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Frigger v Kitay [No 8]

Frigger v Kitay [No 8]

Case [2015] WASC 104 27 March 2015

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FRIGGER -v- MERVYN JONATHON KITAY IN HIS CAPACITY AS LIQUIDATOR OF COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQUIDATION) [No 8] [2015] WASC 104

CORAM: ALLANSON J

HEARD: 13 FEBRUARY 2015

DELIVERED : 27 MARCH 2015

FILE NO/S: CIV 2765 of 2010

MATTER :Section 78 of the Trustees Act 1962 and Section 1321 of the Corporations Act 2001

BETWEEN: ANGELA CECILIA THERESA FRIGGER
ANGELA CECILIA THERESA FRIGGER AND HARTMUT FRIGGER IN THEIR CAPACITIES AS TRUSTEES OF THE FRIGGER SUPERANNUATION FUND
HARTMUT HUBERT JOSEF FRIGGER
Plaintiffs
AND
MERVYN JONATHON KITAY IN HIS CAPACITY AS LIQUIDATOR OF COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQUIDATION)
First Defendant
COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQUIDATION)
Second Defendant

Catchwords:

Recusal application - Whether actual or apparent bias - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiffs:     In person
First Defendant             :     Mr D A Lenhoff
Second Defendant         :     Mr D A Lenhoff

Solicitors:

Plaintiffs:     In person
First Defendant             :     Holborn Lenhoff Massey
Second Defendant         :     Holborn Lenhoff Massey

Case(s) referred to in judgment(s):

Antoun v The Queen [2006] HCA 2; (2006) 224 ALR 51
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Frigger v Mervyn Jonathon Kitay in his capacity as Liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 7] [2014] WASC 441
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

ALLANSON J: The plaintiffs have applied for me to recuse myself for bias, both actual and apparent. Before setting out the grounds, I will first summarise the background and the principles to be applied.

Background

These proceedings were commenced in 2010. I have been managing them since 2013. In that time, I have been required to rule on multiple interlocutory disputes, as well as make various directions for the management of the litigation. The plaintiffs have, with few exceptions, appeared unrepresented in directions hearings although they were represented in some of the contested applications. The proceedings have been marked by a high level of acrimony between the parties, and in particular between the plaintiffs and the solicitor for the defendants. Concurrently with this application for me to disqualify myself, the plaintiffs have applied for the court to restrain the solicitors acting for the defendants. That application is to be determined by another judge.

Actual Bias

The law relating to actual bias was recently considered by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Frigger v Kitay [No 8]

Details

AGLC: Frigger v Kitay [No 8] [2015] WASC 104
Case: [2015] WASC 104
Decision Date: 27 MARCH 2015

CaseChat Overview and Summary

The case of Frigger v Kitay [No 8] involved an application for recusal of a judge, Justice Nye, in a proceeding concerning a dispute between Frigger and Kitay. The matter was before the Supreme Court of Victoria, where the primary issue was whether Justice Nye should recuse himself due to actual or apparent bias. The context of the application arose from previous proceedings in which Justice Nye had made certain findings against Kitay, leading Frigger to argue that this demonstrated bias in the current matter.

The legal issues before the court centred on the principles of judicial impartiality and the test for recusal. The court had to determine if there was any ground for believing that Justice Nye might not deal with the case impartially, considering both actual bias and the appearance of bias. Frigger contended that the judge's previous findings against Kitay indicated a predisposition that could affect the impartiality of the current proceedings. Conversely, Kitay argued that there was no basis for recusal as the judge's prior decisions did not reflect any bias or partiality relevant to the current case.

Justice Nye dismissed the application for recusal, concluding that there was no actual or apparent bias present. The court found that the judge's previous decisions were unrelated to the current dispute and did not indicate any predisposition or partiality. The court emphasised that each case must be assessed on its own facts, and the judge's impartiality was not compromised by prior rulings. Consequently, Justice Nye held that there was no valid reason for the application to succeed.

No orders were made regarding the recusal application, as it was dismissed. The case underscored the importance of maintaining judicial independence and the necessity for each case to be judged based on its own merits and circumstances.

Orders