Federal Court of Australia

Frigger (Vexatious Proceedings Order) [2026] FCA 1156

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”), each of the respondents be hereby prohibited from instituting proceedings, including (for the avoidance of doubt) interlocutory proceedings, in this court without first applying for and obtaining leave to do so in accordance with ss 37AR and 37AT of the FCA Act.

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

REASONS FOR JUDGMENT

SNADEN J:

1    In the first half of 2003, Computer Accounting and Tax Pty Ltd (“CAT”), a company that was then under the control of the respondents, Mr and Mrs Frigger, purchased a petrol station in Armadale, Western Australia. The vendor was another corporate entity, Professional Services of Australia Pty Ltd (“PSA”).

2    For reasons that needn’t be explored, the transaction was not a happy one. It led to proceedings in the Supreme Court of Western Australia, by which CAT sued PSA and its director, Mr Martin Banning, for damages arising from misleading and deceptive conduct in relation to the purchase. That suit succeeded and, all told, CAT was paid more than $1.1 million as a result. Thereafter, Mr and Mrs Frigger removed those funds into an account under their control.

3    CAT’s success was short-lived: PSA and Mr Banning appealed the initial judgment and their appeal was at least partially successful. CAT was ordered to repay to PSA (which was, by then, operating under a deed of company arrangement) and to Mr Banning’s estate (Mr Banning having passed away before the appeal was determined) a substantial portion of what it initially had been awarded, as well as sums for interest and costs.

4    On the same day as the Western Australian Court of Appeal published its reasons, Mr and Mrs Frigger registered a charge against CAT for the proceeds of the litigation (purportedly relating to loans that they said they had made to it) and, later, lodged caveats over real estate registered in CAT’s name (which they said was held by it as trustee of their self-managed superannuation fund). Around six weeks after the appeal decision, they resolved to place CAT into voluntary liquidation. It had not, by then, repaid the funds that it had been ordered to repay.

5    Some two decades of litigation has since played out. It began with PSA and the executor of Mr Banning’s estate securing freezing orders over assets that CAT owned, effectively restraining Mr and Mrs Frigger from diminishing its assets. PSA and the executor then successfully applied to have Mr Mervyn Kitay appointed as CAT’s provisional liquidator. Mr and Mrs Frigger promptly sued him in relation to amounts that they said CAT owed to them; and Mr Kitay countersued, claiming that the charge that Mr and Mrs Frigger had registered against CAT was void against the liquidator.

6    Those, perhaps, were conventional shots fired in the early years of a prolonged war that became anything but. There would later be litigation—perhaps more accurately relitigation—in this court concerning (amongst other things) the conduct of PSA in the Supreme Court (including during the successful appeal against CAT’s initial victory). Joined to that suit were the executor of Mr Banning’s estate, the late Mr Banning’s wife, Mrs Sandra May Banning, and a company under their control, Banning Holdings Pty Ltd (“Banning Holdings”). Mr and Mrs Frigger sought to contend that PSA, then under administration, had improperly advanced submissions before the Court of Appeal—the impropriety inhering (at least partly) in a failure to have them approved in advance by its creditors—the result somehow being that the appeal court’s orders were tainted, such that CAT ought not have to repay what it had been ordered to repay. Noting their reagitating of arguments that had already failed in the Supreme Court—and no doubt perceiving an attempt to circumvent their defeat in the earlier appeal—the court made orders requiring that Mr and Mrs Frigger provide security for costs. They then lost a pleadings fight and a subsequent application for leave to appeal that loss. At that (leave to appeal) stage, their contentions were described as “artificial and far-fetched”: Frigger v Banning [2017] FCA 1589, [122] (Siopis J).

7    Undeterred, Mr and Mrs Frigger then commenced another action in this court, this time against Mr Kitay, resisting his attempts on behalf of CAT’s creditors (principally, PSA and Mr Banning’s estate) to recover what the Court of Appeal had ordered CAT to repay to them. In the course of that action, Mr and Mrs Frigger filed an interlocutory application directed to Mr Kitay’s handling of funds derived from the sale of the petrol station business and property, contending that the property was, in fact, owned by CAT as trustee for their self-managed superannuation fund, and that the goodwill in the business vested in Mr and Mrs Frigger themselves. That interlocutory process was set aside as an abuse of process, the court noting that the ownership of those assets was already a matter of contest in Mr and Mrs Frigger’s existing Supreme Court action: Kitay, in the matter of Computer Accounting & Tax Pty Ltd (in liq) [2016] FCA 720, [20]-[25] (Barker J).

8    Meanwhile, things had taken something of a turn.

9    In 2012, Mr Kitay, as CAT’s liquidator, made an ex parte application to the Supreme Court of Western Australia for orders under s 477(2B) of the Corporations Act 2001 (Cth) permitting him to enter into a litigation funding agreement. Acting Master Chapman determined to hear that application in closed court and made orthodox orders for an affidavit that Mr Kitay had made in support of it to remain on the court’s file in a sealed envelope marked “confidential”, not to be provided to any person otherwise than by order of the court.

10    Apparently by reason of clerical or administrative error, Mr and Mrs Frigger obtained a copy of that confidential affidavit. That became known to Mr Kitay when Mrs Frigger swore an affidavit that annexed it. He then petitioned the court for mandatory injunctive relief to require that Mr and Mrs Frigger return and/or forfeit their copy or copies. That relief was opposed but granted: Re Computer Accounting and Tax Pty Ltd; Ex parte Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) [No 4] [2014] WASC 169 (Master Sanderson). Ultimately, Mr and Mrs Frigger were ordered to pay Mr Kitay’s costs of that application on an indemnity basis. Costs in the sum of $61,000.42 were assessed upon taxation of a bill of costs. Mr and Mrs Frigger refused to pay them. That refusal ultimately led to the filing in this court of bankruptcy proceedings and to the making of a sequestration order against Mr and Mrs Frigger’s estates: Kitay, in the matter of Frigger (No 2) [2018] FCA 1032 (Colvin J). Ultimately, Mrs Kelly-Anne Trenfield was appointed as trustee of those bankrupt estates.

11    Since then, Mr and Mrs Frigger have waged all manner of contests in this court against Mrs Trenfield, Mr Kitay, PSA, Mrs Banning and Banning Holdings. The subject matters upon which that body of litigation has touched are diverse and some of them are the subject of exploration below, so I needn’t set them out now.

12    Instead, I pause at this juncture to introduce the subject matter of this action.

13    The chronology that I have sketched thus far emerges from a review of the 97 judgments that this court has published since April 2016 in relation to proceedings brought by or (in a minority of cases) against Mr and Mrs Frigger. That is not a typographical error. Other (and apparently related) litigation has played and continues to play out in other jurisdictions, including the Supreme Court of Western Australia and the District Court of Western Australia. All told, it would appear that there are in the vicinity of 250 published judgments that stem, in one way or another, from what began as an unremarkable dispute about the purchase of a petrol station nearly a quarter of a century ago.

14    That significant devotion of public resources over such a substantial period and in relation to what began as a single, vanilla controversy recently caught the court’s attention. In Frigger v Professional Services of Australia Pty Ltd [2026] FCAFC 9 (Snaden, O’Sullivan and Neskovcin JJ), the court noted (at [150]) as follows:

The proceeding 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 that same transaction has 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.

15    After dismissing Mr and Mrs Frigger’s appeal in that matter, the court made an order referring for my consideration “…the question whether to make vexatious proceedings orders under s 37AO of the Federal Court of Australia Act 1976 (Cth) in respect of the appellants”.

16    Thus was born the present action, which proceeds on the court’s own motion.

17    Its trajectory to hearing has not been as smooth as it could have been. The full court’s referral occurred on 17 February 2026. In March of 2026, the matter was the subject of a case management hearing, at which the court proposed to hear applications for leave to intervene (invitations in that regard having previously been extended to the parties considered most potentially inclined to make such applications, namely Mrs Trenfield, Mr Kitay, PSA, Mrs Banning and Banning Holdings). That hearing didn’t achieve much. Shortly prior to it, Mr and Mrs Frigger filed an application for orders that I recuse myself from hearing the matter. Mrs Frigger—who appeared by video from prison (a related story into which it is unnecessary at this juncture to descend)—indicated that she was not then in a position to make submissions in support of that application and that it was not appropriate for the court to entertain intervention applications until such time as the question of my recusal was heard and determined.

18    That course was indulged and the case management hearing was adjourned. The recusal application was then heard and dismissed: Frigger (Recusal Application) [2026] FCA 393 (Snaden J), following which the applications for leave to intervene were heard and determined (upon reasons that were given ex tempore). Over Mr and Mrs Frigger’s objections, leave to intervene was granted to Mrs Trenfield, Mr Kitay, PSA, Mrs Banning and Banning Holdings; albeit on the understanding that Mrs Trenfield would assume something of a “primary” intervention role, behind which the others would fall, advancing only such additional submissions as they were minded to. An interlocutory application dated 31 March 2026 that Mr and Mrs Frigger made to stay the proceeding was later abandoned.

19    Case management orders—including for the preparation and receipt of evidence and submissions—were made and the matter was listed for hearing over two days in July 2026.

20    That was the position in mid-April 2026. Two weeks after those case management orders were made, Mr and Mrs Frigger filed another interlocutory application, this time for orders that Eastwood Law—the firm by which PSA, Banning Holdings and Mrs Banning are represented—be restrained from acting in this matter. That application was heard and dismissed: Frigger (Restraint Application) [2026] FCA 603 (Snaden J). An application for leave to appeal from that judgment (and possibly from the recusal judgment that preceded it) was heard in July 2026, a few weeks prior to the scheduled hearing. It, too, was dismissed: Frigger v Eastwood Law Pty Ltd [2026] FCA 1028 (Derrington J).

21    In the week commencing Monday, 13 July 2026, my chambers made attempts to have the matter listed the following week for a pre-trial case management hearing to determine, perhaps amongst other things, the allocation of time for submissions at the hearing. Mr and Mrs Frigger indicated that they had other commitments and would not have time to attend. Attempts to find a mutually acceptable time—including outside of business hours—did not bear fruit. The pre-trial case management hearing went ahead, instead, late in the afternoon (Melbourne time) on Friday, 17 July 2026. The court’s expectations as to the time limits that would apply at the hearing for the presentation of the respective cases were discussed and agreed, and directions were issued concerning the identification of evidential objections and the preparation of books of authorities.

22    With that historical account completed, I turn to the hearing of the matter that took place on Thursday, 30 and Friday, 31 July 2026. Although initially intending to rely upon solicitors’ affidavits, each of the interveners ultimately determined to rely solely upon their submissions. Mr and Mrs Frigger were critical of that approach, not least because it resulted in their being deprived of an opportunity to cross-examine the deponents. Nothing turns on that.

23    Mr and Mrs Frigger read four affidavits at the hearing, namely:

(1)    an affidavit affirmed by Mr Frigger on 17 March 2026 (which was accepted for filing on 18 March 2026 at 9:58:59am (Perth time), within only a few seconds of acceptance of another affidavit affirmed that same day);

(2)    an affidavit sworn by Mrs Frigger on 1 April (or, possibly, 31 March) 2026;

(3)    an affidavit sworn by Mrs Frigger on 9 April 2026; and

(4)    an affidavit sworn by Mrs Frigger on 13 July 2026.

24    Multiple objections to various parts of those affidavits were raised and determined at the start of the hearing. Mrs Frigger was required for and subjected briefly to cross-examination, the proverbial high notes of which I needn’t here recount. A small number of documents were tendered in evidence at the conclusion of her oral evidence, none of which bear materially upon the analysis that will shortly follow.

25    There are aspects of the affidavit material upon which Mr and Mrs Frigger rely that purport to attribute various measures of impropriety to various people, including some of the interveners. It is unnecessary that I should say much about that. As will shortly be made clear, the present matter does not turn upon the conduct of anybody other than Mr and Mrs Frigger. Even assuming that the impropriety by which they hope to stigmatise others could be made out, it has no bearing for present purposes and, for that reason, I shall not be drawn upon it.

26    I will, however, make an observation about one category of objections that were made to Mrs Frigger’s 13 July 2026 affidavit. It concerns the confidential affidavit that Mr Kitay made in January 2012. It might be recalled that that affidavit was the subject of orders that required Mr and Mrs Frigger to (amongst other things) deliver up or destroy all copies that they had of it. Notwithstanding that order, Mrs Frigger attached to her 13 July 2026 affidavit a copy of the confidential affidavit, as well as a transcript of a recent closed hearing that took place before the Supreme Court of Western Australia. Her apparent purpose in doing so was to substantiate serious allegations of dishonesty with which it is apparent that she and her husband persist. Those allegations were and remain, for present purposes, irrelevant and the objections that were properly taken to the offending parts of Mrs Frigger’s affidavit evidence were upheld without hesitation (indeed, Mrs Frigger conceded them, although later denied that she had done so—again, it doesn’t much matter).

27    After the interveners had concluded their oral closing submissions, Mr and Mrs Frigger made an attempt to lead additional evidence. For reasons that might be imagined, it failed; and nothing more need be said of it.

28    It is convenient, then, to turn to the matters of principle with which this matter engages. Part VAAA of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”) is entitled, “vexatious proceedings”. It was introduced into the FCA Act in 2012 by the passage of the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth). The provisions of that enactment created nationally consistent processes by which federal courts could prevent abuses of the Commonwealth judicial system; specifically, in the form of (perhaps amongst others) repetitive and unmeritorious claims advanced by self-represented litigants.

29    Division 2 of Part VAAA of the FCA Act is entitled, “vexatious proceedings orders”. It commences with s 37AO, which provides as follows:

37AO     Making vexatious proceedings orders

(1)     This section applies if the Court is satisfied:

(a)     a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

(b)     a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.

(2)     The Court may make any or all of the following orders:

(a)     an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

(b)     an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

(c)     any other order the Court considers appropriate in relation to the person.

Note:     Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

(3)     The Court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

(a)     the Attorney-General of the Commonwealth or of a State or Territory;

(b)     the Chief Executive Officer;

(c)     a person against whom another person has instituted or conducted a vexatious proceeding;

(d)     a person who has a sufficient interest in the matter.

(4)     The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(5)     An order made under paragraph (2)(a) or (b) is a final order.

(6)     For the purposes of subsection (1), the Court may have regard to:

(a)     proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

(b)     orders made by any Australian court or tribunal; and

(c)     the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

30    “[V]exatious proceeding” is defined by s 37AM(1) of the FCA Act to include:

37AM     Definitions

(1)     In this Part:

Australian court or tribunal means a court or tribunal of the Commonwealth, a State or a Territory.

institute, in relation to proceedings, includes:

(a)     for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against a party; and

(b)     for proceedings before a tribunal—the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal; and

(c)     for criminal proceedings—the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender; and

(d)     for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.

…

vexatious proceeding includes:

(a)    a proceeding that is an abuse of the process of a court or tribunal; and

(b)    a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c)    a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d)    a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

…

31    “[P]roceeding”, in relation to a court, is defined in the same section by reference to the meaning given to that word by s 4 of the FCA Act, which relevantly provides as follows:

proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal.

Example:     Discovery is an example of an incidental proceeding

32    The effect of that definition, it has been said, is that an interlocutory proceeding qualifies as a “proceeding” for present purposes (as it no doubt would in any event): Storry v Parkyn (2024) 304 FCR 318, 325 [24] (Lee, Feutrill and Jackman JJ).

33    The consequences of orders made under s 37AO of the FCA Act are set out in s 37AQ, which provides as follows:

37AQ     Proceedings in contravention of vexatious proceedings order

(1)     If the Court makes a vexatious proceedings order prohibiting a person from instituting proceedings, or proceedings of a particular type, in the Court:

(a)     the person must not institute proceedings, or proceedings of that type, in the Court without the leave of the Court under section 37AT; and

(b)     another person must not, acting in concert with the person, institute proceedings, or proceedings of that type, in the Court without the leave of the Court under section 37AT.

(2)     If a proceeding is instituted in contravention of subsection (1), the proceeding is stayed.

(3)     Without limiting subsection (2), the Court may make:

(a)     an order declaring a proceeding is a proceeding to which subsection (2) applies; and

(b)     any other order in relation to the stayed proceeding it considers appropriate, including an order for costs.

(4)     The Court may make an order under subsection (3) on its own initiative or on the application of any of the following:

(a)     the Attorney-General of the Commonwealth or of a State or Territory;

(b)     the Chief Executive Officer;

(c)     a person against whom another person has instituted or conducted a vexatious proceeding;

(d)     a person who has a sufficient interest in the matter.

34    Sections 37AR, 37AS and 37AT of the FCA Act also assume some significance. They provide as follows:

37AR     Application for leave to institute proceedings

(1)     This section applies to a person (the applicant) who is:

(a)     subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court; or

(b)     acting in concert with another person who is subject to an order mentioned in paragraph (a).

(2)     The applicant may apply to the Court for leave to institute a proceeding that is subject to the order.

(3)     The applicant must file an affidavit with the application that:

(a)     lists all the occasions on which the applicant has applied for leave under this section; and

(b)     lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

(c)     discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

(4)     The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 37AT(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

37AS     Dismissing application for leave

(1)     The Court or a Judge may make an order dismissing an application under section 37AR for leave to institute a proceeding if the Court or Judge considers the affidavit does not substantially comply with subsection 37AR(3).

(2)     The Court or a Judge must make an order dismissing an application under section 37AR for leave to institute a proceeding if the Court or Judge considers the proceeding is a vexatious proceeding.

(3)     The Court or a Judge may dismiss the application without an oral hearing (either with or without the consent of the applicant).

37AT     Granting application for leave

(1)     Before the Court makes an order granting an application under section 37AR for leave to institute a proceeding, it must:

(a)     order that the applicant serve:

(i)     the person against whom the applicant proposes to institute the proceeding; and

(ii)     any other person specified in the order;

with a copy of the application and affidavit and a notice that the person is entitled to be heard on the application; and

(b)     give the applicant and each person described in subparagraph (a)(i) or (ii), on appearance, an opportunity to be heard at the hearing of the application.

(2)     At the hearing of the application, the Court may receive as evidence any record of evidence given, or affidavit filed, in any proceeding in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party.

(3)     The Court may make an order granting the application. The order may be made subject to the conditions the Court considers appropriate.

(4)     The Court may grant leave only if it is satisfied the proceeding is not a vexatious proceeding.

35    The principles that regulate the granting of relief under s 37AO(2) of the FCA Act are well established. In Fuller v Toms (2015) 234 FCR 535, 545 [31] (Besanko, Logan and McKerracher JJ), the Full Court described the purpose of s 37AO as follows:

Section 37AO of the Federal Court Act empowers a court to balance the right of one individual of access to justice with other rights namely, a correlative right on the part of the present respondents to finality and the separate right of other individuals also to access this Court…

36    Justice Colvin expanded upon those observations in Ogbonna v CTI Logistics Limited (No 6) [2022] FCA 615 (“Ogbonna”). Relevantly, his Honour observed (at [3]-[5]):

3    The purpose of the statutory power is not to punish the litigant for past misdeeds. The purpose is to shield other litigants from harassment and to protect the Court itself from the expense, burden and inconvenience of baseless and repetitious suits: Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [3] (Perram J), approved in Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [56] (Beazley P; Emmett JA and Sackville AJA). It is an extreme measure and the exercise of the power should be approached accordingly: Soden v Kowalski [2011] FCA 318 at [35] (Stone J), as endorsed in Kowalski v Mitsubishi Motors Australia Ltd [2011] FCAFC 159; (2011) 198 FCR 153 at [58].

4    The requirement for frequency in instituting or conducting vexatious proceedings must first be met before the statutory power to make any order of the kind described arises. Frequently is a relative term. Therefore, in evaluating whether there has been frequent conduct of the required kind, account must be taken of the nature of the litigation being considered. The requirement connotes a lesser test than its predecessor which required proceedings to have been conducted ‘habitually and persistently’. Significantly for present purposes ‘the Court may find that a person has instituted or conducted proceedings ‘frequently’ even though the number of proceedings may be quite small, such as where the proceedings are an attempt to re-litigate an issue determined against the person’: as to these matters see Fuller v Toms [2015] FCAFC 91; (2015) 234 FCR 535 at [33]-[34] (Besanko, Logan and McKerracher JJ), whilst noting the divergence in views in application that may arise, as is evident from the reasoning in Mohareb v Palmer (No 2) [2020] NSWCA 324.

5    Various types of interlocutory applications may constitute a proceeding for the purposes of evaluating whether the requirement for frequency is met: see Mathews v State of Queensland [2015] FCA 1488 at [92] (Reeves J).

37    In Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 (“Gargan”), Perram J—albeit addressing an ancestral regime pre-dating the provisions that are engaged presently—enumerated a series of principles (at [2]-[12]) to which the court should be alive when contemplating relief akin to a vexatious proceedings order:

2    … First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right. It is, therefore, not lightly to be made.

3    Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.

4    Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.

5    Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant’s institution of such proceedings may fairly be said to be both habitual and persistent.

6    Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.

7    Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.

8    Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant’s conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.

9    Eighthly, each of these notions – the want of reasonable grounds, habitual institution and persistent institution – are to be gauged objectively. But this does not mean that a litigant’s own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.

10    Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto – so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).

11    Tenthly, other proceedings commenced before bodies which are not courts, such as the Administrative Appeals Tribunal, are not directly pertinent to the existence of the power but may nevertheless throw light on the vexatious nature of proceedings before the Court; so too, the existence of a body of such administrative litigation may have relevance to the question of whether the Court’s power to make the order, once enlivened, should be exercised.

12    Finally, once it is concluded that the Court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest – although not determine – a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise.

38    In assessing whether a proceeding that was instituted or conducted by a litigant might qualify as a “vexatious proceeding” (as defined), it is not necessary for the court to make findings about any facts or matters that were therein in issue. Rather, the court may take account of the record relevant to each such proceeding—in particular, court documents, submissions, orders and any reasons given in support—and, having done so, may make an assessment as to its character: Ogbonna, [22]-[23] (Colvin J); see also the comprehensive analysis of the case law on this point in Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30, [41]-[64] (Wheelahan J), together with his Honour’s conclusion at [66].

39    Section 37AM(1) of the FCA Act does not define the circumstances in which a proceeding might be considered to be an abuse of process. Conceptually, abuses of court process are not susceptible to definition by reference to closed categories. Nonetheless, the concept quite obviously overlaps with other components of the statutory definition of “vexatious proceedings”. Each of them in and of itself suffices to bespeak an abuse of a court’s process. The inclusion of the broader, “catch-all” serves merely to illustrate that, in divining a tendency to institute or conduct vexatious proceedings, the court is not to be constrained by linguistic formulary.

40    Something might also be said of the statutory reference to the manner in which proceedings might be “conducted”. That term is also not defined; but it seems to have been held (in the context of equivalent, state legislation) as apt to authorise consideration of the manner in which a litigant has carried or conducted themselves in prior proceedings: Attorney-General (NSW) v Collier (No 2) [2022] NSWSC 903, [25] (Cavanagh J). Plainly, it must mean something additional to “institute[d]”; were it otherwise, it would be redundant and the court should assume that its inclusion within the legislation was deliberate: Dennis C Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 10th ed, 2024), 69. Its usage in s 37AM(1) suggests that it encompasses, at the least, the conducting of proceedings in such a manner as to “harass or annoy, cause delay or detriment, or achieve another wrongful purpose”.

41    With those principles identified, my earlier observations about parts of the affidavit evidence upon which Mr and Mrs Frigger rely might come into sharper focus. As has been observed, Mrs Frigger’s affidavit contains assertions of various forms of impropriety that she attributes (presumably on behalf of both herself and her husband) to various others. Although the interveners apparently were (and I was) content for most of those parts of the affidavit to be read, they do not materially bear (assuming that they bear at all) upon the court’s present task. Whether or not Mr and Mrs Frigger are people who have frequently instituted or conducted vexatious proceedings for the purposes of pt VAAA of the FCA Act does not turn upon the extent to which others have conducted themselves inappropriately. Rather, that question is answered solely by way of analysis of Mr and Mrs Frigger’s conduct in the litigation to which each has been party.

42    Before continuing beyond matters of principle, it is necessary to address some submissions that Mr and Mrs Frigger made about the circumstances in which the court might recognise that a person has frequently instituted or conducted vexatious proceedings. Five such submissions warrant attention.

43    I shall address the most fundamental of them first. Mr and Mrs Frigger suggested that, in the absence of the interveners having read the affidavits that they had prepared, there is no evidence upon which the court can draw any conclusions as to the vexatiousness of particular proceedings. Perhaps that submission was not wholly persisted with, but to the extent that any part of it was, it may be swiftly disposed of by reference to authority already surveyed (above, [38]). The suggestion that inferences adverse to the interveners should be drawn in respect of their failure to rely upon the affidavits that their solicitors had prepared is rejected for the same reason.

44    To the extent that that submission should be instead understood as suggesting that the court is required to consider—or, perhaps, that any contradictors are required to present—the entire history of a litigant’s in-court endeavours in order that the court can make an assessment as to the vexatiousness of individual proceedings, that, too, can be rejected. Save to acknowledge (as I already have) that the assessment of “frequency” is contextual, there is not a skerrick of support for it in the cases to which Mr and Mrs Frigger pointed.

45    The second contention supposed that, in conducting the inquiry that s 37AO of the FCA Act contemplates, the court is confined to considering “concluded” matters. How that contention was put could have been made clearer but I understood that it proceeded on the strength of an observation of the High Court of New Zealand that Le Miere J appeared to endorse in Attorney General (WA) v Tey [2015] WASC 146, [17]; namely that, “…in many cases it may not be possible to decide whether litigation is wholly without merit until it is determined”. If the proposition is that the court may only consider substantive matters after they (including any interlocutory or related applications pressed within them) are determined in their entirety, then that proposition is unsupported by authority and I reject it. In the case of some litigants—and, as will be seen, Mr and Mrs Frigger are firmly amongst them—the court might more easily complete the twelve labours of Hercules.

46    Third, it was suggested that, in assessing the character of individual proceedings, the court is constrained to consideration only of the conclusions expressed by the judge who decided them. The submission continued: if, in the course of determining a proceeding, a judge has occasion to record a conclusion about its character (for example, that it amounted to an abuse of process or was otherwise vexatious), that is a circumstance to which a court conducting an inquiry such as this one might properly have regard; but, absent some observation of that nature, it is not open to the court to draw its own conclusions. That contention is plainly wrong. The authorities cited in support of it—Barber v Mbuzi [2015] QCA 269 (Fraser and Philippides JJA and Atkinson J) and Praljak v Bond University Limited [2024] QSC 45 (Sullivan J)—do not hold as Mr and Mrs Frigger suggested and there is ample authority to the contrary. As the summary of principle addressed above lays bare, the court is competent to draw its own conclusions from the face of the records pertaining to prior proceedings. Respectfully, that stands to reason: if a court seized of questions unrelated to those arising in an inquiry under s 37AO has not in terms made observations as to the vexatiousness of a proceeding before it, that does not mean that it was not vexatious.

47    The fourth contention concerned the occasional status of Mr and Mrs Frigger as represented litigants. The contention was put in this way: in some of the proceedings identified by the interveners in their submissions, they were represented by firms of solicitors and/or counsel; and it follows that the claims that they were there prosecuting or the defences that they proffered must have had a proper factual or legal basis. It was the case, Mr and Mrs Frigger submitted, that those proceedings could not be vexatious proceedings, at least insofar as it might be said that they engage the “instituted or pursued without reasonable grounds” limb alone.

48    As will become apparent, Mr and Mrs Frigger were not represented in any of the proceedings that I have, below, considered significant for present purposes. But it wouldn’t matter much if they were. I observed (above, [28]) that pt VAAA of the FCA Act is directed, at least in part, to the unmeritorious claims of litigants in person. For obvious reasons, the conduct of such litigants will (and historically has) more readily attracted orders under pt VAAA and its cross-jurisdictional equivalents. That reality doesn’t operate to exclude from the s 37AO inquiry proceedings that were instituted or conducted by represented litigants. In fact, the scheme clearly contemplates that litigants might be represented when conducting vexatious proceedings. So much falls from s 37AM(2) of the FCA Act, which operates to carve out legal representatives from the provisions of pt VAAA that deal with those who act in concert with vexatious litigants. That representation might make it less likely that a litigant will advance a case that is devoid of merit may be accepted; but that is not to accept that it operates to render meritorious proceedings that are anything but.

49    The fifth contention focused upon a subset of the very large number of proceedings that constitute Mr and Mrs Frigger’s litigation history. Some context is required. For some time now, it has been Mr and Mrs Frigger’s contention that various irregularities have attended PSA’s initial registration and/or present constitution as a company (and also, it would seem—howsoever coincidentally—that of Banning Holdings). The contention extends: because of those irregularities, those entities are said not to have been capable of agitating or defending proceedings brought by or against them, or otherwise of engaging lawyers to assist in those regards.

50    As the analysis below will make clear, those contentions (or analogues of them) have featured in numerous decisions of this court (perhaps amongst others), all of which appear to have been decided adversely to Mr and Mrs Frigger (although whether that is so or not doesn’t much matter). Mr and Mrs Frigger now suggest that the irregularities upon which they have previously relied are the subject of deemed admissions or judgments, the end result of which, they say, is that the court must accept, as a factual proposition, that those companies either don’t properly exist, or can’t properly agitate or defend proceedings.

51    In the case of Banning Holdings, the proposition is put thus. The Supreme Court of Western Australia has found that irregularities attended certain of Banning Holdings’s corporate transactions: Lean v Banning Holdings Pty Ltd [2017] WASC 353 (S) (Smith AJ). That being so, it must (the contention continues) be that such irregularities have attended its prosecution or defence of the various cases that the court might otherwise be minded to take into account for the purposes of this inquiry. There is no evidence before me to ground an inference that irregularities similar to those identified in 2017 attended Banning Holdings’s conduct of either this proceeding or any of those that, below, are considered significant for present purposes. In any event, for reasons to which I shall shortly turn, it doesn’t much matter.

52    In the case of PSA, the point is advanced slightly differently. Its deemed admissions, Mr and Mrs Frigger say, arise from the manner in which PSA and Mrs Banning have resisted (or, as the case may be, not resisted) certain litigation. The end result, Mr and Mrs Frigger say, is that the large number of matters brought by or against PSA and Banning Holdings are “nullities”, which cannot feature in the court’s analysis of whether or not either or both of Mr and Mrs Frigger are people who have frequently instituted or conducted vexatious litigation in Australian courts or tribunals.

53    The proposition need only be stated to be recognised as nonsense. The admissions to which Mr and Mrs Frigger point arise, it seems, from forensic decisions that PSA and Mrs Banning appear (or are said) to have made in resisting proceedings commenced against them in the Supreme Court of Western Australia. In those proceedings, the court was told, Mr and Mrs Frigger persist with the contention that PSA labours under the registration irregularities earlier described. Either by reason of notices to abide filed in those proceedings and/or a failure by PSA and/or Mrs Banning to file pleadings that contest those assertions (it’s not really clear which), Mr and Mrs Frigger maintain that they must be understood to have made admissions that operate upon the court in this matter. That, they explained, is a consequence of the High Court’s decision in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

54    That proposition almost certainly rests upon misunderstandings of how pleading admissions and Anshun estoppel work; but even assuming that it doesn’t, it fails at the very next hurdle in any event.

55    None of the proceedings brought by or against PSA or Banning Holdings is properly described as a “nullity”. It is not really clear what Mr and Mrs Frigger meant by that descriptor. The submission that they advanced was that, “[p]roceedings instituted or defended by an entity with no capacity in law to be a party are nullities [and that] a judgment procured in such circumstances ‘binds not such court nor any other’, and its invalidity may be raised collaterally”. It was said that authority for that proposition could be found in the judgment of Williams J in “Cabassi v Vila (1940) 64 CLR 130 at 153–154”. The submission continued: the many proceedings brought by or against PSA and Banning Holdings “…cannot be treated as genuine adversarial determinations adverse to [Mr and/or Mrs Frigger] and cannot contribute to any finding that either [of them] has ‘frequently instituted or conducted vexatious proceedings’ within the meaning of s 37AO(1) [of the FCA Act]”.

56    Cabassi v Vila does not stand as authority for the proposition in respect of which Mr and Mrs Frigger advanced it. The reasons of Williams J—which conclude the report on page 152 of the volume—contain no statement of principle consistent with the proposition that is advanced. The quote to which Mr and Mrs Frigger referred is one of Willes J in R v Saddlers’ Co (1863) 11 ER 1083, 1094. It pertains to the circumstances in which a court might consider itself not bound by earlier judgments obtained by fraud. It does not apply in the present context.

57    The suggestion that the large number of proceedings that Mr and Mrs Frigger have commenced (or otherwise participated in) against PSA and/or Banning Holdings must somehow be airbrushed from the record of which this court now might properly take account cannot be accepted. Those proceedings occurred. Their character and the manner in which Mr and/or Mrs Frigger conducted them are properly matters to which the court might have regard in assessing whether or not either or both of Mr and Mrs Frigger are people who have frequently instituted or conducted vexatious proceedings. The suggestion otherwise is arrant nonsense.

58    I turn, then, to apply the principles that I have identified to the facts that emerge in this matter. Doing so necessarily requires some descent into the particulars of Mr and Mrs Frigger’s litigation history; but, before getting to that, it is important to acknowledge a point that Mr and Mrs Frigger were at pains to make in their submission. It cannot seriously be doubted that Mr and Mrs Frigger are properly regarded as litigants of considerable persistence. To have been the subject of 97 judgments in this court alone over a little more than 10 years is no mean feat; and more so given that the overwhelming majority (if not all) of them hark back, in one way or another, to the single transaction that occurred in 2003. Excepting some government departments or agencies—and perhaps some very large corporate litigants—it is unlikely that there are many (or possibly any) other litigants, personal or corporate, that have consumed as much of this court’s resources over that period as Mr and Mrs Frigger have. Nonetheless, persistent litigation and vexatious litigation are not the same thing. The frequency with which Mr and Mrs Frigger have called upon the court’s assistance is not, by itself, reason to make orders against them under s 37AO of the FCA Act.

59    A similar point may be made of the fact that Mr and Mrs Frigger have been overwhelmingly unsuccessful in the litigation that they have waged in this court. On the most generous of readings—counting, for example, minor procedural indulgences as “victories”—it would appear that perhaps as few as six of the 97 “Frigger judgments” that this court has published since 2016 involved matters that could be said to have been decided in their favour: Frigger v Banning (No 2) [2016] FCA 749 (Barker J), which involved orders reducing an amount payable by way of security for costs; Frigger v Banning (No 4) [2017] FCA 900 (Barker J), which involved a failed application to have costs that Mr and Mrs Frigger were ordered to pay be made payable immediately; Frigger v Banning (No 6) [2018] FCA 787 (Colvin J), which involved a failed application against Mr and Mrs Frigger for additional security for costs; Frigger, in the matter of an application by Frigger [2019] FCA 1730 (Jackson J), which involved conditional (and unopposed) leave (required in light of their bankruptcies) to manage a company so that it might act as trustee of a superannuation fund; Frigger v Trott [2021] FCA 18 (Jackson J), which involved a registrar’s refusal to accept documents for filing; and Kitay (Liquidator) v Frigger, in the matter of Frigger (Costs Claim by Supporting Creditors) [2024] FCA 67 (Colvin J), which involved an unsuccessful, belated application by supporting creditors for their costs of the petition for sequestration orders. To put some of those in the proverbial Frigger “wins” column might be generous but generosity assists in making the point: the litigation that Mr and Mrs Frigger have waged in this court has been an overwhelming failure.

60    That acknowledged, the equivalent point concerning frequency is apposite: failed litigation and vexatious litigation are not the same thing. That Mr and Mrs Frigger’s efforts to prosecute their interests have been crushingly ineffective is not, by itself, reason to make orders against them under s 37AO of the FCA Act.

61    All of that is accepted. Nonetheless, in many cases it will not be difficult to draw a connection between persistence and failure (on the one hand), and abuse that bespeaks vexation (on the other). Here, that connection is abundantly apparent. For the reasons to which I shall now come, the present matter is an unmistakably clear example of one in which it is appropriate for orders to be made under s 37AO of the FCA Act.

62    Indeed, I record—howsoever gratuitously—some surprise that none of the interveners has earlier seen fit to make an application of their own in that regard. Given the enthusiasm with which they have embraced—for the record, helpfully embraced—the current process, one might be left to wonder why it has taken as long as it has for matters to reach this point.

63    With that observed, I turn to the litigation record. So vast are its boundaries that it is difficult to know where to begin. It is, I think, as convenient as anything to start with the substantive proceedings that Mr and Mrs Frigger have commenced in this court since 2015 (or that have otherwise served as matters within which they have commenced interlocutory applications). Insofar as they have progressed to some form of published judgment, there are at least 25 such proceedings, namely:

64    Additional to those matters, there are many others that have been commenced by or against Mr and Mrs Frigger in the Supreme Court of Western Australia, the District Court of Western Australia and, it would seem, in other jurisdictions that I needn’t list.

65    It is necessary, at least to some degree, to consider the ocean of judgments that the 25 matters commenced in this court have generated. As will become clear, it is necessary only to begin, rather than end, that process, as one quickly gets a flavour of things. Moreover, it repays to begin with more recent judgments of the court and work backwards: as will become equally apparent, whatever might have been the kernel of respectability that attended Mr and Mrs Frigger’s initial applications, the court’s patience in more recent times has been sorely tested, which has spawned a series of observations that bear upon the present matter.

66    Categorising the vast array of interlocutory applications that Mr and Mrs Frigger have prosecuted over the years, both in this court and others, is no easy task. I have, in that regard, been substantially assisted by the submissions advanced on behalf of the first intervener, Mrs Trenfield. They posit that a substantial number of federal and Western Australian judgments—113 of them, to be precise (all listed in the annexure appearing in Mrs Trenfield’s written submission)—fall within one or more of six categories, each of which should suffice to constitute an abuse of process (or, more precisely, some constituent part of the statutory definition of “vexatious proceeding”). The categories so nominated are broadly as follows, namely:

(1)    proceedings that were instituted or pursued without reasonable cause;

(2)    proceedings that involved improper allegations akin to fraud or other serious misconduct;

(3)    proceedings (other than appellate proceedings) that sought collaterally to attack earlier judgments adverse to Mr and Mrs Frigger or otherwise relitigate issues earlier decided or being considered in other forums;

(4)    proceedings that demonstrated an unwillingness to accept or comply with the court’s orders or judgments;

(5)    proceedings that prosecuted baseless accusations of judicial bias; and

(6)    proceedings conducted in such a way as to engage the definition in s 37AM(1).

67    The other interveners relied upon other decisions, which were said also to qualify, for varying reasons, as vexatious for the purposes of the statutory test. At the hearing of the inquiry, the interveners took the court to many—although, in truth, merely a sample—of the judgments upon which they collectively relied. Nonetheless, they were careful to impress—and it is and was very plainly understood—that they did so as a means of underlining, rather than superseding, the much more comprehensive written submissions that were advanced.

68    Notwithstanding the helpful list of categories just referred to, I have, by what follows, preferred instead to take a less structured approach to the assessment of Mr and Mrs Frigger’s litigation history. For reasons that will shortly become apparent, it more than suffices to demonstrate the matters upon which the present inquiry turns. In the analysis that follows, I have referred only to some of the judgments to which the court was taken during oral submissions; and to many more that featured only in the written submissions. Nothing turns upon that; but I should not wish it to be thought that the court was unassisted by the oral submissions.

69    I shall begin with a full court judgment from this year. In Frigger v Professional Services of Australia Pty Ltd [2026] FCAFC 9 (Snaden, O’Sullivan and Neskovcin JJ)—the matter out of which arose the referral that has led to the present matter—Mr and Mrs Frigger sought to appeal (amongst other things) a primary judgment that determined separate questions relating to the validity of PSA’s registration as a company. Despite having commenced numerous proceedings against it—the first and most significant of which they won—Mr and Mrs Frigger are convinced that PSA’s registration as a company was attended by some measure of fraud, the result of which is that it doesn’t properly (or shouldn’t actually) exist. They sought before the primary judge orders requiring that the Australian Securities and Investments Commission rectify the Organisation and Business Names register by removing PSA from it. Later, I shall have more to say about the subject matter of that contention.

70    After what appears to have been (I say at the risk of understatement) something of a difficult start to the trial, the primary judge resolved to address Mr and Mrs Frigger’s concerns by posing and answering separate questions, to be determined on the basis of facts that either were not controversial or would be assumed in Mr and Mrs Frigger’s favour. The full court summarised his Honour’s conclusions (at [2]) as follows:

2    The primary judge determined the separate questions as follows:

(1)    Was the registration of the company with the name Liberty Oil (Australia) Pty Ltd and Australian Company Number 082 879 641 invalid ab initio?

No.

(2)    On the proper construction of section 1322(4)(b) of the Corporations Act 2001 (Cth), has the Court power, on the application of the plaintiffs, to make an order directing the Australian Securities Investments Commission to rectify the register kept by ASIC under the Corporations Act 2001 (Cth) to remove Professional Services of Australia Pty Ltd (ACN 082 879 641) from that register?

No.

(3)    If the answer to question (2) is in the affirmative, has the Court power to make such an order with retrospective effect?

No.

71    The reference to “Liberty Oil (Australia) Pty Ltd” is a reference to the name that PSA assumed at the time of its registration.

72    It is unnecessary here to traverse the grounds of appeal upon which Mr and Mrs Frigger then moved. It suffices to record that the court described them (at [5]) as devoid of “any merit”. An interlocutory application to lead further evidence in the appeal—specifically, evidence that was said to substantiate an underlying submission as to the fraud by which Mr and Mrs Frigger insisted that PSA’s registration as a company was attended—was dismissed.

73    There are obvious reasons why. Key to Mr and Mrs Frigger’s contention about PSA’s incorporation was the proposition that signatures appearing on the memorandum and articles of association upon which PSA was constituted had been fabricated. Although there was a live factual contest about that, the primary judge had proceeded to determine the separate questions that he nominated on the assumption that Mr and Mrs Frigger’s suggestion was true. For the reasons into which his Honour then carefully descended, that was not a reason to favour the relief for which Mr and Mrs Frigger had moved.

74    Nonetheless, both on appeal and by their application to adduce further evidence in it, Mr and Mrs Frigger refused to take his Honour’s assumption as sufficient. They sought to insist that the court make findings of fact directed to the issue that they considered—very much wrongly, as it happens—dispositively entitled them to the relief for which they had moved. It repays to record some of what the full court observed (at [96]):

…the further evidence that the appellants hope to adduce was unnecessary. The appellants are disappointed by the primary judge’s failure to make findings, adverse to the respondents, about the circumstances that attended the initial incorporation and registration of the first respondent. That disappointment might or might not be understood; but the point of greater significance presently is that the resolution of the separate questions that the primary judge identified and answered did not turn upon the making of those findings. There was no need for him to consider that which the appellants now seek to adduce. For present purposes, then, the further evidence in respect of which the appellants sought leave is irrelevant.

75    On appeal, Mr and Mrs Frigger took aim at the primary judge’s decision to determine their application by posing and answering separate questions. They opposed that course and they repeated that opposition on appeal; but they did not seek to impugn his Honour’s choice of course as a product of discretionary error. One might readily imagine why; indeed, it is very difficult to see how they might sensibly have done so. Their appeal proceeded principally in pursuit of their grievance that his Honour had not made the damning factual findings that they were (and still are) convinced should be made.

76    There were other (and similar) shortcomings. One of the grounds that Mr and Mrs Frigger pursued on appeal concerned their standing to challenge PSA’s registration as a company. The primary judge proceeded on the assumption—not a concluded finding but an assumption—that standing existed. That apparently wasn’t good enough for Mr and Mrs Frigger. They charged him with erring by determining the separate questions that he posed and answered without conclusively accepting that they possessed a legal interest or interests sufficient to endow them with standing to pursue the remedies that they pursued. The full court found that that ground was misconceived (at [135]). Its observations on that front (at [136]) were as follows:

The primary judge’s finding, at PJ [91], flowed from his Honour’s finding that the certificate of registration was conclusive evidence of PSA’s registration, which finding was unimpeachable for the reasons already mentioned. That conclusion was not reached because of any finding in relation to the appellants’ standing or lack thereof. Indeed, the primary judge expressly assumed the appellants did have standing as interested persons: PJ [17] (first assumed fact).

77    The full court otherwise and variously described (at [133], [143] and [146]) Mr and Mrs Frigger’s contentions as meritless. The appeal was hopeless and a complete waste of time, money and effort. It comfortably qualifies as a vexatious proceeding for the purposes of s 37AO of the FCA Act.

78    That appeal was not the first—or the last—time that Mr and Mrs Frigger sought to make something of the circumstances attending PSA’s incorporation as a company. As has already been outlined, they moved as recently as earlier this year for extraordinary orders to require that PSA’s lawyers be prevented from participating in this proceeding. That was put, in part, on the basis that PSA has never had members able to appoint directors; and, therefore, has never had officers able to retain lawyers. The contention rested upon essentially the same challenge that was made to PSA’s registration as a company. It was, of course, rejected: Frigger (Restraint Application) [2026] FCA 603 (Snaden J).

79    Mr and Mrs Frigger’s contention was self-evidently fatuous. PSA’s corporate existence has been the subject of multiple affirmatory judgments. It exists and, therefore, it can be sued; and if it can be sued, it must be represented: Federal Court Rules 2011 (Cth), r 4.01(2). Any irregularity attending the retention of lawyers—and, to be clear, I say so only for the sake of argument, the underlying question having never required determination—can be addressed if or when it might be necessary to address it. The idea that the lawyers on record for it should, in the meantime, be banned from advancing its interests is specious.

80    Even more absurd was the suggestion that the court should assume that PSA’s lawyers—who also act for Mrs Banning and Banning Holdings—had not, in fact, been retained by those clients. That contention was advanced on the footing that those parties had not led any evidence to substantiate the retainers. That contention only has to be stated to be seen for the nonsense that it was.

81    Yet Mr and Mrs Frigger still would not be denied the finding that they have, for some reason, spent years pursuing. As has already been adverted to, they lodged an application for leave to appeal against my refusal to ban PSA’s lawyers from appearing in this matter. It was summarily dismissed: Frigger v Eastwood Law Pty Ltd [2026] FCA 1028 (Derrington J). That judgment was not the subject of submissions and I place no weight upon it. Nonetheless, the underlying application to restrain PSA’s lawyers from acting in this matter comfortably qualifies as a vexatious proceeding for the purposes of s 37AO of the FCA Act.

82    The circumstances attending PSA’s registration have featured in other proceedings as well. In Frigger (Trustee) v Bank of Queensland Ltd [2025] FCA 447 (Vandongen J), the court addressed what has become an all-too-familiar application for recusal (about which I shall later have more to say). That application centred upon his Honour’s previous practice as a barrister and his having once acted for some lawyers in a dispute involving Mr and Mrs Frigger. The underlying subject matter of the proceeding from which his Honour’s recusal was sought concerned access to certain assets that were said to belong to Mr and Mrs Frigger’s superannuation fund. That, so Mr and Mrs Frigger reckoned, turned upon what were described as “very serious fraud allegations” raised in their pleadings.

83    What does that have to do with recusal? It’s a fair question and the answer is, “not very much”. It was suggested that, on the occasion that his Honour acted against Mr and Mrs Frigger, an issue arose about PSA’s registration and whether it was effected upon fraudulent documentation. His Honour was said not to have “raise[d] any questions” when PSA and Mrs Banning sought to rely upon an unsigned version of the memorandum and articles of association upon which the incorporation of what is now PSA proceeded. That, so the contention continued, suggested that he might be reluctant in the matter then before him to make findings adverse to the Bank of Queensland about equivalently serious fraud allegations.

84    It is, with respect, worth replicating some of his Honour’s observations (at [53]-[56]):

53    Before dealing with this curious submission, it is necessary to say something about Mr and Mrs Frigger's repeated contention that the signed version of the Memorandum that was adduced in evidence in the Supreme Court Proceedings by the first and second defendants was a forgery.

54    Contrary to Mr and Mrs Frigger's assertions, there is no evidence before me that the Memorandum was in fact a forgery.

55    Although Mr and Mrs Frigger submitted that the question of whether the signed version of the Memorandum was a forgery was conclusively determined by Feutrill J in Frigger (No 3), they were wrong. In that case, Mr and Mrs Frigger sought to have PSA removed from the register under s 1322(4)(b) of the Corporations Act. During the trial, Feutrill J made orders pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) to determine the answer to three separate questions concerned with the registration of PSA. In answering those questions, Feutrill J proceeded on the basis of a set of agreed facts, as well as on the basis of an agreed set of assumed facts and matters, one of which was in the following terms:

The document entitled ‘Memorandum & Articles of Association of Liberty Oil (Australia) Pty Ltd Australian Company Number 082 879 641 A Company Limited By Shares Incorporated on 5 June 1998’, a copy of which is annexed hereto and is Exhibit A.1, was not prepared by Mr David John Boyle and was not signed by Mr Boyle or Mrs Mariangela Boyle, but by a person or persons unknown who simulated the signatures of each of Mr Boyle and Mrs Boyle.

56    Contrary to Mr and Mrs Frigger’s contentions in support of their application for recusal, this assumed fact does not amount to a finding by Feutrill J that the signed version of the Memorandum was a forgery, much less a finding that in some way establishes that it was a forgery for all purposes.

85    Thereafter, his Honour was moved to consider what was apparently held up as “evidence” establishing that the memorandum and articles of association was forged. Properly, if I might say so with respect, he rejected the submission that the document’s want of provenance was established; but, in any event (and bringing things back to their point of origin), made (at [60]) the obvious point that:

…even on an assumption favourable to Mr and Mrs Frigger that the signed version of the Memorandum is a forgery, the submission that there is a logical connection between my reliance on either the unsigned or signed Memorandum in submissions made in the Supreme Court Proceedings and whether I might be led to decide this case other than on its legal and factual merits is entirely without merit. The suggestion that my purported failure to raise questions about the veracity of the Memorandum in the context of the Supreme Court Proceedings might lead a fair-minded lay observer to entertain a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the issues in this case on this basis is illogical.

86    His Honour then addressed the even less sensible suggestion that he should recuse himself on the basis of actual bias. His Honour explained (at [62]) the submission:

…Mrs Frigger submitted that it would be in my interests for the money in the BoQ accounts to find its way into the hands of PSA and [Mrs] Banning so that they could pay the lawyers I acted for in the Supreme Court Proceedings and the Court of Appeal Proceedings. Mrs Frigger suggested that I would stand to personally benefit because the lawyers I had previously acted for would then be in a position to pay any of my fees that were still outstanding.

87    It is not apparent that Mr or Mrs Frigger had any reason to think that any fees were outstanding. Later in his reasons, his Honour graciously confirmed that there were none. Mrs Frigger walked back somewhat from the contention, apparently accepting that it was a “very long bow to draw” to suggest that there was a proper basis upon which to suggest actual bias: Frigger (Trustee) v Bank of Queensland Ltd [2025] FCA 447, [63] (Vandongen J).

88    It was more than that. On the face of the court’s reasons, the allegations of bias were hopeless and should never have been put. The application appears to have been little more than an opportunity for Mr and Mrs Frigger to regurgitate tired arguments about the fraud by which they are convinced—to the point of obsession—that PSA’s registration was attended. It says something of them that Mr and Mrs Frigger felt licensed to indulge that obsession as though unencumbered by irksome inconveniences like relevance.

89    Only a few weeks later, Vandongen J had occasion to dismiss another interlocutory application made in the same matter (WAD 225 of 2021). Some context assists. That matter was, as the matter number might suggest, commenced several years before his Honour came to consider the interlocutory application that I will shortly describe. It was (and is) concerned primarily (and perhaps solely) with whether or not certain assets were assets of Mr and Mrs Frigger’s superannuation fund. Its progression was retarded somewhat by orders that it await determinations in other matters (including an appeal in this court and a related proceeding in the Supreme Court of Western Australia). Those other matters ran their course and, thereafter, an application for summary judgment by the first respondent in WAD 225 of 2021 (the Bank of Queensland) fell for the court’s consideration.

90    Mr and Mrs Frigger then made applications of their own. The first was for his Honour to recuse himself (I have described that application already). The second was for the proceeding to be adjourned (or, perhaps, stayed) pending the determination of a different appeal (matter WAD 390 of 2024), specifically an appeal against a refusal of a different judge to annul Mr and Mrs Frigger’s bankruptcy and/or set aside the sequestration orders that yet another judge had made against them as long ago as 2018.

91    That (adjournment or stay) application was dismissed: Frigger (Trustee) v Bank of Queensland Ltd (No 2) [2025] FCA 526 (Vandongen J). His Honour reasoned—to the extent that it wasn’t already (and utterly) self-evident—that neither the potential annulment of Mr and Mrs Frigger’s bankruptcy nor the potential setting aside of the sequestration order made nearly seven years earlier could have any bearing on whether or not the assets that were the subject of the substantive matter were assets of their superannuation fund. His Honour’s reasons were crisply stated (at [21]):

…[T]here is no merit in Mr and Mrs Frigger’s contention that the interlocutory application should be adjourned pending the hearing and determination of WAD 390. If the Full Court were to allow the appeal in WAD 390, that could have no effect on the Court’s determination of the issues raised, the claims made or the relief sought, in these proceedings.

92    Mr and Mrs Frigger’s applications for recusal and to stay or adjourn WAD 225 of 2021 were baseless wastes of time that should not have been prosecuted. They comfortably qualify as vexatious proceedings for the purposes of s 37AO of the FCA Act.

93    The full court determined Mr and Mrs Frigger’s appeal (in WAD 390 of 2024) on 19 May 2026: Frigger v Trenfield [2026] FCAFC 67 (Snaden, Neskovcin and Owens JJ). The nature of that appeal has already been identified. It concerned an attempt by Mr and Mrs Frigger to have their bankruptcies annulled and/or for the sequestration orders that were made against them in July 2018 to be set aside.

94    It might be recalled that those processes came about at the instigation of Mr Kitay as CAT’s liquidator. He secured an order for indemnity costs against Mr and Mrs Frigger consequent upon their ill-founded (and, frankly, baffling) attempt to resist orders that they forfeit possession of the confidential affidavit referred to earlier, a copy of which had, by some administrative mishap, made its way into their hands. Those costs were assessed by a registrar of the Supreme Court of Western Australia and, when Mr and Mrs Frigger refused Mr Kitay’s demand for their payment, he responded by initiating the bankruptcy processes that Mr and Mrs Frigger have spent the last ten years fighting without much success.

95    The appeal was from three judgments of Logan J: Frigger v Trenfield (No 8) [2024] FCA 1438, Frigger v Trenfield (No 9) [2024] FCA 1486 and Frigger v Trenfield (No 10) [2025] FCA 164. By the first of those, his Honour dismissed Mr and Mrs Frigger’s substantive application. By the second, he made an order for costs; which, by the third, was amended so as to impose costs against Mr and Mrs Frigger on an indemnity basis.

96    Similarly as with other aspects of their multi-pronged war, Mr and Mrs Frigger sought to impugn upon suggestions of fraud the costs assessment upon which Mr Kitay’s bankruptcy notice and creditor’s petition had been based. It was said that, because it had not been signed personally by the registrar—it instead bore the court’s seal—the costs assessment had not been proven to be what it purported to be. Additionally, it was said that the assessment was invalid because it referred only to the singular, “applicant”; whereas the bankruptcy notice with which it was later served named both Mr Kitay and CAT as creditors. Other contentions were pressed but this summary hints more than enough at their flavour.

97    Both the primary judge and the full court on appeal quickly dispensed with those self-evidently hollow contentions. Before his Honour, it transpired that two versions of the costs assessment were received into evidence. One bore the registrar’s signature; the other bore the court’s seal. Both were in the same sum and both self-described as assessments of the (singular) “applicant’s bill of costs”. Clearly enough, the costs to which it referred were costs that Mr Kitay, as liquidator, had incurred in securing orders requiring that the confidential affidavit be surrendered. It is unclear why the bankruptcy notice and creditor’s petition named both he and CAT as creditors but, as was consistently held—by Colvin J in the sequestration context, by Logan J in the annulment and setting aside context, and by the full court on appeal from Logan’s J judgment—it was sufficient that Mr Kitay could demonstrate, as plainly he could, that Mr and Mrs Frigger were indebted to him.

98    One gets the picture: Mr and Mrs Frigger contended that they ought to be excused from having to pay Mr Kitay’s indemnity costs—awarded on account of their unsuccessful (and still baffling) resistance to an application that could only ever have been decided against them—because Mr Kitay was not the only party listed as a creditor on the bankruptcy notice and subsequent petition. That irregularity, they claimed (in a now-familiar refrain), effected a fraud upon the court.

99    They went still further: a costs assessment, they said, could not properly stand as a “final judgment or final order” for bankruptcy purposes. They had already run and lost that contention in opposition to the making of the sequestration order: Kitay, in the matter of Frigger (No 2) [2018] FCA 1032, [2] (Colvin J). They ran it again, nonetheless; and, perhaps unsurprisingly, the same result obtained before Logan J.

100    As to whether or not the assessment was invalid for want of proper authentication by its author, both Logan J and the full court were unmoved. It is to be recalled that it bore, at the least, the name of the registrar and the seal of the court. There was another version that bore the registrar’s signature. It says something of the depths that Mr and Mrs Frigger were prepared to plumb that they maintained their contention—initially and no less on appeal—that its provenance remained relevantly questionable.

101    The full court accepted that the costs assessment was apt to stand as a “final judgment or final order”. No other conclusion could seriously have been entertained. Mr and Mrs Frigger’s appeal was hopeless, as was the contention foundational to it.

102    But the appeal went further. By Frigger v Trenfield (No 10) [2025] FCA 164, Logan J accepted that Mr and Mrs Frigger’s attempt to have the bankruptcy annulled and/or the sequestration order set aside was sufficiently devoid of merit that it should be made the subject of an order for indemnity costs. Indeed, his Honour had, in dismissing Mr and Mrs Frigger’s application, described it as “a vexatious proceeding”, making the following observations that are of relevance to this present application (see Frigger v Trenfield (No 8) [2024] FCA 1438, [34], [42], [44], [83] (Logan J)):

34 … The present application is not a vehicle by which Mr and Mrs Frigger may overturn conclusions in law already finally determined against them. I have adverted to their allegation about the costs assessment certificate solely because it was yet another plank in their allegation of fraud. That the point has already been finally decided against them itself means that this plank is misconceived.

…

42    It bears repeating that an allegation of fraud is not one which ought lightly to be made. For those in practice at the Bar, such an allegation must not be made unless there are reasonable grounds for a belief that, on the available material, the allegation can be supported: see r 64, Conduct Rules of the Australian Bar Association. Here, there are no such grounds on the evidence. It is by no means unique to Mr and Mrs Frigger to see an applicant litigant in person allege that actions of a respondent, which have affected them adversely, were tainted by fraud. However, fraud is not to be found in the animus of litigants in person or their conspiracy theories, no matter how much those individuals are convinced of its existence. There is just no basis for a conclusion that Mr Kitay (or anyone acting on his behalf) perpetrated a fraud on the Court and as against Mr and Mrs Frigger by presenting, and prosecuting to judgment, the creditor’s petition.

…

44    The opposition by Mr and Mrs Frigger to that petition also failed, for reasons set out by Colvin J in the sequestration judgment. The orders of dismissal to the challenges made by Mr and Mrs Frigger to both the bankruptcy notice and the creditor’s petition are final judgments, never set aside by a subsequent appeal. Subject to proof of a fraud perpetuated on the Court in the seeking and obtaining of the sequestration order, those orders of dismissal finally determined issues which Mr and Mrs Frigger raised or could have raised in their challenges. Given that the allegation of fraud which they make in the present proceeding is baseless, it is singularly important in the administration of justice that the integrity of what is otherwise the finality of the orders of dismissal be respected and upheld.

…

83    Looking at the long history of litigation which has followed a refusal by Mr and Mrs Frigger to return a confidential affidavit which had come into their hands, it is apparent that Mr and Mrs Frigger have become obsessed with the righteousness of their claim that nothing is owed by them in respect of the costs sequel to the interlocutory application brought to secure the return of that document. The present is but the most recent endeavour to secure vindication of their claim. In reality, it is nothing other than a contrived endeavour, under the guise of a baseless allegation of fraud, to reagitate issues long ago finally determined against them. It is, in truth, a vexatious proceeding.

103    The resultant order for indemnity costs was the subject of challenge on appeal, which the full court resolved as follows (see Frigger v Trenfield [2026] FCAFC 67, [62]-[63] (Snaden, Neskovcin and Owens JJ)):

62    By those orders, his Honour purported to vary, under rr 39.05(h) and/or 40.02 of the Rules, the costs orders that he had made in Frigger (No 9). That course was preferred in a context where, so his Honour accepted, certain oversights or misunderstandings (by or as between the court and the Liquidator’s counsel) had affected the earlier orders. The appellants maintained that nothing had been overlooked or misunderstood; or, at least, not in such a way as to vest in the court authority to amend its own orders once entered. They made an ambitious (and, ultimately, unsuccessful) application of their own for the return of the sum that they had paid as security (apparently on the basis that the costs orders that his Honour had made were made payable by their estates, rather than by them personally).

63    The appellants contended that the primary judge had no power to amend the costs orders that he made on 13 December 2024. That contention cannot be accepted. The primary judge’s findings as to the facts that enlivened r 39.05(h) are, with respect, cogent and well-supported by the objective circumstances that presented before him; and, to the extent that they involved findings that the court had laboured under relevant misunderstandings or oversights, were matters that his Honour was uniquely positioned to assess. To the extent that it might be in doubt, we otherwise respectfully agree with the conclusions that his Honour reached in respect of his power to make the orders that he made: Frigger (No 10), [10], [17]–[25]. The appellants’ submissions were misconceived and this ground should similarly be dismissed.

104    The applications that were the subjects of Frigger v Trenfield (No 8) [2024] FCA 1438 (Logan J) and Frigger v Trenfield (No 10) [2025] FCA 164 (Logan J) were hopeless and should never have been brought. Each comfortably qualifies as a vexatious proceeding for the purposes of s 37AO of the FCA Act.

105    I pivot, at this point, to address one of the proceedings that was the subject of analysis in the appeal from Logan’s J judgments (Frigger v Trenfield [2026] FCAFC 67 (Snaden, Neskovcin and Owens JJ)): namely, Frigger v Trenfield (Cost Referee Report Adoption) [2026] FCA 218 (Colvin J). That judgment concerned matter WAD 128 of 2023, by which Mr and Mrs Frigger pressed claims for relief against Mrs Trenfield. Those claims ultimately didn’t go anywhere: in 2025 (after failed attempts to amend their pleadings and on the eve of a scheduled trial), Mr and Mrs Frigger were given leave to discontinue their proceeding on terms that included that they pay Mrs Trenfield’s costs: Frigger v Trenfield (Application to Discontinue) [2025] FCA 640 (Colvin J). A registrar was appointed as a referee and charged with making a lump sum assessment of those costs, the acceptance of which then came before his Honour. Mr and Mrs Frigger opposed the adoption of that assessment, including on bases that Mrs Trenfield had not established that she had incurred the costs that had been assessed or otherwise was not entitled to any for want of an obligation to pay her lawyers.

106    Insofar as Mr and Mrs Frigger sought to invoke the indemnity principle in an effort to avoid paying costs, that question had already been determined against them: Frigger v Trenfield (Application to Discontinue) [2025] FCA 640, [70]-[73] (Colvin J). En route to adopting the registrar’s assessment, his Honour again said so: Frigger v Trenfield (Cost Referee Report Adoption) [2026] FCA 218, [8]-[9], [32] (Colvin J). As to Mr and Mrs Frigger’s attempts to challenge aspects of the costs that Mrs Trenfield had incurred, his Honour observed (at [18]):

Despite failing to engage with the lump sum assessment process, [Mr and Mrs] Frigger now seek to raise submissions as to matters addressed in the referee report as reasons why the report should not be adopted. I consider that course to be an abuse of process. As the authorities make clear, parties are not to save up points for the adoption hearing. Having been afforded the opportunity to put on evidence and submissions as to the quantum of the lump sum, and having chosen not to take up that opportunity, [Mr and Mrs] Frigger should not be afforded the opportunity to advance matters for the first time at the adoption hearing.

107    Opposition to the adoption of the registrar’s costs assessment cannot stand as an example of a vexatious proceeding that Mr and Mrs Frigger have instituted. It can, though—and does—serve as a paradigm example of the lengths to which they are prepared to extend themselves in order to be relieved of the orthodox consequences of their own failure. By pressing the same (or substantially the same) hopeless indemnity contention as they have on other occasions (to similarly unsuccessful ends) and by opposing the adoption of the registrar’s assessment by advancing contentions that ought first to have been advanced before the registrar, Mr and Mrs Frigger must be understood to have conducted themselves in a manner apt to engage s 37AO of the FCA Act. I have no hesitation in so concluding.

108    I move, then, somewhat backwards in time to 15 November 2024, to the court’s judgment in Frigger v Professional Services of Australia Pty Ltd (No 6) [2024] FCA 1320 (Feutrill J). That judgment concerned matter WAD 126 of 2022 and the validity of PSA’s corporate registration; an issue that, as has already been explored, his Honour resolved by determining a series of separate questions. At (or toward) the commencement of that suit, an application was made against Mr and Mrs Frigger for orders requiring that they give security for costs. Over their objection, it succeeded; and, thereafter, Mr and Mrs Frigger paid into court security in the sum of $35,000.00.

109    After their substantive application was determined (by the answering of the separate questions that his Honour resolved to pose and determine), the respondents applied for judgment. The answers that his Honour gave to the separate questions that had been proposed on the court’s own motion effectively disposed of the application, such that the respondents were prima facie entitled to the judgment that they sought.

110    Mr and Mrs Frigger opposed that inevitability. That opposition failed; but perhaps of more significance, for present purposes, was what transpired as to costs. Despite having lost their substantive application, Mr and Mrs Frigger pressed an application for the court to reconsider its earlier security for costs ruling. That was sought on the basis that PSA could not establish that it had any liability to its lawyers for its costs, which in turn rested upon the notion that the law firm representing it had yet to render invoices for its services (a reality of which Mr and Mrs Frigger had become aware in the course of other proceedings).

111    That ambitious contention collided headlong with authority. His Honour observed (at [30]):

The onus is on the plaintiffs to establish that the defendants have no liability for legal costs. It is not necessary that the legal practitioners have rendered invoices to the defendants or that the defendants have already paid the legal practitioners for legal costs in order for the indemnity principle to be satisfied: eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2015] NSWCA 284; 90 NSWLR 451 at [24]-[25] (Basten JA, Beazley P agreeing); Wentworth v Rogers [2006] NSWCA 145; 66 NSWLR 474 at [126] (Basten JA). Moreover, the indemnity principle permits recovery of legal costs where there is a legal liability to pay those costs even though the likelihood of being called upon to do so is remote: Angor Pty Ltd v Ilich Motor Co Pty Ltd (1992) 37 FCR 65 at 71-72 (French J), citing Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495 at 501 (Bankes LJ), 504 (Atkins LJ), 507-508 (Younger LJ). In general, legal liability to pay legal costs arises from the terms (express or implied) of the retainer between solicitor and client.

112    Unsurprisingly, judgment was entered with costs. Mr and Mrs Frigger’s application in reliance upon the indemnity principle was as hopeless in law as it was opportunistic. It should not have been pressed and it comfortably qualifies as a vexatious proceeding for the purposes of s 37AO of the FCA Act.

113    The court’s observations in Frigger v Banning (Application for Security for Costs on Review of Taxation) [2024] FCA 1207 (Colvin J) further and amply illustrate Mr and Mrs Frigger’s tendency to advance specious contentions in an effort to avoid the natural consequences of defeat. In that matter, Mr and Mrs Frigger sought to have a judge review an assessment of costs that they had been ordered to pay. The respondents sought—successfully (and not for the first time)—an order requiring that Mr and Mrs Frigger pay security for costs; on this occasion, for their costs relating to the review. The opening paragraphs of his Honour’s reasons ([1]-[2]) read as follows:

1    [Mr and Mrs] Frigger were ordered to pay costs of the respondents in these proceedings. An amended bill of costs was delivered for taxation. The taxed costs were estimated by a registrar at $106,987.09. [Mr and Mrs] Frigger objected to the estimate. The taxation was conducted on 1 and 2 July 2024. At taxation, the total costs were taxed at $160,098.41.

2    On 3 July 2024, [Mr and Mrs] Frigger applied to review the taxation. On review they challenge all 598 items in the amended bill of costs. They also claim that the respondents were not permitted to attend the taxation. They seek the removal of the respondents’ response to the grounds of objection from the Court file. They say that retainer agreements of the lawyers for the respondents were not in existence or were void. They also allege that counsel in the proceedings entered into impermissible direct retainers and took steps to conceal that fact. They also make allegations about a charge obtained from one of the respondents to secure payment of legal fees. They say that the charge is a sham for the purpose of defeating creditors of that respondent. They say that the respondents have admitted allegations in the proceedings in the Supreme Court of Western Australia that entitle them to recover any amount assessed under the costs orders in these proceedings as damages in those proceedings. They seek an order that the certificate of taxation be set aside and an amount of $62,000 that has been paid into Court by way of security for the costs of the proceedings to be paid out to them with accrued interest. Manifestly, they are seeking to raise an army of arguments in an effort to resist paying any costs.

114    Later (at [21]), his Honour observed:

In opposition to the application, [Mr and Mrs] Frigger have advanced various points that they will seek to rely upon at the hearing of their review application. In addition, as has been mentioned, they have filed an affidavit and made submissions that rely upon events that have occurred in proceedings in the Supreme Court of Western Australia brought by them against the respondents and others (including counsel in these proceedings) being CIV 1986 of 2023. They suggest that by reason that some respondents have filed notices to abide by any court orders and another has not filed an appearance that those parties have admitted the allegations in those proceedings and that [Mr and Mrs] Frigger are entitled to the costs they have been ordered to pay in these proceedings as damages in the Supreme Court proceedings. These submissions are misconceived. They also involve a form of circularity whereby cost orders ordered in one set of proceedings are sought to be recovered as damages in subsequent proceedings. It is a form of allegation that has been adopted by [Mr and Mrs] Frigger in other proceedings.

115    Unsurprisingly, his Honour granted the application for security for costs. Mr and Mrs Frigger then lodged an application for leave to appeal from that judgment, which was itself the subject of yet another successful application for security for costs: Frigger v Banning [2025] FCA 535 (McDonald J). The application for leave to appeal was then stayed pending payment of that security, which ultimately was not made. Instead, Mr and Mrs Frigger later sought to withdraw their application for leave to appeal on the basis that there be no order as to costs. That ambitious proposal failed for reasons that find expression in Frigger v Banning (No 2) [2025] FCA 955 (McDonald J). I needn’t rehearse them. It suffices to conclude, as I readily do, that the application for leave to appeal (from, no less, a discretionary judgment made on the strength of obviously orthodox reflections upon relevant considerations) was hopeless and ought never to have been made. It comfortably qualifies as a vexatious proceeding for the purposes of s 37AO of the FCA Act.

116    Roughly at the same point that they withdrew that ill-advised application for leave to appeal, Mr and Mrs Frigger made yet another interlocutory application in the substantive matter (WAD 607 of 2015), still at the review of taxation stage; specifically (and relevantly) for the following relief, namely:

(1)    an order setting aside the order requiring the payment of security for costs;

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

(3)    an order requiring that one of the respondents attend court to be examined on oath as to various matters concerning the retainer arrangements that existed as between the respondents and their lawyers; and

(4)    an order for discovery.

117    That application was the subject of Frigger v Banning (Application to set aside Security for Costs Order) [2025] FCA 1056 (Colvin J). His Honour recorded (at [11]) Mr and Mrs Frigger’s contention that the earlier (and successful) application for security for costs proceeded upon a material non-disclosure that was sufficient to render it an abuse of process. It was put that the respondents’ retainer arrangements with their lawyers were invalid, such that there were and could be no costs in respect of which security might properly have been ordered. One might recognise that contention from other parts of what is now this lengthy analysis of Mr and Mrs Frigger’s litigation history.

118    In a very (and, if I might say with respect, appropriately) short written judgment, his Honour rejected Mr and Mrs Frigger’s contentions and dismissed their application. It repays to record his conclusion (at [12]-[13]):

12    The main difficulty with all these contentions is that they invite the Court to embark upon a consideration of the claims made by [Mr and Mrs] 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 [Mr and Mrs] 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.

119    That application was self-evidently hopeless and ought never to have been embarked upon. It comfortably qualifies as a vexatious proceeding for the purposes of s 37AO of the FCA Act. Moreover and more broadly, it stands as a fair example of the manner in which Mr and Mrs Frigger tend to approach their litigation: an approach typified by enduring refusals to accept even the most obvious consequences of the matters that are decided against them.

120    Other examples abound. Early on in the annulment and setting aside matter that Logan J ultimately dismissed (WAD 66 of 2021), Mr Kitay made an application for security for costs. By judgment dated 13 July 2021, that application succeeded: Frigger v Trenfield [2021] FCA 792 (Colvin J). In his reasons for judgment, Colvin J explained (at [11]) that, by their substantive application, “…much of what [Mr and Mrs] Frigger seek to do is re-argue points the merits of which have been considered and rejected in earlier proceedings in respect of which there has been no appeal…” Of Mr and Mrs Frigger’s application for orders setting aside their respective sequestration orders, his Honour noted (at [12]-[13]) that:

12    …No identifiable basis upon which such an order might be made was disclosed by the submissions advanced for [Mr and Mrs] Frigger. The present proceedings are not an appeal and no issue of fraud or irregularity was properly articulated. Finality in the decisions of the Courts is a fundamental principle: Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at [15]. Unless conferred by statute (as is the case with all appellate powers), the Court has no inherent power to reopen a substantive exercise of judicial power and set aside an order earlier made: Bailey v Marinoff (1971) 125 CLR 529; and Gamser v Nominal Defendant (1977) 136 CLR 145. As to the limited jurisdiction to set aside an order for irregularity, even if a basis upon which such an application might now be brought could be identified, the passage of time since the making of the sequestration orders would stand in the way of [Mr and Mrs] Frigger being able to proceed in that manner rather than by their annulment application: The Austral Brick Company Pty Ltd v Daskalovski [1998] FCA 782; and Symons v Bateman [1999] FCA 658. The power which the Court once had to rescind a sequestration order on application no longer remains: see s 37(2) of the Bankruptcy Act; and Re Gollan; Ex parte Gollan (1992) 40 FCR 38.

13    As to the matters said to give rise to irregularity there is the additional difficulty that contentions to similar effect were advanced unsuccessfully before Charlesworth J as part of the now abandoned attempts to seek an extension of time in which to appeal against the sequestration orders: Frigger v Kitay (No 2) [2020] FCA 497 at [47]-[69]. Further, as was there determined, to the extent necessary, approval has been given retrospectively for the purposes of s 477(2B) of the Corporations Act.

121    Later, his Honour came to consider one of the substantive points of principle that Mr and Mrs Frigger wished to advance in support of annulment or the setting aside of the sequestration orders: namely, that Mr Kitay had no liability to pay the costs that were the subject of the debt in respect of which they had been made bankrupt. His Honour observed (at [16]):

The claim about there being no liability on the part of Mr Kitay to pay his lawyers forms just one part of the basis for the annulment application which relies on numerous grounds. As has been indicated it is not a new complaint. [Mr and Mrs] Frigger have made complaints to the effect that the indemnity principle was not met in relation to the costs the subject of the judgment that was relied upon to support the bankruptcy notice and creditor’s petition on previous occasions. The merits of the claims have been consistently rejected. In submissions Mrs Frigger sought to claim that there was a new aspect to the way the claim was made. The only additional matter seems to be the claim about proof that legal fees have not been paid and the fact that despite the passage of time the lawyers for Mr Kitay continue to act on the basis that they will only be paid out of monies recovered from [Mr and Mrs] Frigger. Of course, it is not necessary for the indemnity principle to be met that the costs claimed have actually been paid. It is sufficient if there is a liability to meet such costs: Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474 at [126].

122    Later still, his Honour had occasion to consider an earlier application that Mr and Mrs Frigger had made for orders extending the time in which they might appeal from the making of the sequestration orders. That application was, ultimately, abandoned and Mr and Mrs Frigger were ordered to pay costs pertaining to it. It appears that, by the time the matter came before his Honour, neither had complied with those orders. Of those failures, his Honour noted (at [18]):

They manifest a most concerning approach to orders made by this Court in relation to costs. [Mr and Mrs] Frigger evidently consider they can disregard those orders based upon their own views as to whether there was a proper basis for the making of those orders. That evidence, of itself, is a substantial factor in support of the application for security.

123    To recap then: Mr and Mrs Frigger sought to annul or overturn their bankruptcies because (or in part because) the debt upon which bankruptcy processes had been advanced against them—that is to say, the indemnity costs of the proceeding to require that they forfeit the confidential affidavit to which they had wrongly been granted access—was not one that they in fact owed because it pertained to costs that, they said, were wrongly awarded (because Mr Kitay was not obliged to pay them). That, of course—as his Honour noted then and is no less the case now—is and was a recurring submission from which, despite its persistent failure, Mr and Mrs Frigger have stubbornly and unwisely refused to retreat.

124    Obviously, their resistance proved futile. Mr and Mrs Frigger were ordered to pay security for costs in the matter in the sum of $25,000.00.

125    Mr and Mrs Frigger then sought leave to appeal from that (security for costs) ruling. That application was referred for determination by a single judge, who dismissed it with costs: Frigger v Trenfield (No 14) [2023] FCA 307 (Perry J). In support of that application, Mr and Mrs Frigger appear to have relied (as is the usual course) upon a proposed draft notice of appeal, by which they identified the bases upon which they sought to challenge the security for costs order that Colvin J had made against them. One of those grounds focused upon the familiar (and unambiguously resolved) complaint that Mr Kitay had no liability to pay for his lawyers. Leave was refused on the basis (amongst others) that none of the proposed grounds of appeal appeared to have merit. At least insofar as concerned Mr and Mrs Frigger’s recurring reliance upon the indemnity principle (and with respect), her Honour’s kindness and restraint are to be admired.

126    Again, it might be that the application made against Mr and Mrs Frigger for security for costs in that matter is not one that can properly be held against them for present purposes. Even assuming as much in their favour—howsoever generously—their application for leave to appeal from it most certainly can and should be. It was hopeless and ought never to have been made; and it comfortably qualifies as a vexatious proceeding for the purposes of s 37AO of the FCA Act.

127    There are other examples of matters in this court that highlight Mr and Mrs Frigger’s commitment to avoiding orthodox liability for costs related to the matters that they run and lose. The very first of the matters that Mr and Mrs Frigger commenced in this court (matter WAD 607 of 2015) was dismissed with costs in 2020: Frigger v Banning (No 11) [2020] FCA 1257 (Colvin J). Those costs were then the subject of an assessment process, following the commencement of which Mr and Mrs Frigger made an application to have the costs orders permanently stayed. That application was heard and dismissed with costs: Frigger v Banning (No 12) [2022] FCA 347 (Colvin J).

128    In his reasons for judgment, Colvin J rehearsed (at [12]) the submissions that Mr and Mrs Frigger advanced in support of stay, namely that:

(1)    the constitution of PSA is invalid;

(2)    in the course of the proceedings in this Court, for the three years prior to his death, Mr Campbell-Smith [(the former executor of Mr Banning’s estate)] was mentally incapable and therefore could not incur any liability for legal costs; and

(3)    during the course of the proceedings in this court, Banning Holdings Pty Ltd had insufficient directors to form a quorum and incur liability for legal costs.

129    His Honour noted that, taken together, Mr and Mrs Frigger’s submission was that, “…there was no authority for any of the respondents to incur legal costs [and that] some form of fraud is being perpetrated by PSA and [Mrs] Banning”. Later (at [15]), his Honour elaborated:

On the basis of the above evidence, [Mr and Mrs] Frigger now advance a claim that the registration of PSA is a nullity and PSA never came into existence. On that basis they claim that there could be no liability to pay costs to PSA. They allege that PSA is a ‘non-existent person’ who cannot bring court proceedings. They also advance the following written submission:

Sandra Banning, who together with her late husband Martin Banning, forged signatures on a constitution for PSA, which had the sole purpose of escaping legal liability in numerous transactions entered in PSA’s name. Her conduct in this proceeding, defending PSA, was fraudulent and a deception for the entirety of the proceeding. Such proceedings commenced by a non-existent person are a nullity.

130    In rejecting the stay application, his Honour concluded that the costs order that was its focus had been made to the credit of multiple parties, and that the suggestion that it could not be enforced by at least one of them had, “...not been articulated in a manner that would provide sufficiently arguable basis to support the relief sought”: Frigger v Banning (No 12) [2022] FCA 347, [36] (Colvin J). He went further (at [43]-[44]):

The proceedings in this court that gave rise to the cost orders were pursued for many years by [Mr and Mrs] Frigger. The subject matter of those proceedings was itself cost orders that they had been ordered to pay by the Supreme Court, but were refusing to pay. The lack of demonstrated merit in the claim and the exposure to a risk of financial loss through delay in the taxation mean that the real risk is of injustice to the respondents if the relief sought was granted…

On the other hand, as matters stand it has not been demonstrated that there is an arguable basis for the claim of abuse of process insofar as it concerns PSA and [Mrs] Banning. As was accepted by [Mr and Mrs] Frigger, unless there is an arguable basis as to those claims there is no basis to dispute the claim to costs as each respondent is entitled to the benefit of the costs orders. In any event, it is open to [Mr and Mrs] Frigger to pursue their claim of alleged abuse of process whilst the taxation proceeds. There is no imminent prospect of any liability that they will have to meet (or release of the security for costs). [Mr and Mrs] Frigger are experienced litigants having been involved in numerous and lengthy court proceedings in this and other courts for many years. Even had I concluded that there was some merit in their claim of abuse of process, I do not accept that the burden of participating in the taxation is sufficient, in all the circumstances, to justify the relief sought.

131    That (stay) application was yet another in the long list of interlocutory applications that was pressed without reasonable cause. It should not have been. It comfortably qualifies as a vexatious proceeding for the purposes of s 37AO of the FCA Act.

132    That application to stay judgment in their own proceeding was not the only unusual one that Mr and Mrs Frigger have preferred over the years. Matter WAD 229 of 2020 concerned an application for judicial review that Mr and Mrs Frigger pressed as against a registrar of the court. It concerned a decision by the registrar to refuse to accept for filing an application that Mr and Mrs Frigger had sought to commence against PSA, Mrs Banning and three lawyers (Mr David Lenhoff, Mr Timothy Stephenson and Mr Cameron Eastwood). That decision was set aside on review, on a basis that the court itself (as opposed to Mr or Mrs Frigger) had identified. The matter was, it appears, left to Mr and Mrs Frigger, “…to lodge the documents again, if they wish, and for the Registrar to consider afresh whether to accept them for filing”: Frigger v Trott [2021] FCA 18, [42] (Jackson J).

133    The Frigger judgment next following was Frigger v Trott (No 2) [2021] FCA 192 (Jackson J). It concerned an application that Mrs Frigger (alone) lodged, together with a statement of charge, for orders to punish the same registrar for contempt of court. That frankly extraordinary application of course failed. Jackson J determined that, Mr and Mrs Frigger having made no attempt to re-file any documents following his original (judicial review) judgment, there was nothing arising from his previous order that required anybody to do anything. As to that, his Honour reasoned (at [7]) that:

…[his order] was effective without requiring any person to take any act. Nobody has been ordered to do (or not to do) anything, breach of which can sound in the potentially serious consequences of a finding of contempt of court. For that reason, I consider the proposed application to be frivolous and vexatious.

134    Respectfully, his Honour’s restraint is to be admired. Quite apart from reflecting uncommon malevolence, Mrs Frigger’s contempt application was an abuse of process that ought never to have been attempted. It comfortably qualifies as a vexatious proceeding for the purposes of s 37AO of the FCA Act. Perhaps to her credit, Mrs Frigger conceded as much during her submissions at the hearing of this matter.

135    Registrar Trott is not the only registrar of the court to find himself in Mr and Mrs Frigger’s proverbial crosshairs. After the ill-fated contempt excursion referred to above, Mr and Mrs Frigger sought to file amended versions of the documents whose acceptance for filing had been refused. That attempt also failed on the basis that what had been proposed for filing was frivolous or vexatious. Predictably enough, Mrs Frigger made an application for judicial review of that refusal. It failed: Frigger v Parkyn [2021] FCA 224 (Jackson J).

136    Some context is warranted. The documents in question comprised of an originating process and supporting affidavit. By the former, Mr and Mrs Frigger proposed to bring proceedings under companies’ legislation against the same parties who had been the target of the earlier proposed proceedings (above, [131]). The suit alleged that PSA and Mrs Banning had contravened the Corporations Act 2001 (Cth); and that the other would-be respondents (their lawyers) had been relevantly involved in those contraventions. The contravening conduct appears to have fixed upon PSA’s entry into administration in 2009. Mr and Mrs Frigger wished to move the court for relief in various forms, including in the form of injunctive relief to prevent PSA from enforcing costs orders that had been made in its favour against them in specified proceedings in the Supreme Court of Western Australia; and also damages for “[l]oss of credit and reputation”.

137    Amongst other things, Jackson J accepted (at [34]) that Mr and Mrs Frigger’s attempts to “…prevent the enforcement of various costs orders made in the Supreme Court, or for the repayment of money paid out pursuant to orders, and for Mr Lenhoff to pay the costs of proceedings in which Mr and Mrs Frigger were unsuccessful, [were] collateral attacks on orders made by that court and an abuse of process”. His Honour characterised them as “…attempts to re-litigate in this court matters which have already been decided in the Supreme Court”. His Honour continued (at [36]):

With respect, the written submissions filed by Mrs Frigger in this application for judicial review do not advance matters. If anything, they make it even clearer that the main purpose of the proposed proceeding is to re-litigate issues that have already been finally decided against [Mr and Mrs Frigger] in courts of law. For example, the submissions claim that the statutory demand which led to the winding up order against CAT is void. But even if it was, the order was made, and on the face of things it would be deleterious to the administration of justice to permit the basis of the order to be questioned in a different court, over 10 years later.

138    Ultimately, his Honour resolved to affirm the registrar’s rejection of the material for filing, holding (at [40]):

…to the extent that abuse of process provides a reason for rejecting the documents under r 2.26 which is separate to the reason that they are frivolous or vexatious, the evident character of the proposed proceedings as a collateral attack on historical decisions of the Supreme Court, the Court of Appeal, and decisions of this court, provides independent support for the respondent’s rejection of the lodgement.

139    It might be said that the only vexatious proceeding apparent from that expedition was the one that Mr and Mrs Frigger were prevented from instituting. For at least two reasons, I would not accept that proposition. First, the court is entitled to have regard to proceedings whose institution is attempted: FCA Act, s 37AO(6)(a). Second, the application for judicial review of the registrar’s refusal to accept that material for filing was advanced no less in the spirit of relitigating than the substantive matter that was its subject. That application comfortably qualifies as a vexatious proceeding for the purposes of s 37AO of the FCA Act.

140    Mr and Mrs Frigger’s ire has not been limited to registrars. In her written submissions, Mrs Trenfield suggested that Mr and Mrs Frigger have waged no fewer than five failed attempts to have judicial officers recuse themselves from matters for reasons of or pertaining to bias. I have already mentioned one of them explicitly (above, [81], [86] Frigger (Trustee) v Bank of Queensland Ltd [2025] FCA 447 (Vandongen J)). Bias also arose as a feature of Mr and Mrs Frigger’s failed attempt to secure leave to appeal from the security for costs order that Colvin J made against them in Frigger v Trenfield [2021] FCA 792 (above, [119]). Perry J considered that the proposed ground of appeal that related to bias was without merit. Although lengthy, it repays to consider what her Honour reasoned in that regard (see Frigger v Trenfield (No 14) [2023] FCA 307, [39]-[46]):

39    The final proposed ground of appeal is ground 4… Proposed ground 4 reads that:

The learned judge erred at law by refusing to recuse himself.

Particulars

(a)    he commented that the failure of a client to pay legal costs for more than 8 years is not an indication the client has no liability to pay;

(b)    Pre-judging the results of the [applicants’] originating application.

40    The applicants’ submission in support of the contention is as follows (at T9.12-28):

[The primary judge] found that it doesn’t matter if a client never paid the costs, there’s still a liability to pay, and we say his – that comment was – was sufficient to demonstrate an apprehension of bias or actual bias because the – a client who doesn’t pay costs for eight years where a lawyer is saying that the client doesn’t have to pay is sufficient for that point to be made out and for [the primary judge] to reject that point, we say, was sufficient to demonstrate bias because he has prejudged an issue or ground of the – for the annulment which we were relying on. And in the – of course, your Honour, you will have read the transcript and there was a very short exchange between [the primary judge] and myself where I simply said after he made that comment about, “our clients are able to take as long as they like to pay,” I – I asked him to recuse himself and he did not ask me to give any more grounds for – for the request for recusal. He simply rejected it and said, “Well, I’m not going to recuse myself.” That, in itself, we say it demonstrates actual bias. And then we say the – the judgment itself also shows that Colvin J was biased because he has prejudged the – the resolution of the annulment application and the application to set aside the sequestration order, and – and that – that means that – that he could never bring an open and fair mind to the resolution of whether security for costs should or should not have been ordered.

41    A copy of the transcript of argument before the primary judge is found at annexure DJ-2 to the affidavit of David William John sworn on 4 February 2022. The relevant passages are as follows (at T6.37-T7.20 of the hearing before the primary judge):

MS FRIGGER: The second reasons why we say there should not be an order for security for costs is Mr Kitay has no liability to pay costs. He has not paid costs to Herbert Smith Freehills for more than 11 years, and, no matter what anybody says, that is not a commercial arrangement between a person who is not a pro bono client and a firm such as Herbert Smith Freehills.

HIS HONOUR: Well, Mrs Frigger, it used to be the basis upon which all litigation was conducted by all lawyers in commercial litigation practice. That is to say there was no charge unless and until matters had been completed.

MS FRIGGER: That used to be …

HIS HONOUR: … a liability and to liability incurred, but matters were settled up at the end. And it might have taken three, four [or] five years, and then …

MS FRIGGER: Your Honour, I would say …

HIS HONOUR: … charges were…

MS FRIGGER: I would say from your comments that you’re actually running an argument on behalf of Mr Kitay, which is actual bias, and I ask you to recuse yourself at this point in time.

HIS HONOUR: I’m not — well, I will receive the application in relation to actual bias. In my view, the matter which I have raised is an exploration of the merits of the position that was being advanced by way of submission to me. It does not display actual bias, no prejudgment in relation to the outcome of the case or preference of any party’s interests, and therefore I reject the application.

MS FRIGGER: Yes, of course … not surprising, your Honour.

42    The applicants referred to a number of further instances where the primary judge allegedly demonstrated either apprehended or actual bias, including findings that the applicants “are serial litigants in this and other courts” (at [24(11)]) who have “disregarded court orders” (at [24(12)]). However, these examples are not given as particulars in the proposed ground of appeal, despite leave being granted to amend those proposed grounds.

43    To the extent to which the applicants seek to raise an allegation of actual bias in the form of prejudgment, nothing is identified which could establish that the primary judge was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72] (Gleeson CJ and Gummow J; Hayne J agreeing at [176]). In particular, in the passage of the transcript quoted above, the primary judge explained that he was merely exploring the merits of the submissions by Mrs Frigger. Doing so did no more than assist Mrs Frigger to respond to and address aspects of concern to his Honour regarding her submissions and demonstrate therefore an open mind to persuasion. There is no merit whatsoever in the submission to the contrary.

44    The test for determining whether a decision maker is disqualified by reason of the appearance of bias is well-established, namely, “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [31] (Gummow A-CJ, Hayne, Crennan and Bell JJ; see also Charisteas v Charisteas [2021] HCA 29; (2021) ALJR 824 at [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ). As such, the test is an objective one: Wilson at [32]-[33]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [7]-[8] (Gleeson CJ, McHugh, Gummow and Hayne JJ). This test requires consideration of two steps:

(1)    the first step requires identification of what it is said might lead a decision maker to decide a case otherwise than on its legal and factual merits; and

(2)    the second step requires the articulation of the logical connection between that matter and the risk that the decision maker will decide the matter otherwise than on its merits.

(Ebner at [8]; Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [21] (Kiefel, Bell, Keane and Nettle JJ).)

45    In applying the test for apprehended bias, it is also important to emphasise that the fair-minded lay observer “is taken to be aware of the nature of the decision and the context in which it was made, as well as to have knowledge of the circumstances leading to the decision”: Isbester at [23] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

46    None of the matters raised by the applicants, either cumulatively or individually, in support of the proposed ground, have any reasonable prospects of success.

141    I have already identified Mr and Mrs Frigger’s failed attempt to secure leave to appeal as an example of one of their many vexatious proceedings. To the extent that I might have required any, the analysis just completed reinforces me in that conclusion.

142    Bias has also featured in applications that Mrs Frigger has made in connection with criminal proceedings that have played out in the Supreme Court of Western Australia. In appeal proceedings that she commenced in that court in 2024, Mrs Frigger sought to challenge her conviction of a criminal offence. In Frigger v The State of Western Australia [2024] WASCA 159, [2]-[8] (Mazza, Mitchell and Hall JJA), the Supreme Court of Western Australia summarised the relevant history as follows (reference omitted):

2     On 4 June 2024, the appellant was convicted after trial by jury of one count of knowingly making a statement under oath that was false in a material particular. That is an offence contrary to s 169(1) of the Criminal Code (WA).

3     The appellant had previously been convicted of that offence on 9 August 2021. On 26 November 2021, the appellant was sentenced to a term of 1 year 4 months’ immediate imprisonment for the offence. She appealed against her conviction and, on 8 December 2021, was granted bail pending determination of that appeal. On 24 June 2022, the conviction was quashed on appeal and a retrial was ordered.

4     The appellant’s most recent conviction of the offence on 4 June 2024 followed that retrial. After her conviction, the appellant was granted bail to appear in the District Court on 5 June 2024. In an apparent breach of her bail conditions, the appellant departed Australia on a flight to Singapore in the early hours of the morning of 5 June 2024. When she did not appear at the hearing on 5 June 2024, a warrant for her arrest was issued. The appellant was arrested on her return to Perth Airport on 23 July 2024. She was brought before the trial judge who refused to grant the appellant bail and remanded her in custody for sentencing on 29 November 2024. The sentencing date was set to accommodate the request by the appellant (who was represented by counsel at the hearing on 23 July 2024) for the court to obtain psychological and psychiatric reports.

5     On 23 July 2024, the appellant commenced an appeal against her most recent conviction of the offence to this court (CACR/76/2024). The court heard that appeal, at which the appellant was represented by counsel, on 7 November 2024. At the conclusion of the hearing, the court reserved judgment in the appeal against conviction. Judgment delivery in the conviction appeal has been delayed by subsequent applications by the appellant, who is now self-represented in that appeal, to reopen the appeal and amend her appellant’s case. The State’s written responses to those applications are due to be filed on 20 December 2024.

6     In CACR/76/2024, this court has considered and dismissed three applications by the appellant for bail pending determination of the conviction appeal. On 21 August 2024, the court heard and dismissed a bail application for written reasons which have been published: Frigger v The State of Western Australia (previous bail reasons). The court dismissed a further application for bail pending determination of the conviction appeal at the conclusion of the hearing on 7 November 2024, for reasons to be published later. The appellant made a further application for bail pending the determination of the conviction appeal on 2 December 2024. On 3 December 2024, the court made an order dismissing that further bail application on the papers, for reasons to be published later. It is our intention to publish our reasons for dismissing the latter two bail applications when we publish our reasons for determining the conviction appeal.

7     At the sentencing hearing before the trial judge on 29 November 2024, the appellant asked the trial judge to recuse himself from her sentencing on grounds of actual and apprehended bias. The trial judge refused to recuse himself. At the sentencing hearing, a psychological report had been prepared but attempts to obtain a psychiatric report had been frustrated. The appellant sought, and was granted, a further adjournment of the sentencing hearing to provide a further opportunity for a psychiatric report to be obtained. The sentencing hearing was adjourned to 31 January 2025, and the appellant was remanded in custody at that time. The trial judge refused an oral application for bail made by the appellant at the hearing on 29 November 2024.

8     On 3 December 2024, the appellant instituted the current appeal against the trial judge’s refusal to grant her bail for the hearing on 31 January 2025. The appellant filed her appellant’s case with her appeal notice. On 4 December 2024, the court made orders programming the present appeal for an urgent hearing on 12 December 2024.

143    The Supreme Court was not disposed to accept Mrs Frigger’s recusal submissions. Their Honours reasoned (at [71], [75] and [79]) that her ground of appeal was “without merit”, and that (at [77]):

…there is no proper basis for the appellant’s contention that there was a reasonable apprehension that the trial judge may have prejudged the sentence which he intended to impose without hearing from the parties. Nor is there any proper evidentiary foundation for the appellant’s contention that his Honour held an actual bias against her.

144    That comfortably qualifies as an example of a vexatious proceeding that Mrs Frigger has instituted or conducted.

145    I, too, have not been spared from baseless accusations of bias. In Frigger (Recusal Application) [2026] FCA 393 (Snaden J), I addressed the submission advanced by Mr and Mrs Frigger that I entertained an actual bias against them that ought to have disqualified me from proceeding with this inquiry. In that regard, I observed (at [3]-[10]):

3     The actual bias that is alleged is said to inhere in what is described as the selective treatment of the evidence and submissions that were advanced before the full court. Specifically, it is said that, as a member of the full court, I indulged in an exhaustive investigation into Mr and Mrs Frigger’s litigation history whilst “…simultaneously disregarding conduct by the opposing party that constitutes a criminal offence”. Other examples of “asymmetric scrutiny” are also advanced, each turning upon what are said to have been failures by the full court to make findings adverse to the respondents in that matter.

4     There is no need to particularise the conduct that the Friggers attribute to those respondents and other parties, nor the conclusions that are now said to have gone asymmetrically overlooked. The Friggers’ submission proceeds upon a basic misunderstanding of the task with which the full court there was seized. Whether any of the respondents in that matter had engaged in conduct worthy of description as criminal (or otherwise as misconduct of any kind) was not a matter upon which the court was there called upon to determine. As was made clear in the full court’s judgment, the matter at first instance turned solely upon agreed and assumed facts. Doubtless, Mr and Mrs Frigger would very much have liked the court to make other findings consistent with the submissions that they made and the criticisms that they directed towards their opponents; but it didn’t and there was no occasion for the full court to do so. The criticism that is now advanced is simply without basis. Moreover, it distils ultimately to the proposition that bias might inhere merely in the non-acceptance of what was advanced, which is unambiguously wrong.

5     It is also said that, as a member of a different full court in a different appeal brought by Mr and Mrs Frigger against different parties, I am now possessed of personal knowledge as to other misconduct that is said to have been waged against Mr and Mrs Frigger. Although judgment in that matter remains reserved, it is now said that my failure to subject those other parties to the process in which Mr and Mrs Frigger now find themselves engaged (or, perhaps, some other form of “scrutiny”) is similarly reflective of some bias that warrants my recusal. Alternatively, it is said that my extension to those other parties of an invitation to make an application or applications for leave to intervene in this proceeding reflects a similar level of asymmetric scrutiny that also bespeaks bias.

6     That criticism is also unfounded. The nature of any conduct engaged in by the other parties in that as-yet-undecided appeal has not been the subject of any appellate determination (at least not by a court of which I have formed part). It is simply wrong to state that I am possessed of knowledge of relevant misconduct. At most, I am possessed of what Mr and Mrs Frigger allege was misconduct. Plainly, Mr and Mrs Frigger have strong views about the conclusions to which the court, in that matter, ought to be drawn (and ought, in others, to have been drawn). It is the case that they extended, in other matters, invitations to indulge findings akin to those with which they evidently now persist: namely, that some of the parties against which they have litigated over an extended period are guilty of having waged, to use Mrs Frigger’s phrase, a “criminal conspiracy” against them. It is, however, quite wrong to say that I have accepted or rejected what they submitted. The matter hasn’t even been decided yet. And insofar as similar contentions were advanced in the one that has been, the issue was not considered dispositive and no conclusion was expressed.

7     Mr and Mrs Friggers’ [sic] contention necessarily assumes that the matters that they assert are true. I have not had occasion to express any views about that; and certainly none that might fairly lead to a charge of “asymmetric scrutiny”. It is simply not the case that I might reasonably be understood to bear some bias against Mr and Mrs Frigger because, with the other members of the full court, I resolved to initiate the present proceeding without also subjecting other parties to some similar measure of “scrutiny”.

8     As to the notion of asymmetry, it might repay to observe that I have not had occasion to engage (and have not engaged) in what was described as an exhaustive investigation into the Friggers’ litigation history. The scope of that history is easily divined from cursory internet searches. It would not matter were it otherwise; but, if it affords any comfort, I happily confirm that I’ve not read the 80-odd judgments to which the full court summarily referred. Save to confirm, as is also readily ascertainable from equivalent searches, that I am of the understanding that Mr and Mrs Frigger initiated and lost a significant majority of those matters, I do not know whether they were meritless or otherwise open to be described as abuses of process. The full court did no more than to observe that there was enough in that history to warrant that the question be looked into; and that is where the Friggers and I presently find ourselves.

9     I turn next to consider the submission that the observations of the full court were “deliberate, quantified, adversely-characterised findings made in a published judgment, delivered at the conclusion of a substantive appeal – plainly with a view to setting the foundation for the consequences that might follow”. Save that they were surely deliberate observations, none of the other adjectives is warranted. The full court’s observations rose no higher than to suggest that there was reason enough for the court to embark upon the inquiry with which I am now seized. It is not possible reasonably to divine from that that the court as presently constituted might undertake that inquiry with anything other than a mind open to persuasion in the usual ways; and certainly not that it might determine it otherwise than on its legal and factual merits.

10     The contention that, properly construed, the full court’s observations amount to “…a judicial pre-assessment of the very factual matters that the inquiry must now independently evaluate” is unambiguously wrong. But, even if it were otherwise, there is nothing untoward in a court’s forming views about matters before they are heard, nor with the communication of those views if the circumstances are thought to warrant it. Bias does not inhere merely in a perception that a judge is likely to decide a case in a particular way. What must be shown is that he or she is implacably predisposed to a particular outcome such that the matter might not be determined on its merits, or might be determined without proper assessment of the contentions advanced. With the greatest of respect, Mr and Mrs Frigger have not come remotely close to clearing that hurdle. Insofar as it is premised upon the existence of actual bias, the present application is without merit.

146    Mr and Mrs Frigger also contended that I should recuse myself from hearing the present matter on the basis of apprehended bias. I addressed that equally ambitious contention as follows (at [11]-[18]):

11     I turn, then, to the suggestion of apprehended bias. The concerns that have been raised by Mr Frigger in his affidavit and repeated by Mrs Frigger in her submissions (on both her own behalf and that of her husband) do not extend beyond an apprehension that there might be some prospect that I will determine this inquiry in a way that is adverse to them. Of course that is one possible way in which it might be determined. But, to make good on the proposition of apprehended bias, it must be shown that the proverbially reasonable lay observer might be led to conclude that I might be minded to determine the inquiry on something other than its merits.

12     To establish that as a proposition, it is necessary to show two things. First, there must be identified the matter upon which arises (or the matters upon which arise) the relevant apprehension. Second, there must be some articulation of the logical connection between that matter or those matters, on the one hand, and the feared deviation from the course of deciding the matter on its merits (on the other).

13     In that regard, it is convenient that I recount an observation that Mr Frigger made in his affidavit. It was there noted: “His honour intends to conduct an Inquiry and potentially make an order of permanent consequence to my wife and me, on a question that his honour himself identified, based on findings and observations that he himself identified, in a proceeding that he himself decided.” Those observations were reflected in the written and oral submissions that were advanced on the recusal application.

14     It is not the case that the inquiry will be decided “based on findings and observations” that were made by the full court. The purpose of this matter proceeding as a separate inquiry is to enable Mr and Mrs Frigger and, potentially, other parties as interveners (or, as necessary, in other capacities), to lead evidence and make submissions in consequence of which the court might then be invited to make relevant findings. The observations that the full court made extend no further than to contextualise its decision to refer for consideration the question of whether or not vexatious proceedings orders ought to be made. For present purposes, nothing has been decided. True it is that I was part of the court that resolved to initiate the present matter; but that is an entirely different proposition that simply has no bearing on this application.

15     It’s also quite plainly not the case that the full court expressed what Mr Frigger describes as “concluded views on the character and pattern of our litigation history”. The character and pattern of Mr and Mrs Friggers’ [sic] litigation history was not in issue in the appeal that the full court determined. At the risk of repetition, the full court did nothing other than identify a possibility that it was such as might warrant orders of the kind that I am now charged with considering.

16     Again with respect, the fact that, as a member of the full court, I made the observations that were made about Mr and Mrs Friggers’ [sic] extensive history of litigation does not come close to establishing any reasonable apprehension of bias. The only conclusion to which a reasonable lay observer might be drawn on account of the full court’s observations is that, by reason of their extensive litigation history, there is a prospect that vexatious proceedings orders might or ought to be made against Mr and Mrs Frigger. Reasonable or otherwise, an apprehension of defeat—which is the highest point to which the contention rises—is not the same as a reasonable apprehension that a judge might decide a matter otherwise than on its legal and factual merits.

17     Before concluding, I should address a separate contention advanced by Mr Frigger in his affidavit, which is that he and his wife were denied procedural fairness insofar as the court has invited, as it has, applications for leave to intervene in the inquiry that is now to be undertaken. He complains that, by courting or entertaining applications for leave to intervene from the very parties that have waged the “criminal conspiracy” to which it is said that he and Mrs Frigger have been subjected, I should be understood either to have indulged in the “asymmetric scrutiny” that has already been addressed or, otherwise, to have denied he and his wife an indispensable incident of procedural fairness.

18     That contention is also without merit. The court cannot sensibly—and certainly not in a way that is fair to Mr and Mrs Frigger—conduct its inquiry without at least one contradictor. Whoever that might be, it is important that Mr and Mrs Frigger know in advance how it might be put that the court should be persuaded to make vexatious proceedings orders against them. That requires that there be a party who advocates (or parties who advocate) in favour of that course, whose evidence and submissions they can receive and respond to. Who those parties might be or the extent to which they might be permitted to intervene to lead evidence and/or make submissions is a matter that is yet to be determined; and one upon which Mr and Mrs Frigger most certainly will have a reasonable opportunity to make such submissions as they feel are appropriate.

147    Mr and Mrs Frigger’s concerns about apparent and actual bias appear to have featured in the leave-to-appeal proceeding that was the subject of Frigger v Eastwood Law Pty Ltd [2026] FCA 1028 (Derrington J). His Honour described those (and other) concerns as a “serious and unjustified attack on the primary judge’s management of the underlying proceedings”.

148    I should pause to note—as I did at the time—that I did not perceive any personal malice in anything that was advanced. I acknowledged that bias applications were difficult ones to make; and I considered that Mrs Frigger put what she put with appropriate courtesy. None of that, though, amounts to recognition that what she said was anything other than completely devoid of merit.

149    In the normal course of things, it might be that self-represented litigants are afforded a little more latitude than most when it comes to meritless recusal applications; perhaps even those that make grave allegations of actual bias. But Mr and Mrs Frigger cannot seriously be held out as strangers to the law of recusal. I have no hesitation in concluding that the application for my recusal was hopeless and one that comfortably qualifies as a vexatious proceeding for the purposes of s 37AO of the FCA Act.

150    Thus far, I have (with one exception) considered only judgments pronounced by this court over a period extending only slightly further than five years back in time. I have not (again, save for that one exception) touched upon any of the many, many judgments of the Supreme Court of Western Australia delivered in that (or any other) period. Nor have I (with two exceptions) addressed the multiple attempts to file documents in this court that were rejected for reasons that suggested that the proposed proceeding was vexatious within the meaning of s 37AM(1) of the FCA Act. Many of those proceedings or attempted proceedings appear to reflect similar tendencies to those which the analysis above lays bare: namely, that Mr and Mrs Frigger are, to put it politely, not unaccustomed to bringing and prosecuting (or attempting to bring and to prosecute) ambitious applications.

151    I could, with more time, expend inordinately more effort outlining other matters that Mr and Mrs Frigger have prosecuted and defended over the last two decades. I could, for example, identify the repeated attempts that have been made—including in this very inquiry—to lead evidence about the content of Mr Kitay’s confidential affidavit (despite orders of the Supreme Court of Western Australia that it remain confidential, and that Mr and Mrs Frigger surrender all copies of it), or other attempts that have been made (particularly in the Supreme Court of Western Australia) to litigate and relitigate the circumstances attending various corporate insolvency processes that have applied to both CAT and PSA. I could examine in some detail the contempt proceedings presently on foot against Mrs Frigger, or indeed the other criminal processes to which she has been subjected, which are at least partly connected to the central subject matters discussed above. So vast is the body of litigation that is open to be interrogated, it is no exaggeration to say that, even as lengthy as these reasons already are, I have barely scratched the proverbial surface. Though I need not (and do not) make any finding, the likelihood that there is nothing else in that vast corpus of jurisprudence that is ripe for description as “vexatious” seems limited.

152    However, for no other reason than one of marginal return, I do not propose to extend this analysis any further. There is no need to. Even on the comparatively limited analysis that I have completed, I have identified more than a dozen vexatious proceedings that Mr and/or Mrs Frigger have instituted or conducted over the relatively short space of roughly five years. The majority of those proceedings were instituted or conducted (and largely, the former) by the two of them jointly. That suffices. Indeed, it is as plain as day, even from the limited selection of matters that I have catalogued, that Mr and Mrs Frigger are people who have frequently instituted or conducted vexatious proceedings in Australian courts or tribunals. I have no hesitation whatsoever in so concluding.

153    The question now is: what should the court do in light of that conclusion?

154    The court’s discretion to make orders pursuant to s 37AO(2) of the FCA Act is constrained only by the interests of justice. Presently, they overwhelmingly favour the making of orders under s 37AO(2)(b) of the FCA Act prohibiting each of Mr and Mrs Frigger from instituting any proceeding in this court (which, for reasons already rehearsed, includes interlocutory proceedings within existing matters) without first obtaining its leave.

155    There are numerous reasons why that is so. As even the comparatively limited (howsoever lengthy) analysis above lays bare, Mr and Mrs Frigger have a proven record of advancing very serious allegations that are variously unfounded, unsubstantiated, irrelevant, or the subject of prior adverse judicial consideration. They have a no less proven record of relying upon meritless—and often circular—contentions in the hope of excusing themselves from the orthodox consequences of their own litigation. And they have a seemingly unshakeable conviction that virtually every person whose path they have crossed over the last 23 years of litigation—their initial opponents, the liquidator, their trustee in bankruptcy, solicitors, barristers and other officers of the court (including some judges)—is either in on the conspiracy or is dishonest, partial or otherwise deserving of censure. Those matters combine with their prodigious enthusiasm for litigation; an appetite that appears insatiable even in the face of overwhelming failure. The result is that they have, for more than a decade now in this court alone, consumed public resources at a level that is obviously disproportionate to their legitimate needs. An order restricting future litigation, as serious as it is, is warranted to protect the use of the court’s limited public resources, such that they might more readily be available to other, far more deserving litigants.

156    Moreover—and as Mrs Trenfield fairly submitted—orders should be made under s 37AO(2)(b) of the FCA Act out of tenderness for Mr and Mrs Frigger themselves. They quite plainly require saving from what are (or are very likely to be) the consequences of their own imprudence. It is apparent that they are people of means; and, perhaps, that need applies less in respect of them than it might in respect of other vexatious litigants. Nonetheless, every hopeless proceeding that they run is another in which costs are incurred; and those costs will inevitably be brought to bear (or, certainly, are very likely to be brought to bear) upon them. No longer should the court turn a blind eye to their tendency toward financial self-harm.

157    How, then, should the court fashion orders appropriate to the above conclusions?

158    All of the interveners submitted that the appropriate order that should be made against each of Mr and Mrs Frigger is one prohibiting the commencement of any further proceeding without the court’s leave. As has been explored, such an order would extend to proceedings of an interlocutory nature that are sought to be filed within extant matters. I consider that orders to that end are appropriate and I shall make them.

159    Mr and Mrs Frigger submit that any orders made against them should be limited so as not to preclude suits against other parties who have not featured in the last 23 years of litigation. It is to be recalled that the court does not have—and I am not here asked to exercise—a power to preclude litigation per se. What the court can do is preclude it insofar as it is commenced without leave. If Mr and Mrs Frigger have legitimate claims that require determination by this court, they will be at liberty, even in the face of orders applying against them under s 37AO(2)(b) of the FCA Act, to approach it for permission to agitate them.

160    That permission filter is a measure that I consider appropriate having regard to the litigation tsunami that an otherwise orthodox petrol station sale has occasioned. The deluge has extended to other parties in ways increasingly peripheral to the original grievance. I reject the contention that the order should be limited in the way that Mr and Mrs Frigger propose.

161    The court is empowered to go further and order that part or all of any existing proceedings be stayed or dismissed: FCA Act, s 37AO(2)(a). Such orders are sometimes made in circumstances such as the present. However, given that the interveners have not suggested that they are appropriate in Mr or Mrs Frigger’s case—and, perhaps more significantly, given that no submissions were made as to the nature of the matters that remain before the court presently—it is not appropriate now to entertain relief of that kind. If any or all of those matters should be stayed or dismissed as s 37AO(2)(a) of the FCA Act contemplates, that is a question that can and should be reserved for consideration by individual docket or case management judges (either upon application or on their own motion). I am conscious that the conclusion that I have recorded above—namely, that each of Mr and Mrs Frigger is a person who has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals—is one that I have drawn for the purposes of granting final (as opposed to interlocutory) relief: FCA Act, s 37AO(5).

162    I will make orders in line with what the interveners propose.

Associate:

Dated:    19 August 2026