Frigger v Trenfield (Application to Discontinue)

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FEDERAL COURT OF AUSTRALIA

Frigger v Trenfield (Application to Discontinue) [2025] FCA 640

File number: WAD 128 of 2023
Judgment of: COLVIN J
Date of judgment: 6 June 2025
Date of publication of reasons: 19 June 2025
Catchwords: PRACTICE AND PROCEDURE - application for leave to discontinue proceedings - where application for discontinuance brought days before final hearing due to commence - where reason for discontinuance was to commence new proceedings relying substantially on the same facts pleaded in the present proceedings - where application for discontinuance was brought to circumvent the outcome of an interlocutory decision refusing to adjourn the present proceedings on the basis of proposed expansion of claims - consideration of whether the Court may impose conditions which limit future proceedings being based on the same allegations and causes of action as discontinued proceedings - consideration of abuse of process by the applicants - consideration of prejudice to the respondent if final hearing adjourned and conditions for discontinuance not imposed on the applicants - consideration of an order for indemnity costs - leave for discontinuance allowed with conditions and costs to be paid by applicants to be assessed on a lump sum basis with a registrar acting as referee
Legislation:

Federal Court of Australia Act 1976 (Cth)

Federal Court Rules 2011 (Cth) rr 1.33, 1.35, 26.12, 26.14
Cases cited:

Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 5) [2021] FCA 246

Babscay Ptd Ltd v Pitcher Partners [2020] FCA 1610

Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52

Frigger v Professional Services of Australia Pty Ltd (No 6) [2024] FCA 1320

Frigger v Trenfield (No 10) [2021] FCA 1500

Frigger v Trenfield (No 11) [2022] FCA 326

Frigger v Trenfield (No 3) [2023] FCAFC 49

Frigger v Trenfield [2023] HCASL 110

Frigger v Trenfield (Application to Amend) [2024] FCA 508

Frigger v Trenfield (Application to Adjourn Final Hearing) [2025] FCA 71

Frigger v Trenfield (Application to Adjourn Final Hearing) (No 2) [2025] FCA 580

Greaves v CGU Insurance Ltd [2004] NSWSC 912

Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited (No 2) [2017] FCAFC 116

Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622

Royal Caribbean Cruises Ltd v Reed (No 4) [2021] FCA 614

SCI Operations Pty Ltd v Trade Practices Commission (1984) 2 FCR 113

Thirteenth Corp Pty Ltd v State [2006] FCA 979

Thunder Studios Inc (California) v Kazal (No 11) [2020] FCA 1656

Trade Practices Commission v Manfal Pty Ltd (No 3) (1991) 33 FCR 382

Tydeman v Asgard Group Pty Ltd, in the matter of Asgard Group Pty Ltd [2023] FCA 486

Wickham v Bells Securities Pty Ltd [2006] QSC 167

Wotton v State of Queensland [2009] FCA 758

Zetta Jet Pte Ltd v The Ship 'Dragon Pearl' (No 2) [2018] FCAFC 132; (2018) 265 FCR 290
Division: General Division
Registry: Western Australia
National Practice Area: Commercial and Corporations
Sub-area: Corporations and Corporate…
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Details
Case
[2025] FCA 640
Decision Date

CaseChat Overview and Summary

In the matter of Frigger v Trenfield, the applicants sought leave to discontinue proceedings against the respondent due to a change in circumstances that allowed them to commence new proceedings relying on substantially the same facts. The Federal Court considered the application brought just days before the final hearing, which was to commence on 9 June 2025. The applicants' intent to circumvent an interlocutory decision refusing to adjourn the proceedings based on an expansion of claims was a significant factor in the court's consideration. The legal issues involved whether the court could impose conditions limiting future proceedings based on the same allegations and causes of action as the discontinued proceedings, whether the applicants' conduct amounted to an abuse of process, and the potential prejudice to the respondent if the final hearing were adjourned without such conditions. Additionally, the court considered the possibility of an order for indemnity costs.

The court determined that leave to discontinue the proceedings should be granted, but with conditions to prevent abuse of process and to mitigate prejudice to the respondent. The applicants were prohibited from commencing any further proceedings against the respondent based on the allegations or asserting the same causes of action as those in the discontinued proceedings, effective from 9 June 2025. The court also ordered that the applicants pay the respondent's costs of the proceedings, to be assessed on a lump sum basis by a registrar acting as referee. Furthermore, the respondent was granted the right to recover reasonable legal costs from the applicants' bankrupt estates. The final hearing dates were vacated by operation of the orders.

Orders

Orders of the court

1. There be leave to the applicants to discontinue these proceedings on the terms of these orders.

2. Rule 26.14 of the Federal Court Rules 2011 (Cth) shall not apply to the discontinuance.

3. The applicants shall not commence any further proceedings in any court against the respondent based upon the allegations or asserting the same causes of action as those that were to be heard and determined commencing 9 June 2025, being those the subject of the minute of proposed amended application and the minute of proposed re‑amended statement of claim as were ordered on 2 July 2024 to stand as the amended application and re-amended statement of claim respectively (copies of which are appended to these orders).

4. Save to the extent already ordered, the applicants do pay the respondent's costs of the proceedings including any reserved costs.

5. The quantum of the costs the subject of order 4 shall be assessed on a lump sum basis by a registrar acting as referee after receiving written submissions and any affidavits from the parties in accordance with a timetable set by the registrar.

6. The registrar shall provide a copy of the referee report prepared pursuant to order 5 to the parties.

7. Any application under r 28.67(1) of the Federal Court Rules shall be filed and served within 21 days of the registrar providing a copy of the referee report as provided for by order 6.

8. Any further question as to whether the indemnity principle has been met in relation to the costs the subject of the referee report shall not be considered by the registrar and shall be determined at the time of considering whether to adopt the referee report.

9. The respondent is entitled to pay the reasonable legal costs incurred by the respondent in the conduct of the defence of these proceedings from the assets of the bankrupt estates of the applicants.

10. The filing of a notice of discontinuance is dispensed with.

11. By operation of these orders, the proceedings are discontinued.

12. The final hearing dates in these proceedings listed to commence on 9 June 2025 are vacated.

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

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