Federal Court of Australia
Frigger v Trenfield (No 5)  FCA 531
HARTMUT HUBERT JOSEF FRIGGER
MERVYN JOHN KITAY
DATE OF ORDER:
THE COURT ORDERS THAT:
1. Leave be granted for the applicants to file in court the affidavit of Angela Cecilia Frigger, sworn 23 March 2022 and submissions lodged 30 March 2022.
2. The hearing of the question as to whether the applicants should be granted leave to amend their originating application in the terms proposed in exhibit 1 be adjourned to a date to be fixed.
3. Costs be reserved.
(REVISED FROM TRANSCRIPT)
1 On 25 March this year, the applicants sought to file what was termed a “draft amended originated application,” marked now exhibit 1 for the purposes of today’s case management hearing. On its face, that document proposes amendments to the originating application filed on 23 March 2021. The effect of the proposed amendments is to seek now, by amendment, the following relief:
(1) An order setting aside:
(a) sequestration orders made against each of the applicants; and
(b) the judgment of the court as constituted by Colvin J in Kitay, in the matter of Frigger (No 2)  FCA 1032;
(2) Orders annulling the applicant’s bankruptcy; and
(3) Costs for “compensation” from the second respondent for economic and non-economic loss allegedly caused by “malicious prosecution of the bankruptcy proceedings,” “deceit,” and “civil conspiracy”.
2 Within the Registry, a Registrar formed the view that the draft amended originated application ought not to be permitted to be filed. Instead, the question, having been drawn to my attention, the case was listed for case management hearing today. That listing was in conformity with the applicants having put to the Registry in correspondence that there was particular urgency about resolving the question of amendment. And indeed, a substantive hearing in respect of the relief sought by proposed amendment.
3 The applicants have, by leave today, filed supporting written submissions, as well as a further affidavit made by Mrs Frigger. Those particular documents, I am satisfied, have before today either formally or informally come to the attention of those acting for the respondents. In addition, the applicants have sought what are termed “applicants case management orders 5-4-22”. The thrust of those order, as proposed by the applicants, they are:
(1) the draft amended originating application be filed as an amended originating applications;
(2) the second respondent produce various documents by 19 April 2022; and
(3) that part of the draft originating application be listed for hearing with consequential orders being made for the filing of evidence and submissions.
4 The stance of the first respondent, the trustee is, in effect, a neutral one. The second respondent has proposed orders to the end of formalising an application and evidence in support of leave to amend the originating application.
5 As to the orders proposed by the applicants in the document entitled “applicants case management orders 5-4-22,” it appears to me that the production sought is an attempt to re-enliven an interim application filed by the applicants on 14 March 2022, apparently at one stage recorded on the electronic court file in error as on 8 March 2022. That interim application was withdrawn by the applicants pursuant to leave granted by O’Sullivan J on 16 March 2022.
6 More substantively, on 18 August 2021, I made orders adjourning the applicant’s interim application filed on 26 July 2021 to a date to be fixed pending the outcome of proceeding COR131 of 2021 in the Supreme Court of Western Australia. Although the overlap is not complete, it is a noteworthy feature of the draft originating application that it has these features in common with the interim application filed on 26 July 2021, namely:
(i) orders annulling the sequestration orders made on 20 July 2018: see paras 1(a) and 2 of the draft originating application, and para 4.2 of the interim application filed on 26 July 2021; and
(ii) damages for losses allegedly caused by the second respondent; see para 3 of the draft originating application and paragraph 4.4 of the interim application filed on 26 July 2021.
7 It appears that proceeding COR131 of 2021 is yet finally to be determined in the Western Australian Supreme Court, although at least, as to some aspects, I was informed today that the relevant judge, Hill J, has reserved judgment. It was put, on behalf of the applicants by Ms Frigger, that a discrete issue might, nonetheless, be the subject of final hearing as proposed in the draft originating application. However, it is my firm view that that any such bifurcation issues would be antithetical to the interests of justice. It appears to me that the position is, in substance, no different to that which persuaded me in August last year to adjourn the interim application to a date to be fixed.
8 I therefore propose to adjourn for hearing on a date to be fixed the question as to whether or not leave should be given to the applicants to amend the originating application in terms of exhibit 1. In this regard, I note that the second respondent had, in any event, proposed to seek such an order. It was obviously desirable not to burden any of the parties, Mr and Ms Frigger included, with a separate hearing of that issue when it could be – and was – conveniently dealt with today.