Wehrenberg v Suluka [2016] FJHC 64; HBC79.2006 (8 February 2016)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA, FIJI ISLANDS

CIVIL CASE NO.: HBC 79 OF 2006

BETWEEN :

FRED WEHRENBERG of Nisusu Island
PLAINTIFF

AND :

SEKAIA SULUKA DC 1380 Crime Officer, Rakiraki
1ST DEFENDANT

AND :

TAUVOLI Police Officer, Rakiraki
2ND DEFENDANT

AND :

EPARAMA CPL 248 Police Officer
3RD DEFENDANT

AND :

COMMISSIONER OF POLICE Suva
4TH DEFENDANT

AND :

THE ATTORNEY GENERAL AND MINISTER FOR
JUSTICE OF THE GOVERNMENT OF FIJI SUVA
5TH DEFENDANT

Appearances:

Plaintiff appeared in Person
Ms. Mary Lee for the Defendants

RULING

Introduction

1. The Plaintiff filed a Notice of Motion dated 23rd July, 2015 seeking the following reliefs from Court:
   
   • (i) That the Honourable Justice Abeygunaratne recuse himself to rule on the Defendants application by letter "Preliminary Issues" and the Plaintiff's Motion for Joinder.
   • (ii) That the rulings for the above mentioned applications, which are set to be delivered on 11th August, 2015 be deferred until the outcome of this motion.
     
   • (iii) That the cost of this application be costs in the cause.
     
2. The Plaintiff's Notice of Motion was supported by an Affidavit sworn by him on the same day.
   
3. The Defendants filed their Affidavit in Opposition to the application of the Plaintiff on 1st September, 2015; and the Plaintiff filed his reply to the same on 19th October, 2015.
   
4. When the aforesaid Motion for recusal was heard by this Court on 4th November, 2015 both parties made oral submission and submitted written submissions too with the leave of Court.
   

Background

5. The Plaintiff is making this application for recusal when there are three (3) applications pending before this Court. The said application are as follows:
   
   • (i) Defendants application opposing the use of Affidavit evidence during trial and seeking that all Affidavit evidence be struck out.
     
   • (ii) Plaintiff's application for the former Court clerk to be called as a witness.
     
   • (iii) The Plaintiff's application for Joinder of his wife as the 2nd Plaintiff.
     

The Law and Analysis

6. The Plaintiff, the applicant who is moving to disqualify the Trial Judge has to establish that there is a real danger or possibility of bias on the part of the triaband under scrutiny.
   
7. In Citizens Constitution Forum v Attorney General [2001] FJHC 334; it was held as follows:
   

"Held (1) - An application to disqualify a trial judge is a serious matter and must be made on substantial grounds and accompanied with supporting evidence. The application must first be made to the trial judge in chambers in the presence of the opposing party, and if refused, moved in open court. The test of recusal is objective and the onus is on the applicant to establish that the disqualifying interest or matter would cause the possibility of a departure from impartial decision-making and the oath of office taken by the Judge to administer justice without fear or favour. A subjective apprehension is not, of itself, enough to warrant or require disqualification. The latter of the dual constitutional requirements of independence and impartiality is more narrowly focused on individual characteristics than the prior, which is status oriented and extends to cover constitutional and administrative independent of the Court. There is a constitutional presumption that a Court is independent and impartial unless rebutted by the Applicants.

(2) The real test of bias is whether there is a real danger or possibility of bias on the part of the tribunal under scrutiny. The separate disqualification rule that a person is not confined to a cause in which he is a party but also to a cause in which he has an interest, is good law in Fiji."

8. In the aforesaid Judgment Fatiaki J has quoted a passage from Ebner v Official Trustee in Bankruptcy and Clenae Pty Ltd v A.N.Z. (2000) 176 ALR644 at p648 which reads as follows:
   

"The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First it requires the identification of what it is said might lead a Judge to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a Judge has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision-making is articulated. Only then can the reasonableness of the apprehension of bias be assessed."

9. In Citizens Constitutional Forum Limited and Akuila Yabaki vs The Attorney General of Fiji HBC 195 of 2012 Calanchini J said at paragraph 37:
   

[37] Consistent with the decision in Porter v Magill (spra) the Court of Appeal in Patel and Mau v Fiji Independent Commission Against Corruption (unreported Criminal Appeal AAU 39 and 40 of 201 delivered12 September 2011) adopted a two stage enquiry. The first stage involved establishing the actual circumstances which have a direct bearing on a suggestion that the Judge was or may be seen to be biased. This factual inquiry should be rigorous, in the sense that complainants cannot lightly throw the "bias" ball in the air. The second stage is to determine whether those circumstances as established might lead a fair-minded-lay observer to reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the case. This involves an objective determination in the sense that it requires an enquiry as to how others would view the Judge's position.

10. In analysing the Judicial precedents as above I find that the first step in a recusal application is to ascertain the actual circumstances which have a direct bearing on a suggestion that the Judge was or may seen to be biased.
    

Secondly to see whether these circumstances might lead a fair minded lay person to reasonable apprehend that the Judge will deviate from the course of deciding the case on its merits.

11. Bearing in mind the aforesaid legal principles laid down by the authorities, I will now delve into the Plaintiff's application for recusal.
    
12. The Plaintiff argues that there is reasonable apprehension of bias and that the Judge has a personal interest in the matter by vacating the trial date set for August 2014 because Counsel for the Defendants had presented a mere letter in Court on that day seeking the dismissal of Plaintiff's Affidavits despite the Counsels total disregard of Order 2 Rule 2 of the High Court Rules and the Plaintiff's objections. He also states that it appeared to him that the Counsel for the Defendants and the Judge had prior agreement about the letter which the Counsel handed to the Court and the adjournment of the trial which followed.
    
13. The Court record relating to the proceedings on 12th August, 2014 (Trial date) confirms, the following facts:
    
    • (i) Mr Green appearing for the Defendants objected to the use of Affidavit evidence during the trial and made Oral Submissions in support of his preliminary objection. The Plaintiff appearing in person made Oral Submissions in Reply. Upon hearing the submissions of both parties, the Court has delivered an Interlocutory Order on the same day and vacated the hearing.
      
14. I reproduce the said Interlocutory Order made on 12th August, 2014 which reads as follows:
    

"When this matter was taken up for hearing today 12th August, 2014 the learned Counsel for the Defendants raised a preliminary objection regarding the acceptance of Affidavits as evidence in chief. They also submitted a written submission supplementary to their oral submission. The Plaintiff made oral submissions opposing the preliminary issue.

In considering the submissions of both parties and in perusing the case record, I find that there is no formal application by either party to submit evidence in chief by Affidavits serving a draft to be considered by the opposing party as required by Order 38 Rule 1, 2 and Supreme Court Practice 1995.

There is no formal order by my predecessors allowing such an application on the record.

In the above circumstances I am of the view that the application of the Defendant should be considered by me as I am now the Trial Judge of this matter.

However, as the Plaintiff was not aware of this objection till today I decide to adjourn this matter to another date for him to file written submissions on this preliminary issue of acceptance of Affidavit evidence.

Accordingly, I vacate the hearing of this matter to pronounce an Order in regard to the preliminary issue. I also accept the position of the Plaintiff that this objection has been raised at a late stage of this matter and thereby he will suffer financial loss due to the expenditure incurred in preparing Affidavits and getting ready for the hearing. Therefore, he is at liberty to move for costs on such reasons by his submission.

The Court will consider the costs application in the order to be pronounced.

Hearing vacated.

Plaintiff to file his written submission on 2nd September, 2014.

Defendants to file written submissions in reply on 9th September, 2014. Mention on 30th September, 2014 at 9.30am."

15. It is apparent from the facts confirmed by the Court record the Counsel for the Defendants had raised an objection to the admission of Affidavit evidence as evidence in chief and the Court had adjourn the matter for further submissions after hearing the Oral Submissions of both parties. It is also confirmed by the record that no letter was presented to Court by the Defendants' Counsel on the trial date.
    
16. Instead of applying to set aside the Interlocutory Order dated 14th August, 2014 the Plaintiff argues that there is reasonable apprehension of bias and that I have a personal interest in the matter by vacating the trial date. This argument is made nearly 11 months from the said Interlocutory Order.
    
17. In the light of the above circumstances, I am of the view that there is no issue of bias in reaching the decision to vacate the trial date. The decision to vacate a trial date is at the discretion of the trial Judge pursuant to Order 35 Rule 3. Furthermore, I have also said in my Interlocutory Order that the Plaintiff is at liberty to move for costs due to the Defendant's delay in raising the objection.
    
18. The Plaintiff goes on to state in his Affidavit that he was denied natural justice when leave was granted on 28th April, 2015 to subpoena a former Court clerk but on the day of the hearing I refused to hear the witness simply because Counsel for the Defendants had changed her mind again and objected to the witness being called.
    
19. When the Plaintiff was asked in Court for what purpose the said witness is called the Plaintiff stated that he is calling the witness to prove that former Justice Wickramasinghe pronounced an Order in regard to the Affidavit which is not in the Court records. It was explained to the Plaintiff that the Court can only rely on what is in the Court records and not what a former Clerk says was omitted from the Orders of the former Judge.
    
20. In my view the Plaintiff's application to call a former Court Clerk to prove that a former Judge has made an order which is not recorded is an application unknown to Law. Therefore, I find that there is no issue of bias in not allowing the former Court Clerk to give evidence to say what was omitted from the Orders of the former Judge.
    
21. The next allegation of bias made by the Plaintiff is preferential treatment by giving the Defendants extension after extension over a period of 3 months to make replies to his Affidavits and Submissions which never came forward and that this delay had a real impact on the course of litigation.
    
22. The Plaintiff does not set out the dates and the number of times in which extensions were granted. From his own statement, it is evident that the extensions were over a period of 3 months. Extension of time granted to the Defendants' Counsel over a period of 3 months in my view cannot be considered as a delay which has an impact on this matter. Furthermore, the Court is also mindful of the workload handled by the officers of the Attorney Generals' Office in granting extension of time for them to file necessary documents.
    

Determination

23. In considering the reason given as above, I find that the Plaintiff's recusal application has no merits. I find that the Affidavit evidence of the Plaintiff in support of this application does not establish the allegation of personal interest constituting bias. Therefore I dismiss the Plaintiff's Notice of Motion dated 23rd July, 2015.
    
24. With the dismissal of his application for recusal the Plaintiff who appears in person may wrongly believe that I might unconsciously succumb to the human temptation to exact revenge for making the recusal application with a view to remove me from hearing this case.
    
25. In Citizens Constitutional Forum vs Attorney General 2 FLR 127 Justice Fatiaki while dismissing a recusal application said:
    

"Accordingly, and consonant with what might be considered an excess of caution on my part, and mindful of the Applicants deposed belief (however misguided) that I might unconsciously succumb to the human temptation to exact revenge for their calls for an enquiry with a view to my removal, I have decided to take the exceptional step of referring the file back to the Chief Justice for reassignment to another Judge for the hearing of the substantive Originating Summons as he sees fit."

26. In this matter I am of the view I should refer this file to Deputy Registrar for reassignment to another Judge on the same reason given by Justice Fatiaki in the aforesaid Judgment.
    

Costs

27. The Plaintiff in his written submissions filed on 19th October, 2015 claim $421.30 expenses because of the adjournment of the hearing on 1st October, 2015 due to the Defendants negligence to serve their Answering Affidavit on him. He has attached the bills to substantiate his claim for costs.
    

I find the Plaintiff's claim for costs is reasonable as the adjournment on 1st October, 2015 was due to the Attorney General's Office failure to serve the Answering Affidavit to the Plaintiff.

Final Orders

28. (a) The Plaintiff's Notice of Motion dated 23rd July, 2015 is dismissed but the file to be reassigned to another Judge.
    

(b) The Plaintiff is entitled to $421.30 as costs due to the adjournment of hearing on 1st October, 2015 and this costs shall be costs in the cause.

Lal S. Abeygunaratne
Judge

At Lautoka
8th February, 2016