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Slater and Gordon v Ross Mining (SI) Ltd [2001] SBHC 170; HCSI-CAC 006 of 2001 (24 May 2001)

CAC No 006, 2001, HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Appeal Case No 006 of 2001

SLATER AND GORDON (“A FORM”) AND ORS

-v-

ROSS MINING (SI) LIMITED

High Court of Solomon Islands
(Muria, CJ.)
Civil Appeal Case No. 006 of 2001

Hearing: 24 May 2001
Ruling: 24 May 2001

J. Sullivan for Appellants
A. Radclyffe for Respondents

MURIA CJ: Before the hearing of the Respondents’ Notice of Motion set down for today, the appellants raised a preliminary matter. The appellants’ application is, I take it, a request for my disqualification to deal with this matter. Basically, the reason for the application is that I had previously dealt with this case on a number of occasions and had given judgments against the appellants. Perhaps the correct description of the basis of the appellants’ application is, as Mr. Radclyffe stated, on the ground of “apprehended bias” since a request for disqualification of a judge on the basis that he has dealt with a particular matter before ought not to be readily accepted as good reason for the judge’s disqualification. If it were so, the Court would be developing a procedure which might lead too readily to disqualification or encourage unnecessary challenges. It could open the door to the possibility of abuse of the right to protecting the rights of the litigants to an impartial tribunal. This must be guarded against. Where a party is legally represented, the application or request would normally be made after clear instructions from the client and after having the benefit of proper legal advice and reflection. Unrepresented litigants, of course, most frequently raise allegations of bias or apprehended bias.

As a guide in the future, if applications are to be made, it would be appropriate that the application be made with supporting affidavit by the Solicitor or Counsel on the record that the application was made in good faith. This is to avoid the likelihood of abuse of the practice.

Having said that, I bear in mind the arguments raised by Counsel for both parties. I also bear in mind the pressure, whether real or perceived, which can sometimes discourage parties from raising legitimate concerns or even lead them to waive proper objection. Parties to a litigation must be able, without fear, to raise legitimate objection. This is an important mechanism of protecting their right to an impartial adjudication of their disputes. Such a right must not be readily watered down.

Having considered the matter most anxiously, I feel the salutary principle that justice must not only be done but must also be seen to be done, demands respect from our system of administration of justice. I too salute that time honoured principle and I shall recuse myself from hearing this case.

(Sir John Muria)
CHIEF JUSTICE