Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 5]
[2020] WASC 39
•13 FEBRUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD -v- COMPUTER ACCOUNTING AND TAX PTY LTD [No 5] [2020] WASC 39
CORAM: KENNETH MARTIN J
HEARD: 21 JANUARY 2020
DELIVERED : 13 FEBRUARY 2020
FILE NO/S: COR 2 of 2010
BETWEEN: PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD
First Plaintiff
DONALD CAMPBELL-SMITH AS EXECUTOR OF THE ESTATE OF MARTIN BANNING
Second Plaintiff
AND
COMPUTER ACCOUNTING AND TAX PTY LTD
Defendant
Catchwords:
Practice and procedure - Self represented litigant -Attempts to file interlocutory process in existing corporations action - Refusal to accept filing of interlocutory process - Application to judge in chambers for leave to file - Whether an abuse of court's process - Actual attack against court orders appointing a liquidator almost a decade ago - Application dismissed
Legislation:
Corporations Act 2001 (Cth)
Rules of the Supreme Court 1971 (WA)
Supreme Court (Corporations) (WA) Rules 2004
Result:
Application dismissed
Category: B
Representation:
Counsel:
| First Plaintiff | : | No appearance |
| Second Plaintiff | : | No appearance |
| Defendant | : | No appearance |
| Interested Party | : | Mrs A Frigger |
Solicitors:
| First Plaintiff | : | No appearance |
| Second Plaintiff | : | No appearance |
| Defendant | : | No appearance |
| Interested Party | : | Mrs A Frigger |
Case(s) referred to in decision(s):
Computer Account and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 10] [2015] WASC 380
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 8] [2015] WASC 166
Deputy Commissioner of Taxation v Annesley Plant Hire Pty Ltd [2010] FCA 755
Double Bay Newspapers Pty Ltd v The Fitness Lounge [2006] NSWSC 266
Frigger v Banning [No 9] [2019] FCA 1611
Frigger v Kitay [2016] WASC 60
Frigger v Kitay [No 2] [2017] WASCA 139
Frigger v Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 14] [2017] WASC 120 (S)
Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 14] [2017] WASC 120
Frigger v Professional Services of Australia Pty Ltd [No 2] [2011] WASCA 103
Frigger v Professional Services of Australia Pty Ltd [No 2] [2016] WASCA 68
In the matter of Complete Investing Services Pty Ltd (in liq) [2018] NSWSC 1003
In the matter of Day and Night Online Transport Pty Ltd (in liq) [2018] NSWSC 796
Jonesco v Beard [2002] NSWCA 34
Manone v Pantzer [2001] NSWSC 26; (2001) 36 ACSR 743
Permanent Custodians Ltd v Elite Grains Pty Ltd [2014] WASC 495
Professional Services of Australia Pty Ltd (Administrator Appointed) v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2010] WASC 38
Re Rules of the Supreme Court 1971 (WA); ex parte Gates [2018] WASC 213
Toubia v Schwenke [1930] AC 298
KENNETH MARTIN J:
Introduction
I am dealing with Mrs Frigger's ex parte application seeking permission (ie, leave) to file a form 3 interlocutory process in COR 2 of 2010. Mrs Frigger was refused permission to file by the Principal Registrar on 15 November 2019 and now seeks leave under Rules of the Supreme Court 1971 (WA) (RSO) O 67 r 5. Mrs Frigger is, of course, not a named party to this proceeding but has been involved in the proceeding on the basis of her prior relationship with the defendant company, Computer Accounting and Tax Pty Ltd (ACN 009 470 491) (CAT).
Towards the task of determining whether Mrs Frigger should be granted leave, it is necessary for me to look back over the history of this action and to numerous other related proceedings in this and other courts associated with Mrs Frigger.
Relevant procedural history involving Mrs Frigger
COR 2 of 2010
Proceeding COR 2 of 2010 was commenced in this court by an originating process of 8 January 2010 seeking an order for the winding up of CAT at the behest of a creditor.
On 21 January 2010, Mr Mervyn Kitay was appointed provisional liquidator of CAT: see Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2010] WASC 38.
On 6 May 2010, Mr Kitay became court appointed liquidator of CAT when CAT was ordered to be wound up in insolvency under the orders of Master Sanderson made that day (the May 2010 winding up orders): see Professional Services of Australia Pty Ltd (Administrator Appointed) v Computer Accountingand Tax Pty Ltd[No 3] [2010] WASC 93.
The May 2010 winding up orders were not and have never been the subject of any appeal. To that end, see reasons of the Court of Appeal in Frigger v Kitay [No 2] [2017] WASCA 139 [17(4)] and especially footnote 26.
CIV 1606 of 2015
For additional relevant background, it is useful to briefly discuss an action commenced later in this court - CIV 1606 of 2015. Those civil proceedings were commenced by Mrs Frigger (and her husband) against Mr Kitay as liquidator of CAT. The Friggers had filed an amended statement of claim of 4 June 2015 which, as the Court of Appeal observed in Frigger v Kitay [No 2] at [3]:
… was a lengthy document containing a wide and diffuse range of allegations expressed in general and vague terms in relation to certain alleged misconduct by the liquidator over the period from around February 2010 to around July 2014.
CIV 1606 of 2015 had been stayed following the primary judge's (Le Miere J) reasons and orders in Frigger v Kitay [2016] WASC 60 (Frigger v Kitay [2016]). It was following the appeal against the stay orders made as a result of that decision that the Court of Appeal had published Frigger v Kitay [No 2].
In staying CIV 1606 of 2015 the primary judge had noted that the Friggers required leave to sue the liquidator. To obtain leave the primary judge noted at [15] (by reference to the observations of Santow J in Manone v Pantzer [2001] NSWSC 26; (2001) 36 ACSR 743) that the applicable principles and their public purpose were that:
i.the court will protect its officer from spurious or vexatious litigation; and
ii.the court will protect the integrity of the winding up progress to ensure no wrongful interference with that process.
See also the observations of the Court of Appeal in Frigger v Kitay [No 2] endorsing the observations of the primary judge.
Under Frigger v Kitay [2016] (at [58] - [59]) the primary judge had refused the Friggers' application for leave to proceed against Mr Kitay as liquidator and ordered that the proceedings be permanently stayed.
It was later to be observed by the Court of Appeal in Frigger v Kitay [No 2] at [5]:
His Honour found, in effect, that certain claims involved an abuse of process, that in other claims, Mr and Mrs Frigger had not adduced sufficient evidence to justify the grant of leave and the claims had no real prospects of success, and that some claims involved both an abuse of process as well as having no real prospect of success.
The Court of Appeal's reasons in Frigger v Kitay [No 2] at [9], [10] and [14] contain a helpful commencing summary towards what, at 2017, had to then been an unrelenting saga of litigation in this court - either directly or indirectly concerning Mrs Frigger. This litigation stemmed from her expressed grievances concerning the appointment and conduct of Mr Kitay following his appointment as a provisional liquidator of CAT (which formerly had been a corporation controlled by Mr and Mrs Frigger).
Without in any way attempting to be exhaustive (which itself would be exhaustive for me) I note that by reference to the statement of claim as had been relied upon by the Friggers in CIV 1606 of 2015 (and still the subject of the permanent stay as was confirmed by the Court of Appeal) that the then asserted contraventions as were put against Mr Kitay included (as summarised by the Court of Appeal in Frigger v Kitay [No 2] at [9] item 6) that:
Mr Kitay refused to allow Mrs Frigger 'to represent CAT' at the taxation of bills of costs of CAT's former solicitors (BBV) and refused to 'request BBV to file its bills of March and April 2007 and all of counsel bills'.
At [10] the Court of Appeal had noted that Mr and Mrs Frigger were contending for alleged breaches of statutory and fiduciary duties by the liquidator, including:
(e)Mr Kitay did not consent to Mrs Frigger's various requests to him in the course of the liquidation and provisional liquidation regarding costs for the improper purposes of prolonging the liquidation and earning fees, and gaining an advantage for himself and others, including judgment creditors of CAT, and to cause 'detriment to CAT'.
(f)Mr Kitay gave false evidence for the purposes of 'falsely stating that CAT was insolvent and in order to obtain a winding up order [sic]'.
The allegations attempted to be raised without leave by the Friggers in CIV 1606 of 2015 were duly summarised by the Appeal Court in Frigger v Kitay [No 2] at [13] in these terms:
The primary proceedings against Mr Kitay were one emanation of a multiplicity of proceedings and claims brought by Mr and Mrs Frigger against a variety of persons having a connection with the winding-up of CAT and the events leading up to the winding-up of CAT. A number of the events go back to 2003, and there has been a substantial torrent of litigation in the General Division, and a number of appeals to this court, for over a decade. Summaries of aspects of the litigation may be found in, for example, Frigger v Professional Services of Australia Pty Ltd [No 2] ([2016] WASCA 68 [1] - [21]) and Frigger v Lean [No 2] ([2016] WASCA 212 [3] - [33]).
Regarding Mr Kitay's appointment first as provisional liquidator of CAT and then as liquidator, the Court of Appeal duly observed upon the May 2010 winding up orders at [17(2)] and [17(3)]:
On 6 May 2010, Master Sanderson ordered that CAT be wound up in insolvency following non-compliance with statutory demands and no application having been made to set them aside. CAT never paid the amounts ordered to be paid to PSA and Mr Banning's executor under the Overpayment Orders.
In his judgment in relation to the winding-up of CAT in insolvency, Master Sanderson said [referring to Professional Services of Australia Pty Ltd (Administrator Appointed) v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93 at pars 17 - 19]:
[T]he investigations by Mr Kitay indicate [CAT] is insolvent. No elaborate examination of Mr Kitay's evidence is necessary. [CAT] is indebted to [PSA and Mr Banning's executor] in an amount of over $800,000. It does not have the capacity to make that payment. It is therefore not able to meet its debts as and when they fall due and it is prima facie insolvent.
CIV 2265 of 2006
At [18] and [19] of Frigger v Kitay [No 2] the Court of Appeal had made reference to the issue of the costs orders in CIV 2265 of 2006 (referred to as the Original Proceedings). Those costs orders were varied and substituted by the trial judge Simmonds J in Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 8] [2015] WASC 166. The Court of Appeal had observed at [18]:
They included orders that the defendants to the Original Proceedings pay 50% of CAT's costs of the action, and that CAT pay various other costs to the defendants of the Original Proceedings.
Referring then to Simmonds J's further reasons in Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 10] [2015] WASC 380 at [90] - [91], the Court of Appeal noted the aspect of Simmonds J's observations concerning the effects of his revised substituted costs orders - which at 9 October 2015 had not then been taxed. Simmonds J had said (as cited by the Court of Appeal at [20] of Frigger v Kitay [No 2]):
I consider that on the amount in respect of the Judgment sum that CAT must repay as I previously indicated, and the reductions in the costs for CAT the result of my decision in CAT [No 8] WASC, it is most likely there is a significant net amount owing by CAT to the defendants in respect of the legal and enforcement costs of CIV 2265 of 2006.
The Court of Appeal had added the emphasis to the words in italics cited from the reasons of Simmonds J extracted above.
By reference to further aspects of the reasons of the Court of Appeal under [30] of their Honours' reasons, I will record without citing further that certain particulars provided concerning ground 1 of that appeal by the Friggers had concerned requests they had made to Mr Kitay but were refused by him as regards contended rights under a charge and in the proceeding LPA 30 of 2008 (see [30(2)]). Those LPA proceedings concerned a challenge by the Friggers by a taxation against the bills of costs that had been rendered to them and been paid to their former lawyers. Ground 1 was dismissed by the Court of Appeal: see [98].
More specifically, however, I refer to ground 2 of the appeal, under which it was contended by the Friggers that the primary judge (Le Miere J) erred by his finding at [24] that the matters sought to be raised by Mr and Mrs Frigger under par 101(1) of the statement of claim (see Frigger v Kitay [No 2] [32]) were:
… a collateral attack upon the decision of Simmonds J to appoint Mr Kitay as provisional liquidator of CAT in Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2010] WASC 38, and upon the decision of Master Sanderson in ordering the winding-up of CAT in Professional Services of Australia Pty Ltd (Administrator Appointed) v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93.
In turn, at [33] the Court of Appeal had noted the particulars given to the Friggers' ground 2, in relation to Professional Services of Australia (PSA) becoming the subject of a DOCA and the Friggers' asserted contraventions towards a variation in the terms of the DOCA being made without any creditor's resolution, thereby allegedly contravening s 445 of the Corporations Act2001 (Cth) and another contention of the Friggers concerning variations to the DOCA 'which variations had never taken effect, and which DOCA had nothing to do with the proper purpose of the appeal'.
The Friggers' ground 2 was also rejected by the Court of Appeal. Before I turn to that I note the observation of the Court of Appeal at [38] towards LPA 36 of 2008 - as regards costs as charged by former lawyers BBV to CAT (with BBV formerly acting at one point for CAT).
The Court of Appeal had noted at that appeal, by reference to the unsuccessful ground 1 as regards Mrs Frigger, that '[s]he said that the taxation proceeded without anyone representing CAT at the taxation, and that all of BBV's costs were allowed' at [38]. See also Court of Appeal's reasons at [87] concerning that solicitor/client taxation of costs vis-à-vis BBV.
Concerning ground 2, the Court of Appeal duly observed at [99] in terms of the Friggers' statement of claim being an abuse of process - in reference to the then allegations at par 101(1), by reference to there being an illegitimate collateral attack against the previous decisions of the court:
… The relevant paragraph of the statement of claim repeats assertions made with respect to the effect of a deed of company arrangement which have been rejected both by this court and by judges at first instance and makes assertions with respect to the solvency of CAT which are contrary to findings made by the court at the time Mr Kitay was appointed liquidator of that company.
At the end of that passage, by footnote 84, the Court of Appeal referred to an earlier appeal, Frigger v Professional Services of Australia Pty Ltd [No 2] [2016] WASCA 68 at [8] - [21] and at [65] - [78]. The Court then continued at [99]:
The judge at first instance was plainly correct to conclude that the allegations are an abuse of process. Ground 2 is entirely without substance. Ground 2 must be dismissed.
The significance of the prior stay orders against Mr and Mrs Frigger
It is important to note then that by the decision of Le Miere J in Frigger v Kitay [2016], then appealed and confirmed by the Court of Appeal as Frigger v Kitay [No 2], that Mrs Frigger (and her husband) under those decisions remain the subject of a refusal of leave in respect of their earlier attempt to bring proceedings against Mr Kitay. Leave was denied to them in 2017 for that purpose. In addition, their action was permanently stayed including in certain respects as an abuse of process. Nothing much has changed here, as we will see.
Mrs Frigger's background in the current proceedings
All those prior decisions against Mrs Frigger (and her husband) provide an important background context for the determination of her present ex parte application. As mentioned, Mrs Frigger is now seeking leave for herself, pursuant to RSC O 67 r 5, to file her form 3 interlocutory process in COR 2 of 2010.
A form 3 was submitted by Mrs Frigger in the present action, ostensibly pursuant to r 2.2 of the Supreme Court (Corporations) (WA) Rules 2004 (the Corporations Rules). At the time the Supreme Court registry and, later, the Principal Registrar of this court refused Mrs Frigger's attempt to file that form - which had been accompanied by a supporting affidavit of Mrs Frigger sworn 8 November 2019 (Mrs Frigger's November 2019 affidavit). Refusal was on the basis that there was an ostensible transgression against RSC O 67 r 5(1) with the Principal Registrar on 15 November 2019 observing in a letter to Mrs Frigger (the 15 November 2019 refusal letter) that:
I have refused to accept the interlocutory process for filing as it appears to be an abuse of process of the court or a frivolous or vexatious proceedings.
Mrs Frigger's present application to a judge in chambers for leave to file her proposed form 3 interlocutory process in COR 2 of 2010 reaches me in a somewhat circuitous way.
To that end, I need to divert briefly to explain what has gone wrong, before returning to the question of whether or not leave (ie, permission) to file should be granted to Mrs Frigger.
RSC O 67 r 5
Needless to say, in determining an application of this nature, a Judge, in effect, approaches the matter de novo, in accord with principles helpfully collected by Vaughan J (as his Honour then was) in Re Rules of the Supreme Court 1971 (WA); ex parte Gates [2018] WASC 213. I respectfully adopt without further citation Vaughan J's discussion of the legal framework towards RSC O 67 r 5 at [18] - [33] concerning abuses of process of the court and frivolous or vexatious proceedings. I only note further that his Honour had said this at [26], and I again respectfully adopt the observations:
What amounts to an abuse of the court's process is insusceptible of a formulation comprising closed categories. It extends to all categories of case in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. 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. However, the onus of satisfying the court that there is an abuse of process is a heavy one. The power to dismiss proceedings as an abuse of process should be exercised with caution and only in the most exceptional or extreme case. [Referring to Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 392.]
More procedural history
Before I proceed much further I need to return to some more of the observations by the Court of Appeal as made in Frigger v Kitay [No 2] [21]. They concern some even earlier litigation that was again commenced out of this court by Mrs Frigger (inter alia) and, again, as against Mr Kitay (CIV 2765 of 2010), well prior to CIV 1606 of 2015. I refer to [21] of the Court of Appeal's reasons (incorporating footnote 31 thereto) where the court had said:
In 2010, in CIV 2765 of 2010, Mr and Mrs Frigger commenced proceedings against Mr Kitay in his capacity as liquidator of CAT. Those proceedings had generated, prior to the primary court's decision in the proceedings subject to this appeal, at least nine interlocutory judgments. [Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [2013] WASC 229; Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liqudation) [2013] WASC 229(S); Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 2] [2013] WASC 394; Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 3] [2014] WASC 24; Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 4] [2014] WASC 165; Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 5] [2014] WASC 195; Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 6] [2014] WASC 384; Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 7] [2014] WASC 441; and Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 8] [2015] WASC 104.]
Towards that action I also note the observations made by Martino J in Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 14] [2017] WASC 120.
I can now turn back to the procedural history of the present application which, as might only be expected, is tortuous.
COR 2 of 2010: recent procedural history
As I earlier explained, COR 2 of 2010 was originally commenced back at 8 January 2010, as an originating process under the Corporations Act and under the court's Corporations Rules. It had been commenced by PSA as a creditor, then contending, essentially, that CAT was insolvent and that CAT had failed to meet a series of statutory demands issued to it by PSA.
As also indicated, Mr Kitay had been appointed, initially as provisional liquidator on 21 January 2010 by Simmonds J. Later, he was appointed the court appointed officer/liquidator of CAT under Master Sanderson's May 2010 winding up orders.
In November 2019, Mr Kitay is still acting as the liquidator of CAT.
But towards the end of the 2019 calendar year, COR 2 of 2010 looked essentially to be almost completed, in the wake of the reasons for decision of Martino J, delivered 21 July 2017: see Frigger v Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 14] [2017] WASC 120 (S). Those reasons addressed a discrete issue concerning Mrs Frigger's contended unauthorised access to a confidential document and to her contended violation of certain prior orders of this court, made to that objective of confidentiality. Martino J had also ordered on 20 July 2017 at [43] that:
Mr and Mrs Frigger pay Mr Kitay's costs of the application for an order that they have leave to rely on and refer to the confidential affidavit of Mr Kitay [dated 5 January 2012], to be taxed and paid forthwith.
Almost a year later, at 17 July 2018, Master Sanderson issued an order dismissing another application brought by Mrs Frigger filed 14 May 2018 (which appears to be missing from the court record). But the Master's recorded orders that day were:
1.Application dismissed.
2.Mrs A Frigger to pay the costs of the application.
The only live activity during the 2019 calendar year in COR 2 of 2010 was a filing of a notice of motion seeking the punishment of Angela Cecilia Theresa Frigger for an alleged contempt of court and for related orders - by the application of the lawyers for the liquidator on 7 October 2019 (see court folio document 124) (the contempt motion). The contempt motion on its face looks to concern the liquidator's expressed grievance over Mrs Frigger's suggested failure to deliver up or to destroy all hard copies of a confidential document (being an affidavit of Mr Kitay sworn 5 January 2012 and annexures thereto) as she had been ordered by Master Sanderson in May 2014.
It would appear that by court folio document 125, filed 9 October 2019 in COR 2 of 2010, Mr Kitay filed a 278 page affidavit in support of that contempt motion pursued against Mrs Frigger.
It appeared no date had been set for a hearing of the liquidator's contempt motion.
According to the COR 2 of 2010 eFile, there was also a related interlocutory process filed on 17 October 2019 again by lawyers for the liquidator, again seeking relief against Mrs Frigger by way of a sanction for contempt of court and/or alternative relief, by reference to alleged conduct of Mrs Frigger in relation to the confidential affidavit of Mr Kitay sworn 5 January 2012.
That appeared to be the state of the action COR 2 of 2010 during 2019, before the events of 11 November 2019 involving Mrs Frigger.
11 November 2019: Mrs Frigger's attempted interlocutory process
On 11 November 2019, Mrs Frigger attempted to file her form 3 interlocutory process and her November 2019 affidavit in COR 2 of 2010.
In the framework of the Corporations Rules under by COR 2 of 2010 was commenced in this court, Mrs Frigger had attempted to file her form 3 interlocutory process under r 2.2.
To that end, I note r 2.2(4), which says:
(4)An interlocutory process must -
(a) be in accordance with Form 3; and
(b) state -
(i)if appropriate, each section of the Corporations Act or the ASIC Act, or each regulation of the Corporations Regulations, or each rule of Court under which the application is made; and
(ii)the relief sought.
Mrs Frigger's attempted form 3 interlocutory process of 11 November 2019 described herself as the 'Applicant'. Under a heading 'A. Details of Application' she had written this:
1.This application is made under Corporations Act 2001 Schedule 2 Insolvency Practice Schedule (Corporations) section 90-20 and section 206G Corporations Act 2001.
2.On the facts stated in the supporting affidavit, the applicant claims:
(a)An order under s 482(1) Corporations Act 2001 staying the liquidation of Computer Accounting & Tax Pty Ltd (009 470 491) pending the resolution of this application.
(b)An order that the winding up orders of Computer Accounting & Tax Pty Ltd (009 470 491) made on 6 May 2010 be set aside.
(c)An order under section 206G(1) Corporations Act 2001 granting leave to Angela Cecilia Theresa Frigger to manage Computer Accounting & Tax Pty Ltd (ACN 009 470 491).
By her item D, Mrs Frigger indicated it was intended to serve a copy of the interlocutory process on CAT, at an address in Ogilvie Road, Mount Pleasant, WA.
The form 3 interlocutory process
Before turning to Mrs Frigger's November 2019 affidavit, I will render some observations about the attempted form 3 interlocutory process as submitted to the Registry by Mrs Frigger, by reference to what appears on the face of that document.
Mrs Frigger's attempted form 3 interlocutory process from its face displays, in reference to the relief that is seen being sought under subpar 2(b) above, what manifests as a demonstrable attack against the May 2010 winding up orders as were made by Master Sanderson -almost a decade ago. Moreover, it is to be remembered that this winding up order was never the subject of any appeal.
When I put to Mrs Frigger in person, at the hearing of her application on Tuesday, 21 January 2020, that her form 3 interlocutory process was a 'collateral' attack against the 2010 appointment of Mr Kitay as liquidator of CAT, her response was revealing. Mrs Frigger fulsomely rejected that characterisation of a 'collateral' attack. To the contrary, she then stated that her submitted interlocutory process was an 'actual attack' against the appointment of Mr Kitay as the liquidator of CAT: see ts 24. That, of course, only makes matters worse for her.
In light of a demonstrably wasteful history by prodigious amounts of litigation already brought in this court by Mrs Frigger against Mr Kitay and, in particular, the continuing permanent stay orders against Mr and Mrs Frigger's action CIV 1606 of 2015 (all in circumstances where I repeat that there has never been an appeal lodged against Master Sanderson's 2010 winding up orders) the relief seen as being sought under par 2(b) of the form 3 interlocutory process in COR 2 of 2010 can be seen to display the obvious hallmarks of yet another illegitimate attempt to cavil over or to undermine Mr Kitay's 2010 appointment. As matters stood in November 2019, all disputes surrounding the appointment of Mr Kitay in 2010 had then been finally quelled, by the prior orders of this court.
For Mrs Frigger to attempt in November 2019 to reopen and undermine the winding up orders made in COR 2 of 2010 against CAT by a superior court long ago, through a side‑wind of an interlocutory process, presents, prima facie, as wholly untenable - on the basis of that conduct being a clear abuse of process of the court.
For that reason, it was entirely proper for the Supreme Court's registry on 11 November 2019 to reject Mrs Frigger's submitted form 3 interlocutory process in COR 2 of 2010 and her accompanying November 2019 affidavit.
I should also observe that Mrs Frigger's attempt to invoke sch 2 of the Corporations Act Insolvency Practice Schedule at s 90‑20, as a potential gateway to an attempt of reopening of all these 'old wounds', also presents, on its face, to be illegitimate - viewed against the prior history of all the litigation in this court involving Mrs Frigger over the last decade.
During her verbal submissions made at the hearing of this application before me in chambers, Mrs Frigger referred to the sch 2 Insolvency Practice Schedule as a basis for her suggested 'standing' to file her form 3 interlocutory process. Presumably, that was contended on a basis of Mrs Frigger's status as a 'creditor' of CAT and, therefore, as a person who might thereby apply for an order under s 90‑15, to then have the court make such orders as the court thinks fit in relation to the external administration of the company (CAT).
Finally, I can observe by reference to Mrs Frigger's form 3 interlocutory process that her invocation of s 482(1) of the Corporations Act seeking to stay the liquidation of CAT, 'pending the resolution of this application' looks to present as subsidiary relief overall - to the ultimate relief as was being sought by her (if permitted) via 2(b), as regards the setting aside the May 2010 (CAT) winding up orders.
Mrs Frigger's November 2019 affidavit
Mrs Frigger's November 2019 affidavit refers to her lodgement of a formal proof of debt with the liquidator of CAT on 3 August 2010 for $27,700 (attachment AF1A). However, Mrs Frigger's status as a creditor or otherwise of CAT, is not the present issue.
Mrs Frigger's November 2019 affidavit, however, is highly revealing in terms of her objectives. At par 3 she deposes - and, I might add, in completely inadmissible evidentiary fashion by the lack of any stated facts providing the basis for her as expressed 'belief' - but which I still mention only for the insights it conveys as to an abuse of process:
I believe that the winding up CAT was a nullity and void as it was obtained by the directors of Professional Services of Australia Pty Ltd (ACN 082 879 641) when that company was already in liquidation and directors' powers had ceased. Further, until a statutory set-off between CAT and PSA was calculated pursuant to s 553 of the Act, CAT did not owe anything to PSA and the statutory demand issue by PSA was also a nullity and void.
Paragraphs 4 - 7 of Mrs Frigger's November 2019 affidavit that would proceed to raise issues concerning the Deed of Company Arrangement (DOCA), to which PSA was subject, and making references to various contended versions of the DOCA. Mrs Frigger next articulates her further belief (again without any supporting evidentiary foundation), at par 7:
I believe that pursuant to the finding of Simmonds J in 2012, DOCA-V3 was a fraudulent document, created by Donald Campbell-Smith for the purposes of avoiding the automatic termination of Amended DOCA and avoid PSA going into liquidation.
The above as extracted paragraphs from Mrs Frigger's November 2019 affidavit only serve to render it even more explicit, if that were not the case already, that the currently expressed objective of Mrs Frigger is, at root, to challenge and to set aside the May 2010 winding up order appointing Mr Kitay as the liquidator of CAT, notwithstanding all her past efforts in that respect which, as seen, have wholly failed.
There are further aspects to Mrs Frigger's November 2019 affidavit of a lesser magnitude. Commencing at par 14 she has said:
14.There are only two matters that need to be resolved before CAT is deregistered:
(a)Bill of costs filed in CIV2265/2006 (marked AF8 attached)
(b)Solicitor-client taxation in LPA36/2008 (marked AF9 attached)
15.Despite numerous requests, Kitay refused and or failed to resolve those matters.
...
17.For the purposes of resolving the matters in [14] above, I also seek an order that I may manage CAT. Attached and marked AF10 is a copy of Form 318 I lodged with ASIC on 8 November 2019.
18.For the purposes of [14a], I intend to have CAT's bill of costs listed and will seek leave to represent CAT in the taxation.
...
20.When the above two matters are resolved, I intend to deregister CAT. I have no intention of operating CAT for any reason whatsoever.
21.I intend to seek directions as to whether any person should be respondent in this application.
The matters Mrs Frigger contends under her par 14 as still needing to be resolved for CAT present as being of a lesser magnitude by contrast to the foreshadowed attempted form 3 interlocutory process par 2(b) relief towards seeking to set aside the May 2010 CAT winding up orders. However, these grievances over costs issues and the like are nonetheless significant from the perspective of, on the face of it, presenting as past issues that have already been well traversed territory. What emerges is that Mrs Frigger, in effect, seeks to second guess decisions about CAT made by the liquidator. That is for circumstances where these same costs grievances concerning CAT not proceeding with a taxation of costs against PSA have been previously considered by the Court of Appeal. As was mentioned, in Frigger v Kitay [No 2] at [18], the Court of Appeal had observed, by reference to Simmonds J's observations, that there appeared to be more money owing by CAT to PSA than what CAT might be entitled to obtain on such a taxation as regards the 50% of the original trial costs ultimately ordered under the orders of Simmonds J. These are matters for CAT's liquidator to evaluate.
The same costs grievances have already been ventilated against Mr Kitay, and then unsuccessfully by Mrs Frigger, within the overall framework of multiple grievances seen as the subject of (the now stayed) CIV 1606 of 2015.
Once again it is not legitimate to allow these fully and finally quelled disputes to be ventilated yet again by Mrs Frigger, by a side‑wind of a COR 2 of 2010 interlocutory process.
I also mention as regards Mrs Frigger's reference on her form 3 to s 206G of the Corporations Act that this this is a provision which allows a disqualified person (presumably Mrs Frigger as an undischarged bankrupt) to apply to a court for leave to manage inter alia a corporation (see s 206G(1)(a)). For such an application the ASIC needs to have been advised at least 21 days before the commencing of proceedings seeking to obtain such s 206G relief (see s 206G(2) and (4)). I address that issue further below.
Mrs Frigger's December 2019 affidavit
On 2 January 2020, Mrs Frigger filed a further affidavit, sworn on 30 December 2019 (Mrs Frigger's December 2019 affidavit). This affidavit was filed in a new proceeding, CIV 1015 of 2020, under circumstances I will turn to describe later in the reasons.
In her December 2019 affidavit, which was relied upon before me in support of the application for leave to file, Mrs Frigger attaches some of her email correspondence with ASIC officers during 2019. This correspondence refers to an earlier application made by Mrs Frigger to the Federal Court of Australia, but then concerning another corporation, namely, H & A Frigger Pty Ltd. For that instance, it seems that ASIC had not opposed Mrs Frigger's Federal Court of Australia application seeking for her to manage H & A Frigger Pty Ltd (as trustee of the Frigger Super Fund). It would appear that leave to Mrs Frigger was granted by the Federal Court of Australia on 21 October 2019.
However, on 27 November 2019, ASIC advised that as regards a further future management application by Mrs Frigger, foreshadowed under s 206G, but now for the corporation CAT, that CAT currently remained under the external administration of the liquidator, Mr Kitay. ASIC had essentially advised Mrs Frigger on 27 November 2019 that it was considering its position, but required further information from Mrs Frigger. Mrs Frigger appears to have attempted to provide that extra information under her correspondence of 20 December 2019, to a Mr Macchiusi of ASIC.
On 24 December 2019, Mr Macchiusi by email advised Mrs Frigger, in effect, that ASIC was considering the information as she had provided, and that ASIC would contact potentially interested parties before making any decision concerning Mrs Frigger's foreshadowed application to court under s 206G. But given the time of year, Mr Macchiusi had advised Mrs Frigger that she should not expect a response from ASIC as regards its position until 27 January 2020 (see Mrs Frigger's December 2019 affidavit AF3).
15 November 2019: the Principal Registrar's advice to Mrs Frigger
As I mentioned, the Supreme Court registry would not accept Mrs Frigger's submitted form 3 interlocutory process, nor Mrs Frigger's November 2019 affidavit.
Thereafter, on 15 November 2019 the Principal Registrar wrote to Mrs Frigger (the 15 November 2019 refusal letter). By that letter, the Principal Registrar drew Mrs Frigger's attention to the terms of RSC O 67 r 5 and advised:
I have refused to accept the interlocutory process for filing as it appears to be an abuse of process of the Court or a frivolous or vexatious proceeding.
For the reasons now articulated, I am now re‑evaluating that refusal decision de novo (ie, afresh). By my own independent assessment, however, there was then a more than reasonable basis to draw the conclusion from the face of the materials as were being submitted and attempted to be filed by Mrs Frigger in COR 2 of 2010 that she was seeking substantively to relitigate and to challenge the May 2010 winding up orders concerning CAT. This was an objective Mrs Frigger had unsuccessfully pursued in the past, as I have now explained, within CIV 1606 of 2015.
Nevertheless, by the 15 November 2019 refusal letter the Principal Registrar advised Mrs Frigger of her right in all the circumstances to seek the leave of a Judge, by reference to the terms of RSC O 67 r 5(3) and (4). The Principal Registrar also advised Mrs Frigger:
The Court will not accept the document for filing until such time as you have obtained the leave of the Court. The application for leave shall be made ex parte to a Judge in chambers, supported by affidavit.
The 15 November 2019 refusal letter advice was clear and explicit. Nevertheless, it was effectively ignored by Mrs Frigger. She sought to lodge an appeal against the refusal to accept her submitted materials.
22 November 2019: Mrs Frigger's 'appeal notice'
On 22 November 2019 at 4.19 pm Mrs Frigger sent an email to the Supreme Court's Central Office (copied to the Associate to Justice Hill) with a subject line 'COR2/2010'. Attached to the email was a form 80A appeal notice. The email advised:
Please accept for filing by email the above application, being a response to the notice of motion filed by Mervyn Kitay in the proceeding.
This filing is pursuant to permission of principal registrar Strk dated 15 November 2019. (my emphasis)
There was, of course, no such 'permission' of the Principal Registrar. Further, Mrs Frigger's first line reference in her email to a 'response' to the notice of motion filed by Mr Kitay in the proceeding', on my assessment, is revealing as to her motive. Sensibly read, it can mean only one thing. The reference is to the COR 2 of 2010 contempt motion filed by the lawyers for the liquidator against Mrs Frigger, but not then listed for a hearing.
When I asked Mrs Frigger at the leave hearing about the statement in her email, she seemed to first indicate that she knew nothing about a contempt motion: see ts 27 - 28. Subsequently, however, Mrs Frigger handed up to me a copy of correspondence she had obviously received from the Principal Registrar (also) of 15 November 2019 (the 15 November 2019 contempt letter): see ts 28 - 29.
By that further correspondence, the Principal Registrar had advised Mrs Frigger:
I refer to the notice of motion filed on behalf of Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (ACN 009 470 491) (in liq), and Computer Accounting and Tax Pty Ltd (in liq) for punishment of Angela Cecilia Theresa Frigger for contempt of court and other orders.
To the extent that you wish to present documents for filing in the proceeding known as COR 2 of 2010 in response to the notice of motion, I give you permission to do so by emailing the documents to:
[email address inserted for Central Office, Supreme Court of WA]
Mrs Frigger handed up to my Associate at the leave hearing a copy of the above advice on her own volition. Hence, it is clear that she knew of the pending contempt motion in COR 2 of 2010 filed on behalf of the liquidator.
Mrs Frigger's as submitted form 3 appeal notice was plainly misconceived in terms of it referring to RSC O 60A r 5(3). That appeal rule can only carry potential application for circumstances where a Registrar of this court had made a decision upon an application brought within pending proceedings (see RSC O 60A r 4).
However, that appeal route was wholly inapplicable to circumstances where Mrs Frigger's attempted interlocutory process of 11 November 2019 in COR 2 of 2010 had not been accepted for filing. Such 'rejection at the counter' circumstances do not fall within the ambit of O 60A r 5(3). There was no relevant 'decision of a registrar'.
For circumstances of a rejected filing, Mrs Frigger's redress was to seek the leave of the Judge in chambers to that end - as, indeed, the Principal Registrar's 15 November 2019 refusal letter had expressly said at its concluding paragraph now seen.
Nevertheless, the content of Mrs Frigger's form 80A appeal notice also carries some motive insights towards present circumstances, but not because of the grounds of appeal it attempted to articulate. Rather, the notice contained the following sentence in a box seen adjacent to directions sought to facilitate that misconceived appeal:
The matter be listed before Her Honour Justice Hill for case management on 20 or 23 November 2019, to be resolved prior to application by Mervyn Kitay. (my emphasis)
Read along with her covering email of 4.19 pm to which I have referred at [75] above, the above reference by Mrs Frigger to Mr Kitay's 'application' could only be read as a reference to the pending contempt motion against her.
The two references by Mrs Frigger now mentioned, and read in conjunction, provide a direct insight towards the motive of Mrs Frigger by then seeking to pursue her 11 November 2019 form 3 interlocutory process and then, by her attempted appeal against the rejection of her submitted process.
Effectively, it is open to infer, as I would, that, faced with Mr Kitay's pending contempt motion in COR 2 of 2010, Mrs Frigger was seeking to get in first, to deliver a pre-emptive strike. She was doing so by yet again challenging and seeking to undermine Mr Kitay's May 2010 appointment as the liquidator of CAT. Again, that indicates a clear abuse of process by Mrs Frigger by this conduct.
25 November 2019: the Principal Registrar's letter to Mrs Frigger
On 25 November 2019, the Principal Registrar wrote again to Mrs Frigger, as regards her proposed form 80A appeal notice which had also been rejected for filing by the Supreme Court registry. The Principal Registrar now advised her:
I have refused to accept the appeal notice for filing pursuant to the Rules of the Supreme Court 1971 (WA) Order 67 r 5. I have refused to accept the appeal notice as it appears to be an abuse of process of the court or a frivolous or vexatious proceeding.
The Principal Registrar referred to ground 1 of the proposed appeal notice document (which inter alia had complained of no reasons being given for the refusal to accept the filing of Mrs Frigger's attempted interlocutory process of 11 November 2019). The Principal Registrar advised Mrs Frigger:
I attach for your information a letter sent to you on Friday, 15 November 2019, by post and by email communication issued at 3:47pm.
As noted in the letter dated 15 November 2019, the Court will not accept the proposed interlocutory process for filing until such time as you have obtained the leave of the court.
What Mrs Frigger should have done - RSC O 67 r 5
By reference to the terms of RSC O 67 r 5 the following subrules are applicable when a submitted process is rejected for filing:
(3)In all other cases, an application or commission shall be made to a judge in chambers.
(4)Applications for leave under subrules (2) and (3) shall be made ex parte and shall be supported by affidavit.
An application that is made ex parte to a Judge in chambers is governed by RSC O 59 r 5(4). Relevantly, RSC O 59 r 3 also provides:
3.Applications in chambers
(1)If these rules do not require or authorise an application in chambers to be made in some other manner -
(a)...; and
(b)any other application in chambers must be made -
(i)if it is ex parte, by motion; or
(ii)in any other case, by summons.
The observed reference under RSC O 59 r 3(b)(ii) to a 'summons' is explained by following O 59 r 4 to be in form 77 or, as otherwise sometimes referred, a chamber summons.
But because Mrs Frigger's application was to be made to a Judge ex parte, it was O 59 r 3(1)(b)(i) as seen above that was applicable. The ex parte application was to be made by a motion in chambers.
Like summonses, there are various kinds of motions. But O 59 r 3(1)(b)(i) refers to an interlocutory application made by a motion, not to an Originating Motion, which is a wholly different creature.
An Originating Motion is a mechanism by which civil proceedings are commenced within the court. To that end, see RSC O 4 r 1(c):
All other civil proceedings must be commenced by originating motion.
Originating Motions are governed by RSC O 54. Here, Corporations Act proceeding COR 2 of 2010 was already long begun within this Court.
As the authors of Civil Procedure WA (the Red Book) correctly observe in their commentary at [54.1.1]:
Application in pending proceedings which are made in court or in chambers ex parte are upon motion: O 4 r 2. Motions in court such as a motion for judgment pursuant to O 41 r 1 may be made orally, but in other circumstances it may be convenient to reduce the motion to writing and to make it available to the court and to the opponent before the hearing in court. Ex parte applications in chambers in pending proceedings are by written motion but if the court directs notice pursuant to r 3(1), the application then proceeds by notice of motion.
There is, however, one qualification to the above regime delivered under RSC O 4A r 5A and r 5B as regards interlocutory orders that are made to a case manager of the court with jurisdiction. By RSC O 4A r 5A(1) 'a party' to a case may at any time request a case manager to make an interlocutory order or to make, cancel or amend a case management direction. By RSC O 4A r 5A(2), the 'party' must make that request by way of a 'letter to the case manager in accordance with rule 5B(1) and (2)', subject to certain exceptions then identified. One such exception is in reference to a potential application of the Corporations Rules which prevail, if otherwise applicable.
On the assumption made here that the Corporations Rules did not apply in relation to the circumstances of a submitted document rejected for filing, on the basis that such document was then perceived as ostensibly to be either frivolous or vexatious or an abuse of process of the court, the regime of O 4A r 5A and r 5B in relation to the making of an application for an interlocutory order, by a 'letter' (in practice invariably the letter is supported by a minute of the orders sought) would be available - but only to a 'party'.
Is Mrs Frigger a party to COR 2 of 2010
The question arises, however, as to whether Mrs Frigger is a party to COR 2 of 2010? On the face of it, she is not. But during the course of her verbal submissions to me at the hearing of her application, Mrs Frigger submitted to the contrary: see ts 10. She referred me to some observations of another Court of Appeal, to contend that she is a party: see Frigger v Professional Services of Australia Pty Ltd [No 2] [2011] WASCA 103 at [26]. As those reasons display, that was an appeal from a decision of Master Sanderson, but only as regards his Honour's costs orders of 6 May 2010 in COR 2 of 2010 and not the May 2010 winding up orders of the same date.
At [26] the Court of Appeal had referred to a 'somewhat arid debate raised by ground 1 of the appeal' concerning whether the Friggers were then parties to COR 2 of 2010. At [27] their Honours had said:
Insofar as it is necessary to decide the issue, Mr and Mrs Frigger were parties. A 'party' is defined in s 4 of the Supreme Court Act as including 'every person served with notice of or attending any proceeding, although not named on the record'. Mr and Mrs Frigger did attend the proceedings and fully participated. As a result, the complaint that notice of intention to claim costs from Mr and Mrs Frigger should have been given earlier than 28 April 2010, has no merit. However, even if the Friggers were 'non-parties', there was jurisdiction to order costs pursuant to s 37(1) of the Supreme Court Act.
But as I would assess those Court of Appeal's reasons, the court had only reached the conclusion that the Friggers were parties to those (Court of Appeal) proceedings for the purposes of resolving that pending and contested issue then over costs concerning the opposed appointment of the liquidator.
I do not assess those reasons to have concluded that the Friggers, once the costs issues became the subject of final resolution, would thereafter remain forever as participant parties within COR 2 of 2010. I see no support for the broader contention in these reasons.
The consequence is that an application made by the 'letter' provisions of RSC O 4A r 5A and r 5B would not be open here, as the Friggers were no longer 'parties' to COR 2 of 2010 in November 2019.
Mrs Frigger's originating motion commencing action CIV 1015 of 2020
By a facsimile despatched to the Court it appears at 20:05:23 pm on 1 January 2020 (a public holiday) Mrs Frigger then submitted a document entitled 'EX PARTEI [sic] APPLICATION FOR LEAVE TO A JUDGE IN CHAMBERS PURSUANT TO RSC O67 R 5'.
For reasons wholly unclear, this facsimile document appears to have been accepted as an Originating Motion (ie, a fresh proceeding) commenced by Mrs Frigger given the civil action number CIV 1015 of 2020. How that happened is a mystery.
That document continued:
TAKE NOTICE THAT the Supreme Court will be moved at Perth for an order that the applicant has leave to file Form 3 Interlocutory Process dated 11 November 2019 in COR2/2010.
Mrs Frigger's signature is seen appended on the above document which bears date '2 January 2019'.
The document appears to have been accompanied by the December 2019 affidavit (also sent by facsimile). Under pars 1 - 2 of the December 2019 affidavit Mrs Frigger deposed:
1.I make this application in support of my ex parte application for leave to file an [sic] Form 3 interlocutory process in COR2/2010, which I attempted to file on 11 November 2019 and was rejected by the principal registrar pursuant to RSC 067 r 5.
2.I refer to my affidavit of 8 November 2019 and ground [sic] contained in paragraphs 4 - 10. I believe that there is an additional ground for setting aside the winding up order of CAT on 6 May 2010.
3.I believe that the DOCA was void ab initio for uncertainty:
...
Again, the face of this document explicitly displays Mrs Frigger's ongoing attempted challenge as against the May 2010 CAT winding up orders - an attack Mrs Frigger verbally confirms is not a collateral attack but, rather, an actual attack.
The balance of the December 2019 affidavit continues on, to attach more correspondence Mrs Frigger had engaged in with ASIC concerning her advice to ASIC regarding her s 206G application for leave to manage CAT (notwithstanding that CAT remains in external administration).
I earlier referred to the terms of Mrs Frigger's dialogue with ASIC concerning a stance that ASIC might or might not take vis-à-vis Mrs Frigger's s 206G application if made regarding CAT, once ASIC had ultimately decided upon a position.
Observations upon CIV 1015 of 2020
Somehow or other, Mrs Frigger had managed to commence a fresh Originating Motion proceeding in this court - CIV 1015 of 2020.
This is a somewhat remarkable looking proceeding since on its face it simply names Mrs Frigger as applicant, but there are no respondents.
Such a fresh proceeding itself is a procedural misconception. All Mrs Frigger had needed to do, in reference to the requirements of RSC O 67 r 5(3) and (4), was to file within COR 2 of 2010 an ex parte motion in the nature of a chambers application seeking leave from a Judge to file her (then rejected) form 3 interlocutory process in COR 2 of 2010. The last thing Mrs Frigger needed to do was to commence a fresh proceeding by an originating motion in this Court. Yet it all happened.
Eventually, what is a procedural mess wended its way to me, and urgently it was said, when I heard Mrs Frigger in chambers on 21 January 2020. When I pointed out the curious feature towards a commencement of another fresh proceeding, Mrs Frigger directed full responsibility at the registry of this court. She said that she had simply filed her documentation and that it was the registry which had inserted the action number CIV 1015 of 2020. If that is correct, then the registry would carry some responsibility. However, Mrs Frigger's ex parte application for leave to file ought to have been submitted explicitly by her in COR 2 of 2010, rather than have left the matter number wholly blank.
In an attempt to do some justice in procedurally confused circumstances, I told Mrs Frigger I would treat her CIV 1015 of 2020 as a (chambers) motion made ex parte in chambers in COR 2 of 2010, and that I would hear her application for leave to file her process immediately. Correlatively, I indicated to Mrs Frigger that her fresh proceeding, namely CIV 1015 of 2020, would be dismissed, effectively as a procedural misconception on the basis of anyone concerned. Mrs Frigger indicated she was content with that.
The substantive leave question in COR 2 of 2010
Finally, the question can be addressed. Should permission now be afforded Mrs Frigger by reference to RSC O 67 r 5 for her to file her form 3 interlocutory process within COR 2 of 2010?
In furtherance of that leave application, Mrs Frigger, on the morning of the hearing submitted by email to my Associate, further case authorities which she indicated she wished to rely upon. In particular, it seemed that Mrs Frigger wanted to refer me to a decision of Finkelstein J in Deputy Commissioner of Taxation v Annesley Plant Hire Pty Ltd [2010] FCA 755 at [13] and to the decision of Gleeson JA, whilst sitting at first instance In the matter of Day and Night Online Transport Pty Ltd (in liq) [2018] NSWSC 796 at [17].
With due respect to Mrs Frigger, who is, of course, a self represented litigant, the decision by Finkelstein J in Annesley Plant Hire concerning a setting aside of a default judgment and which had seen a liquidator appointed to Annesley Plant Hire Pty Ltd (under the regime of the Rules of the Federal Court as they had applied in July 2010) is wholly irrelevant to present circumstances.
If anything is plain from that decision it is that the application made there to set aside the default judgment, was made very proximately to the order of the Deputy Registrar appointing a liquidator under circumstances where the proposed order setting aside the appointment of the liquidator had been unopposed by the Deputy Commissioner of Taxation. The observations at [13] by Finkelstein J concerning the liquidator's position of non‑opposition are not at all of any assistance here to Mrs Frigger.
Similarly, as regards the observations of Gleeson JA in Day and Night Online Transport at [17], with due respect, those circumstances are materially different to present circumstances.
Mrs Frigger then refers me to Colvin J's observations as made in Frigger v Banning (No 9) [2019] FCA 1611 at [11]. Mrs Frigger went so far as to provide me with a copy of her proposed statement of claim dated 3 September 2019 in Federal Court proceeding WAD 607 of 2015 (the proceeding in which Colvin J had published Frigger v Banning (No 9)), on Mrs Frigger's suggested basis that the pleading had been submitted to the Federal Court. At [11] of Frigger v Banning (No 9) Colvin J had said, as to the basis upon which he would evaluate that application:
I indicated to the parties in the course of argument that I would proceed on the basis that, given the current state of disputation between the parties as to the matters relied upon to support some aspects of the claims that Mr and Mrs Frigger wish to advance in these proceedings, I would accept for present purposes that there was arguable merit as to some part of the claims that Mr and Mrs Frigger seek to bring in these proceedings.
The substance, however, of Colvin J's evaluation concerned costs orders and his Honour's award made in favour of the respondents against the Friggers for costs to be paid out of security moneys provided by the Friggers forthwith: see [24] and [28] of Frigger v Banning (No 9).
In all the circumstances, it is not necessary for me to evaluate the Friggers' further proposed statement of claim in the Federal Court, by which Mrs Frigger informed me that relief was sought for the contended tort of malicious prosecution: see pars 54 and 58 of that proposed pleading. Those matters fall within the exclusive jurisdiction of the Federal Court of Australia to evaluate in due course. They do not, on my assessment, bear relevantly or at all upon the present question in terms of whether or not leave should be given for Mrs Frigger to file her submitted form 3 interlocutory process in COR 2 of 2010.
Conclusion
For the reasons as I earlier indicated, it is apparent that the real objective of Mrs Frigger's submitted form 3 interlocutory process is to effectively attack and challenge again, so as to undermine Mr Kitay's appointment as the liquidator of CAT. Equally apparent is the fact that such an actual attack (as Mrs Frigger describes it herself) is simply an attempt to reventilate a fully and finally quelled issue that has been resolved now for almost a decade. That, of course, is for circumstances where the May 2010 winding up orders of Master Sanderson appointing Mr Kitay to CAT have never been appealed.
For Mrs Frigger to attempt to unilaterally file the form 3 interlocutory process in COR 2 of 2010 in November 2019, in all the circumstances, was an impermissible way of seeking to undermine a fully perfected winding up order of a superior court which has been acted upon. That winding up order of 2010 stands until it is set aside by appeal. In consequence, my assessment is that Mrs Frigger's attempted filing of 11 November 2019 of her form 3 interlocutory process would amount to the plainest of abuses of the processes of this court. For such circumstances, her submitted document was rightly rejected for filing, on my de novo assessment now made.
Epilogue
Despite reaching that clear conclusion, I must address some additional matters which arose following the hearing of Mrs Frigger's leave to file application. Mrs Frigger, during the hearing of that application, sought permission to refer me to some further case authorities that she said she did not have with her, but what she said supported her arguments. Consequently, I said I would permit her to file a list of her supplementary cases, by the close of business the following day.
The next day, Mrs Frigger provided, by her email, a document containing two and a half pages of supplementary written submissions, along with some eight extra cases relied upon (Mrs Frigger's supplementary submissions).
Since the written submissions are negatively insightful to the present application, I propose to take the step of setting out verbatim what was then submitted by Mrs Frigger. In doing so, I highlight a number of passages which, as regards COR 2 of 2010, display that Mrs Frigger's objective is essentially to attempt to raise allegations of an alleged fraud as to, or surrounding, the May 2010 appointment of Mr Kitay as the liquidator of CAT.
Mrs Frigger's supplementary submissions say:
SUPPLEMENTARY SUBMISSIONS AND LIST OF AUTHORITIES IN FURTHER SUPPORT OF APPLICATION FOR LEAVE (the Leave Application) TO FILE INTERLOCUTORY PROCESS DATED 11 NOVEMBER 2019
1.The application requests the court to have regard to these supplementary submissions, in addition to the list of authorities which follows. Besides the reason given in oral submissions to regain control of CAT to resolve substantial cost orders in its favour, there is an additional ground to set aside the winding up order.
2.There is no doubt the winding up order of 6 May 2010 caused substantial losses to CAT, but also to the applicant and her husband. However, the applicant and Mr Frigger also suffered permanent and life‑long damage to their credit reputation, because they are named as directors of a company put into insolvent liquidation. The application and Mr Frigger have not been able to obtain loans or credit cards in Australia since 6 May 2010, even in circumstances where CAT was not insolvent. The only way that record can be put right is if the winding up orders are set aside and CAT comes out of insolvent liquidation.
KITAY'S CONTEMPT OF COURT PROCEEDING (the Contempt Application)
3.At no time has the Contempt Application been served on the applicant, although the applicant returned to Australia from overseas on 18 December 2019. On 2 January 2020 Justice Hill requested Kitay's solicitor file and affidavit of service. On 6 January 2020 Mr John informed her Honour that he had not yet been able to serve the applicant. On 7 January 2020 her Honour again requested whether it was intended to serve the Contempt Application and no response has been made on Kitay's behalf. In those circumstances, it is submitted that Kitay has no intention to continue with the Contempt Application, and the applicant should not be prejudiced by the question raised by His Honour Justice K Martin at the hearing on 21 January 2020 whether or not the interlocutory process is retaliatory.
4.It is clear from correspondence with the court that it was on 25 November 2019 that the applicant informed the court that the interlocutory process is 'in response' to the Contempt Application, after the letter from the Principal Registrar dated 15 November 2019. The words 'in response' were ambiguous, because the applicant only wished to have the interlocutory process heard prior to the Contempt Application. The applicant had already informed Justice Hill's associate of the interlocutory process on 7 November 2019 prior to filing on 11 November 2019.
5.Further the associate informed the applicant that the Leave Application would not be filed in COR2/2010, contrary to the decision of His Honour Justice Martin.
6.The liquidator is not a proper party to the interlocutory process and the interlocutory process could not be considered retaliatory in those circumstances.
7.It is submitted that the real reason the Contempt Application has not been served on the applicant is because on 11 November 2019, the applicant and her husband filed and served written submissions in Federal Court WAD492/2018 which is a complete answer to the Contempt Application, assuming it refers to the Confidential Affidavit.
WINDING UP ORDER WAS A FUNDAMENTAL IRREGULARITY
8.The following cases are authorities for the principle that judgments obtained through fundamental irregularity, including fraud, should be set aside ex debito justitiae, as this principle protects the integrity of the Court's processes. The authorities also indicate that the correct process is an application to set aside, and not an appeal, in a new proceeding or in the proceeding in which the judgment or order was made:
(a)Double Bay Newspapers Pty Ltd v The Fitness Lounge [2006] NSWSC 226
(b)In the matter of Complete Investing Services Pty Ltd (in liq) [2018] NSWSC 1003 [15]
(c)In the matter of WA Beard Pty Ltd, Deputy Commissioner of Taxation v WA Beard Pty Ltd [2017] FCA 964 [17]
(d)Toubia v Schwenke [2002] NSWCA 34 [41] - [45]
(e)Ridout & Anor v O'Brien & Ors [2004] WASC 137
(f)Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
(g)Harrison v Schipp [2002] NSWCA 78 [18]
(h)Jonesco v Beard [1930] AC 298 at p301
(footnotes omitted).
I render the following observations about the above supplementary submissions by Mrs Frigger:
(a)Mrs Frigger's ruminations over why she speculates the liquidator's contempt motion had (at then) not been served upon her are, of course, wholly irrelevant (par 7).
(b)Some of the extra case authorities as are relied upon by Mrs Frigger deal with wholly irrelevant situations, such as, for instance, where local rules of court have been invoked (within a matter of a few days or weeks) to successfully set aside appointments of liquidators under situations of uncontested mistaken appointment, made, say, in breach of an express agreement that resolved a debt issue and agreed not proceed to a winding up (eg, Double Bay Newspapers Pty Ltd v The Fitness Lounge [2006] NSWSC 266), or where there had been an ineffective service of a winding up application itself (eg, In the matter ofComplete Investing Services Pty Ltd (in liq) [2018] NSWSC 1003).
(c)Other cases as invoked by Mrs Frigger seek to raise a line of case where a judgment or order of the court has been obtained against another party to the litigation by fraud (eg, Jonesco v Beard [2002] NSWCA 34 and Toubia v Schwenke [1930] AC 298 [41] – [45]). I have discussed that line of fraud case in Permanent Custodians Ltd v Elite Grains Pty Ltd [2014] WASC 495. But that line of case does not assist Mrs Frigger upon her present application seeking permission of the court to file her form 3 interlocutory process.
It has been frequently said by courts that the term 'fraud' should not be casually deployed. A brief glance at the reasons of Lord Buckmaster in Jonesco v Beard will demonstrate the force with which that observation is still applied.
Mrs Frigger uses chosen expressions like 'fundamental irregularity including fraud', seen at par 8 of the submissions. If by that she is suggesting that almost 10 years on, she should be permitted to casually ventilate some unexplained, undetailed and wholly unknown challenge against the May 2010 appointment of the CAT liquidator by contending for an existence of an impropriety around those long passed events, as regards winding up of CAT, then Mrs Frigger has demonstrably failed to provide (in the words of Lord Buckmaster) even a 'particle' of justification for what she foreshadows. The very cases she has collected in this sphere of the law are clear in demanding that a high threshold of detail be met. Clearly, that is spectacularly absent here.
Final conclusion
As I had concluded and, again, having considered Mrs Frigger's supplementary submissions and cases, I am of the view that leave to file the form 3 interlocutory process as is sought by Mrs Frigger by RSC O 67 r 5 should be refused. Mrs Frigger's O 67 r 5 leave application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DW
Associate to the Honourable Justice Martin13 FEBRUARY 2020
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