Federal Court of Australia

Frigger (Trustee) v Bank of Queensland Limited (No 4) [2026] FCA 1665

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 26.01(1)(d) of the Federal Court Rules 2011 (Cth) judgment is given for the first respondent against the applicants.

2.    The amended originating application filed on 24 December 2025 is otherwise dismissed.

3.    By 4.00 pm AWST on 13 November 2026 the first and second respondents are each to file and serve submissions, not exceeding five pages in length, setting out any costs orders sought and the reasons for seeking those orders.

4.    By 4.00 pm AWST on 27 November 2026 the applicants are to file and serve submissions, not exceeding five pages in length, in response to any submissions filed in accordance with order 3.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1    The applicants, Angela and Hartmut Frigger, commenced this proceeding against the first respondent, the Bank of Queensland Limited (BoQ), in October 2021. Originally, Mr and Mrs Frigger sought orders pursuant to ss 12GD and 12GF of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) that BoQ remove certain restrictions placed on withdrawals from two bank accounts, and that it pay almost $2,000,000.00 for loss caused by those restrictions. A great deal of water has passed under the bridge since this proceeding was commenced.

2    It is unnecessary to explain the procedural history of this proceeding in any detail other than to note that most of that history can be gleaned from the five interlocutory judgments that have been published since its commencement: Frigger v Bank of Queensland [2021] FCA 1667; Frigger v Bank of Queensland [2022] FCA 707; Frigger (Trustee) v Bank of Queensland Limited [2025] FCA 447; Frigger (Trustee) v Bank of Queensland Limited (No 2) [2025] FCA 526; and Frigger (Trustee) v Bank of Queensland Limited (No 3) [2025] FCA 1228.

3    These reasons are concerned only with an application for summary judgment filed by BoQ in January 2022. There are many reasons why that application has not been heard and determined before now. Some of those reasons are connected with the progress of other proceedings in this Court. Other reasons concern the time that it has taken to deal with various interlocutory applications made along the way.

4    BoQ's application for summary judgment concerns the final iteration of Mr and Mrs Frigger's amended originating application and re-amended statement of claim. BoQ argues that this proceeding is an abuse of the process of the Court and that, in any event, there is no reasonable prospect of it being successfully prosecuted. Mr and Mrs Frigger contend that it is not open to the Court to be satisfied that summary judgment should be given.

5    The amended originating application and the re-amended statement of claim refer to two respondents: BoQ, which is the first respondent, and Kelly-Anne Trenfield, who is the second respondent. Ms Trenfield is the trustee of the bankrupt estates of both Mr and Mrs Frigger. As she is now no longer subject to any of the claims made in this proceeding, Ms Trenfield has filed a submitting notice, wishing only to be heard on the question of costs.

6    The Court's power to order summary judgment is conferred by s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Section 31A(2)(b) provides, relevantly, that the Court may give judgment for a party who is defending a proceeding if satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding. The power to order summary judgment is also conferred by r 26.01 of the Federal Court Rules 2011 (Cth) (Rules). For the purposes of this proceeding, it is only necessary to observe that judgment may be given under r 26.01 where an applicant has no reasonable prospect of successfully prosecuting the proceeding (r 26.01(1)(a)) or where the proceeding is an abuse of the process of the Court (r 26.01(1)(d)).

7    I will refer to the principles that must be applied in determining whether summary judgment should be given when explaining why I have concluded that BoQ's application for summary judgment must be allowed.

8    It is convenient to commence these reasons by summarising Mr and Mrs Frigger's claim and their pleaded case.

Mr and Mrs Frigger's claim and their pleaded case

9    Mr Frigger, in his capacity as trustee of the 'Frigger Super Fund' (FSF), and Mrs Frigger, in her personal capacity, make one substantive claim in their amended originating application 'on the grounds stated on the re-amended statement of claim'. That claim is in the following terms:

An order pursuant to section 236 Australian Consumer law (Schedule 2 Competition and Consumer Act 2010) that [BoQ] pay the applicants compensation for loss of funds deposited and opportunity to invest the funds deposited on 27 July 2018 in account [Second WebSavings Account] in the name of Hartmut Hubert Josef Frigger and [Savings Account] in the name of Angela Cecilia Theresa Frigger, caused by [BoQ's] restriction on withdrawals.

10    I will now summarise the material facts that are pleaded in the re-amended statement of claim. For the avoidance of doubt, this summary should not be understood in any way as amounting to findings of fact or as an acceptance of any legal contention made in that document.

11    Mr and Mrs Frigger are the trustees of their self-managed superannuation fund, the FSF. On or about 1 March 2018, Mrs Frigger, as trustee for the FSF, opened a bank account with BoQ (First WebSavings Account). The material terms and conditions relating to that account, as disclosed in a product disclosure statement published on BoQ's website, relevantly included that 'there were no restrictions on withdrawing funds'. This, and certain other terms and conditions contained within the product disclosure statement, constituted a representation as to future matters for the purposes of s 12BB of the ASIC Act.

12    In early March 2018, Mrs Frigger deposited two cheques totalling just under $2,500,000.00 into the First WebSavings Account. One of those cheques was drawn on an account with BankWest styled 'Frigger Super Fund' (BankWest Account). Interest was credited to the First WebSavings Account on four subsequent occasions. The First WebSavings Account was held by Mrs Frigger as trustee for the FSF.

13    Mr and Mrs Frigger contend that BoQ ought to have been aware that the First WebSavings Account was 'on behalf of some other person' for the purposes of s 125 of the Bankruptcy Act 1966 (Cth).

14    On 2 July 2018, Mrs Frigger closed the First WebSavings Account and transferred the balance then standing to the credit of that account to a new savings account in her name (Savings Account). This was done because BoQ had informed Mr and Mrs Frigger that it was not possible to directly transfer the balance of the First WebSavings Account into a new WebSavings Account.

15    On the same day, a new BoQ WebSavings Account was opened in Mr Frigger's name (Second WebSavings Account). Just over $2,500,000.00 was then transferred from the Savings Account into the Second WebSavings Account. There was then a balance of just over $2,500,000.00 in the Second WebSavings Account, leaving a balance of $50.00 remaining in the Savings Account.

16    BoQ did not provide Mr and Mrs Frigger with a product disclosure statement for the Second WebSavings Account. However, Mr and Mrs Frigger 'assumed' that it was the same product disclosure statement as the one that applied to the First WebSavings Account.

17    The Second WebSavings Account was held by Mr Frigger as trustee of the FSF. On or about 5 July 2018, Mr Frigger added the words 'Frigger Super Fund' to the Second WebSavings Account name, and then on 13 July 2018 he notified BoQ that the tax file number (TFN) for the account was the TFN for the FSF. BoQ attempted to change the TFN notified on both the First WebSavings Account and the Second WebSavings Account, and submitted a TFN report to the Australian Taxation Office (ATO) but no correction report was received from the ATO.

18    It is contended that, having regard to certain pleaded circumstances, BoQ ought to have been satisfied that the Second WebSavings Account was 'on behalf of some other person' for the purposes of s 125 of the Bankruptcy Act, namely the members of the FSF.

19    On or about 20 July 2018, sequestration orders were made by this Court in relation to both Mr and Mrs Frigger. A few days later, Mr and Mrs Frigger went to a BoQ branch and deposited a cheque for $300,000.00 into the Second WebSavings Account. The balances then standing to the credit of the First WebSavings Account and the Second WebSavings Account 'comprised income earned by [the FSF] on trust estate assets'.

20    On or about 25 July 2018, the 'Official Receiver' made a request pursuant to s 125 of the Bankruptcy Act that BoQ place a 'restriction' on accounts in Mr and Mrs Frigger's names having a cash balance of more than $5,000.00. BoQ then placed a restriction on both the Savings Account and the Second WebSavings Account that prevented Mr and Mrs Frigger from withdrawing money from either of those accounts.

21    It is contended that, in circumstances in which BoQ ought to have been satisfied that both the First WebSavings Account and the Second WebSavings Account were 'on behalf of some other person', namely the members of the FSF, BoQ's conduct in placing restrictions on the Savings Account and the Second WebSavings Account, which prevented Mr and Mrs Frigger from withdrawing money from either of those accounts, 'constituted a contravention of s 125 of the Bankruptcy Act'.

22    A few days later, on 27 July 2018, the Official Trustee determined that the Second WebSavings Account and the BankWest Account were accounts of the FSF. In those circumstances, the Official Trustee then sent an urgent letter to BoQ in which it directed BoQ to immediately remove the restrictions on those accounts because they were assets of the FSF.

23    On the same day, 27 July 2018, Mr and Mrs Frigger attended at a BoQ branch where they attempted to withdraw the balances standing to the credit of the Savings Account and the Second WebSavings Account. However, BoQ refused their withdrawal requests. In circumstances in which BoQ had already contravened s 125 of the Bankruptcy Act, the Official Trustee had directed that BoQ remove the restrictions on the Savings Account and the Second WebSavings Account and BoQ had refused Mr and Mrs Frigger's request to withdraw the balances of those accounts, BoQ breached a material term of the contract with Mr and Mrs Frigger. This is because:

(1)    the Savings Account had a balance of less than $5,000.00 and was therefore not subject to any direction from the Official Trustee; and

(2)    the name of the Second WebSavings Account included 'Frigger Super Fund' and a notification of the TFN for that fund.

24    Mr and Mrs Frigger contend that had BoQ:

not restricted withdrawals from [the] Savings Account and [the] Second WebSavings Account, [they] would have closed the accounts and invested the funds in shares and managed investments listed on the Australian Stock Exchange.

25    On 30 July 2018, the Official Trustee instructed BoQ to maintain 'the freeze' on the Second WebSavings Account because it had received further information which questioned whether the account was held by the FSF. Correspondence was then exchanged between FTI Consulting Pty Ltd (the Official Trustee's 'replacement') and BoQ concerning the TFNs for each of Mr and Mrs Frigger's accounts.

26    Mr and Mrs Frigger were discharged from bankruptcy on or about 26 July 2021. Then, on or about 30 July 2021, Mr and Mrs Frigger both went to a BoQ branch and provided evidence that they had been discharged from bankruptcy. Mr and Mrs Firgger asked to withdraw the funds standing to the credit of the Savings Account and the Second WebSavings Account. However, BoQ refused that request. Later, on 13 September 2021, BoQ informed Mr and Mrs Frigger that it would not be releasing any funds without instructions from FTI Consulting.

27    It is contended that, in circumstances in which Mr and Mrs Frigger had been discharged from bankruptcy on 26 July 2021, the Savings Account and the Second WebSavings Account were 'not accounts held by an undischarged bankrupt'.

28    It is also contended, in effect, that in all of the circumstances to which I have referred, BoQ's representation that there were no restrictions on withdrawing funds was a 'misleading representation as to a future matter within the meaning of section 18 Australian Consumer Law (Schedule 2 Competition and Consumer Act 2010)'. At the hearing of BoQ's application for summary judgment, Mr and Mrs Frigger applied to amend the re-amended statement of claim to also plead s 4 in Sch 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law). However, and as will be seen, it is unnecessary to decide whether that application should be allowed.

29    It is further contended that '[b]y restricting withdrawals on [the] Savings Account on 25 July 2018 held by Mrs Frigger with a balance of $50.00 [BoQ] contravened s 125 [of the] Bankruptcy Act', and that by restricting withdrawals on the Second WebSavings Account held by Mr Frigger, BoQ 'contravened a material term of the contract'. It is alleged that in those circumstances Mr and Mrs Frigger,

as trustees of the [FSF], lost the opportunity to invest the funds in [the] Second WebSavings Account in shares and managed funds listed on the Australian Stock Exchange and lost the opportunity to earn in excess of $11,500,000 in interest and dividend income and capital gains from such investments during the period from July 2018 until the date of [the re-amended statement of claim].

On that basis, Mr and Mrs Frigger plead that they are entitled to an order that BoQ pay them compensation for 'loss of [the] funds deposited and damages'. Mr and Mrs Frigger also plead that they are entitled to an order in terms of the claim made in the amended originating application.

30    Having summarised Mr and Mrs Frigger's claim and their pleaded case, it is then necessary to say something briefly about the evidence on which the parties rely.

The evidence

31    BoQ relies on an affidavit of Ryan Eamonn Lennon, affirmed 14 January 2022, in support of its application for summary judgment. Mr Lennon is a solicitor employed by Dentons Australia, which is engaged to act on behalf of BoQ in this proceeding. It is unnecessary to summarise Mr Lennon's affidavit, other than to note that in it he refers to a judgment that was delivered by Jackson J, namely Frigger v Trenfield (No 10) [2021] FCA 1500 (Frigger (No 10)). I will return to discuss this case in more detail later in these reasons. It is sufficient at this stage to note that Mr Lennon attests, in effect, that Jackson J found that the funds held in the Savings Account and the Second WebSavings Account were not an asset of the FSF.

32    Mr Lennon's affidavit was admitted into evidence without objection.

33    Mr and Mrs Frigger sought to rely on the following material:

(1)    A copy of a letter dated 13 September 2021, purporting to have been signed by a 'Customer Relations' employee of BoQ. That letter refers to a complaint made by Mr and Mrs Frigger through the Australian Financial Complaints Authority. The letter also states that BoQ is 'under instruction by your trustee FTI Consulting to not release these funds pending further advices' and that 'BOQ will not be releasing funds to you at this point … without instruction from FTI Consulting'.

(2)    An affidavit that was apparently sworn by both Mr and Mrs Frigger on 17 January 2022. In that affidavit, Mr and Mrs Frigger make assertions of fact that largely reflect the pleas made in the re-amended statement of claim. The affidavit also annexes various documents, including:

(a)    a demand made to BoQ to lift the 'freeze' on the Second WebSavings Account;

(b)    a further demand to Mr and Mrs Frigger's trustee in bankruptcy for loss of opportunity in respect of the funds in the Second WebSavings Account, as well as a calculation of transactions that Mr and Mrs Frigger say would have occurred had BoQ not restricted their access to the funds in the Second WebSavings Account; and

(c)    an affidavit sworn by Mr Frigger on 20 April 2020, and apparently filed in another proceeding in this Court, in which Mr Frigger sets out calculations of the losses he and Mrs Frigger say they have incurred as a result of being denied access to the funds in the BoQ accounts.

(3)    An affidavit sworn by Mrs Frigger on 17 July 2026. In that affidavit, Mrs Frigger asserts that BoQ has never explained why it maintained a restriction on the Savings Account and the Second WebSavings Account after the Official Trustee directed it to lift that restriction, having determined that they were accounts held by or on behalf of the FSF. Attached to that affidavit are several documents purporting to have been generated by the ATO. Mrs Frigger gives evidence to the effect that those and other documents establish that the funds in the Savings Account and the Second WebSavings Account 'were always, and continue to be, assets of [the FSF]'. According to Mrs Frigger, one of those documents was excluded from evidence in Frigger (No 10) on the basis that it was provided too late, and no finding was made about its content or reliability. Mrs Frigger also asserts in her affidavit, in effect, that her contention that the Savings Account and the Second WebSavings Account are assets of the FSF is supported by the position the ATO has apparently taken in relation to those assets. She further contends that the legal effect of Frigger (No 10) is yet to be determined, and that its 'legal effect' will be decided in another case that is in my docket, namely WAD 82 of 2026, in which Mr and Mrs Frigger make various claims against FTI Consulting.

34    A great many objections were made to the evidence on which Mr and Mrs Frigger relied, and much time was expended hearing the parties' submissions about those objections. Ultimately, it is unnecessary to deal with any of those objections. As will be seen, Mr and Mrs Frigger's claim must be dismissed irrespective of the evidence on which they sought to rely.

Why Mr and Mrs Frigger's claim must be summarily dismissed

35    The relevant principles relating to summary judgment or dismissal under s 31A of the FCA Act and r 26.01 of the Rules have been considered by this Court on many occasions. They were helpfully summarised by Wigney J in Dunstan v Orr (No 2) [2023] FCA 1536 at [84] to [91].

36    Mr and Mrs Frigger's specific claim is for an order under s 236 of the Australian Consumer Law that BoQ pay compensation for 'loss of funds deposited and [the] opportunity to invest the funds' in the Savings Account and the Second WebSavings Account on 27 July 2018. I will come to deal with some of the difficulties with Mr and Mrs Frigger's pleaded case in relation to that claim later in these reasons. However, it is important to appreciate that Mr and Mrs Frigger's claim is that those losses were caused by BoQ's refusal to allow them to withdraw funds from those accounts on 27 July 2018 and 30 July 2021, and possibly also on 13 September 2021. Accordingly, Mr and Mrs Frigger's claim depends upon them establishing that, on one or more of those dates, they were entitled to withdraw the funds from those accounts. More accurately it depends upon proof that Mr and Mrs Frigger held choses in action in respect of the Savings Account and the Second WebSavings Account, which at all relevant times entitled them to require BoQ to pay to them all or part of the amounts credited to those accounts: Lordianto v Commissioner of the Australian Federal Police [2019] HCA 39; (2019) 226 CLR 273 at [5] and [66] (Kiefel CJ, Bell, Keane and Gordon JJ).

37    However, and on Mr and Mrs Frigger's own pleaded case, sequestration orders were made against them on or about 20 July 2018. Accordingly, as of that date all of their property vested in the Official Trustee and then in any registered trustee who subsequently became the trustee of their bankrupt estates: s 58(1)(a) of the Bankruptcy Act. Such property included any choses in action relating to personal bank accounts: see, for example, Bride v Australian Bank Ltd (unreported, FCA, French J, WAG 62 of 1987, 26 July 1988) at [21]. It follows that if the choses in action in respect of the Savings Account and/or the Second WebSavings Account were Mr and/or Mrs Frigger's personal property, they had no entitlement as and from when the sequestration orders were made to require BoQ to pay them the amounts credited to the Savings Account and the Second WebSavings Account. If Mr and Mrs Frigger did not have that entitlement then they could not have lost, or lost any opportunity to invest, those funds by reason that BoQ refused their withdrawal requests. In those circumstances their claim would inevitably fail.

38    No doubt mindful of that potential, Mr and Mrs Frigger's pleaded case is that the funds standing to the credit of the Savings Account and the Second WebSavings Account, or more correctly the choses in action in respect of those accounts, are assets of the FSF. However, the difficulty for Mr and Mrs Frigger is that this is not the first occasion on which they have sought to make that case.

39    Mr and Mrs Frigger commenced a proceeding in this Court in March 2019, namely WAD 141 of 2019. In that proceeding Mr and Mrs Frigger sought several orders, including declarations that the Savings Account and the Second WebSavings Account were assets of the FSF, that they were held on trust for the beneficiaries of that fund, and that they were therefore not assets divisible among creditors pursuant to s 116(2)(d)(iii)(A) of the Bankruptcy Act. Ms Trenfield, as Mr and Mrs Frigger's trustee in bankruptcy, was the first respondent in that proceeding. A former trustee of the FSF was the second respondent. BoQ was not joined as a party.

40    After presiding over a lengthy and complex trial, Jackson J dismissed Mr and Mrs Frigger's application: Frigger (No 10). Relevantly, his Honour concluded at [370] that Mr and Mrs Frigger had failed to discharge their onus to establish that either the Savings Account or the Second WebSavings Account were held on the trusts of the deed by which the FSF was formed, or that those accounts had otherwise been contributed to the FSF as at the date of Mr and Mrs Frigger's bankruptcy or any time before then. Later in his extensive reasons, at [532], Jackson J reiterated that Mr and Mrs Frigger had failed to establish that at any material time, either or both of them held the Savings Account or the Second WebSavings Account on the terms of the FSF for beneficiaries of that fund. His Honour also specifically held at [533] and [534]:

It follows that the interests the applicants hold in the disputed assets are not part of their interests in any regulated superannuation fund for the purpose of s 116(2)(d)(iii)(A) of the Bankruptcy Act. As I have explained at the beginning of this judgment, the applicants do not claim that any of the disputed assets were prevented from vesting in the first respondent because they were 'held by the bankrupt in trust for another person' for the purposes of s 116(2)(a). So the interests they held vested in the first respondent pursuant to s 58(1)(a) of the Bankruptcy Act, those interests being: Mr Frigger's interest in [the Second WebSavings Account] as the account holder; Mrs Frigger's interest in [the Savings Account] as the account holder …

The applicants are therefore not entitled to the declarations they seek.

(emphasis added)

41    It may also be noted that in Frigger (No 10), Mr and Mrs Frigger unsuccessfully sought an order that their trustee in bankruptcy compensate them for losses they alleged they incurred because freezes or holds were place on the Second WebSavings Account.

42    Mr and Mrs Frigger appealed against the decision to dismiss their application in Frigger (No 10): Frigger v Trenfield (No 3) [2023] FCAFC 49 (Frigger (No 3)). One of the grounds of appeal on which they relied was to the effect that the primary judge erred in deciding that the Savings Account and the Second WebSavings Account had vested in Ms Trenfield as Mr and Mrs Frigger's trustee in bankruptcy. The Full Court dealt with that ground on the basis that the true nature of Mr and Mrs Frigger's complaint was that the primary judge erred in failing to find that all of the funds in the Savings Account and the Second WebSavings Account were assets of the FSF. Ultimately, the Full Court dismissed that ground, as well as the other grounds on which Mr and Mrs Frigger relied: Frigger (No 3) at [524] to [567]. Special leave to appeal to the High Court of Australia against the decision of the Full Court was refused on 3 August 2023: Frigger v Trenfield [2023] HCASL 110.

43    It is submitted on behalf of BoQ that, as the fundamental premise of Mr and Mrs Frigger's claim in this proceeding is that the Savings Account and the Second WebSavings Account are assets of the FSF, this proceeding constitutes an abuse of the process of the Court. It is submitted that this proceeding is an abuse of process because it necessarily involves re-litigation of an issue that was determined adversely to Mr and Mrs Frigger in Frigger (No 10).

44    Abuse of process is more flexible than res judicata and estoppel. While abuse of process is insusceptible to a formulation comprising closed categories, it is capable of application in any circumstance in which, relevantly, the use of a court's procedures would bring the administration of justice into disrepute: Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507 at [25] (French CJ, Bell, Gageler and Keane JJ). In that regard, it has been recognised that making a claim or raising an issue that was made or raised and determined in an earlier proceeding can constitute an abuse of process even when the earlier proceeding may not have given rise to a res judicata or an estoppel: Tomlinson at [26] (French CJ, Bell, Gageler and Keane JJ).

45    Whether particular conduct amounts to an abuse of the process of the Court requires consideration to be given to all of the circumstances, making a 'broad, merits-based judgment', and taking into account both the private and public interests that may be involved: UBS AG v Tyne as Trustee of the Argot Trust [2018] HCA 45; (2018) 265 CLR 77 at [7] (Kiefel CJ, Bell and Keane JJ); citing Johnson v Gore Wood & Co [2002] 2 AC 1 at 31. However, the onus of satisfying a court that a proceeding is an abuse of process is a heavy one: UBS at [136] (Gordon J). Further, the power to dismiss an application as an abuse of process is to be exercised sparingly and upon an examination of the relevant circumstances of the particular case before the Court: Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 6) [2004] FCA 1699 at [70]. Where a party attempts to raise issues in successive proceedings that conduct may be assessed as an abuse of process if it is contrary to the principle of finality, which requires that controversies once resolved are not to be reopened except in a few, narrowly defined, circumstances: UBS at [137] (Gordon J); see also at [59] (Kiefel CJ, Bell and Keane JJ) and [66] (Gageler J, as his Honour then was).

46    In State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 at 64,089, Giles CJ said that:

... whether proceedings are, or an aspect of proceedings is, an abuse of process because a party seeks to relitigate a[n] issue already decided depends very much on the particular circumstances. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice ...

47    His Honour also listed some factors that may be relevant to the determination of whether there was an abuse of process in connection with the issue to be litigated in the second proceedings:

(a)    the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;

(b)    the opportunity available and taken to fully litigate the issue;

(c)    the terms and finality of the finding as to the issue;

(d)    the identity between the relevant issues in the two proceedings;

(e)    any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of -

(f)    the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g)    an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

48    As French J (as his Honour then was) said in Spalla at [70], these considerations offer a non-exhaustive guide and an indication of the nature of the Court's task in such cases.

49    In my view, this proceeding is an abuse of the process of the Court and that judgment must therefore be given for BoQ against Mr and Mrs Frigger under r 26.01(1)(d) of the Rules.

50    While the power to summarily dismiss a proceeding brought in this Court on the ground that it is an abuse of the process of the Court must be exercised sparingly, the circumstances of this case very clearly establish that the administration of justice would be brought into disrepute were this proceeding allowed to proceed further.

51    One of the ultimate issues that was determined in Frigger (No 10) was the question of whether the Savings Account and/or the Second WebSavings Account were assets of the FSF. In that regard, it may be seen that Mr and Mrs Frigger chose to invoke this Court's jurisdiction to seek a binding declaration that the two accounts were held in the FSF on trust for the beneficiaries of that fund, and that they were therefore not assets divisible among their creditors under the Bankruptcy Act: Frigger (No 10) at [7].

52    Having regard to the detailed reasons in both Frigger (No 10) and Frigger (No 3), it is readily apparent that Mr and Mrs Frigger took every opportunity to fully litigate this issue. Indeed, in dismissing a ground of appeal by which Mr and Mrs Frigger asserted that the primary judge in Frigger (No 10) had denied them procedural fairness, the Full Court said at [203] in Frigger (No 3):

it can be stated with some confidence that Mr and Mrs Frigger, as intelligent people, in the light of all that was said to them and all that must have been apparent to them, must have understood that it was necessary for them to adduce, and that they bore the onus of adducing, all available evidence to show that circumstances existed or acts were done to make all relevant property part of the [FSF]. They were not treated unfairly by the primary judge. They were treated completely fairly and they were apprised of what they had to do to prove their case, if the evidence existed.

(emphasis added)

53    However, the primary judge in Frigger (No 10) found that Mr and Mrs Frigger had failed to establish that either the Savings Account or the Second WebSavings Account were held on the trusts of the deed that created the FSF, or had otherwise been contributed to the FSF, at or before the date of their bankruptcy or any time before then. The primary judge also expressly found that the interest Mrs Frigger held in the Savings Account, and the interest Mr Frigger held in the Second WebSavings Account, vested in their trustee in bankruptcy pursuant to s 58(1)(a) of the Bankruptcy Act. As a result, and as between Mr and Mrs Frigger and their trustee in bankruptcy, the choses in action in both the Savings Account and the Second WebSavings Account entitled only the trustee in bankruptcy to require BoQ to pay all or part of the funds credited to those accounts. Mr and Mrs Frigger had no right to require BoQ to pay to them, or to the FSF, all or any part of those funds.

54    None of these findings were disturbed on appeal in Frigger (No 3). In fact, the Full Court specifically rejected Mr and Mrs Frigger's ground of appeal that the primary judge erred in failing to find that all of the funds in the BoQ accounts were assets of the FSF.

55    In this proceeding, Mr and Mrs Frigger's claim for 'compensation' under s 236 of the Australian Consumer Law depends on the Court making findings that the Savings Account and/or the Second WebSavings Account were assets of the FSF at times when BoQ placed restrictions on Mr and Mrs Frigger withdrawing funds from those accounts. That claim can only succeed if the Court were to make findings about an issue that would be inconsistent with what was decided against Mr and Mrs Frigger in Frigger (No 10). Accordingly, this proceeding amounts to an impermissible collateral attack on the correctness of the orders and findings made in Frigger (No 10), which Mr and Mrs Frigger have already unsuccessfully sought to challenge on appeal.

56    Were Mr and Mrs Frigger to be permitted to re-litigate an issue that was determined adversely to them in Frigger (No 10) the negative impact upon the principle of finality of judicial determination is obvious. Further, the prospect of two rulings by this Court that, on the one hand, the choses in action in both the Savings Account and the Second WebSavings Account entitled only the trustee in bankruptcy to require BoQ to pay all or part of the funds credited to those accounts, while on the other hand, only the FSF has such an entitlement would plainly be destructive of the public confidence in the administration of justice.

57    Before moving on to briefly explain why there are further reasons why this proceeding must be summarily dismissed, it is necessary to deal with something Mrs Frigger said, in her oral submissions at the hearing, about the effect of Frigger (No 10). In that regard, Mrs Frigger contended that Frigger (No 10) did not have any 'legal effect' because it had been obtained by fraud.

58    There is no question that this Court has jurisdiction to set aside orders procured by fraud: Commissioner of Taxation v Rawson Finances Pty Ltd [2023] FCA 617 at [57]. However, as the orders in Frigger (No 10) have not been set aside, on the basis they were procured by fraud or otherwise, and no application to set them aside has been made in this or indeed in any other proceeding to which I was referred, I must proceed on the basis that those orders, and the relevant findings that were made in that case, have full force and effect.

59    Mrs Frigger submitted that the question of whether the orders in Frigger (No 10) were obtained by fraud is a matter that is in issue in another proceeding that is in my docket, namely WAD 82 of 2026. In that proceeding, which was transferred to this Court from the Supreme Court of Western Australia, Mr and Mrs Frigger claim various forms of declaratory and compensatory relief against FTI Consulting (Australia) Pty Ltd, an entity who Mr and Mrs Frigger alleged was Ms Trenfield's employer at all relevant times. However, as the re-amended statement of claim that has been filed in that proceeding demonstrates, Mr and Mrs Frigger do not plead any material facts that would, if established, enliven the Court's power to set aside Frigger (No 10) on the ground of fraud.

60    I should note that, in reaching the conclusion that this proceeding is an abuse of the process of the Court, I have not taken into account an apparent concession that was made by Mrs Frigger during her oral submissions, which concerned the Savings Account. In that regard, Mrs Frigger said the following:

The first one is the account which held, at the time of the freezing, approximately $2.8 million. That's in Mr Frigger's account. It has the nomenclature 'Frigger Super Fund'. He held it as a trustee of the [FSF]. Whether they like it or not, that is the way we held it, okay, and it continues to be held so.

I appear in my personal capacity because the second account, which had a balance of $50, I do hold in my personal capacity. I can't understand why it is so difficult to understand that proposition. They're two accounts. One is held in the [FSF], one is not. Mr Frigger's account in his name, the [FSF]. The account in my name is my account personally. What is so difficult to understand?

(emphasis added)

61    It may be observed that Mrs Frigger's submissions were at odds with the case she ran in both Frigger (No 10) and Frigger (No 3) and appeared to amount to an acceptance that the Savings Account was not an asset of the FSF.

62    Having reached the conclusion that judgment must be given for BoQ and against Mr and Mrs Frigger, because this proceeding is an abuse of the process of the Court (r 26.01(1)(d)) it is only necessary to briefly make mention of why the same conclusion must also be reached because Mr and Mrs Frigger have no reasonable prospect of successfully prosecuting the proceeding: s 31A(2) of the FCA Act and r 26.01(1)(a) of the Rules.

63    As Wigney J observed in Dunstan at [87] to [88]:

… 'a proceeding need not be "hopeless" or "bound to fail" for it to have no reasonable prospect of success': Spencer [v Commonwealth [2010] HCA 28; (2010) 241 CLR 118] at [17] (per French CJ and Gummow J). The enquiry required under s 31A is 'not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail': Spencer at [52] (per Hayne, Crennan, Kiefel and Bell JJ).

… the 'exercise of powers to summarily terminate proceedings must always be attended with caution', whatever may be the basis upon which that disposition is sought: Spencer at [24] (per French CJ and Gummow J). It is not a power to be exercised lightly: Spencer at [60] (per Hayne, Crennan, Kiefel and Bell JJ). There must be a 'high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way': Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [46], citing Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57], referred to in Spencer at [24] (per French CJ and Gummow J).

64    Putting aside the many, and in some instances, serious pleading infelicities that are apparent on the face of the re-amended statement of claim, there are at least two major reasons why Mr and Mrs Frigger's claim has no reasonable prospects of success.

65    Firstly, and most importantly, Mr and Mrs Frigger's claim under s 236 of the Australian Consumer Law is that they suffered loss or damage because BoQ engaged in misleading and deceptive conduct, contrary to s 18 of the Australian Consumer Law. Specifically, Mr and Mrs Frigger's pleaded case is that BoQ contravened s 18 by making a representation in a product disclosure statement that 'there were no restrictions on withdrawing funds'. In that regard, it may be observed that s 236 of the Australian Consumer Law stipulates a causal requirement that a claimant's harm be 'because of' a contravention of a provision of Chs 2 or 3 of the Australian Consumer Law: Husseini v Girchow Enterprises Pty Ltd [2024] FCAFC 143 at [115] (Feutrill J, Sarah C Derrington and Stewart JJ agreeing). However, Mr and Mrs Frigger do not claim that they suffered loss or damage because of the pleaded conduct. Instead, their case is that loss and damage was suffered because BoQ restricted them from making withdrawals from that account. The restriction by BoQ on withdrawals is not conduct that is alleged to have amounted to a contravention of any relevant provision of the Australian Consumer Law.

66    Secondly, in addition to pleading that Mr and Mrs Frigger have a cause of action under s 236, based on a contravention of s 18 of the Australian Consumer Law, the re-amended statement of claim alleges that BoQ breached a material term of its contract with Mr and Mrs Frigger, and that it further contravened s 125 of the Bankruptcy Act. However, it is not pleaded or otherwise suggested that such conduct amounts to a contravention of any relevant provision of, or that it gives rise to an action for damages under s 236 of, the Australian Consumer Law.

67    In any event, s 125(1) of the Bankruptcy Act provides that:

[w]here a prescribed organization has ascertained that a person having an account with it is an undischarged bankrupt, then, unless the prescribed organization is satisfied that the account is on behalf of some other person, it shall forthwith inform the trustee, in writing, of the existence of the account and, subject to subsection (2), shall not make any further payments out of the account, except under an order of the Court of which a copy has been served on it or in accordance with written instructions from the trustee.

68    By its terms, s 125 imposes an obligation on a 'prescribed organization', such as BoQ, where it has ascertained that a person having an account with it is an undischarged bankrupt, to 'forthwith inform' the trustee of the undischarged bankrupt, in writing, of the existence of an account it has with the undischarged bankrupt. Section 125 imposes a further obligation on a 'prescribed organization' not to make further payments out of the relevant account in those circumstances, and provides for some specific exceptions to that obligation. However, and putting to one side the question of whether Mr and Mrs Frigger would have standing to make a claim based on a contravention of s 125, the material facts pleaded in the re-amended statement of claim are incapable of establishing that BoQ contravened s 125. On the contrary, those material facts, if proved, would establish that BoQ would then have contravened s 125 had it allowed Mr and Mrs Frigger to make the requested withdrawals.

69    One final point must be made about Mr and Mrs Frigger's case. It is pleaded that, because Mr and Mrs Frigger were discharged from bankruptcy on or about 26 July 2021, the Savings Account and the Second WebSavings Account were then not accounts held by an undischarged bankrupt. However, if the choses in action in respect of those accounts were vested in the Official Trustee or any trustee in bankruptcy by operation of s 58(1)(a) of the Bankruptcy Act, they continued to be so vested even after Mr and Mrs Frigger were discharged from bankruptcy: see Pegler v Dale [1975] 1 NSWLR 265 at 266 to 267; Daemar v Industrial Commission of New South Wales [No 2] (1990) 22 NSWLR 178 at 184 to 185; Re Balhorn; Ex parte Balhorn (1981) 55 FLR 433 at 436 to 437; and Hudson v Whalan (unreported, FCA, Hill J, NG 7610 of 1998, 18 August 1998) at 6 to 7. This means that, even after they were discharged from bankruptcy, Mr and Mrs Frigger did not suffer any loss by reason that BoQ continued to refuse to allow them to withdraw funds from those accounts.

Conclusion

70    For the above reasons, judgment must be given for BoQ against Mr and Mrs Frigger under r 26.01(1)(d) of the Rules, because this proceeding is an abuse of process. Further, and in any event, judgment must be given for BoQ against Mr and Mrs Frigger under s 31A(2) of the FCA Act and r 26.01(1)(a) of the Rules because there is no reasonable prospect of this proceeding being successfully prosecuted.

71    As Ms Trenfield submitted to any order the Court may make in this proceeding, subject to the question of costs, I will make orders that require all parties to file short written submissions regarding any costs orders that may be sought consequent upon my conclusion that judgment must be given against Mr and Mrs Frigger. I will then consider how best to resolve any disputes about costs, having regard to the overarching purpose referred to in s 37M of the FCA Act.

Associate:

Dated:    6 November 2026