Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Petroleum Exploration Joint Venture Ltd v Talu [2017] PGNC 42; N6665 (2 February 2017)

N6665

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 357 OF 2013

BETWEEN:

PETROLEUM EXPLORATION
JOINT VENTURE LIMITED

Plaintiff

AND:

STANIS TALU

First Defendant

AND:
DANIEL NERE

Second Defendant

AND:

PUKULA HEREBA

Third Defendant

Waigani: Hartshorn J

2016: 21^st June

2017: 2^nd February

Application for disqualification of a Judge

Cases:

British American Tobacco Australia Services Ltd v. Laurie [2011] HCA 2
Ebner v. Official Trustee in Bankruptcy [2000] HCA 63
Gobe Hongu v. National Executive Council & Ors (1999) N1964
Johnson v Johnson [2000] HCA 48
MTI v. SUL [No. 2] [2012] WASCA 87
Pacific Equities & Investments Ltd v. Goledu (2008) N3400
Paru Aihi v. Sir Moi Avei (2004) N2523
PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592
Porter v. Magill [2002] 2 AC 357
Saxmere Company Ltd & Ors v. Wool Board [2009] NZSC 72; [2010] 1 NZLR 35
Taylor & Anor v. Lawrence &Anor [2002] EWCA Civ 90
Tzen Pacific Ltd v. Innovest Ltd (2012) N4713
Yama v. Bank South Pacific Ltd (2008) SC921

Counsel:

Mr. P. J. Wright, for the Plaintiff
Ms. A. Kimbu, for the Defendants

2^nd February, 2017

1. HARTSHORN J: The defendants make application for my disqualification from hearing this proceeding on the ground of “likelihood of reasonable apprehension of bias.” The plaintiff opposes the application. The defendants rely upon s. 59(2) and s. 155(4) Constitution and Order 12 Rule 1 National Court Rules. No objection was taken by the plaintiff as to the jurisdictional basis relied upon by the defendants for the making of the orders sought.
   

Background

2. The plaintiff, a landowner “umbrella” company, sues the defendants’ for amongst others K10 million and seeks a declaration that a further K8 million held by the defendants’ belongs to the plaintiff.
   

This application

3. The defendants’ submit that there is a likelihood of reasonable apprehension of bias by me against them and so I should disqualify myself from hearing the proceeding as:

1. Mr. Goiye Gileng, the plaintiff’s lead counsel was a Senior Associate at Blake Dawson Waldron Lawyers when I was a Senior Partner at the firm;
2. I have ruled against the defendants’ on the majority of interlocutory applications that have been made by the parties in this proceeding.
   

4. The plaintiff submits that this application should be refused as amongst others:

1. it was about 10 years ago that Mr. Gileng and I were at Blake Dawson Waldron at the same time and Mr. Gileng has appeared before me in court on many occasions since then without objection being taken by opposing counsel;
2. this proceeding was commenced in 2013 and Mr. Gileng has appeared on numerous occasions as counsel without objection until now;

100. as to interlocutory rulings that were made against the defendants, the defendants’ were at liberty to appeal, but no successful appeals have occurred.

Law

5. As to an application for the disqualification of a judge for apprehended bias, in PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592, it was held that:

“the test applied in determining whether apprehension of bias was satisfied was 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.”

6. In Tzen Pacific Ltd v. Innovest Ltd (2012) N4713, I noted that the law as to apprehended bias in respect of a judge in this jurisdiction is similar to the law in the United Kingdom, Australia and New Zealand: Saxmere Company Ltd & Ors v. Wool Board [2009] NZSC 72; [2010] 1 NZLR 35, Porter v. Magill [2002] 2 AC 357, Ebner v. Official Trustee in Bankruptcy [2000] HCA 63, though the governing principle is that, subject to qualifications concerning waiver or necessity, a judge is disqualified:
“if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: Ebner (supra), Johnson v Johnson [2000] HCA 48, British American Tobacco Australia Services Ltd v. Laurie [2011] HCA 2.

7. In essence the tests are the same in all of these jurisdictions.
   

8. As to the hypothetical observer, in Yama v. Bank South Pacific Ltd (2008) SC921, the Court observed that an objective, fair minded, lay observer is to be attributed with having some knowledge of the way in which lawyers and judges work. The Australian High Court in Johnson v. Johnson (supra) explained further that:
“The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require the judge to discard the relevant, the immaterial and the prejudicial””

9. In regard to whether an apprehension of bias arises because a judge and counsel appearing before the judge were members of the same firm at the same time, in the England and Wales Court of Appeal decision of Taylor & Anor v. Lawrence &Anor [2002] EWCA Civ 90, Lord Woolf CJ on behalf of the Court comprised of five Lord Justices said at [61]:
“The fact that the observer has to be “fair minded and informed” is important. The informed observer can be expected to be aware of the legal traditions and culture of this jurisdiction. Those legal traditions and that culture have played an important role in ensuring the high standards of integrity on the part of both the judiciary and the profession which happily still exist in this jurisdiction. Our experience over centuries is that this integrity is enhanced, not damaged, by the close relations that exist between the judiciary and the legal profession......
It is also accepted that barristers from the same chambers may appear before judges who were former members of their chambers or on opposite sides in the same case. This close relationship has not prejudiced but enhanced the administration of justice.”
10. Then at [69] the passage of Chadwick LJ in the previous Court of Appeal decision in the proceeding was endorsed. I reproduce the following:
“It is a matter of everyday experience that judges are acquainted, in one capacity or another, with those who appear before them as solicitors or advocates. That is a matter of which an informed observer would be well aware. The informed observer would be well aware, also, that judges, solicitors and advocates can be expected to recognise that it is a matter of paramount importance that the public should retain confidence in the administration of justice; and to recognise that they are required to conduct themselves accordingly. But judges, solicitors and advocates are entitled to expect from a fair-minded and informed observer a corresponding recognition that they will endeavour to be true to their judicial oath and to the standards set by their respective professional codes. It is not to be assumed, without cogent evidence to the contrary, that a judges acquaintanceship, whether social or professional, with those conducting litigation before him in a professional capacity will lead him to reach a decision in that litigation that he would not otherwise reach on the evidence and the arguments.”

11. I also consider the following passage at [36], concerning a chance meeting between a judge and a solicitor currently appearing before him, worthy of reproduction:
“The chance of a judge meeting out of court a solicitor or advocate who is currently appearing before him in court is a chance which has to be accepted unless judges are to lead lives of cloistered isolation. The danger lies not in the chance meeting - or even in a meeting planned for some purpose unrelated to the litigation - but in the discussion of the litigation in the course of that meeting. The fair-minded and informed observer would, in my view, credit both judge and solicitor (or advocate) with the recognition that discussion of current litigation would be wholly improper; and, indeed, would be likely to be embarrassing to either or both of them. He would not infer, without cogent evidence to the contrary, that the judge, solicitor or advocate would forget the behavioral norms by reference to which their daily lives are conducted.”

12. In cases where the allegation is that the apprehension of bias arises because a judge has presided over an early case or cases involving one or other of the parties, it has been held that:

“While it is important that justice must be seen to be done, a judge should not disqualify himself or herself on the basis of bias or a reasonable apprehension of bias unless substantial grounds are established”: Re JRL; Ex parte CJL [1986] HCA 39, Bienstein v. Bienstein [2003] HCA 7, MTI v. SUL [No. 2] [2012] WASCA 87, Lashansky v. Legal Practice Board of Western Australia [2012] WASCA 77.

13. In Re JRL; Ex parte CJL (supra), Mason J stated that an apprehension of bias must be firmly established. His Honour said:

“It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in the proceedings involving one of the litigants or on account of conduct during the litigation. 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”....
Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

14. In the minority decision of the High Court of Australia decision of British American Tobacco Australia Services Ltd v. Laurie [2011] HCA 2, French CJ 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.”

15. In considering whether a reasonable apprehension of bias has been established, in Yama v. Bank South Pacific Ltd (supra) at para 19 the Court said:
“ In considering whether a reasonable apprehension of bias has been established, it is necessary first 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 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, Ebner v. Official Trustee in Bankruptcy [2000] HCA 63; Smits v. Roach [2006] HCA 36.”

Consideration

16. The facts, matters and circumstances which it is submitted, might lead me to decide matters other than on their legal and factual merits are that:

1. Mr. Gileng, the plaintiff’s lead counsel was a Senior Associate at Blake Dawson Warden Lawyers when I was a Senior Partner at that firm;
2. I have ruled against the defendants on the majority of interlocutory applications that have been made by the parties in this proceeding.
   

17. As to Mr. Gileng and I being at Blake Dawson Waldron at the same time, we were and I was the Managing Partner at that time. I resigned from the firm over nine years ago when I was appointed to the bench and Mr. Gileng has not been a member of Blake Dawson Waldron (or Ashursts) for a number of years. There is no evidence of, and it is not the case that, our association is more than that described or of there being any dealings between us.

18. I also mention at this juncture that I did not disqualify myself from presiding in the proceeding OS No. 821 of 2015 Anderson Agiru v. Francis Potape in which Mr. Gileng appeared as counsel, as referred to in evidence filed on behalf of the defendants. I had dealt with that matter as the vacation judge. Once the vacation period ended the proceeding was handled by the judge in charge of the civil track to which that proceeding had been assigned.

19. In Taylor (supra) at [62] it was said:
“Unlike some jurisdictions the judiciary here does not isolate itself from contact with the profession. Many examples of the traditionally close relationship can be given: the practice of judges and advocates lunching and dining together at the Inns of Court; the Master of the Roll’s involvement in the activities of the Law Society; the fact that it is commonplace, particularly in specialist areas of litigation and on the circuits, for the practitioners to practice together in a small number of chambers and in a small number of firms of solicitors, and for members of the judiciary to be recruited from those chambers and firms.”

20. Here in Papua New Guinea, the relationship between the judiciary and the profession may not be as close as that in England referred to in Taylor (supra), but that is perhaps as a result of the profession existing for a limited time in comparison to the profession in England and to there not being the organisation of as many occasions for contact between the judiciary and the profession. It is however, commonplace for practitioners to practice together in a relatively small number of firms of lawyers and for members of the judiciary to be recruited from those firms as well as the State offices.
21. I reject the contention that because Mr. Gileng and I worked together as members of the same firm over nine years ago that an objective, fair minded, informed observer would apprehend that this might lead me to decide matters other than on their legal and factual merits or that I may be predisposed to find in favour of Mr. Gileng’s client.

22. As to the contention that I have ruled against the defendants’ on the majority of interlocutory applications that have been made in this proceeding, there is no evidence to suggest and I am not of the view that I will approach the remainder of this proceeding with a closed mind. I refer to the statement of French CJ in British American Tobacco v. Laurie (supra) in this regard.

23. The mere fact that a judge has previously decided cases in favour or against a party does not provide a foundation for a reasonable apprehension that the judge might not consider another case involving one or both of the parties with other than an impartial and unprejudiced mind; MTI v. SUL [No. 2] [2012] WASCA 87. To my mind, this applies equally to interlocutory decisions made by a judge in the same proceeding.

24. In this regard, I refer to the decision of Sevua J. in Gobe Hongu v. National Executive Council & Ors (1999) N1964 where His Honour rejected an application for disqualification made on the basis that he had ruled against the applicant in an earlier application for interlocutory relief; of Injia DCJ (as he then was) in Paru Aihi v. Sir Moi Avei (2004) N2523, where His Honour refused a disqualification application made on the basis that he was a member of the bench of 3 previous Supreme Court election review cases which had ruled against the applicant, and my decision in Pacific Equities & Investments Ltd v. Goledu (2008) N3400, where I refused a disqualification application that was made on the basis amongst others, that I had refused injunctive relief in earlier proceedings that had related issues involving two of the parties and from which an appeal was pending.

25. I reject the contention that because of my previous decisions on interlocutory matters in this proceeding that an objective, fair minded, informed observer would reasonably apprehend that I may be predisposed to find against the defendants. The defendants are not entitled to the relief that they seek.

Orders
26.

1. The relief sought in the notice of motion of the defendants’ filed 11^th May 2016 is refused;
2. The defendants’ shall pay the plaintiff’s costs of and incidental to the said notice of motion;

c) Time is abridged.
____________________________________________________________
Posman Kua Aisi Lawyers : Lawyers for the Plaintiff
Greg Manda Lawyers : Lawyers for the Defendants