RE RULES OF THE SUPREME COURT 1971 (WA); EX PARTE FRIGGER [2019] WASC 175 (22 May 2019)

1. An order declaring taxation of costs in CACV45/2016 and the allocator signed by Registrar Whitbread on 18 September 2018 are incompetent pursuant to section 58(3) Bankruptcy Act 1966.
2. An order setting aside the allocator by the learned Registrar Whitbread dated 18 September 2018.
3. An order that Mervyn Jonathan Kitay repay $25,000 to the applicant.
4. An order declaring LPA37/2018 and LPA49/2018 are not actions to which section 60(2) Bankruptcy Act 1966 apply and those taxations may proceed.
5. An order setting aside the orders of the Principal Registrar in LPA 10/2018 dated 4 February 2019 and directing Registrar C Boyle progress the taxation.
6. The minute suggests that if leave were granted, the originating process would be accepted for filing and then heard and determined ex parte.

1. The background to the application was not easily discerned from the papers initially filed by the applicant in support of the application.
2. On 10 April 2019, I ordered that the application be listed for hearing on 3 May 2019; and that the applicant file a minute of proposed originating process, together with any outline of submissions by 18 April 2019.
3. At the hearing on 3 May 2019, I informed the applicant that in order to afford her procedural fairness, I would give her an opportunity to file further affidavit material annexing a complete copy of her communications with the court relevant to the application, and also an opportunity to comment upon the same through submissions. (The initial affidavit filed in support of the application did not appear to be complete in this regard.)
4. The applicant now relies on two affidavits, deposed by the applicant and filed on 3 April 2019 and 10 May 2019 respectively. The applicant also relies on a written outline of submissions filed 18 April 2019, together with a written outline of supplementary submissions filed 3 May 2019.
5. The proposed originating process refers to four proceedings. It is necessary to set out a short overview of each below.
6. I am informed of the following from my review of the court record and from the affidavits filed by the applicant in support of this application. In order to determine the application before me, I have had regard to the following overview. However, it is not intended to be, nor is it, a complete chronology of events in each of the four proceedings.

1. The first proceeding referred to in the applicant's proposed originating process is the appeal known as CACV 45 of 2016, being an appeal commenced by Mrs Frigger and Mr Harmut Frigger against a decision of Le Miere J given in the matter of CIV 1606 of 2015. Mr Mervyn Jonathan Kitay is the named respondent.
2. On 27 July 2017, the Court of Appeal delivered judgment, dismissing the appeal: Frigger v Kitay [No 2].[2]
3. Although the appellants were given notice of judgment delivery in the appeal, they did not attend judgment delivery. Counsel for the respondent did, and made an oral application for indemnity costs. The court on that occasion reserved its decision on costs and made directions for the filing of submissions by the appellants, and by the respondent in reply, and for the matter to be determined on the papers.[3]
4. On 18 October 2017, the Court of Appeal delivered judgment, granting the application for indemnity costs.[4] An order was made in the following terms:

The appellants do pay the respondent's costs of the appeal to be assessed on an indemnity basis so that the respondent is fully indemnified for his costs except insofar as the costs may have been unreasonably incurred or are unreasonable in amount.

1. On 7 June 2018, Registrar Whitbread made directions to facilitate quantification of the indemnity costs order. A bill of costs was produced by the respondent and objections to the bill tabled on behalf of the appellants.
2. On 20 July 2018, it was ordered by Colvin J of the Federal Court of Australia that there be a sequestration order under the Bankruptcy Act 1966 (Cth) against the estates of Mrs Frigger and Mr Frigger: Kitay, in the matter of Frigger (No 2).[5]
3. By an email communication of 25 July 2018, sent by Mrs Frigger on behalf of Mr and Mrs Frigger to the Associate to Registrar Whitbread, the Registrar was informed of the sequestration order. Mrs Frigger noted that she had provided the official trustee in bankruptcy with a statement of affairs, including notice of the appeal known as CACV 45 of 2016.
4. The court informed Mrs Frigger that by reason of the sequestration order, she was no longer able to represent herself in CACV 45 of 2016, but if her trustee in bankruptcy so elected, she would appear through her trustee in bankruptcy. The trustee in bankruptcy was informed of the taxation hearing listed before the Registrar as the taxing officer on 3 September 2018.
5. There was no appearance by the trustee in bankruptcy on 3 September 2018. The orders made by the Registrar on 3 September 2018 included the following.
   1. On the taxation hearing the Taxing Officer assessed the bill in the sum of $85,363.90.
   2. If either party, being the respondent or the paying party by their trustee in bankruptcy, decides to contend that the Taxing Officer has made an error in principle in allowing or disallowing any item or part of an item in the bill of costs; then either party may by 17 September 2018 file and serve an objection in writing to the allowance or disallowance, specifying in the objection by a list, in a short and concise form, both the items (or parts of items) objected to and the grounds and reasons for the objections. Any such objection to be deemed to be a request to the Taxing Officer to review the taxation in respect of those items or parts.
   3. If either party files a request for a review the Taxing Officer will determine both the timetabling of any submissions on the review, and the review itself, on the papers unless the Taxing Officer requires the review to be listed for hearing.
6. No request for a review was made and on 18 September 2018, the Registrar certified that the respondent's amended bill of costs dated 13 June 2018 had been taxed and allowed in the sum of $85,363.90.
7. On 4 October 2018, the parties filed a consent order in the appeal. The parties consented to an order that the sum of $25,000, being all of the money paid into court by the appellants, be paid out to the respondent. The order was signed on behalf of the appellants by Ms Kelly Trenfield, in her capacity as the joint and several trustee in bankruptcy of the bankrupt estates of the appellants.
8. The order was made by Murphy JA by consent on 9 October 2018, and corrected by his Honour on 24 October 2018.
9. The respondent filed a request for payment out of court pursuant to the order of Murphy JA, and the sum of $25,000 was so paid.
10. As noted above, by this application, Mrs Frigger seeks leave to commence a proceeding by which she would seek, among other things, the following orders.
    1. An order declaring taxation of costs in CACV45/2016 and the allocator signed by Registrar Whitbread on 18 September 2018 are incompetent pursuant to section 58(3) Bankruptcy Act 1966.
    2. An order setting aside the allocator by the learned Registrar Whitbread dated 18 September 2018.
    3. An order that Mervyn Jonathan Kitay repay $25,000 to the applicant.

1. The second proceeding referred to in the applicant's proposed originating process is the proceeding known as LPA 37 of 2018, being an application for assessment of legal costs under the Legal Profession Act 2008 (WA) (LPA). Mr Frigger and Mrs Frigger are the named applicants and the firm Lewis Blyth & Hooper is named as the respondent to the application.
2. Mr Frigger and Mrs Frigger filed the application for assessment on 10 August 2018. By the application, they sought to assess 13 bills issued to them by the respondent in the period 1 August 2017 to 23 October 2017 (inclusive). A filing fee in the amount of $428 was paid by Mr Frigger and Mrs Frigger upon the filing of the application.
3. By letter dated 13 December 2018, the Acting Principal Registrar noted that, as the applicants were undischarged bankrupts, the preliminary issue of the applicants' standing to bring the application for assessment of legal costs had to be determined.
4. The Acting Principal Registrar informed the applicants that she intended to refer the preliminary issue to a judge for determination, and in order to facilitate the same made programming orders in the following terms.
   1. The preliminary issue of the Applicants' standing to bring the Application for Assessment of Costs be referred to a Judge for determination.
   2. The Applicants file and serve any Submissions by 25 January 2019.
   3. The Respondent file and serve any Submissions by 8 February 2019.
   4. The parties provide the Court with available dates in February, March and April for a hearing of not more than 2 hours
5. The communication of the Acting Principal Registrar crossed with an email communication from Mrs Frigger on 13 December 2018, in the following terms:

Dear Associate

As the court has refused to progress the above two applications, I request a refund the fee I paid $428.00 to my bank account as follows:

...

Please also refund the fee taken from the same account $428.00 for the [Lynn] & Brown application.

As I have applied for the sequestration order to be set aside, I will renew the above two applications if I am successful.

1. In response to the email communication, Mrs Frigger was asked whether she wished to proceed with the applications for assessment of legal costs (in which case the Acting Principal Registrar's directions of 13 December 2018 would stand), or whether Mrs Frigger sought to withdraw the applications, pending her pursuing an application to set aside the sequestration order.
2. Further emails were exchanged and Mrs Frigger was informed that once the preliminary issue was referred to a judge, she would no longer be eligible to receive a refund of the filing fees paid on LPA 49 of 2018 and LPA 37 of 2018.
3. Mrs Frigger requested the refund of the filing fees. The filing fees were refunded to her on 26 February 2019.
4. By this application, Mrs Frigger seeks leave to commence a proceeding by which she would seek, among other things, an order declaring that LPA 37 of 2018 is not an action to which the Bankruptcy Act s 60(2) applies, and the taxation may proceed.

1. The third proceeding referred to in the applicant's proposed originating process is the proceeding known as LPA 49 of 2018, being an application for assessment of legal costs under the LPA. Mr Frigger and Mrs Frigger are the named applicants and Lynn & Brown Lawyers Pty Ltd is named as the respondent to the application.
2. Mr Frigger and Mrs Frigger filed the application for assessment on 6 December 2018. By the application, they sought to assess 5 bills issued to them by the respondent in the period 19 September 2018 to 19 November 2018 (inclusive). A filing fee in the amount of $428 was paid by Mr Frigger and Mrs Frigger upon the filing of the application.
3. As noted above, Mrs Frigger requested the refund of the filing fee, having elected to withdraw the application for assessment of costs. The filing fee was refunded to her on 26 February 2019.
4. By this application, Mrs Frigger also seeks leave to commence a proceeding by which she would seek, among other things, an order declaring that LPA 49 of 2018 is not an action to which the Bankruptcy Act s 60(2) applies, and that the taxation may proceed.

1. The fourth proceeding referred to in the applicant's proposed originating process is the proceeding known as LPA 10 of 2018, being an application for assessment of legal costs under the LPA. Mr Frigger and Mrs Frigger are the named applicants and Rowe Bristol Lawyers Pty Ltd is named as the respondent to the application.
2. Mr Frigger and Mrs Frigger filed the application for assessment on 13 February 2018. By the application, they sought to assess 3 bills issued to them by the respondent in the period 15 February 2017 to 19 June 2017 (inclusive). A filing fee in the amount of $398 was paid by Mr Frigger and Mrs Frigger upon the filing of the application.
3. An appearance was entered on behalf of the respondent on 22 February 2018.
4. On 7 May 2018, Registrar C Boyle made an order that the application be adjourned without setting a further date but with either party having liberty to apply in writing for a re‑listing.
5. By a chamber summons filed 30 January 2019, supported by affidavit, the respondent sought orders that the proceedings be discontinued pursuant to the Bankruptcy Act s 60(3); that the costs of the application made by chamber summons be paid by the applicants; and that the costs of the proceeding be paid by the applicants.
6. On 4 February 2019, the Acting Principal Registrar determined the application on the papers and made orders in terms pressed on behalf of the respondent. The proceeding known as LPA 10 of 2018 was discontinued.
7. By this application, Mrs Frigger seeks leave to commence a proceeding by which she would seek, among other things, an order setting aside the orders of the Acting Principal Registrar in LPA 10 of 2018, and directing Registrar C Boyle progress the application for assessment.

Legal principles Leave to file or issue the proposed proceedings

(1) If any writ, process, motion, application or commission, which is presented for filing, issue or sealing appears to the registrar to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the registrar shall refuse to file or issue such writ, process, motion, application or commission without the leave of a judge or a master first had and obtained by the party seeking to file or issue it.

(2) In the case of a motion or an application ordinarily returnable before a master in chambers, an application for leave to file or issue such motion or application shall be made to a master in chambers.

(3) In all other cases, an application or commission shall be made to a judge in chambers.

(4) Applications for leave under subrules (2) and (3) shall be made ex parte and shall be supported by affidavit.

1. The rule reinforces this court's inherent jurisdiction to protect itself from unwarranted wastage of time and resources and to avoid the loss that would otherwise be caused to those who are forced to defend actions which lack any substance.[6]
2. The RSC O 67 r 5(1) does not set out any criteria to be applied in determining whether to grant or refuse leave. However, it is accepted that a judge should only refuse leave to file or issue the proposed claim if satisfied that the writ or process would be an abuse of process, or a frivolous or vexatious proceeding.[7]
3. What amounts to an abuse of the court's process is insusceptible to a formulation comprising closed categories.[8] Proceedings are likely to constitute an abuse of process if they are clearly foredoomed to fail,[9] or are plainly unsustainable.[10]
4. I am cognisant of the fact that the exercise of a power which denies a potential plaintiff the opportunity to have their matter heard is a power which should not be exercised lightly. I am particularly aware that a court at first instance should be astute not to risk stifling the development of the law by summarily dismissing actions in respect of which there is a reasonable possibility that, in the development of the law, a cause of action may be found to lie.[11]

1. The form of the proposed originating process is flawed and an abuse of process. Therefore the application must fail.
2. It is not appropriate for grievances in relation to the four separate, unrelated proceedings described above to be agitated through the vehicle of one fresh proceeding.
3. Mrs Frigger says that such an approach promotes efficiency and an appropriate use of court resources. The approach is misconceived.
4. Further, the minute of proposed originating process and the affidavits filed in support of the application reveal, and Mrs Frigger's oral submissions reinforce, that she seeks by the proposed proceeding to have this court revisit matters considered and determined in the separate proceedings known as CPCA 45 of 2016 and LPA 10 of 2018. Pursuit of such an endeavour constitutes an abuse of process of this court.
5. There is also no basis for the matters sought to be agitated by Mrs Frigger (if they are otherwise capable of being pursued) to proceed to be heard and determined ex parte.
6. In light of the above, it is appropriate that the application for leave to commence a new proceeding in the form of a minute of proposed originating process filed on 18 April 2019 be dismissed.
7. There are other problems with the applications sought to be made by Mrs Frigger. Without intending to now list all of the issues, I note that the applications known as LPA 37 of 2018 and LPA 49 of 2018 were withdrawn and the respective filing fees refunded. Further, the issue of the standing of Mrs Frigger, who remains subject to a sequestration order, to make any application in an existing proceeding or to commence a fresh proceeding, looms large.
8. The present case is not, in my view, one where the proposed originating process, with appropriate amendment, could be put in a proper form.
9. It is not for the court to suggest a form (or forms) of application or proceeding which might entitle Mrs Frigger to relief. As noted by Vaughan J in Ex Parte Gates,[12] to do so would be to go beyond the proper assistance that the court might offer to a self‑represented litigant.
10. If following delivery of these reasons Mrs Frigger seeks to file other applications, it will be necessary to assess them.

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

Research Associate to the Honourable Acting Justice Strk

[2] Frigger v Kitay [No 2] [2017] WASCA 139 (Martin CJ, Murphy & Beech JJA).

[3] Frigger v Kitay [No 2] [2017] WASCA 139(S) [2].

[4] Frigger v Kitay [No 2] [2017] WASCA 139(S).

[5] The reasons for judgment were published on 20 July 2018; see Kitay, in the matter of Frigger (No 2) [2018] FCA 1032 (Colvin J).

[6] Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303, 312; Re Magistrate Francine Walter; Ex Parte Tull [2016] WASC 271 [3].

[7] Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258(S) [23]; Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 [20].

[8] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [9].

[9] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393; Re City of Stirling; Ex Parte Tallot [2012] WASC 33.

[10] Perpetual Trustees Victoria Ltd v Allen [23].

[11] Hospitals Contribution Fund of Australia v Hunt [1938] ArgusLawRp 58; (1982) 44 ALR 365, 373 - 374; Middleton v The State of Western Australia (1992) 8 WAR 256, 264.

[12] Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [65].