Frigger v Trenfield (No 5)

[2022] FCA 531

FEDERAL COURT OF AUSTRALIA

Frigger v Trenfield (No 5) [2022] FCA 531  

File number:	WAD 66 of 2021
Judgment of:	LOGAN J
Date of judgment:	5 April 2022
Catchwords:	PRACTICE AND PROCEDURE – application for leave to amend originating application – where application seeks to re-agitate previously adjourned or abandoned applications for interlocutory relief – where proceeding adjourned pending determination of proceedings in Supreme Court of Western Australia – where interests of justice still favour adjournment – application adjourned to a date to be fixed
Cases cited:	Kitay, in the matter of Frigger (No 2) [2018] FCA 1032
Division:	General Division
Registry:	Western Australia
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Number of paragraphs:	8
Date of hearing:	5 April 2022
Counsel for the Applicants:	The Applicants appeared in person
Counsel for the First Respondent:	Mr SD Matjeles
Counsel for the Second Respondent:	Mr P Edgar

ORDERS

WAD 66 of 2021

BETWEEN:

ANGELA CECILIA THERESA FRIGGER

First Applicant

HARTMUT HUBERT JOSEF FRIGGER

Second Applicant

AND:

KELLY TRENFIELD

First Respondent

MERVYN JOHN KITAY

Second Respondent

ORDER MADE BY:	LOGAN J
DATE OF ORDER:	5 APRIL 2022

THE COURT ORDERS THAT:

1.Leave be granted for the applicants to file in court the affidavit of Angela Cecilia Frigger, sworn 23 March 2022 and submissions lodged 30 March 2022.

2.The hearing of the question as to whether the applicants should be granted leave to amend their originating application in the terms proposed in exhibit 1 be adjourned to a date to be fixed.

3.Costs be reserved.

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

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

LOGAN J:

1. On 25 March this year, the applicants sought to file what was termed a “draft amended originated application,” marked now exhibit 1 for the purposes of today’s case management hearing.  On its face, that document proposes amendments to the originating application filed on 23 March 2021.  The effect of the proposed amendments is to seek now, by amendment, the following relief: 

   (1)An order setting aside:

   (a)sequestration orders made against each of the applicants; and

   (b)the judgment of the court as constituted by Colvin J in Kitay, in the matter of Frigger (No 2) [2018] FCA 1032;

   (2)Orders annulling the applicant’s bankruptcy; and

   (3)Costs for “compensation” from the second respondent for economic and non-economic loss allegedly caused by “malicious prosecution of the bankruptcy proceedings,” “deceit,” and “civil conspiracy”. 

2. Within the Registry, a Registrar formed the view that the draft amended originated application ought not to be permitted to be filed.  Instead, the question, having been drawn to my attention, the case was listed for case management hearing today.  That listing was in conformity with the applicants having put to the Registry in correspondence that there was particular urgency about resolving the question of amendment.  And indeed, a substantive hearing in respect of the relief sought by proposed amendment.

3. The applicants have, by leave today, filed supporting written submissions, as…