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Nero v Kaluwin [2013] PGNC 56; N5229 (17 May 2013)

N5229

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

OS NO. 779 OF 2012

BETWEEN:

JOHN NERO
Plaintiff

AND:

PONDROS KALUWIN, THE PUBLIC PROSECUTOR
First Defendant

AND:

HON. PRIME MINISTER PETER O'NEIL MP, HON. CHIEF JUSTICE SALAMO INJIA, HON. OPPOSITION LEADER BELDEN NAMAH, HON. PHILIP UNDIALI MP, RIGO LUA, COMPRISING THE OMUBDSMAN APPOINTMENT COMMITTEE
Second Defendants

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

WAIGANI: DAVANI, J
2013: 17th May

RECUSAL - Application to disqualify - earlier proceedings dismissed –plaintiff filed fresh set of proceedings - involve same subject matter- application to disqualify filed on fresh set of proceedings – applicant alleges there is an apprehension of bias by the fair minded lay observer or objective observer, of apparent bias by the trial Judge

FACTS
The Plaintiff, an Ombudsman, seeks to challenge a decision by the Ombudsman Commission to refer him to the Public Prosecutor to be prosecuted under the Leadership Code. The Plaintiff applies to have the trial Judge recuse herself because he alleges there is an apprehension of bias by the fair minded observer or objective observer based on his claims that the trial Judge who heard and dismissed proceedings filed earlier by the plaintiff, which earlier proceedings sought to put a stop to the Ombudsman Commissions investigations into his alleged misconduct, should recuse herself because her continuing to sit would present an apprehension of bias by the fair-minded lay observer.

HELD

- A Court must be slow to recuse because a judge is required to deliver a decision which finds the facts, applies the law as understood to those facts and produces a decision, according to law, as an outcome.

- The test is whether a belief may reasonably be entertained by a well-informed external observer, that the Court will not bring a fair and unprejudiced mind to the case.

- The Court must use an objective test, looking at how things would be perceived 'from the outside.

- Authorities in the common law jurisdiction demonstrate that there is no distinct or clear definition as to what is an apprehended bias.

- Each case is determined on its own set of circumstances, peculiar to that case.

- Judicial officers must discharge their duty to sit and must not accede too readily to suggestions of appearance of bias

TEXTS

Justice Grant Hammond (2009) "Judicial Recusal Principles, Process and Problems"

CASES

R. Gough [1993] AC 646
(1988) 61 Southern California Law Review 1945
Re JRL; exp CJL [1986] HCA 39; (1986) 161 CLR 342

Counsel:

Mr P. Tabuchi, for the Plaintiff
Mr E. Geita, for the first, second and third Defendants

RULING
17th May, 2013

1. DAVANI .J; Before me is Notice of Motion filed by Young & Williams Lawyers on 7th February, 2013 seeking orders that I disqualify myself from hearing or determining these proceedings including the hearing of any interlocutory applications.
   
2. However, what was originally before me as a special fixture was motion filed by the Office of the Solicitor-General, on 18th January, 2013 and Motion filed by Young & Williams Lawyers on 21st December, 2012.
   
3. Indeed, at the hearing of the application to disqualify, Mr Geita for the defendants made known that he was not aware the motion to disqualify was being moved this morning and only prepared for the other motions. Of course, I found that submission to be rather belated because Mr Geita did not raise any objections when Mr Tabuchi for the plaintiff/applicant, commenced and then completed his submissions.
   

Application

4. Mr Tabuchi submits that there is an apprehension of bias by the fair-minded lay observer or an objective observer that because I had deliberated on an earlier application in a separate set of proceedings that I will not "bring an impartial mind to the matter" (see par. 4 of P. Tabuchi's written submissions) and that therefore, I should recuse myself.
   
5. Mr Geita submits in response that the plaintiff's application to have me disqualified should be dismissed because;
   

i. the plaintiff is preempting the outcome of the substantive matter;

ii. and, that the ruling I made in the application filed in the earlier proceedings was in relation to whether the applicant could tender and rely on privileged information in those set of proceedings, amongst others.

Consideration of submissions

6. Stephen Sedley of the Royal Courts of Justice, London, in the Forward to Justice Grant Hammond's text "Judicial Recusal Principles, Process and Problems" (2009), said;
   

"The Judicial Oath in Englands and Wales, widely echoed in the Common Law world, is to do justice "without fear or favour, affection or ill will". Fear for favour are the enemies of independence, which is a state of being. Affection and ill-will undermine impartiality, which is a state of mind. But independence and impartiality are the twin pillars without which Justice cannot stand, and the purpose of recusal is to underpin them. That makes the law relating to recusal, a serious business".

7. The Forward reads further;
   

"Recusal – an odd word, signifying withdrawal, originating in the religious concept of a recusant – is both an assurance of the impartiality of justice and a field of opportunity for manipulation. If not only every litigant who thinks the Judge is going to be against him but every party who has waited for judgment and lost, can scout for objections and with luck, secure a court, the already massive costs of litigation will become uncontrollable, legal certainty will become a chimera and the principle that litigants cannot handpick their Court will be shot through with exceptions. Thus there is a risk that a doctrine designed to assure the quality of justice may be used to the opposite effect".

8. With this opinion from learned persons on the law of recusals, I look now to the applicant's application.
   
9. The proceedings I deliberated on are described as OS 971 of 2011 where the applicant named the Ombudsman Commission ('OC') and the State as defendants. In the Originating Summons, the applicant sought orders in the form of Declarations and permanent injunctions. The Declarations sought were that the Ombudsman Commission was biased and should appoint an independent investigating authority. The permanent injunction sought is to restrain the Ombudsman Commission from carrying out its investigations into alleged misconduct in office by the plaintiff.
   
10. The motion that is before me in these present proceedings is that filed by the Ombudsman Commission on 4th January, 2012 seeking that the whole proceedings be dismissed because the proceedings were an abuse of process and against the OC's functions prescribed under the Constitution, the Organic Law on the Duties and Responsibilities of Leadership ('OLDRL') and the Organic Law on the Ombudsman Commission.
    
11. The applicant, through Henaos Lawyers, also filed a motion in those earlier proceedings on 21st December, 2011, seeking to restrain the OC from carrying out its investigations.
    
12. In those earlier proceedings, I had to decide whether the applicant could rely on what were essentially very privileged, sensitive information, information not to be divulged to the public or in this case, a Court of Law. I also had to decide whether the applicant could come to a Court of Law for those orders considering the OC had yet to complete its investigations.
    
13. It meant that I had to carefully peruse all the documentation attached to the applicant's affidavit, which included the OC's privileged and sensitive documents, and eventually, decide on whether they could be before a Court of Law at that stage. It also meant that I had to decide whether the proceedings were prematurely before me.
    
14. Mr Tabuchi referred me to several common law cases to support his submissions. He referred particularly to the fact that because I had several affidavits before me to which were attached documents including a minute of the OC and par. 25 of my decision in those earlier proceedings, that there is a likelihood of the apprehension of bias by me. Par. 25 of that decision only restates the legal position in relation to privileged material and that is that if there is material before the Court that is privileged, that the Court must not rely on it. And that is what I did.
    
15. Additionally, this present proceedings have been registered in Civil Track No. 1 which is the Track I am assigned to. As such, this matter is a Civil Track No. 1 matter and will remain in this track until its completion.
    
16. Apart from pars. 16, 17, 18 and 19 of Mr Tabuchi's written submissions, he has not pointed out any other parts in my then decision that would prompt and demonstrate an apprehension of bias by a lay observer. Also, my perusal again of that decision, does not demonstrate that.
    
17. It is also prudent that I refer briefly to the cause of action in this present proceedings OS 779 of 2012, to remind myself and all parties of whether the issues to be considered in this proceedings are the same as the earlier proceeding or not.
    
18. In this case, the OS seeks orders to prevent the Public Prosecutor and the State from conducting any further enquiries into alleged acts of misconduct perpetrated by the plaintiff.
    
19. Obviously, the both cases do not seek the same reliefs. Not only that, it is in fact good case management for the same Judge to hear related matters especially if the matters are still continuing but in a different form.
    
20. My decision of 31st January, 2012, more particularly par. 25, in my view, does not contain findings of fact that would create an apprehension of bias in this case. This Court or any Court must be slow to acceding to requests to recuse because a judge is required to deliver a decision which finds the facts, applies the law as understood to those facts and produces a decision, according to law, as an outcome. (my emphasis)
    
21. The test is whether a belief may reasonably be entertained by a well-informed external observer, in this case the plaintiff, that the Judge may not bring a fair and unprejudiced mind to this case, having made a decision in a related case (re John Nero's affidavit sworn on 5th February, 2013 and filed on 7th February, 2013). This is an objective test, looking at how things would be perceived 'from the outside'. In R v. Gough [1993] UKHL 1; [1993] AC 646, 670 (HL), Lord Goff considers this to be some type of public law mens rea where he said;
    

"Having ascertained the relevant circumstances, the Court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him."

And the authorities in the common law jurisdiction demonstrate that there is no distinct or clear definition as to what is an apprehended bias. Each case is determined on its own set of circumstances, peculiar to that case. And as in this jurisdiction where every day, sometimes the same parties are in Court on what are related matters. And the Courts have to deal with them because the Judge took a Judicial Oath to do right to all manner of people based on the laws and Constitution of the country without fear or favour, affection or ill will. Every day, a Judge has to be a Judge using what some academics say is a 'judging process'. Professor P A Cain in her paper "Good and Bad Bias: A Comment on Feminist Theory and Judging" published in the (1988) 61 Southern California Law Review 1945, at pg 1955 said this;

"The act of judging is an act which seems to require at least momentary separation. A judge should transcend self to listen, and then a Judge should decide with empathy and understanding – as a new self, if you will, for having experienced the story of the other".

(my emphasis)

22. And that is what a Judge should do, as I always do and will do, in this case, be a new self for every case that comes before me.
    
23. And parties applying to recuse must also bear in mind what Mason J emphasized in Re JRL; exp CJL [1986] HCA 39; (1986) 161 CLR 342 at 352;
    

"It is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour".

24. On that note, I will dismiss the application by the applicant and will award costs (of the application), to the defendants.
    
25. I will now hear the motions before me.
    

___________________________________________

Young & Williams Lawyers Lawyer for the Plaintiff
Office of the Solicitor-General: Lawyer for the first, second and third Defendants