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 3]

[2021] WASC 447

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 3] [2021] WASC 447

CORAM:   HILL J

HEARD:   25 FEBRUARY 2021 & WRITTEN SUBMISSIONS 12 MARCH 2021

DELIVERED          :   14 DECEMBER 2021

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 to strike out notice of contempt - Whether notice is an abuse of process - Requirements of notice of contempt and particulars - Allegation of contempt of orders of court - Application dismissed

Practice and procedure - Application to uplift affidavit - Whether affidavit irrelevant - Application refused

Legislation:

Rules of the Supreme Court 1971 (WA), O 20 r 19, O 37 r 7, O 55 r 4, O 55 r 5

Result:

Mrs Frigger's applications dismissed
Application to amend particulars allowed

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):

Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201

Caratti v Boban Pty Ltd (admin apptd) [No 2] [2015] WASC 139 (S)

Carew-Reid & Ors v Carew Corporation Pty Ltd (Unreported, WASC, Library No 930254, 23 April 1993)

Coward v Stapleton [1953] HCA 48; (1953) 90 CLR 573

Farnell v Chanbua [2016] FCWA 17

Livingspring Pty Ltd v Ng [2007] VSC 9

McGoldrick v Citicorp [1990] VR 503

Moore v Inglis (1976) 9 ALR 509

O'Connor v Hough [2016] QSC 4

Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258 (S)

Professional Services of Australia Pty Ltd (Administrator Appointed) v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93

R v Lovelady; Ex parte Attorney-General [1982] WAR 65

R v Pearce & Ors (Unreported, WASC, Library No 920206, 30 March 1992)

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) [No 4] [2014] WASC 169

Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212

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

Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378

Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

Witham v Holloway [No 2] [1992] NSWCA 280

HILL J:

1. On 9 October 2019, Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in Liquidation) and Computer Accounting and Tax Pty Ltd (in Liquidation) (CAT) filed a notice of motion for punishment of Angela Cecilia Theresa Frigger for contempt of court (Notice).

2. The Notice annexed particulars of the alleged contempt (Particulars).  In paragraph 12 of the Particulars, it is alleged that Mrs Frigger is in contempt of court by reason of:

   (a)her disobedience of orders 2 and 4 of Master Sanderson's orders of 15 May 2014;

   (b)her disobedience of orders for confidentiality made by Acting Master Chapman on 17 January 2012.

3. On 13 March 2020, Mrs Frigger filed an application to strike out parts of the Notice pursuant to O 20 r 19(1)(d) of the Rules of the Supreme Court 1971 (WA) (Rules). The application sought orders for [1] to [5], [10] and [12(b)] of the Particulars to be struck out. The basis for this application was that these issues were litigated and resolved by Master Sanderson in his decision in 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) [No 4].[1]  Mrs Frigger amended her application on two occasions; on 5 May 2020 and 1 February 2021. 

   [1] 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) [No 4] [2014] WASC 169.

4. On 24 February 2021, the day prior to the hearing, Mrs Frigger filed a minute of orders which, again, amended the scope of her application.  Mrs Frigger also applied to uplift an affidavit of herself previously filed with the court (Affidavit) and to strike out certain paragraphs and annexures of the affidavit of Mr Kitay filed in support of the Notice.

5. Counsel for the applicants did not object to these additional matters being considered at the hearing or dealt with as part of these reasons.[2]  At the conclusion of the hearing, I made orders for the filing and service of additional submissions and affidavits in relation to the uplift of the Affidavit and informed the parties I would deal with this application as part of my reasons for decision on Mrs Frigger's application. 

   [2] ts 751 - 752.

6. During the hearing, I made a preliminary ruling that certain paragraphs and annexures of Mr Kitay's affidavit be struck out.  The applicants were given leave to file any submissions in opposition to the preliminary ruling by 2 March 2021.  This did not occur and accordingly, pars 22 and 23, together with annexures 'MJK6' and 'MJK7' of Mr Kitay's affidavit filed 8 October 2019, are struck out.

7. For the reasons that follow, it is my view that none of the orders sought by Mrs Frigger should be made and her application should be dismissed.

8. During the course of the hearing, the applicants sought leave to amend the Particulars to clarify an aspect of the allegation in respect of the breach of the orders of Acting Master Chapman, which was not opposed by Mrs Frigger.  In these circumstances, I consider it appropriate that leave be granted to amend the Particulars.

Procedural history

1. These proceedings (COR 2 of 2010) were commenced on 8 January 2010 by originating process and sought an order for the winding up of Computer Accounting and Tax Pty Ltd (CAT).

2. On 6 May 2010, Master Sanderson ordered that CAT be wound up in insolvency and appointed Mr Kitay as court‑appointed liquidator of CAT.[3] 

   [3] Professional Services of Australia Pty Ltd (Administrator Appointed) v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93.

3. On 6 January 2012, Mr Kitay filed an application for approval of entry into three agreements pursuant to s 477(2B) of the Corporations Act 2001 (Cth) (Act). In support of the application, Mr Kitay filed a confidential affidavit dated 5 January 2012 (Confidential Affidavit). The application came before Acting Master Chapman for hearing on 17 January 2012, who made orders in terms of the application. The orders included an order (Confidentiality Order) that:

   The Confidential Affidavit of Mervyn Jonathan Kitay dated 5 January 2012 (Confidential Affidavit) and the annexures thereto remain in the court file in a sealed envelope marked 'confidential', such Confidential Affidavit not to be accessed by any person without order of this Honourable Court.

4. After this order was made, Mrs Frigger obtained access to the Confidential Affidavit.

5. On 25 November 2013, the liquidator filed an application for orders in respect of the Confidential Affidavit.  The application came before Master Sanderson for hearing on 17 March 2014.  Mrs Frigger appeared for herself at this hearing.  Mrs Frigger was given an opportunity to file an affidavit and written submissions in opposition to the application prior to delivery of judgment but did not do so.

6. On 15 May 2014, Master Sanderson delivered his reasons for decision and made orders in respect of the Confidential Affidavit.  The orders of Master Sanderson included orders that:

   2. Within seven days of the date of this order, Mr and Mrs Frigger do each provide a written statement to the solicitors of the Applicants:

   (a) that they have not retained any copies of the Confidential Affidavit or any of the annexures thereto;

   (b) that they have permanently deleted any electronic copies of the Confidential Affidavit and any of the annexures thereto in their possession.

   …

   4. Mr and Mrs Frigger be restrained from disclosing the contents of the Confidential Affidavit or any of the annexures thereto to any person, including, any solicitor or counsel acting for them in the future.

7. On 9 October 2019, Mr Kitay filed a notice of motion for punishment of Mrs Frigger for contempt of court for alleged disobedience of the confidentiality order made by Acting Master Chapman on 17 January 2012 as well as orders 2 and 4 of Master Sanderson's orders of 15 May 2014.

Application to strike out

1. On 13 March 2020, Mrs Frigger filed an application to strike out parts of the Notice pursuant to O 20 r 19(1)(d) of the Rules. The application sought orders for [1] to [5], [10] and [12(b)] of the Particulars to be struck out on the basis these issues were litigated and resolved by Master Sanderson in his decision in 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) [No 4].[4]

   [4] 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) [No 4].  

2. On 5 May 2020, Mrs Frigger filed an amended application dated 27 April 2020 which sought to strike out the Notice in so far as it was made on behalf of CAT. The application was amended again on 1 February 2021. The amended application sought to strike out two additional paragraphs of the Particulars, being [9] and [12(a)], on the basis that no breach of Master Sanderson's orders of 15 May 2014 had been identified or pleaded.

3. On 24 February 2021, the day prior to the hearing, Mrs Frigger filed a minute of orders which limited the application to strike out the Particulars to the words 'filed and' in [7], as well as [8] ‑ [10], [12(a)] and [12(b)].  Mrs Frigger sought a number of additional orders in addition to the application to strike out, including an order to uplift the Affidavit.

4. In support of her application, Mrs Frigger referred to the affidavit of Mr Kitay filed in support of the application on 8 October 2019.

Legal principles

1. The jurisdiction of the court to punish a contemnor for contempt is both within its inherent jurisdiction as well as O 55 of the Rules.

2. The notice of motion filed by the applicants was filed pursuant to O 55 r 4 of the Rules. Order 55 r 5(1) of the Rules provides:

   The notice of motion or summons (as the case may be) must specify the contempt of which the contemnor is alleged to be guilty, and be entitled in the proceeding, if any, with reference to which the contempt is alleged to have been committed.

3. In R v Lovelady; Ex parte Attorney-General, Burt CJ, with whom Wickham J agreed, stated:[5]

   The Rules (O 55, r 5(1)) require that 'the notice of motion … specify the contempt of which the contemnor is alleged to be guilty' and, in my opinion, the contempt specified must be strictly proved and proved beyond reasonable doubt. '… [N]o person ought to be punished for contempt of court unless the specific charge against [him/her] be distinctly stated and an opportunity of answering it given to [him/her]. … Resting as it does upon accepted notions of elementary justice, this principle must be rigorously insisted upon'. (citations omitted)

   [5] R v Lovelady; Ex parte Attorney-General [1982] WAR 65, 68.

4. In considering the particulars provided of the contempt, the allegation must be in sufficient detail and particularity to enable the person alleged to be in contempt to have sufficient information to enable them to meet the charge.  As Malcolm CJ stated in Carew‑Reid & Ors v Carew Corporation Pty Ltd (Franklyn and Nicholson JJ agreeing):[6]

   [T]he effect of O 55 r 5 is that the notice of motion or summons, as the case may be, must contain all necessary particulars in relation to the substance of the allegation within the four corners of the document.

   [6] Carew-Reid & Ors v Carew Corporation Pty Ltd (Unreported, WASC, Library No 930254, 23 April 1993) 6.

5. This requires the precise breaches of which the applicants complain to be specified in the notice of motion or summons.  Any deficiency in the particulars cannot be made up by reference to affidavit evidence.[7]

   [7] Carew-Reid & Ors v Carew Corporation Pty Ltd 7.

6. Where information in an affidavit is false, the usual remedy is a prosecution for perjury and not a summary committal for contempt.[8]  There is a question as to whether a finding of contempt is open where there has been wilful disobedience of a court order, such as the reckless swearing of a false affidavit.  Counsel for the applicants referred me to the decision of the New South Wales Court of Appeal in Witham v Holloway,[9] in which the court held such actions could constitute a contempt of court, as well as a decision of the Victorian Supreme Court in Livingspring Pty Ltd v Ng,[10] in which a single judge of the court held he was bound by the decision of the Full Court of the Victorian Supreme Court in McGoldrick v Citicorp Finance Pty Ltd[11] and that this conduct was insufficient to constitute a contempt of court.  In McGoldrick v Citicorp Finance Pty Ltd, Gray J (with whom Crockett and O'Bryan JJ agreed) held that to establish a contempt it was necessary to prove a 'wilful refusal to provide the information sought accompanied by the requisite intent to interfere with or obstruct the course of justice.'[12]

   [8] Coward v Stapleton [1953] HCA 48; (1953) 90 CLR 573, 578 ‑ 579.

   [9] Witham v Holloway [No 2] [1992] NSWCA 280, 4.

   [10] Livingspring Pty Ltd v Ng [2007] VSC 9 [68].

   [11] McGoldrick v Citicorp [1990] VR 503.

   [12] McGoldrick v Citicorp, 508 (Gray J).

7. Mrs Frigger's application was brought under O 20 r 19(1)(d) of the Rules which enables the court, at any stage of the proceedings, to order any pleading or indorsement to be struck out on the ground that it is 'otherwise an abuse of the process of the court'. An abuse of process occurs in any circumstance in which the use of the court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.[13]  The onus of satisfying the court that there is an abuse of process is a heavy one.[14]  The power to dismiss proceedings as an abuse of process should be exercised with caution[15] and only in the most exceptional or extreme case.[16]  However, proceedings will constitute an abuse of process if they are clearly doomed to fail[17] or are plainly unsustainable.[18]

Mrs Frigger's submissions

[13] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 [25]; Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212 [69].

[14] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 529.

[15] Moore v Inglis (1976) 9 ALR 509, 516.

[16] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 392.

[17] Walton v Gardiner 393.

[18] Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258 (S) [23].

1. Mrs Frigger challenged the Particulars in so far as they refer to her conduct in accessing the Confidential Affidavit as being a breach of the Confidentiality Order.  The challenge was on two grounds:  first, res judicata or abuse of process as this issue could have been raised before Master Sanderson on the application dated 25 November 2013; and second, the Confidentiality Order did not prevent use of the Confidential Affidavit but only access to the original Confidential Affidavit on the court file.

2. In relation to the first ground, Mrs Frigger noted that her inspection and obtaining a copy of the Confidential Affidavit had been considered previously by five judicial officers of this court.  She contended none had held her conduct was a breach of the Confidentiality Order.  Mrs Frigger submitted that her access to the Confidential Affidavit was relied upon by the applicants for the orders sought in the application before Master Sanderson, the subject of his judgement of 15 May 2014.  On this basis, she contended this issue had 'merged in the judgment' of Master Sanderson on this date and it was an abuse of process to attempt to relitigate the matter. 

3. On the second ground, Mrs Frigger contended the Confidentiality Order prohibited access to the document, not the use of the Confidential Affidavit in other proceedings.  On this basis, the conduct alleged could not constitute a contempt of court.

4. Finally, in relation to [9] and [12(a)] of the Particulars, Mrs Frigger submitted that these paragraphs should be struck out as order 2 of Master Sanderson's orders required Mrs Frigger (and Mr Frigger) to provide a statement to the applicants' solicitors.  It did not require them to permanently delete electronic copies of the Confidential Affidavit or swear an affidavit.

Applicants' submissions

1. The applicants reject the complaints raised by Mrs Frigger in relation to the Notice and say the application should be dismissed with costs.

2. The applicants submit that on a fair reading of the Particulars, it is clear that [1] to [8] set out the background facts which are relied upon as giving rise to the allegations of contempt, including the three orders of the court they contend Mrs Frigger has breached, namely the Confidentiality Order and two separate orders of Master Sanderson of 15 May 2014. 

3. The specific acts on which the applicants rely are set out in [9] of the Particulars.  The applicants contend Mrs Frigger did not permanently delete all electronic copies of the Confidential Affidavit which were in her possession and that the statement and affidavit sworn by Mrs Frigger on 6 June 2014 were false.  The particulars provided of this allegation are that Mrs Frigger must have retained a copy because she has annexed a copy of the Confidential Affidavit to affidavits sworn by her and filed in three separate proceedings. 

4. These acts are said to be a disobedience of order 2 of Master Sanderson's orders ([9], Particulars) as well as the Confidentiality Order ([10], Particulars).  In addition, the applicants contend that by filing and serving the affidavits, Mrs Frigger has disclosed the contents of the Confidential Affidavit to the officers at the various courts in breach of order 4 of Master Sanderson's orders ([11], Particulars).

5. The applicants say the disobedience and breaches of the orders constitute a contempt of court ([12], Particulars).

6. Counsel for the applicants submits it is clear from the Particulars that the complaint is in relation to the ongoing access to a copy of the Confidential Affidavit and not the original access to this document.

7. In relation to the second complaint raised by Mrs Frigger, the applicants submit the issues raised the proper construction of the orders of the court.  The applicants contend the construction put forward by them is open and accordingly, the determination of this issue should await the final hearing.

8. Finally, in relation to the application to strike out [9] and [12(a)] of the Particulars, the applicants contend that the actions of Mrs Frigger, in not permanently deleting the Confidential Affidavit and subsequently using it, amount to an interference with or obstruction to the due administration of justice.  On this basis, it is at least arguable the conduct is a contempt of court and these paragraphs should not be struck out.

Disposition

1. At the hearing before me, Mrs Frigger's application was limited to an application to strike out [9] and [10] (and as a consequence [12(a)] and [12(b)]) of the Particulars.[19]  At the hearing, the applicants conceded the words 'filed and' in [7] should be deleted from the Particulars.

   [19] ts 757.

2. Both parties proceeded on the basis that O 20 r 19(1) applied to the notice of motion for committal for contempt filed by the applicants. However, this rule entitles a party to apply to strike out pleadings in a proceeding.  In my view, this rule has no application to the notice of motion for contempt filed by the applicants.

3. That said, this court has previously struck out paragraphs within a notice of motion for contempt on the basis that the notice of motion failed to comply with O 55 r 5(1).[20]  I accept that I have the power to strike out paragraphs of a notice and particulars of contempt in an appropriate case.  However, this will only occur in the clearest of cases where the application is 'so obviously untenable that it cannot possibly succeed'.[21]

   [20] See for example, R v Pearce & Ors (Unreported, WASC, Library No 920206, 30 March 1992).

   [21] O'Connor v Hough [2016] QSC 4 [16].

1. The first ground of Mrs Frigger's application, in essence, contends the issues concerning her access to the Confidential Affidavit of Mr Kitay and whether this was a breach of the Confidentiality Order was heard and determined by Master Sanderson and is the subject of his judgement in 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) [No 4].  On this basis, Mrs Frigger says the applicants cannot now raise this by reason of an issue estoppel or res judicata, alternatively, the applicants' conduct in so doing is an abuse of process.

2. The application before Master Sanderson, as is apparent from his decision, was an interlocutory process for certain orders to be made in relation to the Confidential Affidavit in an attempt to 'minimise future prejudice to the extent possible'.[22]  After summarising the background to the proceedings, Master Sanderson stated:[23]

   On 7 August 2013 Mrs Frigger swore an affidavit in the Frigger proceedings which attached a copy of the confidential affidavit.  Mrs Frigger had obtained access to the confidential affidavit.  The liquidator made inquiries of the Supreme Court Registry.  On 9 September 2013, the Principal Registrar advised the liquidator's solicitors it appeared Mrs Frigger had obtained a copy of the confidential affidavit from the court file.  Inquiries had not revealed how this happened.  There was no record of the Registry staff providing copies of any affidavit to Mrs Frigger.  Numerous requests were made to Mrs Frigger asking her how she came to be in possession of the confidential affidavit.  She did not respond.  Finally, in an affidavit of February 2014 Mrs Frigger explained that after she received the letter from Holborn Lenhoff Massey advising her of the application to enter into the amended litigation funding agreement, she requested an opportunity to inspect the court file.  She says the confidential affidavit was on the file.  She read it and requested a copy from the court staff.  This was provided.  At no time did she understand what was meant by 'confidential affidavit':  see par 12 of Mrs Frigger's affidavit of 14 February 2014.

   Before proceeding further I should note two points.  First, this application is not concerned with any breach by Mrs Frigger of the confidentiality orders.  It must be said there are real questions about her conduct.  The confidential affidavit is so entitled.  There was on the file a copy of the confidentiality orders.  Further and perhaps most importantly, in their letter of 26 June 2013 to Mrs Frigger, the liquidator's solicitors advised Mrs Frigger confidentiality orders had been made and she was not entitled to access the affidavit.  Yet in these circumstances Mrs Frigger maintains when she came across the affidavit on the file she was unaware it was not available for inspection.

   Second, the liquidator acknowledges that in the main the damage occasioned by inspection of the confidential affidavit and access to the privileged materials cannot be undone.  The orders sought seek to limit the damage occasioned to the liquidator so far as possible.

   [22] 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) [No 4] [4].

   [23] Re Computer Accounting and Tax Pty Ltd; Ex parteMervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) [No 4] [11] ‑ [13].

3. After summarising the submissions of the parties in relation to the application, Master Sanderson concluded:[24]

   As soon as it was pointed out to Mrs Frigger she had obtained a copy of the confidential affidavit she was not entitled to possess, she should have returned it to the liquidator's solicitors.  That is the beginning and the end of the matter.  There can be no possible justification for her retaining possession of any copies of the confidential affidavit and the orders I will make are designed to so far as is possible put the situation to right.

   [24] Re Computer Accounting and Tax Pty Ltd; Ex parteMervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) [No 4] [22].

4. In her written submissions in support of the application, Mrs Frigger referred to a number of authorities which discuss issue estoppel and res judicata and the principles behind these.  These principles include the necessity to avoid re‑litigation of issues that could have been considered in earlier litigation.

5. In my view, for the following reasons, I do not consider these authorities have any relevance to the notice of motion that has been filed by the applicants. 

6. First, the application that was the subject of the decision of Master Sanderson was an application for orders to be made in respect of Mrs Frigger's original access to the Confidential Affidavit and her obtaining of a copy.  The notice of motion for contempt concerns a different complaint.  The particulars of the breach of the Confidentiality Order refer to and rely on the retention by Mrs Frigger of a copy of the Confidential Affidavit and subsequent use of this which is evidenced by its annexure to affidavits sworn by Mrs Frigger in three different proceedings.  These acts had not occurred at the time of the application before Master Sanderson and could not have been the subject of that application.

7. Second, an allegation that a party is in contempt is not a 'cause of action' or a 'right that has been infringed'.  The jurisdiction of the court in relation to contempt has a dual purpose.  As was noted by Gillard J in Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd:[25]

   In civil proceedings where there is an alleged breach of an order, the main purpose for bringing a contempt proceeding is coercive or remedial.  There may be another purpose. In the case of deliberate refusal to obey an order, contempt proceedings are appropriate to uphold the rule of law and to vindicate judicial authority, by the imposition of a penalty, ie punishment.  The contempt jurisdiction fulfils a dual purpose, namely, enforcement of the order and punishment, in an appropriate case, for disobedience.  Once this occurs, the question arises whether the circumstances warrant some form of punishment.  Care must be exercised before bringing the proceeding and careful consideration must be given to the continuation of the proceeding after the coercive function has been satisfied.

   [25] Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 [92]; cited with approval by Mitchell J in Caratti v Boban Pty Ltd (admin apptd) [No 2] [2015] WASC 139 (S) [8].

8. I turn then to the second ground of Mrs Frigger's application.  The contest between the parties concerns the proper construction of the orders of the Acting Master Chapman.  Mrs Frigger contends that, on its face, the orders of Acting Master Chapman prevents access to the original of the Confidential Affidavit which is on the court file and does not apply to access to any subsequent copies of the Confidential Affidavit.  In contrast, the applicants contend that Mrs Frigger's ongoing access to a copy of the Confidential Affidavit without an order of the court is a breach of the Confidentiality Order.[26]

   [26] Applicants' submissions [18].

9. For the purpose of this application, it is not necessary for me to reach a final conclusion as to the proper construction of the Confidentiality Order.  It is sufficient to say that I consider it is arguable that the Confidentiality Order prevented access to the Confidential Affidavit without an order of the court.  This is a matter that will need to be determined at the final hearing in the context of the factual matrix known to the parties and the surrounding circumstances and whether the court can be satisfied beyond a reasonable doubt that the acts alleged by the applicants occurred and constituted a contempt of court.

10. Finally, I turn to the additional ground raised by Mrs Frigger's amended application, namely that [9] and [12(a)] should be struck out on the basis that the Particulars do not identify or plead the specific conduct that is alleged to be a breach of order 2 of Master Sanderson's orders.  I do not accept this submission.  The Particulars contend that Master Sanderson made orders for delivery up of all hard copies of the Confidential Affidavit and required Mrs Frigger to confirm she had not retained any copies of the Confidential Affidavit or its annexures and that any electronic copies had been permanently deleted. 

11. The applicants contend Mrs Frigger disobeyed this order by retaining a copy or electronic copy, as evidenced by its annexure to affidavits filed by her in three different proceedings, and that the statement she provided to the applicants and the affidavit signed by her were false.

12. In my view, it cannot be said that it is unarguable that the facts relied upon by the applicants, if proved to the requisite standard, could support a finding of contempt.  It is possible that the court, after hearing argument from the parties, will prefer the decision of the New South Wales Court of Appeal to the decision of the Full Court of the Victorian Supreme Court.  This is a matter that should not be determined on an application to strike out but should await the final hearing.

13. For these reasons, I do not consider any of [8], [9], [10], [12(a)] or [12(b)] of the Particulars should be struck out and would dismiss Mrs Frigger's application to strike out.

Application to uplift affidavit

1. In her minute of orders filed prior to the hearing, Mrs Frigger sought leave for 'Document No 95 vol 5' to be uplifted from the court file and returned to her.  This document is the Affidavit.  The application was opposed by the applicants. 

2. At the hearing before me on 25 February 2021, I granted leave to Mrs Frigger to file an affidavit in support of the application and for the applicants to file any responsive affidavit by 12 March 2021.

3. It was not in dispute that the Affidavit was filed after the judgment of Master Sanderson was delivered and was not filed pursuant to any order of the court. 

4. Mrs Frigger deposes that she was advised by a barrister from Adelaide, who she had retained to assist her with the interlocutory process, that she was required to file an affidavit attaching the statement required by Order 2 of the orders of Master Sanderson dated 15 May 2014.[27]  On this basis, she filed the Affidavit.  Her evidence was that the Affidavit had never been relied upon by her in these or any other proceeding and has not been received into evidence.[28]

   [27] Affidavit of Angela Frigger filed 5 March 2021 [4] - [5].

   [28] Affidavit of Angela Frigger filed 5 March 2021 [7].

5. Mr John's evidence in his affidavit filed 12 March 2021 is that following orders being made by Master Sanderson, on Friday 6 June 2014, he raised Mrs Frigger's compliance with the orders with both Mrs Frigger and her then legal representation by email.[29]  In a responsive email sent Saturday 7 June 2014, Mrs Frigger said that 'Attached is an affidavit which will be sworn and filed on Monday 9 June 2014'.[30]  In his response sent Sunday 8 June 2014, Mr John stated that:[31]

   In my view, your proposal to swear and file an affidavit to clarify the position appears appropriate.

   …

   If these issues can be appropriately dealt with in your affidavit, then this unfortunate set of circumstances should be able to be treated as at an end.

   [29] Affidavit of David William John filed 7 June 2014 [7] 'DWJ15'. 

   [30] Affidavit of David William John filed 7 June 2014 'DWJ16'.

   [31] Affidavit of David William John filed 7 June 2014 'DWJ18'.

6. Mr John deposes that on the basis of the Affidavit, he was instructed not to take further steps to enforce compliance with the orders of Master Sanderson dated 15 May 2014.[32]

Legal principles

[32] Affidavit of David William John filed 7 June 2014 [10].

1. Order 37 r 7 of the Rules provides that:

   The Court may order to be struck out from an affidavit any matter which is scandalous, irrelevant or otherwise oppressive, or may order that the affidavit containing such matter be taken off the file.

2. There is only limited judicial consideration as to the basis upon which the court will exercise its discretion to order the uplift of an affidavit.  In Farnell v Chanbua, Thackray CJ refused an application to uplift an affidavit on the basis the affidavit formed part of the court record and 'would clearly assume significance in the rest of the proceedings'.[33]

Mrs Frigger's submissions

[33] Farnell v Chanbua [2016] FCWA 17 [163].

1. Mrs Frigger contended the Affidavit was filed in error 'on the basis of legal advice that I had received from lawyers who no longer act for [her]'.[34]  Mrs Frigger submitted that in circumstances where the applicants had filed contempt proceedings with a possibility she could be imprisoned, 'it is very important the evidence, my evidence, is absolutely what it should be in such a proceeding'.[35]

Applicants' submissions

[34] ts 751.

[35] ts 753.

1. The applicants submit the Affidavit is relevant to the issues raised in the Notice and, for that reason, should not be uplifted.  A number of reasons are advanced for this contention, including that the statement annexed to the Affidavit is different from the copy served on the applicants' solicitors, it is part of the court record, and it is relevant to the credit of Mrs Frigger.

Disposition

1. I accept that the court has power to order an affidavit to be uplifted if it contains material that is scandalous, irrelevant or otherwise oppressive.  In this case, there is no suggestion the Affidavit is scandalous or oppressive; the issue raised on the application is whether it is irrelevant.

2. It is not in dispute that the Affidavit was not filed in compliance with any order of the court.  However, this, of itself, does not mean it is irrelevant and ought be uplifted. 

3. In this case, for the following reasons, I consider that it is arguable the Affidavit is relevant to the issues to be determined in the Notice.  First, the evidence before me is that the Affidavit was filed following a complaint being made about the adequacy of the statement provided in accordance with the orders.  If the Affidavit was filed to avoid any further application being brought, on which I make no finding at present, the Affidavit cannot be said to be irrelevant.  This will need to await the final hearing after I have heard from the witnesses and there has been an opportunity for any witnesses to be cross‑examined.  Second, the Affidavit was sworn on 10 June 2014 and filed on 23 June 2014.  No application was brought to uplift the document until 25 February 2021, almost seven years after it was filed.  The Affidavit has formed part of the court record for a considerable period of time.  No explanation has been provided as to the reasons for the delay in seeking its uplift.  Without a sufficient explanation as to this delay, I do not consider the integrity of the court record should be disturbed.

4. On this basis, I do not consider an order should be made to uplift the Affidavit from the court file and would dismiss Mrs Frigger's application.

Application to amend particulars

1. By their written submissions of 4 December 2020, the applicants sought to amend paragraph 4 of the Particulars.  The amendment sought to delete the allegation that the original access to the Confidentiality Order was a breach of that order and to replace it with the contention that this occurred without Mrs Frigger obtaining an order from the court permitting access. 

2. The application was not opposed by Mrs Frigger.[36]

   [36] ts 764.

3. In my view, the application to amend [4] of the Particulars should be allowed.  I do not consider the proposed amendment inserts a new allegation or is a significant change to the Particulars.  There could be no prejudice to Mrs Frigger in granting leave to the applicants to amend the Particulars. 

Removal of CAT as a party

1. Mrs Frigger sought an order that in so far as the Notice was brought on behalf of CAT, the Notice be struck out on the basis that the applicants' solicitors (Herbert Smith Freehills) do not have authority to make the application on behalf of CAT.

2. Mrs Frigger submitted there was no evidence before the court that the solicitors had been retained by CAT and accordingly, they should be removed as a party to the Notice.

3. Counsel for the applicants drew the court's attention to the fact that the original orders were obtained on behalf of both applicants.  Given the Notice concerned these orders, it was appropriate for both applicants to bring the application. 

4. Pursuant to s 477(2) of the Act, a liquidator of a company may bring any legal proceedings in the name of and on behalf of the company (s 477(2)(a)), and may appoint a solicitor to assist him or her (s 477(2)(b)).  As such, Mr Kitay as liquidator of CAT can enter into a costs agreement with Herbert Smith Freehills and is able to instruct Herbert Smith Freehills to bring these proceedings on behalf of CAT. 

5. In these circumstances, there is no basis on which Mrs Frigger can apply to strike out CAT as a party to this application and her application should be dismissed.

Conclusion

1. For these reasons, Mrs Frigger's applications for orders 1, 3 and 4 in her minute of orders dated 24 February 2021 should be dismissed, save for the amendment to [7] which is conceded by the applicants.  The applicants' application for leave to amend [4] of its Particulars will be allowed. 

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

HW

Research Associate to the Honourable Justice Hill

14 DECEMBER 2021