Frigger v Stephenson - [2024] WASC 80

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
Witham v Holloway (1995) 183 CLR 525

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 justice, being the first and second alleged contempts. Second, alleged interference with witnesses in a criminal proceeding being the third, fourth and fifth alleged contempts. Third, alleged interference with persons having a duty to discharge in a court of justice being the sixth, seventh, eighth and ninth alleged contempts.[1] The alleged contempts relate to criminal proceedings brought against Mrs Frigger as the accused, which went to trial in the District Court in August 2021.
[1] Frigger v Stephenson [2022] WADC 93 [19] - [37].
It is useful at the outset to describe the nature of contempt proceedings. Such proceedings are in the civil jurisdiction of the court and their procedural character is essentially civil rather than criminal.[2] A contempt can be a criminal contempt or a civil contempt. Contempt proceedings which are in essence punitive are usually understood as being criminal. Contempt proceedings which are in essence remedial or coercive are usually understood as being civil.[3] The distinction is based on the difference between proceedings which are remedial or coercive in the interest of a private individual (civil contempt) and proceedings in the public interest to vindicate judicial authority or maintain the integrity of the judicial process (criminal contempt). These proceedings appear to be in the nature of a criminal contempt. Even so, they are still essentially civil proceedings in nature, but require proof beyond a reasonable doubt.[4]
[2] Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375 [45], [66].
[3] Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 [61] ‑ [62], [179].
[4] The Owners of the Wills Building Strata Plan 38579 v Coleman [2018] WASC 219 [85].
The defendants have applied for security for costs, the first defendant by chamber summons dated 12 April 2023 and the second and third defendants by chamber summons dated 20 April 2023.
The first defendant's chamber summons seeks orders pursuant to O 25 r 1 of the Rules of the Supreme Court 1971 (WA). The second and third defendants' chamber summons did not identify the basis upon which the orders were sought. Order 25 r 1 refers to security for costs being given by a plaintiff. Mrs Frigger submits that given the nature of contempt proceedings she is not a plaintiff and O 25 r 1 does not apply. The submissions filed by the respective defendants each make clear that in addition to O 25 r 1, they also rely on the inherent jurisdiction of the court.[5] The Supreme Court has inherent jurisdiction to order security for costs in civil proceedings.[6] I will consider the respective applications in the inherent jurisdiction of the court. It is therefore not necessary to resolve Mrs Frigger's contention regarding the operation of O 25 r 1.
[5] First defendant's submissions dated 12 April 2023, par 6 and second and third defendants' submissions dated 19 April 2023, par 4. See also ts 90.
[6] 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 [22].
In relation to the applicable factors, as Allanson J observed in Kitay:[7]
The discretion to order that a party give security for costs is unfettered. There are several cases which have identified the factors commonly considered in such applications. None of the lists of relevant factors is, or claims to be, exhaustive, and which factors are relevant will vary from case to case. In exercising a discretion, the weight to be given to any circumstance depends not only upon its own intrinsic persuasiveness but upon the impact of the other circumstances which have to be weighed. (footnotes omitted)
[7] Kitay [23].
At a level of generality, factors which might be thought relevant to this application are:[8]
(1)the strength and bona fides of Mrs Frigger's case;
(2)the likelihood that Mrs Frigger is unable to pay the defendants' costs if they are successful;
(3)whether the application for security is oppressive;
(4)whether the award of security would deny Mrs Frigger the right to continue with the proceedings;
(5)whether the application for security has been brought promptly;
(6)whether the defendants (being the applicants for security for costs) have any rights which they can exercise against assets of Mrs Frigger to satisfy an order for costs made in their favour;
(7)any factors relating to the public interest.
[8] Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57 [6].
The defendants in their submissions sought to rely on the enunciation of the principles applicable to security for costs set out in George 218 Pty Ltd v Bank of Queensland Limited,[9] as summarised in McKessar v Pascoe as trustee for Samson Street Superannuation Fund.[10] However, those cases set out the principles in relation to security for costs on an appeal, not at first instance. There are differences, as is illustrated by the judgment of Murphy JA in George 218.[11] The defendants in particular relied on the reference in George 218 and McKessar that special circumstances do not have to be shown before an order for security for costs is made against an appellant.[12] The authority cited in George 218 for that proposition is Ailakis v Olivero,[13] which sets out that special circumstances do not have to be shown under the Supreme Court (Court of Appeal) Rules 2005 (WA). I deal further with the question of whether the defendants must demonstrate special circumstances to obtain an order for security for costs at [44] ‑ [59] below.
[9] George 218 Pty Ltd v Bank of Queensland Limited [2016] WASCA 56 [41] - [48].
[10] McKessar v Pascoe as trustee for Samson Street Superannuation Fund [2020] WASCA 106 [73].
[11] See in particular George 218 [43] - [47].
[12] George 218 [43] and McKessar [73(2)].
[13] Ailakis v Olivero [2013] WASCA 91 [11].
The principal factors pointed to by the defendants in support of their applications are they contend Mrs Frigger has a long history of not paying costs when ordered to do so and further, that her assets may not be readily amenable to enforcement so as to obtain payment. In that respect, there is a difference between Mrs Frigger having access to assets to satisfy the costs ordered to be paid (for example via a superannuation fund), compared to a defendant being able to execute against those assets to obtain payment of those costs. That Mrs Frigger has access to the asset does not necessarily mean that the asset can be executed against by other parties.
On the hearing of the application, Mrs Frigger did not put on any evidence as to her assets. She also does not contend that an order for security for costs would prevent her from continuing with the proceedings.
In respect of the merits of the claim, the parties did not make submissions concerning the merits. That being so, I proceed on the premise that the claims are not unarguable, without making any assessment as to their possible strength.

There was a myriad of material filed in respect of the applications. To resolve the applications, the material that is of most significance is that which relates to the costs orders made against Mrs Frigger, her explanations for not paying those costs and her assets. The applications were heard together and broadly covered the same issues. For completeness, I direct that the evidence in one application is evidence in the other.
I will start with the evidence regarding the costs orders which the defendants assert have not been paid.

Costs orders that have not been paid

The initial approach taken by the defendants, at least in part, was to rely on extracts from other judgments of this court, the District Court and the Federal Court as proof that Mrs Frigger had not paid costs the subject of orders made against her. This did concern me, from both an evidentiary perspective and from the perspective of whether that remained the current position.
I directed the defendants to file a schedule setting out the costs orders they asserted were unpaid and identifying the basis upon which they so contended. The first defendant's solicitors filed a schedule dated 27 September 2023 setting out the costs orders that were relied upon for the purposes of the first defendant's application.
Mrs Frigger filed an affidavit sworn by her on 19 October 2023 (Mrs Frigger's October affidavit) in response to the schedule. In Mrs Frigger's October affidavit, she quite candidly accepted that she had not paid many of the costs orders set out in the schedule and also, again quite candidly, set out the reasons why.
It is sufficient for present purposes to resolve these applications by reference to Mrs Frigger's response to the costs orders enunciated in the schedule.

Item 8

Item 8 of the schedule refers to a costs order made against Mrs Frigger in Federal Court WAD 549 of 2019.[14] The quantum of the costs order is in the sum of $18,000. This costs order is referred to in the judgment of Smith J in In the matter of Computer Accounting and Tax Pty Ltd [No 4],[15] which concerned Supreme Court COR 2 of 2010 in which Mrs Frigger and Mr Frigger were the applicants. In Mrs Frigger's October affidavit at par 3, she does not dispute that such a costs order was made, nor does she say that she has paid those costs. Rather, Mrs Frigger's explanation for not paying those costs is that she and Mr Frigger have appealed the factual and legal findings made in COR 2 of 2010. However, that is not the relevant proceeding in which the costs order was made. Such an appeal does not provide a valid explanation for Mrs Frigger not paying the costs order made in WAD 549 of 2019.

Item 9

[14] Frigger v Kitay (Liquidator) (No 3)[2020] FCA 861.

[15] In the matter of Computer Accounting and Tax Pty Ltd [No 4] [2023] WASC 90 [48].

Item 9 of the schedule refers to a costs order in the sum of $1,750 made in COR 2 of 2010. It seems that in those proceedings two costs orders in that sum were made, one on 2 April 2020 and the other on 15 October 2020.[16] It is not clear which order the defendants rely on. In any event, in Mrs Frigger's October affidavit at par 4, she does not dispute the making of an order for costs in the sum of $1,750, nor does she assert she has paid those costs. Rather, Mrs Frigger says she has applied for a stay of the order. The stay application had not been heard at the time of the hearing of these applications before me.

Item 10

[16] In the matter of Computer Accounting and Tax Pty Ltd [No 4] [53].

Item 10 of the schedule refers to a costs order in the sum of $2,000 made in Supreme Court CIV 1309 of 2021 on 30 June 2023. In Mrs Frigger's October affidavit at par 5, she asserts that the party in whose favour the costs order was made, Professional Services of Australia Pty Ltd, is in effect a nullity. She does not dispute the making of an order in the sum of $2,000, nor does she assert she has paid the costs or obtained a stay of its operation.

Items 11, 12, 15 and 16

Items 11, 12 and 15 of the schedule refer to costs orders made in Supreme Court CIV 2265 of 2006. Specifically, orders for costs were made against Mrs Frigger resulting in the following amounts being owed: $31,599.72 (item 11), $43,328.65 (item 12) and $1,500 (item 15). Dealing with the larger sums, in respect of the sum of $31,599.72, the material relied on by the defendants in their schedule reflects that a certificate of taxation for costs in that sum was issued on 9 May 2014.[17] In respect of the sum of $43,328.65, the material relied on in the schedule reflects that an order was made on 9 October 2015 fixing the costs in that amount.[18]
[17] Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd[No 10] [2015] WASC 380 [9] ‑ [10].
[18] Frigger v Banning [2016] FCA 359 [68(7)].
Item 16 refers to a costs order made in Supreme Court CIV 1727 of 2009 pursuant to which costs in the sum of $4,284 is owing. The material relied on in the schedule reflects that a certificate of taxation for costs in that sum was issued on 26 November 2014.[19]
[19] Frigger v Banning [68(2)].
Mrs Frigger's October affidavit addresses items 11, 12, 15 and 16 at pars 6 to 8. She does not dispute the costs orders were made as asserted in the schedule, nor does she assert she has paid those costs. Rather, she says the costs orders are in respect of a Mr Campbell‑Smith, who died in August 2018 and was diagnosed with advanced dementia in March 2015. She says this affects the validity of the orders made, the apparent suggestion being that his solicitors did not have authority to continue with the conduct of the proceedings. Even if there is any issue regarding the validity of the orders, Mrs Frigger has not obtained a stay of their operation, nor does she suggest that she has applied to set them aside. Furthermore, on Mrs Frigger's evidence, she did not become aware of Mr Campbell‑Smith's mental incapacity until 2019. That is many years after the costs the subject of the orders were fixed, and therefore does not provide any arguable explanation as to why Mrs Frigger had not paid those costs prior to 2019.

Item 13 and further matter raised regarding item 16

Item 13 is in respect of an order for costs for $64,461.88 made in CIV 1727 of 2009. It would seem that these costs became payable by at least late 2014. In that respect, the material relied on in the schedule identifies that a property search and seizure order was registered in November 2014 against a property of which Mrs Frigger was the registered proprietor.[20]
[20] Frigger v Murfett Legal [2016] WADC 71 [52(d)], [53(c)].
Mrs Frigger does not dispute that such an order was made, nor does she say that she has paid those costs. Rather, she contends that the professional indemnity insurer for Mr Lean has paid those costs, Mr Lean being a defendant to the proceedings in which the costs order was made. As I will explain, this contention is also said to apply to the costs the subject of item 16.
Mrs Frigger's affidavit sworn 11 August 2023 at par 10 is to the effect that she had been informed by Mr Lean and verily believed that the legal costs in the sum of $64,461.88 (item 13) and $4,284 (item 16) ordered to be paid in CIV 1727 of 2009 have been paid by Mr Lean's professional indemnity insurer, who has paid more than $400,000. The only documentary evidence that Mrs Frigger has filed in support of that proposition is an e‑mail exchange which Mr Lean had on 7 February 2022 with what appears to be an insurance broking firm.[21] Mrs Frigger relies on this e‑mail exchange in support of her contention that Mr Lean's insurer had paid the costs the subject of items 13 and 16. However, all the broker's e‑mail states is that we 'have confirmed with Proclaim the amount paid on this matter was $455,344.21 paid incl GST'. The e‑mail does not refer to the costs orders, either expressly or by implication.
[21] Mrs Frigger's affidavit sworn 11 August 2023, attachment AF3.
To enable Mrs Frigger to address the lack of documentary evidence, I granted Mrs Frigger leave to issue a subpoena to Mr Lean's insurer for the purposes of production of any documents recording such payment. The insurer's response to the subpoena via their solicitors was that no such costs have been paid. Further, the third defendant in his affidavit sworn 24 August 2023 at par 3 stated that the costs the subject of items 13 and 16 have not been paid by Mr Lean's professional indemnity insurer, nor have they been paid by Mrs Frigger or Mr Frigger.
Mrs Frigger also filed an affidavit sworn by her on 10 November 2023 attaching a proof of debt filed in her and Mr Frigger's bankruptcy by Mr Lean's insurer. The first item claimed is for a total of $68,740.83 in respect of a costs order in CIV 1727 of 2009. Mrs Frigger suggests there is a similarity between this amount and the quantum of costs the subject of item 13, which supports her proposition that the costs the subject of item 13 have been paid, albeit not by her.
There are two immediate difficulties with Mrs Frigger's proposition. First, the proof of debt is in respect of a claim by Mr Lean's insurer against Mr Frigger and Mrs Frigger arising out of a costs order made 9 February 2011, the costs being assessed at taxation on 23 September 2014. The claim is not referable to any costs having been paid by the insurer to any of the other parties in CIV 1727 of 2009. Second, the proof of debt identifies that the costs were initially assessed in the sum of $47,523.30, and then claims interest in the sum of $21,217.53 up to 20 July 2018 (the date Mrs Frigger and Mr Frigger were declared bankrupt). It is these amounts added together which result in a total of $68,740.83. The costs component is $47,523.30, which is not similar to the quantum of costs the subject of item 13. The proof of debt therefore does not support Mrs Frigger's claim that the costs the subject of item 13 have been paid.

For these reasons, on the material before me on these applications, I am satisfied that the costs claimed at items 13 and 16 have not been paid by Mr Lean's insurer. The evidence upon which Mrs Frigger relies is at such a level of generality that it cannot overcome the absence of any documents recording the payment. However, in the end, whether or not the insurer has paid the costs does not affect the determination of the applications before me. The applications are not for recovery of the costs the subject of items 13 and 16; they are for security for costs. Mrs Frigger accepts that she has not personally paid those costs. Also, Mrs Frigger does not suggest that the reason she did not previously pay the costs personally is because she thought Mr Lean's insurer had paid them. Rather, at least in respect of the costs the subject of item 13, Mrs Frigger's position is the reason she had not paid those costs is that she asserted other claims which in effect extinguished or overrode her liability to pay.[22] Further, Mrs Frigger does not suggest that she obtained a stay of the costs orders prior to Mr Lean telling her that his insurer had paid them. It is Mrs Frigger's attitude to the payment of the costs which is the pertinent consideration, not whether they have been paid by a third party unconnected to her.
[22] Hearing in relation to the subpoena issued to Proclaim, 8 March 2024, ts 183.

Additional matters

Mrs Frigger's October affidavit did not address the balance of the items in the schedule, although during the hearing on 1 November 2023 she accepted that a number of the costs orders had not been paid.
Mrs Frigger was declared bankrupt on 20 July 2018. She was discharged from her bankruptcy on 26 July 2021. During the final hearing of the applications, I raised with Mrs Frigger whether or not her bankruptcy had the effect of extinguishing her liability to pay the costs orders made pre‑bankruptcy. She does not accept that is the case, as she is contesting the validity of the bankruptcy itself.

Mrs Frigger's financial position

Mrs Frigger did not put on any affidavit evidence in these proceedings which sets out her current financial position, in particular her access to funds to meet a costs order if one was ultimately made in these proceedings.
It seems to be common ground between the parties that Mrs Frigger has access to funds. However, as I have already indicated there is a difference between Mrs Frigger having access to funds and the defendants being able to execute against assets to obtain payment for any costs order made in their favour.
Mr Singh's affidavit affirmed 14 September 2023 sets out the results of searches he conducted in respect of Mrs Frigger's assets. He caused a search to be undertaken at Landgate to identify any real property registered in Mrs Frigger's name. The search reported the following. Mrs Frigger is the registered proprietor as a joint tenant with Mr Frigger of a property in Applecross. It is the subject of a mortgage, four property seizure and sale orders and a caveat. Mrs Frigger is the registered proprietor of a strata lot in Bayswater. It is the subject of a mortgage, four property seizure and sale orders and a caveat. Mrs Frigger is the registered proprietor of a strata lot in Como. It is the subject of a mortgage, three property seizure and sale orders and a caveat.[23]
[23] Mr Singh's affidavit sworn 14 September 2023, pages 10 - 14.
Mrs Frigger has previously paid some costs orders made against her. In this respect, in Supreme Court CIV 2765 of 2010 she has paid:
(1)costs in the sum of $27,023, owing pursuant to an order made 3 May 2016;
(2)costs in the sum of $1,892, owing pursuant to an order made 25 September 2014; and
(3)costs in the sum of $1,892, owing pursuant to an order made 30 March 2016.
Mrs Frigger in her affidavit sworn 11 August 2023 says she paid these sums on 15 January 2018. The defendants accept those sums have been paid.
Further, Mr Singh's affidavit affirmed 12 April 2023 demonstrates that on occasion Mrs Frigger has paid money into court in compliance with orders for security for costs and on occasion she has not.

Disposition

The analysis I have undertaken at [18] to [30] above demonstrates that there are a number of costs orders in significant amounts that Mrs Frigger has not paid. She does not suggest that she never had the financial ability to pay the costs the subject of those orders. Rather, Mrs Frigger has put forward a variety of different explanations as to why she has not made payment. Mrs Frigger has never obtained a stay of those orders for costs, nor has she ever paid the amount of the costs orders into court pending resolution of the issues that she raises.
By way of particular example, Mrs Frigger's explanations that I have addressed at [21] to [23] above reflect a refusal on Mrs Frigger's part to pay costs orders that she does not agree with. The more substantive sums were ordered to be paid in 2014 and 2015; those costs orders have not been set aside or stayed. The principal reason now given by Mrs Frigger as to why she has not paid the costs is that the person in whose favour the order was made was mentally incapacitated. She therefore suggests his solicitors did not have authority to continue with the conduct of the proceedings. However, Mrs Frigger says she did not become aware of that mental incapacity until 2019. It therefore provides no explanation as to why she had not paid the costs prior to then.
In my view, Mrs Frigger demonstrates an attitude that if she disagrees with a costs order made against her, then she does not have to pay it. This is not a mere transient attitude; rather the evidence demonstrates Mrs Frigger has an entrenched attitude to that effect.
The inevitable consequence of Mrs Frigger's attitude is that when she does not pay, those parties in whose favour the order was made invariably need to execute against Mrs Frigger's assets to obtain payment. That process has obviously become a difficult one for Mrs Frigger's creditors, as is illustrated by the number of property seizure and sale orders against the properties registered in her name. Further, the searches which Mr Singh undertook did not reveal any particular assets which were readily amenable to execution so as to obtain payment of costs. The difficulty in obtaining payment of costs by Mrs Frigger is also illustrated by the fact that so many of the costs orders made against her over such a long period of time are unpaid.
Mrs Frigger is now discharged from her bankruptcy. She does not suggest that she will not be able to continue with these proceedings if an order for security for costs is made.
In Mrs Frigger's written submissions she submitted that 'exceptional circumstances must exist for security to be ordered in contempt of criminal proceeding, being a (quasi) criminal proceeding, given the public interest aspect of the proceedings in vindicating the courts' authority'.[24] The authority which Mrs Frigger cited in support of this proposition was the decision of the High Court in Witham v Holloway[25] at page 533.
[24] Mrs Frigger's written submissions dated 12 May 2023, par 29.
[25] Witham v Holloway (1995) 183 CLR 525.
Witham concerned a finding of contempt by reason of a failure to comply with court orders. The page that Mrs Frigger relies on is from the joint judgment of Brennan, Deane, Toohey and Gaudron JJ. Their Honours were addressing the nature of proceedings in the public interest and observed:[26]
One problem is that there is not a true dichotomy between proceedings in the public interest and proceedings in the interest of the individual. Even when proceedings are taken by the individual to secure the benefit of an order or undertaking that has not been complied with, there is also a public interest aspect in the sense that the proceedings also vindicate the court's authority. Moreover, the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests.
Nor can the dichotomy between proceedings in the public interest and proceedings in the interest of the individual be maintained on the basis that some cases involve an interference with the administration of justice and others merely involve an interference with individual rights. All orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or, simply, procedural orders, are made in the interests of justice. Non‑compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties.
[26] Witham (532 ‑ 533).
This passage makes clear that there is a public interest aspect of proceedings for contempt. However, the passage does not bear out Mrs Frigger's submission that 'exceptional circumstances must exist for security to be ordered in contempt of criminal proceeding'.
I raised with Mrs Frigger at the hearing on 1 November 2023 that Witham did not support her proposition. I then adjourned for a short period of time to allow Mrs Frigger to consider the basis upon which she put forward that proposition. After the adjournment Mrs Frigger referred me to three decisions, being Jazabas Pty Ltd v Haddad,[27] Maritime Services Board of New South Wales & Federal Airports Corporation v Citizens Airport Environment Association Inc[28] and Melville v Craig Nowlan & Associates Pty Ltd.[29]
[27] Jazabas Pty Ltd v Haddad [2010] NSWSC 594.
[28] Maritime Services Board of New South Wales & Federal Airports Corporation v Citizens Airport Environment Association Inc (1992) 83 LGERA 107.
[29] Melville v Craig Nowlan & Associates Pty Ltd [2002] NSWCA 32.
In Maritime Services Board, an application for security for costs was made in the New South Wales Court of Appeal. Kirby P (as his Honour then was) found that the special circumstances necessary to justify the making of an order for security for costs were not made out.[30] However, the Supreme Court Rules 1970 (NSW) at the time relevantly provided:[31]
The Court of Appeal may, in special circumstances, order that such security as the Court of Appeal thinks fit be given for the costs of an appeal to the Court of Appeal.
[30] Maritime Services Board of New South Wales (114).
[31] Maritime Services Board of New South Wales (108).
Thus, the relevant rule under which the application was made expressly provided that special circumstances are necessary. His Honour also found that in considering whether an order for security for costs should be made, it is appropriate to keep in mind the nature of the case and the public interest reasons which may lie behind the bringing of it.
Jazabas concerned an application to lift a stay of proceedings consequent upon the plaintiff's failure to pay security for costs as ordered. A relevant factor put before the court at first instance in opposition to an order for security for costs being made was that the proceedings were in the public interest. Fullerton J observed that is a relevant factor to take account of in exercising the discretion whether to order security.[32]
[32] Jazabas [49].
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).
Oshlack concerned whether there were special circumstances to depart from the ordinary rule as to costs, not whether an applicant for costs needed to demonstrate special circumstances to obtain an order for costs. Furthermore, as Gummow and Gaudron JJ observed in their Honours’ joint judgment:[39]
Having characterised the nature of the litigation as concerned with public rather than private rights, Stein J stated that 'something more' than the categorisation of proceedings as public interest litigation was needed before a successful defendant should be denied costs.
[39] Oshlack (91).
Oshlack does not stand for the proposition that where proceedings concern public rights, that is sufficient by itself to deny a successful defendant their costs.
Accordingly, the further cases relied on by Mrs Frigger also do not bear out the proposition in her written submissions that exceptional circumstances must exist for security to be ordered in contempt of court proceedings. Rather, the authorities to which Mrs Frigger has referred reflect that the nature of the proceedings is a relevant factor in assessing the discretion to order security for costs. An assessment of the nature of the proceedings takes account of both their characterisation generally, as well as the substantive allegations which are made.
On the hearing of the applications before me, significant attention was not directed to the substance of these proceedings. Thus, it is not possible to make any meaningful assessment of the public interest aspect of these proceedings, as opposed to the public interest aspect of contempt proceedings generally. Accordingly, while there is ordinarily a public interest aspect of contempt proceedings, that is not a factor to which I can attribute significant weight in the exercise of the discretion whether to grant security for costs. Furthermore, Mrs Frigger's primary position was that exceptional circumstances must exist for security to be ordered in these proceedings. However, as I have explained at [44] to [58] above, the authorities which Mrs Frigger relies on for that proposition do not bear it out.

Exercise of the discretion

In exercising the discretion whether to make an order for security for costs, I have had regard to the following factors.
I presume that the allegations made in the proceedings are not unarguable, without making any assessment as to their possible strength. Mrs Frigger has access to assets to make payment of costs if she chooses to do so. An order for security for costs will not deny her the right to continue with the proceedings and is not oppressive. Mrs Frigger has an entrenched attitude that if she disagrees with a costs order, she does not have to pay it. The inevitable consequence of this attitude is that for parties to obtain payment of costs orders made in their favour, they invariably need to execute against Mrs Frigger's assets. On the evidence before me, that is a difficult exercise. Contempt proceedings ordinarily have a public interest aspect to them, which is a factor to which I have regard. That factor does not however carry significant weight, in particular because the argument before me did not focus on the substance of the allegations made in these proceedings. Finally, while the applications have not been brought very promptly, nothing of significance has happened in the proceedings in the meantime. This is therefore not a situation where an application for security for costs is made after significant steps have been taken, which on occasion can weigh in the balance against ordering security for costs.
In my view, the factors I have referred to at [61] overwhelmingly favour the grant of security for costs in the defendants' favour. In particular, Mrs Frigger's attitude towards the payments of costs and the uncertainty surrounding the ability to execute against her assets are strong factors in support of the grant of security. They place the defendants in the invidious position that their chances of recovering costs are significantly affected by whether or not Mrs Frigger chooses to pay them. The force of these factors is not overcome by the nature of these proceedings.

Quantum of costs

In terms of the quantum of security for costs to be ordered, Mr Singh's affidavit affirmed 12 April 2023 annexed at JUS7 a draft bill of costs for the first defendant in the sum of $31,724 up to the conclusion of the proceedings, including one interlocutory application. The first defendant only sought security for costs in the sum of $20,000. Mr Alex D'Angelo's affidavit sworn 19 April 2023 annexed at ADA3 a draft bill of costs for the second and third defendants in the sum of $31,548. This related to two interlocutory applications (security for costs and a strike out application) and three directions hearings, but not preparation for and attendance at the final hearing. The second and third defendants seek security for costs in the sum of $25,000 up until the conclusion of the strike out application with leave to apply for further security.
There is some degree of uncertainty regarding the future conduct of the proceedings. The first defendant filed an application dated 20 September 2022 to dismiss Mrs Frigger's Notice of Motion. The second defendant filed an application dated 5 October 2022 to strike out the Notice of Motion, alternatively for summary judgment. The third defendant filed an application dated 5 October 2022 to dismiss the Notice of Motion. Mrs Frigger filed an application dated 21 October 2022 to amend the Notice of Contempt, the amendments being set out in a proposed Amended Notice of Contempt dated 17 October 2022. Mrs Frigger has indicated she intends to proceed with that application.[40]
[40] Mrs Frigger's submissions filed 10 November 2023, par 20.

None of the applications referred to at [64] have been heard. My initial view is that the defendants' applications should be heard at the same time as Mrs Frigger's application to amend. This will allow consideration to be given to the proposed amendments when assessing the defendants' applications. The need for, and the likely length of, a final hearing of these proceedings will be impacted by the outcome of these applications.
Given the uncertainty regarding the future conduct of the proceedings, I think the preferred course at this stage is to order Mrs Frigger to provide security for costs up to and including the hearing of the applications referred to at [64]. I consider the appropriate quantum of security is $17,000 for the costs of the first defendant, and $20,000 for the combined costs of the second and third defendants. In arriving at these sums, I have had regard to what is set out in the affidavits of Mr Singh and Mr D'Angelo as to their respective clients' anticipated costs and I also have had regard to the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020 and 2022. I have also had regard to the fact that the same legal practitioners act for the second and third defendants. There will be substantial overlap in the work done to advance their respective interests, however there still will be matters unique to the second and third defendants respectively.
For these reasons, I order that:
(1)Mrs Frigger give security for the first defendant's costs by paying the sum of $17,000 into court. This security is in respect of the costs up to and including the hearing of Mrs Frigger’s and the first defendant's applications referred to at [64].
(2)The first defendant has liberty to apply to seek further security for costs after the determination of the applications referred to in order 1.
(3)The proceedings against the first defendant be stayed pending compliance by Mrs Frigger with order 1.
(4)Mrs Frigger give security for the second and third defendants' costs by paying the sum of $20,000 into court. This security is in respect of the costs up to and including the hearing of Mrs Frigger’s and the second and third defendants' applications referred to at [64].
(5)The second and third defendants have liberty to apply to seek further security for costs after the determination of the applications referred to in order 4.
(6)The proceedings against the second and third defendants be stayed pending compliance by Mrs Frigger with order 4.
I will hear from the parties as to the date by which Mrs Frigger is to give security as ordered. I will also hear from the parties as to the costs of the applications for security for costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Lemonis
22 MARCH 2024