Federal Court of Australia

Frigger v Banning (Application to set aside Security for Costs Order) [2025] FCA 1056

ORDERS

THE COURT ORDERS THAT:

1.    The applicants' interlocutory application dated 5 August 2025 be heard and determined without an oral hearing.

2.    The interlocutory application is refused.

3.    The applicants pay the respondents' costs of the interlocutory application.

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

REASONS FOR JUDGMENT

COLVIN J:

1    In 2015, Mrs and Mr Frigger commenced Corporations Act proceedings in this Court against various parties in which they sought, amongst other things, compensation. The amount of compensation that they claimed was calculated to include amounts that they had been ordered to pay pursuant to various costs orders made in proceedings brought in other courts. On 2 September 2020, the proceedings in this Court were dismissed. Orders were made for Mrs and Mr Frigger to pay the costs of the proceedings: Frigger v Banning (No 11) [2020] FCA 1257. Since then, the costs have been taxed at $160,098.41.

2    On 3 July 2024, Mrs and Mr Frigger applied to review the taxation. They challenge all 598 items that were submitted in the bill.

3    The respondents sought and obtained an order for security for costs of the review application: Frigger v Banning (Application for Security for Costs on Review of Taxation) [2024] FCA 1207. The required security was $10,000. It has not been provided.

4    It appears that leave was sought to appeal against the order requiring security to be paid but that application now has been discontinued or withdrawn.

5    Amongst the matters raised by Mrs and Mr Frigger on their review application are various claims as to why there was no entitlement on the part of the lawyers who acted for the respondents to be able claim costs from their clients. It is contended by them that, in consequence, there are no costs that can be claimed pursuant to the costs order in these proceedings.

6    On 5 August 2025, Mrs and Mr Frigger filed an interlocutory application which sought the following:

(1)    an order setting aside the order requiring security to be provided;

(2)    an order setting aside the order that the proceedings be stayed pending the provision of security;

(3)    an order requiring one of the respondents to attend to be examined on oath as to various matters concerning the retainer arrangements with the lawyers acting for the respondents;

(4)    an order for discovery; and

(5)    an order for costs and such further or other orders as the Court deems fit.

7    On 11 August 2025, orders were made for the applicants to file written submissions in support of their interlocutory application, 'including submissions as to why there should be leave given to vary the stay orders in these proceedings to allow the interlocutory application to be heard'. At the time those orders were made it was indicated that further orders as to the conduct of the interlocutory application would be made after the date for filing those submissions.

8    Mrs and Mr Frigger have filed submissions. As will emerge, in substance those submissions seek to advance reasons why the stay order in these proceedings should be lifted in order to allow them to take steps to advance the claims they wish to make on their review application. They maintain that there was a flawed factual premise for the making of the security for costs order (and associated stay) that is a sufficient basis for the Court to exercise its power to set aside its own interlocutory orders.

9    In my assessment, the question whether an interlocutory application of that kind should be entertained given the stay order that has been made is appropriately addressed on the papers that have been filed. As will emerge, the determination of the interlocutory application would not be significantly aided by an oral hearing because there is no real issue of fact relevant to the determination of the application and the legal arguments can be dealt with adequately by the opportunity that has been afforded to Mrs and Mr Frigger to provide written submissions. Further, there is no need to afford any opportunity to the respondents to provide answering submissions. Accordingly, I will deal with the interlocutory application on the papers and without calling on the respondents.

10    The orders for security (and associated stay) were made for the following reasons (paragraph references are to my previous reasons in Frigger v Banning (Application for Security for Costs on Review of Taxation):

(1)    Mrs and Mr Frigger have been prodigious litigants in this and other courts over two decades. In most instances, they have conducted the proceedings as litigants in person. Much of it has involved the respondents in some way (at [7]);

(2)    parties have had difficulties in seeking to recover costs from Mrs and Mr Frigger when orders have been made (at [18]);

(3)    Mrs and Mr Frigger have access to funds (at [19]-[20]);

(4)    in opposition to the security for costs application 'Mrs and Mr Frigger have advanced various points that they will seek to rely upon at the hearing of their review application' (at [21]);

(5)    'the litigation history of Mrs and Mr Frigger supports the concern that the respondents will face considerable difficulty in seeking to recover costs pursuant to any order for costs that might be made in these proceedings' (at [22]); and

(6)    'In all of those circumstances, the interests of justice will be served by requiring security for costs to be provided' (at [24]).

11    Significantly for present purposes, those reasons did not involve any consideration of the merits of the claims made by Mrs and Mr Frigger, the arguable merits of which were assumed. Put another way, the reasons did not depend upon any factual premise or contention being advanced by the respondents concerning their retainer arrangements. However, those retainer arrangements had been in issue on the taxation and it might be said that, at least implicitly, the position of the respondents on the security for costs application was that there was a proper basis for them to maintain that their retainer arrangements did not mean that costs could not have been recovered. Mrs and Mr Frigger couch their present interlocutory application in terms that there was a fundamental factual flaw in that position and it was an abuse of process to seek and obtain security for costs on that basis. They say there was material non-disclosure of facts during the security for costs application and there have been subsequent admissions. They say that the retainer arrangements were invalid and that remains the case such that there are no costs in respect of which security could be ordered.

12    The main difficulty with all these contentions is that they invite the Court to embark upon a consideration of the claims made by Mrs and Mr Frigger in support of their review application (including what appear to be some new claims based upon what has occurred since the security for costs order was made) and to do so without any security for costs being ordered. Yet, the underlying basis for the security for costs order was not an assessment of the merits of their claims or the basis for them, but rather their history when it came to the costs of proceedings. It was that history that was found to justify the security for costs order being made at the outset before any costs were incurred by the respondents in answering the application to review the taxation. The matters raised by Mrs and Mr Frigger do not infect the logic of that reasoning in any way. On the contrary, in my view, their attempt to try and agitate the substantive basis for their review application without complying with the order for security reinforces those concerns. Accordingly, they have not demonstrated a basis to set aside the orders for security.

13    As no basis has been demonstrated for the security for costs order (and associated stay) to be set aside, it follows that the interlocutory application must be refused with costs.

Associate:

Dated:    3 September 2025