Frigger (Recusal Application) - Bias allegations dismissed, judge to remain on vexatious proceedings inquiry

Original Word Document (80.6 KB) Federal Court of Australia

Frigger (Recusal Application) [2026] FCA 393

| File number: | WAD 50 of 2026 |
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| Judgment of: | SNADEN J |
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| Date of judgment: | 8 April 2026 |
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| Catchwords: | PRACTICE AND PROCEDURE – substantive proceeding concerned with whether to make orders under pt VAAA of the Federal Court of Australia Act 1976 (Cth) in respect of self-represented litigants – application for recusal of judge made by those litigants – allegations of actual and apprehended bias based primarily upon the judgment of the full court of which the judge was a member in related appeal – where that full court had resolved to refer a question of whether to make pt VAAA orders to the judge and had otherwise found the appeal to be without merit – where the judge had invited frequent counterparties to prior and ongoing litigation to apply to intervene in the pt VAAA proceeding – whether judge shown to be implacably predisposed to a particular outcome such that the matter might be decided otherwise than on its merits or without proper assessment of the contentions advanced – whether a fair-minded lay observer might reasonably apprehend bias – application dismissed |
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| Legislation: | Federal Court of Australia Act 1976 (Cth), s 37AO |
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| Cases cited: | Frigger v Professional Services of Australia Pty Ltd [2026] FCAFC 9 |
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| Division: | General Division |
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| Registry: | Western Australia |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 20 |
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| Date of hearing: | 7 April 2026 |
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| Counsel for the Respondents: | The respondents appeared in person |
ORDERS

| | | WAD 50 of 2026 |
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| | ANGELA CECILIA THERESA FRIGGER

First Respondent

HARTMUT HUBERT JOSEF FRIGGER

Second Respondent | |

| order made by: | SNADEN J |
| DATE OF ORDER: | 8 APRIL 2026 |
THE COURT ORDERS THAT:

1. The interlocutory application dated 17 March 2026 be dismissed.

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

REASONS FOR JUDGMENT

SNADEN J:

1 The present matter proceeds, on the court’s own motion, as an inquiry as to whether vexatious proceedings orders might appropriately be made against Mr and Mrs Frigger under pt VAAA of the Federal Court of Australia Act 1976 (Cth) (“ FCA Act ”). It arises in consequence of observations made by a full court (of which I was a member): see Frigger v Professional Services of Australia Pty Ltd [2026] FCAFC 9, [148]-151.

2 By an interlocutory application dated 17 March 2026, Mr and Mrs Frigger move for orders that I disqualify myself from hearing and determining that inquiry. The application, supported by an affidavit of Mr Frigger also dated 17 March 2026, is put on two bases: first, that I should refrain from conducting the inquiry because of the bias that I am said to reserve against Mr and Mrs Frigger; and, second, that I should refrain on account of a reasonable apprehension of bias. For the reasons that follow, neither basis is made good and the application should and will be dismissed.

3 The actual bias that is alleged is said to inhere in what is described as the selective treatment of the evidence and submissions that were advanced before the full court. Specifically, it is said that, as a member of the full court, I indulged in an exhaustive investigation into Mr and Mrs Frigger’s litigation history whilst “…simultaneously disregarding conduct by the opposing party that constitutes a criminal offence”. Other examples of “asymmetric scrutiny” are also advanced, each turning upon what are said to have been failures by the full court to make findings adverse to the respondents in that matter.

4 There is no need to particularise the conduct that the Friggers attribute to those respondents and other parties, nor the conclusions that are now said to have gone asymmetrically overlooked. The Friggers’ submission proceeds upon a basic misunderstanding of the task with which the full court there was seized. Whether any of the respondents in that matter had engaged in conduct worthy of description as criminal (or otherwise as misconduct of any kind) was not a matter upon which the court was there called upon to determine. As was made clear in the full court’s judgment, the matter at first instance turned solely upon agreed and assumed facts. Doubtless, Mr and Mrs Frigger would very much have liked the court to make other findings consistent with the submissions that they made and the criticisms that they directed towards their opponents; but it didn’t and there was no occasion for the full court to do so. The criticism that is now advanced is simply without basis. Moreover, it distils ultimately to the proposition that bias might inhere merely in the non-acceptance of what was advanced, which is unambiguously wrong.

5 It is also said that, as a member of a different full court in a different appeal brought by Mr and Mrs Frigger against different parties, I am now possessed of personal knowledge as to other misconduct that is said to have been waged against Mr and Mrs Frigger. Although judgment in that matter remains reserved, it is now said that my failure to subject those other parties to the process in which Mr and Mrs Frigger now find themselves engaged (or, perhaps, some other form of “scrutiny”) is similarly reflective of some bias that warrants my recusal. Alternatively, it is said that my extension to those other parties of an invitation to make an application or applications for leave to intervene in this proceeding reflects a similar level of asymmetric scrutiny that also bespeaks bias.

6 That criticism is also unfounded. The nature of any conduct engaged in by the other parties in that as-yet-undecided appeal has not been the subject of any appellate determination (at least not by a court of which I have formed part). It is simply wrong to state that I am possessed of knowledge of relevant misconduct. At most, I am possessed of what Mr and Mrs Frigger allege was misconduct. Plainly, Mr and Mrs Frigger have strong views about the conclusions to which the court, in that matter, ought to be drawn (and ought, in others, to have been drawn). It is the case that they extended, in other matters, invitations to indulge findings akin to those with which they evidently now persist: namely, that some of the parties against which they have litigated over an extended period are guilty of having waged, to use Mrs Frigger’s phrase, a “criminal conspiracy” against them. It is, however, quite wrong to say that I have accepted or rejected what they submitted. The matter hasn’t even been decided yet. And insofar as similar contentions were advanced in the one that has been, the issue was not considered dispositive and no conclusion was expressed.

7 Mr and Mrs Friggers’ contention necessarily assumes that the matters that they assert are true. I have not had occasion to express any views about that; and certainly none that might fairly lead to a charge of “asymmetric scrutiny”. It is simply not the case that I might reasonably be understood to bear some bias against Mr and Mrs Frigger because, with the other members of the full court, I resolved to initiate the present proceeding without also subjecting other parties to some similar measure of “scrutiny”.

8 As to the notion of asymmetry, it might repay to observe that I have not had occasion to engage (and have not engaged) in what was described as an exhaustive investigation into the Friggers’ litigation history. The scope of that history is easily divined from cursory internet searches. It would not matter were it otherwise; but, if it affords any comfort, I happily confirm that I’ve not read the 80-odd judgments to which the full court summarily referred. Save to confirm, as is also readily ascertainable from equivalent searches, that I am of the understanding that Mr and Mrs Frigger initiated and lost a significant majority of those matters, I do not know whether they were meritless or otherwise open to be described as abuses of process. The full court did no more than to observe that there was enough in that history to warrant that the question be looked into; and that is where the Friggers and I presently find ourselves.

9 I turn next to consider the submission that the observations of the full court were “deliberate, quantified, adversely-characterised findings made in a published judgment, delivered at the conclusion of a substantive appeal – plainly with a view to setting the foundation for the consequences that might follow”. Save that they were surely deliberate observations, none of the other adjectives is warranted. The full court’s observations rose no higher than to suggest that there was reason enough for the court to embark upon the inquiry with which I am now seized. It is not possible reasonably to divine from that that the court as presently constituted might undertake that inquiry with anything other than a mind open to persuasion in the usual ways; and certainly not that it might determine it otherwise than on its legal and factual merits.

10 The contention that, properly construed, the full court’s observations amount to “…a judicial pre-assessment of the very factual matters that the inquiry must now independently evaluate” is unambiguously wrong. But, even if it were otherwise, there is nothing untoward in a court’s forming views about matters before they are heard, nor with the communication of those views if the circumstances are thought to warrant it. Bias does not inhere merely in a perception that a judge is likely to decide a case in a particular way. What must be shown is that he or she is implacably predisposed to a particular outcome such that the matter might not be determined on its merits, or might be determined without proper assessment of the contentions advanced. With the greatest of respect, Mr and Mrs Frigger have not come remotely close to clearing that hurdle. Insofar as it is premised upon the existence of actual bias, the present application is without merit.

11 I turn, then, to the suggestion of apprehended bias. The concerns that have been raised by Mr Frigger in his affidavit and repeated by Mrs Frigger in her submissions (on both her own behalf and that of her husband) do not extend beyond an apprehension that there might be some prospect that I will determine this inquiry in a way that is adverse to them. Of course that is one possible way in which it might be determined. But, to make good on the proposition of apprehended bias, it must be shown that the proverbially reasonable lay observer might be led to conclude that I might be minded to determine the inquiry on something other than its merits.

12 To establish that as a proposition, it is necessary to show two things. First, there must be identified the matter upon which arises (or the matters upon which arise) the relevant apprehension. Second, there must be some articulation of the logical connection between that matter or those matters, on the one hand, and the feared deviation from the course of deciding the matter on its merits (on the other).

13 In that regard, it is convenient that I recount an observation that Mr Frigger made in his affidavit. It was there noted: “His honour intends to conduct an Inquiry and potentially make an order of permanent consequence to my wife and me, on a question that his honour himself identified, based on findings and observations that he himself identified, in a proceeding that he himself decided.” Those observations were reflected in the written and oral submissions that were advanced on the recusal application.

14 It is not the case that the inquiry will be decided “based on findings and observations” that were made by the full court. The purpose of this matter proceeding as a separate inquiry is to enable Mr and Mrs Frigger and, potentially, other parties as interveners (or, as necessary, in other capacities), to lead evidence and make submissions in consequence of which the court might then be invited to make relevant findings. The observations that the full court made extend no further than to contextualise its decision to refer for consideration the question of whether or not vexatious proceedings orders ought to be made. For present purposes, nothing has been decided. True it is that I was part of the court that resolved to initiate the present matter; but that is an entirely different proposition that simply has no bearing on this application.

15 It’s also quite plainly not the case that the full court expressed what Mr Frigger describes as “concluded views on the character and pattern of our litigation history”. The character and pattern of Mr and Mrs Friggers’ litigation history was not in issue in the appeal that the full court determined. At the risk of repetition, the full court did nothing other than identify a possibility that it was such as might warrant orders of the kind that I am now charged with considering.

16 Again with respect, the fact that, as a member of the full court, I made the observations that were made about Mr and Mrs Friggers’ extensive history of litigation does not come close to establishing any reasonable apprehension of bias. The only conclusion to which a reasonable lay observer might be drawn on account of the full court’s observations is that, by reason of their extensive litigation history, there is a prospect that vexatious proceedings orders might or ought to be made against Mr and Mrs Frigger. Reasonable or otherwise, an apprehension of defeat—which is the highest point to which the contention rises—is not the same as a reasonable apprehension that a judge might decide a matter otherwise than on its legal and factual merits.

17 Before concluding, I should address a separate contention advanced by Mr Frigger in his affidavit, which is that he and his wife were denied procedural fairness insofar as the court has invited, as it has, applications for leave to intervene in the inquiry that is now to be undertaken. He complains that, by courting or entertaining applications for leave to intervene from the very parties that have waged the “criminal conspiracy” to which it is said that he and Mrs Frigger have been subjected, I should be understood either to have indulged in the “asymmetric scrutiny” that has already been addressed or, otherwise, to have denied he and his wife an indispensable incident of procedural fairness.

18 That contention is also without merit. The court cannot sensibly—and certainly not in a way that is fair to Mr and Mrs Frigger—conduct its inquiry without at least one contradictor. Whoever that might be, it is important that Mr and Mrs Frigger know in advance how it might be put that the court should be persuaded to make vexatious proceedings orders against them. That requires that there be a party who advocates (or parties who advocate) in favour of that course, whose evidence and submissions they can receive and respond to. Who those parties might be or the extent to which they might be permitted to intervene to lead evidence and/or make submissions is a matter that is yet to be determined; and one upon which Mr and Mrs Frigger most certainly will have a reasonable opportunity to make such submissions as they feel are appropriate.

19 I turn, then, to the disposition of the interlocutory application. By their written submissions, the Friggers not only sought orders for my recusal but also orders requiring that the court as reconstituted “…take into account…” certain conduct that they seek to attribute to one of the respondents in a full court matter earlier referred to. Relief in that form did not find expression in the interlocutory application but I can address it swiftly. Mr and Mrs Frigger will be at liberty to lead such evidence and make such submissions as might reasonably be made in relation to the question with which the court is seized. Excepting to the extent that what is advanced trespasses beyond what is relevant, the court will, in the usual way, take account of what is advanced. It is unnecessary to make any order in the form proposed.

20 The interlocutory application dated 17 March 2026 shall be dismissed.

| I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. |
Associate:

Dated: 8 April 2026

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