Frigger v Trenfield (No 3)

[2020] FCA 150

FEDERAL COURT OF AUSTRALIA

Frigger v Trenfield (No 3) [2020] FCA 150

File number:

WAD 141 of 2019

Judge:

JACKSON J

Date of judgment:

17 February 2020

Catchwords:

PRACTICE AND PROCEDURE - application for leave to amend originating application - discretion to grant leave - application dismissed

Legislation:

Federal Court of Australia Act 1976 (Cth) s 37M

Insolvency Practice Rules (Bankruptcy) 2016 (Cth) rr 42‑10, 42‑15

Cases cited:

Frigger v Trenfield [2019] FCA 1746

Frigger v Trenfield (No 2) [2019] FCA 2009

Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550; (2018) 359 ALR 564

Date of hearing:

17 February 2020

Registry:

Western Australia

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

16

Counsel for the Applicants:

The applicants appeared in person

Counsel for the Respondents:

Mr SD Majteles

Solicitor for the Respondents:

Carles Solicitors

ORDERS

WAD 141 of 2019

BETWEEN:

ANGELA CECILIA THERESA FRIGGER

First Applicant

HARTMUT HUBERT JOSEF FRIGGER

Second Applicant

AND:

KELLY-ANNE TRENFIELD

First Respondent

PAUL ANTHONY ALLEN

Second Respondent

JUDGE:	JACKSON J
DATE OF ORDER:	17 FEBRUARY 2020

THE COURT ORDERS THAT:

1.The applicant's interlocutory application for leave to amend the originating application to include a defamation claim is dismissed.

2.Costs are reserved.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Edited from the transcript)

JACKSON J:

1. The applicants have applied for leave to amend the originating application in these proceedings.  They wish to add a claim for what are described as non‑economic damages for defamatory imputations alleged to have been published in a letter which the first respondent, Ms Trenfield, sent to the Australian Financial Complaints Authority on 27 September 2019.

2. The background to, and issues in the present proceeding, have been comprehensively described in Frigger v Trenfield [2019] FCA 1746 and Frigger v Trenfield (No 2) [2019] FCA 2009, and I will not repeat those descriptions here. Suffice to say that the present issues do not include any question of defamation, although for reasons I will mention, there is some overlap between the issues that are raised by the proposed defamation claim and the present issues in the proceedings.

3. It is not necessary to go into the content of the letter of 27 September 2019, which was before the court, or the nature of the defamatory imputations with the Friggers wish to allege arise from that letter, in any detail.  The letter was sent in response to a complaint which the Friggers sought to make to the Australian Financial Complaints Authority in relation to the conduct of Commonwealth Securities Limited (CommSec) in respect of the share portfolio administered by that company, which is described in more detail, in particular, in Frigger v Trenfield (No 1).

4. The applicants say that in that letter, Ms Trenfield made statements concerning the beneficial ownership of the shares which are comprised in the ComSec portfolio, which were capable of…