Frigger v Professional Services of Australia Pty Ltd [No 4]

[2025] WASC 259

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   FRIGGER -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [No 4] [2025] WASC 259

CORAM:   HILL J

HEARD:   23 APRIL 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 - Memorandum of appearance and notice of intention to abide filed by director of company - Whether memorandum of appearance and notice of intention ought be struck out - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 12 r 1

Result:

The memorandum of appearance and notice of intention to abide filed in respect of the first defendant be struck out

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	:	Jackson McDonald
Fifth Defendant	:	Barry Nilsson Lawyers (WA)
Sixth Defendant	:	Popperwell & Co

Cases referred to in decision:

Chittleborough v Troy Group Pty Ltd [2024] WASCA 22

Frigger v Professional Services of Australia Pty Ltd [No 2] [2024] WASC 46

Kingsfield Holdings v Lawfirst [No 2] [2023] WASC 297

HILL J:

1. On 23 August 2023, the plaintiffs (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 administratix of her late husband Martin Paul Banning, and three legal practitioners who have acted for PSA over the years. 

2. Mr and Mrs Frigger's claim arises in relation to their contention that no persons subscribed 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 of 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. 

3. The relief sought by Mr and Mrs Frigger includes orders setting aside orders made in CIV 1309 of 2021 and CACV 55 of 2022, as well as damages (including compensatory damages and exemplary damages). 

4. On 6 November 2023, Mr and Mrs Frigger filed a chamber summons dated 30 October 2023 to strike out the appearances filed by the fourth to sixth defendants in this matter, and for default judgment, or alternatively, summary judgment.  On 22 November 2023, the summons was amended to seek similar orders in respect of all defendants.  On 31 January 2024, following the hearing of this application, I made orders striking out the appearances of all of the defendants from the court record (31 January Orders).[1]

   [1] Frigger v Professional Services of Australia Pty Ltd [No 2] [2024] WASC 46.

5. Appearances were filed by the fourth to sixth defendants between 31 January 2024 and 1 February 2024, and by PSA and Mrs Banning (in both capacities) on 9 February 2024.  On the same date that they filed their appearances, PSA and Mrs Banning filed notices of intention to abide the decision.

6. On 12 March 2024, the plaintiffs filed a re-amended chamber summons seeking orders to strike out both the appearance and notice of intention to abide filed by PSA, as well as for default judgment.  On 27 March 2024, I ordered that the application to strike out PSA's appearance be listed for hearing on 23 April 2024 and otherwise adjourned the remainder of the chamber summons until the delivery of my reasons on the application to strike out PSA's appearance.

7. Mr and Mrs Frigger say that the memorandum of appearance and notice to abide filed by PSA are invalid because the documents have been signed and filed by Mrs Banning, who is not a legal practitioner.  

8. Mrs Banning was served with the application but did not appear at the hearing of the application.  Counsel for the fourth to sixth defendants filed submissions on 16 April 2024 in relation to the application.  These submissions conceded that the memorandum of appearance filed on 9 February 2024 should be struck out, but contended that the solicitors that filed the previous memorandum of appearance on 21 November 2023 (Original PSA Appearance) were still the solicitors on the record for PSA.  On this basis, it was contended that the application should be dismissed. 

9. For the reasons that follow, the memorandum of appearance and notice of intention to abide filed by Mrs Banning on behalf of PSA on 9 February 2024 should be struck out.  As a consequence, no appearance has been entered by PSA in respect of these proceedings at this stage. 

Is the memorandum of appearance filed by Mrs Banning on behalf of PSA valid?

1. Pursuant to O 12 r 1(2) of the Rules of the Supreme Court1971 (WA) (Rules), a defendant to an action who is a body corporate may not enter an appearance or defend it 'otherwise than by a legal practitioner'. There is no power to dispense with this requirement or to waive or remedy the requirement in the exercise of the court's inherent jurisdiction.[2]

   [2] Kingsfield Holdings v Lawfirst [No 2] [2023] WASC 297 [1] - [2].

2. PSA is unquestionably a body corporate.  For this reason, Mr and Mrs Frigger say that:

   (a)PSA cannot therefore appear or participate in the proceedings without legal representation; and

   (b)the memorandum of appearance and notice to abide filed on the first defendant's behalf by Ms Banning are both invalid and should be struck out. 

3. In Mr and Mrs Frigger's submission, the court is required, under the Rules, to make the orders sought as there is no discretion to treat the documents that have been filed as merely irregular.

4. At the hearing before me, counsel for the fourth to sixth defendants agreed that the memorandum of appearance filed by PSA did not comply with the Rules and ought to be struck out.

5. The memorandum of appearance and notice to abide filed on behalf of PSA have been signed by Mrs Banning. There is no evidence before the court that Mrs Banning is a legal practitioner. On this basis, I accept that neither the memorandum of appearance nor notice of intention to abide filed by PSA have been filed in compliance with O 12 r 1 of the Rules. It follows that both should be struck out.

What is the effect of striking out the memorandum of appearance?

1. While counsel for the fourth to sixth defendants agreed the memorandum of appearance filed by Mrs Banning on 8 February 2024 should be struck out, the consequences of this order being made was not agreed. 

2. The fourth to sixth defendants relied on the Original PSA Appearance, together with O 8 r 2 of the Rules.  Order 8 r 2 provides that a solicitor representing a party in proceedings is taken to be the solicitor of the party until the final conclusion of the matter, unless a notice of change of solicitors is filed in accordance with that provision and served on all parties. 

3. Specifically, they contended that:

   (a)on 21 November 2023, the Original PSA Appearance was filed by Kean Legal Barristers and Solicitors (Kean Legal) on behalf of PSA;

   (b)the Original PSA Appearance was accepted by the court, recorded, and a copy was returned to PSA marked with an 'appearance entered' stamp;

   (c)pursuant to O 12 r 3 of the Rules, the stamped document was a certificate that an appearance had been entered on the day the stamp was affixed to this document; and

   (d)there is no evidence that Kean Legal has applied or obtained an order to withdraw from the proceedings.  The document filed by Mrs Banning on 9 February 2024 does not have the effect of removing Kean Legal as the solicitors for PSA from the record.

4. Counsel for the fourth to sixth defendants emphasised that the plaintiffs' previous application was brought pursuant to O 67A r 4(14) of the Rules (which provides that documents filed not in accordance with that provision's requirements are taken not to have been filed) and not O 2 r 2 (which permits the court to set aside steps taken in the proceedings for irregularity). In their submission, the 31 January Orders striking out the Original PSA Appearance was not a declaration that this document nor the certificate received by PSA that an appearance had been entered were nullities.[3]  On this basis, it was submitted that, pursuant to O 8 r 2 of the Rules, Kean Legal was and should be taken to be the solicitor on the record for PSA.

   [3] See the discussion in Chittleborough v Troy Group Pty Ltd [2024] WASCA 22 [29] - [36].

5. For the following reasons, I do not accept these submissions.

6. First, these submissions do not reflect the 31 January Orders.  Relevantly, on that date, I ordered that:

   It is declared that documents 4, 6, 7, 14, 19, 27, 30, 52, 53 and 54 should be taken not to have been filed pursuant to O 67A r 4(14) of the Rules of the Supreme Court 1971 (WA) and those documents be struck from the court record.

7. The effect of this order is that the Original PSA Appearance has been struck from the court record and no longer appears on the electronic file of the court. It is clear from O 67A of the Rules that the court's electronic file is the 'file' for these proceedings.

8. Second, there has been no appeal from the 31 January Orders.  While the reasons given for these orders have been overtaken by the Court of Appeal's decision in Chittleborough v Troy Group Pty Ltd,[4] the 31 January Orders have not been overturned or discharged.

   [4] Chittleborough v Troy Group Pty Ltd [2024] WASCA 22.

9. Third, at the hearing, significant emphasis was placed on the stamp 'appearance entered' on the Original PSA Appearance.  This same stamp has been affixed to the document filed by Mrs Banning on 9 February 2024.  This is consistent with the Original PSA Appearance having been struck from the record.

10. For these reasons, I do not accept that Kean Legal is the current solicitor on the record for PSA in these proceedings.  I find that, at present, no legal practitioner is on the record for PSA in these proceedings.

Conclusion and orders

1. Given the conclusions that I have reached in relation to both the Original PSA Appearance and the documents filed on 9 February 2024 by Mrs Banning on behalf of PSA, it is my view that documents 70 (the memorandum of appearance signed by Mrs Banning on behalf of PSA) and 71 (notice of intention to abide) must be struck out. 

2. In accordance with the orders of the court of 27 March 2024, the remainder of the plaintiffs' chambers summons dated 12 March 2024 (seeking orders for default judgment as against PSA and summary judgment against the remaining defendants) will be listed for directions at the same time and date on which these reasons are delivered.

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