Frigger v Trenfield (No 8) - [2021] FCA 569

FEDERAL COURT OF AUSTRALIA
Frigger v Trenfield (No 8) [2021] FCA 569

File number: WAD 141 of 2019

Judgment of: JACKSON J

Date of judgment: 27 May 2021

Catchwords: PRACTICE AND PROCEDURE - application to set aside notice to produce documents - documents sought in notice not relevant - any requirement to comply with notice dispensed with

Legislation:
Evidence Act 1995 (Cth) s 135

Federal Court Rules 2011 (Cth) rr 1.34, 30.28

Cases cited:
Cheung Kong Infrastructure Holdings Ltd v BlueScope Steel Ltd [2010] FCA 739

Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622; (2011) 195 FCR 43

Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28

Enagic Co., Ltd v Horizons (Asia) Pty Ltd [2020] FCA 1233

Seven Network Limited v News Limited (No 11) [2006] FCA 174

Suzlon Energy Ltd v Bangad (No 2) [2011] FCA 1152; (2011) 198 FCR 1

Division: General Division

Registry: Western Australia

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 25

Date of hearing: 27 May 2021

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 MAY 2021

THE COURT ORDERS THAT:
1.Pursuant to rule 1.34 of the Federal Court Rules 2011 (Cth), any requirement for the first respondent to comply with the notice to produce dated 29 April 2021 is dispensed with.
2.The applicants must pay the first respondent's costs of the interlocutory application dated 6 May 2021 in any event.

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:

In this proceeding the applicant bankrupts seek declarations that certain assets are not property divisible among the creditors of their bankrupt estate, an order for the removal of the first respondent as their trustee in bankruptcy, and damages for loss which they say follows from the first respondent's allegedly unlawful conduct.
A trial of the proceeding took place last year and on 27 November 2020 I reserved judgment in the matter (after dismissing an application by the applicants to reopen the trial). Judgment remains reserved.
On 12 April 2021 the first applicant, Angela Frigger, applied for a stay of the delivery of judgment in the proceeding. The basis of the application is that the applicants have commenced a new proceeding seeking the annulment of their bankruptcy.
These reasons do not concern the stay application. In a proceeding which has been marked by a great deal of involuted procedural disputation, there is an interlocutory…

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 8)

Details

AGLC: Frigger v Trenfield (No 8) [2021] FCA 569
Case: [2021] FCA 569
Decision Date: 27 May 2021

CaseChat Overview and Summary

The parties in this case were Frigger, the applicant, and Trenfield, the first respondent, who was involved in a dispute that reached the Federal Court. The central issue was an application to set aside a notice to produce documents, which was issued by the first respondent and contested by the applicant. The documents sought in the notice were considered irrelevant, leading to the applicant's challenge.

The court was tasked with deciding whether the requirement for the first respondent to comply with the notice to produce was valid, given the perceived irrelevance of the documents. The legal issues revolved around the relevance of the documents in question and whether the notice was appropriate under the circumstances. The court had to weigh the procedural fairness and the relevance of the documents in determining its decision.

The court found that the documents sought in the notice to produce were not relevant to the case. Consequently, any requirement for the first respondent to comply with the notice was dispensed with under rule 1.34 of the Federal Court Rules 2011. Furthermore, the applicants were ordered to pay the first respondent's costs of the interlocutory application, as stipulated in the final orders. The decision underscores the importance of ensuring that notices to produce documents are both relevant and appropriate within the legal proceedings.

Orders

Orders of the court

1. Pursuant to rule 1.34 of the Federal Court Rules 2011 (Cth), any requirement for the first respondent to comply with the notice to produce dated 29 April 2021 is dispensed with.

2. The applicants must pay the first respondent's costs of the interlocutory application dated 6 May 2021 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

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

Full text does not contain this section.

File number:	WAD 141 of 2019
Judgment of:	JACKSON J
Date of judgment:	27 May 2021
Catchwords:	PRACTICE AND PROCEDURE - application to set aside notice to produce documents - documents sought in notice not relevant - any requirement to comply with notice dispensed with
Legislation:	Evidence Act 1995 (Cth) s 135 Federal Court Rules 2011 (Cth) rr 1.34, 30.28
Cases cited:	Cheung Kong Infrastructure Holdings Ltd v BlueScope Steel Ltd [2010] FCA 739 Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622; (2011) 195 FCR 43 Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28 Enagic Co., Ltd v Horizons (Asia) Pty Ltd [2020] FCA 1233 Seven Network Limited v News Limited (No 11) [2006] FCA 174 Suzlon Energy Ltd v Bangad (No 2) [2011] FCA 1152; (2011) 198 FCR 1
Division:	General Division
Registry:	Western Australia
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Number of paragraphs:	25
Date of hearing:	27 May 2021
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

ORDER MADE BY:	JACKSON J
DATE OF ORDER:	27 MAY 2021