Federal Court of Australia

Frigger v Eastwood Law Pty Ltd [2026] FCA 1028

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This is an application for leave to appeal from the decision of Snaden J in Frigger (Restraint Application) [2026] FCA 603 (PJ). By that decision, his Honour refused an application made by Mr and Mrs Frigger (the applicants) for orders restraining Eastwood Law Pty Ltd (Eastwood Law) from acting for interveners in proceedings in which the Court is inquiring as to whether vexatious proceedings orders should be made against Mr and Mrs Frigger.

2    For the reasons which follow, leave to appeal should not be granted.

Background

3    The underlying proceedings appear to have begun as a result of observations made by the Full Court, comprising Snaden, O’Sullivan and Neskovcin JJ, in Frigger v Professional Services of Australia Pty Ltd [2026] FCAFC 9 at [148] – [151] (Frigger v Professional Services). At [150], the Court said:

[150]    The proceedings before the primary judge consumed considerable time and resources of the court. The appeal from the primary judgment lacked any merit. In the last decade the appellants have appeared before at least 20 different judges and have been the subject of more than 80 judgments of this court alone. The vast majority (and possibly all) of those appearances and judgments – which, we note, have been overwhelmingly attended by failure – hark back to the 2003 transaction and the various insolvency processes that it has since spawned. It appears that the same transaction is featured in a raft of litigation in other jurisdictions as well, including in more than a dozen matters that the appellants have commenced in the Supreme Court of Western Australia.

4    The Full Court consequently ordered that consideration of the question whether to make vexatious proceedings orders under s 37AO of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), be referred to the presiding judge, being Snaden J.

5    Proceedings were commenced thereafter, establishing the inquiry. Subsequently, orders were made on 14 April 2026, granting various parties leave to intervene. Relevantly, those parties include Professional Services Australia Pty Ltd (PSA), a company against which Mr and Mrs Frigger have litigated over many years, as well as Banning Holdings Pty Ltd (BHPL) and Mrs Sandra Banning. Eastwood Law acted for all three.

6    On 27 April 2026, Mr and Mrs Frigger filed an interlocutory application, identifying the interveners as the parties to the proceeding, seeking orders that Eastwood Law be restrained from acting for PSA, BHPL and Mrs Banning. Notably, Eastwood Law was not named as a respondent to the application and it does not appear that the application was served on it, although the evidence around that is rather unclear. Notwithstanding that omission, it appears that the learned primary judge treated the application as one which sought to restrain the respondents from using the firm Eastwood Law and it proceeded on that basis. Nothing turns on that issue for present purposes.

7    The application was dismissed on 13 May 2026, for which Snaden J delivered reasons ex tempore. Those reasons were published the following day.

The primary judge’s reasons

8    In broad terms, Mr and Mrs Frigger’s application was advanced on two grounds. Firstly, they asserted that PSA’s continued representation by Eastwood Law would be improper, on the basis that Eastwood Law had acted for the interveners over many years and had become entangled in several factual controversies which the Court would be required to consider in the inquisitive process: PJ [6], [8]. Second, they argued that, as there was no positive evidence of any retainer between Eastwood Law, BHPL and Mrs Banning, the Court should infer that Eastwood Law does not, in fact, act for those parties.

9    Before dealing with these contentions, Snaden J set out the principles governing the Court’s discretionary power to restrain parties from using certain legal practitioners. Those principles need not be repeated here, save to observe that his Honour invoked the decision of Young J in Geelong School Supplies Pty Ltd v Dean (2006) 237 ALR 612, for the proposition that a basis for ordering a restraint might be where it is necessary for the court to control the conduct of legal practitioners as officers of the court: PJ [5]. His Honour considered that to be the ground relied upon by Mr and Mrs Frigger in respect of PSA’s retention of Eastwood Law, on the basis that they seemed to submit that the firm might be required to defend its own conduct: PJ [6], [8]. Before this Court, Mr and Mrs Frigger do not contest the primary judge’s identification of the applicable ground, nor his discussion of the relevant principles.

10    Mr and Mrs Frigger’s submissions in respect of Eastwood Law’s representation of PSA, alleged that the firm was part of a “criminal conspiracy” waged over many years against them. His Honour rejected those submissions on the basis that they amounted to mere attempts to relitigate long resolved matters. His Honour said (at [10]):

[10]    Mr and Mrs Frigger’s opposition to Eastwood Law proceeds as a manifestation of their apparent desire to relitigate matters that have long been decided; and, more specifically, their determination to do so upon allegations, including some very serious allegations, that rise no higher than assertion. Significantly, those allegations have no bearing upon the court’s task in the present matter, and certainly none that comes even remotely close to warranting a discretionary indulgence of the extraordinary kind for which Mr and Mrs Frigger move. The court’s task in this matter is relatively straightforward: it is to ascertain whether Mr and Mrs Frigger are people who have repeatedly agitated vexatious proceedings. That task does not involve rehearing the various matters that constitute Mr and Mrs Frigger’s extensive litigation history; and it neither requires nor warrants the interrogation of conduct engaged in by any other party’s legal representative. No matter how much Mr and Mrs Frigger might wish the situation to be otherwise, the concerns that they continue to raise are, at worst, wholly irrelevant or, at best, not nearly of sufficient relevance to justify the exceptional discretionary relief that they seek.

11    As will become clear, by the present application it would appear that Mr and Mrs Frigger seek to revert to these underlying considerations, including issues raised in previous proceedings and issues arising in other proceedings, including those currently on foot in an action in the Western Australian Supreme Court.

12    Notwithstanding Mr and Mrs Frigger’s assertions, his Honour remained focused on the relevant issues that would confront him in the vexatious proceedings inquiry under Pt VAAA of the Federal Court Act. He identified that, pursuant to s 37AO, the relevant issue was whether Mr and Mrs Frigger had frequently instituted or conducted vexatious proceedings in Australian courts or tribunals.

13    As to the submissions in respect of BHPL and Mrs Banning, his Honour observed that there was nothing in the material before him which might have raised suspicion as to whether the retention by them of Eastwood Law was anything other than orthodox. He concluded that, in the absence of some positive evidence to the contrary, the Court could not properly infer that no retainers had been agreed: PJ [12]. That was the essence of his Honour’s reasons for rejecting Mr and Mrs Frigger’s application and, though he dealt with some other matters, nothing therein was touched upon before this Court.

Possible procedural defect

14    This application for leave to appeal names Eastwood Law as the respondent. Conversely, PSA, BHPL and Mrs Banning are not named, despite being the interveners in the proceedings before the primary judge.

15    At the hearing of this application, Eastwood Law raised a preliminary submission to the effect that, since it was not a party to the application before the primary judge, it could not properly be named as the respondent to the appeal. There was some dispute as to when Eastwood Law raised this potential issue with Mr and Mrs Frigger, though it is not necessary to decide the point, as the application for leave to appeal otherwise fails on its merits.

Should leave to appeal be granted?

Relevant principles

16    In general terms, an applicant for leave to appeal must establish that the decision from which leave is sought to appeal is “attended with sufficient doubt to warrant its being reconsidered by the Full Court”, and that “substantial injustice would result if leave were refused”: Décor Corporation v Dart Industries Inc (1991) 33 FCR 397, 398 (Décor).

17    The applicant faces a higher bar to establishing those matters when the decision in question is discretionary in nature. As was recently summarised in Natch v Stennson Pty Ltd (Leave to Appeal) [2026] FCA 910 at [23] – [24]:

[23]    As to the first criterion, in the ordinary course, the applicant is required to show that sufficient doubt arises from the decision such that its reconsideration by an appellate court is justified. However, in cases where, as here, the decision from which the applicant seeks to appeal is discretionary in nature, it must generally be shown that the decision involved errors of the kind described by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504 – 505:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed…

[24]    Similar considerations apply with respect to the second criterion. Generally, the existence of a substantial injustice is established by showing that the decision in question had the effect of finally determining the rights of the parties: Decor 400; Roberts-Smith [16]. However, where the decision concerns a question of practice and procedure and no questions of general principle are at stake, the Court will be slow to grant leave to appeal, for appellate intervention in such matters requires the “exercise of particular caution”: Hogan v Australian Crime Commission (2010) 240 CLR 651, 664 – 665 [34]; Roberts-Smith [17].

The decision is not attended by sufficient doubt

18    As to the first Décor criterion, the crux of the primary judge’s decision was that the Court’s inquiry as to the appropriateness of vexatious proceedings orders will not consider, nor give rise to any opportunity to consider, the long-decided matters which Mr and Mrs Frigger seek to relitigate. The task for Mr and Mrs Frigger is to establish that this decision was attended by some actionable error, in the sense identified in House v The King (1936) 55 CLR 499 at 504 – 505.

19    However, it appears that, based on their submissions, Mr and Mrs Frigger on this application do not suggest that his Honour’s decision was wrong. Rather, they advance various attacks on the primary judge’s impartiality and his conduct of the proceedings below, even though they raised no concerns at the time. Their submission in this respect misunderstands the relevant inquiry, with the consequence being that the decision cannot be said to be attended by sufficient doubt so as to warrant its reconsideration by the Full Court. That is sufficient to dispose of the application.

20    Nevertheless, for completeness, it is appropriate to make some observations as to the grounds advanced in Mr and Mrs Frigger’s written submissions which, in broad terms, amount to a serious and unjustified attack on the primary judge’s management of the underlying proceedings.

21    Firstly, the applicants submit that Snaden J read part of his reasons, or even the whole of his reasons, from written or typed documents which he had brought into Court at the commencement of the hearing. On that basis, his Honour is said to have prejudged the application and, as a result, the decision warranted reconsideration by the Full Court.

22    Despite those allegations which were made in the course of submissions, there is no evidence of the manner in which Snaden J delivered his reasons. But even if one accepts that his Honour had some notes before him, it does not follow that he did not bring his Honour’s customary fair and impartial mind to the hearing. Nor is there anything that suggests that he predetermined the outcome of the matter. Like all diligent judges, he no doubt took the time to consider the relevant materials before attending Court, with the obvious purpose of ensuring that he was ready to comprehend the issues raised by the parties and organise his thoughts in a logical and coherent way. It should be understood that it is common practice for judges to read the materials beforehand and make notes from which they might, if need be, deliver an ex tempore judgment. Even if, prior to the hearing, a judge develops a preliminary view about the nature of a case – and there is not a scintilla of evidence that such was the case here – it is undeniably true that judges change their views many times throughout the course of a hearing. That being so, the preparation of some notes prior to a hearing provides no insight into how the judge’s mind operates, other than that they are careful and assiduous in what they do. There is nothing in the conduct of the primary judge to suggest that he brought anything other than a fair, impartial mind to the matter.

23    The second allegation made is that his Honour failed to recuse himself from the proceedings. For present purposes, it might be assumed that some application was made for his Honour to do so, notwithstanding that no transcript was adduced of the proceedings before his Honour, showing that such an application was made. The basis of the submission by Mr and Mrs Frigger was that his Honour presided over the Full Court in Frigger v Professional Services, where it was ordered that the Court inquire as to whether vexatious proceedings orders ought to be made against Mr and Mrs Frigger. There is, with respect, nothing in the fact that the Full Court identified reasons for an inquiry to be undertaken that would suggest that Snaden J had prejudged, or otherwise failed to bring an impartial mind to, the applicants’ application to restrain Eastwood Law. That conclusion is in line with decisions of the High Court in Johnson v Johnson (2000) 201 CLR 488, Livesey v New South Wales Bar Association (1983) 151 CLR 288, and Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337.

24    A number of other submissions were made by Mr and Mrs Frigger alleging prejudgment of the substantive inquiry for the same reason. They were put in the written submissions, though how any prejudgment could arise was not particularly apparent.

25    The third allegation was advanced as a denial of procedural fairness in the way in which the primary judge categorised the application. With the greatest respect, his Honour did not miscategorise the way in which the application was made. In fact, he accurately identified the basis on which it was put to him.

26    There are a range of other allegations made in the written submissions as to the way in which the primary judge conducted the matter. None rises higher than mere assertion without any substantial basis. There is no need to consider them further.

27    In those circumstances, and for the reasons given, there is no basis to conclude that the judgment warrants reconsideration by the Full Court.

The applicants suffer no substantial injustice

28    Though it is not necessary to address this point, the applicants also fail on the second question raised in Décor, namely, whether substantial injustice would result if leave were refused. That element was assiduously avoided by Mrs Frigger in her written and oral submissions. Ultimately, Mr and Mrs Frigger have the right to appear and defend their position at the inquiry. The presence or otherwise of Eastwood Law does not affect that right. Therefore, there is nothing which suggests that any injustice would flow from dismissing this application.

Conclusion

29    In those circumstances, the application for leave to appeal should be dismissed. There will be no order as to costs.

Note

30    These are the amended and revised reasons for judgment given on 9 July 2026. Whilst the reasons given above refine and develop those that were delivered ex tempore, the substance of what was said that day has not been changed nor has any other material change been made.

Associate:    

Dated:    30 July 2026