FRIGGER -v- LEAN [2016] WASCA 190

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASCA 190
Court:	THE COURT OF APPEAL (WA)	Published:	02/11/2016
Case No:	CACV:65/2015	Heard:	21 OCTOBER 2016
Coram:	MARTIN CJ	Delivered:	21/10/16
No of pages:	9	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	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.…

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 Lean

Details

AGLC: Frigger v Lean [2016] WASCA 190
Case: [2016] WASCA 190
Decision Date: 2 NOVEMBER 2016

CaseChat Overview and Summary

Frigger v Lean was a legal matter that was heard in the Federal Court of Australia. The plaintiff, Mr Frigger, sought to have the judge recused on the grounds of actual and alleged bias. The defendant, Mr Lean, contested the application for recusal, and the case centred on 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. The case hinged on the unique facts of the situation, and the court was required to consider the circumstances to determine if any bias was present.

The legal issues that the court had to decide were whether the judge's conduct or previous statements indicated actual or alleged bias and whether such bias was sufficient to warrant recusal. The court had to assess the judge's impartiality by examining the facts and circumstances of the case, including any interactions or statements made by the judge that could be perceived as biased. The court also considered the principle that a fair-minded lay observer might reasonably apprehend bias, as established in the case of Ebner v Official Trustee in Bankruptcy.

The court found that the judge's conduct and statements did not indicate any actual or alleged bias. The judge's actions and comments were consistent with the proper exercise of judicial impartiality, and there was no evidence to suggest that a fair-minded lay observer might reasonably apprehend bias. Consequently, the application for recusal was dismissed. The court upheld the principle that a judge's impartiality is to be assessed based on the actual circumstances of each case, and it was not sufficient to warrant recusal in this instance. The orders of the court were that the application for recusal was dismissed.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.