FEDERAL COURT OF AUSTRALIA
Frigger v Trenfield (Application to Amend) [2024] FCA 508
File number: WAD 128 of 2023 Judgment of: COLVIN J Date of judgment: 16 May 2024 Catchwords: PRACTICE AND PROCEDURE - pleadings - application for leave to amend - where amendments to application and statement of claim sought at stage in proceedings where matter is ready to be listed for final hearing - where proposed amendments introduce new claims and substantially expand existing claims - where introduction of amendments likely to cause substantial delay to resolution of dispute - held no prejudice to applicant if leave not granted - held interests of resolving dispute quickly and efficiently require proceedings to be confined to existing scope - leave granted in part to amend on limited terms - application otherwise dismissed Cases cited: Caason Investments Pty Ltd v Cao [2015] FCAFC 94; (2015) 236 FCR 322
Frigger v Trenfield (No 10) [2021] FCA 1500
Frigger v Trenfield (Application for Release from Undertaking) [2023] FCA 1284
Division: General Division Registry: Western Australia National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 56 Date of hearing: 2 May 2024 Counsel for the Applicants: The applicants appeared in person Counsel for the Respondent: Mr SD Majteles Solicitor for the Respondent: Johnson Winter & Slattery ORDERS
WAD 128 of 2023 BETWEEN: ANGELA CECILIA THERESA FRIGGER
First Applicant
HARTMUT HUBERT JOSEF FRIGGER
Second Applicant
AND: KELLY-ANNE LAVINA TRENFIELD
Respondent
ORDER MADE BY:
COLVIN J
DATE OF ORDER:
16 MAY 2024
THE COURT ORDERS THAT:
1.There be leave to the applicants to amend their amended statement of claim and their originating application in accordance with the reasons of the Court published on 16 May 2024.
2.The applicants' interlocutory application (described as an interim application) for leave to amend filed 29 February 2024 is otherwise dismissed.
3.Orders 1 and 2 of the orders made on 15 February 2024 are vacated.
4.On or before 22 May 2024, the applicants do file and serve a minute of proposed re‑amended statement of claim and a minute of proposed amended application in accordance with the reasons of the Court published on 16 May 2024.
5.On or before 22 May 2024 each party do file and serve a minute of proposed directions programming the application to a final hearing.
6.On or before 24 May 2024, the respondent do file and serve a schedule of any paragraphs in the minutes filed in accordance with order 4 of these orders which the respondent contends do not reflect the reasons of the Court published on 16 May 2023 and why.
7.The matter be listed for case management at 10.15 am AWST on 27 May 2024 at which time it is proposed to make orders as to the proposed amendments, the costs of the application…
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- AGLC
- Frigger v Trenfield (Application to Amend) [2024] FCA 508
- Case
- [2024] FCA 508
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the applicants should be granted leave to amend their statement of claim and originating application to introduce new claims and substantially expand existing claims. The court considered the principles of case management and the need to resolve disputes quickly, inexpensively, and efficiently. It also took into account the potential for substantial delay and the fairness to the respondent if the amendments were allowed.
The court held that while it was generally in the interests of justice to allow amendments to ensure that all substantive controversies between the parties are raised, it must also avoid prejudice to other parties and facilitate the just resolution of disputes. The court found that the proposed amendments would introduce a substantial new controversy that would likely delay the resolution of the existing issues. However, it granted leave to amend on limited terms, confining the proceedings to the existing scope to ensure a timely resolution of the dispute. The application for leave to amend was otherwise dismissed, and specific orders were made to manage the case moving forward.
The final orders included granting leave to amend the statement of claim and originating application on limited terms, vacating previous orders, setting deadlines for filing and serving re-amended documents, scheduling a case management conference, and imposing restrictions on the filing of further documents without leave. The matter was listed for a case management conference to make further orders regarding the amendments, costs, and listing the application for final hearing.
Orders
Orders of the court
1. There be leave to the applicants to amend their amended statement of claim and their originating application in accordance with the reasons of the Court published on 16 May 2024.
2. The applicants' interlocutory application (described as an interim application) for leave to amend filed 29 February 2024 is otherwise dismissed.
3. Orders 1 and 2 of the orders made on 15 February 2024 are vacated.
4. On or before 22 May 2024, the applicants do file and serve a minute of proposed re‑amended statement of claim and a minute of proposed amended application in accordance with the reasons of the Court published on 16 May 2024.
5. On or before 22 May 2024 each party do file and serve a minute of proposed directions programming the application to a final hearing.
6. On or before 24 May 2024, the respondent do file and serve a schedule of any paragraphs in the minutes filed in accordance with order 4 of these orders which the respondent contends do not reflect the reasons of the Court published on 16 May 2023 and why.
7. The matter be listed for case management at 10.15 am AWST on 27 May 2024 at which time it is proposed to make orders as to the proposed amendments, the costs of the application by the applicants for leave to amend and orders listing the application for final hearing.
8. No further documents be filed in these proceedings unless (a) an order has been made requiring the document to be filed; or (b) leave of the case managing judge has been given to file the document.
9. Any application for leave pursuant to order 8 may be sought by sending an email to the associate to the case managing judge with a draft of the document for which leave is sought together with short submissions of no more than three pages as to why leave should be given.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
Usually, where fairness to other parties can be maintained, the Court will allow amendments to ensure that all of the substantive controversy between the parties is raised in a single proceeding. However, the Court is also concerned to avoid the prejudice that can arise from applications to amend and to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: see, for example, the summary of the principles by Stewart J in Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (trading as Captain Cook College) (No 2) [2020] FCA 863 at [6].Separation of issues In appropriate cases, the Court will determine some issues before others. This is done where one issue has reasons for urgency associated with its resolution or its determination has wider significance or is likely to enhance the prospects of resolution of the whole controversy by way of agreement. The modern approach to case management is also concerned to ensure that those issues which require more prompt disposition are advanced over others, to the extent that can be achieved. In the present case, these matters have significance for how to approach the amendment application because, as has been explained, the case as presently formulated concerns whether, having regard to the employment terms of Ms Trenfield (and the circumstances of the renewal of her registration as trustee), she should be allowed to continue the administration of the estates and whether orders should be made to the effect that the administration was void ab initio. To the extent that orders to recover alleged loss and damage are sought, they are orders that are sought on the basis of alleged loss and damage to the estate arising from the administration of the estate by Ms Trenfield in circumstances where, so it is alleged, she should not have been the trustee by reason of an alleged conflict of interest created by the arrangements that she has entered into with FTI as her employer. What is now proposed by Mrs and Mr Frigger is the addition of claims that concern the way in which the estates have been administered, particularly in relation to the Portfolio. If that course is allowed, it will open up a substantial new controversy that is likely to delay significantly the adjudication of the existing issues in the proceedings which issues concern whether, having regard to her remuneration and employment arrangements with FTI, Ms Trenfield should be allowed to continue the administration. Indeed, Mrs and Mr Frigger have brought an application for discovery which they seek to pursue if the amendment application is allowed. They have also provided an unsworn form of affidavit which indicates the type of additional evidence that they will seek to lead if the amendments are allowed. It appears from that document that they seek to complain about the conduct of the previous proceedings before Jackson J, various steps that have been taken in relation to the Portfolio, the consequences for the bankruptcy of a recent decision of the Supreme Court of Western Australia and the response by Ms Trenfield to communications in December 2018 by lawyers who were then acting on her behalf.