Frigger v Trenfield (No 5)

Case [2020] FCA 827

FEDERAL COURT OF AUSTRALIA

Frigger v Trenfield (No 5) [2020] FCA 827

File number: WAD 141 of 2019
Judge: JACKSON J
Date of judgment: 16 June 2020
Catchwords: PRACTICE AND PROCEDURE - interlocutory application - contempt of court - alleged breach of implied undertaking not to use certain documents obtained in the course of proceedings for collateral or ulterior purpose - affidavits found to have been lodged voluntarily and not pursuant to compulsion of the court - no breach of implied undertaking - respondent not guilty of contempt of court - interlocutory application dismissed
Legislation:

Bankruptcy Act 1966 (Cth) s 77

Federal Court (Bankruptcy) Rules 2016 (Cth) rr 1.04, 2.01, 3.01, 8.01

Federal Court Rules 2011 (Cth) rr 8.01, 8.05
Cases cited:

Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98

Bashour v Australian and New Zealand Banking Group Limited [2017] FCA 163

Bourns v Raychem Corporation (No 3) [1999] 1 All ER 908

Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509

Coco v AN Clark (Engineers) Ltd [1969] RPC 41

CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1

Davey v Silverstein [2019] VSC 724

De Santis v Aravanis [2014] FCA 1243; (2014) 227 FCR 404

Deputy Commissioner of Taxation v Rennie Produce (Aust) Pty Ltd (in liq) [2018] FCAFC 38; (2018) 260 FCR 272

Esso Australia Resources Ltd v Plowman (Minister for Energy & Minerals) (1995) 183 CLR 10

Forty Two International Pty Ltd v Barnes [2010] FCA 397

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

Frigger v Trenfield [2019] FCA 1746

Harman v Secretary of State for Home Department [1983] 1 AC 280

Hearne v Street [2008] HCA 36; (2008) 235 CLR 125

Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104

King v AG Australia Holdings Ltd [2002] FCA 872; (2002) 121 FCR 480

Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283

Perton v Walters [2018] VSC 445; (2018) 56 VR 306

Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756

Rowe v Silverstein [2009] VSC 157

Saltman Engineering Company Ltd v Campbell Engineering Company Ltd (1948) 65 RPC 203

Sinnott v Chief of Defence Force [2020] FCA 643

Springfield Nominees Pty Ltd v Bridgeland Securities Ltd (1992) 38 FCR 217

Uniflex (Australia) Pty Ltd v Hanneybel [2001] WASC 138

Witham v Holloway (1995) 183 CLR 525
Date of hearing: 5 June 2020
Registry: Western Australia
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Category: Catchwords
Number of paragraphs: 66
Counsel for the Applicants: The applicants appeared in person
Counsel for the Respondent: Mr SD Majteles
Solicitor for the Respondent: Carles Solicitors

ORDERS

WAD 141 of 2019
BETWEEN:

ANGELA CECILIA THERESA FRIGGER

First Applicant

HARTMUT HUBERT JOSEF FRIGGER

Second Applicant
AND:

KELLY-ANNE TRENFIELD

Respondent

JUDGE:

JACKSON J

DATE OF ORDER:

16 JUNE 2020

THE COURT ORDERS THAT:

1.The applicants' interlocutory…

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AGLC
Frigger v Trenfield (No 5) [2020] FCA 827
Case
[2020] FCA 827
Decision Date

CaseChat Overview and Summary

Frigger v Trenfield (No 5) concerned an interlocutory application regarding a potential breach of an implied undertaking and contempt of court. The applicants, Frigger, sought to have the respondent, Trenfield, found in contempt for allegedly using certain documents obtained during the proceedings for a collateral or ulterior purpose. The matter was heard in the Federal Court of Australia, where the court had to determine whether the respondent's use of the affidavits amounted to a breach of the implied undertaking and whether this constituted contempt of court.

The primary legal issue before the court was whether the implied undertaking applied to affidavits voluntarily filed in the course of litigation, separate from any compulsion by the court. The court examined relevant authorities, including Davey v Silverstein and King v AG Australia Holdings Ltd, which presented differing views on the matter. The court also considered whether the 'underlying principle' from Central Queensland Cement applied, which would impose an obligation on parties not to use documents for any purpose other than that for which they were provided. Ultimately, the court concluded that the implied undertaking did not apply to affidavits voluntarily filed, and therefore, the respondent was not in contempt of court.

The Federal Court found that the respondent's use of the affidavits did not breach the implied undertaking, as the affidavits were filed voluntarily and not under any compulsion by the court. The court also rejected the notion that the mere fact that a document was provided for litigation purposes would impose an obligation to prevent its use for any other purpose. Accordingly, the interlocutory application was dismissed, and the applicants were ordered to pay the respondent's costs of the application. The court's decision highlights the importance of understanding the circumstances under which the implied undertaking applies and the limitations of its scope.

Orders

Orders of the court

1. The applicants' interlocutory application lodged on 10 April 2020 is dismissed.

2. The applicants must pay the respondent's costs of the application in any event.

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

In any event, it seems from his Honour's comments in [39] quoted above that he was dealing with affidavits served pursuant to a direction of the court, as was the High Court in Hearne v Street. That distinguishes both Hearne v Street and Helicopter Aerial Surveys from the present case. I do not consider that the latter case requires this court to hold that Mrs Frigger's affidavit of 6 March 2019 was subject to the implied undertaking.Conclusion I have discussed two different lines of authority. One, represented by Davey v Silverstein, is to the effect that affidavits filed in pursuance of an application that is voluntarily made do not attract the implied undertaking, even if they were filed pursuant to a rule or other requirement which requires the application to be supported by affidavit. The other, represented by King v AG Australia Holdings Ltd, is to the effect that in those circumstances, the necessary element of compulsion will be present, so that the implied undertaking does arise. Of all the cases surveyed, Bashour is the only one my research has identified in which the court has engaged with both lines of authority, but Tracey J did not find it necessary to choose between them. I consider that I am in a similar position in the present application. It is not necessary to decide whether the filing of an affidavit pursuant to a rule requiring one to be filed gives rise to the implied undertaking because, as I have explained, Mrs Frigger's affidavit of 6 March 2019 was not filed pursuant to any such rule. It was sworn and filed voluntarily. It has, however, been necessary to examine the authorities in order to assess a third possibility, which is that, pursuant to the 'underlying principle' expressed in Central Queensland Cement, the mere fact that the affidavit was provided for the purpose of the litigation means that it will be a contempt of court for Ms Trenfield to use it, or documents annexed to it, for any other purpose. For reasons I have given, I do not consider that Central Queensland Cement, or the general approval it has received in subsequent decisions, compels that outcome. Nor do I think that outcome would be warranted. With respect, I share the doubts that Brereton J expressed in Helicopter Aerial Surveys as to whether the implied undertaking does or should apply to affidavits filed in the ordinary course of litigation. And it would be a sweeping step for a court to say that the mere fact that a document has been served for the purposes of litigation means it is a contempt of court to use it for any other purpose. That would seem to entail that every document filed in court attracts the obligation. That would be wider than the rationale of the rule expressed in Hearne v Street and the established authorities cited in that decision, namely that it would be inequitable if a party were compelled by court process to produce documents for the purposes of the litigation yet be exposed to their use for other purposes: see Esso Resources Ltd v Plowman at 33 (Mason CJ).

Ratio Decidendi

Legal Principle Established

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