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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS 1662 of 2016
BETWEEN:
NAMBAWAN SUPER
LIMITED
Plaintiff
AND:
PAUL PARAKA trading as PAUL
PARAKA LAWYERS
Defendant
Waigani: Hartshorn J,
2019: 4th April
: 5th June
Application for disqualification of a Judge
Cases Cited:
Papua New Guinea Cases
PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592 Gobe Hongu v. National Executive Council & Ors (1999) N1964
Paru Aihi v. Sir Moi Avei (2004) N2523
Application by Herman Joseph Leahy (2006) SC981
Yama v. Bank South Pacific Ltd (2008) SC921
Pacific Equities & Investments Ltd v. Goledu (2008) N3400
Tzen Pacific Ltd v. Innovest Ltd (2012) N4713
Petroleum Exploration Joint Venture Ltd v. Talu (2017) N6665
Overseas Cases
British American Tobacco Australia Services Ltd v. Laurie [2011] HCA 2
Ebner v. Official Trustee in Bankruptcy [2000] HCA 63
Johnson v. Johnson [2000] HCA 48
MTI v. SUL [No. 2] [2012] WASCA 87
Porter v. Magill [2002] 2 AC 357
Re JRL; Ex parte CJL [1986] HCA 39
Saxmere Company Ltd & Ors v. Wool Board [2009] NZSC 72; [2010] 1 NZLR 35
Smits v. Roach [2006] HCA 36
Taylor & Anor v. Lawrence & Anor [2002] EWCA Civ 90
Counsel:
Mr. D. Wood and Mr. T. Injia, for the Plaintiff
Mr. P. Paraka, the Defendant, in person
5th June, 2019
1. HARTSHORN J: This is a decision on a contested application by the defendant (Mr. Paraka) for my disqualification from hearing this proceeding on grounds that there is a reasonable apprehension of my bias.
Background
2. The plaintiff, Nambawan Super Ltd (NSL), claims amongst others that:
a) It leased three floors of office accommodation and allocated car parking spaces in its Mogoru Moto Building to Mr. Paraka from about 2007 to December 2016. After August 2012, Five D PNG Ltd managed Mogoru Moto Building on behalf of NSL;
b) On 23rd March 2016 NSL and Mr. Paraka entered into a Deed of Settlement and Indemnity (Deed) in which it was mutually agreed that Mr. Paraka, as at 1st March 2016, owed and was to immediately pay to NSL, rental arrears of K373,423.11 and that further, Mr. Paraka was to commence paying rental amounts on a monthly basis in advance;
c) Mr. Paraka breached clause 4 of the Deed by failing to pay the rental arrears of K373,423.11, and breached clause 6 of the Deed by failing to pay rent on a monthly basis in advance of every month from 1st April 2016;
d) NSL determined the Lease on 9th December 2016 and subsequently re-took possession of the three floors and allocated car parking spaces;
e) In the National Court proceeding OS 115/14, commenced by Mr. Paraka against NSL, the Court refused to grant orders sought by Mr. Paraka and found that Mr. Paraka had defaulted in his obligations under the Deed to settle his outstanding rental arrears and meet the monthly rental payments as of 1st April 2016;
f) NSL claims amongst others, K2,626,425.50 rental, damages and interest against Mr. Paraka.
3. Mr. Paraka applied unsuccessfully to dismiss this proceeding on the grounds amongst others, that it did not disclose a reasonable cause of action.
This application
4. Mr. Paraka seeks my disqualification pursuant to Order 4 Rule 4 National Court Rules and s. 155(4) Constitution. No issue was taken by NSL with the reliance by Mr. Paraka upon this rule and section. Mr. Paraka seeks my disqualification on the grounds that there is a reasonable apprehension of my bias as he contends that:
a) I was employed as a partner at Blake Dawson Waldron lawyers Port Moresby (BDW) before my appointment as a judge and oversaw legal services which BDW provided to NSL;
b) BDW leased premises from NSL in the Mogoru Moto Building, the same building in which Mr. Paraka leased premises from NSL, and all of the tenants of that building had similar lease agreements;
c) I have past and existing professional relationships with past and existing lawyers of Ashurst Lawyers, the lawyers for NSL in this proceeding and the successor to BDW;
d) I have made two interlocutory decisions in this proceeding against Mr. Paraka;
e) An objective observer knowing what is stated in a) to d) above, “... will obviously doubt the objectivity of His Honour in presiding over the case, especially when his former Law Firm is taking up the case, on behalf of a client that His Honour probably acted for in the past.”
5. NSL submits that the application should be refused as:
a) In this proceeding, Mr. Paraka has not previously raised any objection to my hearing this proceeding and has not sought my disqualification;
b) The interlocutory orders made by me on 30th December 2016 were made by consent of the parties after draft consent orders had been handed up;
c) The reserved ruling delivered by me on part of Mr. Paraka’s notice of motion filed 25th August 2017 does not give rise to any suggestion that I will not bring an objective mind in dealing with the balance of that motion;
d) there is no evidence adduced by Mr. Paraka to demonstrate that my objectivity would be affected due to my previous association with BDW or that I had any knowledge of the Lease Agreement executed by NSL and Mr. Paraka on 10th September 2013;
e) I was appointed a judge more than six years before 10th September 2013 and the suggestion that I had knowledge of the said Lease Agreement or any other lease agreements prior to being appointed as a judge is misleading and without foundation.
Law
6. 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.”
7. 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.”
8. In essence the tests are the same in all of these jurisdictions.
9. 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 [2000] HCA 48 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””
10. Then in an Application by Herman Joseph Leahy (2006) SC981 the Supreme Court held amongst others, that:
“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?
2) The suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds.
3) 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.
4) 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 ......
7) A party and his counsel have a duty to expeditiously bring an application to disqualify a Judge from dealing with a case, immediately after the facts said to support an alleged suspicion or apprehension of bias are known........”
11. 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.”
12. 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.”
13. 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.”
14. 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.”
15. In Re JRL; Ex parte CJL [1986] HCA 39, 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 pre-judgement 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.”
16. 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.”
17. In 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
18. To successfully demonstrate a reasonable apprehension of bias by me such that I should be disqualified from hearing this proceeding, the defendant should properly identify the facts, matters and circumstances by reason of which it is said that I might decide this proceeding other than on merit and secondly, demonstrate a logical connection between those facts, matters and circumstances and the apprehended deviation from the course of deciding the proceeding on merit: Peter Yama v. BSP (supra), Pacific Equities & Investments Ltd v. Teup Goledu & Ors (2008) N3400, Ebner v. Official Trustee in Bankruptcy [2000] HCA 63, Smits v. Roach [2006] HCA 36.
19. The facts, matters and circumstances which it is contended, might lead me to decide matters other than on their legal and factual merits are that I was a partner of BDW and oversaw legal services that BDW provided to NSL, that BDW leased premises in Mogoru Moto Building, as did Mr. Paraka, and that all tenants of Mogoru Moto Building had similar leases, that I have past and existing professional relationships with past and existing lawyers of Ashursts and that I have made two interlocutory decisions against Mr. Paraka in this proceeding.
20. If I understand correctly, Mr. Paraka contends that the logical connection between these facts, matters and circumstances and the supposed deviation from deciding the case on the merits, is that an objective, fair minded lay observer might think that because of the above, I may be predisposed to find against him.
21. As to the first contention, that whilst a partner at BDW, I oversaw legal services that BDW provided to NSL, there is no evidence to suggest that I acted directly for NSL. If I had so acted, there is no evidence that I acted on matters for NSL that concern an issue the subject of this proceeding or which was related in any way to this proceeding. There is no evidence that I gave any advice to NSL. If I did give advice to NSL, there is no evidence that the advice concerned was related to an issue in this proceeding. Further, if I gave advice on an issue in any way related to this proceeding, there is no evidence that I was in a position to receive special knowledge or did receive special knowledge concerning an issue or party to this proceeding. Consequently, I reject this first contention of Mr. Paraka.
22. As to the second contention, that the tenants of Mogoru Moto Building had similar leases and that BDW and Mr. Paraka were both tenants, there is no evidence to suggest that BDW and Mr. Paraka had similar leases with NSL, or if they did, that BDW had an issue with NSL concerning its lease which is similar to an issue in this proceeding. This contention is rejected.
23. As to the third contention, that I have past and existing professional relationships with past and existing lawyers of Ashursts, the successor of BDW, there is no evidence of any such relationships, professional or otherwise.
24. Notwithstanding that it is not made, if the contention is that there are past and existing lawyers from BDW, now Ashursts, who were employed at BDW at the time that I was, and because of that there is an apprehension that I will be predisposed to find for them if they appear as counsel in cases before me, as I did in Petroleum Exploration Joint Venture Ltd v. Talu (2017) N6665 at [19], I reproduce the following passage from Taylor & Anor v. Lawrence & Anor [2002] EWCA Civ 90 at [62] in which it is 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.”
25. As I remarked in PEJV v. Taylor (supra) at [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.”
26. I reject the contention that as I worked with members and employees of BDW over twelve 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 former colleagues with whom I worked.
27. As to the contention that I have made two interlocutory decisions against Mr. Paraka 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.
28. 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.
29. In this regard, I refer to the decision of Sevua J. in Gobe Hongu v. National Executive Council & Ors (1999) N1964 in which 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 (supra), in which 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.
30. 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 Mr. Paraka.
31. Given the above, Mr. Paraka is not entitled to the relief that he seeks.
Orders
32. The formal Orders of the Court are:
a) The relief sought in the notice of motion of the defendant filed 9th April 2019 is refused;
b) The defendant shall pay the plaintiff’s costs of and incidental to the said notice of motion;
c) Time is abridged.
Ashurst Lawyers: Lawyers for the Plaintiff
Paul Paraka Lawyers: Lawyers for the Defendant
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