N1970

PAPUA NEW GUINEA

[National Court of Justice]

OS 153 of 2000

BETWEEN

HITRON PTY LIMITED
Plaintiff

AND

PAPUA NEW GUINEA TELECOMMUNICATIONS AUTHORITY
First Defendant

AND

PAUL GINIS
Second Defendant

Waigani : Sevua, J
2000  : 19th April &
9th June

Practice and procedure – Courts and Judges – Hearing – Judges – Application for disqualification of Judge – Bias – Application based on incorrect reporting in media – Applicant not verified media report with official Court transcript – Applicant’s witness not present in Court and did not observe proceedings – Whether issue of bias properly and reasonably raised – Conclusion of facts based on unverified media report – Whether application satisfies the disqualification test.

Cases referred to:
Fidelis Agai v. Buckley Yarume [1987] PNGLR 124
The State v. Joe Ivoro & Anor [1980] PNGLR 1
The State v. Sari [1990] PNGLR 48
PNG Pipes & Anor v. Mujo Sefa & Ors., SC592
Gobe Hongu Ltd v. National Executive Council & Ors., N1964

Held:
1.	The defendant’s witness, Thomas Waim, was not present in Court, he did not observe the proceedings and did not hear what was actually said in Court. Therefore, he could not be an objective observer or a fair minded lay-person.

2.	What was reported in the Post Courier was sensational and misleading, and the report incorrectly created an impression that the Court was biased.

3.	It is unfair and ridiculous to make allegations of bias against Judges who receive goods and services from organisations like the plaintiff, the banks, Elcom, Telikom, Post PNG, etc.

4.	The defendants’ application arose in a convoluted manner, it is unprincipled, frivolous and unreasonable. The test for disqualification has not been satisfied.

Counsel:
B. Andrew for Plaintiff
J. Yagi for Defendants

9th June, 2000

SEVUA, J:	The defendants have made this application for me to disqualify myself for reason of bias and breach of natural justice. This application relates to a decision I made on 3rd April, 2000, when the plaintiff, in an ex parte application, applied for and was granted an interim injunction.

I will set out the background of this matter so one could appreciate the nature of this application, as this application and the affidavit in support sworn by the first defendant’s Managing Director, Thomas Waim, made some very serious allegations of bias against myself as the presiding Judge. Those allegations amount to findings and conclusions of facts.

On 3rd April, 2000; the plaintiff made, an ex parte application seeking an interim injunction to restrain the defendants from enforcing a District Court Warrant which they had obtained for the purpose of closing down the plaintiff’s repeater stations in the National Capital District on 31st March, 2000, initially then, on 3rd April, 2000.

The plaintiff’s notice of motion filed on 3rd April, 2000 and heard on the say day, due to its urgency, sought an interlocutory injunction restraining the defendants from executing the warrant issued by the Port Moresby District Court on 30th March, 2000, which warrant authorised and commanded the second defendant to enter the plaintiff’s premises and seize its active Multi-Channel Multi-Point Distributor Services (MMDS) Repeaters located at Burns Peak, Ela Makana, University of Papua New Guinea and Six Mile. The warrant was to effectively shut down those repeater sites so that the plaintiff would not continue to distribute satellite programs to viewers.

The basis for the defendants obtaining that Warrant from the District Court was that they alleged the plaintiff had failed to pay annual Spectrum Licence Fees imposed by the first defendant. The issue of non-payment of such licence fees is not relevant at this stage of the proceedings.

When the plaintiff’s counsel moved his notice of motion, the Court was advised that the defendants had been served, however no one appeared on their behalf. Due to the nature of the urgency, I considered that I should proceed to hear the plaintiff’s application ex parte. After I had heard the application and granted an interim injunction, the Court was just about to rise when Mr Yagi, counsel for the defendants, walked in. I did not have to wait for Mr Yagi or his clients He was then advised that an interim injunction had already been granted and that there was no return date, however the defendants were at liberty to have the matter returned to Court. Apart from a national lady whom I understood to be a journalist from the Post Courier, and an expatriate man, whom I understood to be the plaintiff’s witness, the courtroom was empty. The first defendant’s Managing Director, Thomas Waim, was not present in Court, therefore had no idea whatsoever, of how the hearing proceeded and what was said. Even Mr Yagi was not present and did not hear what was said. I mentioned this fact at this stage because it will become pertinent in my judgment later on.

The next day, 4th April, 2000, a report of the proceedings appeared in the Post Courier. The part of the report which Mr Waim relied on in his affidavit sworn on 13th April, 2000, is as follows:

"Judge Sevua, when handing down his decision said, he was familiar with the basis of the dispute. He said in relation to the fees, Pangtel was going about in a wrong way. He said he was prepared to grant the interim orders sought by Hitron Pty Ltd. He added he was dealing with a case between Hitron and Channel 8. Judge Sevua informed Hitron Lawyer, Greg Sheppard that he was a Hitron client and in the case between Hitron and Channel 8, he had made that known, however both parties did not object to him hearing the case."

Again I emphasise that Mr Waim was not present in Court; did not actually hear what was exchanged between the bar and the bench; did not know the context of what was said by the Court, and did not observe the proceedings. On the basis of the above report, which his lawyer failed to verify with the Court’s official transcript, Mr Waim made conclusions of facts. He concluded that;

"(i)	the presiding Judge has an interest in the dispute;
(ii)	the presiding Judge is prejudice and bias;
(iii)	the presiding Judge has a preconceived mind."

Mr Waim finally concluded that, "on the basis of the above, I feel strongly that PANGTEL is unlikely to receive just, fair and impartial hearing in this matter."

The defendants have come to Court to drive me out of my Court, but have not proven that I was biased on 3rd April. They failed to prove that I was prejudiced and that I had a preconceived mind. I consider that these matters are very serious indeed. They directly question the impartiality and integrity of a Judge and the defendants must prove their allegations on the requisite standard. In my view, this application, and Mr Waim’s allegations are not only outrageous but slanderous and malicious.

Mr Waim was not in Court therefore did not observe the proceedings. How could he be an objective observer or a fair minded lay person? In my view, he could not possibly be neither.

I am of the view that the issue of bias argued by Mr Yagi arose in a very convoluted way, because the applicant’s witness was not an observer in Court when the ex parte application was made by the plaintiff. He did not observe the proceedings and did not hear what was uttered by the plaintiff’s counsel and the trial Judge. The witness relied solely on a newspaper report, which was not correct, and which did not accurately represent the proper context in which things were said. Having said that, I will now deal more specifically with issues Mr Waim raised in his affidavit and refer to the certified transcript which is the official Court record of this application. By closely scrutinising the transcript and the Post Courier report, it will become evident that Mr Waim’s evidence is convoluted and spurious. In my view, there could be no basis at all for the conclusions of facts that he had reached in his affidavit.

The official Court transcript will reveal that two matters, which I adverted to, and, which Mr Waim had drawn conclusions of facts without any basis at all, appear on page 13, which is the second last page of the transcript of the proceedings. The transcript clearly shows that the hearing of the plaintiff’s ex parte application commenced at 1.38pm on Monday, 3rd April, 2000. Forty one minutes later, at 2.19pm, I said, "yes well, Mr Sheppard, I think I am quite familiar with the basis of this dispute and without pre-empting any decision in any substantive issues, I would have thought that if the defendants were claiming fees for these four repeater stations they would ensure that their fees form part of the terms and conditions of the license. But it seems, of course this will be argued, and it seems the defendants I think are going about it in the wrong way," (my emphasis).

The transcript will also clearly show that the statement I have just alluded to came about after I had asked thirteen questions in order to clarify my understanding of the basis of the plaintiff’s application. Indeed, Court records will show that on three occasions, I had sought clarification from the plaintiff’s counsel in order, that I understand what was being put before me. On the bottom of page 4, I said, "Sorry, let me follow this," then asked counsel a question relating to paragraph 5 of the affidavit relating to business licence. Then on bottom of page 8, I said to Mr Sheppard, "Just so that I follow this," then asked a question in respect of the imposition of new conditions by the first defendant’s Board in July, 1999. And again, on page 13, I said to counsel, "Let me just clarify this once again," then asked a question regarding the dispute between the parties.

If the first defendant, its Managing Director and its lawyer had cared to read the transcript, they will appreciate that what was said in Court on 3rd April, was not limited to what the Post Courier had reported. The Post Courier report was not only sensational, but incorrectly presented an impression that I was biased towards the defendants. If one cared to read the transcript, he will realise and appreciate that, the impression created by this sensational reporting was quite incorrect and misleading.

It was after that question and four more questions appearing on pages 12 and 13 of the transcript that I said what appears on page 13. And as I have already adverted to, that statement came after forty one minutes of hearing Mr Sheppard and asking a number of questions. I said, "I think I am quite familiar with the basis of this dispute," as oppose to what the Post Courier reported. In relation to the terms and conditions of the licence, which is the cause of the dispute, I said, "I think (the defendants) are going about it in the wrong way." I have emphasised the words, "I think," because the Post Courier report intentionally left them out, thereby creating a completely different meaning to what was actually said in Court.

To avoid the very issue of bias, I did inform Mr Sheppard that I was a client of Hitron and was previously dealing with a case between Hitron and Channel 8. In that case, I had revealed that fact to both counsel however, they had no objection over my presiding over that case. My revelation of the same fact in the present case was not secretly made. In fact, I also said that on the return date of the order or on the hearing of the substantive matter, I would inform the defendants. That is recorded on page 13 of the transcript. There is nothing secretive or sinister about the fact that I receive television services from the plaintiff. Other Judges do too, so does that mean, all Judges who receive television programs from Hitron disqualify themselves in a case involving Hitron because they have financial interest?

And what about Elcom, Telikom, Post PNG, banks and other suppliers of goods and services? Should Judges disqualify themselves from dealing with cases involving these organisations because they receive goods and services from them? Does the fact that Judges receive services from these organisations mean that they have pecuniary interests in those organisations? Definitely the answer must be no. I have presided in cases involving two banks, where I have my accounts, Elcom, Telikom and Post PNG. Because these organisations provide goods and services to me, that does not mean I have any financial interest in them. In fact, none of them had raised the issue of bias or apprehension of bias.

In my view, it would be quite unfair and ridiculous to make allegations of bias or apprehension of bias against a Judge just because he receives goods and services from these organisations. In the present case, I find the accusations by the defendants quite offensive and contumelious. Mr Waim’s allegations and conclusions of facts are quite ridiculous and he has come to this Court to drive me out and effectively influence the choice of a Judge in the defendants’ cause. I consider that this application is unreasonable and spurious. Neither Mr Waim, nor Mr Yagi, had any courtesy to check the transcript prior to embarking on this application. They have made very serious allegations of actual bias against me without providing any evidence to substantiate these serious allegations.

I consider that an application for disqualification must be made within the legal limit, and substantiated by credible evidence. There is no evidence at all that I have an interest in this case. There is no evidence at all that I was prejudiced and biased. And there is no evidence that I had a preconceived mind at the time I granted the interim injunction. So what is the basis for Mr Waim’s conclusion that the first defendant is "unlikely to receive a just, fair and impartial hearing in this matter?" There is no basis and justification whatsoever.

Mr Yagi has referred to three authorities, Fidelis Agai v. Buckley Yarume [1987] PNGLR 124; The State v. Joe Ivoro & Anor [1980] PNGLR 1 and The State v. Sari [1990] PNGLR 48. The first case was a case involving allegations of bias because the presiding magistrate and the police prosecutor came from the same province. The last two cases deal with situations where the trial Judges had read court depositions prior to trial. The facts of those cases are completely different to the present case, therefore I do not see how the defendants can rely on those authorities. Counsel merely referred to those cases without assisting the Court in anyway as to what aspects of those cases are relevant to his client’s case.

The test in an application for disqualification is set out in the recent Supreme Court decision, PNG Pipes Pty Ltd & Sankaran Venugopal v. Mujo Sefa & 2 Ors., SC 592, 26th November, 1998.

The Court held that, "the test applied in determining whether apprehension of bias was satisfied was whether an objective observer, knowing all surrounding facts, would be left with an apprehension, not a conviction, that the judicial officer was predisposed, by matters extraneous to a proper adjudication, to reach a particular conclusion."

In my judgment in Gobe Hongu Ltd v. National Executive Council & Ors, N.1964, 16th July, 1999, I adverted to that test and also cited a number of relevant legal principles from the Australian jurisdiction, which I consider relevant and applicable to Papua New Guinea, because applications of this nature seems to be on the increase.

One of the authorities I adopted and applied in Gobe Hongu is Trustees of Christian Brothers v. Cardone (1995) 30 CLR 345, which the Supreme Court in PNG Pipes also referred to.

In so far as the test is concerned, I consider that Mr Waim who gave evidence for the first defendant was not either an ‘objective observer’ or a ‘fair minded lay-observer’ simply because of the reasons I have adverted to at the outset. The problem with his evidence is that he did not raise the issue of apprehension of bias, but actual bias. In other words, he has purportedly shown a conviction that I had been biased, but has failed to establish the basis of that conviction.

Mr Waim was not present in Court and did not observe the proceedings. He did not know all the surrounding facts relating to what I said, which was misquoted in the Post Courier. Was he an ‘objective observer’ knowing all the surrounding facts? He could not be and did not know all the facts.

I am of the view therefore that this application came about in a convoluted manner, it is unprincipled, frivolous and unreasonable that it must be dismissed. I am not satisfied that the test for disqualification has been satisfied and accordingly, I order that the application be dismissed. I further order that the applicants pay the respondent’s costs within 14 days.

__________________________________________________________
Lawyer for Plaintiff		:	Maladinas Lawyers
Lawyer for Defendants	:	J. Yagi