SC2530
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 36 OF 2021

KEVIN PURUNO for and on behalf of the Ipulumai Nombunombu Clan
Appellant

V

FRANCIS KARAIE for and on behalf of the Kumetangigi Clan
First Respondent

VINCENT LINGE sitting as the Mendi Provincial Land Magistrate
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA 
Third Respondent

Waigani: Murray J, Miviri J, Narokobi J
2023: 25th, 28th April

APPREHENSION OF BIAS – Apprehension of bias, whether circumstances amounted to apprehension of bias.

The Appellant appeals against a decision which granted the judicial review on the basis that there was an apprehension of bias by the learned magistrate.

Held

(1)	To seek funding for the work of the court outside of the normal funding process, especially when a person who is a party to the proceeding has a role to play in making money available, raises doubts as to whether justice was seen to be done, and the fears expressed by the First Respondent are not fanciful, but reasonable. There was therefore an apprehension of bias that a fair trial was not possible.

(2)	The appeal was therefore dismissed with costs in favour of the Respondents.

Cases Cited:
Papua New Guinean Cases

Boateng v The State [1990] PNGLR 342
Yama & Others v Bank South Pacific and Ors (2008) SC921

Overseas Cases

Ebner v. Official Trustee in Bankruptcy [2000] HCA 63
Smits v. Roach [2006] HCA 36

Statutes Cited:

Constitution
National Land Registration Act 1981

Counsel:

I David, for the Appellant
A Chillion, for the First Respondent
R Uware, for the Second and Third Respondents
					
JUDGMENT

28 April 2023

1.	BY THE COURT: This case like many land disputes in Papua New Guinea has a long history. The land the subject of the dispute are three portions described as Portions 201, 202 and 203 Milinch Kaugel, Fourmil Karimui (hereafter referred to as “Portions”), in the Southern Highlands Province.

2.	These Portions were compulsorily acquired by the State under the process prescribed under the National Land Registration Act 1981. Just compensation was to be paid by the State, in the amount of K950,000. A dispute arose as to who should be entitled to this sum. A lengthy process of litigation in the Land Court ensued between the Appellants and the First Respondents. It eventually came before the Second Respondent who decided on 17 February 2014 that:

(1)	Appeal is upheld.
(2)	The determination by Ialibu Local Land Court dated 12 May 2011 be quashed in its entirety.
(3)	Ipulamai Nombunombu clan were vested with ownership right or interest prior to acquisition by the State in 1981.
(4)	Kumetangigi clan were vested with the usage and possessory interest or rights prior to acquisition by the State in 1981.
(5)	Both parties are considered entitled to settlement payments in compensation for the loss of their respective interest and rights over Kumipulu/Kumepugl land.
(6)	Ipulumai Nombunombu clan were vested with ownership rights or interests may progress their claim for settlement Payment through the National Lands Commission.
(7)	Upon payment of the settlement payment, Ipulumai Nombunombu clan shall pay forty percent (40%) of the payment to the Kumetangigi clan in compensation for the loss of their possessory and usage rights over the land, leaving the balance of the sixty percent (60%) to be retained by the Ipulumai Nombunombu clan.
(8)	Subsequent payments after the parties have been paid their respective shares, be only payable to Ipulumai Nombunombu clan. 

3.	The decision in the National Court in Mendi, Southern Highlands Province on 9 July 2021 was to review the decision of the Provincial Land Court, decided on 17 February 2014. The decision of the Provincial Land Court was an appeal from a Local Land Court decision on 12 May 2011 which awarded the Portions to the First Respondents.

4.	That decision was the subject of judicial review in the National Court. A number of grounds were advanced for review. The primary judge focused on the issue of apprehension of bias. Whether the primary judge applied the relevant principles in relation to apprehension of bias correctly is the main issue here. The facts that gave rise to the grounds of apprehension of bias for judicial review in the National Court was in relation to the payment of the Second Respondent’s travel costs to Mendi from Tari to deliver a decision in relation to the matter between the Appellants and the First Respondents.

5.	The specific details of the facts are not in dispute, and we adopt them from the Appellants submissions. They are as follows.

6.	The Second Respondent deliberated on the matter in the Mendi Provincial Land Court. At the time he was the Senior Provincial Magistrate for Hela Province and was based in Tari.  This meant that he had to travel between Tari and Mendi to attend to the case. After the case was completed the First Respondent returned to Tari to work on his decision. When he was ready with his decision, he could not travel to Mendi to deliver the decision due to lack of funding. This was communicated to the Court Clerk in Mendi, Mr Kapa Dilini. Mr Dilini then wrote to the District Administrator of Imbongu District, Mr Alfred Kaiabe, requesting K30,000 to facilitate the travel of the Second Respondent. Mr Kevin Puruno, the Appellant, was at the time the Provincial Treasurer of the Southern Highlands Provincial Government. In that capacity he was one of the signatories to all the District Treasury Operating accounts in the Southern Highlands Province, which included the Imbongu District Treasury operating account. The First Respondent therefore signed the cheque as one of the signatories. The government cheque dated 27 December 2013 was made pay cash to Kapa Dilini.   

7.	The primary judge after considering these circumstances decided that:

A person knowing about the facts and circumstances of the payment of the costs of travel, accommodation and allowances for his worship Mr Linge would have a reasonable suspicion that justice had miscarried in this matter.

8.	Although a number of grounds of appeal were raised, they all really question whether the primary judge correctly applied the principles of apprehension of bias to the facts of the case. The trial judge had relied on the case of Boateng v The State [1990] PNGLR 342. Boateng formulated the test this way:

Would a reasonable and fair-minded person sitting in a court and knowing all the relevant facts have a reasonable suspicion that a fair trial…was not possible?

9.	The primary judge then went on to say the following circumstances led him to find that there was a reasonable suspicion that a fair trial was not possible:

50…To suggest the first defendant’s part in arranging payment was an action to merely “rubber stamp” the payment processing and issuing of the cheque indicates a serious lack of understanding of the very influential role and serious duty of a provincial treasurer. The provincial treasurer is duty bound to carefully check all referrals for expenditure which must comply with budgetary and financial guidelines. Any departure from compliance can amount to misappropriation of public funds which is serious criminal offence. Furthermore, without the approval of the provincial treasurer, payment processes including the raising of a cheque cannot lawfully proceed. The provincial treasurer plays a significant role in safeguarding the finances of the government.

51. The Plaintiff’s reaction to the funding of the costs of the PLC are clearly stated in paragraphs 37 and 38 of his affidavit. He states clearly that he seriously questions the delivery of justice. He rightly says, as an ordinary person, he has doubts as to the neutrality and fairness of the actions and decision of the PLC presided over by His Worship Mr Linge.

10.	The appellant relies on the Australian High Court case of Ebner v. Official Trustee in Bankruptcy [2000] HCA 63 and Smits v. Roach [2006] HCA 36 which was applied in Yama & Others v Bank South Pacific and Ors (2008) SC921 to approach the question of apprehension of bias:

In considering whether a reasonable apprehension of bias has been established, it is necessary to first 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.

11.	The appellant submits that the following factors indicate that there was no logical connection with the apprehended deviation from the course of deciding the case on its merits:

•	Imbongu District was not a party nor has any interest, pecuniary or otherwise in the matter;
•	Payment of K30,000 came from a public entity, Imbongu District committed to public expense;
•	The Appellant signing the cheque was in the course of duty, and by virtue of his employment as the Provincial Treasurer of Southern Highlands Province and he was a compulsory signatory.

12.	With respect the Appellant has focused on the question of logical connection, which we are of the view, has not adequately addressed the threshold question of what a fair minded, reasonable person sitting in court, would think whether a fair trial was possible, which was the test applied by the primary judge. The fair-minded person sitting in court as was pointed out in court with exchanges with counsel, would not just be the Appellants, but also include the views of the First Respondent. The First Respondent’s views as referred to by the primary judge was:

49. Most critically, Francis Karaie also said in paragraphs 37 and 38 of his affidavit, found at page 71 of the Review Book:

“37. I believe the Second Defendant double dipped in the instant case because in any ordinary or normal situations, financing in relation to Court circuits is funded out of the appropriations of the Magisterial services and not any other.

38. I say that the financing of the Second Defendant’s duty travel out of the Southern Highlands Provincial Government’s appropriations of which the First Defendant is the Provincial Treasurer or an authorizing agent is not only improper but also seriously questions the delivery of justice with absolute neutrality and fairness in the eyes of the ordinary persons.”

13.	This is the point that with respect, the Appellant overlooks. The funding of court circuit is critically done by the magisterial services. This is to maintain the independence of the courts. The Constitution recognizes this by making provision in s 209(2A) to ensure that the independence of the judiciary is maintained. To seek funding for the work of the court outside of the normal funding process, especially when a person who is a party to the proceeding has a role to play in making money available, raises doubts as to whether justice was seen to be done, and the fears expressed by the First Respondent are not fanciful, but reasonable.

14.	For these reasons, we find no error by the primary judge and therefore confirm the decision of the primary judge and dismiss the appeal, and order that the Appellants meet the costs of the Respondents, to be taxed if not agreed.

15.	The orders we make are therefore:

1)	Appeal is dismissed.
2)	The decision of the National Court of 9 July 2021 is affirmed.
3)	The Appellant pays the costs of the Respondents on a party/party basis, to be taxed, if not agreed.
Judgment and orders accordingly.
________________________________________________________________
Kalit Legal Consulting: Lawyers for the Appellant
Chillions Lawyers: Lawyers for the First Respondent
Solicitor-General: Lawyers for the Second and Third Respondents