Bell Wholesale Co Pty Ltd v Gates Export Corporation

Federal Court of Australia|2018-05-07|Before: Colvin J

Number of paragraphs: 41

Counsel for the Plaintiffs: The Plaintiffs appeared in person

Counsel for the Liquidator of Computer Accounting & Tax Pty Ltd (in liq): Mr DW John

ORDERS WAD 674 of 2015 IN THE MATTER OF COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQ) (ACN 009 470 491) BETWEEN: ANGELA CECILIA THERESA FRIGGER First Plaintiff

HARTMUT HUBERT JOSEF FRIGGER Second Plaintiff

MERVYN JONATHAN KITAY, LIQUIDATOR OF COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQ) Other

JUDGE: COLVIN J DATE OF ORDER: 7 MAY 2018

The plaintiffs do by 21 May 2018 pay the sum of $30,000 as security for costs by way of unconditional bank guarantee in that sum, or otherwise to the satisfaction of a Registrar of the Court.
The proceedings by the plaintiffs be stayed until provision of that security or until further order of the Court.
There be liberty to the liquidator to apply for further security after his defence has been filed and there has been a further case management hearing thereafter. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 These proceedings were commenced by Mr and Mrs Frigger in November 2015. At that time they sought orders bringing to an end the insolvent liquidation of Computer Accounting & Tax Pty Ltd (CAT). For a time, the proceedings were stayed by consent pending the outcome of other proceedings. Then, in December 2017, the stay was lifted and Mr and Mrs Frigger were given leave to amend the originating process to delete their original claim and seek instead the removal of Mr Kitay as liquidator and other orders including that Mr Kitay pay certain amounts to CAT and that he was not entitled to legal costs in various proceedings. Costs orders were made against Mr and Mrs Frigger in respect of the claims that were no longer pursued. 2 Since then, Mr and Mrs Frigger have filed an amended statement of claim. It runs to 166 paragraphs and raises nineteen separate complaints in respect of conduct by Mr Kitay acting as liquidator of CAT. 3 When the application for leave to amend was made, Mr Kitay foreshadowed an application for security for costs and that application has been brought promptly. It is opposed by Mr and Mrs Frigger. 4 For the following reasons, I am satisfied that an order for security for costs in the amount of $30,000 should be made with liberty to Mr Kitay to seek further security once a defence has been filed and there has been a further case management hearing in which the further steps to be taken to prepare the matter for a final hearing have been considered.

General principles 5 The Court may order an applicant to give security for the payment of costs that may be awarded against that applicant: s 56(1) of the Federal Court of Australia Act 1976 (Cth). The Court's jurisdiction in relation to security for costs is broad and unfettered and the outcome in each case must depend on its own circumstances: Bell Wholesale Co Pty Ltd v Gates Export Corporation (No 2) [1984] FCA 34; (1984) 2 FCR 1, 4 and Madgwick v Kelly [2013] FCAFC 61; (2013) 212 FCR 1 at [6]. On any application for security for costs the Court has a discretion that is to be exercised having regard to whether the interests of justice would be best served by making or refusing the order: Gentry Brothers Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) 8 ACSR 405, 411. 6 The jurisdiction to make an order for security is not limited by the terms in which the Rules of the Court as to security for costs may be expressed: Bell Wholesale at 3 applied in Commissioner of Taxation v Vasiliades [2016] FCAFC 170 at [71]. 7 Further, as was stated by Kenny and Edelman JJ in Commissioner of Taxation v Vasiliades at [72]: The purpose to be served by making an order for security for costs is to ensure that a successful respondent to a claim will have a fund available within the jurisdiction of the Court against which the respondent, if successful in defence, can enforce a judgment for costs in the respondent's favour. This purpose is, of course, relevant to an exercise of discretion. 8 An applicant may have access to funds from outside the jurisdiction or from a third party to enable the prosecution of a claim in Court. However, the problems that a successful respondent may face in enforcing a costs order obtained against the applicant due to difficulties or an inability to resort to that same source of funds has long been recognised as a significant factor that supports the making of an order for security for costs. 9 Many different considerations have been addressed in the cases as bearing upon the interests of justice in any particular case. Lists of matters that might be considered have been expressed: see, for example, Madgwick v Kelly at [7], Equity Access Ltd v Westpac Banking Corporation [1989] FCA 361 and Mecrus Pty Ltd v Industrial Energy Pty Ltd [2015] FCA 103 at [19]-[21]. However, the considerations are not a checklist of matters to be brought to account as part of the balancing exercise in every case. Whether a consideration has significance and, if so, the weight that it should be afforded will depend upon the particular circumstances of each case: PS Chellaram & Co Ltd v China Ocean Shipping Company [1991] HCA 36; (1991) 65 ALJR 642. 10 Where an applicant is an individual person then usually there must be some additional factor that is present beyond a concern as to whether a costs order will be met due to impecuniosity before an order for security for costs will be made. Examples were given by Lindgren J in Knight v Beyond Properties Pty Ltd [2005] FCA 764 at [33]. This approach reflects the concern that poverty should be no bar to access to the Courts.

The parties' contentions 11 The principal matters advanced in support of the application were: (1) the only source of funds available to meet any costs orders were held within a self-managed superannuation fund (alleged by Mr and Mrs Frigger to be 'in pension phase') of which Mr and Mrs Frigger were the only members and the Court could not enforce payment of costs orders from those funds; (2) there are a number of outstanding costs orders that have not been met by Mr and Mrs Frigger in other proceedings brought by them; (3) the approach of Mr and Mrs Frigger to costs orders in other cases shows the difficulty that will be posed for Mr Kitay in obtaining the benefit of any costs order that might be obtained if security was not granted; (4) there is a real risk that Mr and Mrs Frigger will be made bankrupt because they have failed to comply with a bankruptcy notice; (5) Mr and Mrs Frigger are not impecunious because they have access to substantial funds from their self-managed superannuation fund and there is no risk that the proceedings will be stultified if an order is made; and (6) in Frigger v Kitay [2016] WASCA 173 the Court of Appeal of Western Australia expressed the view that Mr and Mrs Frigger had registered mortgages in favour of H & A Frigger Pty Ltd over certain properties with the effect (and, it was open to infer, with the intention) of putting assets out of the reach of their creditors. 12 Mr and Mrs Frigger appeared in person. They filed written submissions. Mr and Mrs Frigger each made oral submissions. The principal submissions advanced as to why a security for costs order should not be made were: (1) the claim had merit and Mr Kitay had not addressed the merits of their claim; (2) security could only be ordered if it was shown that Mr and Mrs Frigger would not be able to meet any costs orders and that was not so because they had access to funds from their self-managed superannuation fund of which they were the trustees; (3) other cases in which they had been ordered to provide security for costs had arisen in different circumstances where it had been found that they would not be able to meet costs orders; (4) all outstanding costs orders that had been against them in other proceedings were under challenge; (5) otherwise, they had paid costs orders and had provided security in other cases; (6) although their application to set aside a bankruptcy notice had failed, they maintained that the bankruptcy notice was invalid and that was an issue that they would pursue on the hearing of the creditor's petition because they were entitled to go behind any judgment upon the hearing of the petition; (7) concerns expressed by the Court of Appeal of Western Australia about whether they had taken steps to put assets out of the reach of their creditors had been dealt with by Justice Martino in the course of a means inquiry and had been disproved; (8) the basic rule that a natural person who sues will not be ordered to give security however poor should be applied; (9) the application for security for costs was being pursued by Mr Kitay as a strategic device; and (10) there was no valid and enforceable costs agreement between Mr Kitay and the solicitors acting on his behalf in this matter and any order for security for costs would offend the indemnity principle whereby costs orders could only be made where an actual liability to pay costs had been incurred.

Reasons why security should be ordered 13 First, there is evidence before me of a number of costs orders against Mr and Mrs Frigger that are unpaid. In the course of oral submissions, Mrs Frigger gave explanations to the effect that the orders were being challenged in various ways and that was why they had not been paid. The challenges that she described were not by way of appeal or review as part of a process of taxation nor were they applications for orders suspending enforcement of the order to pay costs. Rather, they were attacks that have been raised in further Court proceedings. They include claims of fraud and conspiracy by lawyers that are said to infect the orders. Before me, these claims were stated in general terms. Some claims of that kind are advanced in proceedings in this Court. In that regard, Mr and Mrs Frigger have been found by Siopis J in one matter to have brought proceedings that comprise a collateral attack on the decisions and orders of the Court of Appeal of Western Australia and are an abuse of process: Frigger v Banning [2017] FCA 1589 at [11]. It is rare for collateral attacks to Court orders to be upheld. Whilst these claims are yet to be adjudicated, their nature and number gives rise to a serious concern that they are part of a course of conduct whereby the obligations under costs orders are not accepted by Mr and Mrs Frigger. This behaviour by Mr and Mrs Frigger in respect of a number of different cost orders in different proceedings provides substantial support for the application. 14 Second, in their written submissions, Mr and Mrs Frigger claimed that the test to be applied on the application for security for costs was whether they would be unable to pay Mr Kitay's costs if so ordered. They maintained that they would be able to pay the costs from their self-managed superannuation fund. There are two problems with this submission. First, for reasons I have given, the test to be applied is not confined in the manner submitted. Second, the submission discloses that these proceedings are being funded, where necessary, from the superannuation fund. The amended application states that it is brought by Mr and Mrs Frigger in their personal capacities. Doubt attends whether the Court could order monies from the superannuation fund to be deployed to meet any costs order. Therefore, release of superannuation funds to meet liabilities of Mr and Mrs Frigger under cost orders of this Court may depend upon their willingness to release funds for that purpose. Their behaviour in relation to other costs orders gives rise to a significant risk that this will not occur. Further, when I asked Mrs Frigger what the Court could do if funds were not released from the superannuation fund to pay costs orders she said that the Court's option would be to order the bankruptcy of Mr and Mrs Frigger. This approach reinforces the concerns that Mr Kitay advances in support of his application. 15 Third, Mr and Mrs Frigger maintain that the current level of their debt to H & A Frigger Pty Ltd is $2,450,000, which is secured by mortgages over three properties which were worth a total of $3 million. So, they submitted, there was overall equity of about $450,000 available to meet any costs orders. There were a number of problems with this position. First, it is based upon Mrs Frigger's own assessment of the value of the three properties. Second, one of the properties was their home in Applecross which was registered in their names and which they said was held by them personally. However, the other two properties the subject of the mortgage are alleged by them to be assets of their superannuation fund. On Mrs Frigger's own calculations the amount due under the alleged loan is more than the value of the Applecross property. Third, there is no explanation as to how there can be a borrowing by Mr and Mrs Frigger secured over assets of their superannuation fund. Fourth, there are difficulties associated with effecting the sale of a property the subject of a prior registered mortgage. Fifth, the terms of the mortgages do not restrict further lending to H & A Frigger Pty Ltd and Mrs Frigger explained in oral submissions how the lending had been much higher in the past. The mortgage over the Applecross property is expressed to secure $2,500,000. The mortgages over each of the other two properties are expressed to secure $800,000. Therefore, the mortgages together secure an amount of up to $4,100,000 in favour of H & A Frigger Pty Ltd. So, by the time that there may be resort by Mr Kitay to the property to meet any costs order, the amount secured under the mortgage may be much more than it is said to be at the present time. 16 Fourth, in Frigger v Kitay [2016] WASCA 173 the Court of Appeal of Western Australia found that on the evidence then before the Court, certain mortgages were registered with the effect (and in circumstances where it was open to infer with the intention) of putting assets out of the reach of Mr and Mrs Frigger's creditors. Those mortgages were the mortgages granted to H & A Frigger Pty Ltd. The submissions by Mr and Mrs Frigger claim that such matters were 'disproved' in the course of a means inquiry conducted by Justice Martino of the Supreme Court of Western Australia. The nature of a means inquiry is that there is no adjudication of particular claims or determination of the merits. So, this could not be a basis upon which the Court of Appeal's view might be disputed. 17 The evidence before the Court on the present application showed that the mortgages were dated 1 July 2012. The mortgagee in each case is H & A Frigger Pty Ltd. The mortgages were not lodged for registration until 22 May 2014. They were lodged by Mrs Frigger personally. On 4 April 2014, Mrs Frigger had lodged a change of company details form for H & A Frigger Pty Ltd which stated that Mr and Mrs Frigger were originally the shareholders of H & A Frigger Pty Ltd but on 1 July 2012 they transferred their shares to Wolfgang Popitz and Helgaq Popitz. Before me, they were said to be relatives of Mr Frigger. They were said to have arranged an overseas loan for Mr and Mrs Frigger when they could not raise funds in Australia because CAT was placed in administration. It was also said that H & A Frigger Pty Ltd had been the vehicle by which Mr and Mrs Frigger had raised funds in the past to purchase properties. It was not explained why, as part of the alleged arrangements in 2012, it was necessary for there to be a transfer of the shareholding in H & A Frigger Pty Ltd. These facts, in the overall context of the history of the proceedings at the time, support the conclusion by the Court of Appeal. 18 Fifth, the written submissions advanced by Mr and Mrs Frigger in opposition to the application display an unwillingness to accept the judgments of this Court. In Frigger v Banning [2016] FCA 359, Barker J ordered the payment of security for costs by Mr and Mrs Frigger. They describe that decision as being based on 'actual bias'. In Frigger v Kitay [2017] FCA 1278, Siopis J refused an application by Mr and Mrs Frigger to set aside a bankruptcy notice based upon an unpaid indemnity costs order for $61,000.42. Despite that decision they describe the bankruptcy notice as invalid and say that Justice Siopis failed to consider evidence of invalidity which came to light and was provided to the Court after the decision was reserved. 19 Sixth, Mr and Mrs Frigger submit that they have assets worth in excess of $26 million of which $8 million are said to be liquid assets and an annual income of $1.2 million. However, it appears that these are references to amounts held in the self-managed superannuation fund which they claim they are able to use to meet any costs orders made against them personally because the fund is being administered in a pension phase. Nevertheless, it is clear that the position of Mr and Mrs Frigger is that they have access to funds and therefore no issue arises as to whether a costs order will stultify the present claim. 20 Seventh, Mr and Mrs Frigger have pursued numerous claims in three courts - this Court, the Supreme Court of Western Australia (including a number of appeals to the Court of Appeal) and the Magistrates Court of Western Australia. Many of the claims appear to stem from one original dispute. The history was summarised by Siopis J in Frigger v Banning [2017] FCA 1589 at [20]-[67]. The propensity for Mr and Mrs Frigger to bring claims that are ultimately unsuccessful is revealed by that review, which his Honour observed was an outline that 'refers only to some of the litigation in the Supreme Court in which [Mr and Mrs Frigger] have been involved': at [67]. There have also been a number of decisions made refusing applications by Mr and Mrs Frigger in this Court. 21 Taking each of these matters together there is very substantial support for the concern raised by Mr Kitay that the history of litigation by Mr and Mrs Frigger shows the difficulty that would be posed for Mr Kitay in obtaining the benefit of any costs order that might be obtained if security was not granted. This is a compelling reason for ordering security notwithstanding that the proceedings are brought by Mr and Mrs Frigger personally. In my view, these matters provide the necessary 'additional factor' beyond a concern as to whether a costs order will be met due to a lack of funds in the personal names of Mr and Mrs Frigger to justify an order for security for costs. There is a real risk of injustice to Mr Kitay if security is not ordered. The risk of injustice to Mr and Mrs Frigger is not significant given the extent of funds available to them and the relatively modest amount of security sought when compared to those funds. For the following reasons, other matters raised on the application do not outweigh the significance of the above matters.

Merits of the claim by Mr and Mrs Frigger 22 The relevance of the merits of the principal claim on an application for an order for security for costs were considered by Murphy J in Mercus Pty Ltd v Industrial Energy Pty Ltd. The approach to be adopted is shown by the following passage at [41]-[43]: There is no issue as to whether the applicant's claims are bona fide and the only question concerns the strength of its claims. The authorities provide that where the claims in a proceeding are prima facie regular and disclose a cause of action the Court may assume the case has reasonable prospects of success: see Fencott at 514; KP Cable at 197; Australian Equity Investors, An Arizona Limited Partnership v Colliers International (NSW) Pty Ltd [2012] FCAFC 57 at [15] per Jacobson, Besanko, and Perram JJ. The respondents do not contend that Mecrus' claims are not regularly made, or that they do not disclose a cause of action. On this basis I may assume the case has reasonable prospects of success. The authorities show that the Court is not obliged to assess the merits of the claims at length as to do so would ordinarily be a waste of resources: Impex Pty Ltd v Crowner Products Ltd (1994) 13 ACSR 440 at 441 per Pincus JA. Some authorities indicate that the Court should not go into the merits of a claim in detail unless it can be clearly demonstrated that there is a high degree of probability of success or failure: Keary Developments Ltd v Tarmac Construction Ltd and Another [1995] 3 All ER 534 at 540 per Gibson LJ; Porzelack KG v Porzelack (UK) Ltd [1987] 1 All ER 1074 at 1077 per Sir Nicholas Browne-Wilkinson V-C; Harrop Engineering at [8]. Counsel for the respondents submits that the Court should not make any assessment of the strength of the claims at this preliminary stage. I do not accept this contention. Whether an attempt should be made may well depend upon the complexity of the case, but it is common for the court to undertake a preliminary assessment of the strength of the applicant's claim in considering a security for costs application. As Finkelstein J said in Bray v F Hoffman-La Roche Ltd and Others [2003] FCAFC 153; (2003) 130 FCR 317 at [252], 'the court should not shy away from undertaking a preliminary evaluation of the merits. That task is not as difficult as it might seem.' 23 Submissions were made for Mr Kitay on the present application on the basis that the allegations by Mr and Mrs Frigger in their amended statement of claim are not hopeless and are not a sham. Mr and Mrs Frigger sought to rely upon the alleged strength of their claim and its seriousness as a reason why security should not be granted. The allegations made in the amended statement of claim are very serious. They allege, amongst other things, fraud, the inclusion of fictitious amounts in the books of CAT, breach of duty to provide accurate information to ASIC, the making of false or misleading statements and failure to perform responsibilities as liquidator. However, as I have already noted, the amended statement of claim is long and raises 19 separate contentions. It is a document that has not been prepared by counsel. The form in which the document has been expressed means that the merits of the claims are not readily capable of assessment. However, what can be seen from a review of a number of the many decisions that have been delivered by the courts hearing claims brought by Mr and Mrs Frigger is that many of those claims have been unsuccessful with the consequence that there have been costs orders made against them that have not been met. 24 It is understandable in that context that Mr Kitay, at this stage of the proceeding, does not wish to incur the costs that would be associated with preparing to argue the merits of the claim. Such a course would expose him to the quite likely prospect, given the history I have explained, of incurring costs that would be the subject of a costs order that would then be disputed in further litigation. However, I do have reservations about making an order for security for costs of the kind sought, which would include security for a final hearing, before a defence has been filed setting out the nature of the defence to the claims made and without making any assessment of the merits. Given the serious nature of the claims, at this stage I would only be willing to make an order for security to enable a defence to be filed, for an evaluation of the nature and extent of the forensic tasks required to be undertaken for a final hearing and for attendance at a case management hearing to determine the manner in which the case should proceed. This approach will enable the amount of any further order for security to be made having regard to the specific case management steps expected to be undertaken. 25 As I have noted, this is not a case where there is any basis to claim that an order for security would stultify the proceedings. Therefore, having regard to the matters I have already addressed and the extent of the order that I propose to make, in my view, the nature of the allegations made are not a reason for refusing to grant the application for security.

The indemnity principle 26 It is well established that a party who does not have a liability to the party's solicitor cannot recover costs against the unsuccessful party to the litigation: Noye v Robbins [2010] WASCA 83 at [296], [380], [382]. The indemnity principle requires that there be a legal liability on the part of the party seeking the costs order to pay costs to the party's lawyer: Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474 at [45], [126]. Whether a costs agreement falls foul of the indemnity principle depends ultimately on the content and construction of the costs arrangements between the lawyer and the client seeking the costs order from the other party to the litigation: King v King [2012] QCA 81 at [13]-[14] and Wentworth v Rogers at [66], [133] (Basten JA), cf [54] (Santow JA), (Hislop J agreeing with both). 27 Terms of engagement prepared by the solicitors acting for Mr Kitay in respect of these proceedings were before me on the application. Mr and Mrs Frigger submitted that those terms were unenforceable and therefore an order for security for costs could not be granted because Mr Kitay had not established that he had any liability for costs. Three matters were raised. 28 First, it was said that the address of Mr Kitay had not been correctly stated. This is not a matter that would affect the legal liability under the terms of engagement 29 Second, it was said that the copy of the terms of engagement was not signed by Mr Kitay and therefore under s 259(5) of the Legal Profession Act 2003 (WA) it was not enforceable. Section 259(5) deals with the formal requirements of a written agreement where Part 10 of the Act applies for a period in respect of legal costs and a corresponding law applies for another period and the parties are making an agreement to the effect that a particular law will apply. It is not relevant for present purposes. 30 Under the Legal Profession Act, a costs agreement must be written or evidenced in writing: s 282(2). It may consist of a written offer in accordance with s 282(4) that is accepted in writing or by conduct. Section 282(4) requires that the offer must clearly state that it is an offer to enter into a costs agreement, that the offer can be accepted in writing or by other conduct and the type of conduct that will constitute acceptance. The terms of engagement relied upon by Mr Kitay as recording his liability for costs meets these requirements. In particular it specifically states that it may be accepted by continuing to instruct the solicitors. Plainly, that has occurred in this case. 31 Third, it was suggested that there was a basis to conclude that there was no liability on the part of Mr Kitay to pay because the solicitors had agreed to only be paid as to these proceedings out of costs recovered from Mr and Mrs Frigger. There was no evidence to support that submission. I say nothing about the separate claim that this is the position in respect of costs in other proceedings.

Risk of bankruptcy 32 Mr Kitay also submitted that as there are proceedings on foot for sequestration orders against Mr and Mrs Kitay that was a further reason why security should be ordered. As the bankruptcy proceedings are contested, I do not bring that matter to account in ordering security.

Strategic device 33 It was also submitted by Mr and Mrs Frigger that the application was being used as a strategic device contrary to the Costs Practice Note (GPN-COSTS) of the Court. Having regard to the matters that I have summarised there is a proper basis for the application and, in those circumstances, there is no basis for the submission.

Nature and extent of security sought 34 Mr Kitay seeks security in an amount of $25,000 to be paid within three days, a further $25,000 14 days before a foreshadowed application for summary judgment by Mr and Mrs Frigger is listed, a further $25,000 seven days before discovery and a further $200,000 one month before the matter is listed for final hearing. 35 As to the foreshadowed application for summary judgment, I have made directions for Mr and Mrs Frigger to file written submissions showing cause why I should entertain such an application in the circumstances of this case. In that regard, I note in particular the fact that these proceedings have been on foot since November 2015, their direction has been substantially changed as a result of action by Mr and Mrs Frigger and the nature of the allegations in the proceedings are of a kind that do not appear to lend themselves to an application for summary judgment. Once those submissions have been received and there have been responsive submissions on behalf of Mr Kitay it will be necessary for me to consider, as a matter of case management, whether to entertain the application for summary judgment. Therefore, the second of the proposed tranches of security relates to an application that may or may not proceed. 36 For reasons I have given, I am not prepared to order security in that form. I will make a more limited order for security on the basis that it is a first tranche and a further application can be made after a defence has been filed and there has been a case management hearing to determine how best to move this matter to a final hearing. I will then be in a position to make a better assessment as to an appropriate quantum if I am then persuaded that a further order for security for costs should be made. 37 In the course of the hearing before me no issue was raised concerning the quantum of the security sought. I consider $30,000 to be an appropriate amount of security for an initial tranche.

Further submissions 38 After the hearing, my associate received an email from Mrs Frigger seeking leave to rely on additional written submissions attached to the email. She claimed in the email that counsel who appeared for Mr Kitay had made unnecessary and irrelevant oral submissions that had occupied most of the two hour limit for the hearing. That statement is not correct. 39 Mrs Frigger commenced making submissions at about 12 noon in a matter that commenced at 10.45 am. At that time I indicated that I would allow until 1.00 pm for submissions which took the matter beyond the scheduled completion time of 12.45 pm. Submissions by Mrs Frigger were followed by short submissions from Mr Frigger. They used the allocated time of one hour. There were then further exchanges including further submissions by Mrs Frigger which took the matter to 1.15 pm or thereabouts. Given (a) the nature of the application; (b) the opportunities already afforded to make written submissions; (c) the need to keep the time in some proportion to the nature of the issue being determined; (d) the need to meet the demand of other litigants; (e) the fact that, in the view I have formed, the present application deals only with a liability to provide $30,000 by way of security and there will need to be a further hearing to deal with any additional security; and (f) the extent of financial resources at the disposal of Mr and Mrs Frigger which mean that the requirement to pay $30,000 should not be a significant financial burden to them, I decline the application for leave to rely on additional written submissions. 40 After that my associate received an email from solicitors acting for Mr Kitay. It referred to a further decision delivered by this Court in other proceedings brought by Mr and Mrs Frigger. It made some short additional submissions. 41 Communication to the Court in respect of cases of which counsel becomes aware after a decision has been reserved should be confined to informing the Court of binding authority or authority decided by an Australian appellate Court or legislation which counsel believes is directly in point. The communication should be confined to a reference to the name of the authority and its citation or the identification of the particular statutory provision. No further matter should be stated. If the party wishes to seek to make further submissions then a request should be made to the Court to relist the case for further argument or for leave to file further written submissions. These requirements ensure that there is finality in argument of a characteristic that is necessary in the interests of fairness and due administration of justice. Accordingly, I have not taken the further communication from the solicitors acting for Mr Kitay into account. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.

Legal Profession Act 2003(WA)ss 259(5), 282(2), 282(4)

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