Frigger v Lean
[2016] WASCA 190
•2 NOVEMBER 2016
FRIGGER -v- LEAN [2016] WASCA 190
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 190 | |
| THE COURT OF APPEAL (WA) | 02/11/2016 | ||
| Case No: | CACV:65/2015 | 21 OCTOBER 2016 | |
| Coram: | MARTIN CJ | 21/10/16 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ANGELA FRIGGER HARTMUT FRIGGER GRAEME TREVOR LEAN |
Catchwords: | Application for recusal on grounds of actual and alleged bias Whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question to be decided Turns on own facts |
Legislation: | Nil |
Case References: | Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 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 2] [2009] WASCA 183 Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FRIGGER -v- LEAN [2016] WASCA 190 CORAM : MARTIN CJ HEARD : 21 OCTOBER 2016 DELIVERED : 21 OCTOBER 2016 PUBLISHED : 2 NOVEMBER 2016 FILE NO/S : CACV 65 of 2015 BETWEEN : ANGELA FRIGGER
- HARTMUT FRIGGER
Applicants
AND
GRAEME TREVOR LEAN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MITCHELL J
Citation : FRIGGER -v- LEAN [2015] WASC 125
File No : CIV 2408 of 2014
Catchwords:
Application for recusal on grounds of actual and alleged bias - Whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question to be decided - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicants : In person
Respondent : No appearance
Solicitors:
Applicants : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
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 2] [2009] WASCA 183
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S)
- MARTIN CJ:
1 (This judgment was delivered extemporaneously on 21 October 2016 and has been edited from the transcript).
2 Hartmut and Angela Frigger (the applicants) have applied for leave to appeal from the decision of a judge of the Supreme Court who ordered that the proceedings they commenced against Mr Graeme Lean be stayed on the ground that they are an abuse of process. Their application for leave to appeal has been referred to the hearing of the appeal which has been listed for Monday, 24 October 2016. I have been listed to preside at that appeal. The applicants have applied to me to recuse myself from the hearing of that appeal on the ground of both actual and apprehended bias. For the reasons which follow, I have concluded that their application is entirely without substance and must be dismissed.
3 As I would understand it, the submission that I should recuse myself on the ground of actual bias relies on the same matters and propositions as have been identified in support of the submission that I should recuse myself on the ground of apprehended bias. Mrs Frigger confirmed this during oral submissions. The reasons which I am about to give in relation to apprehended bias therefore apply equally to the proposition that I should recuse myself on the ground of actual bias. I would, however, add that if I entertained the slightest doubt that I was unable to bring an impartial and unprejudiced mind to the resolution of the questions likely to arise in the hearing and determination of the application for leave to appeal and the appeal I would, of course, recuse myself. However, I do not entertain any such doubt.
4 I turn now to the assertion that I should recuse myself on the ground of apprehended bias. The test to be applied when such an assertion is made has been well established by a series of decisions of the High Court. The question to be addressed is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: see, for example, Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427.
5 As the plurality observed in that case, the hypothetical fair-minded lay observer is postulated in order to emphasise that the test is objective and is founded upon the need for public confidence in the judiciary.1
6 I will apply that test to the matters upon which the applicants rely in support of their application. I take those matters to be identified in the affidavit sworn by Ms Angela Frigger on behalf of the applicants on 19 October 2016. Mrs Frigger has confirmed that those are the matters upon which the applicants rely.
7 The applicants rely upon a number of matters associated with my hearing and determination of the appeal in Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183. The respondent to that appeal, Computer Accounting and Tax Pty Ltd, was a company then under the effective control of the applicants.
8 The first matter associated with that appeal to which the applicants draw attention is my disclosure of an acquaintance with Mr David Liggins, a valuer who had given evidence in the proceedings at first instance on behalf of Accounting and Tax Pty Ltd. In her affidavit, Mrs Frigger asserts a belief that my friendship with Mr Liggins lead to actual bias which resulted in a gross denial of procedural fairness and substantial losses. However, if that belief is held it is irrational and entirely without substance.
9 It should first be noted that when I disclosed my association with Mr Liggins and invited submissions from the parties on the question of whether that association provided any impediment to my continuing to sit, neither party contended that my association with Mr Liggins gave rise to any apprehension of bias.
10 Further, in my reasons for concluding that the appeal should be upheld, with which both other members of the court agreed, I was strongly critical of the evidence given by Mr Liggins, who is now deceased. My conclusion that the evidence which he gave was so deficient that it was inadmissible was a substantial component of my reasons for upholding the appeal.
11 In those circumstances, no fair-minded lay observer cognisant of the facts would have any basis whatsoever for apprehending that my disclosed association with Mr Liggins gave rise to any possibility that I had not brought an impartial and unprejudiced mind to the resolution of the questions which arose in that appeal.
12 Second, the applicants complain that the Court of Appeal refused to remit the matter to the trial judge for rehearing on the basis of additional evidence to be adduced. My reasons for concluding that the respondent company should not be permitted to adduce further evidence in support of its claim for damages at a rehearing were explained in full in my reasons for decision, with which, as I have noted, the other members of the court agreed.
13 Those reasons are entirely consistent with the long established principles that a party is bound by the manner in which their case is conducted at trial and that an appeal does not provide an occasion for a party whose case was deficient in some respect to request a rehearing in order that they may remedy that deficiency. My conventional application of established principle to the facts of that appeal could not provide any basis for a perception by a fair-minded lay observer that I had not brought an impartial and unprejudiced mind to the resolution of that case.
14 Third, Mrs Frigger characterises the substance of my decision in that appeal using various hyperbolic adjectives which it is unnecessary to repeat. However, as I have noted, my reasons in that case were adopted by the other two members of the court and an application for special leave to appeal was refused by the High Court. Whatever view Mrs Frigger may have of the outcome of that appeal and of the quality of the reasons given, it does not provide any basis by which a fair-minded lay observer might apprehend that I had not brought an impartial and unprejudiced mind to the resolution of the issues which the court was required to decide in that case.
15 Next, the applicants rely upon the decision of the Court of Appeal with respect to the costs of that appeal. The reasons for the court's decision with respect to those matters were published as the joint reasons of all members of the court.2
16 In those reasons the court noted that it '… was entirely inappropriate' for Mrs Frigger to have written to the court while she was represented by solicitors on the record objecting to the extraction of orders to which counsel for the company in which she had an interest had consented. That characterisation of Mrs Frigger's actions was entirely open to the court and provides no basis upon which a fair-minded lay observer might apprehend that I, as a member of the court, had not brought an impartial and unprejudiced mind to the resolution of the question.
17 Next, the applicants complain that the court ordered that the company in which they had an interest pay the costs of the issue relating to costs on an indemnity basis. The reasons for that order are set out in the reasons published by the court and are entirely consistent with the application of established principles to the particular circumstances of that case. The applicants draw attention to their assertion that counsel representing the company in which they had an interest acted without instructions. That proposition could only give rise to issues as between the company and its legal advisors and has no effect upon the inconsistency of the position adopted by the respondent company in its dealings with the court and with the appellants in that case, which inconsistencies magnified the costs incurred by the appellants and justified the order for indemnity costs. Again, there is absolutely nothing in the court's decision in that case that could provide a fair-minded lay observer with any basis for an apprehension that I had not brought an impartial and unprejudiced mind to bear upon the resolution of the issues in that case.
18 Next, the applicants complain of my part in a decision of the Court of Appeal to refuse their attempt to reopen the decision in the earlier appeal in the latter part of 2015. The court, of which I was a part, rejected that application because the relevant party to the appeal, Computer Accounting and Tax Pty Ltd, was in liquidation and the liquidator had not consented to the application brought by the applicants. The court's observation that, in those circumstances, the applicants were attempting to usurp the role of the liquidator was entirely consistent with established principle and entirely incapable of providing any basis upon which a fair-minded lay observer might reasonably apprehend that I had not brought an impartial or unprejudiced mind to bear upon the resolution of the questions the court was required to decide.
19 Next, the applicants rely upon matters connected with the recent hearing of their appeals in Frigger v Clavey Legal Pty Ltd.3 The applicants assert that during the course of the hearing I humiliated their counsel. The precise basis of that submission is not apparent but it appears to misconceive the nature and purpose of an appellate hearing. The procedures of the Court of Appeal require the parties to identify the issues to be determined by the court well in advance of the hearing by the provision of grounds of appeal in written submissions. The purpose of the hearing is to provide the parties with an opportunity to elaborate upon the substantive propositions contained within those documents and to enable the court to put to the parties propositions which are contrary to those asserted in order that the parties are given the opportunity to respond to those propositions, consistently with the principles of procedural fairness.
20 That is precisely what occurred during the hearing of the Friggers' appeal. At various points throughout that hearing I put to their counsel propositions contrary to the assertions he was making in order to provide him with the opportunity to respond to those propositions. The fact that Mrs Frigger may have a subjective view as to the effect of that process upon her counsel is not to the point and provides no basis upon which a fair-minded lay observer might apprehend that I was not bringing an impartial and unprejudiced mind to the resolution of the issues arising in the case.
21 The applicants also complain that I advised their counsel on behalf of the court that his oral argument would be limited to a period of two hours. That direction was agreed upon by all members of the court following discussion prior to the hearing and is entirely consistent with the usual procedures of the Court of Appeal, which are designed to maximise the efficient use of the limited resources of that court. In the view of all members of the court, two hours was quite sufficient to enable counsel for the applicants to orally elaborate upon the propositions contained in the written submissions. Counsel did not object to that time limit when it was imposed and, in fact, the court permitted counsel to run slightly over the allotted time.
22 In the same context, the applicants complain that they were given five minutes for oral submissions in relation to their appeal on the subject of costs. However, the fact that their counsel decided to allocate a relatively small portion of the two hours he was given to the costs appeal was a matter for him and was not the subject of any direction by the court. The manner in which counsel for the Friggers chose to allocate the time allotted to him does not provide any basis whatever for an apprehension on the part of a fair-minded lay observer that I was not bringing an impartial and unprejudiced mind to the resolution of the questions arising in that case.
23 Next, the applicants rely upon an assertion in Mrs Frigger's affidavit to the effect that I stated in the course of argument that Mrs Frigger had lied to the court on numerous occasions. That assertion is simply incorrect.
24 At no point during the course of argument did I express any conclusion with respect to Mrs Frigger's veracity. What I did say on a number of occasions was that the trial judge, whose decision was the subject of the appeal, had found Mrs Frigger to be a deliberately untruthful witness for the detailed reasons which he gave.
25 The point I made to counsel for the applicants was that, unless that finding was disturbed, I had difficulty in seeing how their appeal could succeed. The purpose of making that point was, of course, to invite counsel to address any alleged errors in that finding of fact by the trial judge in the course of his submissions. That course is entirely conventional and entirely consistent with established procedure and practice in the Court of Appeal and with the principles of procedural fairness. None of my comments during the course of argument made for the purpose of inviting a response from counsel could provide any fair-minded lay observer with any basis for an apprehension that I was not bringing an impartial and unprejudiced mind to bear upon the resolution of the questions in that case.
26 Next, the applicants rely upon an assertion made by Mrs Frigger in her affidavit to the effect that I 'had already made up my mind about the appeal and had no interest in listening and evaluating any oral arguments from' their counsel. That assertion is difficult to reconcile with the complaint that I 'constantly interfered and intervened in' the oral submissions made by their counsel.
27 In any event, any fair-minded lay observer present at the hearing or reviewing the transcript of that hearing could only conclude from my repeated questions of counsel for the applicants that I was paying very close attention to the oral submissions he was making throughout the entire course of those submissions. The objective facts are entirely contrary to the subjective views expressed by Mrs Frigger and provide no basis whatever for any apprehension that I was not bringing an impartial and unprejudiced mind to bear upon the resolution of the issues in that case.
28 For these reasons, none of the matters raised by the applicants, whether viewed individually or collectively, provide any basis whatever for any apprehension on the part of a fair-minded lay observer that I am unable or might fail to bring an impartial and unprejudiced mind to bear upon the questions which will arise in the hearing of the appeal in Frigger v Lean.
29 As I have noted, the application for recusal on the ground of actual basis is brought on the basis that actual bias can be inferred from the matters identified in support of the application based on apprehended bias. As those matters are entirely without substance, it follows that the application for recusal on the ground of actual bias is also entirely without substance.
30 For these reasons, the application for recusal will be dismissed.
1Michael Wilson & Partners Ltd v Nicholls [32] (Gummow ACJ, Hayne, Crennan & Bell JJ); quoting Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
2Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S).
3Frigger v Clavey Legal Pty Ltd CACV 56 of 2015 and CACV 162 of 2015.
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