Federal Court of Australia Frigger v Trenfield (No 4) [2021] FCA 1472 File number: WAD 66 of 2021 Judgment of: LOGAN J Date of judgment: 24 November 2021 Catchwords: COSTS – where applicants had filed an interlocutory application seeking to vacate the orders of the Court adjourning the applicants' application – where applicants had not opposed the adjournment application – where applicants' interlocutory application was dismissed – where applicants' allege conduct of second respondent is contravention of s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth) – no such breach proved – where first respondent submit costs should be fixed in the sum $1,000.00 – no basis for the Court for such sum – costs awarded against the applicants in a sum to be fixed Legislation: Federal Court of Australia Act 1976 (Cth) ss 37M, 37N Cases cited: Frigger v Trenfield (No 2) [2021] FCA 1255 Frigger v Trenfield (No 3) [2021] FCA 1471 Oshlack v Richmond River Council (1998) 193 CLR 72 Division: General Division Registry: Western Australia National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 13 Date of last submissions filed by the Applicant: 11 November 2021 Date of last submissions filed by the Second Respondent: 15 November 2021 Date of last submissions filed by the First Respondent: 16 November 2021 Date of hearing: Heard on the papers Counsel for the Applicants: The Applicants appeared in person Counsel for the First Respondent: Mr SD Majteles Solicitor for the First Respondent: Carles Solicitors Solicitor for the Second Respondent: Herbert Smith Freehills ORDERS WAD 66 of 2021 BETWEEN: ANGELA CECILIA THERESA FRIGGER First Applicant HARTMUT HUBERT JOSEF FRIGGER Second Applicant AND: KELLY TRENFIELD First Respondent MERVYN JOHN KITAY Second Respondent order made by: LOGAN J DATE OF ORDER: 24 NOVEMBER 2021 THE COURT ORDERS THAT: 1. The applicants pay the respondents' costs of and incidental to the dismissal on 4 November 2021 of their deemed interlocutory application, to be fixed by a Registrar if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT LOGAN J: 1 On 18 August 2021, for reasons given that day ex tempore, I ordered that an interim application filed on 26 July 2021 by the applicants, Mr and Mrs Frigger, be adjourned to a date to be fixed, pending the outcome of the proceeding of the Supreme Court of Western Australia (COR 131 of 2021). These reasons for judgment must be read in conjunction with that earlier judgment: Frigger v Trenfield (No 2) [2021] FCA 1255. 2 As I record in that earlier judgment, that adjournment was not opposed by Mr and Mrs Frigger. 3 Later, Mr and Mrs Frigger came to think better of their absence of opposition to the adjournment of their application. On 20 October 2021, they sent a letter to my Associate the effect of which was to seek an order that the adjournment order made on 18 August 2021 be vacated. Given that this was the effect of their correspondence and although the means which they had adopted was unorthodox, I directed that this letter be treated as an interlocutory application and brought on for hearing. This occurred on 4 November 2021: see Frigger v Trenfield (No 3) [2021] FCA 1471. At that hearing, Mr and Mrs Frigger rehearsed an argument which lies at the heart of their adjourned application. By that application, they seek to impeach the foundation for the bankruptcy notices, non-compliance with which formed the basis for the act of bankruptcy by which they were made bankrupt. 4 As I had on 18 August 2021, I formed the view that the case for an adjournment remained compelling, for the same reasons as those given in the earlier judgment. No new fact warranting reconsideration of the earlier order was put forward by Mr and Mrs Frigger. To the contrary, it was desirable that Mr and Mrs Frigger be held to a deliberate forensic choice which they had made on 18 August 2021. 5 The end result of the deemed adjournment application made by Mr and Mrs Frigger was that the other parties to the proceeding had been put to an unnecessary expense to responding to their application. 6 Mr and Mrs Frigger signified that they wished to have an opportunity to make submissions in relation to costs. The exigencies of the day, which included a problematic audio-visual connection to Mr and Mrs Frigger, made it convenient for submissions as to costs to be made later and in writing. I made provision for these by interlocutory directions. 7 I have considered the resultant submissions made by the parties. 8 In their submissions, Mr and Mrs Frigger make what is, with respect, a quite unwarranted allegation as to misleading qualities in an affidavit earlier relied upon by the second respondent for the adjournment of their application. This allegation is made in support of a submission that there has been a breach by the second respondent and those advising him of the duty found in s 37N of the Federal Court of Australia Act 1976 (Cth) of the overarching purpose specified in s 37M of that Act in relation to the conduct of litigation in this Court. 9 There has been no such breach. Instead, the other parties have been put to a quite unnecessary expense by an ill-considered interlocutory application by Mr and Mrs Frigger. I repeat, as there was in August, there remains a compelling case for the adjournment of the applicants' application, pending the determination of the proceeding in the Supreme Court of Western Australia (COR 131 of 2021). The outcome of that application remains relevant to the disposal of the application which was adjourned in August. 10 Accordingly and as the respondent parties have submitted, the costs of the dismissing of the deemed interlocutory application made by Mr and Mrs Frigger should follow the event in accordance with the usual basis of an exercise of the costs discretion: Oshlack v Richmond River Council (1998) 193 CLR 72, at 96, per McHugh J. 11 It was put for the first respondent that these costs should be fixed in the sum of $1,000.00. There is no doubt that the power to award costs extends to ordering that costs be fixed in a particular amount. Further, there can in certain instances be a convenience and related saving of costs in this being done by the judge who has heard an application. However, there does need, not least for procedural fairness reasons, to be at least some exposed foundation for fixing costs in a particular amount. The first respondent has not exposed why $1,000.00 is apt. Perhaps a foundation might be found in experience and by analogy with standard amounts allowed in particular types of case as made public in accordance with the Court's practice statements. In this particular case, that might be to undercompensate the respondents, who had the expense not just of an appearance on the day but also in digesting the deemed application and its supporting material beforehand. I consider it preferable for costs to be fixed by a registrar. 12 While it would be possible to order that costs so fixed be paid forthwith, I consider that it is better not to make such an order. The better position is to await the final disposal of this proceeding, which will include taking into account in that disposal of the ramifications of the outcome in the proceedings in the Supreme Court of Western Australia. 13 There will be orders accordingly. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate: Dated: 24 November 2021