Frigger V Professional Services of Australia Pty LTD Bc201508334
Frigger V Professional Services of Australia Pty LTD Bc201508334
Frigger V Professional Services of Australia Pty LTD Bc201508334
CORAM : BUSS JA
MURPHY JA
HARTMUT FRIGGER
Second Appellant
AND
Catchwords:
Legislation:
Result:
Category: B
Representation:
Counsel:
First Appellant : In person
Second Appellant : In person
First Respondent : Mr T Stephenson
Second Respondent : Mr T Stephenson
Solicitors:
First Appellant : In person
Second Appellant : In person
First Respondent : Eastwood Sweeney Law
Second Respondent : Eastwood Sweeney Law
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia
Pty Ltd [No 7] [2014] WASC 360
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia
Pty Ltd [No 8] [2015] WASC 166
Frigger v Professional Services of Australia Pty Ltd [2015] WASCA 3
Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69
Krishell Pty Ltd v Nilant [2006] WASCA 223; (2006) 32 WAR 540
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty
Ltd [No 2] [2009] WASCA 183 (S)
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty
Ltd [No 2] [2009] WASCA 183; (2009) 261 ALR 179
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty
Ltd [No 3] [2010] WASC 93
Witness v Marsden [2000] NSWCA 52; (2000) 49 NSWLR 429
1 The applicants (Mr and Mrs Frigger) applied, pursuant to s 471C of the
Corporations Act 2001 (Cth) for leave to commence an appeal against a
decision of Simmonds J, published 8 June 2015: Computer Accounting and
Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 8]1
(the primary decision).
Background
3 Mr and Mrs Frigger were not parties to the primary decision. The
parties to that decision were the parties in the litigation to which that
decision related - CIV 2265 of 2006. In that litigation (relevantly, for
present purposes), Computer Accounting and Tax Pty Ltd (in liq) (CAT) was
the plaintiff; Professional Services of Australia Pty Ltd (PSA) was the first
defendant; and Donald Campbell-Smith as executor of the estate of Martin
Paul Banning (Banning Estate) was the second defendant.
(b) there was an appeal by the defendants to the Court of Appeal against
that decision;
(c) the defendants' appeal was successful to the extent, inter alia, that the
defendants succeeded in reducing the award of damages, and that
certain costs orders made by Simmonds J on 6 May 2009 were set
aside;3
(d) the defendants had applied for a stay of the orders made by
Simmonds J pending the determination of the appeal, but the stay
application was refused with the result that the defendants paid CAT
the judgment sum in excess of $1.1 million; and
(e) following the judgment of the Court of Appeal, CAT was, in effect,
obliged to repay the defendants an amount in excess of $800,000, but
did not do so (the $800,000 debt).
In opposition to this application Mrs Frigger filed two affidavits, the first sworn 3
March 2010 and the second sworn 27 April 2010. In both affidavits Mrs Frigger
pointedly fails to address Mr Kitay's claim she has refused to produce the books and
records of [CAT] and has failed to complete a [sworn] report as to activities. That
does not go to the question of whether or not [CAT] is insolvent. It does, however,
raise questions as to Mrs Frigger's bona fides.
Given the position of [CAT] the only way that Mrs Frigger's evidence could
establish [that CAT] is solvent would be for her and her husband to personally
undertake they would meet the debts of [CAT] as and when they fell due. No such
undertaking is found in either affidavit. Mrs Frigger does maintain she and her
husband have sufficient assets to meet the debts of [CAT], but they do not
undertake to make payment of those debts.
(a) the costs issues remitted to the primary judge for determination
following the Court of Appeal's decision to reduce the award of
damages, referred to in [..(c)] above;6 and
8. The costs orders made on 6 May 2009 by the trial judge be set aside and
the question of the costs of the trial be remitted to the trial judge for
reconsideration in light of the reasons of this court.
It may be noted that the remitter described is for 'the costs of the trial'. It may
further be noted from Appendix 1 that my May 2009 costs orders include, but
extend beyond, 'the costs of the trial'. I consider that the effect of the orders made
on the appeal is that either all of the proceedings the subject of my May 2009 costs
orders were the subject of the remitter; or, to the extent that they were not, orders as
to costs remain to be made on the proceedings in question.
9 The primary judge referred to these costs orders in his decision as 'the
proposed costs orders in place of my May 2009 costs orders'.8 For present
purposes, we will refer to them as 'remitter costs orders'.
11 The remitter costs orders, and the other proposed costs orders, were the
subject of a minute of proposed orders by the defendants, which the judge
described as 'the defendants' Minute'.10 We will also use that term.
13 His Honour addressed the remitter costs orders in [23] - [92] of the
primary decision, and the other proposed costs orders in [93] - [231] of the
primary decision.
4. On 12 June 2015 I filed a notice of appeal against the costs orders of Justice
Simmonds made on 8 June 2015 …
5. On 12 June 2015 I received an email from the registrar advising that the
notice could not be accepted for filing …
6. Attached and marked 'AF3' is a copy of a draft case statement to support the
appeal against cost orders made by Justice Simmonds on 8 June 2015.
7. The current liquidator of CAT has refused to take any part in any of the
unresolved litigation that CAT was involved in for fear of an adverse cost
order against him personally, although we made numerous offers of finance
to pay legal fees as well as $850,000 for the purposes of the liquidation of
CAT. Attached and marked 'AF4' are copies of the offers made by the
appellants personally and by their lawyers on their behalf.
9. I believe that it would be more efficient use of the court time for the two
appeals to be heard together and for fairer costs orders to be made by this
Honourable Court without the necessity of returning to the trial judge.
(1A) Subsection (1) does not apply to the extent that the performance or
exercise, or purported performance or exercise, is:
Note: For strict liability , see section 6.1 of the Criminal Code .
(3) This section does not remove an officer of a company from office.
except with the leave of the Court and in accordance with such terms (if
any) as the Court imposes.
22 It is evident that s 471C of the Corporations Act does not confer power
on the court to enable a person who is not a party to orders made in a curial
decision, in proceedings in which that person is not a party, to commence an
appeal against such a decision.
'Under the practice which exists in England "parties to" an action and all
persons served with matters of judgment may appeal without leave. But a
person not a party to the proceedings cannot appeal from an order or judgment
except by leave of the Court ... Leave to appeal is given as a rule if the person
applying though not a party to the proceedings might properly have been one.
"The test is, could or could not the applicant by possibility be made a party to
the action by service" ... The appellate jurisdiction of the High Court is not
identical with that of the Court of Appeal in England, but we see no reason to
doubt the jurisdiction of this Court to act in accordance with that practice, or
the expediency of doing so, in relation to appeals from the Supreme Courts of
the States.'
Their Honours do not appear to have been propounding an exhaustive test for leave
to appeal. The test propounded, in any event, must give way to the structure of
legislation and rules within which the court in question works: rights of appeal
depend on statute, not common law. The Supreme Court of New South Wales is in
part controlled by Pt 37 r 8, as expounded by authority since the time of
Cuthbertson's case. Section 101 of the Supreme Court Act and equivalent
provisions in other jurisdictions are construed in the light of more generous
standing tests such as whether persons are 'aggrieved' or 'sufficiently interested'.
(original emphasis)
26 First, Mr and Mrs Frigger submitted in effect that they are 'aggrieved'
or 'sufficiently interested', in the orders made pursuant to the primary
decision, to warrant the grant of leave to appeal. In this regard, Mr and Mrs
Frigger submitted that Simmonds J found, at [43] of the joinder decision,
that the applicants were 'directly affected by the costs of the action'.21 That
submission is wrong. At [43] of the joinder decision, Simmonds J said he
would proceed on the basis set out in [42] of his reasons. In [42] of his
reasons, Simmonds J made it plain that he was not deciding whether any
costs orders would have a direct effect on Mr and Mrs Frigger, but would
nevertheless proceed on that basis (in their favour) for the purposes of the
disposition of their application.
27 Secondly, the proper appellant is CAT and the time for filing an appeal
by CAT has expired. There was no evidence that Mr and Mrs Frigger either
sought and obtained the consent of the liquidator of CAT to bring the
application, or put the liquidator in funds to consider whether it was in the
interests of creditors to bring an appeal.
Conclusion
Costs
31 Finally, there was a question of costs which were sought by counsel for
the respondents. It was in the context that the form of the application was ex
parte, and the registrar's notice to attend was not sent to the respondents'
solicitors, although counsel said that his solicitors had been served with
some limited papers by Mr and Mrs Frigger. The respondents did not file
any affidavits or written submissions. Counsel was not invited to and did
not make any oral submissions at the hearing. Had the court formed the
view after hearing from Mr and Mrs Frigger that the application had any
prima facie merit, the court would likely have required a full set of papers to
be served on the respondents and made the usual directions for affidavits and
submissions in response. However, none of that was necessary. We
considered that in all the circumstances there should be no order as to costs.
______________________________________
1 Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 8] [2015]
WASC 166.
2 The history, outlined in this paragraph, is conveniently collected in, and taken from, Frigger v Professional
Services of Australia Pty Ltd [No 3] [2014] WASCA 69 [4], [6], [8], [11] - [13].
3 See Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA
183.
4 Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93 [4],
[5], [13], [20], [21].
5 Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93
[17] - [29].
6 Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183;
(2009) 261 ALR 179 (PSA [No 2]); Professional Services of Australia Pty Ltd v Computer Accounting and Tax
Pty Ltd [No 2] [2009] WASCA 183 (S)[21].
7 Primary decision [14] - [15].
8 Primary decision [5].
9 Primary decision [6].
10 Primary decision [19].
11 Primary decision [19].
12 Primary decision [20].
13 See Frigger v Professional Services of Australia Pty Ltd [2015] WASCA 3 [18].
14 Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 7] [2014]
WASC 360 [23]; Frigger v Professional Services of Australia Pty Ltd [2015] WASCA 3 [18].
15 Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 7] [2014]
WASC 360; Frigger v Professional Services of Australia Pty Ltd [2015] WASCA 3.
16 Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 7] [2014]
WASC 360; Frigger v Professional Services of Australia Pty Ltd [2015] WASCA 3.
17 Appeal CACV 118 of 2014.
18 Frigger v Professional Services of Australia Pty Ltd [2015] WASC 3 [38].
19 Witness v Marsden [2000] NSWCA 52; (2000) 49 NSWLR 429 [81].
20 cf Krishell Pty Ltd v Nilant [2006] WASCA 223; (2006) 32 WAR 540 [74].
21 Applicants' written submissions 06/08/15 par 10.