Frigger v Banning [2025] FCA 535

Federal Court of Australia|2025-05-23|Before: McDonald J

For the reasons I have given, it is appropriate to exercise the discretion to make an order requiring the Friggers to provide security for the respondents' costs of the Friggers' application for leave to appeal against the Security Judgment. The respondents should not be required to respond to the Friggers' application for leave to appeal without costs protection.
I am conscious that, if I order that the Friggers provide security for costs on the application for leave to appeal, it is possible that they might then seek leave to appeal against that order, just as they have sought leave to appeal against the orders made by Colvin J in the Security Judgment. This presents the spectre of an endless cycle of orders for security for costs and applications for leave to appeal from orders for security for costs. That is obviously unattractive, but it provides no reason to decline to order that the Friggers provide security for costs where the respondents have applied for security and I have otherwise determined that it is appropriate that it be provided. In circumstances where there are already substantial costs orders standing against the Friggers in favour of the respondents, the respondents should not be required to respond to further applications by the Friggers without an assurance that any further costs orders in their favour will be practically capable of being enforced.
I note that the Friggers object to [4] of the affidavit of the respondents' solicitor filed on 24 January 2025. I make it clear that I have not had regard to the contents of that paragraph.

... I do not agree that I can make orders in relation to a proceeding not yet commenced. In my view, applications for security in relation to the appeal are premature and the Court does not have power to make such an order in the circumstances of this case. The appropriate time for [respondents to an application for leave to appeal] to seek an order in relation to security for costs of the appeal is once a notice of appeal is filed, should leave be granted.

The respondents did not develop any argument in relation to the question of whether the power of the Court to order an applicant for leave to appeal to provide security for costs extends to ordering security for the costs of the potential appeal as well as the application for leave to appeal itself. For the purposes of the present application, I proceed on the basis that the Court, at this stage, should only order that the Friggers provide security for the costs of the application for leave to appeal (including the costs of the present application for security for costs).
I accept that the Friggers are highly litigious and that the future course of the proceedings is not predictable. I am satisfied that the estimates of the respondents' solicitor in relation to the time required to respond to the application for leave to appeal (excluding the costs of any future appeal) appear reasonable. Based on the scale provided for in Schedule 3 of the Federal Court Rules, the relevant estimated costs are $12,740.
The Friggers submit that a requirement that they provide security in any amount greater than $3,000 would "effectively terminate" their appeal, and that this would be contrary to the principle that "poverty should be no bar to litigation". There is no evidence in support of this assertion. The evidence before the Court is that the Friggers are able to access assets in their superannuation fund. Should they not proceed with their application for leave to appeal, that will be due to their decision not to provide security for costs, not poverty.
Applying a broad brush, I consider it appropriate to fix the amount of the security at $11,000. The security should be provided by way of payment of money into court or by way of an unconditional bank guarantee, and not merely by way of an undertaking as the Friggers submit; that is the most appropriate way to ensure that any costs order made against the Friggers will be satisfied.

I will order that the Friggers provide security for costs in the amount of $11,000. The respondents having been successful on their application for security for costs, which the Friggers opposed, the Friggers should pay the respondents' costs of that application.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McDonald.

PROFESSIONAL SERVICES AUSTRALIA PTY LTD (ACN 082 879 641)

Court of Australia Act 1976

Profession Uniform Law Application Act 2022

Profession Uniform Conduct (Barristers) Rules 2015

Profession Uniform Law Application Act 2014

Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317; [2003] FCAFC 153

Burgess v Centrelink (2007) 159 FCR 500; [2007] FCA 595

Croker v Deputy Registrar of the High Court of Australia [2003] FCA 628

Dye v Commonwealth Securities Ltd [2012] FCA 992

eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (2015) 90 NSWLR 451; [2015] NSWCA 284

Federal Commissioner of Taxation v Vasiliades (2016) 344 ALR 558; [2016] FCAFC 170

Frigger v Banning [2024] FCA 1207

Frigger v Professional Services of Australia Pty Ltd (No 6) [2024] FCA 1320

Gentry Brothers Pty Ltd v Wilson Brown & Associates Pty Ltd [1992] FCA 592; (1992) 8 ACSR 405

Hancock Prospecting Pty Ltd v Hancock (No 3) [2016] WASC 423

Knight v Beyond Properties Pty Ltd [2005] FCA 764

Madgwick v Kelly (2013) 212 FCR 1; [2013] FCAFC 61

Nationwide News Pty Limited v Rush [2018] FCAFC 70

Oswal v Federal Commissioner of Taxation [2015] FCA 1366

Patdith Services Pty Ltd v Mitronics Corporation Pty Ltd [2016] FCA 1315

Tait v Bindal People [2002] FCA 322

Tran v Commonwealth (2009) 111 ALD 111; [2009] FCA 921

Mrs and Mr Frigger are prodigious litigants in this and other courts over two decades. In most instances, they have conducted the proceedings as litigants in person. Much of it has involved the respondents in some way.

The genesis for the litigation conducted by Mrs and Mr Frigger was described by the Court of Appeal in Western Australia in Frigger v Professional Services of Australia Pty Ltd [No 2] [2016] WASCA 68 and Frigger v Professional Services of Australia Pty Ltd [2022] WASCA 119. The latter is a decision in which security for costs was ordered to be paid by Mrs and Mr Frigger in respect of an appeal brought by them against some of the respondents and others (including counsel for the respondents in these proceedings).

In 2018, sequestration orders were made in respect of the estates of Mrs and Mr Frigger: Kitay, in the matter of Frigger (No 2) [2018] FCA 1032. Those estates are still being administered by their trustee in bankruptcy. However, they have been discharged from bankruptcy.

The bankruptcy of Mrs and Mr Frigger arose from their failure to pay costs in earlier court proceedings in an amount of about $61,000. The petition was supported by other creditors who claimed to have unpaid costs orders against Mrs and Mr Frigger. One of the matters advanced in opposition to the application for sequestration orders (and not accepted) was alleged fraud in the conduct of the taxation fixing the amount of costs due pursuant to those orders.

There have been very substantial proceedings heard and determined by this Court as to the extent of the property being administered by the trustee in bankruptcy of the estates of Mrs and Mr Frigger: Frigger v Trenfield (No 10) [2021] FCA 1500; Frigger v Trenfield (Application for Stay Pending Appeal) [2021] FCA 1605; Frigger v Trenfield (No 3) [2023] FCAFC 49 and Frigger v Trenfield (Application for Release from Undertaking) [2023] FCA 1284.

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