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Kenai v Tom [2026] PGNC 36; N11683 (28 January 2026)

N11683

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
EP 19 OF 2022

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL
AND LOCAL LEVEL GOVERNMENT ELECTIONS

IN THE MATTER OF A DISPUTED RETURN
FOR THE WABAG PEN ELECTORATE

BETWEEN
SAMUEL PHILIP KENAI
Petitioner

AND
DR LINO TOM
First Respondent

AND
ELECTORAL COMMISSION
Second Respondent

WABAG: ELLIS J
27, 28 JANUARY 2026

PRACTICE & PROCEDURE – Application for disqualification of a judge – first respondent alleging that a fair-minded lay observer might entertain reasonable apprehension that judge would be biased in favour of first respondent – reliance on comments made in 2024, recorded in Hansard – reference to Facebook post suggesting “grand collusion” and subsequent comments – claims relating judge’s re-appointment – failure to acknowledge manner in which appointments are made – evidence insufficient – no reasonable basis for apprehension of bias

Cases cited

Electoral Commission of Papua New Guinea v Kaku [2020] PGSC 37; SC1950

Johnson v Johnson [2000] HCA 48

Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 DB 577

National Narcotics Bureau v Nauro [2015] PGSC 71; SC1480

Tzen Pacific Ltd v Innovest Ltd [2012] PGNC 60; N4713

Webb & Hay v R [1994] HCA 30

Counsel
C Copland for the petitioner
A Ninkama for the first respondent

RULING

1. ELLIS J: On 8 December 2025 a Notice of Motion was filed on behalf of the first respondent which was to have me “disqualified from presiding over the continuation of the trial of the petition”.
   

Evidence

2. The affidavit filed the same day in support of that motion was that of the first respondent, sworn the previous day, which was admitted as Exhibit A. That affidavit asserted that, on 3 December 2025, Yagi J indicated an intention to refer these proceedings to me. It is noted that no objection was taken on that occasion.
   
3. A passage from Hansard, which set out what the first respondent said on 21 February 2024 was quoted, being a passage that spoke favourably of my prior work as the resident judge in Enga Province, although his words contain multiple errors, including (1) the years I was here, (2) the time I spent here, and (3) that my contract was not renewed, which was not the case.
   
4. Despite quoting what the first respondent said on that occasion, what was referred to as annexure A (but was not labelled annexure A) contained no less than 81 pages of transcript, of which only a portion one page in length was relevant, being the portion quoted in the body of the affidavit.
   
5. This affidavit went on to refer to what were said to be Facebook posts, the first of which was by an anonymous contributor. It was suggested “The posts went viral” and it was also said that annexure B contained a true copy of the comments generated from that post. That annexure contained the original post, which suggested “this case smells already of a grand collusion ...”, was followed by about 100 comments. Of those comments, all but two referred only to the first respondent. The two that did refer to me said: “J Ellis will deliver justice” and “Justice Grahm (sic) is a good one we have in our country. Trust the process ...” I note that of those 100 or so comments, none supported the claim that there had been “grand collusion”.
   
6. It is convenient to note here the following matters that were indicated at the outset of the hearing as they are relevant to the matters raised in the first affidavit of the first respondent:
   

(1) I have never met the first respondent.

(2) I have never heard or read anything he said.

(3) I do not read social media posts.

7. In those circumstances, it was difficult to see how it could be suggested that a fair-minded lay observer would have an apprehension that I would be biased in favour of the first respondent. When the first respondent’s lawyer was asked to answer that question, it was suggested that this was what might be called a perception case, where the application was not based on (1) actual bias, (2) anything I had said or done, or (3) my knowledge of anything the first respondent had said or done or lack of such knowledge.
   
8. Instead, it was suggested that a fair-minded observer might entertain a reasonable apprehension that I might not bring an impartial or unprejudiced mind to the resolution of these proceedings.
   
9. If the evidence were confined to the affidavit of the first respondent referred to above, it appears that a fair-minded observer could not apprehend that I would be biased when I had not read either what the first respondent had said, the anonymous Facebook post or any of the numerous responding comments.
   
10. The fact that one, anonymous person makes an unsubstantiated claim of “grand collusion” does not satisfy the test of what a fair-minded observed would think. Any allegation of “grand collusion” would need to include Yagi J whose decision it was, as the judge managing election petitions, to refer these part-heard proceedings to me.
    
11. Two further matters weigh against the claim based on the first affidavit of the first respondent. First, of about 100 comments made in response to the post, only two picked up on the allegation against me and both those comments were contrary to the suggestion of a “grand collusion”. Secondly, the normal basis for an application for a judge to disqualify himself or herself from hearing a case is that the judge would be biased against the party making the application. In this case, the express claim was that I would be biased in favour of the first respondent which necessarily involves an implied claim that I would be biased against the petitioner. However, the lawyer for the petitioner opposed the application.
    
12. The first respondent also relied on three additional affidavits, which might be termed ambush evidence because they were not served on the petitioner until after 11 o’clock, less than two hours prior to the commencement of the hearing. They were each sworn on 26 January 2026 and were not filed until 27 January 2026, being the first day of the resumed hearing, before me, in Wabag.
    
13. There was no utility in rejecting the desire to rely on those affidavits because they would only become the basis of a second, similar, subsequent application.
    
14. In the first of those affidavits, admitted as Exhibit B, the first respondent disclosed that he is a member of the same political party as the Governor of Enga Province, Sir Peter Ipatas KBE, GCL, MP which, again, is a matter of which I was unaware until I read that. It is important to note that, in this affidavit, the first respondent did not suggest he was instrumental in my appointment.
    
15. This affidavit suggested that “The basis of this application is not mere fanciful speculation but has already triggered negative social media protest of unfairness and suspicious foul play in the appointment of His Honour to preside over this Petition.” However, as no additional social media comments were referred to, it follows that those words are based on the “grand collusion” claim referred to above.
    
16. Reference was made to what were described as “SMS messages sent to the Prime Minister on His Honour’s appointment”, said to be contained in Annexure A. The two pages of that annexure quoted an announcement reported by Jacob Pok on 26 May 2025, followed by the first respondent requesting of the Prime Minister that I could be “sent to Wabag” to which the Prime Minister’s response was “Already appointed Ellis for wabag (sic)”. However, it is necessary to note that (1) judges are appointed by the Judicial and Legal Services Commission (JLSC), not the Prime Minister, and (2) it is the Chief Justice who decides where a judge is to serve. Accordingly, any suggestion that either the Prime Minister of the first respondent played any role in either my appointment or my being sent to serve in Enga Province is plainly incorrect.
    
17. The third affidavit (Exhibit C) was that of Benson Nepao, who said he is a current Ward Councillor. This affidavit included a claim, not made by the first respondent, that it was the first respondent who initiated my reappointment.
    
18. The fourth affidavit (Exhibit D) was sworn by Koren Killa, another current Ward Councillor, who also asserted that my appointment was “initiated by the first respondent”.
    
19. There is a clear inconsistency in the evidence in that both the Ward Councillors made an allegation not made by the first respondent.
    
20. As the three affidavits that became Exhibits B, C and D do not refer to the process whereby judges are appointed or how I came to be based in Enga Province, the following matters need to be placed on record:

(1) Judges are appointed by the JLSC, whose five members are the Attorney-General, Chief Justice, Deputy Chief Justice, Chief Magistrate and Chief Ombudsman.

(2) There is no evidence that either the Prime Minister or the first respondent influenced that appointment.

(3) I indicated to the JLSC that I was willing to serve again in Enga Province, or wherever else the Chief Justice wished me to serve.

(4) The decision to appoint me as the resident judge for Enga Province was that of the Chief Justice.

Submissions

21. The first respondent’s written submissions (MFI 1) referred to and quoted passages from Webb v Queen (1994) 182 CLR 42 at 62 per Deane J (Webb), Electoral Commission of Papua New Guinea v Kaku [2020] PGSC 37; SC1950 (Kaku), Tzen Pacific Ltd v Innovest Ltd [2012] PGNC 60; N4713 (Tzen) and National Narcotics Bureau v Nauro [2015] PGSC 71; SC1480 (Nauro).
    
22. It was suggested that this application was made “with the sole intent and purpose to protect the office of the judge and the office of the Member for Wabag Open”. The matters referred to in support of the application may be summarised as (1) comments made by the first respondent in the National Parliament, (2) a Facebook post and subsequent comments, and (3) the suggested role of the first respondent and the Governor of Enga Province who were said to have been instrumental in my appointment.
    
23. In oral submissions it was contended that there were matters of which I was not aware, but the public was, and that his case involved a public perception in that “the people of Wabag might see the outcome differently”.
    
24. On behalf of the petitioner, it was said that the three additional affidavits upon which the first respondent relied were not served until after 11am, less than two hours before the commencement of the hearing. It was noted that the application was based on matters which I had not seen or heard or read. Further, the petitioner’s lawyer said she was unable to understand how the Facebook post provided support for this application. The petitioner’s case in relation to this application was that the first respondent had to establish apprehended bias. Reference was made to Kaku, notably to where it was said that it was necessary to ascertain what facts established by the evidence provided the basis for the conclusion of prejudice.
    

Relevant law

25. In the written submissions for the first respondent, a passage that was said to be from the judgement of Deane J in Webb was set out within quotation marks. It was submitted that the test for apprehended bias was whether:
    

a fair minded lay observer with knowledge of the Court systems and its processes might entertain a reasonable apprehension that the Judge would be bias (sic) and might not bring an impartial and unprejudiced mind to the resolution of the issue at trial: Webb v Queen (1994) 182 CLR 42, 62 per Deane J

26. As the National Court in Wabag does not have a set of Commonwealth Law Reports, it was necessary to access that judgement using the internet. While the wording of what Deane J said at that point in his judgment, as revealed by that search, differed from what was set out in the first respondent’s submissions, I assume, in favour of the first respondent, that the words quoted above are accurate.
    
27. It must be noted that it was said, in Tzen, that the hypothetical observed to be attributed with having some knowledge of the way in which lawyers and judges work. In that case, the following passage from Johnson v Johnson [2000] HCA 48 (Johnson) was quoted:

The hypothetical reasonable observer of the judge’s conduct is postulate in order to emphasis 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 and 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 irrelevant, immaterial and the prejudicial.

Consideration

28. It is necessary to record that the first respondent’s lawyer stated that this application is not based on an allegation of actual bias but was only based on asserted public perception of the decision, which obviously is not known at this stage.
    
29. As applications such as this require an evidentiary basis, and not “surmise or conjecture” (Kaku at [16], quoting from Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 DB 577 at 598), it is necessary to consider the evidence in support of the three strands of this application.
    
30. First, the comments made by the first respondent in the National Parliament on 21 February 2024, being comments that I did not know of until the first respondent’s application required me to read an affidavit containing those comments. I am not satisfied that a reasonable or fair-minded lay observer, with knowledge of how judges work, would think that those comments would have any impact on my decision. As was said in Johnson, judges are required to discard such matters. The test is not a matter of “public perception”, as was suggested by the first respondent’s lawyer.
    
31. Secondly, the Facebook post and subsequent comments. It is telling that, of the 100 or so comments that were put into evidence, none of them echoed or agreed with the suggestions contained in that post, notably that there was a “grand collusion”. Further, a close reading of Annexure B to the first affidavit of the first respondent reveals that there were, at that time, comments by one person plus 277 others. It is reasonable to proceed on the basis that if any of those 278 comments provided support for what was said in the post, they would have been included in that annexure. Accordingly, the Facebook post upon which the application relied, may be regarded as idiosyncratic.
    
32. In addition, it is noted that my involvement in this case is the result of my (1) appointment by the JLSC, (2) assignment to Wabag by the Chief Justice, and (3) allocation to this case by Yagi J.
    
33. Any “grand collusion” would need to involve (1) the Attorney-General, the Chief Justice, the Deputy Chief Justice, Chief Magistrate, and Chief Ombudsman, (2) the Chief Justice, and (3) Justice Yagi. That is so far-fetched as to be implausible. The author of the Facebook post upon which the first respondent relied cannot be considered a reasonable or fair-minded observer with a knowledge of how judges are appointed, assigned to specific locations, and allocated specific cases.
    
34. Thirdly, the evidence that the circumstances attending my appointment provide a basis for me to disqualify myself from hearing this case is also deficient. The following matters are noted:

(1) Benson Nepao and Koren Killa both suggested that my appointment was “initiated” by the first respondent and that he was “instrumental” in my appointment does not match the evidence of the first respondent, who said it was Governor Ipatas who was “instrumental”.

(2) The second affidavit of the first respondent refers to his communications with the Prime Minister but there is no evidence that either of them communicated with the JLSC and those comments were after the appointment was made and after I was assigned to be the resident judge in Enga Province. That evidence does not provide any support for the allegation based on my re-appointment.

(3) There is no evidence of how Governor Ipatas was “instrumental” in my appointment, only an assertion of that, and an indication that Governor Ipatas and the first respondent belong to the same political party.

35. The evidence of the involvement of the first respondent in my appointment is lacking, the JLSC is a five-member body that is independent of politics, and I do not see how a claim that what is said to have given rise to my appointment could be seen by a reasonable or fair minded observer to affect my decision in these proceedings.
    
36. It needs to be observed that every decision of a judge is unpopular with at least one of the parties, sometimes with both parties. Further, that cases such as this are likely to involve more than the usual number of comments. Those comments may be in favour or against whatever is the outcome of these proceedings. The fact that the Constitution, in s 46, provides a right of freedom of expression means that people can make such comments, provided they do not go so far as to constitute contempt of court or infringe any of the other limitations impacting that right.
    
37. There is a well-established practice, both in PNG and elsewhere, that judges do not respond to comments made about their decisions and any such comments made prior to the conclusion of this case will not impact on my decision as I do not use or read social media. In short, part of the work of a judge is acceptance of the fact that his of her decisions may be criticised, but that falls far short of a suggestion that there is likely to be a public perception of bias in this case.
    
38. There has been no suggestion that I am biased in favour of the first respondent. There has been no suggestion that I will decide this case other than by applying the relevant law and assessing the evidence, both oral and documentary. I took an oath to act “without fear or favour, affection or ill-will” and I intend to honour that oath. I am not persuaded that any reasonable or fair-minded observer would think I would do otherwise. The evidence upon which this application is based is insufficient and it rises no higher than “surmise or conjecture” as it is based on what it is suggested people may say or think.
    

Costs

39. It remains to consider the question of the costs of this application. Five issues require consideration: (1) whether costs should follow the event, (2) if so, whether costs should be payable by the first respondent or by his lawyer, (3) whether costs should be awarded on the ordinary basis or an indemnity basis, (4) whether an order should be made for costs to be taxed if not agreed between the parties or determined by the Court, and (5) whether any costs should be payable now or at the conclusion of these proceedings.
    
40. The petitioner’s lawyer submitted that (1) costs should follow the event, ie the outcome of the application, (2) that costs should be payable by the first respondent’s lawyer, (3) on the ordinary basis, (4) that an amount of K350 should be awarded in accordance with the National Court Rules and (5) that those costs should be payable forthwith.
    
41. The position of the lawyer for the first respondent was that (1) he did not contend that costs should not follow the event, (2) costs should be made payable by the first respondent as the application was based on his instructions, (3) he did not oppose the ordinary basis, (4) he accepted that an amount of K350 was appropriate, and (5) he accepted that costs should be payable now.
    
42. In relation to those issues, the Court considers (1) there is no reason why costs should not follow the event, (2) that this case does not fall into the category of cases that warrants a costs order against the lawyer personally, although this case came close since the first respondent’s lawyer suggested yesterday that he was obliged to bring the application in his capacity as an officer of the Court, (3) the successful party only sought costs on the ordinary basis, (4) the amount of K350 was agreed, and (5) payment now, rather than at the conclusion of the proceedings was also agreed. A period of 14 days is considered reasonable to allow for the payment of that amount.
    

Orders

43. For the reasons set out above, the following orders are made:
    1. The first respondent’s notice of motion filed on 8 December 2025 is dismissed.
    2. Within 14 days, ie on or before 10 February 2026, the first respondent is to pay the petitioner K350 in respect of his costs of that motion.
    3. Time is abridged so that these orders may be entered forthwith.
       

Orders Accordingly.

__________________________________________________________________
Lawyers for the petitioner: Ashurst Lawyers
Lawyers for the first respondent: Adam Ninkama Lawyers