Frigger v Professional Services of Australia Pty Ltd [No 3] - [2025] WASC 258

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   FRIGGER -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [No 3] [2025] WASC 258
CORAM:   HILL J
HEARD:   14 MARCH 2024
DELIVERED          :   30 JUNE 2025
FILE NO/S:   CIV 1986 of 2023
BETWEEN:   ANGELA CECILIA THERESA FRIGGER
First Plaintiff
HARTMUT HUBERT JOSEF FRIGGER
Second Plaintiff
AND
PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD
First Defendant
SANDRA MAY BANNING
Second Defendant
SANDRA MAY BANNING in her capacity as administratrix of the estate of MARTIN PAUL BANNING
Third Defendant
DAVID ABRAHAM LENHOFF
Fourth Defendant
TIMOTHY RICHARD STEPHENSON
Fifth Defendant
CAMERON VICTOR EASTWOOD
Sixth Defendant

Catchwords:

Practice and procedure - Application for interim stay of proceedings pending final determination of Federal Court proceedings - Factors relevant to discretion - Turns on own facts

Practice and procedure - Application for interim stay of proceedings until payment of outstanding costs orders in other Supreme Court proceedings - Factors relevant to discretion - Turns on own facts

Practice and procedure - Application for security for costs - Application pursuant to O 25 of the Rules of the Supreme Court 1971 (WA) - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 25

Result:

Interim stay granted
Security for costs ordered

Category: B

Representation:

Counsel:

First Plaintiff	:	In Person
Second Plaintiff	:	In Person
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	T J Porter
Fifth Defendant	:	T J Porter
Sixth Defendant	:	T J Porter

Solicitors:

First Plaintiff	:	In Person
Second Plaintiff	:	In Person
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	Popperwell & Co
Fifth Defendant	:	Popperwell & Co
Sixth Defendant	:	Popperwell & Co

Cases referred to in decision:

Apotext Pty Ltd v Les Laboratoires Servier (No 6) [2012] FCA 745
Crosswest Corporation Pty Ltd v Allstrike Enterprises Pty Ltd [2014] WASC 27
Frigger v Professional Services of Australia Pty Ltd [2022] FCA 1477
Frigger v Professional Services of Australia Pty Ltd [2022] WASC 158
Frigger v Professional Services of Australia Pty Ltd [2022] WASCA 119
Frigger v Professional Services of Australia Pty Ltd [No 2] [2023] WASC 246
Frigger v Professional Services of Australia Pty Ltd [No 3] [2023] FCA 520
Frigger v Professional Services of Australia Pty Ltd [No 5] [2024] FCA 420
Frigger v The State of Western Australia [2025] HCADisp 97
Frigger v The State of Western Australia [2025] WASCA 7
Jebb v Superior Lawns Australia Pty Ltd [2019] WASC 121
Phillip Morris Ltd v Attorney General of Victoria [2006] VSCA 21; (2006) 14 VR 538
Rayney v The State of Western Australia [2019] WASCA 23
Re Computer Accounting and Tax Pty Ltd (ACN 009 470 491) [No 4] [2023] WASC 90
Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287

HILL J:

On 23 August 2023, Mr and Mrs Frigger commenced these proceedings against Professional Services of Australia Pty Ltd (PSA), PSA's sole director Sandra May Banning, Mrs Banning in her capacity as the administratrix of the estate of her late husband Martin Paul Banning, and three legal practitioners who have acted for PSA over the years.
Mr and Mrs Frigger's claim arises, essentially, from a contention that a person or persons failed to subscribe their names to a memorandum for PSA. As a result, they say that:
(a)PSA was not formed as an incorporated company pursuant to s 114 of the Corporations Act 1989 (Cth);
(b)because PSA never came into existence, all the actions commenced in this court by PSA against Mr and Mrs Frigger and their company, Computer Accounting & Tax Pty Ltd (CAT), are nullities; and
(c)the fourth to sixth defendants, as agents for PSA, are jointly and severally liable to Mr and Mrs Frigger.
Mr and Mrs Frigger seek orders setting aside orders made in CIV 1309 of 2021 and CACV 55 of 2022 (Supreme Court Proceedings), as well as damages (including compensatory damages and exemplary damages).
On 8 December 2023, each of the fourth to sixth defendants filed a chamber summons seeking a stay of the proceedings. They say that these proceedings should be stayed until the determination of separate Federal Court proceedings, or alternatively, until Mr and Mrs Frigger have paid the costs they were ordered to pay in the Supreme Court Proceedings, as well as those they agreed to pay to the fifth defendant in CACV 81 of 2022.
In addition, each of these defendants seek orders for an amount to be paid into court as security for their initial costs of the proceedings, and for the proceedings to be stayed until this occurs. The fourth and fifth defendants seek an amount of $20,000 until the conclusion of this application and any application to strike out the statement or claim or for summary judgment, and the sixth defendant seeks an amount of $10,000 for this same period.
In support of the applications, the fourth defendant relied on an affidavit of Simon Ross Ringrose, a lawyer employed by the solicitors for the fourth defendant, filed 16 February 2024; the fifth defendant relied on three affidavits of Belinda Merle Randall, a lawyer employed by the solicitors for the fifth defendant, filed 15 and 29 February 2024, and 14 March 2024; and the sixth defendant relied on an affidavit of Sean Francis Popperwell, a director of the law practice representing the sixth defendant, filed 16 February 2024.
Mr and Mrs Frigger opposed any orders being made on the applications and relied on two affidavits of Mrs Frigger, filed 7 and 18 March 2024. In their submission, there is no proper basis on which an interim stay of these proceedings can be granted, nor should they be required to pay any security for these defendants' costs of the proceedings.
For the reasons that follow, it is my view that:
(a)Mr and Mrs Frigger are required to pay $10,000 for each of the fourth to sixth defendants, or a total of $30,000, into court as security for the costs of each of these defendants; and
(b)these proceedings should be stayed until Mr and Mrs Frigger have satisfied the costs orders in the Supreme Court Proceedings and security is paid into court.

Summary of claim in these proceedings

On 24 October 2023, Mr and Mrs Frigger filed an amended statement of claim in these proceedings (statement of claim). The statement of claim raises three separate factual allegations which are said to give rise to the relief sought.
The first allegation refers to an oral agreement between Mr Banning, David John Boyle, and Mariangela Boyle on about 5 June 1998. It is contended that pursuant to this agreement, Mr and Mrs Boyle lodged a Form 201 for the registration of Liberty Oil (Australia) Pty Ltd (the previous name for PSA), and provided Mr Banning with a memorandum and articles of association (PSA Memorandum) as well as pro forma minutes. Under the agreement, Mr Banning and Mr Miller were required to sign the PSA Memorandum, hold a meeting and pass the resolutions.
Mr and Mrs Frigger say that in CIV 1309 of 2021, the defendants adduced two versions of a document purporting to be the PSA Memorandum, neither of which was the PSA Memorandum provided by Mr and Mrs Boyle to Mr Banning. Mr and Mrs Frigger say that as a result of these matters, even though PSA is registered in the Australian Securities and Investment Commission (ASIC)'s register of companies, PSA never came into existence as a separate legal entity. Mr and Mrs Frigger also contend that no meetings were held by Mr and Mrs Boyle nor by Mr Banning and Mr Miller, and that the minutes of meetings on 5 and 8 June 1998 produced to the Federal Court in WAD 126 of 2022 are fraudulent.
The second allegation concerns whether there are any shareholders of PSA. On the basis of their contention that the minutes of meetings on 5 and 8 June 1998 are fraudulent, Mr and Mrs Frigger say that there are no valid resolutions allotting or redeeming subscriber shares to each of Mr and Mrs Boyle, or allotting shares to Mr Banning and Mr Miller. They also say that even if these shares were validly issued, there has been no valid transfer of the shares from Mr Banning to Donald Campbell-Smith in his capacity as executor of the will of Martin Paul Banning and then to Mrs Banning, or from Mr Miller to Mrs Banning.
The third allegation arises as a result of the second allegation. Because Mr and Mrs Frigger contend there are no shareholders of PSA, they also say that there has been no valid resolution of a general meeting of PSA appointing any director of PSA. As a consequence of having no validly appointed directors, Mr and Mrs Frigger say PSA was not able to give instructions to retain solicitors, issue the statutory demand, or issue the winding up proceedings which ultimately led to the appointment of a provisional liquidator and the winding up of CAT in insolvency. Mr and Mrs Frigger say that each of Mrs Banning and the fourth and fifth defendants are liable to pay compensation to them for the losses they have incurred as a result of the statutory demand, and the various proceedings referred to in the statement of claim.[1]
[1] These proceedings include CACV 76 of 2008, an application for freezing orders made in CIV 2265 of 2006, and COR 2 of 2010.
Mr and Mrs Frigger also contend that as a result of these matters (as well as the rejection of various offers of compromise), they have been forced into 'Unnecessary Litigation'[2] and incurred unnecessary legal costs. Two alternative bases are advanced in support of their contention that Mrs Banning and the fourth to sixth defendants are liable to pay them damages for the costs of the Unnecessary Litigation: first, a lack of authority on the part of each of them to act as agent for PSA; and second, actual or constructive knowledge on the part of each of them that PSA never came into existence.
[2] This is defined in [51] of the statement of claim as an application for special leave to the High Court (P47/2009); the following proceedings in the Supreme Court of Western Australia CIV 1727/2009, CACV 23/2013, CACV 24/2014, CACV 51/2010, CIV 2765/2010, CIV 1616/2016, CIV 1309/2021, CACV 55/2022; the application to terminate the provisional liquidation in COR 2/2010; the following proceedings in the Federal Court of Australia WAD 607/2015 and WAD 674/2015; as well as claims against three former law firms who acted for CAT.
Mr and Mrs Frigger then specifically refer to CIV 1309 of 2021. Specifically, they plead that:
59.In or about April 2021 the plaintiffs served the defendants with a Writ claiming compensation that is claimed in this proceeding, on the ground that PSA did not have sufficient directors to form a quorum to conduct its business or to retain Lenhoff, Stephenson or Eastwood in the Null Proceeding and the Unnecessary Litigation.
60.Each of Mrs Banning, Lenhoff, Eastwood and Stephenson applied for the plaintiffs' claims in CIV1309/2021 to be summarily dismissed on the ground that PSA was required to have only one director and consequently CIV1309/2021 was dismissed summarily and the plaintiffs were ordered to pay costs.
61.The plaintiffs commenced an appeal against the summary dismissal CACV55/2022 and subsequently discontinued it and were ordered to pay costs.
Mr and Mrs Frigger say that by reason of the three factual allegations summarised above, the judgments and orders in CIV 1309 of 2021 and CACV 55 of 2022 were obtained by fraud.
Finally, reference is made to the criminal prosecution of Mrs Frigger. They contend that the fourth to sixth defendants were the 'effective prosecutors' of this charge and that the prosecution had no probable cause. They plead that Mrs Frigger was falsely imprisoned during the conduct of the criminal trial and from her sentence on 26 November 2021 until her release on bail on 9 December 2021, and that the conduct of these defendants constituted malice.
Mr and Mrs Frigger say that as a result of the defendants' conduct, they have been 'forced into the Unnecessary Litigation and incurred loss and damage'.[3] They say that Mrs Frigger lost the opportunity to earn fees as a professional accountant, Mr Frigger had to relinquish his career as a 'chemical engineer/commissioning manager', and that both of them have suffered mental distress, anxiety and enjoyment of life. On this basis, they seek orders setting aside the judgments in CIV 1309 of 2021 and CACV 55 of 2022 for fraud and contend that the defendants are jointly and severally liable to pay them compensation, including exemplary damages.
[3] Statement of claim [81].

Should these proceedings be stayed?

Three alternative grounds were advanced by the fourth to sixth defendants for a stay of the proceedings, namely:
(a)a stay in the inherent jurisdiction of the court pending final determination of Federal Court proceedings WAD 126 of 2022 (Federal Court Proceedings);
(b)a stay in the inherent jurisdiction of the court until Mr and Mrs Frigger have satisfied the costs orders made in the Supreme Court Proceedings and the costs agreed to be paid in CACV 81 of 2022; and
(c)a stay of the proceedings until security for a portion of their costs of the proceedings is provided.

Should there be a stay pending final determination of Federal Court Proceedings?

The fourth to sixth defendants seek an interim stay of these proceedings until determination of the Federal Court Proceedings on the basis that there is a factual overlap between the issues raised in both proceedings. In particular, they say that Mr and Mrs Frigger's contentions in both proceedings have the same legal and factual basis, which is that PSA was not formed and its registration not valid.
Mr and Mrs Frigger deny there is any overlap between these proceedings and the Federal Court Proceedings. In their submission, the only issue that was to be decided (and was subsequently decided) by Feutrill J concerned the registration of PSA and whether ASIC's registers should be rectified to remove PSA's registration as a company.
Neither the originating process nor the pleadings in the Federal Court Proceedings were in evidence before me. However, at the hearing, I was referred to two judgments of Feutrill J which summarise the claims made in those proceedings. Mr and Mrs Frigger's originating application in the Federal Court Proceedings sought a declaration that the registration of PSA was void ab initio, as well as an order pursuant to s 1322(4)(b) of the Corporations Act 2001 (Cth) (Corporations Act) for rectification of the ASIC register by removal of PSA from it.[4] The basis for these orders is Mr and Mrs Frigger's contention that the process by which the company was placed on the register was invalid, because:[5]
The memorandum of articles of PSA (then named Liberty Oil (Australia) Pty Ltd) was not signed by the original subscribers Mr Boyle and Mrs Mariangela Boyle on 5 June 1998. It is alleged that the signatures purporting to be those of Mr and Mrs Boyle on the articles of association are not, in fact, their signatures but simulations of their signatures placed on the document by a person or persons unknown.
The legal foundation for the alleged invalidity is contended to lie in the provisions of the Corporations Law as it applied in June 1998. Sections 112 to 125 of the Corporations Law regulated the incorporation and registration of a company at the material time. Section 114 provided that a proprietary company was formed by one or more persons subscribing their name to a memorandum and complying with the registration requirements. Section 117 set out the requirements of a memorandum which included a requirement that it be signed by each subscriber in the presence of a least one witness. The Friggers contend that requirement was not met because Mr and Mrs Boyle did not sign the memorandum, the company (PSA) was, therefore not formed, and its registration was not valid.
[4] Frigger v Professional Services of Australia Pty Ltd [2022] FCA 1477 [55] (Frigger 2022 decision).
[5] Frigger 2022 decision [58] - [59].
On 23 May 2023, Feutrill J ordered a trial of separate questions in the Federal Court Proceedings in the following terms:[6]
Upon the facts set out in the statement of agreed facts, annexed to this order and marked "A" and upon the facts and matters set out in the statement of assumed facts annexed to this order and marked "B", the following questions arising in the proceeding be heard separately from all other questions in the proceedings:
(1) Was the registration of the company with the name Liberty Oil (Australia) Pty Ltd and Australian Company Number 082 879 641 invalid ab initio?
(2) On the proper construction of section 1322(4)(b) of the Corporations Act 2001 (Cth), has the Court power, on the application of the plaintiffs, to make an order directing the Australian Securities and Investments Commission to rectify the register kept by ASIC under the Corporations Act to remove Professional Services Australian Pty Ltd (ACN 082 879 641) from that register?
(3) If the answer to question (2) is in the affirmative, has the Court power to make such an order with retrospective effect?
[6] Frigger v Professional Services of Australia Pty Ltd [No 3] [2023] FCA 520.
The statements of agreed facts and assumed facts on which the trial before his Honour proceeded are annexed to these reasons as Annexures A and B.[7]
[7] The documents which were attached to Annexure A have not been annexed to these reasons. They are not materially relevant to the reasons for my decision.
These separate questions were heard by Feutrill J on 28 June 2023. On 26 April 2024, his Honour delivered reasons for his decision that each of the questions should be answered 'No'.[8]
[8] Frigger v Professional Services of Australia Pty Ltd [No 5] [2024] FCA 420 [3] (Frigger 2023 decision).
Relevantly, his Honour concluded that:
(a)the existence of a memorandum signed by Mr and Mrs Boyle in the presence of a witness who attested to their signatures was not a necessary precondition to the registration of PSA;[9]
(b)the registration of PSA was authorised and in accordance with s 120 of the Corporations Act 1989 (Cth);[10]
(c)Mr and Mrs Frigger are precluded from challenging the validity of the process by which PSA was registered in 1998. The effect of s 1389(1) of the Corporations Act is that the certificate of registration of PSA is conclusive evidence of valid registration, except as against the Crown or ASIC;[11]
(d)Mr and Mrs Frigger are also precluded from challenging PSA's registration on the ground that the PSA Memorandum was not signed by the subscribers to the memorandum;[12] and
(e)in any event, there is no ability to retrospectively deprive a company of its corporate existence. There is only the express power to make orders for the deregistration or winding up of a company.[13]
[9] Frigger 2023 decision [62].
[10] Frigger 2023 decision [62]. The Corporations Act 1989 (Cth) applied in Western Australia by reason of s 7 of the Corporations (Western Australia) Act 1990 (WA).
[11] Frigger 2023 decision [90].
[12] Frigger 2023 decision [91], [97].
[13] Frigger 2023 decision [99] - [106].
Following delivery of these reasons, I requested that the parties file short written submissions addressing the impact of this decision on the applications by the fourth to sixth defendants, which I have taken into account in reaching my decision.
The fourth to sixth defendants submit that their application for an interim stay remained relevant in the event there was an appeal against the decision of Feutrill J.[14] Mr and Mrs Frigger continued to deny there was any overlap between the issues in these proceedings and those in the Federal Court proceedings. In their submission, none of the causes of action in these proceedings rely or raise any issue about the registration of PSA; the issue in these proceedings is whether PSA was incorporated.[15]
[14] Fourth to sixth defendants' submissions filed 13 May 2024 [12].
[15] Plaintiffs' submissions filed 15 May 2024.

The evidence before the court is that Mr and Mrs Frigger have appealed the orders of Feutrill J,[16] although there is no evidence before me as to whether or when the appeal has been listed.
[16] Affidavit of Angela Cecilia Theresa Frigger filed 19 May 2024.
The court has the power to grant an interim stay of proceedings, with or without conditions, where it is contended that there are pending related proceedings. The court will take various matters into account in deciding whether to grant a temporary stay, including:[17]
[17] Rayney v The State of Western Australia [2019] WASCA 23 [48]; See also Frigger v Professional Services of Australia Pty Ltd [No 2] [2023] WASC 246 [33] (Archer J) citing with approval Lockhart J in Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287, 291.
(a)which proceedings were commenced first;
(b)whether the finalisation or termination of one proceeding is likely to have a material effect on the other proceedings;
(c)the public interest;
(d)the undesirability of two courts competing to see which can determine common facts first;
(e)consideration of the circumstances of any witnesses;
(f)whether work on pleadings, particulars, and other pre-trial steps may be wasted;
(g)the undesirability of the substantial waste of time, effort and costs if the practice of bringing actions in two courts involving substantially the same issues becomes common;
(h)how far each proceeding has progressed;
(i)that the law should strive against allowing a multiplicity of proceedings in relation to similar issues; and
(j)balancing the advantages and disadvantages to each party.
In considering whether to grant an interim stay by reference to these matters, the court has regard to five key guidelines:[18]
(a)prima facie, a plaintiff is entitled to have their action tried in the ordinary course of the procedure and business of the court;
(b)as it is a serious matter to interfere with this entitlement by a stay of proceedings, justification on proper grounds is required;
(c)the burden is on the defendant to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with;
(d)the court's task involves the balancing of justice between the parties, taking account of all relevant factors; and
(e)each case must be judged on its own merits.
[18] Apotext Pty Ltd v Les Laboratoires Servier (No 6) [2012] FCA 745 [8] - [10].
In this case, after taking each of these considerations into account, while relatively finely balanced, I do not consider there should be an interim stay of these proceedings until the determination of the appeal in the Federal Court Proceedings.
There are a number of factors that weigh in support of the stay being granted. These include the fact that the Federal Court Proceedings were commenced on 1 July 2022, well before these proceedings were commenced on 23 August 2023. The separate question has been heard and determined and an appeal has been commenced against the orders of Feutrill J on these separate questions. In contrast, these proceedings are in their infancy. At this stage, no defences have been filed nor have any other pre-trial steps been taken.
I also consider there is a public interest in discouraging a multiplicity of proceedings between the same parties or bringing actions in two courts involving substantially similar issues. However, it is likely that these factors will be present in almost all applications where a stay is sought and, accordingly, by themselves are not decisive.
In this case, there is some overlap in the issues raised in both proceedings, namely the question as to whether PSA came into existence as a company. The orders in the Federal Court Proceedings and reasons of Feutrill J, and any judgment from the appeal in the Federal Court Proceedings, may have an impact as to whether all of the matters currently pleaded in the statement of claim can be maintained, including the denials in [12] that PSA was validly registered and that PSA is a separate legal entity, as well as the matters pleaded in [45] ‑ [47], and [58(a)] of the statement of claim. The extent to which these pleaded matters can be maintained requires consideration of whether the distinction sought to be drawn by Mr and Mrs Frigger between the registration of PSA and its incorporation has any relevance.
There are, however, three significant differences between the proceedings which count against the stay being granted. First, the Federal Court Proceedings ultimately proceeded on the basis of agreed and assumed facts, and no factual findings were made by Feutrill J. Second, not all parties in these proceedings are parties to the Federal Court Proceedings. Mr and Mrs Frigger are the plaintiffs in both proceedings, but only PSA and Mrs Banning (in her personal capacity) are defendants to the Federal Court Proceedings. As a result, it is only these parties that are bound by the orders of Feutrill J (or any appeal). Third, these proceedings raise significantly wider issues as to PSA's governance, including the identity of its shareholders, the validity of the appointment of its directors and the consequences that flow from these findings.
Given that the Federal Court Proceedings proceeded on agreed and assumed facts, other factors that weigh against the stay are that there is no risk of any contrary factual findings being made or any impacts on witnesses. Further, the work that is required in relation to the pleadings, discovery and preparation of these proceedings for trial is unlikely to be wasted as much of this work will concern the factual matters that are raised on the pleadings, which are not in issue in the Federal Court Proceedings.
Any interim stay of these proceedings until the conclusion of the Federal Court proceedings will delay the resolution of Mr and Mrs Frigger's claim for an undisclosed period of time. While it is possible that some of the work that is done by the defendants ultimately may not be required and will be wasted if the proceedings are not stayed, in my view this is not a sufficient reason to grant the interim stay sought.

Should there be a stay until satisfaction of the costs orders in the Supreme Court Proceedings?

There was no dispute between the parties that the court, in its inherent jurisdiction, may stay proceedings pending the payment of costs of 'earlier proceedings raising the same, or substantially the case, cause of action or subject matter'.[19] As explained by Vaughan J (as he then was) in Jebb v Superior Lawns Australia Pty Ltd:[20]
The court does not do so as a matter of course but rather if required to control an abuse of the process of the court. Accordingly, it may, depending on the circumstances, be an abuse of process for a person to pursue litigation where there are unsatisfied costs orders in an earlier action for the same, or substantially the same, cause of action or subject matter.
In Cobbett v Warner the matter was explained in these terms:
The Court, undoubtedly, has jurisdiction to prevent the abuse of its process by bringing vexatious actions. This summary jurisdiction should be sparingly exercised, as it deprives the party whose action is stopped of the right to try his cause, and if necessary to carry it to the highest tribunal. It has, however, generally been exercised, where the party has previously failed in the course of litigation, and then without paying the costs of the former action has brought a fresh action against the same party, or someone identified in interest with him, for the same, or what is substantially the same, cause of action. In such cases the Court will interfere to prevent him harassing his opponent, and will stay the proceedings till the costs of the former litigation are paid.
[19] Jebb v Superior Lawns Australia Pty Ltd [2019] WASC 121 [138].
[20] Jebb v Superior Lawns Australia Pty Ltd [138] - [139]
His Honour went on to note that:[21]
Three things arise from the rule. First, the apparent purpose is to protect a defendant from having to respond to a new claim for the same or substantially the same cause of action where costs of an earlier discontinued action remain unpaid. Outside of the rule, in the realm of the court's inherent jurisdiction, that protective object applies with more force where the earlier action has been dismissed for want of prosecution as opposed to mere discontinuance. Second, the rule focuses on the substance of the coincidence between the earlier action and the later action. It is enough if the second action raises 'substantially' the same cause of action. Third, there is a discretion to stay the later proceedings until the costs of the earlier proceedings are paid.
[21] Jebb v Superior Lawns Australia Pty Ltd [145].
In the exercise of its discretion as to whether to grant the stay, the court will consider the financial position of the plaintiffs and whether it is possible that granting the stay may stifle the second proceedings.[22]
[22] Phillip Morris Ltd v Attorney General of Victoria [2006] VSCA 21; (2006) 14 VR 538 [97].
The Supreme Court Proceedings concerned a claim by Mr and Mrs Frigger against PSA, Mrs Banning, and the fourth to sixth defendants (who were the third to fifth defendants in the Supreme Court Proceedings). In the Supreme Court Proceedings, Mr and Mrs Frigger sought similar orders for compensation against these parties as the orders sought in these proceedings. The causes of action pleaded in the Supreme Court Proceedings as giving rise to the entitlement to these orders were:
(a)a breach by PSA of its constitution and the Corporations Act by only having one validly appointed director from June 2001 until 8 September 2008, and no directors from this date until 10 May 2001. The factual basis for this cause of action included an allegation that Mr Campbell-Smith was never a shareholder of PSA;
(b)a contention that the deed of company arrangement entered into by PSA was invalid because Mr Campbell-Smith and Mrs Banning were never appointed as directors. Mr and Mrs Frigger say that, as a consequence, PSA was or was deemed to have been wound up;
(c)the retention of the solicitors in various proceedings was invalid, given PSA could not authorise the appointment of solicitors as it only had one director;
(d)the defendant legal practitioners acted with malice and without reasonable or probable cause and, on that basis, are joint tortfeasors with PSA and Mrs Banning; and
(e)the statutory demand and COR 2 of 2010 were issued or commenced for ulterior purposes and were an abuse of process.
There are also pleaded claims against the legal practitioners for malicious prosecution of criminal proceedings and claims against the third defendant (the fourth defendant in these proceedings), alleging that he contacted solicitors for Mr and Mrs Frigger and made disparaging allegations against them which caused these solicitors to withdraw their legal services.
On 6 May 2022, on the application of the defendants, Master Sanderson delivered reasons for his decision to enter summary judgment for the defendants.[23] In essence, his Honour concluded that Mr Campbell-Smitha and Mrs Banning were validly appointed as directors of PSA by Mrs Banning in her capacity as a shareholder of the company. Given this conclusion, the actions by PSA including the appointment of solicitors, were valid and the plaintiffs' claims could not be maintained. In addition, Master Sanderson concluded that the plaintiffs' claims were statute barred or, in relation to the claims against the third to fifth defendants, had vested in the plaintiffs' trustee in bankruptcy.
[23] Frigger v Professional Services of Australia Pty Ltd [2022] WASC 158.
Mr and Mrs Frigger appealed this decision and were ordered to pay $50,000 as security for the costs of the appeal.[24] On appeal, for the first time, it was alleged that the PSA Memorandum produced to the court contained forged signatures.[25] This was not commented on nor considered by the Court of Appeal. On 21 October 2022, as a consequence of a failure to pay the security for costs into court, the appeal was dismissed.[26]
[24] Frigger v Professional Services of Australia Pty Ltd [2022] WASCA 119 (Frigger 2022 Appeal).
[25] Frigger 2022 Appeal [12 (1.1)].
[26] Affidavit of Belinda Merle Randall filed 15 February 2024 [16], 'BMR-10'.
Costs orders were made against Mr and Mrs Frigger in the Supreme Court Proceedings. These costs total $47,513.11 in respect of the fourth defendant,[27] $51,387.16 in respect of the fifth defendant,[28] and $36,131.37 in relation to the sixth defendant.[29] To date, these costs orders have not been satisfied.
[27] Affidavit of Simon Ross Ringrose filed 16 February 2024 [9] - 14], 'SRR-2', 'SRR-4'.
[28] Affidavit of Belinda Merle Randall filed 15 February 2024, 'BMR-4', 'BMR-7', 'BMR-11'.
[29] Affidavit of Belinda Merle Randall filed 15 February 2024, 'BMR-4'; Affidavit of Sean Francis Popperwell filed 16 February 2024 'SFP-19'.
Separately, Mr and Mrs Frigger agreed to pay the fifth defendant the sum of $506 for the discontinuance of CACV 81 of 2023 following an appeal from the decision of Archer J in CIV 1309 of 2021, which dismissed the application for a stay of the taxation of the defendants' bill of costs pending resolution of CIV 1644 of 2023.[30]
[30] Further affidavit of Belinda Merle Randall filed 29 February 2024 'BMR-1' - 'BMR-5'; Second further affidavit of Belinda Merle Randall filed 14 March 2024 'BMR-7'.
Mr and Mrs Frigger have refused to pay these costs because they contend the judgments in the Supreme Court Proceedings were obtained by fraud and are nullities.[31] There is no explanation as to why the costs that were agreed have not been paid. To date, the fourth to sixth defendants have not availed themselves of the enforcement processes available to them under the Civil Judgements Enforcement Act 2004 (WA) nor provided any explanation as to why they have not done so.[32]
[31] Affidavit of Belinda Merle Randall filed 15 February 2024, 'BMR-9', 'BMR-13'; Affidavit of Simon Ross Ringrose filed 16 February 2024 'SRR-3'.
[32] Affidavit of Angela Cecelia Theresa Frigger filed 7 March 2024 [17], [35].
The fourth to sixth defendants accept there are differences between the claims of Mr and Mrs Frigger in these proceedings and those in the Supreme Court Proceedings. However, in their submission, there is sufficient overlap between these proceedings and the Supreme Court Proceedings to justify a conclusion that it would be an abuse of the court process to enable these proceedings to continue until the costs orders in the Supreme Court Proceedings are satisfied.
Mr and Mrs Frigger reject this submission. They contend that the principles outlined in Jebb v Superior Lawns Australia Pty Ltd do not apply for two reasons. First, the subsequent proceedings in that case did not seek to challenge or impugn the orders in the previous proceedings. Second, in that case, Mr Jebb informed the court that he would only be able to pay the costs of the original proceedings if he was successful in the second proceedings. No similar statement has been made by Mr and Mrs Frigger.
While I accept there are factual distinctions between this case and that which confronted Vaughan J in Jebb v Superior Lawns Australia Pty Ltd, that, of itself, does not mean the principles summarised in that case do not apply. As was made plain by his Honour, the focus of the court in considering whether to grant a stay is on whether the causes of action raised in both sets of proceedings are the same or substantially similar.
For the following reasons, I consider that the circumstances of this case justify the ordering of a temporary stay of the proceedings until the costs orders made in the Supreme Court Proceedings are satisfied. I do not consider this finding to extend to the agreement by Mr and Mrs Frigger to pay the fifth defendant's costs in CACV 81 of 2023, as this was not reflected in any order of the court.
First, while the factual basis for the claims of Mr and Mrs Frigger in these proceedings differ from the focus of the Supreme Court Proceedings, the causes of action pleaded are substantially the same. In particular, both the Supreme Court Proceedings and these proceedings include allegations that:
(a)Mr Campbell-Smith was never a shareholder of PSA and PSA had no validly appointed directors;
(b)all actions by Mrs Banning and the fourth to sixth defendants on behalf of PSA in relation to Mr and Mrs Frigger were done without authority;
(c)each of the fourth to sixth defendants were responsible for the malicious prosecution of Mrs Frigger; and
(d)the fourth defendant has interfered with Mr and Mrs Frigger's retention of lawyers, which caused them to withdraw their legal services.
Second, the statement of claim filed in these proceedings specifically refers to CIV 1309 of 2021 and pleads that the compensation claimed in both proceedings is the same.[33]
[33] Statement of claim [59].
Third, a number of the issues identified by Master Sanderson and the Court of Appeal apply to the claims in these proceedings, including the limitation period and whether the claims have vested in the bankruptcy trustee.
Given these matters, it is my view that, notwithstanding the factual differences for some of the allegations raised, the causes of action pleaded by Mr and Mrs Frigger in these proceedings are substantially the same as those in the Supreme Court Proceedings. For this reason, I consider that it would be an abuse of the processes of the court to allow Mr and Mrs Frigger to pursue the claims in these proceedings while the costs orders in the Supreme Court Proceedings have not been satisfied.
In my view, the fact that Mr and Mrs Frigger in these proceedings seek an order setting aside the orders made in the Supreme Court Proceedings for fraud is not a sufficient basis on which the application should be refused. Until the costs orders are set aside, Mr and Mrs Frigger are required to comply with them. There is no suggestion that Mr and Mrs Frigger are unable to comply with these orders, are impecunious, or that granting the stay will stifle these proceedings. Rather, it appears that Mr and Mrs Frigger have simply chosen not to comply with the court's orders because of a view they have taken of the orders. On this basis, allowing Mr and Mrs Frigger to prosecute these proceedings against the defendants without first complying with the costs orders would bring the court processes into disrepute and be an abuse of the processes of the court.

Should Mr and Mrs Frigger be required to provide security for the costs of the proceedings?

The fourth to sixth defendants also seek a stay of these proceedings pending payment into court of the total amount of $50,000[34] pursuant to O 25 of the Rules of the Supreme Court 1971 (WA). This amount is sought up until any strike out application or application for summary judgment is bought in these proceedings.
[34] As noted at [5], the fourth and fifth defendants each seek $20,000 and the sixth defendant seeks $10,000.
The grounds on which security is sought are that Mr and Mrs Frigger's claims have low prospects of success, they have no realisable assets, and already are in default of the costs orders made in the Supreme Court Proceedings.
The court's discretion to order security for costs is broad. Whether security for costs will be ordered depends on the circumstances of each case.
In Crosswest Corporation Pty Ltd v Allstrike Enterprises Pty Ltd, Beech J summarised the factors that the court will take into account in considering whether to order security for costs, namely:[35]
[35] Crosswest Corporation Pty Ltd v Allstrike Enterprises Pty Ltd [2014] WASC 27 [14].
(i) the strength and bona fides of the plaintiff's case;
(ii) the likelihood of the plaintiff being unable to pay the defendant's costs;
(iii) whether the plaintiff's impecuniosity was caused by the defendant's conduct which is the subject of the claim;
(iv) whether the application for security is oppressive;
(v) whether the award of security would deny an impecunious applicant a right to litigate;
(vi) whether there are persons standing behind the plaintiff who are likely to benefit from the litigation;
(vii) whether the persons standing behind the plaintiff have offered any security or personal undertaking to be liable for the costs, and if so, the form of such an undertaking;
(viii) whether the applicant was in substance a plaintiff or the proceedings were defensive in the sense of directly resisting proceedings already brought or seeking to halt the defendant's self-help procedures;
(ix) whether the application for security has been brought promptly;
(x) whether the applicant has any rights which it can exercise against assets of the plaintiff to satisfy an order for costs in its favour; and
(xi) any factors relating to the public interest.

Another factor that is relevant to the court's consideration is that a security for costs order:[36]
is protective, in the sense of ensuring a defendant is not unreasonably exposed to a risk that if successful in defending the claim, the respondent will be nevertheless deprived of the benefit of the costs order by reason of a plaintiff being impecunious.
[36] Re Computer Accounting and Tax Pty Ltd (ACN 009 470 491) [No 4] [2023] WASC 90 [94].
Turning first to the strength and bona fides of Mr and Mrs Frigger's claim in these proceedings, the fourth to sixth defendants submit that, for four reasons, the prospects of success are low. First, the contentions in relation to PSA's registration have already been considered and rejected by Feutrill J in WAD 126 of 2022. The other claims advanced by Mr and Mrs Frigger were summarily dismissed by Master Sanderson in CIV 1309 of 2021.[37] Second, any claims that existed prior to 2021 vested in Mr and Mrs Frigger's trustee in bankruptcy. Third, the malicious prosecution claim has no prospects of success. Fourth, at least some of the claims are statute barred.
[37] Frigger v Professional Services of Australia Pty Ltd [2022] WASC 158.
Mr and Mrs Frigger dispute each of these contentions and submit that each of their claims have a high prospect of success.
In circumstances where the fourth to sixth defendants have foreshadowed an application to strike out the statement of claim and for summary judgment, it would be inappropriate to make any detailed comments as to the prospects of success of Mr and Mrs Frigger's claims. It is sufficient for the purposes of this application to note that:
(a)in WAD 126 of 2022, Feutrill J, on the assumption of many of the factual matters raised in these proceedings, concluded that the registration of PSA was not invalid ab initio. While this finding is subject to an appeal, at present, there is a decision of a court which suggests that at least some of the allegations raised in relation to the registration of PSA are unlikely to succeed; and
(b)there are, in my view, challenges associated with the claims of malicious prosecution. These include whether the prosecution was initiated by the fourth to sixth defendants against Mrs Frigger, given that it was based on a referral from the Court of Appeal; and that ultimately, Mrs Frigger was convicted, her appeal against conviction to the Court of Appeal has been dismissed,[38] and special leave has been refused.[39]
[38] Frigger v The State of Western Australia [2025] WASCA 7.
[39] Frigger v The State of Western Australia [2025] HCADisp 97.
The evidence before the court is that Mr and Mrs Frigger are the registered proprietors of 29 Gairloch Street, Applecross and that Mrs Frigger is the registered proprietor of two other properties. Each of these properties is encumbered by a mortgage (to H & A Frigger Pty Ltd, registered on 7 April 2014), a caveat lodged by their trustee in bankruptcy (on 10 October 2018) and a number of Property (Seizure and Sale) orders registered between 2014 and 2017.[40]
[40] Affidavit of Belinda Randall filed 15 February 2024 [5] - [8], 'BMR-1' - 'BMR-3'; Affidavit of Sean Francis Popperwell filed 16 February 2024 'SFP-1' - 'SFP-16'
Mrs Frigger's evidence is that there is significant equity in these three properties and that there is no basis for any suggestion that they would be unable to maintain these proceedings in the event that an order for security for costs were made.
Mr and Mrs Frigger are in default of the costs orders in the Supreme Court Proceedings. In my view, a relevant factor in the exercise of the court's discretion is that a defendant should not be required to incur costs defending an action brought by plaintiffs who, while having the means to satisfy costs orders, refuse to do so.
For two primary reasons, I am satisfied that it is appropriate to make an order for security for costs.
First, the fact that the real property of Mr and Mrs Frigger is encumbered makes it more difficult for the defendants to enforce any future costs order against these properties in the event they were successful in the proposed application to strike out the statement of claim or for summary judgment.
Second, while Mr and Mrs Frigger are not impecunious, they have refused to pay the costs orders that have been made against them in the Supreme Court Proceedings. In my view, this is a significant factor in favour of the application of the defendants that security of costs be ordered.
In relation to the amount that should be provided by Mr and Mrs Frigger, I accept the evidence of each of Ms Randall (on behalf of the fourth defendant), Mr Ringrose (on behalf of the fifth defendant) and Mr Popperwell (on behalf of the sixth defendant) as to their estimate of the costs of the foreshadowed applications. Relevantly, this evidence is that until the conclusion of the foreshadowed applications:
(a)the solicitors for the fourth defendant estimate they will incur costs of $15,339 (Items 1 and 4 of the draft bill of costs);[41]
(b)the solicitors for the fifth defendant estimate they will incur costs of $10,604 (Items 1-6 of the draft bill of costs);[42] and
(c)the solicitors for the sixth defendant estimate that the costs they will incur is $10,384.[43]
[41] Affidavit of Simon Ross Ringrose filed 16 February 2024, 'SRR-6'.
[42] Affidavit of Belinda Randall filed 15 February 2024 'BMR-14'.
[43] Affidavit of Sean Francis Popperwell filed 16 February 2024 [20], "SFP-21'.
It is apparent from the draft bills of costs that similar assumptions have been made in the preparation of each, including that the fourth to sixth defendants will jointly brief counsel to appear on the applications. On this basis, I accept that it is appropriate for an amount of $10,000 for each defendant, or $30,000 in total, be paid into court as security for the costs of these proceedings until the conclusion of the foreshadowed applications. I also consider it is appropriate that these proceedings be stayed until these amounts are paid into court.

Conclusion and orders

For the reasons that are set out above, I consider that:
(a)these proceedings should be stayed in the inherent jurisdiction of the court until Mr and Mrs Frigger have satisfied the outstanding costs orders in the Supreme Court Proceedings;
(b)Mr and Mrs Frigger are required to provide security for the fourth to sixth defendant's costs of these proceedings in the amount of $10,000 each, or $30,000 in total;
(c)the proceedings against the fourth to sixth defendants should be stayed until Mr and Mrs Frigger have paid into court the amount of security ordered in these proceedings.
In relation to costs, my preliminary view is that Mr and Mrs Frigger should pay the fourth to sixth defendants' costs of the application. However, I will hear from the parties before making final orders.

Annexure A

Annexure B

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KS
Associate to the Honourable Justice Hill
30 JUNE 2025