Federal Court of Australia

Frigger v Trenfield (No 3) [2021] FCA 1471

File number:

WAD 66 of 2021

Judgment of:

LOGAN J

Date of judgment:

4 November 2021

Catchwords:

PRACTICE AND PROCEDURE – interlocutory application to vacate the prior orders of the Court adjourning the applicants’ application –where adjournment application was not opposed by the applicants – where appropriate remedy would be for the applicants to seek leave for an extension of time in which to appeal the Court’s decision – interlocutory application dismissed

Cases cited:

Frigger v Trenfield (No 2) [2021] FCA 1255

Kitay, in the matter of Frigger (No 2) [2018] FCA 1032

Division:

General Division

Registry:

Western Australia

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Number of paragraphs:

4

Date of hearing:

4 November 2021

Counsel for the Applicants:

The Applicants appeared in person

Counsel for the First Respondent:

Mr SD Majteles

Solicitor for the First Respondent:

Carles Solicitors

Solicitor for the Second Respondent:

Herbert Smith Freehills

ORDERS

WAD 66 of 2021

BETWEEN:

ANGELA CECILIA THERESA FRIGGER

First Applicant

HARTMUT HUBERT JOSEF FRIGGER

Second Applicant

AND:

KELLY TRENFIELD

First Respondent

MERVYN JOHN KITAY

Second Respondent

order made by:

LOGAN J

DATE OF ORDER:

4 NOVEMBER 2021

THE COURT ORDERS THAT:

1.    The applicants’ letter of 20 October 2021 to the associate to Justice Logan be marked as Exhibit 1.

2.    Exhibit 1 be deemed to be an interlocutory application for the vacation of Order 2 of the Orders made on 18 August 2021.

3.    That deemed interlocutory application be dismissed.

4.    The applicants have leave to file and serve on or before 11 November 2021 submissions of not more than 1 page as to why costs of the dismissal of the application should not follow the event.

5.    In default of the filing of any such submission, the order be that the applicant pay the costs of each respondent, to be fixed by a Registrar if not agreed.

6.    If such submission be filed by the applicants, the respondents have leave to file and serve such submissions in reply of not more than 1 page on or before 18 November 2021. Thereafter the question of costs be determined on the papers.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    The applicants took the unorthodox course of writing to my Associate in relation to orders which I had made on 18 August 2021.

2    For reasons which I then delivered ex tempore, I ordered, materially, the applicants interim application filed 26 July 2021 be adjourned to a date to be fixed pending the outcome of the proceeding of the Supreme Court of Western Australia (COR 131 of 2021): see Frigger v Trenfield (No 2) [2021] FCA 1255. I am prepared to treat the letter of 20 October 2021 as if it were an application for vacating that adjournment order. However, that adjournment order was not made on the basis of any particular mistake but rather on the basis, as the reasons indicate, of a view reached that the existence of that particular Western Australia Supreme Court proceeding referred to in the order emphatically favoured an adjournment.

3    Today, on behalf of the applicants, Mrs Frigger indicated that a different view ought to have been reached in light of Colvin J’s judgment in Kitay, in the matter of Frigger (No 2) [2018] FCA 1032, at [170]. If that be the case, firstly, one might have expected Mrs Frigger to have drawn that to my attention on 18 August 2021, but in any event, if, truly, an absence of reference to that case occasioned injustice, the remedy for the applicants is now to seek an extension of time within which to apply for leave to appeal against an interlocutory order.

4    Further, the particular adjournment application made was not opposed. There is no special rule of court applicable to litigants in person. I am by no means persuaded that the notice of the material substantively relied upon for the adjournment application was unknown to either applicant until as late as the day before the adjournment application. It appears to me that the present deemed application is nothing more than second thoughts. If, truly, within those second thoughts, there does lie an injustice, the remedy, in my view, is as I have indicated.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.

Associate:    

Dated:    24 November 2021