Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (In Liq) and Computer Accounting and Tax Pty Ltd (In Liq) [No 2]
[2020] WASC 373
•15 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: MERVYN JONATHAN KITAY in his capacity as liquidator of COMPUTER ACCOUNTING AND TAX PTY LTD (In Liq) and COMPUTER ACCOUNTING AND TAX PTY LTD (In Liq) [No 2] [2020] WASC 373
CORAM: HILL J
HEARD: 27 MAY 2020
DELIVERED : 15 OCTOBER 2020
FILE NO/S: COR 2 of 2010
EX PARTE
MERVYN JONATHAN KITAY in his capacity as liquidator of COMPUTER ACCOUNTING AND TAX PTY LTD (In Liq) and COMPUTER ACCOUNTING AND TAX PTY LTD (In Liq)
Applicants
ANGELA CECILIA THERESA FRIGGER
Interested Party
Catchwords:
Practice and procedure - Application made pursuant to liberty to apply - Whether matters arise from implementation of earlier orders - Whether application concerns notice of motion for contempt - Application dismissed - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicants | : | Mr D John |
| Interested Party | : | In Person |
Solicitors:
| Applicants | : | Herbert Smith Freehills |
| Interested Party | : | In Person |
Case(s) referred to in decision(s):
Abigroup Ltd v Abigano [1992] FCA 567; (1992) 39 FCR 74
Australian Hardboard Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; (2007) 70 NSWLR 201
Cameron v Renouf [2008] WASC 60
Kennon v Spry [2008] HCA 56; (2008) 238 CLR 366
Mercanti v Mercanti [2014] WASC 64
Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (1978) 35 NSWLR 365
Popovic v Panagoulias [2014] WASCA 86
Re Computer Accounting and Tax Pty Ltd; ex parte Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) and Computer Accounting and Tax Pty Ltd (in liq) [2020] WASC 108
Stokes (by a tutor) v McCourt [2013] NSWSC 1014
HILL J:
On 13 March 2020, Mrs Frigger filed an application seeking various orders including orders for discovery of certain documents or classes of documents, orders setting aside the ex parte orders of 17 January 2012 and an order discharging order 4 of the orders made 15 May 2014 together with costs. The application was said to have been filed 'pursuant to the order of this honourable court on 3 March 2020 giving the parties liberty to apply'.
On 3 March 2020, I made programming directions in respect of a notice of motion filed by the applicants for punishment of Mrs Frigger for contempt of court. The notice of motion annexed particulars which allege, amongst other matters, that Mrs Frigger is in contempt of court by reason of:
(a)alleged disobedience of orders 2 and 4 of Master Sanderson's orders of 15 May 2014;
(b)alleged disobedience of orders for confidentiality made by Acting Master Chapman on 17 January 2012.
On 27 May 2020, I heard submissions from the parties on an application by Mrs Frigger for discovery of certain documents or classes of documents, and whether Mrs Frigger has standing to bring that application in the notice of motion for contempt.[1]
[1] ts 2.
For the reasons which follow, it is my view that the orders sought by Mrs Frigger cannot be made pursuant to the liberty to apply granted on 3 March 2020 or in the notice of motion for contempt. The orders sought in the application are not relevant to the notice of motion which is before me. Accordingly, the application should be dismissed without determination of the merits of the orders sought.
Procedural background
The procedural background of this matter is summarised in my earlier decision of 31 March 2020.[2] I incorporate, without repeating, this procedural history in these reasons.
[2] Re Computer Accounting and Tax Pty Ltd; ex parte Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) and Computer Accounting and Tax Pty Ltd (in liq) [2020] WASC 108 [5] - [12].
The notice of motion came before me on its first return on 26 February 2020. In the minute of orders filed prior to the hearing, Mrs Frigger raised a number of objections to the material that had been filed by the applicant. On that date, I adjourned the notice of motion until 3 March 2020. On 3 March 2020, having heard submissions from the parties, I struck out certain paragraphs of the affidavit of Mr Kitay sworn in support of the Notice of Motion.
After hearing from the parties as to the appropriate directions to be made in relation to the Notice of Motion, I made orders that:
2.By 9 April 2020, Mrs Frigger do:
(a)file and serve a reply to the Notice of Contempt attached to the Applicants Notice of Motion for punishment of Angela Cecilia Theresa Frigger for contempt of court and other orders dated 8 October 2019 (Notice of Motion); and
(b)file and serve any affidavits she seeks to rely upon in response to the Notice of Motion.
3.By 30 April 2020, the Applicants file any affidavits in reply.
4.The matter be listed for a further directions hearing on 6 May 2020 at 9:30am.
5.The parties have liberty to apply on 48 hours' written notice.
On 5 March 2020, Mrs Frigger filed an application pursuant to order 5 of the orders of 3 March 2020 for an order that she obtain a copy of the transcript of 17 January 2012 and any other related ex parte hearing. This application was heard on 10 and 17 March 2020. On 31 March 2020, I delivered reasons for decision dismissing Mrs Frigger's application.[3]
[3] Re Computer Accounting and Tax Pty Ltd; ex parte Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) and Computer Accounting and Tax Pty Ltd (in liq).
On 13 March 2020, Mrs Frigger filed the application that is the subject of these reasons. In support of the application, Mrs Frigger filed a number of affidavits.[4] These affidavits raise a number of serious allegations against Mr Kitay and his solicitors, which are denied by each of them.[5] In circumstances where I have determined that Mrs Frigger's application cannot be made pursuant to the liberty to apply, or in the notice of motion for contempt it is unnecessary for me to refer to or summarise these allegations.
[4] Affidavit of Angela Cecilia Therese Frigger dated 31 March 2020; Affidavit of Angela Cecilia Therese Frigger dated 29 April 2020.
[5] Applicants' submissions filed 9 April 2020 [20].
Mrs Frigger's submissions
In relation to the application concerning the orders of 17 January 2012, Mrs Frigger submitted that the court has power to set aside these orders under O 58 r 23 of the Rules of the Supreme Court 1971 (WA) (Rules). Prior to any substantive hearing of this application, Mrs Frigger seeks production of a number of documents. Mrs Frigger contended that these documents were required to support the evidence given by Mr Kitay in his affidavit and confidential affidavit sworn in support of the original application dated 6 January 2012 (Original Application).
Mrs Frigger contended that the Original Application, on which orders were made by the court on 17 January 2012, was an abuse of process and abuse of power. She also contended that there was a serious non-disclosure of material facts and 'a fraud on the court'.[6]
[6] Mrs Frigger's submissions dated 31 March 2020 [7].
Mrs Frigger submitted that she is entitled, in support of her defence to the notice of motion for contempt, to require the production of the documents sought by her and to have the application of 6 January 2012 heard de novo.[7]
[7] Mrs Friggers's submissions [20].
In relation to the orders of May 2014, Mrs Frigger acknowledged that different principles applied to this application. Mrs Frigger contended that the question for consideration by the court on an application to discharge the injunction was whether justice required the continuation of the injunction in light of the new material. She submitted that the application to discharge the injunction was not required to be brought as an appeal against the orders of Master Sanderson and that the application was properly made.
Mrs Frigger submitted that the orders made by Master Sanderson were to protect and enforce the confidentiality order that had been made by Acting Master Chapman in January 2012. For that reason, if the application to set aside the confidentiality orders was successful, the interests of justice required the injunction to be discharged.[8]
[8] ts 22.
Respondent's submissions
Counsel for Mr Kitay contended that the application was misconceived as orders 5 and 6 of the orders sought by Mrs Frigger were not relevant to the question of whether Mrs Frigger was guilty of contempt. At the hearing, counsel submitted that he did 'not doubt that Mrs Frigger could apply to set aside these orders' but that it needed to be in separate proceedings and not by way of defence to the contempt proceedings.[9]
[9] ts 26.
If this primary submission was accepted, counsel for Mr Kitay contended that the application for discovery should also be dismissed. This was because discovery of these documents was sought for the purpose of the application in orders 5 and 6.
In relation to the application to discharge the injunction, counsel emphasised that this order was made after a contested hearing in which Mrs Frigger participated. For this reason, it was submitted that this order was a final order (and not an interlocutory order) and could only be challenged or discharged by an appeal.
Legal principles
Meaning of 'liberty to apply'
In Abigroup Ltd v Abignano, the Full Court of the Federal Court stated:[10]
The reservation of liberty to all parties to apply to a court is a provision directed essentially to questions of machinery which may arise from the implementation of a court's orders. They include cases where a court may need to supervise the enforcement of orders after they have been made. … [O]rders of this kind relate to enforcement and not to statements of the rights of the parties. Historically orders reserving liberty to apply are for limited purposes.
[10] Abigroup Ltd v Abigano [1992] FCA 567; (1992) 39 FCR 74, 88.
This statement was accepted by the High Court as an accurate statement of the law in Kennon v Spry.[11]
[11] Kennon v Spry [2008] HCA 56; (2008) 238 CLR 366 [103] (Gummow and Hayne JJ).
More recently, courts have held that applications made under a reservation of liberty to apply are not limited to matters of machinery but must be understood in the context of contemporary practices and procedures of the court.[12] In Western Australia, this includes the context of O 1 r 4B of the Rules.[13]
Application to set aside ex parte orders
[12] Australian Hardboard Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; (2007) 70 NSWLR 201 [64].
[13] Cameron v Renouf [2008] WASC 60 [31] - [32].
O 58 r 23 of the Rules confers a broad discretion on the court to set aside orders which have been made ex parte. The court's discretion is only limited by the inherent requirement that it be exercised judicially.[14] On an application to set aside an ex parte order, it is not necessary for the applicant to adduce additional material; rather the application is to be heard de novo.[15]
Application to discharge injunction
[14] Popovic v Panagoulias [2014] WASCA 86 [36].
[15] Popovic v Panagoulias [54].
In Mercanti v Mercanti, Le Miere J summarised the principles which govern an application to set aside an interlocutory injunction:[16]
Ultimately the court should do whatever the interests of justice require in the particular circumstances of the case, but as a general rule an application to discharge an interlocutory injunction must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application and the effect of which is to demonstrate that the situation is materially different from when the order was made so that it would be unjust to continue the injunction. (citation omitted)
[16] Mercanti v Mercanti [2014] WASC 64 [22].
Disposition
Does the application fall within liberty to apply?
The orders I made on 3 March 2020 were programming orders in relation to the notice of motion for contempt. Specifically, the orders struck out certain paragraphs of the affidavit of Mr Kitay sworn 8 October 2019, programmed the filing and service of a reply to the notice of contempt and any affidavits by Mrs Frigger, and for the filing of any affidavits in reply by Mr Kitay.
The orders sought by Mrs Frigger do not supplement the orders made on 3 March 2020 nor seek to vary them. As such, I do not consider that the orders sought by Mrs Frigger fall within the liberty to apply that I granted on 3 March 2020. For this reason, I consider that the application should be dismissed.
Application to set aside orders
In any event, I do not consider that Mrs Frigger is entitled as part of the notice of motion for contempt to seek orders to set aside the orders made 17 January 2012 and 15 May 2014.
In support of her application, Mrs Frigger relied on the decision of Lindsay J in Stokes (by a tutor) v McCourt.[17] In that case, the plaintiff sought orders that the defendant not be heard on a notice of motion filed by the defendant because of alleged non‑compliance with previous orders of the court. In that context, his Honour stated:
The plaintiff's objection to the defendant being heard on his motion for summary disposal of her claims for relief is based upon the general principle that, until any contempt is purged, a party guilty of contempt should not be heard on any application for relief beyond an application to set aside or vary an order (or undertaking to the court) in respect of which he, she or it is in contempt or an appeal designed to set aside or vary that order or undertaking. (citations omitted)
[17] Stokes (by a tutor) v McCourt [2013] NSWSC 1014 [18].
In this case, the applicants do not assert that I should not hear Mrs Frigger on any application to set aside the orders previously made by the court. Rather they contend that any application to set aside the orders is not relevant to the question as to whether Mrs Frigger is guilty of contempt for failing to comply with the orders that have been made by the court.[18]
[18] Applicants' submissions filed 9 April 2020 [6].
For the reasons set out in my earlier decision, the question as to whether the orders previously made by this court ought to be set aside is not relevant to the question as to whether Mrs Frigger is guilty of contempt for failing to comply with them.[19] These orders must be obeyed unless and until the orders are discharged. The authorities on which Mrs Frigger relies make this position clear.[20]
[19] Re Computer Accounting and Tax Pty Ltd; ex parte Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) and Computer Accounting and Tax Pty Ltd (in liq) [29] ‑ [32].
[20] Stokes (by a tutor) v McCourt [27]; Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (1978) 35 NSWLR 365, 369 (per Hutley JA), 374 (per Mahoney JA).
Mrs Frigger, in her reply submissions, acknowledged that the application under O 58 r 23 of the Rules to set aside the ex parte orders of 17 January 2012 was irrelevant to the charge of contempt.[21] Mrs Frigger accepted that she did not need to have these orders set aside in order to defend the charge of contempt.[22]
[21] Mrs Frigger's submissions in reply [1(b)].
[22] Mrs Frigger's submissions in reply [1(e)].
If Mrs Frigger wishes to have these orders set aside, these matters should be the subject of a separate application and not brought by way of directions on the notice of motion for contempt.
Conclusion
For these reasons, I consider that Mrs Frigger's amended application dated 13 March 2020 should be dismissed. I will hear from the parties as to the precise terms of the orders and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Research Orderly to the Honourable Justice Hill15 OCTOBER 2020
1
7
1