Frigger v Banning

1. Mrs and Mr Frigger have applied to review a taxation of costs where their liability for costs pursuant to court orders was taxed at $160,098.41. They challenge every item of the relevant bill of costs. They also seek to advance arguments to the effect that the lawyers involved were not entitled to indemnity in respect of their costs.
2. On 18 October 2024, orders were made requiring Mrs and Mr Frigger to provide security for costs of their review application in the amount of $10,000: Frigger v Banning (Application for Security for Costs on Review of Taxation) [2024] FCA 1207. Since then, the review proceedings have been stayed pending provision of that security.
3. Having regard to the failure to provide security, the respondents now seek orders to the following effect:

(1) The review application is dismissed.

(2) Mrs and Mr Frigger do pay the costs of the review application to be assessed on a lump sum basis.

(3) An amount of $60,000 provided pursuant to an order for security for costs made in the proceedings, be paid out to the solicitors for the respondents.

(4) Until further order, Mrs and Mr Frigger be required to obtain the leave of a judge before filing any further applications in the proceedings.

1. Orders were made for the parties to file submissions as to whether the orders should be made. Submissions have been filed by all parties. As there are no factual issues and the matters to be determined concern the application of established principles concerning the exercise of the discretion as to costs which have been addressed by written submissions, the determination of the matter would not be significantly aided by an oral hearing. Accordingly, I deal with the issue of costs on the papers.
2. The written submissions from Mrs and Mr Frigger are in the following terms:

The Applicants are not asking for the court to make a final decision about liability of the cost claimant to pay legal cost (Indemnity Principle).

The costs claimant rely for security for cost on the same evidence and arrangement that they relied on for the original bill of costs.

When the court ordered the Friggers' security for costs, the court had effectively already decided the main ground for review, that is, the arrangements do not contravene the indemnity principle.

In those circumstances, it is a pointless exercise to pay security for costs for a review that has already been decided against the Applicants.

The only right available to the Applicants is an appeal against the dismissal of the review application.

1. Mrs and Mr Frigger offer no explanation for their delay in providing security. They also make no submission as to why the amount of $60,000 which was paid as security for the costs of the respondents in the proceedings should not now be released to the solicitors for the respondents in circumstances where the respondents' costs pursuant to orders in the proceedings have been taxed in an amount that substantially exceeds the amount of $60,000. The relevant order was made on 13 April 2016 as varied by orders dated 24 June 2016.
2. Instead, Mrs and Mr Frigger submit that their 'main ground for review' concerning whether the indemnity principle has been met, has effectively already been decided by the Court. I do not understand the basis for that contention. In previous decisions in the proceedings I determined that, in this Court, a registrar acting as a taxing officer had authority to determine whether the indemnity principle was satisfied: Frigger v Banning (No 13) [2023] FCA 923. I also refused a subsequent application for orders setting aside orders made by the registrar as to the conduct of the taxation: Frigger v Banning (No 14) [2024] FCA 66. There are grounds raised in the application now brought to review the taxation which concern whether the indemnity principle has been met. They have not been determined. I observe that the taxation of costs is not a rehearing and issues arise as to the extent to which grounds can be advanced on the review of a taxation in the form in which they have been expressed by Mrs and Mr Frigger. However, it is not the case that the matters raised have been adjudicated. All that has been determined is that security should be provided before the review of the taxation proceeds.
3. In the circumstances, no proper basis is raised by Mrs and Mr Frigger as to why the orders sought by the respondents should not be made. There will be orders accordingly. As to the procedure for assessing the lump sum costs of the review of taxation, I will provide for a report by a registrar acting as a referee. Any ongoing issue as to whether the application of the indemnity principle means that there are no costs that can be recovered will be determined at the adoption hearing in respect of the referee report.
4. The order made on 4 September 2024 that '[u]ntil further order and save as provided in [those] orders no further documents shall be filed and served in these proceedings unless leave of the case managing judge has first been sought and obtained' will remain in effect.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.