SC1472

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 87 of 2014

BETWEEN:

HON. JAMES MARAPE in his capacity as Minister for Finance
Appellant

AND:

HON. PETER O'NEILL in his capacity as Prime Minister
First Respondent

AND:

HON. ANO PALA, Attorney General & Minister for Justice
Second Respondent

AND:

PAUL PARAKA trading as Paul Paraka Lawyers
Third Respondent

AND:

ROYAL CONSTABULARY OF PNG
Fourth Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

AND:

MATTHEW DAMARU, as the Director of National Fraud & Anti-Corruption Directorate
Sixth Respondent

AND:

TIMOTHY GITUA, as the Deputy Director National Fraud & Anti-Corruption Directorate
Seventh Respondent

Waigani: Hartshorn, Makail and Sawong JJ
2015: October 9th,
: November 16th
 
PRACTICE & PROCEDURE – Application to disqualify Judge – Apprehension of bias – Statement made by Judges in joint judgment – Statement made in an earlier ruling on joinder of parties – Allegation of prejudgment of case in favour of opposing party – Whether allegation of prejudgment established – Application dismissed.

Cases cited:
Papua New Guinea Cases

Gobe Hongu Limited v. National Executive Council & The State (1999) N1964 Peter Yama v. Bank South Pacific Limited (2008) SC921
PNG Pipes Pty Limited and Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592
Application by Herman Joseph Leahy (2006) SC855 
Coecon Limited v. National Fisheries Authority (2002) N2182
Tom Olga v. Electoral Commission & Paias Wingti (2013) N5321
Tzen Pacific Ltd v. Innovest Ltd (2012) N4713 
Pastor James Bagari v. James Marape (2014) N5675

Overseas Cases

Re JRL; Ex parte CJL [1986] HCA 39
British American Tobacco Australia Services Ltd v. Laurie [2011] HCA 2
Counsel:

Mr. R. Leo, for the Appellant
Mr. D. Kipa, for the First Respondent
Mr. R. Saulep, for the Second and Fifth Respondents
Mr. N. Tame, for the Fourth Respondent
Mr. M. Nale and Mr. K. Kendakali, for the Sixth and Seventh Respondents 

16th November, 2015

1. HARTSHORN J: I have had the opportunity of reading the draft decision of my brothers Makail J. and Sawong J. 

2. Their Honours' have referred to numerous authorities that consider the test to be applied in determining whether an allegation of apprehension of bias is satisfied and so I shall only add a few words. 

3. The application for disqualification is made because of what is described as a conclusive and adverse finding against the appellant in their Honours' majority decision in respect of the joinder of the sixth and seventh respondents. Their Honours stated at paragraph 91 of their decision that the true purpose for the appellant to institute the proceeding in the National Court was to restrain the police from arresting him (the statement). Further, the statement appears to answer the first part of a ground in a notice of objection to competency of appeal yet to be heard.

4. It is submitted therefore that there is a reasonable suspicion or apprehension that their Honours might not bring an impartial mind to the resolution of issues raised in the notice of objection to competency of appeal and the substantive appeal by virtue of making the statement.

5. So what is alleged, if I understand correctly, is that there is a reasonable apprehension of bias by reason of their Honours' apparent prejudgment of an issue raised as part of a ground in the notice of objection to competency of appeal.

6. As to a consideration of an allegation of a reasonable apprehension of bias, and by reason of prejudgment, I note the comments of Mason J in the High Court of Australia decision of Re JRL; Ex parte CJL [1986] HCA 39 that:

"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" (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Shaw (1980) 55ALJR 12, at p 14; 32 ALR 47, at pp 50-51)

7. I also refer to a statement by French CJ in a minority decision of the High Court of Australia decision of British American Tobacco Australia Services Ltd v. Laurie [2011] HCA 2. His Honour 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."

8. In this proceeding, the relevant ground 1.3 in the notice of objection to competency of appeal in respect of which it is alleged that their Honours' have made a finding, continues on to assert an abuse of process of this Court and the National Court. The statement of their Honours' does not however, allude to or infer any such assertion. To my mind, although it may be said that their Honours' have made a statement as to the purpose of the appellant instituting the National Court proceeding; that is as far as it goes. It is not correct to say in my view, that their Honours' have prejudged that because of the purpose in instituting the National Court proceeding that they have stated, that there is an abuse of the process of this Court and the National Court, or that they have prejudged other grounds in the notice of objection to competency of appeal, or indeed the substantive appeal.

9. Consequently I am not satisfied that it has been properly established that there is an apprehension of their Honours' bias as alleged. I am also not satisfied that it has been established that a reasonable, fair minded, lay observer might reasonably apprehend that their Honours' might not bring an impartial mind to the resolution of questions in this proceeding that they are required to decide. The appellant's application should be dismissed.

10. MAKAIL & SAWONG JJ: On 29th September 2015 we gave a joint judgment in relation to the application by the appellant to set aside the order of Higgins J sitting as a single judge of the Supreme Court to join the sixth and seventh respondents to this proceeding. It was our judgment that the motion of the appellant seeking orders for the removal of the sixth and seventh respondents as parties to this appeal be dismissed with costs. On 09th October 2015 the appellant moved a motion to have us disqualified from taking further part in this proceeding on the ground of apprehension of bias.

11. The first respondent took a neutral position while the second, fourth and fifth respondents supported the application. There was no appearance for the third respondent. The sixth and seventh respondents opposed the application. 

12. The ground for the application is based on a statement made at paragraph 91 of the judgement where we stated:

"91.	We accept the sixth and seventh respondents' submission. The true purpose for the appellant to institute the proceedings in the National Court was to restrain the police from arresting him. This is evident from the prayer for relief where at paragraph 6 of the originating summons, the appellant sought an interim injunction against his arrest. Secondly, the appellant sought and obtained an interim injunction against his arrest. It was later discharged by Kariko J and is now the subject of the substantive appeal."

13. By this statement, the appellant contended that we have prejudged one of the issues in the appeal, particularly, the objection to competency of the appeal where the Court will be asked to determine whether it is open to the appellant to seek an interim injunction to restrain the police from arresting him pending the taxation of the costs. The appellant asserted that this statement is a conclusive finding in relation to the issue pending before the Supreme Court. The sixth and seventh respondents submitted that the application is misconceived because the statement is being taken out of context. They asserted that the judgment must be read as a whole to appreciate the basis upon which the statement was made, and when considered in its proper context, the assertion by the appellant is misconceived.

14. We have considered the submissions of counsel for each party and the material placed before us. The first point we make is that the ground of the application falls within the second category of cases dealing with apprehension of bias identified in Gobe Hongu Limited v. National Executive Council & The State (1999) N1964 per Sevua J. This category concerns the conduct of a judge including his published statements, whether such conduct is in the course of, or outside the proceedings.

15. In a case of this kind where the allegation of apprehension of bias is by reason of prejudgment by a judge, in Re JRL; Ex parte CJL [1986] HCA 39, Mason J stated that the ground for the apprehension of bias must be firmly established. Case authorities in this jurisdiction have held that it is necessary first to identify the facts, matters or circumstances and the reasons for which it is said that a judge might decide a case other than on its merits and secondly the logical connection between those facts, matters or circumstances and the apprehended deviation from the course of deciding the case on the merits. The test is an objective one. Would a reasonable man or fair-minded lay observer think it likely or probable that the judge would, or did, favour one side unfairly? Peter Yama v. Bank South Pacific Limited (2008) SC921; PNG Pipes Pty Limited and Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592; Application by Herman Joseph Leahy (2006) SC855; Coecon Limited v. National Fisheries Authority (2002) N2182; Tzen Pacific Ltd v. Innovest Ltd (2012) N4713, and Tom Olga v.Electoral Commission & Paias Wingti (2013) N5321, Pacific Equities & Investments Limited v Teop Goledu (2008) N3400, Pastor James Bagari v.James Marape (2014) N5675.

16. The evidence supporting the application came from the appellant himself. At paragraphs 6 to 9 of his affidavit, the appellant deposed that his lawyer had referred him to paragraphs 89, 90 and 91 of the joint majority ruling and he was quite concerned by the finding that we made at paragraph 91. 

17. We have considered the contents of the affidavit and we find that it contains opinions not facts. Quite clearly, the appellant's assertions are based on the lawyer's advice and opinion. A lawyer's advice or opinion about a judgment is not a fact. 

18. There must be evidence of facts, matters or circumstances which show that we might decide the substantive appeal other than on its merits and logically connect them to the apprehended deviation from the course of our deciding the substantive appeal on its merits. To this end, the evidence falls short of establishing this. We are not satisfied that it can be correctly alleged, or that we did in fact, prejudge the substantive appeal.

19. Further the appellant deposed that we did not limit ourselves to the issues raised by his application against the joinder of the sixth and seventh respondents but went further and made a factual finding having an adverse bearing on the competency of the appeal.

20. As to this part of his evidence, this evidence is so frivolous that we mention it only to dismiss it.

21. In the argument before us concerning joinder, the issues in the substantive appeal were not before us, as we were dealing with the application to remove the 6th and 7th respondents. We therefore did not consider the merits of the substantive appeal. We were only considering the application to remove the 6th and 7th respondents. Thus in these circumstances our statement which the appellant takes issue with cannot in our respectful view be a ground to recuse ourselves. The statement set out in paragraph 91 of our judgment could not amount to prejudgment of the issues in the substantive appeal.

22. We mention further that we are not seized of the National Court proceeding. The issue of competency of that proceeding is for that Court to deal with. 

23. For these reasons, we are not satisfied that it has been firmly established that we have prejudged the substantive appeal. We dismiss the application with costs.

24. Before we close, the appellant has sought directions before the hearing in relation to the form of the application. This was necessary because there is no prescribed form for such an application in the Supreme Court Rules. We have proceeded to determine the application in the present form because a lack of form did not prejudice the sixth and seventh respondents in responding to the application. For this reason, we accept the present form for the purpose of making an application pursuant to Section 185 of the Constitution. 

Orders 

25. The Orders of the Court are:

a)	The application by the appellant filed on 05th October 2015 is dismissed. 

b)	The appellant, second, fourth and fifth respondents shall pay the costs of the sixth and seventh respondents of and incidental to the application, to be taxed, if not agreed.

_____________________________________________________________
Leo Lawyers: Lawyers for the Appellant 
Twivey Lawyers: Lawyers for the First Respondent 
Saulep Lawyers: Lawyers for the Second and Fifth Respondents 
Paraka Lawyers: Lawyers for the Third Respondent 
Tame Lawyers: Lawyers for the Fourth Respondent 
Jema Lawyers: Lawyers for the Sixth and Seventh Respondents