Frigger v Stephenson
[2022] WADC 93
•28 OCTOBER 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: FRIGGER -v- STEPHENSON [2022] WADC 93
CORAM: RUSSELL DCJ
HEARD: 6 OCTOBER 2022
DELIVERED : 7 OCTOBER 2022
PUBLISHED : 28 OCTOBER 2022
FILE NO/S: CIVO 122 of 2022
BETWEEN: ANGELA CECILIA THERESA FRIGGER
Applicant
AND
TIMOTHY RICHARD STEPHENSON
First Defendant
DAVID ABRAHAM LENHOFF
Second Defendant
CAMERON VICTOR EASTWOOD
Third Defendant
Catchwords:
Contempt of court - Jurisdiction of District Court to punish for contempt of court - Application to remit proceeding to the Supreme Court
Legislation:
District Court of Western Australia Act 1969 (WA), s 8(1)(c), s 50, s 63, s 77
Rules of the Supreme Court 1971 (WA), O 16 r 1(1), O 55 r 5
Result:
Proceeding and defendants' applications in the proceeding remitted to the Supreme Court
Representation:
Counsel:
| Applicant | : | In person |
| First Defendant | : | Mr M D Cuerden SC |
| Second Defendant | : | In person |
| Third Defendant | : | Mr B A Jackson |
Solicitors:
| Applicant | : | In person |
| First Defendant | : | Barry Nilsson Lawyers (WA) |
| Second Defendant | : | Lenhoff & Hotz |
| Third Defendant | : | Holborn Lenhoff Massey |
Case(s) referred to in decision(s):
Chianti Pty Ltd v Leume Pty Ltd [2007] WASCA 270; (2007) 35 WAR 488
Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation Ltd) (1991) 5 WAR 208
Cullen v The Queen (Unreported, WASCA, Library No 6450, 25 September 1986)
Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69
John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351
R v Pismiris (Unreported, WASCA, Library No 6521, 18 November 1986)
Trimble v Piggott (1995) 14 WAR 329
RUSSELL DCJ:
[This judgment was delivered extemporaneously on 7 October 2022 and edited from the transcript to correct matters of grammar and to include complete references.]
Overview
On 6 October 2022, I heard submissions from the parties as to whether this proceeding should be remitted to the Supreme Court under s 77 of the District Court of Western Australia Act 1969 (WA) (District Court Act). I now deliver my reserved decision.
By ex parte notice of motion dated 8 July 2022 and filed on 13 July 2022, the applicant, Angela Cecilia Theresa Frigger, sought to move the court for orders that Timothy Richard Stephenson, David Abraham Lenhoff and Cameron Victor Eastwood now joined and named as the first, second and third defendants respectively, be committed to prison for contempt of court, or alternatively, that each of them be fined for contempt of court.
Mrs Frigger is referred to as the applicant and plaintiff in the various documents filed by the parties in this proceeding. I will refer to her in these reasons with no disrespect, by her name, Mrs Frigger. I will refer to each of the defendants by their name, or together as the defendants.
The notice of motion also seeks an order that each of the defendants be restrained from interfering, communicating, telephoning, emailing, meeting and/or discussing this proceeding with the staff and counsel of the office of the Director of Prosecutions of Western Australia [sic].
At the time the notice of motion was filed, 'this proceeding' was stated to be the criminal proceeding between The State of Western Australia and Angela Cecilia Theresa Frigger, IND 1112 of 2019. The notice could not be filed in that proceeding and this separate proceeding was commenced.
The grounds for Mrs Frigger's application are set out in a notice of contempt attached to the notice of motion, which I will refer to in further detail later in these reasons.
Each of the defendants have filed applications seeking orders that the notice of motion be dismissed. The primary submission advanced by each of the defendants is to the effect that this court does not have jurisdiction to deal with the applications in the notice of motion as none of the matters alleged in the notice of motion are within the provisions of s 63 of the District Court Act.
Each of the defendants make further submissions to the effect that, if their primary submission is not accepted, the notice of motion should be dismissed because it is manifestly defective and fails to comply with the requirements at law and under O 55 r 5 of the Rules of the Supreme Court 1971 (WA) (RSC) in relation to proceedings brought for punishment for contempt of court. It is submitted that the notice of contempt fails to adequately detail or particularise the alleged contempt in each case so as to enable the defendants to meet the charges against them.
The second defendant also seeks to strike out the claims set out in the notice of motion on the grounds they disclose no reasonable cause of action, alternatively are scandalous, frivolous or vexatious, or an abuse of process, or alternatively should be summarily disposed of.
Mrs Frigger accepts that this court does not have jurisdiction to deal with contempts of the type alleged in the notice of motion, or to restrain the defendants. For the reasons submitted by her, Mrs Frigger disputes that the alleged contempts are inadequately particularised and that her notice of motion should be dismissed.
By chamber summons filed on 20 September 2022, Mrs Frigger seeks an order pursuant to s 77 of the District Court Act that the proceeding be remitted to the Supreme Court.
The first defendant accepts that on the authority of the Full Court of the Supreme Court of Western Australia in Trimble v Piggott,[1] this court may remit a proceeding to the Supreme Court, even if this court were of the view that it does not have jurisdiction over it.
[1] Trimble v Piggott (1995) 14 WAR 329.
The first defendant opposes the remittal and submits, in essence, that the court could not and should not remit this particular matter to the Supreme Court because the notice of motion is so manifestly deficient, and it should instead be dismissed by this court.
The second and third defendants join in the submissions made on behalf of the first defendant and in opposing Mrs Frigger's application to remit the proceeding to the Supreme Court. They also submit this court should dismiss the notice of motion because it is manifestly defective and deficient.
I do not repeat in these reasons all of the submissions made by the defendants or by Mrs Frigger, or refer to all of the authorities they rely upon.
For the reasons I will outline, having considered the written and oral submissions made by or on behalf of each of the parties and the applicable authorities, the decision I reach in relation to Mrs Frigger's application to remit this proceeding to the Supreme Court is as follows:
1.This court does not have jurisdiction to hear and determine the motion or to make the orders sought in pars 1 - 4 of the notice of motion in relation to the alleged contempts of court, or the equitable relief sought in par 5 to restrain the defendants. This is accepted by each of the parties.
2.The matters raised in the notice of motion are matters falling within the jurisdiction of the Supreme Court. This is also accepted by each of the parties.
3.As such, in my view, it is not appropriate for this court to make any determination of the merits of the applications advanced or in relation to the orders sought in the notice of motion, or as to the sufficiency or otherwise of the details or particulars of the alleged contempts.
4.I do not accept the submissions made by the defendants to the effect that I should dismiss the proceeding on the basis the notice of motion and attached notice of contempt are manifestly inadequate or fundamentally flawed. That would require me to consider and make a determination of the adequacy of the notice and the particulars of the alleged contempts in circumstances where I have found this court has no power to do so.
5.Rather, the appropriate course is for the proceeding and the defendants' applications for dismissal to be remitted to the Supreme Court, which does have jurisdiction to deal with contempt of court of the nature alleged, and for that court to hear and determine the defendants' applications. The Supreme Court also has jurisdiction to consider and determine Mrs Frigger's application for orders to restrain the defendants.
The notice of motion
In considering whether this court has jurisdiction to deal with the notice of motion, it is necessary to consider the nature of the relief claimed in it.
Without repeating it word for word, the notice of motion states as follows:
1.Mrs Frigger was one of two members and directors of Computer Accounting and Tax Pty Ltd, which I will refer to as 'CAT', adopting Mrs Frigger's defined term in the notice.
2.CAT purchased a commercial property in Armadale from Professional Services of Australia Pty Ltd, which I will refer to as 'PSA', adopting the defined term in the notice.
3.Each of the defendants, Mr Stephenson, Mr Lenhoff and Mr Eastwood is a certified legal practitioner in the State of Western Australia who separately and/or together advised, and appeared for PSA in numerous legal proceedings between it and CAT and Mrs Frigger and her husband.
4.The notice alleges that, at an uncertain time, during the period between October 2009 and August 2010, Mr Stephenson, Mr Lenhoff and Mr Eastwood conspired with David William John, a certified legal practitioner in Western Australia, and Mervyn Jonathon Kitay, a registered insolvency practitioner. The alleged conspiracy is said to have entailed prosecuting civil proceedings against Mrs Frigger and her husband in which Mrs Frigger's credibility would be impugned by the defendants for the purpose of persuading judges of the Supreme Court to find the declarations of trust made by CAT over two commercial properties registered in that entity's name, including the Armadale property, had been backdated by Mrs Frigger.[2]
5.The notice of contempt provides some particulars of the alleged conspiracy, which is said to be contained in a letter from David John to Mervyn Kitay and in an attachment (AF 2) to an affidavit sworn by Mrs Frigger on 13 August 2019.[3]
6.The notice of contempt continues that, in furtherance of the alleged conspiracy, the defendants made false and unsubstantiated allegations of wrongdoing against Mrs Frigger and her husband in various proceedings between 2006 and 2013, as listed in par 6 of the notice of contempt.
7.The notice of contempt states that, in April 2014, the Honourable Justice Pullin referred his judgment in Frigger v Professional Services of Australia Pty Ltd [No 3][4] to the Office of the Director of Public Prosecutions (DPP) to investigate an allegation that Mrs Frigger attempted to pervert the course of justice.
8.The notice of contempt alleges nine separate contempts, which are broken down into three categories of alleged interferences as follows:
(a)the first is categorised as 'interference with persons having roles in the administration of justice';
(b)the second is categorised as 'interference with witnesses in a criminal proceeding'; and
(c)the third as 'interferences with persons having a duty to discharge in a court of justice'.
Alleged interference with persons having roles in the administration of justice
[2] Mrs Frigger submitted that the alleged conspiracy is background and does not form part of the alleged contempts.
[3] Mrs Frigger indicated at the hearing that she proposes to amend the notice to remove the reference to that letter, but has not yet made any application to amend as this court does not have jurisdiction to deal with the notice.
[4] Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69.
Under the first category, alleged interference with persons having roles in the administration of justice, there are two alleged contempts.
First alleged contempt
The first alleged contempt is alleged to arise from a letter sent by Mr Lenhoff to the Director of Public Prosecutions on 24 February 2015 (Lenhoff letter).
Second alleged contempt
The second alleged contempt is alleged to arise from a letter dated 5 May 2016 prepared by Mr Stephenson, addressed to the Director of Public Prosecutions and forwarded to Mr Eastwood by email on the same day.
It is alleged that on 5 May 2016, Mr Eastwood copied Mr Stephenson's letter onto Eastwood Sweeney Law letterhead and forwarded it to the DPP who in turn forwarded that letter (defined in the notice as the Stephenson/Eastwood letter) to WA Police.
It is alleged that the Lenhoff letter and the Stephenson/Eastwood letter had the intention of improperly pressuring a person having a role in the administration of justice to charge Mrs Frigger with perjury and constitutes conduct which had a tendency to interfere with the due administration of justice.
Alleged interference with witnesses in a criminal proceeding
Under the second category, alleged interference with witnesses in a criminal proceeding, three further contempts are alleged.
Third alleged contempt
The third alleged contempt is that, on 9 April 2019, Mr Stephenson met with Kevin Beard, a Western Australian police officer, who was a prosecution witness in Mrs Frigger's trial in August 2021 and provided and discussed evidence relating to the criminal charge against Mrs Frigger.
Fourth alleged contempt
The fourth alleged contempt is that, on 9 April 2019, Mr Stephenson met with Jason Lynn, a forensic accountant employed by Western Australian Police, and who was a proposed expert witness for the prosecution in Mrs Frigger's trial in August 2021, and provided evidence and discussed the criminal charge against Mrs Frigger.
Fifth alleged contempt
The fifth alleged contempt is that, on 23 April 2019, Mr Stephenson forwarded an email to Jason Lynn and Kevin Beard referring to discussions at the meetings with each of them referred to in the third and fourth alleged contempts. It is alleged that that email continued the discussion relating to evidence that the witnesses should rely on in the prosecution of Mrs Frigger and that attached to the email was a document prepared and signed by Mr Stephenson and filed in CIV 2265 of 2006, which listed documents upon which Mr Stephenson intended to cross‑examine Mrs Frigger.
It is alleged that the meetings and the email referred to in the third, fourth and fifth alleged contempts constitute interferences with witnesses before or during a trial in a manner calculated to influence them in the evidence that they are to give, which may prejudice and interfere with the due administration of justice.
Alleged interference with persons having a duty to discharge in a court of justice
Four further contempts are alleged under the third category, alleged interference with persons having a duty to discharge in a court of justice.
Sixth alleged contempt
The sixth alleged contempt is that, during Mrs Frigger's criminal trial in August 2021, Mr Stephenson approached counsel for the DPP in court and instructed counsel (the Stephenson instruction), and that counsel for the DPP listened to and engaged in oral communications with Mr Stephenson.
Seventh alleged contempt
The seventh alleged contempt is of a similar nature to the sixth alleged contempt. It alleges that, during Mrs Frigger's criminal trial in August 2021, Mr Lenhoff approached counsel for the DPP in court and instructed counsel (the Lenhoff instruction), and that counsel for the DPP listened to and engaged in oral communications with Mr Lenhoff.
It is alleged that consequent on the Stephenson instruction and the Lenhoff instruction, in opening submissions counsel made factual submissions, which are identified at par 19 of the notice of contempt and, which are alleged to be false.
Eighth alleged contempt
The eighth alleged contempt is alleged to arise from conduct said to have a tendency to interfere with the proper administration of justice. It is alleged that, during Mrs Frigger's oral submissions on her own behalf at her sentencing hearing on 26 November 2021, she observed Mr Stephenson approach counsel for the DPP and instruct counsel (the Second Stephenson instructions), which counsel listened to and engaged in oral communications with Mr Stephenson.
It is alleged that the Stephenson instructions, the Lenhoff instructions and the Second Stephenson instructions constitute interference with The State of Western Australia, being a party in proceeding IND 1112 of 2019, which is said to be conduct that had a tendency to interfere with the proper administration of justice.
Ninth alleged contempt
The ninth alleged contempt is said to arise as follows. During the period May to June 2022, Mrs Frigger applied for her passport to be returned to her in a hearing before his Honour Judge Stavrianou on 4 July 2022.
It is alleged that counsel for the DPP opposed that application and made submissions. It is asserted that information in those submissions could only be provided to the DPP by either Mr Stephenson, Mr Lenhoff or Mr Eastwood (the Bail Information) and is established by the series of contempts collectively by the defendants.
It is alleged that the Bail Information as it is defined in the notice of contempt constitutes interference with The State of Western Australia, being a party in proceeding IND 1112 of 2019, which is said to be conduct that had a tendency to interfere with the proper administration of justice.
The defendant's applications
The first defendant's application
By chamber summons filed on 20 September 2022, the first defendant, Mr Stephenson, applies for an order that the notice of motion be dismissed.
Second and third defendants' applications
On 19 September 2022, submissions were filed on behalf of the second and third defendants in support of an application to dismiss Mrs Frigger's application.
On 20 September 2022, the second defendant filed submissions and a minute of proposed orders in addition to and supplemental to the submissions filed on behalf of the second and third defendants on 19 September 2022.
The second defendant's submissions refer to an application to strike out, and the proposed orders are for:
(a)Mrs Frigger's claims as set out in the notice of motion to be struck out on the grounds that:
(i)they disclose no reasonable cause of action; or
(ii)alternatively are scandalous, frivolous or vexatious or are otherwise an abuse of process of the court; or
(b)alternatively, for summary judgment pursuant to RSC O 16 r 1(1), on the basis the action is frivolous or vexatious and the second defendant has a good defence on the merits.
At the time of filing of the submissions and proposed orders just referred to, neither the second defendant nor the third defendant had filed an application.
On 5 October 2020, chamber summonses were filed on behalf of both the second and third defendant, in which:
(a)the second defendant sought orders in the terms set out in the submissions and proposed orders filed by him; and
(b)the third defendant sought orders dismissing the notice of motion.
This court's jurisdiction to deal with the matters in the notice of motion
It is common ground between the parties that this court does not have jurisdiction to deal with the matters raised in the notice of motion.
That is also my view for the reasons I now outline.
I will deal firstly with the jurisdiction of this court in relation to contempt.
Contempt
For the reasons stated by Burt CJ in Cullen v The Queen,[5] the District Court has no inherent power to punish for contempts. This court's jurisdiction to punish for contempt of court is granted by and confined within the limits of s 63 of the District Court Act.
[5] Cullen v The Queen (Unreported, WASCA, Library No 6450, 25 September 1986) 7 - 8.
Section 63(1) addresses what are generally regarded as contempts in the face or hearing of the court. Such are contempts for which the presiding judge could, of his or her own motion, punish a contemnor on the spot or during the course of proceedings.
Such contempt is dealt with summarily by the presiding judge at the time of the conduct as provided in s 63 of the District Court Act. Section 63 does not contain any provisions or any basis or power upon which this court may hear and determine contempt proceedings other than as provided in that section.
Party-initiated contempts in the District Court are limited to those dealt with under the Civil Judgments Enforcement Act 2004 (WA), for example contempt of court by disobeying a judgment or order of the court. That is not this case.
Without descending into the merits of the notice of motion and the allegations made by Mrs Frigger in relation to the alleged contempts, none of the matters alleged in the notice of motion are contempts falling within the provisions of s 63 of the District Court Act. They are matters alleged to interfere with the due or proper administration of justice. To the extent they are matters alleged to have occurred in the course of a proceeding, no contempt was identified at the time of the alleged conduct.
This court does not therefore have jurisdiction to hear and determine the motion or to make the orders sought in pars 1 - 4 of the notice of motion in relation to the alleged contempts of court.
The Supreme Court's jurisdiction is not so confined. Its jurisdiction to punish for contempt extends to conduct which interferes with the administration of justice in a proceeding pending or being heard in any court, and for so‑called out of court contempts: see John Fairfax & Sons Pty Ltd vMcRae;[6] R v Pismiris,[7] and the authorities referred to in those decisions.
Equitable jurisdiction
[6] John Fairfax & Sons Pty Ltd vMcRae (1955) 93 CLR 351, 365.
[7] R v Pismiris (Unreported, WASCA, Library No 6521, 18 November 1986) 3 - 4.
Turning to this court's jurisdiction to grant the relief sought in par 5 of the notice of motion to restrain the defendants.
The District Court has the jurisdiction conferred on it by the District Court Act.[8] The District Court's civil jurisdiction is primarily set out in s 50 of the District Court Act. The District Court has no jurisdiction in relation to claims for equitable relief over and above the types of actions expressly set out in s 50 of the District Court Act.
[8] District Court Act s 8(1)(c).
The District Court's jurisdiction to grant an injunction or other equitable relief is limited to cases where such relief is ancillary or auxiliary or incidental to a claim otherwise within the jurisdiction of the court: see Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation Ltd);[9] Chianti Pty Ltd v Leume Pty Ltd.[10]
[9] Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation Ltd) (1991) 5 WAR 208, 217 - 219
[10] Chianti Pty Ltd v Leume Pty Ltd [2007] WASCA 270; (2007) 35 WAR 488, 505.
Mrs Frigger's application in the notice of motion to restrain the defendants from interfering, communicating, telephoning, meeting and/or discussing 'the proceeding' with the staff and counsel of the Office of the Director of Public Prosecutions of Western Australia, seeks equitable relief that is outside this court's jurisdiction. It is not relief that is ancillary or incidental to a claim within the court's jurisdiction.
The Supreme Court has jurisdiction to grant equitable relief of the nature sought.
Mrs Frigger's application to remit the proceeding to the Supreme Court
Having found that this court does not have jurisdiction to hear and determine the motion or to make the orders sought:
(a)in pars 1 - 4 of the notice of motion in relation to the alleged contempts of court; or
(b)for the equitable relief sought in par 5 to restrain the defendants,
in my view, it is not appropriate for me to make any determination of the merits of the applications advanced, or in respect of the orders sought in the notice of motion, or as to the sufficiency or otherwise of the details or particulars of the alleged contempts.
Having regard to the nature of the proceedings, and that the matters alleged and the orders sought fall within the jurisdiction of the Supreme Court, it appears to me that this proceeding and the applications filed by the defendants ought to be heard and determined by the Supreme Court.
I do not accept the submissions made by the defendants to the effect that I should dismiss the proceeding on the basis the notice of motion and attached notice of contempt are manifestly inadequate or fundamentally flawed. That would require me to consider and make a determination of the adequacy of the notice and the particulars of the alleged contempts in circumstances where I have found this court has no power to do so.
Rather, the appropriate course is for the proceeding and the defendants' applications for dismissal to be remitted to the Supreme Court, which does have jurisdiction to deal with contempt of court of the nature alleged, and for that court to hear and determine the defendant's applications and consider the adequacy of the notice and particulars of the alleged contempts. The Supreme Court also has jurisdiction to consider and determine the application to restrain the defendants.
Whilst the defendants submit that, if I were to dismiss the notice of motion, there is no bar to Mrs Frigger bringing a fresh application in the Supreme Court, that would in my view be contrary to the scheme of the legislation, as provided in s 77 of the District Court Act.
The defendants have responded to the notice of motion by substantive submissions. I infer from the material generated and the number of authorities cited that a significant amount of time, and no doubt costs, have already been spent by the parties in relation to this proceeding.
Remittal of the proceeding and the defendants' applications to the Supreme Court will avoid the time and costs expended by the parties being wasted and further time and costs being incurred by Mrs Frigger making a fresh application to the Supreme Court, and the defendants raising their objections again.
Once remitted, it will be a matter for the Supreme Court to consider the merits of the applications in the notice of motion and the sufficiency of the details or particulars provided in relation to the alleged contempts, the application to restrain the defendants and the defendants' applications to dismiss or strike out the notice of motion.
I will therefore make orders that:
1.This proceeding (the notice of motion) and the defendants' applications filed in the proceeding be remitted to the Supreme Court.
2.The costs of this proceeding and of the defendants' applications be in the cause of the remitted proceeding and applications.
As to the costs of Mrs Frigger's application to remit the proceedings to the Supreme Court, in the absence of agreement between the parties as to the appropriate order as to costs, the parties are each to file brief submissions in relation to the costs of that application by 21 October 2022, and I will deal with them on the papers.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LDB
Associate to Judge Russell
28 OCTOBER 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: FRIGGER -v- STEPHENSON [2022] WADC 93 (S)
CORAM: RUSSELL DCJ
HEARD: ON THE PAPERS
DELIVERED : 16 NOVEMBER 2022
FILE NO/S: CIVO 122 of 2022
BETWEEN: ANGELA CECILIA THERESA FRIGGER
Applicant
AND
TIMOTHY RICHARD STEPHENSON
First Defendant
DAVID ABRAHAM LENHOFF
Second Defendant
CAMERON VICTOR EASTWOOD
Third Defendant
Catchwords:
Costs - Costs of application to remit proceeding to the Supreme Court - Costs of litigant in person limited to recovery of actual out of pocket expenses reasonably incurred - Turns on own facts
Legislation:
District Court of Western Australia Act 1969 (WA), s 64(1), s 65
Rules of the Supreme Court 1971 (WA), O 66 r 1(1)
Result:
No order as to costs of the applicant's application to remit the proceeding to the Supreme Court
Representation:
Counsel:
| Applicant | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
Solicitors:
| Applicant | : | In person |
| First Defendant | : | Barry Nilsson Lawyers |
| Second Defendant | : | In person |
| Third Defendant | : | Holborn Lenhoff Massey |
Case(s) referred to in decision(s):
Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29
Briggs v Curtis Quick & Associates (Unreported, WASC, Library No 980141, 30 March 1998)
Cachia v Hanes (1991) 23 NSWLR 304
Cachia v Hanes (1994) 179 CLR 403
Frigger v Stephenson [2022] WADC 93
Hughes v St Barbara Ltd [2011] WASCA 234 (S)
Michael v Monitronix Ltd (Unreported, WASC, Library No 920044, 20 February 1992)
Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164
Oshlack v Richmond River Council (1998) 193 CLR 72
Stanley v Layne Christensen Company [2006] WASCA 56
Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388
Trimble v Piggott (1995) 14 WAR 329
RUSSELL DCJ:
Overview
These reasons should be read in conjunction with the reasons for decision in Frigger v Stephenson,[11] which were delivered ex temporaneously on 7 October 2022 and published on 28 October 2022.
[11] Frigger v Stephenson [2022] WADC 93.
By chamber summons filed on 20 September 2022, the applicant, Angela Cecilia Theresa Frigger, sought an order pursuant to s 77 of the District Court of Western AustraliaAct 1969 (WA) (District Court Act) that this proceeding be remitted to the Supreme Court (Application). The Application was opposed by each of the defendants, Timothy Richard Stephenson, David Abraham Lenhoff and Cameron Victor Eastwood.
I heard the Application on 6 October 2022 and, on 7 October 2022 made orders that:
1.This proceeding (the notice of motion) and the defendants' applications filed in the proceeding be remitted to the Supreme Court.
2.The costs of this proceeding and of the defendants' applications filed in the proceeding be in the cause of the remitted proceeding and applications.
As to the costs of the Application, I ordered that, in the absence of agreement between the parties as to the appropriate orders as to costs, the parties were each to file brief submissions in relation to the costs of the Application, and I would deal with them on the papers.
Submissions in relation to costs were filed by each of the parties other than the second defendant. Having considered the submissions filed (which I do not repeat in full in these reasons), for the reasons that follow, I have decided there should be no order as to costs in relation to the Application.
Relevant principles relating to costs
The following general principles relating to costs are well established.
Costs are in the discretion of the court. The court's discretion to award costs must be exercised judicially but is otherwise not confined.[12]
[12] Oshlack v Richmond River Council (1998) 193 CLR 72, 21 - 22, 134; Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 [24] - [25]; Hughes v St Barbara Ltd [2011] WASCA 234 (S) [5]; Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388 [48] ‑ [50].
Costs will usually follow the event so that generally the court will order that the successful party to any action or matter recover their costs.[13]
[13] Rules of the Supreme Court 1971 (WA) O 66 r 1(1).
A successful litigant in person cannot recover as costs any compensation for time spent by them in preparing and conducting their case, though may recover actual out of pocket expenses reasonably incurred.[14]
[14] Cachia v Hanes (1994) 179 CLR 403. See also Michael v Monitronix Ltd (Unreported, WASC, Library No 920044, 20 February 1992) (Wallwork J) referring to Cachia v Hanes (1991) 23 NSWLR 304, which was affirmed by the High Court in Cachia v Hanes (1994) 179 CLR 403.
Orders sought and submissions made by the parties in relation to costs
The applicant
The applicant seeks an order that her costs, fixed in the sum of $83.50, being the filing fee for the Application, be paid jointly and severally by the defendants.
The applicant submits, in effect, that:
(a)she applied to remit the proceeding to the Supreme Court within days of becoming aware that the District Court does not have jurisdiction to hear her motion for contempt;
(b)the defendants accepted that the District Court did not have jurisdiction and conceded that it could remit the proceeding to the Supreme Court, but nevertheless opposed the Application; and
(c)having succeeded in the Application, costs should follow the event.
First defendant
The first defendant, Timothy Richard Stephenson, seeks an order that the applicant pay his costs of the Application to be taxed if not agreed, and paid forthwith. The first defendant submits, in effect, that:
(a)having commenced this proceeding in the District Court in circumstances where this court did not have jurisdiction to hear the notice of motion, the applicant sought the indulgence of the court to have the proceeding remitted to the Supreme Court;
(b)where a party seeks an indulgence of the court, the party will generally be required to pay the costs of the application, including costs thrown away and will not normally receive the costs of the application;[15]
(c)the first defendant accepted that the court may remit the proceeding to the Supreme Court, even if of the view that it did not have jurisdiction to hear the motion; and
(d)the first defendant did not act unreasonably and should be entitled to recover his costs of the Application.[16]
Second defendant
[15] Referring to Briggs v Curtis Quick & Associates (Unreported, WASC, Library No 980141, 30 March 1998); Stanley v Layne Christensen Company [2006] WASCA 56 [51] - [52].
[16] Briggs v Curtis Quick & Associates [14].
The second defendant, David Abraham Lenhoff, is a legal practitioner and represented himself in relation to the Application. He informed the court that he would not be filing submissions as to the costs of the Application 'by reason of the decision of the High Court in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29'. The second defendant does not elaborate, though I infer that, consistent with the rationale in Bell Lawyers Pty Ltd v Pentelow, he does not seek any order to recover any professional costs for representing himself.
Third defendant
The third defendant, Cameron Victor Eastwood, seeks an order that the applicant pay the third defendant's costs of the Application on a party/party basis, to be taxed if not agreed and to be paid forthwith.
The third defendant referred to s 64(1) and s 65 of the District Court Act and submitted, in effect, that as a result of the applicant bringing the motion in the District Court and the Application, he has unnecessarily incurred significant costs in relation to the jurisdictional issue, which ought to be paid by the applicant as her conduct was unreasonable.
Section 64(1) of the District Court Act provides:
64.Costs of action or proceeding
(1)Except as hereinafter provided in this Act, the costs of any action or proceeding shall be in accordance with any costs determination and shall be paid by or apportioned between the parties in such manner as the District Court judge directs and in default of such a direction shall abide the event.
Section 65 of the District Court Act provides:
65.Costs where the Court has no jurisdiction
Where an action or matter is brought in the Court over which the Court has no jurisdiction, the District Court judge shall order the action or matter to be struck out, and the Court has power to award costs to the same extent, and recoverable in the same manner, as if the Court had jurisdiction therein and the plaintiff had not appeared in Court or had so appeared and failed to prove his demand or claim.
Appropriate order as to costs
I am not satisfied it is appropriate in this case to order the applicant to pay the costs of the Application, as submitted by the first and third defendants.
The applicant filed the Application on 20 September 2022, within three business days of when she says she became aware that this court did not have jurisdiction to grant the relief or make the orders sought in the notice of motion. The Application was heard on 6 October 2022, 11 business days after it was filed and served.
The defendants each filed submissions before the hearing of the Application, in which they each accepted that this court did not have jurisdiction to grant the relief or make the orders sought in the notice of motion.[17] However, each of the defendants opposed the Application.
[17] First defendant's submissions to dismiss notice of motion to punish for contempt, filed 20 September 2022; Submissions in support of application to dismiss application of Angela Cecilia Theresa Frigger on behalf of the second and third defendants, filed 19 September 2022.
The first defendant accepted in written submissions in opposition to the Application filed on 21 September 2022 that, having regard to the decision in Trimble v Piggott,[18] this court may remit a proceeding to the Supreme Court, even if this court were of the view that it does not have jurisdiction over it. However, the first defendant opposed the remittal and submitted, in essence, that this court should not remit this particular matter to the Supreme Court, but should dismiss it because the notice of motion is so manifestly deficient. The first defendant expanded those submissions at the hearing of the Application on 6 October 2022.
[18] Trimble v Piggott (1995) 14 WAR 329.
The second and third defendants joined in the submissions made on behalf of the first defendant, and in opposing the Application.
I did not accept the submissions made by the defendants to the effect that I should dismiss the proceeding on the basis the notice of motion was manifestly defective or deficient. As noted in my reasons for decision in Frigger v Stephenson,[19] that would have required me to consider and make a determination of the adequacy of the notice and the particulars of the alleged contempt in circumstances where I had found this court had no power to do so.
[19] Frigger v Stephenson [61].
I do not consider this is a case in which it can be said that an indulgence has been sought and granted. It is not comparable to, for example seeking leave to amend a pleading, where costs of the application to amend and thrown away by the amendment would ordinarily be paid by the party seeking the leave to amend. Rather, the applicant has made an application, as provided in s 77 of the District Court Act to remit the proceeding because it is outside the jurisdiction of the District Court, but within the jurisdiction of the Supreme Court.
Nor is this a case to which s 64(1) or s 65 of the District Court Act applies, as submitted by the third defendant.
Section 64 relates to the costs of an action or proceeding. The proceeding has been remitted to the Supreme Court and the costs of the proceeding ordered to be in the cause of the remitted proceeding.
Section 65 applies where an action or matter is brought in the District Court over which the court has no jurisdiction and is struck out. That is not this case. The proceeding has not been struck out, but remitted to the Supreme Court to be heard and determined in that jurisdiction.
To the extent that any costs have been unnecessarily incurred, it is by the defendants in opposing the Application, in circumstances where each of them accepted that this court did not have jurisdiction to grant the relief or make the orders sought in the notice of motion, and accepting this court could remit the proceeding.
Though costs will usually follow the event so that generally the court will order that the successful party to an application recover their costs, the applicant in this case is a litigant in person. Her claim for costs is limited to recovering her out of pocket expenses, being the filing fee of $83.50, which is recorded as having been paid by her in respect of the Application.
In the circumstances of this case, where that expense was incurred by the applicant in bringing the Application because she had issued the proceeding in the wrong forum, the defendants should not be required to pay that expense.
I therefore make no order as to costs in relation to the Application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LDB
Associate to Judge Russell
16 NOVEMBER 2022
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