RE FRIGGER; EX PARTE FRIGGER [2026] WASC 260

[2026] WASC 260 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : RE FRIGGER; EX PARTE FRIGGER [2026] WASC 260 CORAM : MUSIKANTH J HEARD : 5 JUNE 2026 DELIVERED : 25 JUNE 2026 PUBLISHED : 25 JUNE 2026 FILE NO/S : CIV 1629 of 2026 MATTER : IN THE MATTER OF FRIGGER EX PARTE HARTMUT HUBERT JOSEF FRIGGER First Applicant ANGELA CECILIA THERESA FRIGGER Second Applicant Catchwords: PRACTICE AND PROCEDURE - Application for leave to file writ pursuant to Rules of the Supreme Court 1971 (WA) O 67 r 5 - Whether proposed writ an abuse of process or frivolous or vexatious - Where proposed damages claim arises from things said or done as part of preparatory steps for judicial proceedings - Party or witness immunity from suit – Turns on own facts - Leave refused -- 1 of 13 -- [2026] WASC 260 Page 2 PRACTICE AND PROCEDURE - Application for leave to file writ pursuant to Rules of the Supreme Court 1971 (WA) O 67 r 5 - Whether proposed writ an abuse of process or frivolous or vexatious - Where proposed fresh action to set aside interlocutory orders made in extant proceedings - Where contempt application by proposed defendant against proposed plaintiff currently on foot in those extant proceedings - Whether seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustifiable trouble and harassment - Whether administration of justice would be brought into disrepute - Turns on own facts - Leave refused Legislation: Corporations Act 2001 (Cth) Criminal Investigation Act 2006 (WA) Public Interest Disclosure Act 2003 (WA) Rules of the Supreme Court 1971 (WA) Supreme Court (Corporations) (WA) Rules 2004 (WA) Result: Application dismissed Category: B Representation: Counsel: First Applicant : In Person Second Applicant : In Person Solicitors: First Applicant : In Person Second Applicant : In Person -- 2 of 13 -- [2026] WASC 260 Page 3 Cases referred to in decision: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1991) 175 CLR 564 Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) [2018] HCA 1; (2018) 264 CLR 165 D'Orta‑Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Ex Parte Vella [2010] WASC 213 Frigger v Trenfield (No 8) [2024] FCA 1438 Kitay v Frigger [No 2] [2024] WASC 113 Kitay, in the matter of Frigger (No 2) [2018] FCA 1032 Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204 McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529 Re Computer Accounting and Tax Pty Ltd; Ex Parte Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) [No 4] [2014] WASC 169 Re Griffiths; Ex Parte Homestyle Pty Ltd [2005] WASCA 103 Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213 Soo v Victoria Legal Aid [2023] VSCA 330 -- 3 of 13 -- [2026] WASC 260 MUSIKANTH J Page 4 MUSIKANTH J: 1 The applicants apply for leave to file a writ of summons pursuant to O 67 r 5 of the Rules of the Supreme Court 1971 (WA) (Rules), following a registrar's rejection of the writ on the grounds that it appeared to be an abuse of process or was frivolous or vexatious. 2 Initially, Mr Frigger was the sole applicant. It later emerged, however, that both he and Mrs Frigger were the intended plaintiffs, notwithstanding that the heading of the writ (as distinct from the body of the document) referred to Mr Frigger alone. In those circumstances, I granted leave for Mrs Frigger to be joined as a co-applicant. 3 At the conclusion of the hearing on 5 June 2026, I also granted leave for the applicants to file written submissions addressing certain matters raised at the hearing, together with any further affidavit evidence in support of the application. Submissions and a further affidavit were subsequently filed on 10 June 2026. Annexed to the affidavit were unsolicited proposed amendments to the indorsement and the relief sought in the writ. 4 Order 67 r 5, in my view, contemplates leave being granted only in respect of the version of the writ (or other process) presented for filing. Nevertheless, I will proceed on the basis that the proposed amendments had been incorporated into the document as presented, given that they do not affect the outcome. Background 5 Some of the relevant background is conveniently set out in a number of publicly available decisions of this and other courts, including Re Computer Accounting and Tax Pty Ltd; Ex Parte Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) [No 4] [2014] WASC 169 (Master Sanderson) and Kitay, in the matter of Frigger (No 2) [2018] FCA 1032 (Colvin J) (2018 Frigger decision). What follows assumes familiarity with both sets of reasons, and in particular with [45] - [52], [59], [75], [83], [89] and [90] of the 2018 Frigger decision. -- 4 of 13 -- [2026] WASC 260 MUSIKANTH J Page 5 Legal principles 6 The question on this application is whether the proposed writ would be an abuse of process or is frivolous or vexatious.1 7 I gratefully adopt, without repetition, Vaughan J's summary of the applicable legal principles in Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213. 8 Here, those principles require the Court to consider whether the proposed claims are frivolous, because they are so obviously untenable that they cannot possibly succeed or disclose no serious question to be tried; vexatious, because they would be productive of serious and unjustified trouble and harassment; and/or an abuse of process, because they would permit the court's procedures to be used in a manner unjustifiably oppressive to a party or bring the administration of justice into disrepute.2 9 Vaughan J also emphasised the importance of the affidavit requirement under O 67 r 5(4):3 Order 67 r 5(4) of the [Rules] requires that [an application for leave to file a writ] be supported by affidavit. The intention is that litigants who present a writ for filing that appears to a registrar to be an abuse of the court's process, or a frivolous or vexatious proceeding, be required to depose to the factual contentions advanced in support of their claims - thereby being exposed to the usual sanctions if the contentions are knowingly or recklessly false. The sub-rule imposes a necessary safeguard not to be lightly overlooked in considering an application under either O 67 r 5(2) or O 67 r 5(3). 10 This requirement was duly drawn to the attention of Mr Frigger before the matter came on for hearing. The writ 11 The writ is largely conventional in form, though the indorsement, contrary to O 6 r 1(1), is somewhat discursive and the assertions disjointed. As best I have been able to understand its tenor, I read the indorsement as comprising allegations to the following effect: (1) On 17 January 2012, in support of an application under s 477(2B) of the Corporations Act 2001 (Cth) (Corporations 1 Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213. 2 As to the meaning of these expressions see Ex parte Gates [25] - [33]. 3 Ex parte Gates [58]. -- 5 of 13 -- [2026] WASC 260 MUSIKANTH J Page 6 Act) in matter COR 2 of 2012 (COR 2/2010),4 the proposed defendant, a liquidator, knowingly made sworn statements to this Court that were false or misleading. (2) Those false or misleading statements led to orders made by Acting Master Chapman on the same date (Chapman orders), which relevantly prevented access to a confidential affidavit and its annexures filed with the Court, and precluded inspection by creditors of certain agreements. (3) The Chapman orders, together with orders later made by Master Sanderson on 15 May 2013 and 12 June 2014 (Sanderson orders),5 also in COR 2/2010, were procured by fraud by reason of the statements referred to in (1) above. (4) The liquidator also failed to produce certain exculpatory evidence in District Court criminal proceedings (I infer following a production order issued under s 53 of the Criminal Investigation Act 2006 (WA)), which evidence would have resulted in Mrs Frigger's acquittal. (5) In that connection, the Chapman orders and Sanderson orders (said by the applicants to have been obtained by fraud) had prevented Mrs Frigger from relying on legal advice received by the liquidator that referred to the existence of the exculpatory material. (6) Accordingly, the liquidator's conduct caused Mrs Frigger to be wrongfully convicted and imprisoned. (7) Moreover, Mrs Frigger's disclosure of the confidential affidavit to the Director of Public Prosecutions in the criminal proceedings constituted a public interest disclosure to a proper authority within the meaning of s 5 of the Public Interest Disclosure Act 2003 (WA) (Public Interest Disclosure Act), and the commencement and continuation of contempt proceedings in COR 2/2010 in reliance on that disclosure constituted 'detrimental action' against Mrs Frigger within the meaning of s 14 of that Act. (8) By reason of the liquidator's fraud, the applicants suffered economic loss including losses totalling $3,040,000 (as 4 See 2018 Frigger decision [46], [47]. 5 See 2018 Frigger decision [83], [90]. -- 6 of 13 -- [2026] WASC 260 MUSIKANTH J Page 7 particularised), together with legal costs incurred in criminal trials, appeals and civil proceedings. (9) The applicants also suffered psychological harm, loss of liberty, loss of consortium, reputational damage and loss of enjoyment of life. 12 The applicants claim the following forms of relief (in addition to interest and costs): damages (including for economic loss, and by way of general, special, exemplary and aggravated damages); orders setting aside the Chapman orders and Sanderson orders; an injunction; an order removing the liquidator; and declaratory relief. The asserted 'fraud' 13 As has recently been observed in other proceedings involving the applicants, an allegation of fraud is not one that ought lightly to be made.6 14 According to the applicants, a declaration that the Chapman and Sanderson orders were procured by fraud is the foundation for all other relief sought.7 They contend that such a declaration is a necessary precondition to recovery under each pleaded head of damage, because none of those losses is said to have arisen independently of the alleged fraud.8 The applicants also characterise the Chapman and Sanderson orders as the mechanism by which the alleged fraud was concealed; including from the applicants themselves.9 15 Mrs Frigger says she has known of the alleged fraud since 2013 but was precluded from referring to it by reason of a non-disclosure order. She says that position changed on 15 April 2026, when Hill J ruled that the confidential affidavit, to which she had previously obtained access notwithstanding its confidential character, had since entered the public domain. 16 The applicants' assertion of fraud centres on statements they say the liquidator made to the Court in the s 477(2B) application before Acting Master Chapman that were false or misleading. They rely on statements said to have been made both in the confidential affidavit and in another affidavit which, on their account, was not subject to any 6 Frigger v Trenfield (No 8) [2024] FCA 1438 [42] (Logan J). 7 Affidavit of Angela Frigger sworn 9 June 2026 [17]. 8 Affidavit of Angela Frigger sworn 9 June 2026 [17]. 9 Affidavit of Hartmut Frigger sworn 22 May 2026, Annexure AF2 to Annexure HF3 [57]. See also Annexure HF3 [21]. -- 7 of 13 -- [2026] WASC 260 MUSIKANTH J Page 8 restriction on access.10 The alleged representations concerned: (a) the identity of the parties to a litigation funding agreement and a costs agreement; (b) the preparation and execution of a proposed indemnity agreement; and (c) the legal advice referred to in [11(5)] above. 17 In support of those assertions, the applicants among other things relied on a transcript of closed court proceedings before Hill J on 15 April 2026 in COR 2/2010. 18 Having regard to the confidential nature of that hearing, it would be inappropriate to say more about the precise content of the applicants' fraud allegations. It is sufficient to record, however, having carefully reviewed all of the affidavit evidence relied upon by the applicants (including the closed court transcript), that it is difficult to see how anything in that material could arguably provide a proper basis for those allegations. 19 It follows that, insofar as the proposed claim depends upon establishing that the Chapman and Sanderson orders were procured by fraud, it does not raise a serious question to be tried. 20 Even if that conclusion were wrong, I would in any event refuse leave for at least the following reasons. Proposed damages claims 21 The proposed damages claims depend on allegations that the liquidator made false or misleading statements or representations to the Court in affidavits filed in support of the s 477(2B) application. 22 No civil claim for damages lies against a party or witness for anything said or done in the course of judicial proceedings. The immunity also extends to preparatory steps, including the giving of affidavit evidence and the filing of documents for the purposes of such proceedings.11 23 The applicants submit that the immunity is not engaged because the liquidator was not acting as a witness in the relevant sense, but as the applicant in ex parte proceedings, and because the applicants were not parties to those proceedings and had no opportunity at the time to challenge the evidence. I do not accept this submission. The damages 10 Affidavit of Hartmut Frigger sworn 22 May 2026, Annexure HF3 [15A]. 11 E.g. D'Orta‑Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 [39] (Gleeson CJ, Gummow, Hayne & Heydon JJ); Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204, 211 - 212 (Brennan CJ, Dawson, Toohey & Gaudron JJ). -- 8 of 13 -- [2026] WASC 260 MUSIKANTH J Page 9 claim is founded upon affidavits filed in support of the s 477(2B) application. The fact that the deponent was also the moving party, or that the application proceeded ex parte, does not alter the character of the affidavits as evidence filed for the purposes of judicial proceedings. 24 Nor is this conclusion affected by the applicants' characterisation of the proposed proceeding as being principally one for equitable relief setting aside orders said to have been procured by fraud, with damages claimed only consequentially.12 That characterisation, if correct, may bear upon relief directed to the orders themselves. It does not, however, avoid the immunity insofar as the applicants seek damages for loss said to have been caused by sworn statements made to the Court, or by the use of those statements in obtaining orders in judicial proceedings. 25 Contrary to the applicants' submissions, I do not understand Cabassi v Vila13 to suggest otherwise. 26 The aspect of the proposed claim relating to Mrs Frigger's asserted inability (by reason of the Chapman and Sanderson orders) to rely on legal advice obtained by the liquidator that had allegedly referred to the existence of exculpatory material is attended by a number of additional difficulties. 27 Not the least of those difficulties is that, to the extent the proposed damages claims depend on these allegations, they would involve an improper collateral attack on the outcome of a criminal trial by means other than the ordinary appellate processes.14 Put another way, a civil proceeding in this Court is not a process by which the Court can proceed on the footing that a conviction not yet overturned on appeal was wrongful. 28 For the above reasons, the proposed damages claims are so obviously untenable that they cannot possibly succeed. It follows that those claims are frivolous. 12 Cf. Applicants’ written submissions filed 10 June 2026 [2(d)]. 13 Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130, 138 - 139 (Rich ACJ), 140 - 141 (Starke J). 14 Cf. Re Griffiths; Ex Parte Homestyle Pty Ltd [2005] WASCA 103 [27] - [28] (McClure P, Roberts Smith JA & Pullin JA agreeing); Ex Parte Vella [2010] WASC 213 [4] (Hall J). See also generally Soo v Victoria Legal Aid [2023] VSCA 330 (Beach JA) and the cases there cited. -- 9 of 13 -- [2026] WASC 260 MUSIKANTH J Page 10 Proposed orders setting aside Chapman and Sanderson orders 29 The Chapman and Sanderson orders were sought by interlocutory process and are interlocutory in nature.15 Both sets of orders were also made in COR 2/2010, an active proceeding which remains on foot. 30 Indeed, a contempt motion brought by the liquidator against Mrs Frigger is presently pending in that matter. The motion evidently concerns alleged breaches by Mrs Frigger of the Chapman orders and (one of) the Sanderson orders involving the alleged use of the confidential affidavit in other proceedings.16 31 Notwithstanding the above, Mrs Frigger contends that fresh proceedings by writ are the 'only available vehicle'17 by which the applicants can pursue their application to set aside the Chapman and Sanderson orders. She advances three reasons for that contention. 32 First, she relies on McDonald v McDonald18 and Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed)19 as authority for the proposition that fraud on the court must be challenged by fresh proceedings. Secondly, she says the fraud issue was raised before Hill J in COR 2/2010, but that Her Honour confined the proceeding to the contempt motion. Thirdly, she says certain information elicited during the closed court hearing on 15 April 2026 were obtained only within the limits of a particular procedural constraint to which she was then subject. 33 The first point is misconceived. McDonald and Clone concerned final or perfected judgments or orders alleged to have been procured by fraud. They do not require the commencement of a fresh substantive proceeding to impugn interlocutory orders made in proceedings which remain on foot. 34 Nor do I accept that the second and third points make the proposed writ an appropriate vehicle for the relief sought. Those matters may explain why the applicants wish to commence fresh proceedings, but they do not explain why the applicants should be permitted to challenge, by fresh writ, interlocutory orders made in extant 15 Affidavit of Angela Frigger sworn 9 June 2026 Annexure AF1. 16 Kitay v Frigger [No 2] [2024] WASC 113 [33] (Hill J); Affidavit of Angela Frigger sworn 9 June 2026 [2]; Writ, new prayer for relief (d). 17 Affidavit of Angela Frigger sworn 9 June 2026, 5. 18 McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529. 19 Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) [2018] HCA 1; (2018) 264 CLR 165. -- 10 of 13 -- [2026] WASC 260 MUSIKANTH J Page 11 proceedings; orders which are, moreover, the very foundation for the pursuit of a contempt motion currently before this Court, and brought by the same party against whom the fresh proceedings are proposed. 35 In my view, to permit the applicants to challenge the validity of those orders by fresh substantive proceedings in these circumstances would be to facilitate use of the Court's procedure in a way which would not only bring the administration of justice into disrepute but would likely also be unjustifiably oppressive, and productive of serious and unjustified trouble and harassment, to the liquidator.20 36 It follows that the pursuit of a challenge to the validity of the Chapman and Sanderson orders by way of fresh writ would be vexatious and an abuse of process. Proposed injunctive relief 37 By the writ, the applicants also propose seeking an injunction, pursuant to s 15A(1) of the Public Interest Disclosure Act, restraining the liquidator from continuing his contempt motion. 38 In support of this claim, the indorsement asserts that Mrs Frigger's disclosure of the confidential affidavit to the Director of Public Prosecutions in the District Court criminal proceedings constituted a public interest disclosure to a proper authority,21 and that the continuation of the contempt motion in reliance upon that protected disclosure constitutes detrimental action against her.22 39 By s 3(1) of the Public Disclosure Act, 'detrimental action' is defined to include action causing, comprising, or involving: (a) injury, damage, or loss; (b) intimidation or harassment; (c) adverse discrimination, disadvantage, or adverse treatment in relation to a person's career, profession, employment, trade, or business; or (d) a reprisal. 40 Despite having had the opportunity to depose to the factual contentions advanced in support of their claims, the applicants have put before the Court no evidentiary basis from which it could arguably be inferred that the liquidator's continuation of the contempt motion constitutes detrimental action in any of those respects. 20 Cf. Ex parte Gates [26], [33]. 21 Public Interest Disclosure Act, s 5. 22 Public Interest Disclosure Act, s 14. -- 11 of 13 -- [2026] WASC 260 MUSIKANTH J Page 12 41 In any event, it would be vexatious, and a manifest abuse of process, to pursue separate substantive proceedings seeking, in effect, to stay the continuation of a contempt motion currently pending before another judge of this Court. Any such application ought to be brought before Hill J in COR 2/2010. Proposed declarations 42 The writ contemplates declarations the following effect: (1) That Mrs Frigger's disclosure of the confidential affidavit to the Director of Public Prosecutions in the District Court criminal proceedings was a disclosure of public interest information to a proper authority within the meaning of s 5 of the Public Interest Disclosure Act. (2) That the commencement and continuation of the contempt proceeding in COR 2/2010 constitutes detrimental action against Mrs Frigger within the meaning of s 14 of that Act. (3) That the Chapman and Sanderson orders were obtained by fraud. 43 The observations in the preceding section apply with equal force to proposed declarations (1) and (2). 44 In circumstances where all of the other proposed claims would be frivolous, vexatious or an abuse of process, for the reasons outlined above, any declaratory relief would in any event be futile.23 For at least that reason, the proposed claims for declaratory relief have no reasonable prospects of success. They are, accordingly, an abuse of process.24 Order removing the liquidator 45 This proposed form of relief formed no part of the writ originally presented for filing. It was included only in the proposed amendments filed after the hearing. 46 No basis for such an order is apparent from the materials. In any event, the relief is procedurally incompetent. An application for an order of that kind is an application required or permitted by the 23 Cf. Ainsworth v Criminal Justice Commission [1992] HCA 10; (1991) 175 CLR 564, 582 [38] (Mason CJ, Dawson, Toohey & Gaudron JJ) 24 Cf. Ex parte Gates [31]. -- 12 of 13 -- [2026] WASC 260 MUSIKANTH J Page 13 Corporations Act to be made to the Court and, by force of r 2.2 of the Supreme Court (Corporations) (WA) Rules 2004 (WA), must be brought either by originating process (if no proceeding is on foot) or by interlocutory process within an existing proceeding. Here, there is already a proceeding on foot: COR 2/2010. Whatever the case, fresh proceedings commenced by writ are not a procedure recognised or permitted by those rules and cannot validly invoke the Court's corporations jurisdiction for that purpose. 47 It follows that the proposed amendment seeks relief that could only be pursued, if at all, in COR 2/2010. In those circumstances, the attempt to obtain such relief in the proposed proceeding is not only incompetent but would be an abuse of process. Conclusion 48 For the foregoing reasons, I am satisfied that to permit the filing of the proposed writ would be to allow proceedings to be commenced that are frivolous, vexatious, and an abuse of process. 49 Leave to file the writ is refused. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. NH Associate to the Hon Justice Musikanth 25 JUNE 2026 -- 13 of 13 --