Frigger v Trenfield (No 7)

Case [2020] FCA 1740

FEDERAL COURT OF AUSTRALIA

Frigger v Trenfield (No 7) [2020] FCA 1740

File number: WAD 141 of 2019
Judgment of: JACKSON J
Date of judgment: 27 November 2020
Date of publication of reasons: 3 December 2020
Catchwords: PRACTICE AND PROCEDURE - application to reopen trial after judgment reserved - applicants seeking to object to evidence already admitted - applicants claimed to have mistakenly misapprehended facts - applicants claimed that first respondent had abused powers as trustee in bankruptcy - unlikely that objections would be upheld if trial reopened - applicants seeking to adduce new evidence - evidence could have been adduced in trial - not in interests of justice to reopen - application to reopen dismissed
Legislation:

Bankruptcy Act 1966 (Cth) ss 5E, 19AA, 58, 77A, 116, 129

Evidence Act 1995 (Cth) ss 101A, 102, 138

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

Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587

Commonwealth of Australia v Davis Samuel Pty Ltd (No 7) [2013] ACTSC 146; (2013) 282 FLR 1

Em v The Queen [2007] HCA 46; (2007) 232 CLR 67

Fiore v Roufeil [2019] FCA 1774

Hamilton v Oades (1989) 166 CLR 486

Hongkong Bank of Australia Ltd v Australian Securities Commission (1992) 40 FCR 402

Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22

Murray v Figge (1974) 4 ALR 612

R v McKeough [2003] NSWCCA 285

Re Excel Finance Corporation Ltd (Receiver and Manager Appointed) (1994) 52 FCR 69

Re Hugh J Roberts Pty Ltd (in liq) [1970] 2 NSWR 582

Re Southern Equities Corporation Ltd(in liq); Bond & Caboche v England (1997) 25 ACSR 394

Roufeil v Fiore, in the matter of the Bankrupt Estate of Peter Andrew Fiore(No 4) [2020] FCA 1458

Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232; (2012) 46 VR 1

Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1436; (2008) 171 FCR 174

Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471

Wu (a pseudonym) v The Queen; Phan (a pseudonym) v The Queen [2020] VSCA 94
Division: General Division
Registry: Western Australia
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Number of paragraphs: 56
Date of hearing: 27 November 2020
Counsel for the Applicants: The applicants appeared in person
Counsel for the First Respondent: Mr SD Majteles
Solicitor for the First Respondent: Carles Solicitors
Counsel for the Second Respondent: The second respondent did not appear

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 PTY LTD IN ITS CAPACITY AS TRUSTEE OF THE FRIGGER SUPER FUND

Second Respondent

ORDER MADE BY:

JACKSON J

DATE OF ORDER:

27 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The applicants have leave to amend their interlocutory application dated 1 October 2020 in terms of the amended interlocutory application dated 15…

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Details
AGLC
Frigger v Trenfield (No 7) [2020] FCA 1740
Case
[2020] FCA 1740
Decision Date

CaseChat Overview and Summary

The parties in Frigger v Trenfield (No 7) were the applicants, who sought to reopen the trial after judgment had been reserved, and Mrs Trenfield, who opposed the reopening. The applicants sought to object to evidence already admitted and to adduce new evidence, claiming that they had mistakenly misapprehended facts and that the first respondent had abused her powers as trustee in bankruptcy. The legal issues before the court included whether the application to reopen the trial was in the interests of justice and whether the new evidence could have been adduced during the trial. The court held that the circumstances were not exceptional enough to warrant reopening the trial, and that it was not in the interests of justice to do so. The applicants' evidence could have been adduced during the trial, and reopening the trial would add to inefficiencies in the administration of justice. The application to reopen was dismissed, and the costs of the amended interlocutory application were ordered to be the first respondent's in any event.

The court's reasoning was that reopening the trial on the basis sought by the applicants would throw the proceeding into disarray and encourage other litigants to press objections after their opponents' cases have closed. The need for finality in litigation and the potential for arguments about the boundaries of the re-opened issues were considered. The court also noted that the new evidence, which was an email from a share registry, did not provide significant information about the issues in the proceeding. The applicants had not provided a good explanation for why the new evidence could not have been adduced during the trial.

The final orders included dismissing the applicants' amended interlocutory application, including the application to reopen the trial, and ordering that the costs of the amended interlocutory application would be the first respondent's in any event. The first respondent had liberty to apply within seven days of the date of the order in relation to the costs of the amended interlocutory application. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The applicants have leave to amend their interlocutory application dated 1 October 2020 in terms of the amended interlocutory application dated 15 November 2020.

2. Service of the amended interlocutory application is dispensed with.

3. The applicants' amended interlocutory application, which for the avoidance of doubt includes the application to reopen for purposes advanced at the hearing on 27 November 2020, is dismissed.

4. The costs of the amended interlocutory application will be the first respondent's in any event.

5. The first respondent has liberty to apply within seven days of the date of this order, by way of written submissions of no more than three pages in length, in relation to the costs of the amended interlocutory application.

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

While the Reopening Application is mostly an application to exclude evidence rather than add to it, the following observations of Harper and Tate JJA and Beach AJA in Spotlight at [17]‑[18] (footnote removed) are apposite:There are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgment reserved, to be re-opened. The need for finality in litigation is one. It is no answer to this point to say that the further evidence sought to be adduced by the respondent in this case is confined to the quantum of damages. Were applications to re-open to be allowed almost as of course, such applications would be regularly made. That would add enormously to inefficiencies in the administration of justice, even if the re-opened hearing was strictly confined. The discipline which ought to attend the conduct of litigation by highly competent litigators would also inevitably decline.The very strict rule that, subject to any applicable process of appeal or review, the presentation of their cases by parties to litigation must conclude with the end of the trial, has another important justification. It is that, very often, the boundaries of the re-opened issues would be hard to define and as difficult to protect. The re-opened hearing would then be bedevilled by arguments about whether one party or the other was seeking to take advantage of the re-opening to polish parts of its case which were more or less within the scope of the re-opened proceeding but not clearly on one side or the other of the prescribed limits.Why leave to reopen to adduce new evidence was not granted Apart from objecting to the evidence already put in, the applicants also sought to reopen for the purpose of putting Mr Frigger's new affidavit of 27 October 2020 into evidence. The affidavit attaches an email dated 28 September 2020 from one of the share registries, Link Market Services. The applicants argued that the email was important new evidence but I am not persuaded that it is. It answered questions (which are not disclosed in the affidavit) about the recording of tax file numbers (TFNs) against share holdings. That is a potentially significant issue in the proceeding, as the applicants rely on what they say is the notification of the TFN for the FSF to share registries as evidence that the shares were held by them in their capacity as trustees for the FSF. The timing of the notification of the TFN, if it is indeed the TFN for the FSF, is potentially relevant because Mrs Trenfield claims that it was notified, or at least changed, after the dispute between her and the applicants arose, so the weight to be put on it should be limited. But Link's email of 28 September 2020 does not say anything of significance about these issues. At most it says that the dates on which an unspecified TFN was entered on Link's system varies across the different holdings. This general statement is unlikely to assist the court to determine what TFN was entered, and when, in relation to any specific holding, let alone whether and when the notified TFN was changed.

Decision

Reasons for decision

The applicants also applied orally at the hearing on 27 November 2020 to reopen their case to put into evidence an affidavit which Mrs Frigger swore on 17 September 2020 annexing a printout of transactions involving the FSF obtained from the Australian Taxation Office (ATO). They applied once before to admit that affidavit and the application was dismissed. They submitted, however, that the document was sought to be admitted for a different purpose then, and now they seek to admit it for the purpose of showing that dividends declared to the ATO correspond to the shares that are said to be held for the FSF. But different purpose or not, this is evidence which could have been adduced as part of the trial. No good explanation was given as to why it was not. For that reason I dismissed the renewed application to reopen to adduce this evidence.Conclusion on application to reopen In my view reopening the trial on the basis sought by the applicants would both throw the present proceeding into disarray, and encourage other litigants to press objections after their opponents' cases have closed, for no better reason than that the objections did not occur to them beforehand, or it did not occur to them to lead certain evidence before judgment was reserved. It would be contrary to the public interest in the timely conclusion of litigation. It is not in the interests of justice to reopen the trial, whether conceived in terms of the justice of this case, or in terms of the administration of justice generally. The applicants also applied in the Reopening Application for certain parts of Mr Newton's affidavit of 11 November 2020 to be struck out. The basis of the application was that the material was already in evidence and that the duplication was contrary to the overarching purpose of efficiency enshrined in s 37M of the Federal Court of Australia Act 1976 (Cth). Whether that is good reason to exclude it or not, it was clear in Mrs Frigger's oral submissions that it was only sought for the reason that the affidavit may be adduced into evidence in any reopened trial. Since that reason falls away, this component of the Reopening Application does too. For those reasons, the application to reopen was dismissed.Costs Mrs Trenfield sought an order that the costs of the application to reopen are hers in any event. The applicants submitted that the order should be costs in the cause, as the application had been dealt with as a possible continuation of the trial. But while that was the procedure adopted, in substance the application to reopen was made and argued separately to the course of the main trial and after the trial ended. The costs that it has occasioned for Mrs Trenfield will be identifiable discretely from the costs of the main trial. There was no reason to depart from the usual rule that the costs should follow the outcome of the application to reopen.

Ratio Decidendi

Legal Principle Established

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