Evaluation
33 To repeat, the task of the court on judicial review is not to substitute its own view about whether the documents were frivolous or vexatious on their face for the view of the respondent. The task is to decide whether the respondent's state of satisfaction that they were frivolous or vexatious was reasonably open, or whether any error of law is evident from the fact that he did reach that state. Despite some innuendo in Mrs Frigger's submissions filed in this proceeding, she makes no clear allegation that the respondent's state of satisfaction was not genuine and there is no basis to think that it was not.
34 It is evident from the description given above that there are many bases on which the respondent could reasonably have concluded that claims made in the documents were frivolous or vexatious. The following is a non-exclusive list of views that were open to the respondent to form on the face of the documents:
(1) In part, the claim purports to be based on contraventions of s 445C(c), s 459P and s 472 of the Corporations Act. But none of these provisions are capable of being contravened. The first simply takes effect if certain events specified in a DOCA occur. The second authorises certain persons to make a winding up application and the third grants a power to the court to order winding up. The fact that these provisions cannot be contravened undermines both the claim against PSA as alleged primary contravener and the claims against the other defendants for involvement in the contraventions.
(2) Section 471A of the Corporations Act, in contrast, was logically capable of being contravened. But it does not follow that there is a coherent and arguable claim for relief based on that provision in the documents lodged here. For one thing, the basis of the application is said to be s 1324 of the Corporations Act. That provision empowers the court to grant injunctions against persons who have engaged, are engaging or are proposing to engage in contraventions of the Act. Even if the sections mentioned in the preceding item were capable of being contravened, the contraventions in question are said to have happened in 2009. Despite the breadth of the power to grant injunctions in s 1324, it was open to the respondent to conclude that to seek an injunction based on conduct that occurred over a decade ago is frivolous or vexatious.
(3) There is a claim that Mrs Banning executed DOCAs as a director of PSA when she was not a director. But the only evidence of the latter fact is a current company search which states 10 May 2016 as the date on which she became a director. As a current search only, in circumstances where PSA was previously under external administration for a time, it alone cannot establish that Mrs Banning was not a director of PSA in 2009.
(4) The standing of the Friggers to claim a declaration that PSA's DOCAs were never effective or terminated, so that PSA entered winding up in 2009, is also unclear. While CAT may have been a creditor of PSA at that point, it would appear that the Friggers, in their personal capacity, were not.
(5) The claim for malicious prosecution stated in the affidavit is incoherent. While it appears to be based on the criminal prosecution, it seems also to be comprised, somehow, by the seeking of the freezing orders in the Supreme Court of Western Australia and the appeals to the Court of Appeal. Whether those civil proceedings are also the bases for separate torts of malicious prosecution is not clear.
(6) Assuming they are, it is an open question as to whether a claim can be made for malicious prosecution of civil proceedings of that kind: see Perera v Genworth Financial Mortgage Insurance Pty Ltd [2019] NSWCA 10 at [15]. But even allowing for that possibility, the claim for malicious prosecution faces significant difficulties. The elements of the tort are (A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 at [1]):
(a) that proceedings of the kind to which the tort applies were initiated against the plaintiff by the defendant;
(b) that the proceedings terminated in favour of the plaintiff;
(c) that the defendant, in initiating or maintaining the proceedings acted maliciously; and
(d) that the defendant acted without reasonable and probable cause.
Even if it is assumed that the defendants here 'initiated' the DPP's criminal prosecution (as to which see Lee v Abedian [2016] QSC 92; [2017] 1 Qd R 549 at [107]-[108]), they can hardly be said to have done so without reasonable and probable cause when the prosecution was based on a referral from the Court of Appeal. To the extent that the claim is for malicious prosecution of the appeals, those appeals were all decided against the Friggers, so the second element above is not satisfied in those cases.
(7) The various claims for malicious prosecution have no real connection with the purported claims under the Corporations Act. The lawyers who are alleged to have committed the tort(s) could have done so regardless of whether PSA was in liquidation and regardless of whether Mrs Banning was a director of PSA authorised to instruct them on the company's behalf. So the tortious claims are not part of the same 'matter' as the Corporations Act claims, meaning that this court has no jurisdiction over the former: see Fencott v Muller (1983) 152 CLR 570 at 603, 608.
(8) The orders sought to prevent the enforcement of various costs orders made in the Supreme Court, or for the repayment of money paid out pursuant to orders, and for Mr Lenhoff to pay the costs of proceedings in which the Friggers were unsuccessful, are collateral attacks on orders made by that court and an abuse of process: see Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 at 31. In substance they are attempts to re-litigate in this court matters which have already been decided in the Supreme Court.
(9) The same may be said of the attempt to impugn or claim damages for the winding up of CAT by order of the Supreme Court.
(10) The same may be said of the attempt to reverse or seek damages for what appears to have been costs orders, and security for costs orders, that were made in this court in WAD 607 of 2015. The fact that those orders were made in the same court as the proposed proceeding does not improve that aspect of the claim.
(11) The attempt to impugn the means inquiry conducted in the Supreme Court also appears on its face to be an abuse of process. Even if that proceeding did not result in any final determination, it was a proceeding conducted in and under the supervision of that court and it is vexatious to question the conduct of that proceeding some six years later in this court.
(12) It is not clear how the allegations that Mr Lenhoff made disparaging comments about Mrs Frigger, leading lawyers to withdraw their services, give rise to any of the relief sought.
35 I would add that it requires a generous approach to the logical coherence of the claims even to be able to comprehend them enough to reach the views expressed above. It will be apparent from the description of the claims I have given above that the way they are said to give rise to liability on the part of the proposed defendants is unclear.
36 With respect, the written submissions filed by Mrs Frigger in this application for judicial review do not advance matters. If anything, they make it even clearer that the main purpose of the proposed proceeding is to re-litigate issues that have already been finally decided against the Friggers in courts of law. For example, the submissions claim that the statutory demand which led to the winding up order against CAT is void. But even if it was, the order was made, and on the face of things it would be deleterious to the administration of justice to permit the basis of the order to be questioned in a different court, over 10 years later.
37 The submissions also cast further doubt on the coherence of the claims the Friggers would make if the lodged documents were to be accepted for filing. For example, they say that the liquidation and provisional liquidation of CAT, proceedings terminating unsuccessfully from the Friggers' point of view, were nevertheless 'malicious prosecutions', an element of which is that the relevant proceeding has terminated in the plaintiff's favour.
38 Of course, the respondent did not have those submissions and could not act on the basis of anything other than what appeared on the face of the documents: see Frigger v Trott at [38]. So the submissions cannot be relied on to support any conclusion that his decision was legally effective. But they do not shed light on the claims made in the lodged documents in such a way as to dispel the concerns listed non-exhaustively above.