Federal Court of Australia Frigger v Trott (No 2) [2021] FCA 192 File number: WAD 229 of 2020 Judgment of: JACKSON J Date of decision: 8 March 2021 Legislation: Federal Court Rules 2011 (Cth) r 2.27 Cases cited: Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2016] HCA 41; (2016) 338 ALR 360 Frigger v Trott [2021] FCA 18 McDonald v Federal Court of Australia [2017] FCA 1216 Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 14 Date of hearing: Determined on the papers Counsel for the Applicants: The applicants were self-represented ORDERS WAD 229 of 2020 BETWEEN: ANGELA CECILIA THERESA FRIGGER First Applicant HARTMUT HUBERT JOSEF FRIGGER Second Applicant AND: REGISTRAR TROTT Respondent order made by: JACKSON J DATE OF ORDER: 8 March 2021 THE COURT DIRECTS THAT: 1. Pursuant to r 2.27(e) of the Federal Court Rules 2011 (Cth), the documents in lodgement 947499 must not be accepted for filing. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR DECISION JACKSON J: 1 In Frigger v Trott [2021] FCA 18 I allowed an application for judicial review of a decision of the respondent, a registrar of this court, to refuse to accept an originating application and supporting affidavit for filing. The sole order made on the application was that the respondent's decision was set aside with effect from the date of the order. 2 The first applicant, Mrs Frigger, has since lodged with the court an interlocutory application for the respondent to be punished for contempt of court, along with a statement of charge and supporting affidavit. The proposed application has not yet been accepted for filing and the lodgement has come to me for consideration. 3 The statement of charge attached to the proposed application is as follows: Charge 1. You refused or failed to comply with the order of this court dated 25 January 2021 in Frigger v Trott [2021] FCA 18. Particulars: 1. On 25 January 2021 the court ordered that your decision rejecting Lodgement 909455 filed by the applicant on 22 September 2020 be set aside with effect from the date of the order. 2. On 25 January 2021 the applicant requested you to reset e-Lodgement 909455 to enable the applicant to lodge the documents again. You refused the request and stated Lodgement 909455 remained rejected. 3. Your conduct had the objective of forcing the applicant to commence a new e-lodgement of the originating process, so that you could avoid complying with the court's direction for you to consider afresh Lodgement 909455. This was because you intended to find a new reason for rejecting the documents, thus frustrating the order and intent of the reasons in Frigger v Trott [2021] FCA 18. You achieved your objective by referring the applicant's new lodgement to another registrar in Adelaide, who rejected the lodgement for a reason different to the reasons given in your rejection letter of 2 October 2020. 4 One of the orders sought in the application is that the respondent comply with the 'directions of His Honour Justice Jackson to reconsider afresh whether to accept the applicants' originating process lodged 29 January 2021, amended in compliance with His Honour's reasons in Frigger v Trott [2021] FCA 18'. That appears to be a reference to Frigger v Trott at [42] where I said that, the original decision of the respondent having been set aside, '[i]t will then be for the applicants to lodge the documents again, if they wish, and for the Registrar to consider afresh whether to accept them for filing'. 5 After receiving the new lodgement, by email my Chambers invited Mrs Frigger to give written submissions on the following three issues and any other matters she considered to be relevant: 1. Whether in the judgment delivered by Justice Jackson on 25 January 2021, any order was made that is capable of being disobeyed, so as to found a contempt of court charge. On the face of the order it simply deprived the registrar's decision of any legal effect under r 2.26 of the Federal Court Rules. If so, then the order may just take effect on its terms, without giving rise to any obligation for anyone to do anything in order to comply with it. 2. Whether comments made in reasons for decision are capable of founding a contempt of court charge, or whether contempt can only be found if an order of the court is breached. 3. If comments made in reasons can found a contempt charge, whether the comments on which you rely are capable of doing so here. You rely on his Honour's comment in paragraph 42 of his reasons that, the registrar's original decision having been set aside, 'It will then be for the applicants to lodge the documents again, if they wish, and for the Registrar to consider afresh whether to accept them for filing.' But in your request to registry, you asked it to 'adjust the lodgement' so that you could 'resubmit' documents including an amended originating application. Could the registrar be in contempt for not considering an amended originating process you had not yet lodged? Once the amended documents were lodged, could the registrar be in contempt for not considering them, given they were different to 'the documents' referred to at paragraph 42? 6 Mrs Frigger has provided submissions in response to the invitation. In relation to the first issue, she asserts that the documents she had originally lodged via the court's e-lodgement system were shown on that system as having the status 'rejected' when, after the order above was made, that status should have been converted to 'unprocessed'. She asserts that it 'remained rejected' because the respondent refused to comply with the review order. 7 This fails to engage with the issue raised in the email from my Chambers, namely whether the order required anyone to do anything. In terms, it did not. It was effective without requiring any person to take any act. Nobody has been ordered to do (or not to do) anything, breach of which can sound in the potentially serious consequences of a finding of contempt of court. For that reason, I consider the proposed application to be frivolous and vexatious. 8 Taking Mrs Frigger's argument at its highest, she appears to be submitting that there should be implied into the order an obligation for the respondent to reconsider whether the documents should be accepted for filing and to take some step in connection with the e-lodgement said to be necessary in order for that to happen. But there is no foothold in the text of the order for that implication. As I have said, it simply took effect on its terms. Subject to the point I make in the following paragraph, the administrative steps which may then have ensued were not the subject of the order. In that regard, I note in passing that Mrs Frigger's position rests on a number of assumptions about the administrative processes of the court's registry, for example that it is both necessary and possible for the lodgement status to be set to 'unprocessed' in order for the documents to be considered for acceptance, and that the respondent had some role in connection with the omission to take that step. 9 There is also no support in the context of the order, that is the reasons for judgment, for the interpretation of the order on which Mrs Frigger seems to rely. What [42] contemplated was that the documents would be lodged again and considered afresh. The email sent by the registry on 25 January 2021 at 2.09 pm, which says that the originally lodged documents remain rejected 'with the applicants having leave to lodge this application again for consideration by a registrar to accept for filing' is consistent with the reasons. 10 In any event the applicants have not lodged the documents again. Mrs Frigger made a request that the status of the documents already lodged be changed in the e-lodgement system so that she could lodge different documents. In the email to registry of 25 January 2021 containing the request to 'reset e-Lodgement 909455', which is referred to in the statement of charge, Mrs Frigger indicated that she wished to amend the originating process. It follows that she did not want the originally lodged originating process to be considered anyway. The applicants subsequently made a new lodgement of an application that was different to the previously rejected one and an affidavit in support, which, it transpired, was also different to the affidavit in the originally rejected lodgement. In those circumstances, the respondent could not possibly be in contempt for failing to consider whether to accept again the originally lodged documents for filing; they had been superseded and the applicants no longer wanted them to be accepted. That is another reason why the application is frivolous and vexatious. 11 In her response to the second issue raised in the email from Chambers, Mrs Frigger effectively concedes, correctly, that a person cannot be in contempt for acting inconsistently with something said in reasons for decision which is not embodied in an order. To the extent that she suggests that the reasons can bear upon the proper construction of the order, I have already dealt with that. Registry's position was consistent with the reasons. 12 In her response to the third issue, Mrs Frigger does not rely on [42], but asserts that the order made 'had the objective of allowing the applicants to amend the documents in light of the reviewing judge's reasons, and for Registrar Trott to reconsider the documents'. But even if it is assumed that is correct, the conduct complained of in the particulars to the charge, namely refusing on 25 January 2020 to 'reset' the e-lodgement, could not have possibly interfered with the achievement of that objective. At that point the amended documents had not been lodged. And there was nothing stopping the applicants from lodging them as part of a new lodgement, as contemplated in [42]. They have since done so, and the documents are the subject of a new decision that they not be accepted for filing. While that second decision was made by a registrar different to the respondent, Mrs Frigger now correctly accepts that any suggestion in the reasons that it was to be the respondent who should consider them cannot found a contempt charge (and, as I have said, [42] did not speak of consideration of different documents anyway). 13 For the above reasons there is no prospect that the application to punish the respondent for contempt will succeed. It is frivolous and vexatious and I direct that the application and the documents lodged with it not be accepted for filing. 14 I make two concluding comments. First, for completeness, I note that while the application and supporting affidavit disclose no proper basis for the scandalous allegation that the respondent 'intended to find a new reason for rejecting the documents', that is not why I consider that the documents are frivolous and vexatious and should not be accepted for filing. Second, the fact that I have chosen to publish these reasons in the court's standard judgment format does not reflect any view on my part as to whether the direction I have made is an administrative act (see Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2016] HCA 41; (2016) 338 ALR 360 at [25] (Nettle J)) or an exercise of judicial power (see McDonald v Federal Court of Australia [2017] FCA 1216 (Kerr J)). It is enough to say that it is a direction that is contemplated by r 2.27(e) of the Federal Court Rules 2011 (Cth), which provides that a document will not be accepted for filing if the Court has given a direction that it not be accepted. It is not necessary for me to characterise the power contemplated or implied by that rule, which I now exercise. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson. Associate: Dated: 8 March 2021