FEDERAL COURT OF AUSTRALIA

Frigger v Banning (No 7) [2018] FCA 1074

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to file a statement of claim in terms of the minute of proposed statement of claim filed 10 April 2018 be dismissed.

THE COURT FURTHER ORDERS THAT:

2.    The applicants do file and serve a signed minute of proposed statement of claim by 28 August 2018.

3.    If the minute is prepared and signed by Mr and Mrs Frigger personally it shall comply with the orders made on 16 March 2018.

4.    If the minute is prepared and signed by a legal practitioner it shall be in a form that the practitioner considers is reasonable and proper based on instructions provided to the practitioner.

5.    The matter be re-listed for a further case management hearing on 14 September 2018 at 9.15 am at which time the court will consider whether the proposed statement of claim is in a form that should be entertained as a proposed claim in these proceedings.

6.    If the court is of the view that the claim is not in an appropriate form the court will consider at the hearing on 14 September 2018 whether the proceedings should be dismissed.

7.    The applicants do pay the respondents costs of the application to file a statement of claim in terms of the minute of proposed statement of claim.

8.    The applicants do pay the respondents costs of the application for orders allowing a new statement of claim following the decision of Justice Barker on 8 March 2017 including any reserved costs in respect of that application.

9.    The application for an interlocutory injunction be adjourned to a date to be fixed after 14 September 2018.

10.    The costs of the application for an interlocutory injunction be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1    In this matter I have before me an application for orders to enable a new pleading to be received in circumstances in which the former pleading was struck out by orders of Barker J. I have formed the view that leave should not be given to allow the pleading. These are my reasons for that view.

2    Mr and Mrs Frigger commenced these proceedings in October 2015. They claimed relief concerning a deed of company arrangement and orders in respect of legal costs in various court proceedings in which Mr and Mrs Frigger were involved as parties. In particular, orders were sought requiring payment by the respondents of costs that Mr and Mrs Frigger had been ordered to pay under those orders.

3    The respondents brought an application to strike out the statement of claim. In April 2016 Mr and Mrs Frigger sought to proceed by reference to a proposed amended application and statement of claim. The strike-out application was heard by Barker J on 12 August 2016. On 8 March 2017, orders were made striking out the statement of claim.

4    Barker J provided detailed reasons dealing with a number of allegations that were made: Frigger v Banning (No 3) [2017] FCA 221. Many of the allegations raised were found to be an abuse of process by reason that they involved collateral attacks on decisions made in other proceedings or were claims that Mr and Mrs Frigger had no standing to raise. Other claims were found to concern matters relating to persons who were not parties or were otherwise outside the jurisdiction of the Court. Other allegations were struck out on the basis that they were obscure, unclear, made little sense, were supported by particulars that were unintelligible or were otherwise embarrassing.

5    Mr and Mrs Frigger then sought to file a new pleading. On 16 March 2018 I made orders that included the following orders:

1.    By 11 April 2018, the applicants do file a proposed statement of claim of no more than 15 pages in accordance with paragraphs 5.11 and 5.12 of the Commercial and Corporations Practice Note.

2.    The proposed statement of claim shall not characterise any conduct as fraudulent or dishonest or attribute any improper motive to any party. If the applicants rely upon matters known to a party or a state of mind or a purpose or object of a party then the plaintiffs shall describe those matters objectively and without characterisation.

3.    The proposed statement of claim shall not contain matters of detailed evidence or legal argument or submissions.

6    The orders were made having regard to the problems with the pleading that was struck out, much of which took the form of argument, references to alleged legal principles, sought to attack the outcome in other proceedings in which Mr and Mrs Frigger have been parties and characterised the conduct of the respondents in what might be described as firm terms.

7    I made the orders to provide a fair opportunity to Mr and Mrs Frigger to identify the central allegations that they sought to raise in the claim, in particular, the factual basis for those claims. At the time I explained that the pleading should focus on what was alleged to have happened in fact so that the Court could form a view as to the merits of the claim. I specifically referred to the fact that it should not include arguments or characterisation of conduct. After that order was made, a document of 15 pages was filed by Mr and Mrs Frigger. It includes, as a major part of the claim, a new allegation of a civil conspiracy and breach of duties as officers of companies. It seeks relief against all of the parties alleged to be participants in the conspiracy who include counsel for the respondents and the solicitor on the record for the respondents.

8    The pleading does not conform to the requirements of the order that I made. Instead of setting out the relevant facts, it includes many arguments and claims. It repeats some claims that were found by Barker J to be an abuse of process. It seeks to bring a collateral attack on decisions concerning a deed of company arrangement and makes claims as to costs orders dealt with in the Supreme Court of Western Australia. In addition, contrary to my orders, the claim describes conduct as involving the making of false statements, making of false claims and the making of an unlawful agreement that is said to have been a civil conspiracy. It also seeks relief against persons who are not parties, including, as I have said, counsel for the respondents in the proceedings and the solicitors on the record.

9    In the circumstances, the proposed statement of claim does not reflect the decision made by Barker J. It does not comply with the orders I made. It seems to raise claims against, and relief against, persons who are not parties and does not provide a sufficiently clear expression of the claims being made by Mr and Mrs Frigger as would allow the matter to proceed in a manner that was fair to the respondents.

10    For those reasons I refuse the application.

11    I would provide one further opportunity to prepare a pleading that is not an abuse of the process of the Court, that respects the decision that has been made by Barker J and conforms to the orders that I made on 16 March 2018, and I will hear from the parties as to the time within which that should be required and as to the question of costs.

Associate:

Dated:    17 July 2018

SCHEDULE OF PARTIES