FEDERAL COURT OF AUSTRALIA
Frigger v Banning (No 5) [2018] FCA 361
File number: | WAD 607 of 2015 |
Judge: | COLVIN J |
Date of judgment: | |
Registry: | Western Australia |
Division: | General Division |
National Practice Area: | Commercial and Corporations |
Sub-area: | Corporations and Corporate Insolvency |
Category: | No Catchwords |
Number of paragraphs: | |
Counsel for the Respondents: | Mr TR Stephenson |
Solicitor for the Respondents: | Eastwood Law |
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Application for recusal on the ground of apprehension of bias refused.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLVIN J:
1 In this matter, Mr and Mrs Frigger have asked that I recuse myself from further hearing any aspect of these proceedings on the basis of matters that occurred in 2009. Those matters were addressed in a letter that was provided to the Court from MDS Legal dated 16 March 2018.
2 In addition, this morning I have made a statement to the parties concerning my recollection of the relevant events. The statement was to the following effect:
This morning I have been informed that in 2009 I provided advice in conference to a lawyer who was acting for a party against Computer Accounting & Tax Pty Ltd. The advice concerned the personal obligations of the lawyer in relation to the use of a document obtained in court proceedings to which Computer Accounting & Tax was a party.
Acting on that advice, the lawyer applied for and obtained orders releasing him from the implied undertaking in respect of the document. Computer Accounting & Tax opposed those orders and reasons for decision were published: Forbes v Computer Accounting & Tax Pty Ltd [2009] WASC 89.
I read those reasons for the first time this morning. Until being reminded this morning I had no recollection of providing the advice to the lawyer in 2009. Having been reminded, I have a general recollection of providing the advice.
I did not have any involvement in the application or the dispute which led to the document being sought. I did not form any view about those matters. I will now invite the parties to make any submissions they wish to make arising from those matters.
3 I have heard this morning from Mr and Mrs Frigger and from Mr Stephenson for the respondents in relation to the application, and having regard to the matters that I indicated in the statement that I have already made, it seems to me that there is no occasion for recusal in this instance.
4 In particular, first, there was no occasion for me to consider or form any view, adverse or otherwise, about Computer Accounting & Tax or its officers in the course of providing advice. Second, the advice was provided in 2009. Third, the advice did not concern any matter currently before me. Fourth, the advice was not given to any person who is a party in the current proceedings. Fifth, I did not appear in any court proceedings for a party against the interests of Computer Accounting & Tax.
5 In the view I take, these are all matters which a fair-minded observer would be taken to know, in forming a view as to whether there was or is a reasonable apprehension of bias arising from me having the conduct of these proceedings as case manager and, if necessary, dealing with the matter finally. So in those circumstances, I have formed the view that no reasonable apprehension of bias on my part arises, and I propose to deal with this matter.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin. |
