Gelu v Sheehan [2011] PGNC 72; N4345 (8 July 2011)

N4345

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS 89 OF 2010

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW UNDER ORDER 16 OF THE NATIONAL COURT RULES

BETWEEN:

ZACHERY GELU
First Applicant

AND:

PAUL PARAKA
Second Applicant

AND:

MAURICE SHEEHAN, JUSTICE CATHY DAVANI and DON MANOA as former Commissioner and Commissioners respectively comprising the Commission of Inquiry into the management generally of public monies by the Department of Finance
First Respondents

AND:

SIR MICHAEL T. SOMARE, MP, Prime Minister & Appointing Authority of the Commission of Inquiry into the Department of Finance and as Chairman of the National Executive Council
Second Respondents

AND:

MANLY UA, Secretary to the National Executive Council
Third Respondent

AND:

MANASUPE ZURENOUC – Acting Chief Secretary to Government
Fourth Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent
Waigani: Thompson, AJ
2011: 8 July

JUDICIAL REVIEW - Practice and Procedure – application to have judge disqualify herself from hearing matter – reasons for reasonable apprehension of bias on the part of presiding judge – application opposed by respondents –judge named in previous proceeding issued by one of the applicants which was defended by Judge while still a lawyer –that first proceeding still pending – objective reasoning can dictate that judge may be predisposed to decide case now before her otherwise than on its merits – application to disqualify judge granted

Cases Cited:
Papua New Guinea

Fidelis Agai v. Buckly Yarume [1987] PNGLR 124
The State v. Peter Sari [1990] PNGLR 48
PNG Pipes Pty Ltd & Venigopal v. Mujo Sefa, Globes Pty Ltd & Ors [1998] SC 592
Boateng v. The State [1990] PNGLR 342
Gobe Hongu Ltd v. National Executive Council & Ors [1999] N1964
Application by Herman Joseph Leahy, SCR 34 of 2005
Sir Arnold Amet v. Peter Yama, SCR 50 of 2008
Pacific Equity & Investments Ltd v. Melanesian Trustees Services Ltd & Ors, CIA 19 of 2006

Overseas Cases

British American Tobacco Australia Services Ltd v. Claudia Jean Laurie & Ors 2011 HCA 2

Counsel

Mr Harvey Nii, for the Applicants
Mr Lai, for the Respondents

DECISION

8th July, 2011

1. THOMPSON AJ: On 6 March 2010 the 1st & 2nd Applicants commenced proceedings seeking judicial review of numerous decisions made by the Respondents, including the decision to appoint a Commission of Inquiry and the decisions made by that Commission of Inquiry in its Final Report. The Applicants obtained an ex parte Order on 6 March 2010 for interim injunctions restraining the Defendants from discussing, debating, publishing or implementing the Final Report, pending a determination of the application for leave to proceed by way of judicial review. On 16 March 2010 the Applicants filed an application for leave to proceed by way of judicial review, and for a continuation of the injunctions. On 25 May 2010 the Respondents filed an application to set aside the ex parte injunctions. On 11 June 2010 the Applicants filed an amended Originating Summons, Statement and Notice of Motion. Both applications were heard by Sevua, J on 16 June 2010, when his decision was reserved. He subsequently retired, without the decision being delivered.

2. On 8 June 2011, the proceedings came before Sawong, J and the parties agreed that their applications would have to be reheard. For that purpose, the proceedings were transferred to the Judicial Review Track, for mention before me. When the matter was mentioned on 15 June 2011, the Applicants indicated that they wanted me to disqualify myself, and I informed them that they would have to make a formal application in open court.

3. On 24 June 2011 the Applicants proceeded with a Notice of Motion for me to disqualify myself on the basis of a reasonable apprehension of bias. The application was opposed by the Respondents.

4. The basis of the application is that on 22 October 2007 the 2nd Applicant, Paul Paraka, instituted judicial review proceedings against the members of the Lawyers Statutory Committee and PNG Law Society, in which I was named as one of the Defendants. This application was heard in July 2008, and the decision was reserved, and has not yet been delivered. It was submitted that this raised an apprehension of bias which would prevent me from being seen to be fairly determining the proceedings now before me.

5. As a preliminary point, I note that those proceedings on OS 755 of 2007, are completely unrelated to the 1st Applicant. They only concern the 2nd Applicant, Paul Paraka. Accordingly, any alleged apprehension of bias against Mr. Paraka as a result of those proceedings, can not be applicable to the 1st Applicant. However, as the proceedings before me have been issued by the 1st and 2nd Applicants jointly, I am unable to determine them separately, so that if I can not hear the 2nd Applicant's case, I will also be unable to hear the 1st Applicant's case.

6. The law relating to applications for disqualification, is well settled in PNG. Those cases include Fidelis Agai v. Buckly Yarume, PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa & Ors, Gobe Hongu Ltd v. National Executive Council & Ors, the Application by Herman Leahy, Peter Yama & Ors v. Bank of South Pacific & Ors, and Sir Arnold Amet v. Peter Yama. The relevant principles are:

1. Judges should not too readily accede to applications for disqualification, whereby parties may effectively influence the choice of a judge in their cause.
   
2. Judges should resist being driven from their courts by the conduct or assertions of the parties.
   
3. A judge may disqualify himself in circumstances where a fair minded lay observer, with knowledge of the material 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.
   
4. A judge should disqualify himself by reason of apprehension of bias under one or more of the following principles, where it is demonstrated that firstly he has an interest in the case before him, which interest may be direct, indirect, pecuniary or otherwise. Secondly, by his conduct including public statements, whether such conduct is in the course of or outside the proceedings. Thirdly, where the judge through association or relationship either by himself, or his spouse or children, has a direct pecuniary interest in the case. Finally, disqualification by extraneous information where the judge had presided over an earlier case or has had some knowledge of prejudicial and inadmissible facts.
   
5. It is of fundamental importance in the administration of justice that litigants and the general public have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice so that the impartiality and the constitutional independence of the judiciary is not interfered with.
   
6. The test of an objective observer which was established by the Supreme Court in PNG Pipes Ltd & Or v. Mujo Sefo & Ors, should also include "a fair minded lay observer" as considered in Livesey v. New South Wales Bar Association.
   
7. An objective, fair minded lay observer is attributed with having some knowledge of the way in which lawyers and judges work.
   
8. The apprehension of bias must be based on reasonable, and not on fanciful, grounds.
   
9. General knowledge on the part of a judge of the subject matter of the legal proceedings, obtained in the course of previous employment, will not by itself give rise to a reasonable apprehension of bias in the event that the judge deals with that subject matter in a judicial capacity.
   
10. If a judge's knowledge of the subject matter of legal proceedings is contended to be the basis for apprehension of bias, there must be a real connection between the judge's knowledge and the issues for adjudication in those proceedings, for example, if the judge has expressed a prior opinion on the issues for adjudication.
    
11. In considering whether a reasonable apprehension of bias has been established, it is necessary to first identify the facts, matters and circumstances on the basis of which it is said that the 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 deciding the case on its merits.
    

7. The facts, matters and circumstances which the Applicants contend might lead me to decide this case other than on its merits, are contained in the Affidavits, and are:

1. December 2001 - A complaint was lodged with the Lawyers Statutory Committee by POSF against the 2nd Applicant ("PP").
   
2. February 2004 – another lawyer at White Young & Williams Lawyers ("WYW") of which I was then a partner, acted on behalf of the Eastern Highlands Provincial Government ("EHPG") in civil proceedings by EHPG against PP.
   
3. October 2004 – I ceased to be a partner.
   
4. November 2004 – LSC received a draft unsigned letter from EHPG dated February 2004 apparently drafted by WYW, making a complaint about PP, with no material attached.
   
5. December 2004 – PP informs LSC that the EHPG letter is not a genuine complaint as it is a defective unsigned and unsupported draft, so that he should not be required to respond to it. This is accepted by LSC, who confirms it is not a complaint, and no further action is taken.
   
6. May 2005 – PP obtains injunction restraining LSC from hearing POSF's complaint.
   
7. October 2007 – PP asks me to disqualify myself from hearing the POSF complaint.
   
8. October 2007 – I signed a letter from LSC to PP informing him that the LSC had rejected the request for disqualification.
   
9. October 2007 – PP issues proceedings on OS 755 of 2007 seeking judicial review of the decision refusing disqualification.
   
10. November 2007 – PP obtains leave and a stay of the decision.
    
11. July 2008 – The substantive review is heard and the decision is reserved, and still pending.
    

8. The logical connection between those facts, matters and circumstances and the apprehended deviation from deciding the case on its merits, is: A fair minded lay observer might think that because PP issued proceedings in 2007 in which I am named as a Defendant, which I defended, and which are still pending, I may be unable to fairly conduct the case which is now before me.

Applying the principles set out in the cases, it is not easy to see how the identified facts have a logical connection to a possible apprehension of bias. I do not have, and the Applicants do not allege that I have, any interest in the case before me, either pecuniary or otherwise. I have not, and nor has it been alleged that I have, heard any earlier case involving PP, either as a judge or as a member of the LSC. I do not have, and nor has it been alleged that I have, any knowledge of prejudicial or inadmissible facts concerning PP.

9. The Applicants submit that it is my conduct outside the proceedings now before me, which raises an apprehension of bias. That conduct is said to comprise the proceedings on OS 755 of 2010. This effectively extends the test laid down by the Courts, to include the conduct of the applicant, and not just the judge. The test as set out in the cases is where the judge demonstrates bias "by his conduct including public statements, whether such conduct is in the cause of or outside the proceedings". The Applicants say that it is the proceedings on OS 755 which constitute such conduct. However, it was the Applicant and not the judge, who issued those proceedings. It therefore seems to be the conduct of the party, and not the conduct of the judge, which is being alleged to have caused an apprehension of bias.

10. As was said by the Australian High Court in re JRL; ex parte CJL (1986) HCA 39, "Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duties 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 the judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."

11. In view of the history of the circumstances leading up to the 2007 proceedings and to these proceedings, I am conscious of the need to avoid being seen to be too readily driven from the hearing of this case.

12. The Applicants do not allege any, and there is no, connection between the 2007 proceedings and the proceedings now before me. Is it necessary that there be such a connection? The Applicants say no, because the mere existence of the proceedings is sufficient.

13. The Applicants acknowledge in their written submissions that the matters arising out of my former position on the LSC are not sufficient to establish an apprehension of bias in the proceedings now before me. However, they say that the fact that PP issued legal proceedings seeking my disqualification in those matters, is sufficient by itself to show an apprehension of bias.

14. PP's application on OS 755 of 2010 may be refused. This would mean that the refusal to disqualify me in the LSC matter was correct, and there would be no apprehension of bias in that matter. Alternatively, it may be granted, in which case it would be irrelevant, as I am no longer a member of the LSC and therefore can no longer hear the complaint. However, on the Applicant's argument, the outcome of the decision on OS 755 is not relevant. The only relevance is that the proceedings have been issued naming me as one of the Defendants, and I opposed them.

15. It is actually not clear if the applicants are saying that the mere issue by PP of the proceedings naming me as one of the Defendants is sufficient, or if it is the further fact that the proceedings were also defended, which raises the apprehension of bias. A decision maker who refused to disqualify himself on certain grounds, would be entitled to maintain his position in any subsequent legal challenge to the refusal to disqualify. If a defence of such proceedings was seen as raising an apprehension of bias, the party would succeed in driving the judge from his court, as the outcome of the proceedings would be irrelevant. I therefore understand their argument to be that defending the proceedings would not be evidence of possible bias in those proceedings, but would be evidence of possible bias in any other proceedings.

16. A fair minded observer is assumed to have knowledge of the relevant facts. It is relevant that the LSC matter is a complaint by a former client against PP which has never been heard or determined by me or any other member of the LSC, which has no connection to the case now before me, that I have never acted as a lawyer either for or against PP, have never expressed an opinion or made any decision on the subject of the case before me, and have no interest in the case before me. A fair minded observer looking at the 2007 proceedings would see that I am only named by reason of my position on the LSC.

17. In the Applicant's submissions, these facts are outweighed by the fact that PP has issued proceedings in which I am named as one of the Defendants, and that those proceedings have been defended. The Applicants say that a fair minded Papua New Guinean would look at things in a very simple way, and would think that this was enough for an apprehension of bias. This argument must rest on the basis that the average Papua New Guinean is not as sophisticated or knowledgeable about legal matters as the average observer referred to in the cases.

18. The Applicants' submission on this point seems to have been given some support by the way in which it was subsequently reported in the media. In the edition of The National newspaper on 27 June 2011, there were two articles on page 4. The widespread circulation of the newspaper in PNG is a matter of common knowledge, of which I am entitled to take judicial notice. This is of course not evidence of the truth of the contents – just that they have been circulated.

19. One article reported on this application, and included a statement that "Nii cited two earlier instances where Paraka and Thompson, in her previous role as a lawyer, had fought matters against each other. He said the fact that the matters were pending presented a case of reasonable perceived bias." This statement was not correct. I have never in my role as a lawyer acted against Paraka. The statement appears to be a misrepresentation of the argument which had been made, but the accuracy of a media report is not a ground for apprehension of bias. Unfortunately, on the same page, there was another article reporting on a case where a judge had disqualified himself from hearing a case, on his own initiative. The disqualification was made on the basis of some contact between the judge and one of the parties, even though the judge did not personally know that party.

20. The effect of juxtaposing those two reports could cause a fair minded observer to conclude that if there was apprehended bias in one case, where the judge did not even know the party, there would certainly be apprehended, and might even be actual, bias in the other case, where the judge and the party had "fought matters against each other". Although this is an unfortunate and unintended result, it is what a fair minded Papua New Guinean observer would have seen and taken into account.

21. I conclude from this that the "simple view" of the 2007 proceedings put forward by the Applicants not only could be, but has been, taken by a fair minded Papua New Guinean observer to raise an apprehension of bias. The fact that this view may not be well founded, is not relevant. The observer is not assumed to be in possession of all the details – only of the relevant facts. (See British American Tobacco Australia Ltd v. Peter Gordon & Anor). As the High Court said in that case,

"... the Judges making such decisions ... need to view the circumstances of claimed apparent bias as best to they can through the eyes of non-judicial observers. In so doing they will not have recourse to all the information that a judge or practising lawyer would have."

22. In the words of Lord Denning in Metropolitan Properties Co. Ltd v. Lennon (1969) 1QB577 cited with approval by the Supreme Court in the Application by Herman Leahy, "... the Court looks at the impression which would be given to the people". The people in Papua New Guinea are not as sophisticated or knowledgeable about legal proceedings, as those in other countries. Even if the Papua New Guinean observer had knowledge of all the facts and circumstances forming the basis of the 2007 proceedings, it is not fanciful to submit that those matters would carry little weight compared to the obvious fact that I have been named as a Defendant in proceedings brought by the 2nd Applicant, and had defended those proceedings, which were still pending. The impression given to the people by the 2007 proceedings and their defence, may well be that PP has "sued" me, I have defended his proceedings, that matter is still pending at the same time as I am now going to hear the case before me brought by PP, and that I may therefore not decide this case fairly. The simple Papua New Guinean observer's view in this case, as put forward by the Applicants, is not so unreasonable that it crosses the line to being regarded as merely fanciful.

23. I consider that a reasonable fair minded Papua New Guinean observer might form the view that because I was named in the 2007 legal proceedings issued by the 2nd Applicant, that I defended those proceedings, and they are still pending, I may be predisposed to decide the case now before me, otherwise than on its merits.

24. Accordingly, the application for me to disqualify myself is granted.
Costs are to be costs in the cause.

___________________________________
Harvey Nii Lawyers: Lawyers for the Applicants
Solicitor – General: Lawyers for the Respondents