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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[In the National Court of Justice]
WS 491 of 1999
BETWEEN:
GOBE HONGU LIMITED
Plaintiff
AND
NATIONAL EXECUTIVE COUNCIL
First Defendant
AND
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Second Defendant
AND
BARCLAY BROS (PNG) LIMITED
Third Defendant
AND
SOUTHERN HIGHLANDS GULF
HIGHWAY LIMITED
Fourth Defendant
AND
SOSO TOMU
Intervener
Waigani: Sevua, J
1999: 7th, 14th & 16th July
Courts and Judges – Hearings – Judges – Apprehension of bias – Apprehended bias – Nature of apprehension requiring Judge to disqualify himself from hearing a matter – Whether apprehension reasonable – Application for disqualification – Relevant legal principles discussed – Test.
HELD
Dismissing the plaintiff's application on the issue of disqualification for apprehended bias:
Cases Cited:
PNG Pipes Ltd & Anor v. Mujo Sefa & Ors, SC 592, unreported, 26th November, 1998.
Trustee of Christian Brothers v. Cardone [1995] FCA 1309; (1995) 130 ALR 345, adopted and applied.
Metropolitan Properties Co. (FCE) Ltd v. Lannon [1968] EWCA Civ 5; [1969] 1 QB 577, adopted and applied.
R. v. Leckie; Ex parte Felman (1997) 18 ALR 93; 52 ALJR 155.
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, adopted and applied.
Raybos Australia Pty. Ltd. v. Tectran Corp. Pty. Ltd. (No.4) (1986) 6 NSWLR 674, adopted and applied.
Galea v. Galea (1988) 19 NSWLR 263.
Re Keely; Ex parte Ansett Transport Industries (Operations) Pty. Ltd. [1990] HCA 27; (1990) 94 ALR 1, 64 ALJR 495.
Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR
288; 47 ALR 45, adopted and applied.
Webb v. R [1994] HCA 30; (1994) 181 CLR 41; 122 ALR 41, adopted and applied.
R. Saulep for Plaintiff
S. Carter for 1st & 2nd Defendants
D. Lighfoot for 3rd & 4th Defendants
S. Soi for Intervener
16th July, 1999
SEVUA, J: This is an application by the plaintiff seeking an order that I disqualify myself from further presiding over this case.
At the hearing of this application, I refused to accept the affidavit of Mr Saulep for two reasons. Firstly, there was no evidence by the plaintiff itself or directors of the plaintiff or directors of shareholders of the plaintiff company that I have been biased or that there is perceived or apprehension of the real likelihood of bias. If that was the feeling or impression of the plaintiff, I expected the plaintiff to file necessary affidavits to that effect, not Mr Saulep. Secondly, the contents of the affidavit were basically submissions of law, not evidence to support the application. Affidavits are written evidence, within the exception of the hearsay rule in the law of evidence, not submissions. There is a trend now where lawyers are allowing extraneous materials including opinions, legal submissions, law etc, etc in affidavits and this must stop.
The primary facts are that, on 18th May 1999, I granted an interim injunction sought by the plaintiff. The interlocutory injunction was returnable before me on 2nd June 1999, when I heard the defendants' submissions as to whether or not the injunction should continue. On 8th June, I ordered that the interlocutory injunction be discharged.
On the return date of the injunction, substantial arguments were raised. In my reasons for decision delivered on 8th June, I addressed those principles in detail – serious questions to be tried, balance of convenience, undertaking as to damages, etc. As far as I was concerned, in order to adequately address the relevant fundamental principles of law, I had alluded to; I was entitled to look at the evidence of the parties, the statement of claim, the written undertakings as to damages and other materials, although, I was not determining the substantive issues, which are left to the trial proper.
In addressing those principles in detail, the plaintiff's counsel said I have overstepped the boundary and limit of what I should say.
All that the plaintiff's counsel was able to say was that I had already addressed the substantive issues in my interlocutory ruling on 8th June, 1999, which case will be argued again in the trial proper. I do not agree with that unsubstantiated and misconceived view. As far as I am concerned, my ruling was based on the relevant legal principles that counsel for the defendants had raised.
The plaintiff's counsel has failed to address the Court on the exact materials that I had expressed opinions on, which he asserted to be biased against his client. What exactly are those issues and what is it that I said in my ruling of 8th June, which amounted to an expression of bias or apprehension of bias against the plaintiff?
The plaintiff company or its Chairman or Directors have not filed any affidavit to show that I have been biased or likely to be biased against the plaintiff, therefore the propriety or otherwise of bringing this application must rest on Mr Saulep. Since he has questioned my integrity and impartiality in presiding over this case without any evidence of his allegations, I should also ask what authority he has in filing an appeal on this motion, when he has not provided any credible evidence to support his application, but more so, when he has failed to comply with the Court's direction, which I will refer to.
The following facts will highlight what I perceive to be his impropriety in this application, and whether he was properly authorised to appear for the plaintiff in this matter.
Court records will show that on 7th July, I gave a ruling on an application by one Soso Tomu, who sought leave to intervene pursuant to Section 143(3) of the Companies Act. The intervener is a director of the plaintiff company. In that application, there was evidence by him and two other directors that the decision to proceed with this court action did not come from a formal resolution of the plaintiff's board. The plaintiff did not refute that evidence.
Because of concerns over legal costs and other matters in this case explained by those three directors, I considered it in the best interest of the shareholders of the plaintiff company that the powers of the Court in Section 145 of the Companies Act should be exercised. Accordingly, I decided that any future conduct of this case by the plaintiff must be properly authorised by a formal resolution of the plaintiff's Board of Directors. The Court has the power to make that order pursuant to Section 145 (b) of the Companies Act.
As soon as the ruling was handed down, Mr Saulep quickly stood up and made an oral application for me to stay further proceedings in this case because of that ruling and also because he had filed an appeal to the Supreme Court against my interlocutory ruling on 8th June. Furthermore, he had filed an application to stay further conduct of this case. I refused to entertain that application, and said I would only stop when ordered by the Supreme Court.
Following that refusal, Mr Saulep, again, quickly stood up and made a verbal application that I should disqualify myself. He did not have any evidence to support that oral application. In any event, I insisted on a proper and formal application supported by credible evidence. In fairness to the other parties, I directed that a proper application be filed and served and I would hear the application on 14th July, 1999. I highlight two important issues here. Firstly, where did these instructions come from? Each oral application was made abruptly and immediately after each ruling. If he had full instructions and proper authority why didn't Mr Saulep file proper notice of motion instead of interjecting with these oral applications? Secondly, Mr Saulep and his clients have failed to comply with the directions the Court issued on 7th July 1999. They have come to seek audience with this Court without having the courtesy and respect to comply with the directions of this Court. This application should therefore be dismissed for that reason alone as the opposing counsel submitted. However, since I have been fair to them and had permitted Mr Saulep to move his motion, I allowed the opposing counsel to also address the Court.
Having addressed those matters, I now come to the law in this area.
The relevant principles and the test applicable in an application for a Judge to disqualify himself are contained in the recent decision of the Supreme Court in PNG Pipes Limited and Sankaran Venugopal -v- Mujo Sefa & 2 Ors, SC 592, 26th November, 1998. The Supreme Court referred to a number of similar cases and statements of principles in overseas jurisdiction and applied those principles and the test as the law in our jurisdiction. I consider that the test of an 'objective observer' established there, should include a 'fair minded, lay observer' as in Livesey v. NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288.
In Trustees of Christian Brothers -v- Cardone [1995] FCA 1309; (1995) 130 ALR 345, the trial Judge was an ex-pupil of the appellants' school and Chairman of the School Board. He knew three of the appellants' witnesses, one of whom was also on the school board. The respondent was a student at a school owned and operated by the appellants and was injured whilst at the school. He sued the appellants for damages for negligence. At the start of the trial, the appellants made an application to the trial Judge to disqualify himself from hearing the case on the grounds of apprehended bias. However, the trial Judge declined to disqualify himself on the grounds that the appellants' lawyers were aware of the trial Judge's association with the appellants when the case had first been listed for trial, but had raised no objection.
The Australian Federal Court, in dismissing the appeal on the issue of disqualification for apprehended bias held:
"It was not enough that the apprehension of bias arose in the convoluted way argued by the appellants. The apprehension of bias must be reasonably and not fancifully entertained. The appellate Court must be satisfied, upon examination of the surrounding facts, that an objective observer 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"
In Metropolitan Properties Co (FCE) Ltd -v- Lannon [1968] EWCA Civ 5; [1969] 1 QB 577 at 598, Lord Denning MR said:
"..........................in considering whether there was a real likelihood of bias, the Court does not look at the mind of the Justice himself..........It does not look to see if there was real likelihood that he would or did, infact favor one side at the expense of the other. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.
Nevertheless, there must appear to be real likelihood of bias. Surmise or conjecture is not enough"
In considering these principles, I am of the view, that the plaintiff has not provided any evidence before this Court from an objective observer that, after the hearing of arguments by all parties on 2nd June, and my decision on 8th June, the objective observer has been left with an apprehension of bias that I would reach a decision in the trial proper, which will be unfavourable to the plaintiff.
I ask here, is Mr Saulep an objective observer? I think Mr Soi correctly submitted that there was no evidence from shareholders or members of the plaintiff company or members of the public who were affected by the ruling of 8th June. I do not consider that it is a question of a conviction that a Judge was or would be biased, but an apprehension of bias by an objective observer. I consider that Mr Saulep was not an objective observer.
It is my view that Mr Saulep was not an objective observer, he could not be. The manner in which this application was made orally, and the manner in which another oral application was also made after my ruling on 7th July, could not make Mr Saulep an objective observer. In my view, members of the plaintiff company who sat in Court and listened to the submissions by all counsel on 2nd June, and who sat in Court and listened to the reasons for decision I handed down on 8th June, would be objective observers. I am aware from my own observations that this case had attracted a good size of audience, people who are members of the plaintiff company who supported the plaintiff's chairman, and those who supported the intervener and his witnesses. In my view, these are the people who should have filed affidavits as to their observations and impression of my conduct on 2nd and 8th June. They in my view, would be the objective observers, not the plaintiff's counsel.
The Supreme Court, in PNG Pipes, adopted the principle that the Court looks at the impression which would be given to other people. It does not look at the mind of the presiding justice and it does not look to see if there is a real likelihood that the justice would or in fact favor one side at the expense of the other. The plaintiff, in the present case has failed to establish the impression of the people, that the Supreme Court adverted to.
The dissenting judgment of Justice Gallop in the Australian Federal Court case, in my view, provides a very worthwhile line of views in Papua New Guinea because of the trend that I adverted to at the beginning of this judgment. The expressions by His Honour, in my opinion, provide some very fundamental principles that litigants in Papua New Guinea and their lawyers must consider before embarking on an application for a Judge to disqualify himself from hearing a case.
These principles are so fundamental that, in my view, they reflect due consideration that all litigants and their lawyers must study before they embark on questioning the integrity and impartiality of a Judge each time they lose an interlocutory application. In my view, the Court must draw a well defined demarcation line between a spurious and misconceived application, and a genuine application. The Courts must ensure that disgruntled litigants and their disgruntled lawyers do not manipulate the judiciary and its judicial process by running to Court each time an interlocutory decision is made against them. In my view, disgruntled litigants and their lawyers must never be allowed to manipulate the judiciary and the judicial process. It is tantamount to attacking the constitutional independence of the judiciary. I consider therefore that it is of fundamental importance that litigants including members of the public, have full confidence in the integrity and impartiality of those entrusted with the administration of justice so that, the impartiality and constitutional independence of the judiciary is not interfered with.
Of course, the law gives them the right to appeal against a decision. The plaintiff, in this case, has already advised they might be lodging an appeal to the Supreme Court. And I do not say that a litigant should not make an application for a Judge to disqualify himself. In appropriate cases, where the facts and circumstances favour the making of such an application, a party may make an application. But my concern is that a Judge ought not to be driven out of his Court because he has ruled against a litigant in an interlocutory application. I believe that a litigant, by his conduct or assertion, should not be permitted to influence the choice of a Judge. If that is allowed, it would, in my view, impugn and impeach the principle of judicial independence. The independence of the judiciary must never be influenced by a group of litigants or a section of the community.
In my view, there is a real danger in allowing applications of this nature every time a litigant loses an interlocutory application. The system of case-flow management that the National Court has established in its civil jurisdiction at Waigani is such that a Judge deals with all civil cases that are assigned to him from the date of filing to final disposition. He sits on every interlocutory application and gives judgment and makes interim orders. In the light of this, the potentiality of danger and chaos are enormous. Put it simply, there will be no Judges left in the country to deal with cases, if all Judges were to disqualify themselves because interim decisions made did not favour some litigants. That is the basis for my view that, disgruntled litigants and their lawyers losing interlocutory applications must not manipulate the judiciary and the justice system. It is a recipe for disaster that the judicial system of this country cannot afford.
Having expressed those views, I now refer to the applicable legal principles expressed by Gallop, J. in Trustees of Christian Brothers -v- Cardone at 350:
"On the one hand there are the repeated assertions of the courts that:
(a) Judges by their training and experience are able to bring a detached mind to the task: R -v- Leckie; Ex-parte Felman (1997) 18 ALR 93; 52 ALJR 155 at 160;
(b) Judges should not too readily accede to applications for disqualification whereby parties may effectively influence the choice of a Judge in their cause: Re JRL; Ex-parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; [1986] HCA 39; 66 ALR 239;
(c) Judges should resist from being driven from their courts by the conduct or assertion of parties. Raybos Australia Pty Ltd -v-Tectran Corp Pty Ltd (No.4) (1986) 6 NSWLR 674 at 689;
(d) Judges should not be disqualified because of the vigor with which they conduct proceedings, some degree of judicial intervention being necessary for the fair disclosure of their provisional views: Galea -v- Galea (1988) 19 NSWLR 263 at 278f. Re Keely; Ex-parte Ansett Transport Industries (Operations) Pty Ltd [1990] HCA 27; (1990) 94 ALR 1; 64 ALJR 495; and
(e) Judges should perform the duties of their office which, of their nature, will often be painful and unrewarding. They should do so with courage and decisiveness, avoiding the relinquishment of such duties which would necessarily then fall to another judicial officer for whom the task may be more congenial: Raybos Australia Pty Ltd -v- Tectran Corp Pty Ltd. (No.9) (unreported)."
His Honour also referred to Livesey -v- New South Wales Bar Association (supra), a decision of the High Court of Australia which formulated the test in determining whether a judicial officer ("a Judge") is disqualified by reason of the appearance of bias as distinct from proved actual bias. The test is set out at CLR 293-4 to be:
"Whether in all the circumstances a fair minded, lay observer with knowledge of the material objective facts "might entertain a reasonable apprehension that [the Judge] might not bring an impartial and unprejudiced mind to the resolution of the question" in issue."
In a dissenting judgment of Deane, J in the High Court of Australia in Webb -v- R [1994] HCA 30; (1994) 181 CLR 41 at 67-8; [1994] HCA 30; 122 ALR 41; he said at 68, after stating the principles from Livesey, that the test directly reflects its rationale, namely, that it is of fundamental importance that the parties to litigation and the general public have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice. He went further to say that the test is an objective one and the standard to be observed in its application is that of a hypothetical, fair minded and well informed lay observer.
Deane, J continued at CLR 74 by classifying into four distinct but somehow overlapping main categories, the doctrine of disqualification by reason of the appearance of bias. That statement of the law is a sound one, which in my view, is relevant and should be applied in Papua New Guinea. I quote it in full because I consider it to be of some persuasive reasoning.
"The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first [eg, a case where a dependent spouse or child has a direct pecuniary interest in the proceedings] and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third [eg, a case where a Judge is disqualified by reason of having heard some earlier case: see, eg, Livesey -v- NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288; Australian National Industries Ltd -v- Spedley Securities Ltd (in liq)(1992) 26 NSWLR 411] and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstances give rise to the apprehension of bias."
It is my humble opinion that these principles of law are quite relevant and applicable in the present case and to the circumstances of Papua New Guinea in the light of the trend that I have adverted to earlier. Pursuant to Schedule 2.4 of the Constitution, I would adopt and apply these principles as part of the National Court's duty in the development of our underlying law.
In the present case, I find that counsel for the plaintiff is not an "objective observer". Accordingly, he could not have held a fair and independent view in relation to the issue of bias. He was observed to be quite emotional about the decision that he could not accuse me of bias or prejudice. By the same token, I consider that Mr Saulep could not have been a right minded person either, in so far as the issue of bias was concerned, not when he was emotional. In my view, the plaintiff's counsel's convoluted manner in bringing this application was nothing more than a surmise and conjecture. It was based on emotions rather then genuine concerns, and it was raised by the counsel rather than members of the plaintiff company or members of the public. A counsel can never be an objective observer or a fair minded lay observer.
I am of the view that the conduct or assertion of the applicant and his counsel must be genuine and reasonable. It is quite irrational and unreasonable for a litigant to accuse a Judge of perceived or apprehended bias just because the Judge's decision in an interlocutory application went against him. The test is objective and the litigant must exercise some objective observations, in my view. It is a very serious matter, in my view, where a Judge is driven out of his Court by the unreasonable, emotive and non-objective view of a counsel. Furthermore, a Judge should not be disqualified because of the vigour, firmness and decisiveness he has conducted a case. The fact that he may have been very firm and vigorous in dealing with that case does not necessarily imply that he is biased or it can be inferred that there is apprehension of bias. For there are varied reasons which a Judge may say something which admonishes a litigant or his lawyer. I see no prejudice or bias in a Judge admonishing or criticising a litigant or his lawyer. Does the admonition or criticism amount to bias or apprehension of bias? I do not think so.
On the basis of the test in Livesey -v- NSW Bar Association (supra), Mr Saulep could not be a "fair minded, lay observer" for the same reasons that I have adverted to earlier. Furthermore, on the basis of the principles in Webb -v- R (supra), I consider that this application should fail. The doctrine of disqualification by reason of appearance of bias that Deane, J adverted to in his judgment is quite relevant and of persuasive value that I adopt here. In my view, when a litigant applies for disqualification of a Judge, he must be able to show all or any of the four main categories of disqualification discussed in that case. I consider that those principles are applicable in the present case.
I consider that an applicant must establish that, firstly, the Judge has some direct or indirect pecuniary or other interests. Secondly, he must show that the Judge, by his conduct, whether during the proceedings in Court or outside Court, has demonstrated by words or conduct that he may be biased. Thirdly, it must be shown that a Judge has some form or degree of association with a party in the litigation before him. Either the party is a relative, friend or someone, or an organisation that he closely and intimately associates with. And finally, an applicant must establish that the Judge has presided over an earlier case involving the same parties, or has been in possession of some prejudicial or inadmissible materials that are likely to influence his mind.
In applying all these principles here, I am of the opinion that there is no basis for my disqualification, and I refuse to disqualify myself from presiding over this matter. The plaintiff's application is therefore dismissed with costs.
I order the plaintiff to pay the costs of the defendants and the intervener.
______________________________________________________________
Lawyer for Plaintiff: Saulep Lawyers
Lawyer for First & Second Defendants: Pato Lawyers
Lawyer for Third & Fourth Defendants: Carter Newell
Lawyer for Intervener: Soi & Associates
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