Federal Court of Australia

Frigger v Banning (No 2) [2025] FCA 955

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal against the judgment of Colvin J dated 18 October 2024 be dismissed.

2.    The applicants pay the costs of the first, second and fourth respondents, save for the costs of preparing the written submissions filed on 8 August 2025, to be taxed or agreed.

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

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1    By these proceedings, the applicants, Angela Frigger and Hartmut Frigger, applied for leave to appeal against an interlocutory judgment of Colvin J in which his Honour made an order requiring the Friggers to provide security for the costs of their application for review of a taxation of costs, Frigger v Banning [2024] FCA 1207. The first, second and fourth respondents (respondents) sought an order that the Friggers give security for the respondents’ costs of the Friggers’ application for leave to appeal.

2    On 23 May 2025, I made the following orders:

1.    By 20 June 2025, the applicants provide security for the first, second and fourth respondents’ costs of the application for leave to appeal in the amount of $11,000 by payment into court or by the provision of an unconditional bank guarantee from an Australian trading bank in a form approved by a registrar of the Court.

2.    These proceedings be stayed pending the provision of security.

3.    The applicants pay the first, second and fourth respondents’ costs of the interlocutory application for security for costs filed on 24 January 2025.

3    My reasons for making the orders of 23 May 2025 are Frigger v Banning [2025] FCA 535. In the course of those reasons, and in connection with a submission advanced by the Friggers that the merits of their proposed appeal were strong, I indicated that my impression was that the prospects of the application for leave to appeal being granted were not strong (at [66]-[72]).

4    The Friggers did not provide security for costs in accordance with order 1 of the orders made on 23 May 2025.

5    On 30 June 2025, the respondents, through their legal representative, contacted my chambers by email, requesting that the proceedings be dismissed with costs and attaching draft minutes of order to that effect. In that email, they contended that the respondents should not be put to the further cost of preparing a formal application seeking the dismissal of the application for leave to appeal.

6    On 9 July 2025, by email to my chambers and in response to the email from the respondents’ legal representative, the Friggers sought leave to withdraw their application for leave to appeal on the basis that there be no order as to costs.

7    It is thus clear that the Friggers no longer seek to pursue their application for leave to appeal. The proceedings are presently stayed by operation of order 2 of the orders made on 23 May 2025. The Friggers are in default of order 1 of those orders, and so the Court has power to dismiss the proceedings pursuant to s 56(4) of the Federal Court of Australia Act 1976 (Cth). There is no suggestion that the Friggers need more time to provide security for costs. Indeed, one of the orders that they seek is that the proceedings be dismissed.

8    Therefore, the only remaining issue is whether the Friggers should be given leave to withdraw the application for leave to appeal (which, by virtue of r 35.31(2) of the Federal Court Rules 2011 (Cth), would have the effect of an order of the Court dismissing the application) with no order as to costs, or whether the proceedings should be dismissed with costs. The Friggers ask the Court, in effect, to make an order departing from the position established by r 35.31(4), which states that a party who withdraws an application for leave to appeal must pay the costs of each other party to the application.

9    For the reasons that follow, it is appropriate to order that the application for leave to appeal be dismissed and that the Friggers pay the respondents’ costs of the proceedings, apart from the costs of the preparation of written submissions filed by the respondents on 8 August 2025.

Further procedural history

10    In their email to my chambers on 9 July 2025, the Friggers set out the basis on which they sought leave to withdraw the application for leave to appeal with no order as to costs. The email stated, in part:

On 23 April 2025, Stephenson [counsel for the respondents] appeared for the same respondents in WAD126/2022 and gave evidence from the bar table that neither he nor Eastwood have given cost disclosure to the respondents because:

a.    Stephenson and Eastwood charge costs according to “Scale”;

b.    S 174 Uniform Law disclosure only applies if costs charged are more than the “Scale”;

c.    Neither the lawyers nor their clients will apply for assessment of the lawyers’ fees pursuant to s 178 Uniform Law.

In the above circumstances, the applicants believe that on the evidence given by Stephenson to a judge in this court, the applicants’ contention that the respondents have no liability to pay costs is made out.

11    By email to my chambers on 10 July 2025, the respondents’ legal representative provided a response to the Friggers’ email of 9 July 2025, opposing the orders sought by the Friggers.

12    On 23 July 2025, I made orders in chambers that:

By 6 August 2025:

(a)    if the applicants press their request for leave to withdraw the application for leave to appeal with no order as to costs, the applicants file and serve written submissions, not exceeding three pages, in support of their position, including any submissions in response to the email sent by the respondents’ legal representative on 10 July 2025; or

(b)    if the applicants no longer wish to press their request for leave to withdraw the application for leave to appeal with no order as to costs, the applicants inform Justice McDonald’s chambers by email of that fact.

13    The orders did not make provision for the filing of written submissions by the respondents. In the email sent from my chambers to advise the parties that the orders had been made, my associated stated, “I will be in further contact to inform the respondents if the Court requires them to file any written submissions.” I adopted this course because I considered it undesirable that the respondents be put to the further cost of preparing written submissions in circumstances where:

(a)    it was apparent that the application for leave to appeal was no longer to be pursued and the only outstanding issues related to the form of its disposition and costs;

(b)    the respondents’ position on those issues was already clear from the email correspondence;

(c)    it was possible that further submissions from the respondents would not be necessary if, after reading the Friggers’ written submissions, I considered that their application for leave to appeal should be dismissed with costs, as the respondents contended; and

(d)    the preparation and filing of written submissions by the respondents would involve additional costs that must ultimately be borne by the parties, or some of them.

14    On 6 August 2025, in accordance with the orders made on 23 July 2025, the Friggers filed written submissions in support of their position that they should be permitted to withdraw the application for leave to appeal with no order as to costs.

15    On 8 August 2025, the respondents filed written submissions in response to the Friggers’ submissions. By email to my chambers on 8 August 2025, Mrs Frigger objected to the respondents’ further submissions on the basis that no order inviting the filing of such submissions had been made.

16    While it is perhaps understandable that the respondents (or their legal representative) might have wished to respond to certain accusations contained in the Friggers’ written submissions, the preferable course would have been for the respondents to have sought that opportunity by way of correspondence with chambers in the first instance. Given that the orders made on 23 July 2025 did not provide for the filing of written submissions by the respondents, the Friggers should not be required to bear the (albeit relatively modest) cost of preparing those submissions. I have not had regard to the written submissions filed by the respondents for the purpose of this judgment.

Leave to withdraw the application for leave to appeal with no order as to costs should not be granted

17    The statements made by Mr Stephenson at the hearing on 23 April 2025 related to the retainer relevant to action WAD 126 of 2022, and to the intention of his instructing solicitors in relation to that matter. They did not relate to the present proceedings, nor to action WAD 607 of 2015, in which Colvin J made the decision the subject of the application for leave to appeal. I do not consider that the respondents’ omission to refer to the matters mentioned by Mr Stephenson in the course of submissions on 23 April 2025 involved any material non-disclosure, at least in relation to any matter relevant to the present proceedings.

18    I am not satisfied that anything that was said by Mr Stephenson provides a basis on which the Court should refrain from ordering that the Friggers pay the costs of these proceedings. I note that the characterisation of Mr Stephenson’s statements from the bar table in action WAD 126 of 2022 as “evidence” is disputed. It is not necessary to resolve that issue.

19    The events on which the Friggers now rely occurred in court before Feutrill J on 23 April 2025, in an interlocutory hearing held in action WAD 126 of 2022. The Friggers did not seek leave to withdraw their application for leave to appeal with no order as to costs at that time, or at any time before the respondents had sought the dismissal of the proceedings with costs on 30 June 2025. Rather, the Friggers:

(a)    on 28 April 2025, filed written submissions opposing the respondents’ interlocutory application for security for costs;

(b)    stood by while the respondents incurred the expense of preparing and filing written submissions in relation to their interlocutory application for security for costs (which were filed on 5 May 2025);

(c)    on 20 May 2025, filed written submissions in reply, in which they continued to oppose the respondents’ interlocutory application for security for costs;

(d)    did not rely on the statements made by Mr Stephenson on 23 April 2025 in their submissions on the respondents’ interlocutory application for security for costs, even though they advanced several other arguments directed to the proposition that security for costs should not be ordered because the respondents were not incurring any liability to their own lawyers;

(e)    stood by while the Court delivered judgment on the application for security for costs on 23 May 2025; and

(f)    provided no explanation for their failure to provide security for costs by 20 June 2025 in accordance with the orders (or at all).

20    This conduct is in tension with the position now taken by the Friggers, that the events of 23 April 2025 rendered the application for leave to appeal inutile and caused them to seek to withdraw it. The decision to seek to withdrawn the application for leave to appeal was made, or at least communicated, only after it had become apparent that in order to prosecute the application, they would have to provide security for costs; that the application enjoyed limited prospects of success; and that the respondents were seeking an order that the application be dismissed with costs following the Friggers’ failure to provide security for costs as ordered.

21    I do not accept that the Friggers have sought to withdraw their application for leave to appeal because of a change in circumstances. Rather, they have opportunistically pointed to what they claim is a change of circumstances in an attempt to avoid paying the costs of an application which, following the making of the order that they provide security for costs, they no longer wish to prosecute.

22    The Friggers submitted in the alternative that, if the Court were not minded to accede to their request that there be no order as to costs, any costs order should be stayed pending determination of an application that the Friggers have made in action WAD 607 of 2015 to set aside the security for costs order made by Colvin J, or that the costs should be costs in the cause of WAD 607 of 2015. I do not accept these submissions. It is preferable that the present proceedings now be finalised. The Friggers chose to commence an application for leave to appeal against an interlocutory decision that always had limited prospects of success, rather than complying with the security for costs order made by Colvin J, which would have enabled them to advance all of their arguments in the Full Court. There is no injustice in their being required to pay the respondents’ costs of the application.

23    The most significant steps that have occurred in the present proceedings are the filing of evidence and submissions in relation to, and the determination of, the respondents’ application for security for costs. An order that the Friggers pay the costs of the application for security for costs was made on 23 May 2025. It is evident that the respondents will have incurred other costs in connection with the proceedings, but those costs are relatively confined. There were two case management hearings. The first was adjourned to enable the Friggers to serve on the respondents the draft notice of appeal identifying the grounds of appeal on which they sought to rely. The second case management hearing was principally concerned with setting a timetable for evidence and submissions in relation to the respondents’ interlocutory application for security for costs. Since the determination of that application, the parties have engaged in further correspondence and filed written submissions as described above. There is no reason why the Friggers should not pay the respondents’ costs of the proceedings generally on a party-party basis, in accordance with the usual position that a party who withdraws, or who is otherwise unsuccessful on, an application for leave to appeal should pay the costs of the opposing parties.

Conclusion

24    The Friggers have made it clear that they do not intend to prosecute their application for leave to appeal. The only issue is whether they should be allowed to withdraw their application for leave to appeal with no order as to costs. For the reasons explained above, it is appropriate that the Friggers be ordered to pay the respondents’ costs of the proceedings, except that the respondents should bear their own costs of preparing the written submissions filed by them on 8 August 2025.

Associate:

Dated:    14 August 2025

SCHEDULE OF PARTIES