SC2045
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 18 OF 2020

BARRICK (NIUGINI) LIMITED 
Appellant

V

STANLEY NEKITEL, IN HIS CAPACITY AS 
REGISTRAR OF TENEMENTS
First Respondent

JERRY GARRY, CHAIRMAN, REPRESENTING ALL OTHER MEMBERS OF THE MINING ADVISORY COUNCIL 
Second Respondent

MINERAL RESOURCES AUTHORITY
Third Respondent

HONOURABLE JOHNSON TUKE MP, MINISTER FOR MINING 
Fourth Respondent

HONOURABLE JAMES MARAPE MP, CHAIRMAN, REPRESENTING ALL OTHER MEMBERS OF THE NATIONAL EXECUTIVE COUNCIL 
Fifth Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

MINERAL RESOURCES ENGA LIMITED 
Seventh Respondent

HONOURABLE DAVIS STEVEN MP, ATTORNEY-GENERAL
AND NOMINAL DEFENDANT ON BEHALF OF THE HEAD OF STATE
Eighth Respondent

Waigani: Kirriwom J, Cannings J, Makail J
2020: 15th, 16th December 

COURTS – Judges – application for disqualification of two members of Supreme Court – whether reasonable apprehension of bias by reason of two members of the bench constituting the Court in two appeals against decisions of the same primary Judge in the same National Court proceedings in which the decision, the subject of the present appeal, was made – whether test for disqualification was satisfied. 

The respondents to a Supreme Court appeal applied for disqualification of two of the three Judges appointed by the Chief Justice to constitute the Court to hear the appeal, on the ground of reasonable apprehension of bias, which was argued to arise due to those two Judges constituting the Court in two previous appeals involving the same parties and the same National Court proceedings. The application was filed on the day set for hearing of the appeal.

Held: 
(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? (Application by Herman Joseph Leahy (2006) SC981).

(2)	Relevant facts were that the two previous decisions involved the same parties and the same National Court proceedings and that those decisions will have a bearing on the conduct of the National Court proceedings and both decisions were adverse to the respondents and that the present appeal will determine whether the National Court proceedings are revived. 

(3)	In the unusual, special and perhaps unprecedented circumstances operating here, it was likely that a reasonable and fair-minded person knowing all the relevant facts would have a reasonable apprehension that a fair hearing was not possible if those two Judges continued to be members of the bench.

(4)	Application for disqualification granted.

(5)	Remarks: as to the unsatisfactory manner in which the application had been made, at very short notice to the appellant, on the morning of the day set aside for hearing the appeal. 

(6)	The better way of agitating the issue would have been for the respondents to seek ad hoc directions from the Court, during the course of directions hearings setting up the appeal for hearing, under s 185 of the Constitution, as to the most appropriate way in which to raise the issue. 

(7)	Parties ordered to bear their own costs.  

Cases Cited

The following cases are cited in the judgment:

Application by Herman Joseph Leahy (2006) SC981
Barrick (Niugini) Ltd v Nekitel (2020) SC2007
Barrick (Niugini) Ltd v Nekitel (2020) SC2010
HROI No 1 of 2014 Re Transferees (2014) N5529
James Marape v Peter O’Neill (2015) SC1472
Johnson v Johnson [2000] HCA 48
Steven Bagari v James Marape (2014) N5675
Workers Mutual Insurance (PNG) Ltd (in Liq) v Sathasivam Sivakumaran (2013) N4987
Yama v Bank South Pacific Ltd (2008) SC921

APPLICATION 

This was an application for disqualification from the Supreme Court of two Judges on the ground of apprehended bias. 

Counsel

M M Varitimos, D Wood, A Edo & L Evore, for the Appellant
N Saroa, for the First, Third and Fourth Respondents
T Tanuvasa, for the Second, Sixth and Eighth Respondents
L P Kandi, for the Fifth Respondent
G Geroro, for the Seventh Respondent

16th December, 2020

1.     BY THE COURT: The second, sixth and eighth respondents have applied for disqualification of two members of the bench, constituted by the Chief Justice, to determine an against dismissal of proceedings in the National Court: Justice Kirriwom and Justice Cannings

2.       Barrick (Niugini) Ltd, the appellant, was the plaintiff in proceedings against the Registrar of Tenements and seven other defendants in the National Court, in OS (JR) No 5 of 2020. It was applying for judicial review of decisions of the National Executive Council and the Governor-General, acting on advice, to not renew the special mining lease under the Mining Act 1992, that had for 30 years been in operation regarding the Porgera Gold Mine in Enga Province.

3.        On 1 September 2020 the primary Judge, Deputy Chief Justice Kandakasi, upheld an application for summary dismissal of OS(JR) No 5 of 2020. In the meantime the appellant had, with leave of this Court, lodged appeals against two interlocutory decisions of the primary Judge made in OS(JR) No 5 of 2020: 

•	the decision to refuse leave to the appellant to amend its originating Order 16 statement, setting out amongst other things the grounds of judicial review; and 

•	the decision to refuse an application by the appellant for discovery of documents. 

4.     Those appeals, SCM 12 of 2020 and SCM 13 of 2020 respectively, were heard and determined in late-September and early-October 2020 by the Supreme Court constituted by Justice Kirriwom, Justice Batari and Justice Cannings. 

5.    Each appeal was upheld: 

•	SCM 12 of 2020, heard on 30 September 2020, was upheld on 1 October 2020, resulting in the Supreme Court granting leave to the appellant to amend its Order 16 statement (Barrick (Niugini) Ltd v Nekitel (2020) SC2007). 

•	SCM 13 of 2020, heard on 2 October 2020, was upheld on 6 October 2020, resulting in the Supreme Court ordering the respondents to make available to the appellants within seven days the majority of the documents that had been the subject of its application to the National Court for discovery of documents (Barrick (Niugini) Ltd v Nekitel (2020) SC2010).

POSITIONS OF PARTIES 

6.     The application for disqualification is made by the second, sixth and eighth respondents and supported strongly by all other respondents. Their principal argument is that a reasonable apprehension of bias arises due to Justice Kirriwom and Justice Cannings being, with Justice Batari, members of the Court in the two previous appeals, SCM 12 of 2020 and SCM 13 of 2020,  involving the same parties and involving the same National Court proceedings, OS(JR) No 5 of 2020. 

7.     The application is opposed strongly by the appellant, which argues that the respondents are engaged in time-wasting and Judge-shopping tactics, and that the application is scandalous and an affront to the due administration of justice and an attack on the integrity of the Court and its members. 

PRINCIPLES

8.     The principles to be applied when a judge is required to deal with an application for disqualification are well settled. We adopt the following summary of principles from the decision of Cannings J in HROI No 1 of 2014 Re Transferees (2014) N5529 as being relevant to this case:

•	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? (Application by Herman Joseph Leahy (2006) SC981.)

•	The suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds (H J Leahy).

•	An objective, fair minded, lay observer is to be attributed with having some knowledge of the way in which the Courts and Judges work (Yama v Bank South Pacific Ltd (2008) SC921).

•	It must be borne in mind that the person being observed is a professional whose training, tradition and oath or affirmation require him to discard the irrelevant, the immaterial and the prejudicial (Johnson v Johnson [2000] HCA 48).

•	The applicant should identify the facts, matters and circumstances by reason of which it is said that the Judge might decide the case other than on merit and then demonstrate a logical connection between those facts, matters and circumstances and the apprehended deviation from the course of deciding the proceeding on merit (Workers Mutual Insurance (PNG) Ltd (in Liq) v Sathasivam Sivakumaran (2013) N4987).

•	In cases where the allegation is that the apprehension of bias arises because a judge has presided over an earlier case or cases involving one or other of the parties, substantial grounds must be established (James Marape v Peter O’Neill (2015) SC1472, Steven Bagari v James Marape (2014) N5675). 

APPLYING THE PRINCIPLES TO THIS CASE

9.     The critical facts that we must take into account are that:

•	the two previous appeals, SCM 12 of 2020 and SCM 13 of 2020, involved the same parties as those involved in the present appeal, SCM 18 of 2020;

•	the two previous appeals involved the same National Court proceedings, OS(JR) No 5 of 2020, involving the same primary Judge;

•	the two appeals were upheld, so both Supreme Court decisions were adverse to the respondents;

•	the decisions in the previous appeals, and the Supreme Court orders made, will have a direct bearing on the conduct of the National Court proceedings, in the event that the present appeal is upheld and those proceedings are revived;

•	the present appeal, which is an appeal against summary dismissal of the National Court proceedings, will determine whether the National Court proceedings are revived.

10.     We consider that given those unusual, special and perhaps unprecedented circumstances, it is likely that a reasonable and fair-minded person knowing all the relevant facts would have a reasonable apprehension that a fair hearing was not possible if Justice Kirriwom and Justice Cannings continued to be members of the Court.

11.     We consider that a reasonable and fair-minded Papua New Guinean, though having a very high level of innate respect for and confidence in the integrity of the Judiciary and of the Judges of the Supreme Court, might well think that in the unusual, special and perhaps unprecedented circumstances operating here, it would be better to, in the interests of justice, get a fresh set of judicial minds to hear and determine the present appeal.

12.     We note that the issues in the present appeal are a separate set of issues to those issues involved in SCM 12 of 2020 and SCM 13 of 2020. However, we consider that the issues are necessarily so inextricably intertwined as to create a risk of an apprehension of bias arising from a perceived pre-judgment of issues. A reasonable and fair-minded person might believe that a fair hearing of the present appeal might not result if Justice Kirriwom and Justice Cannings were to sit on this appeal. 

13.     We will therefore grant the application, resulting in the disqualification of Justice Kirriwom and Justice Cannings.

REMARKS 

14.     The application has been made in an unsatisfactory manner, at very short notice to the appellant, on the morning of the day set aside for hearing the appeal. 

15.     The better way of agitating the issue would have been for the respondents to seek ad hoc directions from the Court, during the course of directions hearings setting up the appeal for hearing, under s 185 of the Constitution, as to the most appropriate way in which to raise the issue. If that had been done, the Chief Justice would have been alerted to the possibility of an issue of disqualification being raised, and taken appropriate action. 

16.    Because of the unsatisfactory manner in which the application has been made, we will order that the parties bear their own costs. 

ORDER

(1)	The application filed by the second, sixth and eighth respondents on 15 December 2020 for disqualification of two members of the Court, is granted.

(2)	Justice Kirriwom and Justice Cannings are disqualified from sitting in this appeal.

(3)	SCM No 18 is adjourned for hearing before a differently constituted Court to today at 1.30 pm. 

(4)	The parties shall bear their own costs of the application.

Judgment accordingly.
__________________________________________________________________
Ashurst Lawyers: Lawyers for the Appellant 			
Nelson Lawyers: Lawyers for the First, Third & Fourth Respondents
Solicitor-General: Lawyer for the Second, Sixth & Eight Respondents	
MS Wagambie Lawyers: Lawyers for the Fifth Respondent		
Geroro Lawyers: Lawyers for the Seventh Respondent