Frigger v Professional Services of Australia Pty Ltd (No 2) [2023] FCA 93

Federal Court of Australia

Frigger v Professional Services of Australia Pty Ltd (No 2) [2023] FCA 93 File number: WAD 126 of 2022

Judgment of: FEUTRILL J

Date of judgment: 10 February 2023

Date of publication of reasons: 14 February 2023

Catchwords: PRACTICE AND PROCEDURE - application for notice to produce under r 20.31 of the Federal Court Rules 2011 (Cth)

Legislation: Corporations Act 2001 (Cth) s 1322(4)(b) Federal Court of Australia Act 1976 (Cth) s 37M Federal Court Rules 2011 (Cth) rr 20.31, 24.12, 24.16

Cases cited: Frigger v Professional Services of Australia Pty Ltd [2022] FCA 1477

Division: General Division

Registry: Western Australia

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Number of paragraphs: 25

Date of hearing: 10 February 2023

Counsel for the Plaintiffs: The Plaintiffs appeared in person

Counsel for the Defendants: Mr TR Stephenson

Solicitor for the Defendants: Eastwood Law Pty Ltd

ORDERS WAD 126 of 2022

BETWEEN: HARTMUT HUBERT JOSEF FRIGGER First Plaintiff

ANGELA CECILIA THERESA FRIGGER Second Plaintiff

AND: PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD (ACN 082 879 641) First Defendant

SANDRA MAY BANNING Second Defendant

order made by: FEUTRILL J DATE OF ORDER: 10 FEBRUARY 2023

THE COURT ORDERS THAT:

1. Except to the extent that production and (or) inspection is ordered in paragraphs 2 and 3 of these orders, the plaintiffs' application for production and inspection dated 1 February 2023 is dismissed. 2. By 15 February 2023, the defendants are to produce to the Registrar of the Federal Court of Australia, Western Australia District Registry, at 1 Victoria Avenue, Perth WA 6000, the following documents: (a) the order of Justice Simmonds of 9 October 2015 mentioned in paragraph 4.9(f) of the Affidavit of Mr Cameron Victor Eastwood sworn 26 October 2022; (b) tax invoices rendered by the defendants' solicitors and counsel representing the defendants, or either of them, in the Supreme Court of Western Australia proceedings CACV 23 of 2012 and CACV 24 of 2012; in the Federal Court of Australia proceeding WAD 607 of 2015 and the proceedings the subject of the orders of Justice Simmonds mentioned in paragraphs 4.9(c) and 4.9(d) of the Affidavit of Mr Eastwood; and (c) the first defendant's original corporate volume mentioned in paragraph 4.1 of the Affidavit of Mr Eastwood. 3. The documents to be produced in accordance with paragraph 2 of these orders are to be treated as if they were produced in response to a subpoena issued and served under rr 24.12 and 24.16 of the Federal Court of Australia Rules 2011 (Cth). 4. For the avoidance of doubt, rr 24.01 – 24.24 of the Rules apply mutatis mutandis, to the documents produced in accordance with paragraph 2 of these orders, such that: (a) if the defendants object to a document being inspected by the plaintiffs, the defendants must, at the time of production, notify the Registrar in writing of the objection and of the grounds of the objection; (b) on receiving notice of an objection under this rule, the Registrar must not permit any, or any further, inspection of the document the subject of the objection; and (c) the Registrar must refer the objection to the Court for hearing and determination; and (d) any inspection of a document by the plaintiffs is to take place under the supervision of a Registrar. 5. If the defendants object to the plaintiffs' inspection of a document, the defendants must, at the time of production, file and serve any affidavit upon which they rely for an objection on the ground of legal professional privilege. 6. The costs of the application are reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.