N7142
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 460 of 2017

BETWEEN:
JURA INVESTMENT LTD
Plaintiff

AND:

ALBERT CONLIFE
also known as
ALBERT CONLIFFE
Defendant

Waigani: Hartshorn J
2018: January 18th

APPLICATION - For disqualification of a judge
    
Cases Cited:
Papua New Guinea Cases 

PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592 
Pastor Steven Bagari v. James Marape (2014) N5675 
Philemon Korowi v. Elizah Aron (2016) N6215
Tzen Pacific Ltd v. Innovest Ltd (2012) N4713
Yama v. Bank South Pacific Ltd (2008) SC921 

Overseas Cases:

Bienstein v. Bienstein [2003] HCA 7 
British American Tobacco Australia Services Ltd v. Laurie [2011] HCA 2
Ebner v. Official Trustee in Bankruptcy [2000] HCA 63
Johnson v Johnson [2000] HCA 48 
Porter v. Magill [2002] 2 AC 357 
Re JRL; Ex parte CJL [1986] HCA 39
Saxmere Company Ltd & Ors v. Wool Board [2010] 1 NZLR 35
MTI v. SUL [No. 2] [2012] WASCA 87
Lashansky v. Legal Practice Board of Western Australia [2012] WASCA 77
Counsel:
Mr. I. Shepherd, for the Plaintiff
Mr. A. Jerewai, for the Defendant

18th January, 2018

1. 	HARTSHORN J: This is a decision on a contested application by the defendant for my disqualification from hearing this proceeding on the ground that there is a reasonable apprehension of my bias.
Background

2.	 The plaintiff seeks substantively an order for the vacant possession of the land and improvements of a certain property and for profits and damages, from the defendant. The defendant currently occupies the property.

This application

3. 	The defendant seeks my disqualification pursuant to Order 4 Rule 37 National Court Rules. No issue was taken by the plaintiff with the reliance by the defendant upon that Rule. The defendant seeks my disqualification on the grounds, if I understand correctly, that:

(a)	The plaintiff's claim to the property is based upon a vesting order made in proceeding MP 17/08 on 29th July 2008 by me;

(b) I presided over another proceeding concerning property that has a similar history to the property the subject of this proceeding;

(c) Because of (a) and (b), I have already formed a view on matters concerning property that has a similar history to the property the subject of this proceeding

4. 	The plaintiff submits that the application should be refused as:

(a)The evidence in the affidavit in support does not disclose why I 	should be disqualified;

b)	No reasonable grounds are disclosed to support my disqualification;

c)	The previous cases over which I presided referred to by the defendant, did not involve any of the parties to this proceeding;

d)	The fact that a judge has decided an issue in an early proceeding and a similar issue is raised in a subsequent proceeding does not provide a foundation for a reasonable apprehension that the judge might be biased.
Law
5.	 As to an application for the disqualification of a judge for apprehended bias, in PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592, 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.”
6. 	In Tzen Pacific Ltd v. Innovest Ltd (2012) N4713, I noted that the law as to apprehended bias in respect of a judge in this jurisdiction is similar to the law in the United Kingdom, Australia and New Zealand: Saxmere Company Ltd & Ors v. Wool Board [2010] 1 NZLR 35, Porter v. Magill [2002] 2 AC 357, Ebner v. Official Trustee in Bankruptcy [2000] HCA 63, though the governing principle is that, subject to qualifications concerning waiver or necessity, a judge is disqualified: 
“if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: Ebner (supra), Johnson v Johnson [2000] HCA 48, British American Tobacco Australia Services Ltd v. Laurie [2011] HCA 2. 
7.	In essence the tests are the same in all of these jurisdictions. 
8.	 As to the hypothetical observer, in Yama v. Bank South Pacific Ltd (2008) SC921, the Court observed that an objective, fair minded, lay observer is to be attributed with having some knowledge of the way in which lawyers and judges work. The Australian High Court in Johnson v. Johnson (supra) explained further that:
“The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require the judge to discard the relevant, the immaterial and the prejudicial””
9.	In cases where the allegation is that the apprehension of bias arises because a judge has presided over an early case or cases involving one or other of the parties, it has been held that:
“While it is important that justice must be seen to be done, a judge should not disqualify himself or herself on the basis of bias or a reasonable apprehension of bias unless substantial grounds are established”: Re JRL; Ex parte CJL [1986] HCA 39, Bienstein v. Bienstein [2003] HCA 7, MTI v. SUL [No. 2] [2012] WASCA 87, Lashansky v. Legal Practice Board of Western Australia [2012] WASCA 77.
10.	In Re JRL; Ex parte CJL (supra), Mason J stated that an apprehension of bias must be firmly established. His Honour said:
“It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in the proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”…. 
Although it is important that justice must be seen to be done, 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.”
11.	In the minority decision of the High Court of Australia decision of British American Tobacco Australia Services Ltd v. Laurie [2011] HCA 2, French CJ said in the general context and not specifically as to the matter then before the High Court, that in regard to a finding properly made by a judge in the course of an interlocutory ruling or in earlier proceedings, that:  
“It is an area in which courts should be astute not to defer to that kind of apprehension (of bias) that is engendered by the anticipation of an adverse outcome, rather than a legitimate concern about partiality. By way of example, the fact that a judge who has made a finding of fact adverse to a party on particular evidence is likely to make the same finding on the same evidence, is not of itself indicative of bias. It could be indicative of consistency subject to the judge having an open mind when it came to argument about the effect of the evidence.”
12.	In considering whether a reasonable apprehension of bias has been established, in Yama v. Bank South Pacific Ltd (supra) at para 19 the 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.”
Consideration
13.	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:
a)	the plaintiff’s claim to the subject property is based upon a vesting order made by me;
b)	I presided over another proceeding concerning property that has a similar history to the property the subject of this proceeding;
c)	I have already formed a view on matters concerning property that has a similar history to the property the subject of this proceeding.
14.	As I said in Pastor Steven Bagari v. James Marape (2014) N5675 at [20], I am not satisfied that there is evidence in this instance to suggest, and I am not of the view that my decisions in the previous two proceedings give rise to an apprehension that I will approach this proceeding with a closed mind. I refer to the statement of French CJ in British American Tobacco v. Laurie (supra) in this regard.
15.	The mere fact that a judge has previously decided cases in favour or against a party does not provide a foundation for a reasonable apprehension that the judge might not consider another case involving one or both of the parties with other than an impartial and unprejudiced mind; MTI v. SUL [No. 2] [2012] WASCA 87. 
16.	In this instance, the two proceedings to which the plaintiff refers in support of his submissions do not involve either of the two parties to this proceeding. Such a circumstance does not give rise to a reasonable apprehension of bias by me against either or any of the parties to the proceeding. 
17.	That I have decided two cases concerning property that has a similar history to the property the subject of this proceeding does not provide a foundation for a reasonable apprehension of bias. I reproduce what Makail J. said in Philemon Korowi v. Elizah Aron (2016) N6215 at [15]:
“… the mere fact that a judge has decided an issue in an earlier case and the same issue is raised in a subsequent case does not provide a foundation for a reasonable apprehension that the judge might be biased.”
18.	Further, as was said in Re JRL; Ex Parte CJL (supra):
“There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.”
19.	Given the above, I am satisfied that the plaintiff is not entitled to the relief that he seeks.
Orders
20.	The Orders of the Court are:

a)	The relief sought in the notice of motion of the defendant filed 25th July 2017 is refused;
b)	The defendant shall pay the plaintiff’s costs of and incidental to the said notice of motion;
c)	Time is abridged.

__________________________________________________________
Ashurst		: Lawyers for the Plaintiff                           
Jerewai Lawyers 	: Lawyers for the Defendant