AMB19 v Minister for Home Affairs

1. Pursuant to r 2.27(e) of the Federal Court Rules 2011 (Cth) the proposed interlocutory application by the plaintiffs received by the Registry on 20 January 2021 not be accepted for filing. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 These proceedings have now been on foot for over five years. For a time the proceedings were stayed by consent pending the outcome of other proceedings. After the stay was lifted, the plaintiffs, Mr and Mrs Frigger, sought to file a new and expansive statement of claim. The defendant, Mr Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liq) then brought an application for security for costs. On 7 May 2018 orders were made requiring Mr and Mrs Frigger to provide security for costs in the sum of $30,000 and for the proceedings to be stayed until provision of that security or further order. 2 It appears that security as required by that order was not provided, but the circumstances in which that failure arose may be contentious. Mr and Mrs Frigger are now bankrupts. Mr Kitay has brought an application to dismiss the proceedings on the basis that they have been abandoned by the trustee in bankruptcy or in the alternative by reason of the failure to provide security. The application is yet to be heard. It has been listed for hearing on 17 February 2021. 3 Mr and Mrs Frigger now seek to bring an application to vary the orders made on 7 May 2018 and to file an affidavit in support of that application. The documents have been brought to my attention as the case managing judge to consider whether they should be accepted for filing given the existence of the stay order. 4 Rule 2.27(e) of the Federal Court Rules 2011 (Cth) provides that a document will not be accepted for filing if the Court has given a direction that the document not be accepted. 5 Mr and Mrs Frigger were invited to provide any reasons as to why the affidavit and application should be accepted for filing given the existence of the stay. They say that they wish to rely on the affidavit in order to seek a short extension of the time for providing security. Orders to that effect are sought in the application. They also say that the application also seeks to challenge the underlying judgment that supported the sequestration order. These proceedings do not concern the making of that order. Therefore, it appears that the affidavit in part seeks to respond to the application by Mr Kitay and in part seeks to support a challenge to the judgment that provided the foundation for the sequestration order. 6 In circumstances where a hearing has been listed to consider whether the proceedings may be dismissed, any reasons as to why those orders should not be made (including any reason why the orders by way of security were not met) may be raised at that hearing. There will be an opportunity for Mr and Mrs Frigger to raise those matters at the hearing on 17 February. As they assert that the affidavit raises factual matters that respond to the application to dismiss, the affidavit should be accepted for filing. 7 However, I see no reason why the application should be accepted for filing in circumstances where any explanation for a failure to meet the order for security for costs can be advanced in answer to the application. If the application were confined to an application for an extension of time in which to comply with the order for security for costs then I would be inclined to allow such an application to be brought. However, the present proceedings do not concern whether a sequestration order should have been made against Mr and Mrs Frigger. It would be contrary to the stay of the present proceedings to allow such matters to be agitated as a basis for affirmative interlocutory relief in favour of Mr and Mrs Frigger. In particular, I can see no reasonable basis upon which Mr and Mrs Frigger should be allowed to raise issues concerning the judgment on which the sequestration order was obtained given the stay order that has been made. 8 In those circumstances, I am satisfied that the affidavit should be accepted for filing as an affidavit in opposition to the application to dismiss these proceedings, but that the interlocutory application should not. I will direct the Registrar pursuant to r 2.27(e) that the application not be accepted for filing. In doing so, I rely upon the views that I expressed in Frigger v Banning (No 10) [2019] FCA 1664, noting the further matters stated in AMB19 v Minister for Home Affairs [2020] FCA 439 at [63]. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.