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

1. 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.
2. 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.

1. 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.

1. 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.
2. 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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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'.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. Contrary to Mr and Mrs Frigger's assertions, there is no evidence before me that the Memorandum was in fact a forgery.
13. 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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. I dismiss Mr and Mrs Frigger's application for recusal.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Vandongen.