N4713

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1121 OF 2010

BETWEEN:

TZEN PACIFIC LIMITED
Plaintiff

AND:

INNOVEST LIMITED
Defendant

Waigani: Hartshorn J.
2012: 19th April
: 28th June

Application for disqualification of a judge – apprehension of bias – judge had made two previous decisions in favour of the plaintiff

Facts:

Mr. George Kaore, a contemnor in this proceeding, seeks the disqualification of Hartshorn J. from hearing a notice of motion seeking orders for contempt as he contends that there is a likelihood that Hartshorn J. will be influenced by recent decisions he has have made in favour of the plaintiff and applicant for the contempt orders, Tzen Pacific Ltd.

Held:

1. To successfully demonstrate a reasonable apprehension of bias, an applicant should properly identify the facts, matters and circumstances by reason of which it is said that the proceeding would be decided other than on merit; and secondly should 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. Bank South Pacific Ltd (2008) SC921, Pacific Equities & Investments Ltd v. Teup Goledu & Ors (2008) N3400, Ebner v. Official Trustee in Bankruptcy [2000] HCA 63 and Smits v. Roach [2006] HCA 36 followed.

2. The submissions made on behalf of Mr. Kaore and Mr. Luk and the evidence filed by Mr. Kaore have failed on both counts referred to, and so have failed to demonstrate a reasonable apprehension of bias.

Cases cited: 
Papua New Guinea Cases

PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592 
Kwimberi of Paulus Dowa Lawyers v. State [1998] SC545
Peter Yama v. Bank South Pacific Ltd (2008) SC921 
Pacific Equities & Investments Ltd v. Teup Goledu & Ors (2008) N3400 

Overseas Cases

Re JRL; Ex parte CJL [1986] HCA 39 
Ebner v. Official Trustee in Bankruptcy [2000] HCA 63 
Johnson v Johnson [2000] HCA 48
Porter v. Magill [2002] 2 AC 357 
Bienstein v. Bienstein [2003] HCA 7 
Smits v. Roach [2006] HCA 36
Saxmere Company Ltd & Ors v. Wool Board [2010] 1 NZLR 35 
British American Tobacco Australia Services Ltd v. Laurie [2011] HCA 2 
MTI v. SUL [No. 2] [2012] WASCA 87
Lashansky v. Legal Practice Board of Western Australia [2012] WASCA 77

Counsel:

Mr. F. Griffin, for the Plaintiff
Mr. G. Kaore, in person, a contemnor
Ms. Waviha, for Mr. Hii Yii Luk, a contemnor

28th June, 2012

1. HARTSHORN J: Mr. George Kaore, a contemnor in this proceeding, seeks that I be disqualified from hearing the contempt proceedings. By that Mr. Kaore is referring to the plaintiff's notice of motion that seeks that five persons including Mr. Kaore be punished for contempt of court orders made in this proceeding.

2. The reason why Mr. Kaore seeks my disqualification is that he contends that there is a likelihood that I will be influenced by recent decisions I have made in favour of the plaintiff, and applicant for the contempt orders, Tzen Pacific Ltd.

3. Counsel for Mr. Hii Yii Luk, another contemnor, supports the application of Mr. Kaore and submits that because I made the recent decisions that I have in favour of Tzen Pacific Ltd, there is an apprehension of my bias towards Tzen Pacific Ltd.

4. Tzen Pacific Ltd opposes the application for my disqualification.

5. The recent decisions that I have made in support of Tzen Pacific Ltd to which Mr. Kaore and Mr. Luk refer are:

a) a decision made in this proceeding on 19th November 2010 by which I entered default judgment in favour of Tzen Pacific Ltd as the defendant Innovest Ltd had not filed its defence in time. The orders granted included an order restraining Innovest Ltd, its employees, agents and servants from interfering or dealing with Aria Vanu Block Timber Company Ltd including its servants, agents and employees.

b) a decision of the Supreme Court in appeal SCA 17/11. I was a member of the Court that allowed an appeal by Tzen Pacific Ltd. As a result of the appeal being allowed, the respondents to the appeal which included AriaVanu Timber Company Ltd and its employees, agents and servants were restrained from preventing Tzen Pacific Ltd from conducting its logging operations within Aria Vanu Block 3 Project in West New Britain Province. 

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. I note that now the law as to apprehended bias in respect of a judge is similar in the United Kingdom, Australia, New Zealand and this jurisdiction: Saxmere Company Ltd & Ors v. Wool Board [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. 

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 cases where the allegation is that the apprehension of bias arises because a judge has presided over an earlier 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.

10. 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 prejudgement and this must be "firmly established".

11. The contention of Mr. Kaore that I might be influenced by my two previous decisions concerning Tzen Pacific Ltd is not a valid reason for my disqualification. I will consider Mr. Kaore's contention as being that because of my two previous decisions concerning Tzen Pacific Ltd there is a reasonable apprehension of my bias. The contentions of Mr. Kaore and Mr. Luk that my two previous decisions give rise to a reasonable apprehension of bias are not supported by evidence. 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 (supra).

12. It was further contended that the contempt proceeding concerns an alleged breach of the restraining order that I made and that pursuant to a passage in Kwimberi of Paulus Dowa Lawyers v. State [1998] SC545, I should disqualify myself. The relevant passage in Kwimberi (supra) refers to a situation where "the contemptuous behaviour is one of personal affront to, scandalous of or criticism of to the judge concerned." That passage is referring to contempt in the face of the court. As far as I am aware, the alleged contempt the subject of the contempt proceeding, is not one of personal affront to me, does not involve adverse criticism of me and is not alleged to be contempt in the face of the court.

13. Further, it is contended that the Supreme Court order that I delivered with my brother judges affected the defendant company dealing with a Resource Owner Company, Aria Vanu Timber Company Limited. Again this is not evidence that provides a foundation for a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the hearing and determination of the contempt proceeding.

14. To successfully demonstrate a reasonable apprehension of bias by me such that I should be disqualified from hearing this proceeding, Mr. Kaore 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 (supra), Smits v. Roach [2006] HCA 36. The submissions made on behalf of Mr. Kaore and Mr. Luk and the evidence filed by Mr. Kaore have failed on both of the counts referred to above and so have failed to demonstrate a reasonable apprehension of my bias in this instance.

15. Mr. Kaore is not entitled to the relief that he seeks. The relief sought in the notice of motion of Mr. Kaore filed 28th March 2012 is refused. The costs of and incidental to the application are to be paid by Mr. Kaore to the plaintiff.

___________________________________________________________
Young & Williams Lawyers: Lawyers for the Plaintiff 
Mr. Kaore in person
Waviha Lawyers: Lawyers for Mr. Hii Yii Luk