N6061

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 178 of 2015

BETWEEN:

ANDITA KEKO and 13 other Landowner Agents as named in the Schedule to this Originating Summons
First Plaintiffs

AND:

JUSTICE FOUNDATION FOR PORGERA LTD
Second Plaintiff

AND:

BARRICK (NIUGINI) LTD
First Defendant

AND:
HON BYRON CHAN, MP Minister for Mining of the Independent State of Papua New Guinea
Defendant Second

AND:

THE ATTORNEY GENERAL as Nominal Defendant for the Governor General of the Independent State of Papua New Guinea
Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Hartshorn J
2015: 23rd June
: 8th July

Application for disqualification of a Judge

Cases cited: 
Papua New Guinea Cases

Bagari v. Marape (2014) N5675
Danaya v. Wobiro (2014) N5674
Gobe Hongu Ltd v. National Executive Council & Ors (1999) N1964 
Pacific Equities & Investments Ltd v. Teup Goledu & Ors (2008) N3400 Peter Yama v. BSP (2008) SC921 
Tzen Pacific Ltd v. Innovest Ltd (2012) N4713 
Workers Mutual Insurance (PNG) Ltd v. Sivakumaran (2013) N4987 

Overseas Cases 

British American Tobacco Australia Ltd v. Peter Gordon & Anor (2007) NSWC 109
Metropolitan Properties Co (FGC) Ltd v. Lannon (1969) 1 QB 577 

Counsel: 

Mr. G. Egan and Mr. N Kiuk, for the Plaintiffs
Mr. R. Bradshaw, for the First Defendant

8th July, 2015

1. HARTSHORN J: The plaintiffs make application for my disqualification from hearing this proceeding. The first defendant opposes the application. There was no appearance on behalf of the other defendants when the application was heard. The plaintiffs rely upon Order 12 Rule 1 National Court Rules and s. 155 (4) of the Constitution.

Background

2. The plaintiffs, comprising persons described as landowners, and a company, seek by way of originating summons, amongst others, declaratory relief to the effect that a certain Mining Development Contract made on 12th May 1989 (MDC) is void ab initio and the Porgera Special Mining Lease No 1 granted on the same date, is of no legal force or effect.

This application

3. It was initially submitted by counsel for the plaintiffs that I should disqualify myself from hearing this proceeding as at all material times when the MDC was entered into in 1989, and in 1994 when a Porgera Sale Agreement was entered into, Blake Dawson Waldron (BDW), now Ashurst Lawyers, was the law firm advising the first defendant Barrick (Niugini) Ltd and its predecessors (Barrick), and I was the Managing Partner of BDW.

4. It was further submitted that if this substantive proceeding is successful, Barrick may take action against its legal advisers for negligent advice and such action would also be against me. Given this, it was submitted that it is obvious and necessary that the only just and reasonable course in the administration of justice was for me to disqualify myself from further involvement in this proceeding.

5. I then informed counsel that I did not join BDW until sometime in 2000. After a short recess of the hearing, counsel for the plaintiffs did not make any further oral submissions. He relied upon the affidavits filed in support of the amended notice of motion and parts of the written submissions that had been tendered to the court.

6. Barrick submitted that the application should be refused as amongst others that:
 
a) the application was based upon the erroneous assumption that I was employed or was a partner at BDW in 1989 and 1994;

b) if the substantive proceeding was successful, it would not expose me to potential liability as a former partner;

c) there is no evidence at all that when I was a partner at BDW that I did any work for Barrick, or that I gained any special knowledge about or concerning Barrick;

d) I have been a Judge for over eight years;

e) the MDC was prepared 26 years ago and the Porgera Sale Agreement 21 years ago.

Law

7. The plaintiffs submit that the test for determining whether a judge should disqualify himself or herself by reason of apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
 
8. The plaintiffs refer to amongst others the following decisions in that regard: Johnson v. Johnson (2000) 201 CLR 488 at [11]; Ebner v. Official Trustee in Bankruptcy (2000) 205 CLR 337 and Michael Wilson & Partners Ltd v. Nicholls (2011) 244 CLR 427. Reference is also made to a decision of Lord Denning in Metropolitan Properties Co (FGC) Ltd v. Lannon (1969) 1 QB 577. As to bias His Lordship said at p299:

"….. In considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand".

9. The plaintiffs submit that applying the test and principles to which they have referred, 'right minded persons' may think that a former partner of a firm of lawyers acting for a party in these proceedings should 'not sit' and hear the case and 'if he does sit, any decision made by the judicial officer cannot stand'.

10. Barrick submits that it is not necessary for overseas authority to be relied upon as there have been numerous decisions in this jurisdiction that have considered the principles concerning when a judge should be disqualified from sitting on a matter. The principles applicable in an application for the disqualification of a judge were summarized by the Supreme Court (of which I was a member) in Peter Yama v. BSP (2008) SC921.

11. With respect to an application based upon a prior professional relationship between a client and lawyer, where the lawyer is subsequently appointed a Judge, the Supreme Court in Peter Yama v. BSP (supra) adopted the principles set out in British American Tobacco Australia Ltd v. Peter Gordon & Anor (2007) NSWC 109, which principles I had applied in Pacific Equities & Investments Ltd v. Teup Goledu & Ors (2008) N3400. Those principles are:

"a) A prior professional relationship between a lawyer and client - even a long and proximate one - does not generally justify a reasonable apprehension that the lawyer, on becoming a judge, will not determine proceedings to which the former client is a party impartially on their legal and factual merits, because the relevant fair minded observer understands that the counsel is not beholden to the client after the relationship is severed, Re Polites; Ex parte The Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78; Aussie Airlines Pty Ltd v. Australian Airlines Pty Ltd & Qantas Airlines Ltd (1996) 65 FCR 215; S&M Motor Repairs Pty Ltd v. Caltex Oil (Australia) Pty Ltd (1998) 12 NSWLR 358.

b) Even having given advice to the former client, present litigant on an issue that arises in the matter before the court does not generally give rise to such an apprehension, because a judge can be expected to approach afresh with an open mind from the bench issues on which he or she has previously advised, illuminated by evidence and argument, Polites (supra);Kartinyeri v. Commonwealth of Australia [1998] HCA 52; A1 v. King (supra)

c) Nor does having advocated forensically a position on such an issue generally give rise to such an apprehension, Gascor t/as Gas & Fuel v. Ellicott, Esso Australia Resource Ltd & Anor [1997] 1 VR 332; indeed the position is a fortiori having given advice, because whereas giving advice involves counsel in reaching and expressing his or her own opinion on the issue, proper advocacy involves no more than presenting a tenable argument, which does not necessarily reflect counsel's own opinion on the issue; advice therefore involves far greater potential for prejudgement than advocacy.

d) However, if the judge may be considered to have an interest in the outcome - for example, if the appropriateness of the advice is in issue, or if it will be necessary to decide whether a course of conduct advised by the judge as counsel was legally effective or appropriate - a reasonable apprehension of bias will arise Polites (supra); A1 v. King (supra).

e) Moreover, if the judge as counsel may reasonably be supposed to have gained special knowledge of the facts through prior involvement - including through privileged material in a brief - that may found a reasonable apprehension that as judge he or she may have in mind extraneous material not known to at least one party, S&R Investments Pty Ltd v. Minister for Planning [2001] WASC 255, because a lay observer may reasonably think that a judge might not be able to put such information out of his or her mind."

12. The factors to be considered in an application for disqualification, set out in Gobe Hongu Ltd v. National Executive Council & Ors (1999) N1964 were applied in Peter Yama v. BSP (supra). These are: 

"1) Judges should not too readily accede to applications for disqualification, whereby parties may effectively influence the choice of a Judge in their cause, Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; 66 ALR 239;

2) Judges should resist from being driven from their Courts by the conduct or assertion of parties. Raybos Australia Pty Ltd v. Tectran Corp. Pty Ltd (No. 4) (1986) 6 NSWLR 674 (at 689);

3) A Judge may disqualify himself in circumstances where a fair minded lay observer, with knowledge of the material facts might entertain a reasonable apprehension that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question in issue. Livesey v. NSW Bar Association (1983) 151 CLR 288;

4) A Judge should disqualify himself by reason of apprehension of bias, under one or more of the following principles, where it is demonstrated that, firstly, he has an interest in the case before him, which interest may be direct, indirect, pecuniary or otherwise. Secondly, by his conduct including published statements, whether such conduct is in the course of, or outside the proceedings. Thirdly, where the Judge, through association or relationship, either by himself, his spouse or children, has a direct pecuniary interest in the case and finally, disqualification by extraneous information, where the Judge had presided over an early case or he has had some knowledge of prejudicial and inadmissible facts. Webb v. R (1994) 181 CLR 41;

5) It is of fundamental importance in the administration of justice that litigants and the general public have full confidence in the integrity, including the impartiality of those entrusted with the administration of justice so that the impartiality and the Constitutional independence of the judiciary is not interfered with.

6) The test of an 'objective observer' established by the Supreme Court in PNG Pipes Ltd & Anor v. Mujo Sefa & Ors should also include 'a fair minded, lay observer' as considered in Livesay v. NSW Bar Association (supra)."

13. In Yama v. BSP (supra) at para 19 of the Supreme Court said:

"In considering whether a reasonable apprehension of bias has been established, it is necessary first to identify the facts, matters and circumstances by reason of which it is said that a judge might decide a case other than on its merits and secondly, to articulate the logical connection between those facts, matters and circumstances and the apprehended deviation from the course of deciding the case on the merits, Ebner v. Official Trustee in Bankruptcy [2000] HCA 63; Smits v. Roach [2006] HCA 36." See also Pacific Equities & Investment Ltd v. Teup Goledu (2008) N3400; Danaya v. Wobiro (2014) N5674; Bagari v. Marape (2014) N5675; Tzen Pacific Ltd v. Innovest Ltd (2012) N4713 and Workers Mutual Insurance (PNG) Ltd v. Sivakumaran (2013) N4987.

Consideration

15. The facts, matters and circumstances which it is submitted, might lead me to decide matters other than on their legal and factual merits are that at all material times, I was the Managing Partner of BDW when the MDC in 1989 and the Porgera Sale Agreement in 1994 were entered into and BDW now Ashurst Lawyers was the law firm advising Barrick.

16. As I have stated, I did not join BDW until sometime in 2000 and so the above facts, matters and circumstances do not arise.

17. Notwithstanding this, the plaintiffs, if I understand correctly, maintain the submission that 'right minded persons' may think that a former partner of a firm of lawyers acting for a party in this proceeding should 'not sit' and hear the case and 'if he does sit, any decision made by the judicial officer cannot stand'. 

18. There is no evidence to suggest that I acted directly for Barrick whilst I was Resident Managing Partner at BDW. Even if I had so acted, there is no evidence that I gave any advice to Barrick on any matter that is the subject of this proceeding or is in any way related to this proceeding. Further, even if I had so acted on any matter the subject of this proceeding or in any way related to this proceeding, there is no evidence that I was in a position to receive special knowledge or that I did receive special knowledge concerning an issue or a party in this proceeding.

19. In this regard, I refer again to one of the principles referred to in Yama v. BSP (supra), as it is worthy of repetition. It is that:

"A prior professional relationship between a lawyer and client - even a long and proximate one - does not generally justify a reasonable apprehension that the lawyer, on becoming a judge, will not determine proceedings to which the former client is a party impartially on their legal and factual merits, because the relevant fair minded observer understands that the counsel is not beholden to the client after the relationship is severed, Re Polites; Ex parte The Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78; Aussie Airlines Pty Ltd v. Australian Airlines Pty Ltd & Qantas Airlines Ltd (1996) 65 FCR 215; S&M Motor Repairs Pty Ltd v. Caltex Oil (Australia) Pty Ltd (1998) 12 NSWLR 358.

20. Consequently, I reject the submissions of the plaintiffs. They have failed to demonstrate a reasonable apprehension of my bias. This application is without merit and the relief that is sought is refused.

Orders

21. The formal Orders of the Court are: 

a) the relief sought in the plaintiffs' amended notice of motion filed 23rd June 2015 is refused;

b) the plaintiffs' shall pay the costs of the first defendant of and incidental to the said amended notice of motion;

c) time is abridged.

____________________________________________________________
Nikiuma Lawyers: Lawyers for the Plaintiffs 
 Bradshaw Lawyers: Lawyers for the First Defendant