N7364

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 745 OF 2014

BETWEEN
PAPUA NEW GUINEA AIR SERVICES
First Plaintiff

AND
NATIONAL AIRPORTS CORPORATION
Second Plaintiff

AND
NATIONAL HOUSING CORPORATION
First Defendant

AND
SIKE TOULIK, PATRICK MAIYAU, JOHN PAUL, ANTHONY SIMITAP, HAGGAI ZERIGA & ORS IN THE SCHEDULE APPENDED
Second Defendant

Waigani: Polume-Kiele J
2017: 22 September & 6 October
2018: 20 March & 19 June

PRACTICE AND PROCEDURE-  Application for disqualification of trial judge - Fair hearing- Trial judge disclosure of being related to two individuals who are identified in the proceedings – One from same village, an applicant for joiner – another related by marriage – not an applicant for joiner.

PRACTICE AND PROCEDURE - Apprehension of bias – Apprehended bias – Application for joiner entered by consent of parties - The first plaintiff now seeks the disqualification of trial judge - whether proper basis for disqualification supported by the second plaintiff- Nature of apprehension requiring Judge to disqualify himself or herself from hearing a matter – Whether apprehension reasonable – Relevant legal principles considered.

Cases Cited:
Papua New Guinea Cases

Application by Herman Joseph Leahy (2006) SC855
Bank of Papua New Guinea & Anor v. Marshall Cooke QC & Anor (2003) N2369
Coecon Ltd v. National Fisheries Authority of PNG (2002) N 2182
Gobe Hongu Ltd v. National Executive Council & Ors (1999) N1964
Hitron Pty Ltd v. PNG Telecommunication Authority [2000] PNGLR 357
NCDC v Yama Security Services Ltd (2017) SC1575
Pacific Equities & Investments Ltd v. Teup Goledu & Ors (2008) N3400
Peter Yama v. BSP; Smugglers Inn v Christopher Burt; Yakka Enterprises v Peter Yama (2008) SC 921
PNG Pipes Ltd & Anor v. Mujo Sefa & Ors (1998) SC 592
The State v. Puli A’aron (2003) N 2432

Overseas Cases 

Galea v. Galea (1988) 19 NSWLR 263
Livesey v. New South Wales Bar Association (1983) 151 CLR 288; 47 ALR 45
Metropolitan Properties Co. (FCE) Ltd v Lannon [1969] 1 QB 577
Raybos Australia Pty. Ltd. v. Tectran Corp. Pty. Ltd. (No.4) (1986) 6 NSWLR 674
Re Keely; Ex parte Ansett Transport Industries (Operations) Pty. Ltd. (1990) 94 ALR 1, 64 ALJR 495.
R. v. Leckie; Ex parte Felman (1997) 18 ALR 93; 52 ALJR 155.
Re JRL; Ex parte CJL (1986) 161 CLR 342
Trustee of Christian Brothers v. Cardone (1995) 130 ALR 345
Webb v. R (1994) 181 CLR 41; 122 ALR 41

Ruling on Application for Disqualification

19 June, 2018

1.	POLUME-KIELE J:  On the 30th of March 2018, the first plaintiff moved a motion before me which motion was supported by the second plaintiff seeking orders that I as a trial judge disqualify myself from presiding further in the trial of this matter. 

2.	These proceedings arose following a declaration made by the Minister for Civil Aviation Authority (CAA) on the 28th January 2016 in which the CAA was redesignated.  This organisation is now called the Civil Aviation Safety Authority (CASA) pursuant to s 324A and 324B of the Civil Aviation Act. Pursuant to this redesignation, all assets and liabilities of the former CAA now vest with the CASA. 

3.	It appears that the assets of the CAA include a list of properties; the subject of these proceedings which the National Airport Corporation (Second Plaintiff) and the PNG Air Services Limited (First Plaintiff) and the National Housing Corporation, (first defendant) all lay claims over.  These proceedings have been subject to an appeal to the Supreme Court in SCA No. 163 of 2014.  Following this appeal, the matter has been reverted to this Court for re-hearing. 

Brief Background
	
4.	The basis of the application is that during the course of hearing parties on the application for joiner; I discovered that at least two persons whose names were on the list of 100 applicants wishing to be joined as applicant to these proceedings were related to me, one a John Konabe is from the same Village as me and the other a Sespi Kouse, is related by marriage. This fact was disclosed during a hearing on the 22nd of September 2017.  In the course of the hearing of the application and exchanges with Counsels, it was agreed that the parties discuss the application for joiner and to indicate any inclusion and or exclusion and return to Court on the 6th of October 2017 with a view to handing up a draft consent order as to the list of applicants for joiner.

5.	Upon listing for a re-hearing of the matter, Kubak & Associates Lawyers moved an application for joiner of the 54 applicants who had been identified in SCA No. 163 of 2014 as parties interested in the proceedings and therefore be joined. 

6.	Since then, a number of new applicants have filed applications for joiners. Amongst these new applicants are two persons who are related to me as the trial judge. These two applicants are close relatives (one by marriage and another from the same village). Thus the application by the Plaintiffs for disqualification.  This information was disclosed to the parties during the hearing of the application on the 22nd of September 2017.  

7.	During discussion in Court, it appeared that only applicant; John Konabe (from same village) had actually filed an affidavit in support of the joiner application. The other applicant, Sespi Kouse (related by marriage) did not file any affidavit or indicated a willingness to be joined as a party. Thus this application may not affect him at all.

8.	Given these circumstances, parties were invited to discuss the issues of joiner and to specifically determine who should be included and or excluded from being joined as a party to the proceedings and to return to court with their proposals. 

9.	On the 6th of October 2017, parties had entered a Consent Order which included all the 54 applicants (as per the SCA No. 163 of 2014 and the 46 new applicants (including John Konabe) as parties to the proceedings. Upon entering into a consent order which apparently had included one John Konabe as a party to the proceedings, the First and Second Plaintiff now seek orders to disqualify the trial judge from hearing and determining the matter.

10.	This is my ruling on the application.

Plaintiff’s evidence

11.	The first plaintiff’s application for disqualification relates to the issue of whether in all the circumstances a fair minded, lay observer with knowledge of the material objective 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.” The application is supported by two affidavits; that of Mr Nelson Kopunye, Lawyer for the First Plaintiff sworn on the 17th of January 2018, filed on the same date and Ms Rosemary Sariman sworn on the 17th of January 2018, filed on the same date, Ms Sariman the In-house Lawyer for the Plaintiff. 

12.	It is noted that there is no supporting affidavits sworn by any relevant persons of authority from within the First and Second Plaintiff’s organisation.

13.	The application is supported by the Second Plaintiff as per Mr Aku’s submission but again there is no support affidavit filed by any person of authority from within the Second Plaintiff’s organisation attesting to seeking the disqualification of the trial judge.

14.	However I note that on the 6th of October 2017, a draft consent order was endorsed by the Parties. The consent order was handed up in Court on the 6th of October 2017 for endorsement. A perusal of the consent orders confirms that the applicant John Konabe is listed as an applicant for joiner to these proceedings. 

Second Defendant’s evidence

15.	The Second Defendants object to the application and say there that whilst there are appropriate case authorities that apply in this type of situation, they submit that there is no proper basis for disqualification. In this regard, whilst it was open for the First and Second Plaintiffs to raise such matters in the interest of fair justice.  When the applicant does raise the issue by way of a formal application, the onus is on the applicant to satisfy or imputed or apprehended bias. 

The law

16.	The relevant principles and the test applicable in an application for a Judge to disqualify themselves are established in PNG Pipes Limited and Sankaran Venugopal -v- Mujo Sefa & 2 Ors, (1998) SC 592 in which the Supreme Court referred to a number of similar cases and statements of principles in overseas jurisdiction and applied those principles and the test as the law in our jurisdiction. The test is that of an ‘objective observer’ (underlining mine).

17.	In Gobe Hongu Ltd v. National Executive Council & Ors (1999) N1964, the court in its determination of an application for disqualification had considered the principles applied in the case PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa, Globes Pty Ltd and Romy Macasaet (supra) and a number of case authorities from a number of Australia Courts in its deliberation on this aspect of the law and states:

“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 in Pipes Ltd & Anor v. Mujo Sefa & Ors should also include ‘a fair minded, lay observer’ as considered in Livesay v. NSW Bar Association (supra).”

18.	This test has been adopted and followed in subsequent pronouncements (see Hitron Pty Ltd v. PNG Telecommunication Authority [2000] PNGLR 357, Coecon Ltd v. National Fisheries Authority of PNG (2002) N 2182, Bank of Papua New Guinea & Anor v. Marshall Cooke QC & Anor (2003) N 2369, The State v. Puli A’aron (2003) N 2432; Pacific Equities & Investments Ltd v. Teup Goledu & Ors (2008) N3400;  Peter Yama v. BSP; Smugglers Inn v Christopher Burt; Yakka Enterprises v Peter Yama (2008) SC 921 and the more recent case of NCDC v Yama Security Services Ltd (2017) SC1575). 

19.	In Peter Yama v. BSP; Smugglers Inn v Christopher Burt; Yakka Enterprises v Peter Yama (2008) SC 921; the Supreme Court in its discussion on the law on bias and disqualification states:  

“10. 	The leading case in respect of civil matters concerning an application for disqualification is the Supreme Court decision of PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa, Globes Pty Ltd and Romy Macasaet (1998) SC 592…”
11. 	In PNG Pipes (supra) it was 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.”

12. 	Further in the Application by Herman Joseph Leahy (2006) SC855. This decision concerned an application to disqualify a Judge who had sat on a three man bench hearing an application for judicial review in criminal proceedings, the Supreme Court held that:
“1)	For a Judge to be disqualified from hearing a case on the ground of apprehended bias, the test to be satisfied is: would a reasonable and fair-minded person knowing all the relevant facts have a reasonable suspicion or apprehension that a fair hearing was not possible?

2)	 The suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds.

3)	General knowledge on the part of a Judge, obtained in the course of previous employment, of the subject matter of legal proceedings will not, by itself, give rise to a reasonable suspicion or apprehension of bias in the event that the Judge deals with the subject matter in a judicial capacity.

4)	If a Judge's knowledge of the subject matter of legal proceedings is contended to be the basis of a suspicion or apprehension of bias there must be a real connection between the Judge’s knowledge and the issues for adjudication in those proceedings, e.g. if the Judge has expressed a prior opinion on the issues for adjudication.”

20.	The Supreme Court in PNG Pipes (supra) sets the guide where a judge should disqualify herself or himself; I adopt that guide as applicable to this application.

Consideration of the application

21.	In this application, the subject of the application for disqualification, is that on the 26th of June 2017 when the matter was first mentioned before me, I had alerted the parties to the fact that during the course of perusing the documents on the court file, I had discovered that one of the persons (namely Sespi Kouse) listed in the documents was related by marriage. Furthermore, during the exchange of dialogue between the Bench and Counsels on the 22nd of September 2017, I then also discovered another person’s name (a John Konabe) on the list of applicants for joiner is from the same Village as me and a relative.

22.	During the exchanges, parties were then allowed to consult and consider the issue of whether or not to include new applicants or exclude applicants on the list of persons to be joined as parties to the proceedings. The matter was then adjourned to the 6th of October 2017 for these purposes. The parties were to return to court with draft consent orders for endorsement should they arrive at some agreement.

23.	On the 6th of October 2017, the parties returned to this Court with draft consent orders for endorsement. The draft consent orders are in these terms:

(i)	The additional 46 tenants as identified in the Schedule attached hereto are joined as Second Defendants in addition to the 54 tenants accepted in SCA 163 of 2015 and joined on the 21.08.2017 (who are also identified in the Schedule).

(ii)	The amendments proposed by the First Plaintiff as contained in Annexure “A” of the Affidavit of Nelson Kopunye sworn on 04.05.2017 and filed on 08.05.2017 (Document No. 61) are to proceed by way of statement of claim.

(iii)	The Plaintiffs’ Statement of Claim is to be filled and served by the 24th of October 2017.

(iv)	The Defendants are to file and serve a Defence to the Statement of Claim by the 7th of November 2017.

(v)	The Plaintiff are at liberty to file and sere a Reply to the Defence by the 14th of November 2017.

(vi)	Parties are to return to Court on Friday the 17th of November 2017 at 9.30 a.m. for further directions to progress this matter to trial.

(vii)	The time for the entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith.

Date Ordered:   /10/2017
Date entered:    /10/2017

							BY THE COURT

							___________________
							IAN AUGEREA
							Registrar

24.	On the day of the matter being returned, the draft consent orders were endorsed by the Court and Orders were then taken out by the parties. I note that the terms of the order (paragraph 1) list of applicants contains the name John Konabe as an applicant for joiner. The other named person Sespi Kouse was not interested in the proceedings and therefore there is no issue as to his joiner.

25.	In this case, the joiner of John Konabe as an applicant to these proceedings was entered by consent of the parties. So in effect this was an agreement entered by consent of the parties to have the joiner agreed to and for these purposes, it is a decision made by the parties. The trial judge only endorsed the decision of the parties. Given the consent of the parties, should the applicants (first and second plaintiffs) now seek to have the trial judge disqualified from sitting and hearing the matter?  I fail to see the reasoning behind the objection that is raised by Mr Kopunye for the first plaintiff.  The first plaintiff cannot now raise objection that the trial judge disqualify herself from hearing and determining the matter particularly where there is evidence (from the recording in the transcripts) that parties were directed to discuss the issue of the joiner application and to consider who to include and exclude from the application for joiner. 

26.	Overall, all parties to these proceedings had agreed by consent that the applicant John Konabe be joined as a party to the proceedings. Based on their agreement, the 46 applicants were joined as Second Defendants to these proceedings.  Mr Kopunye cannot now argue that a reasonable and fair minded person sitting in Court would apprehend bias on the trial judge’s part.

27.	The evidence in support of the application to disqualify me did not meet the test and the law on disqualification of judges as established in PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa, Globes Pty Ltd and Romy Macasaet (supra).
28.	Further, I do note the special role of judges in PNG where we perform dual roles – as judges of the National Court, which is principally a trial Court, and also judges of the Supreme Court, which is principally an appellate Court.  This means that a trial judge may preside in trial cases and review or appeal cases or vice versa, involving the same parties but in different cases raising the same or different issues.  

29.	Thus I am of the view that appropriate safeguards are in place to protect the integrity of the court’s process. In situations where issues of disqualification are raised, it is a matter in which a trial judge need to take appropriate steps and to ensure that such an application is determined appropriately and a decision taken with care. It also means that the applicant satisfy the principles or met the test required in an application for disqualification of a trial judge from sitting and determining a matter before them. The principles to be satisfied in an application for disqualification of a trial judge by reason of apprehension of bias are:-

“Where it is demonstrated that:

(i)	he or she has an interest in the case before him or her, which interest may be direct, indirect, pecuniary or otherwise;

(ii)	by his or her conduct including published statements, whether such conduct is in the course of, or outside the proceedings;

(iii)	the Judge, through association or relationship, either by himself, his spouse or children, has a direct pecuniary interest in the case; and

(iv)	finally, disqualification by extraneous information, where the Judge had presided over an earlier case or he has had some knowledge of prejudicial and inadmissible facts: Webb v. R (1994) 181 CLR 41”.

30.	In the present case, the plaintiffs here have not addressed the Court on the real basis of their application. The plaintiffs have also not provided the exact material that I as the trial judge is biased against them. Furthermore, 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. Similarly, no material is presented before this Court to demonstrate that:-

(i)	Firstly, I as a trial judge have an interest in the case before me, which interest may be direct, indirect, pecuniary or otherwise;

(ii)	Secondly, where by my conduct including published statements, whether such conduct is in the course of, or outside the proceedings;

(iii)	Thirdly, where I as a trial Judge, through association or relationship, either by myself, my spouse or children, have a direct pecuniary interest in the case (underlining mine);

(iv)	Finally, disqualification by extraneous information, where I as a trial Judge had presided over an earlier case or have had some knowledge of prejudicial and inadmissible facts.

31.	On the evidence and submissions before me, the test of an ‘objective observer’ established by the Supreme Court in PNG Pipes Ltd & Anor v. Mujo Sefa & Ors, (supra) has not been met by the plaintiff or its managing director that I as the trial judge will be biased or that there is a perceived or apprehension of the real likelihood of bias. Instead, the application is supported by two affidavits filed by two lawyers which I view as having no real basis for this application given that the joiner has been agreed to by consent of all the parties. Hence, I adopt the principles that Judges should not too readily accede to applications for disqualification, whereby parties may effectively influence the choice of a Judge in their cause. 

32.	Furthermore, it is in the proper administration of justice that Judges should resist from being driven from their Courts by the conduct or assertion of parties. 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.

33.	However, Judge may disqualify himself in circumstances where a fair minded, lay observer, with knowledge that 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 and in circumstances where it is demonstrated that, firstly, a trial judge has an interest in the case before him, which interest may be direct, indirect, pecuniary or otherwise. Secondly, by his/her 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/herself, his/her spouse or children, has a direct pecuniary interest in the case. And finally, disqualification by extraneous information, where the Judge had presided over an earlier case or he/she has had some knowledge of prejudicial and inadmissible facts.

34.	In this present case, I find that the plaintiffs have not introduced or adduced into evidence material facts which to their knowledge might entertain a reasonable apprehension that I as the trial judge might not bring an impartial and unprejudiced mind to the resolution of the question in issue. 

35.	For these reasons, I refuse the application and order that costs of the motion shall be costs in the trial of these proceedings.

Orders of the Court

I refuse the application for disqualification

Costs of the motion shall be costs in the trial of these proceedings

Orders accordingly,

Kopunye Lawyers:    Lawyers for the First Plaintiff	
Pato Lawyers:  Lawyers for the Second Plaintiff
Thinngi Lawyers:  Lawyers for the First Defendant
Kubak & Associates Lawyers:  Lawyers for the Second Defendants