JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: FRIGGER -v- STEPHENSON [2024] WASC 80
CORAM: LEMONIS J
HEARD: 14 AUGUST 2023, 15 SEPTEMBER 2023 & 1 NOVEMBER 2023
DELIVERED : 22 MARCH 2024
FILE NO/S: CIV 2135 of 2022
BETWEEN: ANGELA CECILIA THERESA FRIGGER
Applicant
AND
TIMOTHY RICHARD STEPHENSON
First Alleged Contemnor
DAVID ABRAHAM LENHOFF
Second Alleged Contemnor
CAMERON VICTOR EASTWOOD
Third Alleged Contemnor
Catchwords:
Proceedings for alleged contempt of court - Alleged contemnors apply for security for costs - Consideration of applicable principles
Legislation:
Rules of the Supreme Court 1971 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA)
Result:
Security for costs ordered
Category: B
Representation:
Counsel:
| Applicant | : | In person |
| First Alleged Contemnor | : | J Singh |
| Second Alleged Contemnor | : | C E D'Angelo |
| Third Alleged Contemnor | : | C E D'Angelo |
Solicitors:
| Applicant | : | In person |
| First Alleged Contemnor | : | Barry Nilsson |
| Second Alleged Contemnor | : | Main Legal Studio Pty Ltd |
| Third Alleged Contemnor | : | Main Legal Studio Pty Ltd |
Case(s) referred to in decision(s):
Ailakis v Olivero [2013] WASCA 91
Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 10] [2015] WASC 380
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375
Frigger v Banning [2016] FCA 359
Frigger v Kitay (Liquidator) (No 3) [2020] FCA 861
Frigger v Murfett Legal [2016] WADC 71
Frigger v Stephenson [2022] WADC 93
George 218 Pty Ltd v Bank of Queensland Limited [2016] WASCA 56
In the matter of Computer Accounting and Tax Pty Ltd [No 4] [2023] WASC 90
Jazabas Pty Ltd v Haddad [2010] NSWSC 594
Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (In Liq) and Computer Accounting and Tax Pty Ltd (In Liq) [2022] WASC 350
Maritime Services Board of New South Wales & Federal Airports Corporation v Citizens Airport Environment Association Inc (1992) 83 LGERA 107
McKessar v Pascoe as trustee for Samson Street Superannuation Fund [2020] WASCA 106
Melville v Craig Nowlan & Associates Pty Ltd [2002] NSWCA 32
Oshlack v Richmond River Council (1998) 193 CLR 72
The Owners of the Wills Building Strata Plan 38579 v Coleman [2018] WASC 219
Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Pty Ltd [2013] WASC 57
LEMONIS J:
This proceeding is an action for contempt of court and other orders brought by the applicant, Mrs Frigger, against each of the three alleged contemnors (defendants). The proceedings were initially commenced by Notice of Motion filed in the District Court on 8 July 2022. The proceedings were remitted to the Supreme Court by order of Russell DCJ (as her Honour then was) made 7 October 2022.
Broadly speaking, the Notice of Motion alleges three separate categories of conduct. First, alleged interference with persons having roles in the administration of…
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- AGLC
- Frigger v Stephenson [2024] WASC 80
- Case
- [2024] WASC 80
- Decision Date
CaseChat Overview and Summary
The Court considered the principles established in prior case law, including the High Court decision in Oshlack v Richmond River Council, which held that costs should follow the event of the litigation unless there are exceptional or special circumstances. The Court noted that the primary judge had held that while public interest litigation per se may not justify a departure from the usual rule, other factors may exist that could lead to a conclusion that an order for security should not be made. The Court of Appeal had previously held that the primary judge's exercise of the discretion miscarried and re-exercised the discretion in respect of security for costs. The Court of Appeal held that the factors favouring the order for security outweighed those against it and accordingly dismissed the appeal.
The Court considered the evidence and arguments presented by both parties, including the question of whether the proceedings were of public interest. The Court observed that it was not enough that some members of the public might have a continuing interest in the substantive proceedings or their outcome for the evidence going to the public interest, either alone or in combination with other factors, to have the weight in the discretionary exercise contended for by the applicants. The Court also noted that neither side placed significant emphasis on the issue of whether or not the litigation was "public interest" litigation.
The Court held that the factors favouring the order for security for costs outweighed those against it and accordingly dismissed the application for security for costs. The Court did not make any orders as to costs in the underlying proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Her Honour also observed:[33]Neither am I persuaded that such evidence as there was bearing upon the public interest should have, or even could have, overwhelmed the exercise of discretion in their favour. It may have been otherwise were her Honour to have found that the proceedings were brought by the plaintiffs to advance or protect an identifiable public interest; or that the proceedings were of some continuing public importance or that they inured in some identifiable way to the public benefit; or that they might properly be described as comprehending a public interest cause or proceeding within the necessarily broad reach of cases that might be comprehended by that term (see Maritime Services Board of New South Wales & Federal Airports Corporation v Citizens Airport Environment AssociationInc(1992) 83 LGERA 107). In my view it was not enough that some members of the public might have a continuing interest in the substantive proceedings or their outcome (however active and concerned those people might be) for the evidence going to the public interest, either alone or in combination with other factors to have the weight in the discretionary exercise contended for by the plaintiff.[33] Jazabas [49]. Melville was an appeal to the New South Wales Court of Appeal against an order for security for costs made in the Land and Environment Court. The Court of Appeal held that the primary judge's exercise of the discretion miscarried. The Court of Appeal re‑exercised the discretion in respect of security for costs. By majority, the Court of Appeal held that the factors favouring the order for security outweighed those against it and accordingly dismissed the appeal.[34] In relation to the question of public interest, the primary judge had held that:[35]Whilst public interest litigation per se may be insufficient to justify a departure from the usual rule, other factors may exist from which the Court can conclude that an order for security should not be made.[34] Jazabas [132] (Heydon JA), [134] (Young CJ in Eq in agreement).[35] Jazabas [60]. In respect of the re‑exercise of the discretion in the Court of Appeal, Heydon JA noted that beyond the question of standing to bring the subject proceedings, 'neither side placed significant emphasis on the issue of whether or not the litigation was "public interest" litigation'.[36][36] Jazabas [130]. Subsequent to the final hearing, Mrs Frigger filed further written submissions which addressed the question of exceptional or special circumstances. In those submissions, Mrs Frigger also relied on the decision of the High Court in Oshlack v Richmond River Council.[37][37] Oshlack v Richmond River Council (1998) 193 CLR 72. Mr Oshlack had brought proceedings in the NSW Land and Environment Court against the Richmond River Council and a developer in which he challenged the Council's consent to the developer's development application. The primary judge (Stein J) dismissed the application and also determined that there should be no order as to costs. In that respect, the primary judge held there were sufficient special circumstances to depart from the ordinary rule that costs should follow the event of the litigation.[38] The Council appealed to the NSW Court of Appeal on the question of costs. The appeal was allowed and Mr Oshlack was ordered to pay the Council's costs at first instance and on appeal. Mr Oshlack appealed to the High Court. By majority, the appeal was allowed and the costs order of the primary judge was reinstated. [38] Oshlack (81).