Frigger v Professional Services of Australia Pty Ltd (No 4)

[2023] FCA 980

FEDERAL COURT OF AUSTRALIA

Frigger v Professional Services of Australia Pty Ltd (No 4) [2023] FCA 980   

File number:

WAD 126 of 2022

Judgment of:

FEUTRILL J

Date of judgment:

17 August 2023

Catchwords:

PRACTICE AND PROCEDURE – interlocutory application for orders for production and inspection of documents in custody of the Court under r 24.24 of the Federal Court Rules 2011 (Cth) – where application is not made for a forensic purpose of any proceedings in this Court

Legislation:

Federal Court of Australia Act 1976 (Cth) ss 20A, 37M

Federal Court Rules 2011 (Cth) rr 24.12, 24.12(2)(b), 24.16, 24.24

Cases cited:

Fewin Pty Ltd v Burke [2016] FCA 503

Frigger v Professional Services of Australia Pty Ltd (No 2) [2023] FCA 93

Frigger v Professional Services of Australia Pty Ltd (No 3) [2023] FCA 520

Division:

General Division

Registry:

Western Australia

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Number of paragraphs:

9

Date of hearing:

Determined on the papers

Counsel for the Plaintiffs:

The plaintiffs did not appear

Counsel for the Defendants:

The defendants did not appear

ORDERS

WAD 126 of 2022

BETWEEN:

HARTMUT HUBERT JOSEF FRIGGER

First Plaintiff

ANGELA CECILIA THERESA FRIGGER

Second Plaintiff

AND:

PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD (ACN 082 879 641)

First Defendant

SANDRA MAY BANNING

Second Defendant

ORDER MADE BY:	FEUTRILL J
DATE OF ORDER:	17 AUGUST 2023

THE COURT ORDERS THAT:

1.The plaintiffs’ interlocutory application filed 14 August 2023 for orders for production and inspection of documents in the custody of the Court be dismissed.

2.There be no order as to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FEUTRILL J:

1. On 10 February 2023 I made orders, in effect, requiring the first defendant (PSA) to produce documents to the Court in the exercise of the Court's power under rr 24.12 and 24.16 of the Federal Court Rules 2011 (Cth): Frigger v Professional Services of Australia Pty Ltd (No 2) [2023] FCA 93. PSA produced the documents into the custody of the Court in accordance with those orders. At a hearing of the originating process held on 2 and 3 March 2023, certain of those documents were tendered into evidence and received as exhibits in the proceedings. On 3 March 2023, that hearing was adjourned part heard. On 24 April 2023 I made orders to facilitate the parties adducing expert evidence in these proceedings including permitting the parties to inspect, with nominated experts, exhibits tendered in evidence in these proceedings. On 23 May 2023, I made orders that certain issues be tried and determined separately before completion of the hearing that was adjourned part heard: Frigger v Professional Services of Australia Pty Ltd (No 3) [2023] FCA 520. On 28 June 2023, the separate questions were heard and I reserved judgment.

2. On 14 August 2023 the plaintiffs (Friggers) filed an interlocutory application for an order pursuant to r 24.24 of the Rules that certain exhibits be produced to the Friggers’ expert witness for inspection. That application is supported by an affidavit of Mrs Angela Cecilia Theresa Frigger sworn 14 August 2023. The Friggers have requested that the application be heard urgently on the papers. The application indicates that the Friggers intend to serve it on the defendants, but there is no evidence that they have done so.

3. Having regard to s 37M of the Federal Court of Australia Act 1976 (Cth), I am satisfied that the matter should be dealt with without an oral hearing in accordance with s 20A of the Act. The facts and the Friggers’ submissions are sufficiently clear from their correspondence with the Court and the application and affidavit in support. As, for the reasons which follow, the application will be dismissed, it is unnecessary for the defendants to make any written submissions on the application.

4. By letter dated 9 August 2023 addressed to the Registrar of the Perth Registry of the Court, the Friggers requested permission for their expert witness to inspect certain exhibits. The request was said to be made in accordance with para 6 of the orders of 24 April 2023. Given the orders for the hearing of separate questions and that the Court has reserved judgment on those questions, the Court refused the Friggers’ request. That is, the Friggers letter to the Court suggested that the proposed inspection related to a forensic purpose of these proceedings that has been rendered moot pending delivery of the reserved judgment on the separate questions.

5. The facts deposed in Mrs Frigger’s affidavit in support of the application reveal that the true purpose of the proposed inspection is to obtain evidence for use in proceedings the Friggers commenced against PSA in the Supreme Court of Western Australia by a writ of summons issued out of that court on 10 June 2023. Mrs Frigger deposes that the hearing of those proceedings is listed before Hill J on 23 August 2023. Therefore, the Friggers’ application is not made for the purpose of making evidence available in any proceedings before this Court.

6. Rule 24.24 of the Rules is in the following terms:

   24.24   Documents and things in custody of Court

   (1)A party who seeks production of a document or thing in the custody of the Court or of another court may inform a Registrar in writing, identifying the document or thing.

   (2)If the document or thing is in the custody of the Court, a Registrar must produce the document or thing:

   (a)in Court or to any person authorised to take evidence in the proceeding, as required by the party; or

   (b)as the Court directs.

   (3)If the document or thing is in the custody of another court, a Registrar must:

   (a)ask the other court to send the document or thing to that Registrar; and

   (b)after receiving it, produce the document or thing:

   (i)in Court or to any person authorised to take evidence in the proceeding as required by the party; or

   (ii)as the Court directs.

7. Rule 24.24 falls within Part 24 of the Rules dealing with subpoenas. It is to be read in that context and consistently with the other rules in that Part. Rule 24.12(2)(b) prohibits the issuing of a subpoena requiring the production of a document or thing in the custody of the Court or another court. Therefore, r 24.24 provides a mechanism by which relevant documents already in the custody of the Court for the purposes of one proceeding can be produced and tendered, if necessary, as evidence in another proceeding in the Court: e.g., Fewin Pty Ltd v Burke [2016] FCA 503 at [70(3)] (Markovic J). In short, r 24.24 is not applicable here because the Friggers do not seek production of the relevant exhibits for the purpose of any proceedings in this Court.

8. The relevant documents (exhibits) have already been produced to the Court for the purposes of these proceedings and tendered into evidence. The exhibits are in the custody of the Court for the forensic purpose of these proceedings and inspection of them may be permitted in accordance with the orders of 24 April 2023 or otherwise as the Court may direct for the purposes of these proceedings. However, that inspection, by necessary implication, is for the forensic purposes of these proceedings, not for the purposes of other proceedings in this Court or another court.

9. The application must be dismissed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.

Associate:

Dated:       17 August 2023