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 7]

[2024] WASC 122

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

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 7] [2024] WASC 122

CORAM:   HILL J

HEARD:   ON THE PAPERS

DELIVERED          :   11 APRIL 2024

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 - Proposed amendment to particulars of notice of contempt - Whether leave should be granted to amend particulars - Application granted

Legislation:

Nil

Result:

Application for leave to amend in terms of substituted amended notice of contempt allowed

Category:    B

Representation:

Counsel:

Applicants	:	No appearance
Interested Party	:	No appearance

Solicitors:

Applicants	:	Herbert Smith Freehills
Interested Party	:	No appearance

Case(s) referred to in decision(s):

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

HILL J:

1. On 14 December 2021, I delivered reasons for decision on an interlocutory application filed by Mrs Frigger to strike out the notice of motion to punish her for contempt.[1]  As noted in the Primary Reasons, in submissions filed in response to the application as well as at the hearing of the interlocutory application, the applicants sought leave to amend the particulars of the notice of contempt.

   [1] 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 (Primary Reasons).

2. The Primary Reasons record, as was the case, that:

   (a)at the hearing, the applicants conceded that the words 'filed and' in [7] of the particulars should be deleted;[2]

   (b)the application to amend [4] of the particulars was not opposed by Mrs Frigger;[3]

   (c)I allowed the application to amend [4] of the particulars.[4]

   [2] Primary Reasons [39].

   [3] Primary Reasons [70].

   [4] Primary Reasons [71].

3. At the hearing on 14 December 2021 to deliver the Primary Reasons, the applicants proposed filing an amended notice of contempt.

4. Given that Mrs Frigger had not had an opportunity to consider the amendments proposed by the applicants, I ordered that she file and serve any submissions in opposition to the proposed amendments by 4.00 pm on 17 December 2021 with the applicants to file any submissions in response by 4.00 pm on 21 December 2021 or, if no objection was taken, the amended particulars.  The application for leave was otherwise reserved to be dealt with on the papers. 

5. No submissions were filed and served by Mrs Frigger by 17 December 2021. As a result, on 21 December 2021 the applicants filed an amended notice of contempt. The amended notice marked up the changes that were proposed to be made. These were changes to [1] (to reflect an error in the date), [4], [7] (to reflect the concession that had been made by the applicants) and [9].

6. On receipt of the amended notice of contempt, Mrs Frigger emailed the court noting her objection to the amended notice of contempt, stating she had not been able to view any amendments on the document she had received on 14 December 2021 and stating that, if she objected to the amendments, she would file any submissions by 4.00 pm on 22 December 2021.[5]

   [5] Email from Mrs Frigger to Associate to Hill J (cc to Mr John, HSF) dated 21 December 2021.

7. On 22 December 2021, Mrs Frigger filed submissions objecting to the proposed amendments in [4] and [9] of the amended notice of contempt.

8. On 23 December 2021, the applicants filed responsive submissions objecting to the submissions filed by Mrs Frigger as being out of time and, if the submissions were considered by the court, responding to the matters raised.

9. While I accept that Mrs Frigger's submissions were filed after the date ordered by the court, there was no significant delay in filing these submissions nor in the applicants responding to them.  I do not consider the applicants suffered any prejudice from the late filing of the submissions.  On this basis, I have considered the submissions of Mrs Frigger and the objections raised to two of the proposed amendments.

Proposed amendment to [4]

1. In their submissions filed 7 December 2020, in response to Mrs Frigger's application, the applicants submitted that:[6]

   Notwithstanding, to the extent that it might avoid confusion, Mr Kitay and CAT would be satisfied to amend the Notice of Contempt at paragraph [4] so that it reads as follows:

   'In uncertain circumstances, in breach of the Confidentiality Orders, and without obtaining an order from the Court permitting access, Mrs Frigger obtained access to the Confidentiality Affidavit and copied it'.

   [6] Applicants' submissions filed 7 December 2020 [14].

2. The amendments proposed by the applicants are consistent with this wording.

3. At the hearing of the original application, Mrs Frigger did not object to this amendment.  Notwithstanding this, Mrs Frigger now objects to leave being granted on the basis that no evidence has been adduced by the applicants that she obtained access to the Confidential Affidavit without an order from the court permitting access.  Her submission is that it was the Supreme Court registry staff who obtained access to the affidavit without a court order.

4. The applicants say that Mrs Frigger cannot object to this proposed amendment, given the conclusions in the Primary Reasons, except on an appeal against these reasons.  The time period for the commencement of any appeal has long since passed.

5. While I accept that in the Primary Reasons, I held that leave ought be granted to amend the particulars in this form, to date no orders have been made by the court.  Given that any appeal must be against orders and not reasons for decision, I do not accept that Mrs Frigger is prevented from challenging these particulars without appeal.

6. However, it is my view that the objection is without merit and leave ought be granted to amend [4] of the particulars in the form proposed.

7. The evidence filed in support of the notice of motion is that orders were made by this court on 17 January 2012 for the Confidential Affidavit not to be accessed by any person without the order of this Honourable Court, and that Mrs Frigger has obtained access to the Confidential Affidavit.  As is made clear by the particulars, the applicants rely on the absence of any order from the court enabling this access.

8. The factual question as to what occurred and how Mrs Frigger obtained access to the Confidential Affidavit is a matter to be determined at the hearing of the notice of motion.  In my view, the particulars set out the allegations made by the applicants in sufficient detail and particularity to enable Mrs Frigger to respond to them.  The proposed amendment does not insert any new allegation and I do not consider that there is any prejudice in granting leave to the applicants to amend [4] of the particulars in the form proposed.

Proposed amendment to [9]

1. In the amended notice of contempt, the applicants proposed the following amendment:[7]

   In disobedience of Order 2 of Master Sanderson's Orders, Mrs Frigger did not permanently delete all electronic copies of the Confidential Affidavit which were in her possession and signed the Statement and swore the Confidential Confirmation Affidavit which were false.

   [7] Amended Notice of Contempt filed 21 December 2021.

2. Mrs Frigger objected to this amendment on the basis that she had not filed and served any affidavit which was marked or ordered to be confidential.[8]

   [8] Mrs Frigger's submissions filed 22 December 2021 [3].

3. In their reply submissions, the applicants conceded this was the case and sought leave to file a substituted amended notice of contempt which proposed the following amendment:[9]

   In disobedience of Order 2 of Master Sanderson's Orders, Mrs Frigger did not permanently delete all electronic copies of the Confidential Affidavit which were in her possession and signed the Statement and swore the Confirmation Confidential Affidavit which were false.

   [9] Substituted Amended Notice of Contempt filed 23 December 2021.

4. The term 'Confirmation Affidavit' is defined in [8] of the substituted amended notice of contempt to be an affidavit sworn and filed on 6 June 2014 in these proceedings.

5. As conceded by the applicants, it is my view that Mrs Frigger's objection was well‑founded.  However, this has now been addressed by the filing of a substituted amended notice of contempt.  In these circumstances, the applicants should have leave to amend [9] in the form set out in the substituted amended notice of contempt filed 23 December 2021.

Conclusion

1. For these reasons, the applicants should have leave to amend their notice of contempt in terms of the substituted amended notice of contempt filed 23 December 2021.

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

JN

Associate to the Honourable Justice Hill

11 APRIL 2024