision).
21. Pursuant to the Costs Remitter Order, Simmonds J made orders in relation to the costs of the Original Proceedings and other associated matters: Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 8]32 (Remitter Costs Judgment).
22. Well over five years after the Final Orders Judgment in the Court of Appeal, Mr and Mrs Frigger applied, purportedly under the slip rule, to set aside the Overpayment Orders which the Court of Appeal had made in December 2009. That application was heard on 2 October 2015, and the Court of Appeal delivered reasons dismissing the application on 10 December 2015: Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4]33 (Slip Rule Judgment).
23. In the Slip Rule Judgment, the court considered issues as to:
(a) the standing of Mr and Mrs Frigger to apply to set aside the Overpayment Orders;
(b) whether the slip rule had any application to the circumstances of the case; and
(c) even if the slip rule did apply, whether the application should be dismissed in the exercise of the court's discretion.
24. In the Slip Rule Judgment, in relation to standing, Martin CJ (with whom the other members of the court agreed) found that Mr and Mrs Frigger were responsible for the conduct of the proceedings at first instance, and on the appeal on behalf of CAT, and gave all relevant instructions to the lawyers acting on behalf of CAT both at trial and in the appeal.34 Martin CJ also said in effect that whilst Mr and Mrs Frigger claimed that they had an interest in the orders made by the Court of Appeal in requiring CAT to pay the Overpayment Sum, there was no evidence to that effect and, in any event, the matters upon which they relied to claim an interest did not in law give Mr and Mrs Frigger a direct interest in the subject matter of the proceedings or in the orders of the Court of Appeal.35
25. Martin CJ added that assuming, without deciding, that Mr and Mrs Frigger had an indirect interest in the Original Appeal:36
[T]here is no reason why any such discretion should be exercised in favour of the Friggers in the circumstances of this case. CAT commenced the proceedings claiming damages, and was successful in those proceedings. It received the benefit of an excessive award of damages at first instance, and was ordered to repay the excess over the amount to which it was entitled by this court. Any rights or obligations arising from the proceedings commenced by CAT, or the appeal from those proceedings, are rights and obligations of CAT, a company now in liquidation. The control and direction of all the assets of the company in liquidation is vested in the liquidator. The Friggers have not requested the liquidator to take the action which they purport to take on behalf of the company and are, in effect, attempting to usurp the liquidator's control over the company and its affairs. I can see no reason why the court should exercise any discretion which it might have for the purpose of enabling them to achieve that improper objective. Accordingly, even if the court has a discretion to allow the Friggers to be heard in relation to the revocation of orders made in an appeal to which they were not a party, I would not exercise that discretion in their favour.
26. In relation to whether the slip rule applied, Martin CJ observed that for the purposes of the application, Mr and Mrs Frigger relied upon the proposition that in the Deed of Company Arrangement of PSA, there was a provision to the effect that any amount which the Court of Appeal found to be in excess of a proper award of damages, was to be paid to Banning Holdings Pty Ltd and to be offset against CAT's costs.37 His Honour dismissed that claim, as discussed in more detail in these reasons in [9] below.
27. In relation to whether any discretion should be exercised assuming the slip rule applied, Martin CJ said:38
The application to revoke the orders made for repayment of the amount paid in excess of the judgment at first instance was not made until more than five and a half years had elapsed. Professional Services of Australia Pty Ltd and the estate of Mr Banning have had, and continue to have, a very real interest in the benefit of those orders. Although the Friggers have proffered various explanations for the extraordinary delay in bringing this application, none of those explanations is convincing. The simple and undeniable fact is that they were aware of all facts and matters said to give rise to this application, but nevertheless sat on their hands for over five years before taking any step to revoke the orders of which they now complain.
In this case the public interest in the finality of litigation and the extraordinary delay in making the application, for which there is no satisfactory explanation, would necessarily preclude the exercise of the discretionary power conferred upon the court by the slip rule if that rule otherwise applied. (emphasis added)
7 The history of the appeal in this matter is set out in schedule 1 to these reasons.
Proceedings concerning PSA's Deed of Company Arrangement
8 Before addressing Mr and Mrs Friggers' application to stay their appeal, it is convenient to make reference to some of the proceedings in the Supreme Court concerning or addressing PSA's Deed of Company Arrangement.
The Final Orders Judgment and the Slip Rule Judgment
9 As noted earlier, in their application under the Slip Rule Judgment to set aside the Overpayment Orders which had been made in December 2009, Mr and Mrs Frigger raised with the Court of Appeal the question of the operation of the Deed of Company Arrangement of PSA and in particular, the provision (cl 6.1.3) concerning repayment of the Overpayment Sum. Martin CJ rejected this as a basis for setting aside the Overpayment Orders and in doing so, noted that the Deed of Company Arrangement had been brought to the attention of the court at the hearing in relation to final orders in December 2009. His Honour said:39
First, it cannot be said that the failure to draw the attention of the court to the deed of company arrangement (upon which the current application is based) was inadvertent or accidental. As I have noted, theattention of the court was in fact drawn to the deed of company arrangement in the written submissions which preceded the making of the orders which the Friggers now seek revoked. However, no argument of the kind now advanced was brought based upon the terms of the deed of company arrangement, nor was the deed adduced in evidence. The court refused to act upon the assertions made with respect to the deed for those reasons. Omissions of that kind cannot be characterised as accidental or inadvertent, but are more properly characterised as a failure to provide any basis for, or to substantiate by evidence, the proposition advanced. The slip rule does not permit arguments or contentions that have been poorly or inadequately advanced to be bolstered by further argument or evidence after final orders have been made. Further, there is a fair inference that the failure to produce in evidence and advance detailed submissions based upon the deed of company arrangement may have well been a deliberate forensic decision on the part of the Friggers and/or their legal advisers. That is because CAT had commenced proceedings in the Supreme Court of Western Australia seeking orders to the effect that the deed of company arrangement was either void or had been terminated according to its terms. Those proceedings were on foot at the time written submissions were provided to this court on behalf of CAT, and at the time this court made the orders which the Friggers now seek to have revoked.
Second, the consequences which the Friggers assert flow from the terms of the deed of company arrangement are neither obvious nor compelling, and are matters upon which there is great scope for argument and for the formation of differing views. To the contrary, thelegal reasoning said to underpin the Friggers' application is convoluted and at points circuitous. (emphasis added)
CIV 2001 of 2009
10 In CIV 2001 of 2009, proceedings were commenced (relevantly) by Banning Holdings Pty Ltd to extend the time for the operation of PSA's Deed of Company Arrangement. There was a hearing on 5 June 2009. Mr and Mrs Frigger were heard, having been given leave. They opposed the application for an extension. The court (Simmonds J) in effect granted the extension: Banning Holdings Pty Ltd v Holbrook.40
11 Also in CIV 2001 of 2009, by application dated 27 August 2009, CAT applied for orders to the effect that PSA's Deed of Company Arrangement be terminated. The application by CAT was supported by an affidavit of Mrs Frigger sworn 27 August 2009. Mrs Frigger claimed, inter alia, that the deed was oppressive, unfairly prejudicial and discriminatory against CAT; that the deed had been improperly procured; that there had been material contraventions of the deed; and that the deed administrator had made misrepresentations: see Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9].41
12 The application was initially heard on 7 October 2009 when it was adjourned sine die with costs reserved and liberty to apply.42
13 On 2 December 2009, Mrs Frigger's affidavit of 30 November 2009 was filed in support of an application by CAT for the other parties to 'give full discovery … prior to the substantive hearing of CAT's application for the termination of the DOCA'.43 Informal discovery was ordered against, and given by, Mr Holbrook as the administrator under the PSA Deed of Company Arrangement.44
14 The matter was then, in effect, left in abeyance for some years.45 In the meantime, however, in COR 205 of 2011, the Deed of Company Arrangement of PSA had been terminated, effectively on the basis that its purposes had been wholly effectuated.46
15 Subsequently, proceedings in CIV 2001 of 2009 were reactivated and on 19 September 2014, certain programming orders were made at which Mr Griffin, solicitor, appeared on behalf of CAT on instructions from Mr and Mrs Frigger.47
16 Simmonds J ultimately considered and addressed CAT's application in CIV 2001 of 2009 in his reasons for judgment delivered on 16 September 2015: Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9].48 In that judgment, Simmonds J, amongst other things, addressed the grounds and arguments raised by Mrs Frigger's affidavit sworn 27 August 2009.49 His Honour said:50
I should further note, apart from the matters I have just reviewed, that the fact that the DOCA ultimately achieved the purpose of more than meeting the just claim of the only creditor of PSA that objected to the DOCA - CAT - indicates that there would have been no order to terminate the DOCA or otherwise to qualify the effect of actions under it as sought by the application of 27 August 2009 in CIV 2001 of 2009.
17 Accordingly, by orders made on 18 September 2015, Simmonds J in CIV 2001 of 2009 dismissed CAT's application dated 27 August 2009, and ordered CAT to pay the costs of Mr Holbrook and Banning Holdings Pty Ltd.
The Original Proceedings - application for suspension of costs orders
18 Mr and Mrs Frigger also agitated the question of the effect and operation of PSA's Deed of Company Arrangement as noted in Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 10].51 In that matter, Mr and Mrs Frigger applied for the suspension of certain costs orders against them. The claim was put on the basis that the Freezing Orders, the appointment of a provisional liquidator to CAT, and the winding-up of CAT in insolvency, were all legal processes undertaken by the respondents which were 'collateral abuses of process and which had the ulterior motive of forcing CAT or the Friggers to repay the judgment sum in circumstances where it did not have to be repaid, or it had to be repaid to a third party under a Deed of Company Arrangement for [PSA], or it could be set-off against CAT's legal and enforcement costs'.52 The judge also noted that Mr and Mrs Frigger claimed that there had been a 'waiver of the right to payment' under the Deed of Company Arrangement.53
19 As to the arguments made by Mr and Mrs Frigger in relation to the Deed of Company Arrangement of PSA, the judge said:54
I should further note that the question of the waiver of the right to payment contended for would appear to depend on the application of the relevant terms of the DOCA in the events that happened. Particular reference was made to this purpose, as I understood the matter, to DOCA cl 6.3, read with cl 6.1.3 and cl 5.2: see Mrs Frigger's affidavit of 19 January 2015 annexure 'AF4'.
However, the application contended for would appear to be difficult to sustain, as it depends upon termination of the DOCA by operation of its terms (automatic termination). Such operation would appear to be inconsistent with my decision in Holbrook v Professional Services of Australia Pty Ltd [2012] WASC 444 to grant an application to terminate the DOCA under Corporations Act 2001 (Cth) s 447A.
As to the entitlement to the repayment by virtue of the operation of the DOCA before its termination, in particular cl 6.1.3, on which, from the affidavit of Mrs Frigger of 19 January 2015 annexure 'AF4' appeared to make the matter depend, this would appear to have been a matter which might have been raised before the Court [of] Appeal in submissions on the orders [the] Court eventually made in Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S) (PSA [No 2] WASCA (S)). Indeed, it would appear that matters arising out of the DOCA were pressed on the court, which allowed leave for CAT to apply for a stay of orders as to repayment: see PSA [No 2] WASCA (S) [11], [13] - [14].
No application for such a stay was made, on the materials before me. The terms of the orders made were for repayment to the defendants, as I have indicated.
Having regard to those matters, it is not evident to me this basis for a collateral abuse claim [by Mr and Mrs Frigger against the respondents - sic] is a strong one.
As to the right of set-off contended for, whether it rests on DOCA cl 6.1.3, which provides for any repayment amount to be set-off against any costs owing on the taxation of costs (see affidavit of Mrs Frigger of 19 January 2015), or on any other basis, I indicate below why I consider that there is unlikely to be any balance in favour of CAT on that account. (emphasis added)
CIV 2765 of 2010 - proceedings by Mr and Mrs Frigger against CAT's liquidator
20 In 2010, in CIV 2765 of 2010, Mr and Mrs Frigger also commenced proceedings against Mr Kitay in his capacity as liquidator of CAT. This has resulted, so far, in the publication of at least eight interlocutory judgments.55
21 In Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 7],56 there was a dispute in relation to Mr and Mrs Friggers' substituted reply and defence to counterclaim. In that judgment, Allanson J observed with respect to Mr and Mrs Friggers' pleading:57
In paragraph 27, [Mr and Mrs Frigger] plead that the judgment and orders of the Court of Appeal were contrary to the terms of the DOCA; and that Professional Services Australia and Mr Banning had no right to apply for a liquidator to be appointed to [CAT], because [CAT] was entitled to retain the judgment sum pursuant to the DOCA.
In that way, pars 14 to 20 and 27 mount a collateral challenge to the decision of the master ordering that [CAT] be wound up in insolvency for failure to comply with two statutory demands, and probably to the orders made in the Court of Appeal: see Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93.
Paragraph 29 contains the extraordinary plea that Mr and Mrs Frigger acted in compliance with their duties as directors of [CAT] in refusing to cause [CAT] to comply with the appeal judgment.
…
[Mr and Mrs Frigger] support these pleadings as a defence to the defendants' claim under the trustee's right of indemnity and exoneration. I will refer to it as the right of indemnity. In their written submissions, [Mr and Mrs Frigger] say:
'In their Defence, the defendants make a claim under a trustee's right of indemnity and exoneration on behalf of Professional Services of Australia Pty Ltd and the Estate of Martin Paul Banning (PSA/Banning), the entities that sought and obtained the appointment of the first defendant and who are still clients of Mr Lenhoff [the solicitor for the liquidator].
In those circumstances, Mr and Mrs Frigger are entitled to raise any defence against such a claim, including that those entities are not entitled to repayment of the judgment sum which they did not pay in the first place.'
[Mr and Mrs Frigger] say their plea is not an attack on the decision of the Court of Appeal, but that the order of the court could only be effective if the parties named in the order had a right to repayment. Accordingly, they submit, as the defendants claim the right of indemnity on behalf of Professional Services Australia or the estate of Mr Banning, which have no right to repayment, the orders of the Court of Appeal are ineffective, the liquidators appointment is invalid, and the liquidators claim 'on behalf of PSA/Banning' is invalid.
The submission, in my opinion, is misconceived. If that is the purpose of the plea, it cannot stand.
The defendants claim the right of indemnity as an asset in the liquidation. … The fact that Professional Services Australia or the estate of Mr Banning may be able to prove debts in the liquidation of [CAT] does not make the claim to that right a claim 'on behalf of' either or both of them. No question of assignment by Banning Holdings of the amount ordered to be paid by the Court of Appeal arises.
I am satisfied that pars 14 to 20, 27 and 29 may prejudice, embarrass or delay the fair trial of the action, and should be struck out on that ground. They seek to raise issues which are immaterial and irrelevant, and disclose no arguable defence to the counterclaim.
Paragraph 27 should also be struck out as an abuse of process to the extent that it is a collateral challenge to earlier decisions of this court. (emphasis added)
Mr and Mrs Friggers' application to stay their appeal herein
22 The present application to stay the Joinder Appeal is supported by an affidavit of Mrs Frigger sworn 21 January 2016.
Deed of Company Arrangement of PSA
23 Mrs Frigger annexed what was said to be a copy of a Deed of Company Arrangement dated March 2009 of PSA and referred to cl 6.1.3 which provided:
6.1 The continuation of this Deed shall be conditional upon:
…
6.1.3 The payment of costs following the taxation of the costs of the Judgment Creditor [CAT] shall [be - sic] subject to the outcome of the Appeal [Original Appeal], if this is heard and determined prior to the finalization of the taxation of costs. If the Judgment Sum [meaning the sum of $1,106,027.27 plus interest at 6% from the date of judgment on 7 July 2008, until payment] is reduced on Appeal, the Judgment Creditor [CAT] shall forthwith repay the excess amount it has been paid (with interest that has been paid that relates to that sum) to Banning Holdings [Pty Ltd]. The amount repayable by the Judgment Creditor [CAT] shall be set off against any costs owing on the taxation, and must be repaid prior to the taxation if the costs have not at that time been determined.
Should the Appeal result in a reduction of the judgment sum payable to [CAT] any amount owing to [PSA] and/or the estate of … Banning (deceased) by [CAT] as a result may be set-off against any other amount which would otherwise be payable pursuant to this Deed.
25 Clause 5.1 of the deed provided, in effect, that CAT would be paid the Judgment Sum on or before 30 August 2009 by PSA, using funds derived from the sale of certain assets of Banning Holdings Pty Ltd.
26 Mrs Frigger deposed that she held a belief that the Overpayment Orders made by this court in December 2009 were 'wrong' and she also referred to a report to creditors by Mr Holbrook, Deed Administrator of PSA, dated June 2009.
Federal Court proceedings: WAD 607 of 2015 and WAD 674 of 2015
27 Mrs Frigger also annexed to her affidavit an 'Amended Originating Application' in WAD 607 of 2015 in the Federal Court of Australia. In this Amended Originating Application, the applicants are said to be Mr and Mrs Frigger, and the respondents are said to be Sandra May Banning (first respondent), Mr Campbell-Smith (second respondent), PSA (third respondent) and Banning Holdings Pty Ltd (fourth respondent). The Amended Originating Application indicates that Mr and Mrs Frigger seek orders to the effect that the following orders and consequential costs orders of the Court of Appeal and the General Division of the Supreme Court of Western Australia be set aside:
(a) the Court of Appeal's Overpayment Orders of December 2009;
(b) the Freezing Orders by Simmonds J dated 10 December 2009;
(c) the appointment of a provisional liquidator to CAT by Simmonds J in COR 2 of 2010 on 21 January 2010;
(d) the winding-up of CAT in insolvency by Master Sanderson in COR 2 of 2010 on 6 May 2010;
(e) the Omnibus Costs Judgment of this court in April 2014.
28 The Amended Originating Application also indicates that Mr and Mrs Frigger seek recovery of legal costs incurred or to be paid in relation to (broadly speaking), the above matters; the legal costs incurred and ordered to be paid in 'Magistrates Court CIV9936/2010 and District Court appeal 39/2011'; and the legal costs incurred and ordered to be paid in 'District Court CIV1221 of 2011', ie, the Retainer Dispute Judgment and the Retainer Costs Judgment, which are the subject of appeal to this court. There are also claims in relation to the liquidation costs and expenses of CAT and the losses of Mr and Mrs Friggers' 'self-managed superannuation fund known as the Frigger Super Fund', together with 'reputation' damages and 'aggravated' damages.
29 The affidavit also annexes an amended statement of claim in WADC 607 of 2015. It is a long document, containing 81 paragraphs, many with subparagraphs, covering a variety of events going back to 1997.
30 In the amended statement of claim, Mr and Mrs Frigger allege that, amongst other things:
(a) on 29 October 2009, in relation to the dispute as to the final orders to be made in the Court of Appeal following the Original Appeal Judgment, PSA's solicitors made fraudulent representations to this court;58
(b) the Overpayment Orders accordingly 'constituted a judgment obtained by … fraud';59
(c) the Freezing Orders constituted a judgment obtained by the fraud of Mr Campbell-Smith through his solicitor;60
(d) the statutory demand issued to CAT for the non-payment of the amount of $800,917.08 was made for collateral purposes and with the intent '[t]o deny CAT and Mr & Mrs Frigger their rights' under the PSA Deed of Company Arrangement; to 'coerce CAT and Mr & Mrs Frigger to pay' (in effect) the Overpayment Sum; and with the intent that it be used 'as a "stalking horse" for a payment entirely outside the ambit of the amount due and payable';61
(e) the application to appoint a provisional liquidator and the application to wind-up CAT in insolvency were made with the same collateral purposes and intention;62
(f) the appointment of a provisional liquidator by the General Division of this court, and the winding-up of CAT in insolvency by the General Division of this court, were judgments obtained by fraud.63
31 In the prayer for relief in the amended statement of claim, Mr and Mrs Frigger seek various orders, including the setting aside of the judgments and orders referred to in the Amended Originating Application.
32 Mrs Frigger's affidavit also annexed what appears to be an originating process dated 18 November 2015 in the Federal Court in WAD 674 of 2015 'in the matter of Computer Accounting & Tax Pty Ltd (in liquidation)'. This appears to contain an application to the effect that the winding-up in insolvency of CAT, ordered by Master Sanderson in April 2010 in COR 2 of 2010, be either stayed or terminated.
The alleged 'plan'
33 Mrs Frigger also deposed that she held a belief that the respondents 'sought and obtained' the Overpayment Orders from the Court of Appeal for the purposes of Mr Campbell-Smith recovering executor's fees when he had no entitlement to executor's fees, and to pay Mr Lenhoff, the respondents' lawyer, legal fees when the respondents had no funds to pay Mr Lenhoff.
34 Mrs Frigger also deposed that she held the belief that the Freezing Orders, the appointment of a provisional liquidator to CAT and its winding-up, were part of a 'plan' to 'prevent' Mr and Mrs Frigger from resolving the litigation and to incur $350,000 in legal costs 'unnecessarily' and to combine to 'bring a claim against' Mr and Mrs Frigger for $14,500,000. She annexed what appeared to be certain letters said to be offers of settlement made in 2010.
35 She deposed, in effect, that until April 2015, she and her husband 'were unaware of the written submissions dated 29 October 2009' filed by the respondents in relation to final orders following the Original Appeal Judgment. In par 13 of her affidavit she stated:
My husband and I were unaware of the written submissions dated 29 October 2009 filed in CACV76/2008 until April 2015 and did not have evidence to prove Mr Campbell-Smith and his solicitors' plan.
36 Mrs Frigger also deposed to conversations with Mr Banning's widow, Mrs Banning, concerning executor's fees and the letters of offer.
37 Mrs Frigger also said that 'from [her] own knowledge', Mr Banning's estate comprised certain assets. She referred to and annexed an affidavit of Mr Eastwood, solicitor, dated 9 December 2015, sworn in the Federal Court of Australia in proceedings number WAD 607 of 2015. (There was no indication whether leave had been given by the Federal Court for Mr and Mrs Frigger to use this affidavit in this application.) She also annexed a copy of what was said to be a deed of indemnity, dated 24 November 2009, said to be given by Mr Campbell-Smith in respect of legal costs of certain specified proceedings.
Mr and Mrs Friggers' written submissions
38 In written submissions filed 15 February 2016, Mr and Mrs Frigger contended in effect that a stay of the appeal should be ordered because 'subsequent events' show that the appeal would not serve any useful purpose, and there is a strong general public interest in avoiding a multiplicity of proceedings.
39 In relation to the 'subsequent events', Mr and Mrs Frigger contended:
5. In April 2015, the appellants were provided for the first time with the respondents['] (they are the same respondents in both appeals) written submissions dated 29 October 2009 that had been filed in CACV76/2008 in support of the [Overpayment] Orders … Those submissions contradicted the terms and effect of a Deed of Company Arrangement of [PSA], and effectively 'created' a liability against CAT in favour of the respondents, where no such liability existed and effectively created two liabilities against CAT, one in favour of the respondents and one in favour of Banning Holdings Pty Ltd, which liability had been waived by Banning Holdings pursuant to the DOCA if certain circumstances existed.
6. The Deed Administrator in June 2015 then provided the appellants with an email dated 17 November 2009 from the second respondent to his solicitor [Mr Lenhoff] in which Mr Campbell-Smith states to Mr Lenhoff that Mr Campbell-Smith is unable to pay Mr Lenhoff's legal charges, but will do so 'via the DOCA'. Such a payment was contrary to the terms of the DOCA and would have the effect of varying the DOCA without a creditor's resolution.
7. The plan of the respondents and their solicitors is confirmed in a Statement of Assets and Liabilities prepared by Mr Campbell-Smith and filed in CACV51/2010.
8. Armed with the above evidence, the appellants have commenced Federal Court WAD607 of 2015 invoking that Court's original jurisdiction in Corporations Act 2001 for breach of a Deed of Company Arrangement by the respondents and other parties to the DOCA, and pursuant to that Court's equitable jurisdiction to set aside judgments obtained by fraud.
9. Also in October 2015 the appellants commenced an application in [the] Federal Court in WAD674 of 2015 for a stay or termination of CAT's insolvent liquidation on the grounds there are no creditors and the liquidation serves no purpose. (emphasis added)
40 Mr and Mrs Frigger submitted that, in these circumstances, '[t]he appellants' joinder to [the Original Proceedings]' would serve no purpose 'until at least the Federal Court proceedings [had] been resolved and, in the event of the appellants' success, the extent of damages awarded and which of the concurrent wrongdoers, including the respondents' solicitors, are liable'.
41 Mr and Mrs Frigger also submitted that a stay would prevent a multiplicity of proceedings and prevent a waste of the court's resources and the parties' costs. They further submitted that they had not filed appeal books 'for the same reasons'.
42 In their written submissions filed 8 March 2016, Mr and Mrs Frigger also contended that:
(a) this court lacks jurisdiction to grant the relief sought by Mr and Mrs Frigger in the Federal Court proceedings;
(b) Mr and Mrs Frigger are persons whose interests are protected under s 1324 of the Corporations Act;
(c) numerous costs orders in the Original Proceedings in the Supreme Court and this court 'are the subject of an injunction' under s 1324(1) and s 1324(4) of the Corporations Act;
(d) the question of whether Mr and Mrs Frigger have any interest in the Original Proceedings will be decided in the Federal Court;
(e) to allow both Mr and Mrs Frigger's appeal to proceed, and the claims in the Federal Court to proceed, would be 'to press on pell mell risks wasteful duplication of judicial resources and inconsistent judicial determinations';
(f) to refuse a stay 'would result in an unseemly race to judgment' between the appeal herein and the Federal Court proceedings;
(g) no prejudice flows to the respondents from a stay;
(h) a stay would not deny the respondents 'their day in court';
(i) the power to grant a stay is a tool of case management 'to mark the central importance in modern procedure' and the court's discretion to stay 'will be exercised with justice and convenience in mind'.
The oral submissions advanced on behalf of Mr and Mrs Frigger
43 At the hearing of the application, Mrs Frigger said:64
So basically this appeal was commenced when we sought to be joined to the original proceedings as interested parties, so that we could have the remitter order from this court finalised, our taxation done, and moneys owing between the parties to be worked out, and everybody could go home happy. But unfortunately the respondents … as well as the liquidator, opposed our application for joinder …
And since … we've been provided with a lot of evidence which we can rely on now … in the Federal Court proceedings. And we also rely on that evidence in another application we have in the Federal Court proceedings, for the termination of our company [CAT] on the ground that [PSA/Banning] are not creditors [of CAT].
… [A]t long last … we have been able to obtain competent legal advice in relation to how we can resolve the dilemmas that we face under the deed of company arrangement [of PSA] …
However, the operation of the DOCA has resulted in our company [CAT], my husband and me, as assignees of the judgment debts, much worse off.
…
So we will apply for an order rectifying those parts of the DOCA that contradict each other [reference was made to cl 6.1.3 and cl 6.13].
…
Once such a rectification has taken place, then we would be able to proceed to get correct costs orders under the original judgment … The Federal Court has absolute jurisdiction in the Corporations Act …
We will also rely on those rectification orders for the purposes of bringing the liquidation of [CAT] to an end, and enabling all outstanding matters to be resolved between the parties. This appeal, if successful, has limited utility. … [T]he proceedings in the Federal Court will decide not only if we are interested persons, but as well as the claims and counterclaims of the parties finally to be resolved and assessed.
44 When asked by the court whether Mr and Mrs Frigger were seeking to set aside in the Federal Court the judgments of this court allegedly based on fraud, Mrs Frigger said that Mr and Mrs Frigger would no longer be alleging fraud in the Federal Court. After inquiry of her, she said, in effect, that:
(a) the Amended Originating Application had not been filed in the Federal Court and, to her knowledge, had not been filed at the time when she had sworn her affidavit; and
(b) the amended statement of claim had been filed, but it had been filed without leave.
45 She also said that she had instructed new solicitors to act on behalf of her and her husband, and a Melbourne barrister had been engaged, to reformulate their claims in the Federal Court which would, she submitted, have the effect of making this appeal otiose.
46 At the hearing on 24 March 2016, Mrs Frigger also made an application for leave to file an additional affidavit, with a view to annexing to the affidavit copies of documents which had been or were in the course of being prepared for the purpose of reformulating the appellants' claims in the Federal Court. We dismissed that application. That was because of the extreme lateness of the application; the fact that the proposed affidavit relied on proposed material in the Federal Court which was apparently still in the process of preparation; the absence of cogent evidence as to when any reformulated material in the Federal Court would be available; and the fact that the foreshadowed material as described by Mrs Frigger appeared likely not to assist in any event with the proper disposition of this application.
The material before the Court of Appeal in December 2009
47 As noted earlier, Mrs Frigger has sworn that she and her husband were 'unaware' of the respondents' written submissions dated 29 October 2009 filed in relation to the Final Orders Judgment, until April 2015. Mrs Frigger did not annex the written submissions to which she referred, and in order to seek to understand the nature and effect of her evidence on this point, it is necessary to have regard to the Court of Appeal file in that matter.
48 A review of the Court of Appeal file in CACV 76 of 2008 and the transcript of the hearing before Martin CJ on 23 October 2009 indicates the following matters.
49 Martin CJ formally published the reasons of the court in the Original Appeal Judgment on 23 October 2009. An advanced copy had been given to the parties' solicitors the previous day. On publication of the reasons, the parties presented competing minutes of proposed orders to Martin CJ.
50 The minute provided by the appellants in that matter (PSA/Banning), dated 23 October 2009, included, by proposed order 4:
The Respondent [CAT] do pay to the Appellants [PSA/Banning] the sum of $716,188.45 plus interest at 6 per centum per annum from 2 June 2009 until 23 October 2009 in the sum of $16,835.33 plus further interest at 6 per centum per annum from 23 October 2009 being $117.73 per day to the date of payment.
51 In CAT's minute of proposed orders, the above proposed order 4 was struck out and the following was included:
Alternative order 4.
4 The Respondent [CAT] do pay to the Appellants [PSA/Banning] the sum of $716,188.45 plus interest at 6 per centum per annum from 2 June 2009 until 23 October 2009 in the sum of $16,835.33 plus further interest at 6 per centum per annum from 23 October 2009 being $117.73 per day to the date of payment, less the sum of ($ ) [or an amount of 50% of $716,188.45] in respect of the taxed costs pursuant to the order of His Honour Justice Simmonds made 6 May 2009 (as varied herein).
Alternatively there be liberty to the Respondent [CAT] to apply in respect of a partial stay of execution to protect the respondent's judgment in respect of costs
53 In the meantime, consent order 4, relating to security for costs, was the subject of an email from Mrs Frigger on 29 October 2009 to the court and to the solicitors for PSA/Banning and to CAT's solicitor. This email from Mrs Frigger, at 9.19 am on 29 October 2009, was in the following terms:
Dear Sirs & Madam:
I write in regards to the extraction of the draft orders. My solicitor's telephone is not being answered this morning, so I need to send this email directly to all concerned.
The respondent will shortly file an application for special leave to appeal to the High Court of Australia.
Both Appellants in CACV 76/08 are insolvent.
I do not agree with order 4 and I am currently instructing a barrister to apply for a stay of execution, as was granted by the Court of Appeal in
WILDEN PTY LTD -v- GREEN [2009] WASCA 38 (S).
I therefore request that the orders not be extracted until the respondent's application is filed and heard.
Yours faithfully
Angela Frigger
Director
Computer Accounting & Tax Pty Ltd
54 Subsequently, further submissions and other materials were provided to the court as follows.
55 PSA/Banning filed submissions on 30 October 2009 which were dated 29 October 2009 (PSA/Banning Submissions). In these submissions, PSA/Banning submitted inter alia:
Repayment of monies already paid by the Appellants
4. In its minute of proposed orders the Appellants [PSA/Banning] sought orders that:
(a) The Respondent [CAT] do pay to the Appellants [PSA/Banning] the sum of $716,188.45 plus interest at 6 per centum per annum from 2 June 2009 until 23 October 2009 in the sum of $16,835.33 plus further interest at 6 per centum per annum from 23 October 2009 being $117.73 per day to the date of payment.
(b) The Respondent [CAT] do pay to the Appellants [PSA/Banning] the sum of $59,634.27 plus interest at 6 per centum per annum from 5 June 2009 until 23 October 2009 in the sum of $1,372.41 plus further interest at 6 per centum per annum from 23 October 2009 being $9.80 per day to the date of payment.
5. The orders sought in paragraph 4 above are consequential orders following on from the orders made in paragraph 2 (b) and 2 (c) above. They seek to regulate the repayment of monies paid by the Appellants to the Respondent under the original award of Simmonds J which are now required to be repaid together with interest.
6. The Court of Appeal has inherent power to make any consequential order which is needed to unravel the practical consequences of orders made below and duly carried out by the party who succeeds in the appeal: Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) [1998] 1 All ER 305 at 307. Seaman, Civil Procedure Western Australia at [3925.155] states that a successful appellant is entitled as of right to recover all monies paid under the compulsion of a judgment which has been set aside.
7. During conferral with counsel for the Respondent [CAT] prior to the hearing on 23 October 2009, the Respondent [CAT] adopted the position that the orders sought for repayment were not necessary as they would follow as a matter of law or in the ordinary course. At the hearing on 23 October 2009 the Respondent [CAT] put up a minute of orders proposing that, in the alternative to no order being made in respect of the repayment of monies paid, an order be made that:
'The Respondent [CAT] do pay to the Appellants [PSA/Banning] the sum of $716,188.45 plus interest at 6 per centum per annum from 2 June 2009 until 23 October 2009 in the sum of $16,835.33 plus further interest at 6 per centum per annum from 23 October 2009 being $117.73 per day to the date of payment, less the sum of ($ ) [or an amount of 50% of $716,188.45] in respect of the taxed costs pursuant to the order of His Honour Justice Simmonds made 6 May 2009 (as varied herein).
Alternatively there be liberty to the Respondent [CAT] to apply in respect of a partial stay of execution to protect the Respondent's judgment in respect of costs.'
8. The Appellants [PSA/Banning] paid to the Respondent [CAT] $1,106,027.27 on 2 June 2009 and $59,634.27 on 5 June 2009. There is no dispute as to the sum (including interest) that is required to be repaid by the Respondent [CAT] to the Appellants [PSA/Banning] as a consequence of the appeal having been allowed and the variation of the orders.
9. In order to facilitate compliance with the orders having been made in paragraph 2 (b) and 2 (c) above and to unravel the practical consequences of orders made below, the Appellants [PSA/Banning] seek further orders regulating the repayment of the agreed sums to be repaid by the Respondent [CAT] under the orders as varied.
56 The PSA/Banning Submissions annexed, as annexure A, the PSA/Banning minute of proposed orders dated 23 October 2009 and annexed, as annexure B, a copy of CAT's minute of proposed orders provided to the court on 23 October 2009.
57 In an affidavit sworn and filed on 11 November 2009, Mr Stokes, solicitor for CAT, stated:1. I am the principal of Chris Stokes & Associates Solicitors for the Respondent and have the care and conduct of this matter on its behalf.
2. I swear this Affidavit in response to the Appellants' application for an urgent hearing to extract the orders made by the Court of Appeal on Friday 23 October 2009.
3. On Friday 23 October 2009 I drafted a response to the Appellants' minute of orders prepared as a result of the judgment of the court being delivered that day. That response (being amendments to the Appellants' minute) was prepared as the result of my review of the reasons for decision and after consultation with Mr McCusker QC concerning the form of orders appropriately to be made in light of the Reasons for Decision.
4. Annexed hereto marked CPS 1 is a true copy of the Appellants' Minute of Orders.
5. Annexed hereto marked CPS 2 is a true copy of the Respondent's Minute of Orders.
…
7. At approximately 10.20 am I spoke to Ms Frigger at the Supreme Court whilst waiting for the court to convene. At that time I very briefly spoke to Ms Frigger about the Minutes. However she had no opportunity to read or review either of the minutes or the Reasons for Decision.
8. Upon the Court of Appeal being convened the Chief Justice delivered the Reasons for Decision on behalf of the Court of Appeal quorum that heard the appeal. The learned Chief Justice was provided by counsel for the Appellants with both minutes and referred to the orders that were in dispute.
9. There was an initial exchange between counsel and the learned Chief Justice as to whether the respondent consented to the disputed orders being argued and adjudicated upon without the presence of the coram that heard the appeal. I advised the learned Chief Justice, on instructions from my client, that the Respondent did not consent to the matter being so dealt with.
10. The learned Chief Justice then asked both counsel whether the non contentious orders could be made by consent. On the basis that it was my opinion (and that of senior counsel who argued the appeal) that those orders were appropriate in view of the Reasons for Decision and not disputed, I said that those orders could be made by consent. However the position was that the Respondent had not formally instructed me to consent to those orders and, in that respect, I was without instructions.
11. I am now instructed that the Respondent proposes to seek a stay of execution on the judgment of the Court of Appeal pending the determination of an application to the High Court of Australia for special leave to appeal. In these circumstances the Respondent's Minute of Orders will require to be further amended once the application for special leave has been prepared. (emphasis added)
58 Annexure 'CPS 2', referred to by Mr Stokes in par 5 of his affidavit, is a copy of a document which, in its text, is in the same terms as annexure B in the PSA/Banning Submissions, ie, the minute provided by CAT to the court on 23 October 2009.
59 In CAT's written submissions dated and filed 11 November 2009, it was submitted by CAT, inter alia, that:
1. The orders made by consent on 23 October 2009 were made without instructions of the Respondent [CAT]. See Affidavit of CP Stokes sworn 11 November 2009 and lodged in this Honourable Court.
…
REPAYMENT OF JUDGMENT SUM
4. The Deed of Company Arrangement stipulates that any reduction in the judgment sum on Appeal is to be paid to Banning Holdings Pty Ltd and is to be offset against the respondent's costs.
5. Both Appellants [PSA/Banning] are insolvent. See Affidavit of Graeme Trevor Lean, Receiver, dated 10 October 2009 filed in CIV 2265/06.
6. The Respondent [CAT] is currently preparing an application for special leave to the High Court of Australia, to be filed on or before 20 November 2009. Should the Respondent be granted special leave and subsequently its appeal is successful, any repayment of costs and judgment sum will be rendered nugatory as the respondent submits the Appellants [PSA/Banning] would have dissipated all funds and assets by the time that appeal is completed.
7. An application for stay will be filed, if necessary, once the application for special leave is completed. (emphasis added)
60 In CAT's written responsive submissions filed 20 November 2009, CAT submitted, amongst other things:
7. [PSA/Banning] failed to pay the judgment sum until June 2009, approximately 11 months after judgment was delivered. … [CAT] submits that [PSA/Banning] have frustrated each and every enforcement proceeding of [CAT], imposing costs on [CAT] of some $75,000. [PSA/Banning] ultimately paid [CAT] the judgment sum and interest in June 2009 but are yet to pay any of the fixed cost orders already made. (emphasis added)
Indemnity Costs
8. [CAT] submits that its conduct in withdrawing its consent to the orders that were consented to by its solicitor does not warrant the exercise of this Court's discretion to order indemnity costs. [CAT] had not received detailed advice regarding the consent orders until after the hearing on 23 October 2009.
9. By 28 October 2009 [CAT] had received detailed advice and decided on an application for special leave to appeal to the High Court. (original emphasis)
10. … The arguable issue in this matter is that [PSA/Banning] are insolvent and should [CAT] be successful in its High Court appeal, it is possible the appeal will be rendered nugatory if … the amount of $716,188.45 is ordered to be repaid forthwith. (emphasis added)
Disposition
61 There was no proper, or even arguable, basis to stay the appeal commenced by Mr and Mrs Frigger.
62 The appeal is well advanced and is ready to be heard, subject to Mr and Mrs Frigger filing the appeal books, which they have delayed doing. The appeal has already been the subject of much time and expense in interlocutory disputes. Also, the appeal is limited to the question of whether Simmonds J erred in the exercise of his discretion by not allowing Mr and Mrs Frigger to be joined as parties to the Original Proceedings ostensibly for the purpose of dealing with costs sought against CAT, despite Mrs Frigger having been given leave to instruct CAT in that regard. The Federal Court proceedings, on the other hand, are only in their infancy. The proposed reformulations of the claims by Mr and Mrs Frigger in the Federal Court were not yet the subject of any pleading. All the allegations of fraud are now, apparently, to be withdrawn, but even if those allegations are all withdrawn, the proceedings in the Federal Court would appear to have the potential to raise a multiplicity of matters and issues. In this context, it would prima facie be inimical to the efficient administration of justice for this court to stay the appeal commenced by Mr and Mrs Frigger, and there are no other circumstances which would derogate from that prima facie position.
63 Further, even on their own evidence, Mr and Mrs Frigger have had the respondents' submissions the subject of their present complaint since April 2015. Even if all the difficulties referred to above were overlooked, we would not, as a matter of discretion, grant a stay in circumstances where Mr and Mrs Frigger have allowed their appeal to proceed and costs to be incurred by the respondents, and have left it until effectively the eleventh hour to seek a stay.
64 The above matters, separately or in combination, are sufficient to dispose of the stay application by Mr and Mrs Frigger. The conclusion that the stay application should be dismissed is confirmed by, but not dependent upon, the following further observations.
65 On the information presently available to us, it is difficult to see how at least prima facie any applications in the Federal Court designed to set aside or affect the orders of this court and of the General Division of the Supreme Court, going back several years, would not constitute an abuse of process as an impermissible collateral attack on the judgments of this court: Walton v Gardiner.66
66 Mr and Mrs Frigger apparently initially sought to overcome that difficulty by alleging that the Overpayment Orders and the other judgments and orders of this court and of the General Division of this court are liable to be set aside on the basis that the judgments were obtained by fraud. Although Mrs Frigger now says that Mr and Mrs Frigger presently intend to withdraw the allegations of fraud in the Federal Court, this was nevertheless an important plank of their argument when they filed their application for a stay, and was the subject of much of Mrs Frigger's affidavit sworn 21 January 2016. It is appropriate, in the circumstances, and in light of the respondents' application for indemnity costs, to record this court's views as to why the allegations of fraud raised by Mr and Mrs Frigger could not, in any event, have assisted them in obtaining a stay of their appeal herein.
67 The principles relevant to proceedings to set aside a judgment obtained by fraud were discussed in Wentworth v Rogers (No 5).67 They were summarised by Newnes M (as his Honour then was) in Ridout v O'Brien.68 Following a review of relevant authorities, including Wentworth, his Honour said that:69
1. It is 'necessary for the plaintiffs to establish that they and the Court were deceived and that since the trial they have discovered something material in the sense of fresh facts that either in themselves or in combination with previously known facts would prove fraud'.
2. It 'follows from the public interest in the finality of litigation that a party cannot seek to litigate matters that were the subject of earlier proceedings by reliance on evidence on which the party failed at trial'.
68 Even if it were assumed (without deciding) that these principles had equal application to a judgment on appeal, and that the Federal Court of Australia was the, or an, appropriate forum to impugn judgments of the Supreme Court of Western Australia on the grounds of alleged fraud, there was no evidence before this court to indicate that there was ever any proper basis upon which Mr and Mrs Frigger could have impugned the Overpayment Orders (or indeed any of the other judgments) on the ground of fraud. In that regard, the following observations are relevant.
69 First, the party to the Original Appeal against which this court made the relevant orders was CAT. Mr and Mrs Frigger were not parties, although CAT was their investment company and, it is not disputed, was controlled by them at the relevant time. Further, this court found in the Slip Rule Judgment, and there was no credible evidence to the contrary in this application, that Mr and Mrs Frigger had no direct interest in the Original Appeal or in the orders of this court, including the Overpayment Orders. Nor was there any evidence, or at least any cogent evidence before the court on this application, to show that Mr and Mrs Frigger had even an indirect interest in the Overpayment Orders which might arguably have given them standing to set aside the orders.
70 Secondly, even if Mr and Mrs Frigger had sufficient interest to seek to set aside the Overpayment Orders, there was no evidence of any deception of this court in relation to the making of the Overpayment Orders. In the Slip Rule Judgment, this court found, in effect, that Mr and Mrs Frigger instructed the lawyers who represented CAT in the Original Appeal and that the Deed of Company Arrangement of PSA was drawn to the attention of the court prior to the making of the Overpayment Orders, but was not adduced in evidence. In particular, there was no evidence from which an inference of fraud could be drawn against the respondents in circumstances where CAT was represented by lawyers on instructions from Mr and Mrs Frigger, and there was no evidence that the respondents' lawyers knowingly misstated or misled the court as to the terms of the Deed of Company Arrangement.
71 Thirdly, even if it were assumed (contrary to the facts as they appeared in this application) that Mr and Mrs Frigger had standing to challenge the orders, and this court was deceived in the making of the Overpayment Orders, there was nevertheless no, or no satisfactory, evidence in this application of 'new' information which could arguably ground a claim of fraud. In this regard, the following further observations may be made.
72 The gravamen of Mr and Mrs Frigger's complaint appeared to be that they were provided 'for the first time' in April 2015 with the respondents' 'written submissions dated 29 October 2009' filed in the Court of Appeal. We will not determine, for present purposes, whether Mrs Frigger's evidence was positively misleading. To say the least, however, Mrs Frigger's evidence on this topic lacked the context and particularity which would give it any real cogency. As noted earlier, Mr and Mrs Frigger did not produce in evidence the respondents' written submissions dated 29 October 2009. Material from the Court of Appeal file in CACV 76 of 2008 has been set out in [47] - [60] earlier.
73 In relation to what is apparently proposed to be reformulated claims in the Federal Court, the following further observations may be made. First, it is not clear how any reformulated claims would not, in substance, be claims of the kind made by Mr and Mrs Frigger before this court in relation to the Slip Rule Judgment (see [9] above); or in the General Division of this court in relation to their application for suspension orders (see [18] above); or in the General Division of this court in proceedings against CAT's liquidator (see [21] above). In the proceedings against CAT's liquidator, Allanson J found, and there has been no appeal against that finding in that matter, that Mr and Mrs Friggers' claims in relation to the Deed of Company Arrangement were an abuse of process.
74 Further, it is far from clear, in any event, how cl 6.1.3 of PSA's Deed of Company Arrangement, to which Mr and Mrs Frigger refer, could assist in their argument that this court's orders somehow required setting aside or revision. Clause 6.1.3 in effect required CAT to pay 'forthwith' any amount found by the Court of Appeal to have been paid in excess of a proper assessment of damages. Such amount 'must be repaid prior to the taxation' of CAT's costs if those costs had not, at that time, been determined. Both cl 6.1.3 and cl 6.13 would, conventionally, be read in the context that cl 5.1 provided, in effect, that PSA would pay the Judgment Sum (as defined in the deed) by 30 August 2009 by funds derived from Banning Holdings Pty Ltd.
75 Clause 6.13 appears, at least on a preliminary view of it, to contemplate that if the Court of Appeal reduced the judgment sum of $1,165,661.54 prior to any payment by PSA under cl 5.1, PSA could offset the amount payable under cl 5.1 by the amount of the reduction.
76 CAT did not pay the relevant sum 'forthwith', or indeed at all. Following the Original Appeal Judgment, Mr and Mrs Frigger resolved to place CAT into voluntary liquidation. Ultimately, CAT was wound-up in insolvency because CAT had not paid the (approximately) $800,000 constituting the overpayment to it. If the argument had been that the debt owed by CAT under the Overpayment Orders had, in effect, been discharged by CAT paying the money to Banning Holdings Pty Ltd in accordance with the Deed of Company Arrangement, that argument might arguably have been thought to have some merit. However, that is not the argument. Mr and Mrs Frigger contended in the Federal Court proceedings (and it is not disputed) that CAT paid the money over to them.70 Accordingly, it would appear that they have, in effect, taken the benefit of the Overpayment Sum and neither CAT (nor indeed Mr and Mrs Frigger) has ever paid the respondents or (insofar as it may be relevant Banning Holdings Pty Ltd), an amount representing the Overpayment Sum. Furthermore, neither the Deed of Company Arrangement, nor any of the other matters to which Mrs Frigger has referred in her affidavit, provide any cogent evidence of any 'plan' as alleged by Mrs Frigger which could arguably provide the foundation for an assertion that the judgments of this court, and in particular the Overpayment Orders, could be impugned in collateral proceedings.
77 In due course, if and when Mr and Mrs Frigger file amended pleadings in the Federal Court, the merit of those claims will be a matter for the Federal Court to determine. All that may be said for present purposes is that Mr and Mrs Frigger have not adduced in evidence in this application any material from which we could infer that they may have good arguable claims with reasonable prospects of success which would somehow lead to the setting aside or variation of the Overpayment Orders or the orders winding-up CAT in insolvency (or indeed any of the other orders referred to by Mr and Mrs Frigger in their current pleadings in the Federal Court).
78 Finally, with respect to the particular matters raised by Mr and Mrs Frigger referred to in [42] above:
(a) the Supreme Court has jurisdiction to set aside any of its judgments procured by fraud. It also has jurisdiction, and has exercised it several years ago in COR 2 of 2010, in relation to the appointment of a provisional liquidator to CAT and in relation to winding-up CAT in insolvency. This court also has, and has exercised, its jurisdiction in refusing to set aside the Overpayment Orders at the behest of Mr and Mrs Frigger;
(b) there was no evidence before us that Mr and Mrs Frigger have any relevant interests to set aside the judgments on the alleged ground of fraud;
(c) there was no evidence before us that any injunctions have been ordered as alleged;
(d) the mere assertion by Mr and Mrs Frigger of an interest, as alleged in the Federal Court proceedings, provided no evidence for the purposes of this application that they had any relevant interest;
(e) there is no reason to suppose, on the materials before us, that there is any substantive conflict between this appeal and the Federal Court proceedings. This appeal is concerned with a discrete point as to whether there was any error in a discretionary decision of the primary judge in relation to joinder;
(f) there will be no 'unseemly race to judgment', and moreover, the metaphor of 'race' is singularly inapt in circumstances where, after some 10 years of litigating in the Supreme Court of Western Australia (including through CAT),71 Mr and Mrs Frigger have only recently embarked on proceedings in the Federal Court of Australia to set aside or vary the adverse judgments which have been made against them in the Supreme Court of Western Australia;
(g) the respondents have been put to the trouble and expense of resisting an appeal against a discretionary order and are entitled to have that matter determined forthwith in all the circumstances;
(h) the respondents would be denied 'their day in court' for, effectively, an indeterminate period of time if the appeal were now stayed;
(i) case management considerations strongly favour the dismissal of the application by Mr and Mrs Frigger for a stay.
Conclusion as to stay application
79 For these reasons, we ordered that the application for a stay by Mr and Mrs Frigger be dismissed. We also ordered that unless Mr and Mrs Frigger filed the appeal books on or before 4.00 pm, 7 April 2016, the appeal should be dismissed and the appellants should pay the respondents' costs, including reserved costs to be taxed if not agreed.
The question of costs
80 Finally, the respondents sought an order for indemnity costs in relation to the stay application.
81 There must be some special or unusual feature of a case to warrant an award of indemnity costs.72 The categories of cases in which an indemnity costs order may be made are not closed.73 In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd,74 Woodward J said that indemnity costs were appropriate where an action 'has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success'. As Pullin J observed in Flotilla Nominees Pty Ltd v Western Australian Land Authority,75 an order for indemnity costs may be seen as a 'mark of disapproval on the part of the court about the improper or unreasonable conduct of litigation'. It is sufficient to enliven the discretion to award indemnity costs that, for whatever reasons, a party persists in what should, on proper consideration, seem to be a hopeless case.76
82 In connection with an order for indemnity costs against a litigant in person, in Tey v Optima Financial Group Pty Ltd,77 Pullin and Newnes JJA observed:78
Where it is alleged that a person's conduct was improper or unreasonable so as to justify an order for indemnity costs, the fact that the person was without legal representation will ordinarily be a relevant factor in determining whether such an order is justified. What might be considered conduct warranting an indemnity costs order where a party is legally represented may not appear in the same light when account is taken of the lack of legal expertise of a litigant in person. That will necessarily depend upon the particular circumstances of the case. But where, after taking into account the lack of legal representation, the conduct of an unrepresented party is such as to warrant an indemnity costs order the court should not be reluctant to make such an order. Litigants in person have the capacity to inflict a great deal of unnecessary expense and hardship on other parties and the court should not stay its hand where such censure is properly called for.
83 Having considered all the materials in this matter, including Mr and Mrs Friggers' written submissions dated 1 April 2015 in relation to costs, in our view indemnity costs should be awarded against Mr and Mrs Frigger for the following reasons:
(a) Mr and Mrs Frigger are extremely well-versed in the litigation of this court and the General Division, having been involved (frequently representing themselves) in numerous matters over many years;
(b) on the material provided by Mr and Mrs Frigger in their application, there was never any merit in the stay application insofar as it was based upon allegations of fraud in the Federal Court against the respondents or their solicitors;
(c) Mr and Mrs Frigger conducted the application unreasonably insofar as they based it on the alleged fraud in the Federal Court, but then, and effectively only in response to questions on the subject from the bench, they withdrew any reliance on fraud during the course of the hearing; and
(d) none of the other matters relied upon by Mr and Mrs Frigger could reasonably have been thought to justify the orders they sought, namely a stay of their own appeal in all the circumstances we have recounted earlier. Nor was there ever any prospect of an order, as they had sought, that the costs of their application should be in the appeal.
84 Accordingly, there should be an order in the following terms:
The appellants are to pay the respondents' costs of the appellants' application for a stay of their appeal filed 25 January 2016, to be taxed on an indemnity basis so that the respondents are fully indemnified for their costs except insofar as the costs may have been unreasonably incurred or are unreasonable in amount.
Schedule 1 - appeal chronology
85 Mr and Mrs Frigger filed an appeal notice on 22 September 2014, and an amended appeal notice on 2 October 2014. Also, on 2 October 2014, they filed an application for the Original Proceedings to be stayed pending the resolution of their appeal.
86 On 31 October 2014, the respondents made an application for the appeal to be struck out, or alternatively for an order that the appellants give security for costs.
87 Mr and Mrs Friggers' application for a stay of the Original Proceedings, and the respondents' application to strike out the appeal, or alternatively for security for costs, were heard on 19 November 2014. On that date the court made orders:
(a) dismissing the Friggers' application for a stay;
(b) dismissing the first and second respondents' application for an order that the appeal be struck out; and
(c) requiring the appellants to pay into court the sum of $18,000 as security by 3 December 2014.
88 On 17 December 2014, the appellants filed a notice of payment into court of the amount of $18,000.
89 On 19 December 2014, the registrar ordered that the time for the appellants to file and serve the appellants' case be extended to 30 January 2015.
90 On 9 January 2015, the court published its reasons for judgment in relation to the orders made on 19 November 2014: Frigger v Professional Services of Australia Pty Ltd.79
91 On 10 February 2015, Mr and Mrs Frigger filed their appellants' case. On 11 February 2015, the appellants filed a certificate of compliance in relation to practice direction 7.4.
92 On 11 February 2015, the registrar ordered that the time for Mr and Mrs Frigger to file and serve the appellants' case be extended to 10 February 2015.
93 On 12 February 2015, the registrar issued a notice requiring the respondents to file and serve any answer to the appellants' case within 21 days.
94 On 11 March 2015, the respondents made an application (filed 18 March 2015) for, amongst other things:
1. The time for filing the respondents' answer be extended until after the hearing of this application.
2. The appeal be dismissed and the first and second appellants pay the respondents' costs to be taxed if not agreed.
3. Grounds 2 and 3 of the appellants' case and the schedules 1, 2 and 3 thereto be struck out and the appellants file and serve an amended appellants' case within seven days.
95 On 1 April 2015, the registrar ordered that the respondents' application dated 11 March 2015 be referred to the hearing of the appeal.
96 On 20 April 2015, the registrar ordered that the time for the respondents to file and serve the respondents' answer be extended to 22 April 2015.
97 On 22 April 2015, the respondents filed the respondents' answer, dated 17 April 2015.
98 On 4 May 2015, the registrar ordered that leave be granted to the first and second respondents to file and serve an amended first and second respondents' answer dealing with certain formatting issues by 8 May 2015.
99 On 5 May 2015, the respondents filed an amended respondents' answer, including a notice of contention.
100 On 11 May 2015, Mr and Mrs Frigger filed a reply to the respondents' notice of contention.
101 On 10 June 2015, the registrar ordered that:
1. Mr and Mrs Frigger file and serve any application to adduce additional evidence, together with a supporting affidavit, by 23 June 2015.
2. The respondents file and serve any responsive affidavit(s) by 7 July 2015.
3. Mr and Mrs Frigger file two clean copies of the appeal book indexes for approval and serve a copy on the respondents by 7 July 2015.
102 Mr and Mrs Frigger did not file any affidavits pursuant to the above orders.
103 On 6 August 2015, the registrar ordered that the respondents file four copies of the yellow application book in accordance with the approved application book index and serve a copy on the appellants by 27 August 2015.
104 On 10 August 2015, the registrar ordered that the appellants file four copies of the appeal books in accordance with the approved appeal book indexes and serve a copy on the respondents by 7 September 2015.
105 On 19 August 2015, the respondents filed the yellow appeal book.
106 On 21 October 2015, upon the application of Mr and Mrs Frigger, the registrar ordered that the date for the filing and serving of the appeal books be extended to two weeks after, in effect, the Slip Rule Judgment in the Court of Appeal.
107 As noted earlier, the appellants filed their application to stay their appeal on 25 January 2016.
1Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 [2].
2Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133.
3Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133 (S).
4Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3] [2010] WASC 2 (S) [14].
5Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343 [9].
6Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69 [11]; Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S) [13]. See also Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3] [2010] WASC 2 [16]; cf Holbrook v Professional Services of Australia Pty Ltd [2012] WASC 444 [15].
7Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222.
8Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253 [21]; Mrs Frigger's affidavit sworn 21 January 2016, annexure AF 1: amended statement of claim dated 30 December 2015 in Federal Court WAD 607 of 2015, page 16, pars 12 - 13.
9Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183.
10Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S) [2].
11Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S).
12Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2010] HCA Trans 139.
13Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69 [14], [30].
14Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2010] WASC 38.
15Professional Services of Australia Pty Ltd (administrator appointed) v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93.
16Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69 [12], [90], [91].
17Professional Services of Australia Pty Ltd (administrator appointed) v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93 [17] - [19].
18Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd[No 3] [2010] WASC 2.
19Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69 [14].
20Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69 [2], [45], [47] - [57], [75] - [77], [116], [135].
21Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69 [81], [87] - [113].
22Banning Holdings Pty Ltd v Holbrook [2009] WASC 178; Mrs Frigger's affidavit sworn 21 January 2016, annexure AF6: fourth-named second defendant's (CAT's) chamber summons dated 27 August 2009 in CIV 2001 of 2009 (incorrectly described as CIV 2007 of 2009), page 89.
23Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21.
24 The findings of dishonesty were summarised in Frigger v Clavey Legal Pty Ltd [2015] WASCA 217 [14].
25Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21 (S).
26Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21 (S) [26] - [29], [33].
27Frigger v Clavey Legal Pty Ltd [2015] WASCA 217.
28Frigger v Clavey Legal Pty Ltd [No 2] [2015] WASCA 258.
29Frigger v Professional Services of Australia Pty Ltd [2015] WASCA 3 [18].
30Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 7] [2014] WASC 360.
31Frigger v Professional Services of Australia Pty Ltd [2015] WASCA 3.
32Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 8] [2015] WASC 166.
33Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253.
34Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253 [10].
35Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253 [22].
36Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253 [24].
37Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253 [6], [7], [11].
38Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253 [37] - [38].
39Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253 [30] - [31].
40Banning Holdings Pty Ltd v Holbrook [2009] WASC 178.
41Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343 [15], [77], [78], [89], [91] - [93], [97] - [102].
42Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343 [22].
43Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343 [27].
44Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343 [29] - [30].
45Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343 [32], [38].
46Holbrook v Professional Services of Australia Pty Ltd [2012] WASC 444 [41] - [42]; Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343 [36].
47Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343 [39] - [40], [43].
48Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343.
49Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343 [77] - [79], [87] - [104].
50Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343 [103].
51Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 10] [2015] WASC 380.
52Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 10] [2015] WASC 380 [37].
53Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 10] [2015] WASC 380 [38].
54Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 10] [2015] WASC 380 [52] - [57].
55Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [2013] WASC 229; Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [2013] WASC 229 (S); Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 2] [2013] WASC 394; Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 3] [2014] WASC 24; Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 4] [2014] WASC 165; Frigger v Mervyn Jonathon Kittay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 5] [2014] WASC 195; Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 6] [2014] WASC 384; Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 7] [2014] WASC 441 and Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 8] [2015] WASC 104.
56Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 7] [2014] WASC 441.
57Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 7] [2014] WASC 441 [26] - [28], [30] - [35].
58 Mrs Frigger's affidavit sworn 21 January 2016, annexure AF1: amended statement of claim sworn 30 December 2015 in Federal Court WAD 607 of 2015, pars 22 - 24.
59 Mrs Frigger's affidavit sworn 21 January 2016, annexure AF1: amended statement of claim sworn 30 December 2015 in Federal Court WAD 607 of 2015, pages 23 - 24, par 29.
60 Mrs Frigger's affidavit sworn 21 January 2016, annexure AF1: amended statement of claim sworn 30 December 2015 in Federal Court WAD 607 of 2015, pages 27 - 28, par 36.
61 Mrs Frigger's affidavit sworn 21 January 2016, annexure AF1: amended statement of claim sworn 30 December 2015 in Federal Court WAD 607 of 2015, pages 29 - 30, par 41.
62 Mrs Frigger's affidavit sworn 21 January 2016, annexure AF1: amended statement of claim sworn 30 December 2015 in Federal Court WAD 607 of 2015, pages 31 - 32, par 46.
63 Mrs Frigger's affidavit sworn 21 January 2016, annexure AF1: amended statement of claim sworn 30 December 2015 in Federal Court WAD 607 of 2015, pages 32, par 48, page 33, par 51.
64 ts 50 - 53.
65 Appeal ts 114, 115, 23/10/09.
66Walton v Gardiner [1993] HCA 37; (1993) 177 CLR 378, 392 - 393.
67Wentworth v Rogers (No 5) (1986) 6 NSWLR 534. See also Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [163].
68Ridout v O'Brien [2004] WASC 137.
69Ridout v O'Brien [2004] WASC 137 [51].
70 Mrs Frigger's affidavit sworn 21 January 2016, annexure AF 1: amended statement of claim dated 30 December 2015 in Federal Court WAD 607 of 2015, page 16, pars 12 - 13.
71 The Original Proceedings were commenced in 2006.
72Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR225, 233.
73Colgate-Palmolive Co (233).
74Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364; (1988) 81 ALR397, 401.
75Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR95 [25].
76Quancorp Pty Ltd v MacDonald [1999] WASCA 101 [6].
77Tey v Optima Financial Group Pty Ltd [2012] WASCA 192.
78Tey [16].
79Frigger v Professional Services of Australia Pty Ltd [2015] WASCA 3.
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