Federal Court of Australia

Frigger (Trustee) v Bank of Queensland Limited [2025] FCA 447

ORDERS

THE COURT ORDERS THAT:

1.    The application for recusal is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

VANDONGEN J:

1    The applicants, Hartmut and Angela Frigger (Mr and Mrs Frigger) seek injunctive relief against the first respondent, Bank of Queensland Ltd (BoQ), as well as orders that the first respondent pay damages, pursuant to s 12GD and s 12GF of the Australian Securities and Investments Commissions Act 2001 (Cth), respectively. These proceedings concern allegations that the first respondent has wrongfully denied the applicants access to money standing to the credit of two bank accounts on the ground that it forms part of the applicants' bankrupt estates.

2    The second respondent is the trustee in bankruptcy of the applicants' respective bankrupt estates.

3    After this matter was allocated to me, and at the commencement of the first case management hearing before me, I reminded Mr and Mrs Frigger that I had previously acted as counsel against them in a successful application for summary judgment in proceedings before Master Sanderson in the Supreme Court of Western Australia: Frigger v Professional Services of Australia Pty Ltd [2022] WASC 158 (Supreme Court Proceedings). I also noted that I had acted as counsel when seeking an order for security for costs in an appeal the applicants had brought against the decision of Master Sanderson: Frigger v Professional Services of Australia Pty Ltd [2022] WASCA 119 (Court of Appeal Proceedings).

4    After the case management hearing, and in an interlocutory application filed on 24 March 2025, the applicants applied for an order that I recuse myself. In support of their application, the applicants filed an affidavit sworn by Mrs Frigger, as well as a written outline of submissions. Then, at a hearing that took place on 8 April 2025, both applicants made oral submissions in support of their application.

5    The respondents took no part in the application for recusal.

6    At the conclusion of the hearing on 8 April 2025, I made an order that the applicants were to file any further affidavit evidence on which they wished to rely in support of their application by 4.00 pm on 11 April 2025. Pursuant to that order, on 10 April 2025 the applicants filed a further affidavit sworn by Mrs Frigger.

7    For the following reasons, I have decided to dismiss the application for recusal.

Background

8    To properly understand the basis for the application for recusal, it is necessary to provide some context.

Supreme Court Proceedings

9    In 2021, the applicants commenced proceedings in the Supreme Court of Western Australia against Professional Services of Australia Pty Ltd (PSA), Sandra May Banning, David Abraham Lenhoff, Timothy Richard Stephenson, and Cameron Victor Eastwood. Those proceedings were commenced against a background of what Mrs Frigger herself described during her oral submissions as a 'tsunami of litigation'.

10    Fortunately, the history of almost all of this litigation was comprehensively summarised by Murphy and Mitchell JJA at [38]-[87] of their reasons in the Court of Appeal Proceedings. As that summary demonstrates, it all began with proceedings in which Computer Accounting and Tax Pty Ltd (CAT), a corporate vehicle used by Mr and Mrs Frigger for investment purposes, sued PSA and its director, Mr Martin Banning (Ms Banning's late husband), for alleged misleading or deceptive conduct in relation to the sale of a service station to CAT in 2003.

11    CAT was successful at first instance: Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133. However, after PSA and Mr Banning appealed against the orders made at first instance, the Court of Appeal substantially reduced the award of damages that had been made in CAT's favour. Further orders were made in relation to the costs of the trial and of the appeal, which were adverse to CAT.

12    In the Court of Appeal Proceedings, Murphy and Mitchell JJA observed at [53] of their reasons that:

Mr and Mrs Frigger have since commenced, or otherwise been involved in, a myriad of other proceedings in the General Division of the Supreme Court, as well as proceedings in this court and in the District Court, in relation to matters associated with the preceding litigation or the events with which the litigation is concerned.

13    The third, fourth and fifth defendants in the Supreme Court Proceedings were lawyers who were alleged to have acted for various entities and individuals, including PSA, in some of those 'myriad of other proceedings'.

14    In their statement of claim filed in the Supreme Court Proceedings, Mr and Mrs Frigger alleged that at all material times PSA was incapacitated from operating as a company capable of suing and being sued. It was on this basis that Mr and Mrs Frigger contended in those proceedings that several other previously determined proceedings were 'nullities'.

15    For present purposes, it is only necessary to refer to one of the two arguments on which Mr and Mrs Frigger relied in support of that contention. In that regard, they contended that PSA did not have two directors, contrary to the obligation under s 221(1) of the Corporations Act 2001 (Cth) that a corporation was to have two directors (the correct provision was, in fact, s 248F of the Corporations Act).

16    On the back of this contention, Mr and Mrs Frigger made claims in the Supreme Court Proceedings against each lawyer because of their involvement in the previous proceedings as legal practitioners. In that regard, Mr and Mrs Frigger sought compensation from each lawyer for what they claimed was a 'loss of credit and reputation' that flowed from their alleged wrongful participation in the previous proceedings, and compensation reflecting several adverse costs orders that had been made against them.

17    I was briefed by a law firm, Barry Nilsson Lawyers, to appear on behalf of the fourth defendant in connection with an application for summary judgment in the Supreme Court Proceedings. Orders were also sought, in the alternative, that the statement of claim filed by Mr and Mrs Frigger be struck out, or that there be security for costs. The third and fifth defendants were represented by different law firms. However, as the interests of those defendants coincided with the interests of the fourth defendant, and in the interests of efficiency, I was also briefed to appear on behalf of those defendants in connection with their own applications for similar orders.

18    The first and second defendants were separately represented. However, they also made applications for summary judgment, which were heard at the same time as the applications made by the third, fourth and fifth defendants.

19    In support of their applications, the third, fourth and fifth defendants argued that the statement of claim should be struck out because it would prejudice, embarrass or delay a fair trial. They also contended that they were entitled to summary judgment because the causes of action pleaded had vested in Mr and Mrs Frigger's trustee in bankruptcy, and that, in any event, specific causes of action, as pleaded, had no chance of success. In relation to the application for security for costs, it was argued that the prospects of success for Mr and Mrs Frigger's claims were very low, and that there had been previous unmet costs and security for costs orders.

20    Having regard to the submissions made by Mr and Mrs Frigger in this matter, it is necessary to say something about what occurred at the hearing of the applications for summary judgment and other orders that took place in the Supreme Court Proceedings before Master Sanderson on 9 March 2022.

21    The first and second defendants in the Supreme Court Proceedings relied on an affidavit sworn by their solicitor in support of their application for summary judgment. Attached to that affidavit was a document entitled 'Memorandum & Articles of Association' for a company called 'Liberty Oil (Australia) Pty Ltd'. Liberty Oil is the former name of PSA: Frigger v Professional Services of Australia Pty Ltd (No 3) [2023] FCA 520. Although the Memorandum had several places in which signatures were required to have been affixed, no signatures appeared in the document that was attached to the affidavit relied on by the first and second defendants.

22    The third, fourth and fifth defendants also relied on the Memorandum in support of a submission that PSA was not required to have two directors, contrary to the contentions made by Mr and Mrs Frigger.

23    During the hearing of the application for summary judgment, Mr and Mrs Frigger raised an objection to the Memorandum because the copy that was in evidence had not been signed by the original subscribers. After a break during the hearing before Master Sanderson, the first and second defendants' solicitor obtained what appeared to be a signed copy of the Memorandum and provided it to their counsel, who then tendered it in evidence.

24    Subsequently, Mr and Mrs Frigger have alleged that the signatures of the original subscribers of PSA that appeared on the signed copy of the Memorandum tendered in evidence are not genuine but are simulations placed on the document by a person or persons unknown. In effect, Mr and Mrs Frigger have alleged that the signed copy of the Memorandum is a forgery. It is on that basis that they have then unsuccessfully sought to have the registration of PSA declared invalid ab initio: Frigger v Professional Services of Australia Pty Ltd [2022] FCA 1477 at [58]. The evident purpose of attempting to have the registration of PSA declared invalid has been to provide a foundation for an argument that orders made in historical litigation involving PSA are of no effect.

25    I will return to deal with the issue of the signed Memorandum in due course.

26    Summary judgment was ultimately granted in favour of all of the defendants in the Supreme Court Proceedings. In that regard, the Supreme Court found that Mr and Mrs Frigger's case against the defendants was 'in all respects hopeless'.

27    Mr and Mrs Frigger then appealed against the decision in the Supreme Court Proceedings to the Court of Appeal.

Court of Appeal Proceedings

28    In their appeal, Mr and Mrs Frigger sought to rely on two grounds of appeal. It is unnecessary to reproduce them. It is, however, necessary to note that it was contended that Master Sanderson erred in law by summarily dismissing the appellants' claims because the respondents 'committed fraud on the court by preparing and adducing two fraudulent versions of [the Memorandum], one of which contained forged signatures of the original subscribers' and because the master 'was aware of the fraud but excluded it from his reasons'.

29    After Mr and Mrs Frigger filed their notice of appeal against the decision of Master Sanderson, the third, fourth and fifth defendants in the Supreme Court Proceedings applied for security for costs. Once again, I was briefed to appear as counsel to argue that application.

30    In support of the application for security for costs, the defendants relied on affidavit evidence. Mr and Mrs Frigger also relied on affidavit evidence in seeking to resist the application. Relevantly, Mrs Frigger swore an affidavit in which she claimed that the registration of PSA was 'invalid ab initio'. The affidavit also annexed a copy of a proposed substituted statement of claim. As the Court of Appeal noted in their reasons at [18]:

The document in substance was the same version of the proposed statement of claim in respect of which Mr and Mrs Frigger contend that the master should have granted leave to replead, as alleged in ground 2 of the appeal. The proposed substituted statement of claim deletes reference to PSA as first defendant in the primary proceedings, purports to add new parties as sixth and seventh defendants, and alleges fraud in relation to PSA's constitution. It otherwise maintains the general architecture of the primary proceedings, insofar as it alleges that PSA had no corporate existence and, consequently, no capacity to sue or be sued, and alleges that various proceedings were 'nullities'. The alleged nullities included proceedings in relation to the Court of Appeal judgment in favour of PSA in late 2009, the winding up of CAT in insolvency in 2010 and certain costs orders.

31    The Court of Appeal also noted at [20] of its reasons for decision that submissions were made on behalf of the third, fourth and fifth defendants that there should be an order for security for costs because:

the application was made promptly, there was cogent evidence that a costs order would unlikely be met, there was evidence of significant failures in the past to comply with costs orders and security for costs orders, and there was no suggestion that an order for security would stifle the appeal. Also, the appellants' prospects of success were weak. In oral submissions, the third, fourth and fifth respondents submitted (amongst other things) that the primary proceedings constituted an impermissible collateral attack on judgments of the court.

32    Ultimately, the Court of Appeal made orders that Mr and Mrs Frigger were to pay into court, by way of security for the costs of the third, fourth and fifth defendants, the sum of $50,000. Orders were also made that the appeal be stayed pending payment into court of such security.

33    As Mr and Mrs Frigger did not pay any money into court as required by those orders, the appeal was subsequently dismissed.

34    Having set out the relevant background to the application for recusal, it is now necessary to identify the relevant principles that must be applied.

The relevant principles

35    The relevant principles that must be applied in circumstances in which there is an application for disqualification, as here, are well settled. Those principles were helpfully summarised by Mitchell and Vaughan JJA in Pastor v Aegis Aged Care Staff Pty Ltd [No 3] [2023] WASCA 128 at [38], citing Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507 and Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8]:

Where there is an application for disqualification, two different types of bias may be alleged: actual or apprehended. Actual bias requires proof that a decision-maker in fact approached the issues with a closed mind or had prejudged them such that he or she was 'so committed to a particular outcome that he or she will not alter that outcome, regardless of what evidence or arguments are presented'. Apprehended bias requires consideration of whether, in all the circumstances, a fair-minded lay observer with knowledge of the objective facts might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question.

(footnotes omitted)

36    The application of the test for apprehended bias involves two steps. First, it requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits. Second, there must be an identified logical connection between that matter and the feared deviation from the course of deciding the case on its merits: Ebner at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

37    In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 it was accepted that there is a third step, which requires a consideration of the reasonableness of the apprehension of bias from the perspective of a fair-minded lay observer: at [38] (Kiefel CJ and Gageler J), [67] (Gordon J), [225] (Gleeson J), [274] (Jagot J); see also Director of Public Prosecutions v Smith [2024] HCA 32 at [92] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ).

Determination of Mr and Mrs Frigger's contention that I should recuse myself

38    It is difficult to follow Mr and Mrs Frigger's contentions, and to identify with precision what they say might lead me to decide this case other than on its legal and factual merits.

39    In their written submissions, the matters that were said might make me decide this case other than on its legal and factual merits were expressed in the following way:

The Applicants identify that the matter leading to possible bias is His Honour's previous representation of a party alleged to have engaged in serious misconduct, which is now directly or indirectly central to the factual and legal questions before the Court.

The question whether PSA had sufficient directors to form a quorum for a meeting, which was decided against the Applicants in CIV2135/2021 [sic - CIV1309/2021] relying on Justice Vandongen['s] submissions that PSA did indeed have sufficient directors when he adduced a fraudulent and forged constitution, has now been overturned in this court by Justice Feutrill's factual finding that the constitution was fraudulent and forged.

40    Mr and Mrs Frigger then submit that there is a logical connection between those factors and the possibility that I might resolve this case other than on its legal and factual merits. In their written submissions (at par 4.2), that logical connection is expressed in the following way:

The Applicants submit that a fair-minded observer might reasonably apprehend that a judge who previously advised or represented that same party (or was involved in a manner relevant to the present dispute) might be unconsciously influenced by that past association. This fear is amplified where allegations of fraud, forgery, or misrepresentations might cast doubt upon the judge's own prior actions or acceptance of evidence, thereby creating a perceived conflict or personal stake in the outcome.

41    It is also very difficult to understand that submission. In particular, it is difficult to understand the refence to allegations of 'fraud, forgery, or misrepresentations'. I will return to deal with that aspect of the submissions later in these reasons.

42    However, based on Mrs Frigger's oral submissions, I understand the applicants' basic contention to be that the matters that might make me decide this case other than on its legal and factual merits are that:

(a)    I have a prior association with PSA, Ms Banning and the three lawyers who I represented in the Supreme Court Proceedings and in the Court of Appeal Proceedings;

(b)    I have a prior association with Mr and Mrs Frigger because I acted against them in those proceedings; and

(c)    there is an incompatibility between my role as the judge who has conduct of the current proceedings and my previous role as an advocate against Mr and Mrs Frigger in those proceedings.

43    Mr and Mrs Frigger then argue that there is a logical connection between those matters and the possibility of me deciding this case other than on its merits, as I might be unconsciously influenced into deciding the factual and legal issues in this case other than with the degree of neutrality required.

44    I do not accept Mr and Mrs Frigger's contentions. In my view, there is no relevant logical connection between the matters relied on by Mr and Mrs Frigger and the feared deviation from the course of deciding this case on its factual and legal merits.

45    Firstly, other than appearing as counsel for lawyers who were alleged to have acted from time to time for PSA, I have not had any association with either PSA or Ms Banning whatsoever.

46    Secondly, none of the three lawyers who I represented in the Supreme Court Proceedings and in the Court of Appeal Proceedings are parties to these proceedings, and there is no evidence that any of them have any involvement in the case, or any interest in the outcome of the case whatsoever. Mr and Mrs Frigger's case against the first and second respondents is concerned with the question of whether two BoQ bank accounts were held by them as trustees for the 'Frigger Super Fund'. The pleaded facts in the Amended Statement of Claim filed on 17 November 2021 are essentially concerned with the alleged circumstances in which the bank accounts were opened, the circumstances in which the bank accounts were named, and the circumstances in which certain deposits and withdrawals were made. Mr and Mrs Frigger also plead facts relating to the alleged placing of restrictions on the accounts by both their trustee in bankruptcy and BoQ, their inability to withdraw money from the accounts (including after their discharge from bankruptcy), and the alleged financial consequences that flowed from the restrictions. None of those pleaded facts have anything to do with the three lawyers who were the subject of the Supreme Court Proceedings or with the issues that were in dispute in that case.

47    Thirdly, in relation to the possibility that I might decide this case other than on its legal and factual merits because I previously acted against Mr and Mrs Frigger in the Supreme Court Proceedings and in the Court of Appeal Proceedings, as Jagot J observed in QYFM at [295], a reasonable apprehension of bias will not necessarily arise in every case in which a judge has previously appeared or acted against a person or their interests. It may be necessary to have regard to matters such as the subject matter of the previous matter or matters, and the time, role, and the perceived connection between the judge's previous involvement and the case to be decided. As her Honour said: 'Context is all'.

48    I have already described the subject matter of the Supreme Court Proceedings and the Court of Appeal Proceedings. There is no relevant connection between the issues that were in dispute in either of those proceedings and the issues that must be resolved in these proceedings.

49    My role in relation to the Supreme Court Proceedings was limited to the presentation of written and oral argument concerning legal questions about whether the court should summarily dismiss the case Mr and Mrs Frigger sought to rely on, whether the pleading should be struck out, and whether there should be an order for security of costs. Mr and Mrs Frigger have not submitted that I said or did anything in the course of presenting those arguments that might suggest that I had a frame of mind which is incompatible with a requirement to dispassionately weigh the considerations relevant to the making of a decision in this case. I am also of the view that it is not reasonable to conclude that because of my involvement in the Supreme Court Proceedings and the Court of Appeal Proceedings it could ordinarily be expected that I might have developed such a frame of mind.

50    It is true that these proceedings, as well as the Supreme Court Proceedings and the Court of Appeal Proceedings, like almost all of the litigation in which Mr and Mrs Frigger have been involved, may ultimately be traced back through the annals of time to the place where it all began, Computer Accounting and Tax Pty Ltd. However, that does not supply a logical connection between my previous role as counsel in the Supreme Court Proceedings and in the Court of Appeal Proceedings, and the possibility of me deciding this case other than on its merits. It also does not render my role as a judge allocated to hear and determine this case incompatible with my previous role as an advocate in the Supreme Court Proceedings and in the Court of Appeal Proceedings.

51    Accordingly, to the extent that Mr and Mrs Frigger contend that I should recuse myself because of my prior associations with PSA and Ms Banning, or because I had previously acted against Mr and Mrs Frigger, those contentions must be rejected. There is no logical connection between any of those matters and the feared deviation from the course of deciding the case on its merits. There is also no incompatibility between my role as a judge and my previous role as an advocate against Mr and Mrs Frigger.

52    I have already referred to Mr and Mrs Frigger's written submissions in which reference was made to 'allegations of fraud, forgery, or misrepresentations'. At the hearing of the application for recusal, Mrs Frigger explained that although she did not suggest that I knew that the signed version of the Memorandum was a forgery when I made submissions in the Supreme Court Proceedings, she said that I should recuse myself because I did not raise any questions when PSA and Ms Banning sought to rely on an unsigned version of the Memorandum in the Supreme Court Proceedings. Mrs Frigger suggested that those circumstances gave rise to a reasonable apprehension that I might be reluctant to make findings adverse to the first respondent in this matter about the other 'very serious fraud allegations' raised in the pleadings.

53    Before dealing with this curious submission, it is necessary to say something about Mr and Mrs Frigger's repeated contention that the signed version of the Memorandum that was adduced in evidence in the Supreme Court Proceedings by the first and second defendants was a forgery.

54    Contrary to Mr and Mrs Frigger's assertions, there is no evidence before me that the Memorandum was in fact a forgery.

55    Although Mr and Mrs Frigger submitted that the question of whether the signed version of the Memorandum was a forgery was conclusively determined by Feutrill J in Frigger (No 3), they were wrong. In that case, Mr and Mrs Frigger sought to have PSA removed from the register under s 1322(4)(b) of the Corporations Act. During the trial, Feutrill J made orders pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) to determine the answer to three separate questions concerned with the registration of PSA. In answering those questions, Feutrill J proceeded on the basis of a set of agreed facts, as well as on the basis of an agreed set of assumed facts and matters, one of which was in the following terms:

The document entitled 'Memorandum & Articles of Association of Liberty Oil (Australia) Pty Ltd Australian Company Number 082 879 641 A Company Limited By Shares Incorporated on 5 June 1998', a copy of which is annexed hereto and is Exhibit A.1, was not prepared by Mr David John Boyle and was not signed by Mr Boyle or Mrs Mariangela Boyle, but by a person or persons unknown who simulated the signatures of each of Mr Boyle and Mrs Boyle.

56    Contrary to Mr and Mrs Frigger's contentions in support of their application for recusal, this assumed fact does not amount to a finding by Feutrill J that the signed version of the Memorandum was a forgery, much less a finding that in some way establishes that it was a forgery for all purposes.

57    Mr and Mrs Frigger also asserted before me that Mr Stephenson (who was one of the defendants in the Supreme Court Proceedings and, later, counsel in Frigger (No 3)), had made an admission during the hearing of Frigger (No 3), that the signed version of the Memorandum 'was invalid and doesn't exist'. Putting to one side the question about the admissibility in these proceedings of an alleged admission made by Mr Stephenson when appearing as counsel in Frigger (No 3), the evidence relied on by Mr and Mrs Frigger falls well short of establishing that such an admission was ever made.

58    The evidence relied on by Mr and Mrs Frigger consists of documents that I infer are early drafts of the separate questions to be answered, as well as the agreed facts and the assumed facts and matters, that were the subject of Frigger (No 3). On an assumption favourable to Mr and Mrs Frigger that the handwritten notes on the documents were in fact written by Mr Stephenson, there is nothing in those notes that amount to an admission that the Memorandum was invalid or that it did not exist. At most, and when read in context, the relevant handwritten note amounts to no more than a suggestion (that was apparently not adopted by Feutrill J in Frigger (No 3)) that there be an assumed fact that at the time of its incorporation, Liberty Oil did not have any memorandum and articles of association that was approved by the subscribers at the time.

59    Finally, Mr and Mrs Frigger alleged that the lawyer who represented the first and second defendant in the Supreme Court Proceedings gave evidence before Feutrill J in Frigger (No 3) which established that the signed version of the Memorandum was a forgery. In that regard, it was submitted that the lawyer gave evidence that before the signed version of the Memorandum was tendered in evidence in the Supreme Court Proceedings, it was provided to him by Mr Stephenson. Mr and Mrs Frigger say that this evidence was contrary to evidence the lawyer gave in other proceedings in which he apparently said that it was PSA (or Ms Banning) that gave the Memorandum to him. Apart from Mrs Frigger's evidence that the lawyer gave this evidence in other proceedings, there is no evidence before me of what the lawyer actually said. In any event, an apparent inconsistency in the evidence given by the lawyer on two different occasions falls well short of establishing that the signed version of the Memorandum is in fact a forgery.

60    Nevertheless, even on an assumption favourable to Mr and Mrs Frigger that the signed version of the Memorandum is a forgery, the submission that there is a logical connection between my reliance on either the unsigned or signed Memorandum in submissions made in the Supreme Court Proceedings and whether I might be led to decide this case other than on its legal and factual merits is entirely without merit. The suggestion that my purported failure to raise questions about the veracity of the Memorandum in the context of the Supreme Court Proceedings might lead a fair-minded lay observer to entertain a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the issues in this case on this basis is illogical.

61    Before concluding these reasons, I should note that at one stage during her oral submissions, Mrs Frigger did suggest that I should recuse myself on the basis of actual bias. When asked to articulate why she said that I was actually biased, Mrs Frigger submitted that my involvement in this proceeding will benefit PSA and Ms Banning. Mrs Frigger said that this is because PSA and Ms Banning had submitted large proofs of debt in her bankruptcy, and that the funds in the BoQ accounts the subject of these proceedings will be used to satisfy those debts if the claims against BoQ are unsuccessful.

62    When I asked her to further explain how it could be said that I am actually biased on that basis, particularly as I have never acted for either PSA or Ms Banning, Mrs Frigger submitted that it would be in my interests for the money in the BoQ accounts to find its way into the hands of PSA and Ms Banning so that they could pay the lawyers I acted for in the Supreme Court Proceedings and the Court of Appeal Proceedings. Mrs Frigger suggested that I would stand to personally benefit because the lawyers I had previously acted for would then be in a position to pay any of my fees that were still outstanding.

63    The submission that I should recuse myself for actual bias on this basis must be rejected. Mr and Mrs Frigger have fallen well short of establishing that I will approach the issues to be determined in this case with a closed mind or that I have prejudged them such that I am so committed to a particular outcome that I will not alter that outcome, regardless of what evidence or arguments are presented. As Mrs Frigger herself candidly accepted in her oral submissions, the reasoning that underpins her submission is 'convoluted' and that it was a 'very long bow to draw' to conclude that I am actually biased. I agree.

64    For the avoidance of doubt, there are no outstanding fees relating to my representation of the lawyers in either the Supreme Court Proceedings or the Court of Appeal Proceedings.

65    I dismiss Mr and Mrs Frigger's application for recusal.

Associate:

Dated:    5 May 2025