SC2590

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO.12   OF   2021

BETWEEN:
MILSON KALASE
Appellant

AND:
REGISTRAR OF COMPANIES
First Respondent

AND:
KALIP SALO, SANTEE MARGIS, JONATHAN SALO, LUKE FREEMAN, GILIS TOM, WILLIAM TAMARU, LINDSAY MANOAH, KURU PERESI, ISMAEL KAEL & NATHANIEL BELO
Second Respondent

MUSSAU TIMBER DEVELOPMENT LTD
Third Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani:  David J
2024:  3rd & 19th June

COURTS & JUDGES – application for recusal– allegation of likelihood of a conflict of interest and or a reasonable apprehension of bias in the hearing of an interlocutory application.

Cases Cited:
Boateng v The State [1990] PNGLR 342
PNG Pipes Pty Ltd and Sankaran Venugopal v Mujo Sefa & Ors (1998) SC592
Gobe Hongu Ltd v National Executive Council & Ors [1999] N1964
Application by Herman Joseph Leahy (2006) SC981
Yama v Bank South Pacific (2008) SC921
Electoral Commission of Papua New Guinea v Kaku (2020) SC1950
Philip Kaman v The State (2021) SC2227

Treatise Cited:
Osborn’s Concise Law Dictionary, London, Sweet & Maxwell, 2005

Counsel:
George Akia, for the Appellant
No appearance for the First Respondent
Greg M. Konjib, for the Second and Third Respondents
No appearance for the Fourth Respondent 

RULING ON APPLICATION FOR RECUSAL

19th June 2024

1.	DAVID J:  INTRODUCTION: This is a ruling on a contested application filed by the Second and Third Respondents on 23 May 2024 for my recusal from hearing the interlocutory application which they assert was filed by the Appellant on 11 November 2023 on the basis of a likelihood of a conflict of interest and or a likelihood of a reasonable apprehension of bias (Application for Recusal) and relying on ss.59 and 155(4) of the Constitution as the jurisdictional basis to grant the relief sought.

EVIDENCE

2.	In support of the Application for Recusal, the Second and Third Respondents rely on and read the affidavit of Francis Alua sworn on 16 May 2024 and filed on 23 May 2024.

3.	In opposing the Application for Recusal, the Appellant relies on and reads his own affidavit sworn on 28 November 2023 and filed on 29 November 2023.  An attempt to use another affidavit of the Appellant sworn and filed on 31 May 2024 and served on the First and Second Respondents belatedly before the hearing was rejected by the Court and the Appellant subsequently resiled from relying on it. 

4.	I have considered the evidence.  

GROUNDS OF APPLICATION
 
5.	The grounds of the Application for Recusal are pleaded at paragraph 2 of the Application and these are:

2.1	There is a likelihood of a conflict of interest and or a likelihood of a reasonable apprehension of bias arising in the hearing of the Appellant’s interlocutory application filed on 11 November 2023 on the basis that:

2.2.1	I presided over proceedings OS No.596 of 2004 involving the same parties namely, Kalip Salo, Santee Margis (First Plaintiff) and others and Mussau Timber Development Ltd (Second Plaintiff) against Peter Terry Girire and Lawrence Job Polain (First Defendant) and Bank South Pacific (Second Defendant) and four others (OS No.596 of 2004) and an application by Francis Alua for the plaintiffs (Harricknen Lawyers) of the similar manner was approved by me and I recused myself; and

2.2.2	I recused myself from presiding over OS No.596 of 2004 as I assisted lead counsel D. Toll, while employed as a lawyer by Namaliu & Company Lawyers representing certain plaintiffs in proceedings MP … of 1990 in Mussau Timber Development Pty Ltd v Santee Margies, Kalip Salo, Samuel Smith, Smith Pennie, Laisis Lapan, Kenneth Tavau, Ragu Smith, Alwin Paul, Kaenty Karaty, Simeon Mansini & Associates (1990 MP Proceedings), in prosecuting the matter in Rabaul in 1990.

2.2	It is an abuse of the court’s process as Hartshorn J is the current Judge of the Supreme Court adequately presiding over interlocutory applications, directions and mention matters as this and this matter was properly before His Honour and ought to return to him. 
   
SUBMISSIONS

6.	Mr Konjib for the Second and Third Respondents in essence submitted that I should recuse myself from hearing the interlocutory application, the subject of the Application for Recusal as the affidavit evidence of Francis Alua demonstrates that there is a likelihood of a conflict of interest and or a likelihood of a reasonable apprehension of bias.  

7.	Mr. Akia for the Appellant submitted that the Application for Recusal has no merit and should be dismissed for an abuse of the process of the Court with costs as:

1.	The Second and Third Respondents have failed to plead the grounds for recusal with all necessary particulars;
2.	The Affidavit of Francis Alua has failed to demonstrate the relevant facts, matters and circumstances by which the Second and Third Respondents assert that there is the likelihood of a conflict of interest and or a reasonable apprehension of bias and that I might decide the interlocutory application, the subject of the Application for Recusal other than on its legal and factual merits; and
3.	The referral of the matter to my Chambers for me to deal with at my convenience was because on 20 December 2023 Hartshorn J recused himself from hearing the interlocutory application, the subject of the Application for Recusal on the basis that he had already heard and refused the first application for substitution of the Appellant.

RELEVANT LEGAL PRINCIPLES

8.	Osborn’s Concise Law Dictionary, London, Sweet & Maxwell, 2005, defines the phrase “conflict of interest”.  It:

“Refers to a situation when someone, such as a lawyer or public official, has competing professional or personal obligations or personal or financial interests that would make it difficult to fulfil his duties fairly.”   

9.	It is a very serious matter to seek the recusal of a Judge as an applicant is basically questioning the integrity, impartiality and professionalism of a presiding Judge.   Hence, an application for recusal must be based on reasonable, genuine and objective basis or grounds and not driven by unreasonable, emotive and non-objective views of parties or their counsel:  Electoral Commission of Papua New Guinea v Kaku (2020) SC1950.

10.	The relevant principles that apply in an application for recusal of a Judge were succinctly summarised by the Supreme Court in the recent case of Philip Kaman v The State (2021) SC2227 where the tests and considerations propounded in the cases of Boateng v The State [1990] PNGLR 342, PNG Pipes Pty Ltd and Sankaran Venugopal v Mujo Sefa & Ors (1998) SC592, Gobe Hongu Ltd v National Executive Council & Ors [1999] N1964, Application by Herman Joseph Leahy (2006) SC981 and Yama v Bank South Pacific (2008) SC921 were endorsed and these are:

1.	An allegation of actual bias must be distinctly made and clearly proven by cogent evidence.
2.	The test of actual bias requires an assessment of the state of mind of the Judge in question.
3.	The test for apprehension of bias is objective.
4.	The test to be applied in determining whether there is a reasonable apprehension of bias is “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” and this includes a fair minded, lay observer.
5.	An objective, fair minded, lay observer is to be attributed with having some knowledge of the way in which lawyers and judges work.  It is to be presumed that a judge is impartial and that the person being observed is a professional judge whose training, tradition and oath or affirmation require the Judge to discard the irrelevant, the immaterial and the prejudicial.
6.	Judges should not too readily accede to applications for disqualification, whereby parties may effectively influence the choice of a Judge in their cause.
7.	Judges should resist from being driven from their Courts by the conduct or assertion of parties.
8.	The apprehension must be firmly established, ie, the suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds.
9.	General knowledge on the part of a Judge, obtained in the course of previous employment, of the subject matter of legal proceedings will not, by itself, give rise to a reasonable suspicion or apprehension of bias in the event that the Judge deals with the subject matter in a judicial capacity.
10.	If a Judge's knowledge of the subject matter of legal proceedings is contended to be the basis of a suspicion or apprehension of bias there must be a real connection between the Judge’s knowledge and the issues for adjudication in those proceedings, eg if the Judge has expressed a prior opinion on the issues for adjudication.
11.	The application of the apprehension of bias principles involves two steps; first, is 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 legal and factual merits; and second, is 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.
ISSUES

11.	The main issues that arise from the Application for Recusal and the submissions of counsel for my determination are:

1.	Whether the Second and Third Respondents have failed to plead the grounds for recusal with all necessary particulars?
2.	Whether the Second and Third Respondents have demonstrated that I should recuse myself from hearing the interlocutory application, the subject of the Application for Recusal on the basis of a likelihood of a conflict of interest and or a reasonable apprehension of bias?
3.	Whether the referral of the interlocutory application, the subject of the Application for Recusal for hearing by myself is an abuse of the process of the Court?  

REASONS FOR RULING
Preliminary observation

12.	At the outset, I note that in the primary relief sought and the grounds relied on, the Application for Recusal refers to an interlocutory application filed on 11 November 2023.  The Court file index of documents filed in these proceedings does not record any interlocutory application filed by the Appellant on 11 November 2023 and the file itself does contain such an application having been filed.  If indeed it was a typo, no application was made by Mr. Konjib for the Second and Third Respondents at the hearing seeking leave to rectify and amend the reference to 11 November 2023 and substituting the correct date of filing of the interlocutory application, the subject of the Application for Recusal.  It behoves the Second and Third Respondents to refer to the correct date of the interlocutory application, the subject of the Application for Recusal.  In my view, this is a fundamental defect and is fatal.  In the circumstances, the Application for Recusal ought to be dismissed.        
13.	Notwithstanding my conclusion above, I will address the merits or otherwise of the Application for Recusal.
Particulars

14.	As to the Appellant’s submission that the Application for Recusal should be dismissed as the Second and Third Respondents have failed to plead the grounds for recusal with all necessary particulars, this submission has merit.  In my view, grounds 2.2.1 and 2.2.2 in particular do not contain all necessary particulars including dates and times of the alleged hearings and how and where it is alleged that I was assisting D. Toll in prosecuting the 1990 MP Proceedings.   

Likelihood of conflict of interest and reasonable apprehension of bias

15.	The relevant grounds pleaded in the Application for Recusal are grounds 2.2.1 and 2.2.2.
	
16.	The affidavit of Francis Alua fails to demonstrate that I have a conflict of interest presiding over and hearing the Appellant’s interlocutory application, the subject of the Application for Recusal and also fails to disclose and meet the relevant principles that apply in an application for recusal of a Judge, to a greater extent or degree, the test for apprehension of bias by an objective observer including a fair minded lay observer particularly in circumstances where there is: 

1.	Lack of cogent evidence to prove and confirm my presiding over proceedings OS No.596 of 2004 including by way of the relevant transcript of Court proceedings and or an order for my recusal;
2.	Lack of cogent evidence to prove and confirm my involvement as a lawyer assisting D. Toll in the 1990 MP Proceedings including by way of relevant transcripts of Court proceedings; and
3.	Lack of cogent evidence to prove and confirm my involvement as a lawyer or a Judge in any matter directly relating to the present appeal.

17.	The affidavit of Milson Kalase does not in any way improve or support the Application for Recusal.

Abuse of process
   
18.	Mr. Konjib did not press or seriously press ground 2.2 of the Application for Recusal at the hearing.

19.	The Court’s records show that on 20 December 2023, the matter was before Hartshorn J when His Honour adjourned it to my Chambers for me to deal with at my convenience.   I note Mr. Akia’s submission that Hartshorn J recused himself from hearing the interlocutory application, the subject of the Application for Recusal, but the Court file endorsement for 20 December 2023 is silent on that and does not support the submission.  I have also not found or sighted any minute of an order for recusal by Hartshorn J in the Court file.   It is therefore uncertain as to the reason(s) why his Honour made the decision to refer the matter to me, but as a Judge of the Supreme Court, I assist Hartshorn J from time to time in dealing with matters before him when he is unavailable for one reason or another.  In my view, the transcript recording the proceedings of 20 December 2023 would have shone light on or clarified why Hartshorn J referred the matter to me, but that has not been produced in evidence.  In the result, the assertion by the Second and Third Respondents that it is an abuse of the process of the Court for me to deal with the interlocutory application, the subject of the Application for Recusal has no merit and is dismissed.    

ORDERS

19.	The Court orders that:
1.	The application filed by the Second and Third Respondents on 23 May 2024 is dismissed.
2.	The Second and Third Respondents shall bear the Appellant’s costs of and incidental to the application filed on 23 May 2024 which shall, if not agreed, be taxed.
3.	Time is abridged.

______________________________________________________
Akia & Associates: Lawyers for the Appellant
Konjib & Associates: Lawyers for the Second & Third Respondents