Bahonko v Nurses Board of Victoria

The court has power to grant relief in the form that Mr and Mrs Frigger seek. Such an order is “exceptional” and ought not lightly to be granted: Kallinicos v Hunt (2005) 64 NSWLR 561, 582-3 [76] (Brereton J); Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd (2014) 228 FCR 252, 276 [97] (Beach J). In Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491 (“Bahonko”, Middleton J), this court recognised (at [3]) the need to be mindful that:

In Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501, Brooking JA (with whom Ormiston and Chernov JJA agreed) identified (at 521-5 [52]-[58]) the circumstances in which a court might order that a litigant’s preferred representative should cease to act in a matter. In Geelong School Supplies Pty Ltd v Dean (2006) 237 ALR 612 (“Dean”, Young J), this court (at 617 [24]) distilled his Honour’s observations into three categories, namely:

It might be accepted that the third of the three categories just referred to—the one upon which Mr and Mrs Frigger rely—is broad; and potentially broad enough to cover situations in which the subject matter of litigation is likely to involve an evaluation of the conduct of particular legal practitioners: Holborow v MacDonald Rudder [2002] WASC 265, [23] (Heenan J). Alternatively, it might cover situations in which a legal practitioner might feel compelled to justify or defend his or her conduct in representing a client, or where the practitioner’s credibility is at stake as a potential witness: Bowen v Stott [2004] WASC 94, [53], [55] (Hasluck J).

In Bahonko, Middleton J, speaking of the third ground that Young J described in Dean, observed (at [11]):

Presently, Mr and Mrs Frigger maintain that PSA’s continued representation by Eastwood Law would be improper because, as PSA’s, BHPL’s and Mrs Banning’s long-term lawyers, that firm has been materially entangled in factual controversies that the court will or might be called upon to consider. It is unnecessary that I should particularise those controversies or the conduct that Mr and Mrs Frigger attribute to Eastwood Law. It suffices to record that the firm is held up as having played central roles in what Mrs Frigger has previously described as a “criminal conspiracy” that has been waged over many years against her and her husband.

The contention is without merit and I reject it.

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

Mr and Mrs Frigger also suggest that an order restraining Eastwood Law from continuing to act in this matter for PSA is appropriate because of irregularities that they say have attended its retention (or, more broadly, the incorporation or continued operation of that corporate entity). For reasons that needn’t be explored, Mr and Mrs Frigger maintain that PSA does not have any shareholders or corporate officers and, as such, is incapable of retaining lawyers. It is unnecessary that I should venture any opinion about whether or not any such irregularities are apparent. It suffices to note two things. First, this is not the first time that Mr and Mrs Frigger have advanced a contention of that kind. So far as I am aware, it has never succeeded but nothing turns on that. The second and more significant point is that, to the extent that any such irregularity exists, it does not come close to warranting orders of the extraordinary kind for which Mr and Mrs Frigger now move. If, at some later juncture, the court has occasion to consider whether it is necessary to regularise anything that might be in need of regularising, or whether particular consequences might attach in light of such irregularity as is properly established, it can do that; and, no doubt, will do that, assisted by such submissions as the parties might be minded relevantly to advance.

Insofar as concerns BHPL and Mrs Banning, there is nothing in any of the material before me that might give cause for wondering whether their retention of Eastwood Law is anything other than orthodox. Mr and Mrs Frigger contend that, because no positive evidence of those retainers has been led, the court can infer that no such retainers have been agreed. That submission is inarguably wrong. In the absence of some positive evidence that establishes some basis for supposing that there is or might be something relevantly unorthodox about them, the court could not properly infer merely from BHPL’s and Mrs Banning’s failure to lead evidence of those retainers that, in fact, no retainers have been agreed.

The interlocutory application of 27 April 2026 should be dismissed, with the usual order as to costs.