Frigger v Banning (No 8) [2019] FCA 1319

FEDERAL COURT OF AUSTRALIA

Frigger v Banning (No 8) [2019] FCA 1319 File number: WAD 607 of 2015

Judge: COLVIN J

Date of judgment: 21 August 2019

Catchwords: PRACTICE AND PROCEDURE - application to amend statement of claim and add additional respondents - where proposed statement of claim involved a wholesale change to the application - where proposed statement of claim raised new claims alleging defamation and malicious prosecution - whether proposed statement of claim failed to comply with previous orders - whether steps could be taken in the proceedings by the applicants as bankrupts - application dismissed PRACTICE AND PROCEDURE - application to substitute executor of deceased estate in place of deceased respondent - application allowed BANKRUPTCY AND INSOLVENCY - where applicants are bankrupts - whether the claims in the proceedings are of a kind that can be advanced by the applicants as bankrupts - where statutory stay of all proceedings - consideration of s 60 of the Bankruptcy Act 1966 (Cth) - where proceedings deemed to have been abandoned by trustee in bankruptcy -consideration of effect of deemed abandonment of proceedings for present application - whether certain claims are in respect of a personal injury or wrong and subject to the exception in s 60(4)

Legislation: Bankruptcy Act 1966 (Cth) ss 60, 116 Federal Court Rules 2011 (Cth) rr 9.09, 9.24

Cases cited: A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366 Bell v Cribb [2013] WASC 32 Cole v Challenge Bank Limited [2002] FCAFC 200 Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 Duckworth v Water Corporation [2012] WASC 30 Eleizer v The Owners - Strata Plan No 51682 [2017] NSWSC 278 Freeman v Joiner [2005] FCAFC 149 Frigger v Banning (No 7) [2018] FCA 1074 Frigger v Banning [2016] FCA 359 Gore v Prentice (Trustee), in the matter of the Personal Insolvency Agreement of Gore [2012] FCA 660 Holbrook v Professional Services Australia Pty Ltd [2012] WASC 444 Jamieson v R [1993] HCA 48; (1993) 177 CLR 574 Kitay, in the matter of Frigger (No 2) [2018] FCA 1032 Little v Law Institute of Victoria (No 3) [1990] VR 257 Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204 McJannett v Daley [No 2] [2012] WASC 386 Moss v Eaglestone [2011] NSWCA 404; (2011) 83 NSWLR 476 National Australia Bank Ltd v Nyasa Nominees Pty Ltd [2019] WASC 107 Newman as trustee for the Bankrupt Estate of Keet v Bain [2013] FCA 558; (2013) 213 FCR 370 Nugawela v Commissioner of Taxation [2018] FCA 1458 Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 Savage v Australian Unity Funds Management Ltd [2011] NSWCA 270 The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475; [2006] 1 Qd R 307 Theissbacher v MacGregor Garrick & Co [1993] 2 Qd R 223 Tyne v UBS AG (No 4) [2017] FCA 374