FRIGGER -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [No 3] [2025] WASC 258 (30 June 2025)

1. In the Reasons, I set out the basis on which I was satisfied that there should be a stay in the inherent jurisdiction of the court. In essence, I concluded that these proceedings raised the same or substantially the same causes of action and subject matter as earlier proceedings where the plaintiffs had failed to satisfy outstanding costs orders.[4] The similar causes of action were not limited to the plaintiffs' claims as against the fourth to sixth defendants but extended to their claims against all defendants.
2. As noted in the Reasons, the earlier proceedings also involved a claim by the plaintiffs against the first and second defendants, and the fourth to sixth defendants. In the proceedings before Master Sanderson, all defendants sought and obtained orders for summary judgment, as well as orders that the plaintiffs pay their costs of the application. The plaintiffs appealed that decision and were ordered to pay security for the costs of the appeal of the fourth to sixth defendants. Pending payment into court, the appeal against all respondents was stayed.[5] When the plaintiffs failed to pay this amount into court, the appeal against all respondents was dismissed.
3. The court will order a stay of proceedings to prevent an abuse of its processes. In my view, it would bring the court's processes into disrepute to allow the plaintiffs to continue with these proceedings against any of the defendants without first complying with the court's previous orders in relation to proceedings against these same defendants raising substantially the same causes of action. This is particularly the case when, at present, the only active parties in the proceedings are the fourth to sixth defendants. In the circumstances of this case, I consider that the continuation of the proceedings without, in effect, a contradictor where there are outstanding costs orders in relation to proceedings raising substantially the same causes of action and subject matter, would be an abuse of the court's process.
4. This outcome is not, as the plaintiffs contend, 'unjust, unnecessary and inconsistent with the plaintiffs' right to pursue a legitimate cause of action'.[6] It simply requires the plaintiffs to first comply with orders previously made by the court before these claims can be pursued.

1. The court has a wide discretion in relation to the costs order that can be made.[7] While this discretion is broad, it is not unfettered and must be exercised judicially.[8]
2. The general rule is that costs should follow the event; that is, the successful party should recover their costs from the opposing party. The rationale for this general rule is that where a party has unjustifiably brought another party before the court, that party should be liable to compensate the other in costs.[9]
3. It is incumbent on an unsuccessful party to satisfy the court that there are good reasons it should not pay the successful party's costs.[10] As was noted by the Court of Appeal in Strzelecki Holdings Pty Ltd v Jorgensen:[11]

What constitutes 'success' in proceedings is to be determined by the reality of the circumstances involved in the case. The Court may depart from the general rule that costs follow the event and modify a costs order to take into account matters such as any unreasonable conduct of a generally successful party, or to the failure of that party on one or more specific issues. The exercise of the discretion in that way is recognised by a number of rules in the [Rules of the Supreme Court], together with the practice of the Court, and authority. So, for example, if the Court is of the opinion that the conduct of a successful party - either before or after the commencement of the litigation - has resulted in costs being unnecessarily or unreasonably incurred, the Court may deprive that party of costs, either wholly or in part, and it may further order that party to pay the costs of an unsuccessful party, either wholly or in part ...

Under O 66 r 1(3) RSC, where a party, though generally successful in an action, has, by the introduction of some issue or issues on which it has failed, increased the costs, the Court may order such party to pay the costs of such issue or issues. It is well-recognised that an order that a successful party recover only a portion of its costs, where it has not been wholly successful, should not be made as a matter of course, for at least two reasons. First, it is often the case that a successful party will not succeed on every issue raised. Secondly, to attempt, in every case, an analysis of which party was successful on which issue would add uncertainty and complexity to the outcome of litigation, and add to the time and cost of costs arguments. Consequently, the power to apportion costs in this way should only be exercised where there are discrete and severable issues on which the generally successful party failed, and which added to the cost of the proceedings in a significant and readily discernible way. Furthermore, while parties should be encouraged to consider carefully what matters they put in issue, justice may not be served if, by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case.

Where the Court decides, in the exercise of its discretion, to modify the usual costs orders to reflect the limited success of the successful party, that power will be exercised broadly, and as a matter of impression, and without any attempt at mathematical precision (which is likely to prove illusory in any event). That approach reflects the fact that it may be difficult to separate the factual and evidentiary substratum of different issues, the fact that some issues are more important than others, and the fact that some issues are subsidiary to others. (footnotes omitted)

1. Where a court does not accept all of a successful party's arguments at a hearing, this does not, of itself, mean that it is appropriate to deal with costs orders on an issue‑by‑issue basis.[12] The court's discretion to render an award of costs by undertaking an assessment by reference to the issues that have been won or lost should only be exercised in the clearest of cases.[13] The court's discretion to reduce costs for a successful party is approached as a matter of overall impression, without requiring any higher degree of mathematical precision.[14]
2. The central and overriding principle is that of doing substantial justice to the parties. In approaching this task, the court is not required to tabulate the 'wins and losses', nor undertake an exercise of assessing the time spent or length of submissions, or reasons devoted to each of the issues.[15]
3. In this case, there can be no dispute that the successful party on the applications were the fourth to sixth defendants. They obtained orders for a stay of the proceedings as well as security for costs. While I accept that the fourth to sixth defendants were not entirely successful on one of the alternate grounds of their application for a stay, I do not consider that this is a sufficient reason to reduce these defendants' costs of this application.
4. The plaintiffs contended that where the defendant succeeds on an application for security for costs, the costs of the application are 'often' reserved or are ordered to be costs in the cause.[16] In support of this contention, the plaintiffs referred to the decision of Slattery J in Lex Fitness Pty Ltd v Australian Fitness Management Pty Ltd.[17] This submission misinterprets his Honour's reasoning, which noted that 'there is no presumed approach one way or the other'.[18] On the facts of that case, a costs order was made that the defendants' costs be in the cause.
5. In this case, the defendants sought a relatively modest amount as security for their costs. While I did not order security in the total amount sought, the discount I applied was not substantial. In my view, the order that reflects the appropriate discretionary balance is an order that the plaintiffs' pay the fourth to sixth defendants' costs of the application for security for costs.

1. For these reasons, the orders will be:
   1. The proceedings be stayed in the inherent jurisdiction of the Court until the plaintiffs have satisfied the costs orders in Supreme Court Proceedings No. CIV 1309 of 2021 and Court of Appeal Proceedings No. CACV 55 of 2022.
   2. The plaintiffs provide security for the fourth to sixth defendants' costs of these proceedings in an amount of $10,000 for each defendant, or $30,000 in total.
   3. The proceedings against the fourth to sixth defendants be stayed until security is provided in accordance with paragraph 2.
   4. The plaintiffs pay the fourth to sixth defendants' costs of the applications, including the hearing on 14 March 2024, to be taxed if not agreed and paid forthwith.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Frigger v Professional Services of Australia Pty Ltd [No 3] [2025] WASC 259 (Reasons).

[2] Plaintiffs' submissions filed 14 July 2025 [2].

[3] Plaintiffs' submissions filed 17 July 2025 [2].

[5] Frigger v Professional Services of Australia Pty Ltd [2022] WASCA 119 [37].

[6] Plaintiffs' submissions filed 14 July 2025 [1].

[7] Supreme Court Act 1935 (WA) s 37.

[8] Frigger v Lean [2012] WASCA 66 [53].

[9] Gray v Sirtex Medical Ltd formerly known as Paragon Medical Ltd [2009] WASC 126 [62].

[10] Rules of the Supreme Court 1971 (WA) O 66 r 1(1).

[11] Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388 [50] - [52].

[12] State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 [8] (Emmett, Kenny & Middleton JJ).

[13] KSG Investments Pty Ltd v Open Markets Group Ltd (No 2) [2021] VSC 359 [8] (Nichols J).

[14] Amaca Pty Ltd v Hannell [2007] WASCA 158 (S) [6]; May v Thomas [2014] WASCA 176 (S) [5].

[15] Inpex Operations Australia Pty Ltd v AIG Australia Ltd [No 3] [2023] WASC 332 (S) [21].

[16] Plaintiffs' submissions filed 17 July 2025 [3].

[17] Lex Fitness Pty Ltd v Australian Fitness Management Pty Ltd [2017] NSWSC 157.

[18] Lex Fitness Pty Ltd v Australian Fitness Management Pty Ltd [72].