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Frigger v Trenfield (No 6)

Frigger v Trenfield (No 6)

Case [2020] FCA 934 6 July 2020

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FEDERAL COURT OF AUSTRALIA
Frigger v Trenfield (No 6) [2020] FCA 934

File number: WAD 141 of 2019

Judge: JACKSON J

Date of judgment: 6 July 2020

Catchwords:
PRACTICE AND PROCEDURE - application for leave to amend originating application - where application made in close proximity to impending trial date - new claim maintained for trivial reason - leave to make new claim refused

PRACTICE AND PROCEDURE - application for joinder of former trustees of relevant trust - identity of trustees unclear at relevant times - avoidance of multiplicity of proceedings - one alleged former trustee ought to have been joined - unlikely to affect interests of other alleged former trustees - joinder of one party ordered

PRACTICE AND PROCEDURE - application for leave to file cross-claim out of time - addition of cross-claim likely to cause prejudice to applicants - leave refused

PRACTICE AND PROCEDURE - application for particular discovery - application granted in part

Legislation:
Bankruptcy Act 1966 (Cth) ss 30, 116

Federal Court of Australia Act 1976 (Cth) ss 37M, 37N

Income Tax Rates Act 1986 (Cth) s 26

Superannuation Industry (Supervision) Act 1993 (Cth) ss 17A, 19, 160

Federal Court Rules 2011 (Cth) rr 9.05, 9.23, 15.04, 15.05

Cases cited:
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Crocker v Toys 'R' Us (Australia) Pty Ltd [2015] FCA 588

Frigger v Trenfield [2019] FCA 1746

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

Frigger, in the matter of an application by Frigger [2019] FCA 1730

Gleeson v J Wippell & Co Ltd [1977] 3 All ER 54

Leggott v Great Northern Railway Co (1876) 1 QBD 599

Main‑Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd [2007] VSC 43

McDonald v State of South Australia [2011] FCA 297; (2011) 126 ALD 488

News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410

Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52

Re Beechworth Land Estates Pty Ltd (In Liq) and Griffith Estates Pty Ltd (In Liq) [2018] NSWSC 1703

Re Phillips;Public Trustee v Meyer [1931] WN 271

Re Wood (decd); ACF & Shirleys Fertilizers Ltd v Wood [1949] St R Qd 17

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

Tomlinson v Ramsey Food Processing Ltd [2015] HCA 28; (2015) 256 CLR 507

Woodings v Stevenson [2001] WASC 174; (2001) 24 WAR 224

Date of hearing: 1 July 2020 & determined on the papers

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 First Respondent: Mr SD Majteles

Solicitor for the First Respondent: Carles Solicitors

ORDERS

WAD 141 of 2019

BETWEEN:
ANGELA CECILIA THERESA FRIGGER

First Applicant

HARTMUT HUBERT JOSEF FRIGGER

Second Applicant

AND:
KELLY-ANNE LAVINA TRENFIELD

First Respondent

H & A FRIGGER…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Frigger v Trenfield (No 6)

Details

AGLC: Frigger v Trenfield (No 6) [2020] FCA 934
Case: [2020] FCA 934
Decision Date: 6 July 2020

CaseChat Overview and Summary

The case of Frigger v Trenfield (No 6) involves multiple applications in the context of an existing legal dispute. The parties involved in this proceeding are Frigger, the applicant, and Trenfield, the respondent, along with other parties that were sought to be joined or to whom cross-claims were sought to be filed. The primary dispute concerns various procedural applications in an ongoing litigation process, including amendments to the originating application, joinder of parties, and the filing of cross-claims out of time. The matter was heard in the Federal Court of Australia.

The court was required to determine several legal issues central to the procedural management of the case. Firstly, whether leave should be granted to amend the originating application in light of the impending trial date, considering the triviality of the proposed new claim. Secondly, the court had to decide on the joinder of former trustees of a relevant trust, assessing the necessity to avoid multiplicity of proceedings and the potential impact on the interests of other parties. Thirdly, the court needed to consider whether leave should be granted to file a cross-claim out of time, evaluating the potential prejudice to the applicants if such a cross-claim were to be allowed.

In its decision, the court carefully weighed the procedural implications of each application. Regarding the amendment to the originating application, the court refused leave due to the trivial nature of the new claim and the proximity to the trial date. The court emphasised the importance of finality in litigation processes, particularly when approaching trial. Concerning the joinder of former trustees, the court determined that one particular former trustee should have been joined to the proceedings to avoid multiplicity. The court found that this joinder was unlikely to prejudice the interests of other alleged former trustees. As for the application to file a cross-claim out of time, the court denied leave due to the likelihood of prejudice to the applicants if the cross-claim were to proceed. The court also granted the application for particular discovery in part.

The court's orders reflect its reasoning, dismissing most of the interlocutory application while allowing for the joinder of one former trustee and granting the application for particular discovery in part. Costs were reserved for a later determination. This decision highlights the court's focus on procedural fairness and the avoidance of unnecessary complications in ongoing litigation.

Orders

Orders of the court

1. Save as set out in the orders of 25 June 2020 and 1 July 2020, the first respondent's interlocutory application dated 2 June 2020 is dismissed.

2. Costs reserved.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Frigger v Trenfield (No 6) [2020] FCA 934

Most Recent Citation

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

Cases citing this decision · 4 of 4 shown

Frigger v Trenfield (No 3)
[2023] FCAFC 49 Para 7

…pondent. Mr Allen was subsequently removed as the second respondent by order dated 19 March 2020. For the reasons given in Frigger v Trenfield (No 6) [2020] FCA 934 ( Frigger (No 6) ), H & A Frigger Pty Ltd (or HAF ) as the former trustee of FSF was joined as second respondent. Neither Mr Allen nor HAF is a party…
Frigger v Trenfield (No 11)
[2022] FCA 326 Para 5

…ch the various issues, including further issues arising after 17 June, were determined as outlined in reasons published as Frigger v Trenfield (No 6) [2020] FCA 934. As appears from those reasons, the applicants succeeded in their application to amend to add the capacity in which they sued and to amend certain de…
Frigger v Trenfield (No 10)
[2021] FCA 1500 Para 9

…HAF was joined as second respondent for reasons given in Frigger v Trenfield (No 6) [2020] FCA 934 ( Frigger (No 6) ). It has filed a submitting notice which is qualified, in the sense that it does not submit to any order or finding on three specified issues said to have been raised by the first respondent, namel…
Frigger v Mervyn Jonathon Kitay in His Capacity as Liquidator of Computer Accounting and Tax Pty Ltd (in Liquidation) [No 17]
[2020] WASC 366 Para 11

…Second, Jackson J has subsequently given reasons in Frigger v Trenfield (No 6) [2020] FCA 934, in which Mr and Mrs Frigger purported to appear as trustees of the Fund. While his Honour commented that 'who has been trustee of [the Fund], and when, will be in issue at the trial of this proceeding', he did not sugge…

View all 4 citing cases →

Cases cited in this decision · 15 of 15 shown

Frigger v Trenfield (No 2)
[2019] FCA 2009 Para 3

…I have described the issues in the proceeding in detail in Frigger v Trenfield [2019] FCA 1746 and Frigger v Trenfield (No 2) [2019] FCA 2009. The applicants, Mr and Mrs Frigger, are bankrupts and the first respondent, Ms Trenfield, is their trustee in bankruptcy. The Friggers seek declarations that certain assets…
Frigger v Trenfield
[2019] FCA 1746 Para 3

…I have described the issues in the proceeding in detail in Frigger v Trenfield [2019] FCA 1746 and Frigger v Trenfield (No 2) [2019] FCA 2009. The applicants, Mr and Mrs Frigger, are bankrupts and the first respondent, Ms Trenfield, is their trustee in bankruptcy. The Friggers seek declarations that certain assets…
Frigger, in the matter of an application by Frigger
[2019] FCA 1730 Para 3

…tting an offence under that Act if they acted as directors of the trustee company of the FSF: see Frigger, in the matter of an application by Frigger [2019] FCA 1730 at [14].…
In the matter of Beechworth Land Estates Pty Ltd (in liquidation) and Griffith Estates Pty Ltd (in liquidation)
[2018] NSWSC 1703 Para 26

…The first respondent relies on Re Beechworth Land Estates Pty Ltd (In Liq) and Griffith Estates Pty Ltd (In Liq) [2018] NSWSC 1703 at [29], where Black J held that a former trustee could properly remain as a defendant in proceedings after the present trustee had been joined. His Honour noted that the former trustee…
Rush v Nationwide News Pty Ltd (No 2)
[2018] FCA 550 Para 2

…principal proceeding. Rule 15.05 authorises an application for leave to file a cross‑claim out of time. In Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550; (2018) 359 ALR 564 at [87], Wigney J helpfully summarised relevant factors guiding the exercise of the discretion as including: whether the subject matt…
Tomlinson v Ramsey Food Processing Pty Ltd
[2015] HCA 28 Para 24

…e former trustees will be bound by the outcome: see Gleeson v J Wippell & Co Ltd [1977] 3 All ER 54 at 60; and Tomlinson v Ramsey Food Processing Ltd [2015] HCA 28; (2015) 256 CLR 507.…
Crocker v Toys ‘R' Us (Australia) Pty Ltd
[2015] FCA 588 Para 9

…b)(ii) and 9.05(1)(b)(iii) convey broad concepts of completeness, finality and avoidance of multiplicity: Crocker v Toys 'R' Us (Australia) Pty Ltd [2015] FCA 588 at [32] (Reeves J). Considering whether, under r 9.05(1)(b)(ii), the joinder of a person 'is necessary to ensure that each issue in dispute in the proc…
McDonald v State of South Australia
[2011] FCA 297 Para 12

…ing in a certain capacity, they would not be bound by res judicata or issue estoppel in a different capacity: see McDonald v State of South Australia [2011] FCA 297; (2011) 126 ALD 488 at [36] (Besanko J) citing Leggott v Great Northern Railway Co (1876) 1 QBD 599. I agree that this can be adequately dealt with b…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27 Para 16

…37M(3). Those objectives are reflected in judgments of members of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 which place some emphasis on the resources of the courts as public resources, efficient use of which is a concern that transcends…
Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd
[2007] VSC 43 Para 8

…ultiplicity of proceedings and promoting finality of litigation lies at their heart: see Main‑Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd [2007] VSC 43 at [21] (Bell J). Their wording is wide enough to encompass modern notions of case management and the desire of the justice system to minimise time and…
Woodings v Stevenson
[2001] WASC 174 Para 8

…hey should be given a beneficial interpretation affording them the widest interpretation which their language will permit: see Woodings v Stevenson [2001] WASC 174; (2001) 24 WAR 224 at [24]‑[25] (Owen J).…
News Ltd v Australian Rugby Football league Ltd
[1996] FCA 870 Para 10

…The Full Court articulated certain principles underlying the predecessor rules to r 9.05 in News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 523‑525 ( News v ARL ). In summary: (1)These provisions reflect an intention, which now receives more emphasis than in the past, to avoid where reasonably p…
[1969] 2 MLJ 52
[1969] 2 MLJ 52 Para 10

…r which may be made in the action (here, the court was relying on the often cited observations of Lord Diplock in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 at 55‑56). (3)If an order is made that directly affects a third person's rights against or liabilities to a party, if the person is not joined as a par…
Leggott v Great Northern Railway Co
(1876) 1 QBD 599 Para 12

…t capacity: see McDonald v State of South Australia [2011] FCA 297; (2011) 126 ALD 488 at [36] (Besanko J) citing Leggott v Great Northern Railway Co (1876) 1 QBD 599. I agree that this can be adequately dealt with by making it clear, in the identification of the parties in the originating application, that the app…
[1931] WN 271
[1931] WN 271 Para 12

…he applicants' submission. No one can be both plaintiff and defendant in an action, even in different capacities: Re Phillips; Public Trustee v Meyer [1931] WN 271; and Re Wood (decd); ACF & Shirleys Fertilizers Ltd v Wood [1949] St R Qd 17 at [44]. But if the applicants were found to be applying in the present…

Legislation cited in this decision · 5

Federal Court Rules 2011 (Cth)
15.04, 15.05, 9.05, 9.23 5 mentions (from Para 7)
Federal Court of Australia Act 1976 (Cth)
37M, 37M(1), 37N 4 mentions (from Para 16)
Superannuation Industry (Supervision) Act 1993 (Cth)
160, 17A, 19 4 mentions (from Para 3)
Bankruptcy Act 1966 (Cth)
116, 30 3 mentions (from Para 7)
Income Tax Rates Act 1986 (Cth)
26, 26(2)) 2 mentions (from Para 23)

File number:	WAD 141 of 2019
Judge:	JACKSON J
Date of judgment:	6 July 2020
Catchwords:	PRACTICE AND PROCEDURE - application for leave to amend originating application - where application made in close proximity to impending trial date - new claim maintained for trivial reason - leave to make new claim refused PRACTICE AND PROCEDURE - application for joinder of former trustees of relevant trust - identity of trustees unclear at relevant times - avoidance of multiplicity of proceedings - one alleged former trustee ought to have been joined - unlikely to affect interests of other alleged former trustees - joinder of one party ordered PRACTICE AND PROCEDURE - application for leave to file cross-claim out of time - addition of cross-claim likely to cause prejudice to applicants - leave refused PRACTICE AND PROCEDURE - application for particular discovery - application granted in part
Legislation:	Bankruptcy Act 1966 (Cth) ss 30, 116 Federal Court of Australia Act 1976 (Cth) ss 37M, 37N Income Tax Rates Act 1986 (Cth) s 26 Superannuation Industry (Supervision) Act 1993 (Cth) ss 17A, 19, 160 Federal Court Rules 2011 (Cth) rr 9.05, 9.23, 15.04, 15.05
Cases cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Crocker v Toys 'R' Us (Australia) Pty Ltd [2015] FCA 588 Frigger v Trenfield [2019] FCA 1746 Frigger v Trenfield(No 2) [2019] FCA 2009 Frigger, in the matter of an application by Frigger [2019] FCA 1730 Gleeson v J Wippell & Co Ltd [1977] 3 All ER 54 Leggott v Great Northern Railway Co (1876) 1 QBD 599 Main‑Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd [2007] VSC 43 McDonald v State of South Australia [2011] FCA 297; (2011) 126 ALD 488 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 Re Beechworth Land Estates Pty Ltd (In Liq) and Griffith Estates Pty Ltd (In Liq) [2018] NSWSC 1703 Re Phillips;Public Trustee v Meyer [1931] WN 271 Re Wood (decd); ACF & Shirleys Fertilizers Ltd v Wood [1949] St R Qd 17 Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550; (2018) 359 ALR 564 Tomlinson v Ramsey Food Processing Ltd [2015] HCA 28; (2015) 256 CLR 507 Woodings v Stevenson [2001] WASC 174; (2001) 24 WAR 224
Date of hearing:	1 July 2020 & determined on the papers
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 First Respondent:	Mr SD Majteles
Solicitor for the First Respondent:	Carles Solicitors