N5675

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 14 OF 2014

BETWEEN:

PASTOR STEVEN BAGARI & six others whose names appear in the schedule 'A' to this Writ
First Plaintiffs

AND:

GEDI DABU – President of Kiwai Local Level Government
Second Plaintiff

AND:

BENZES KUDI ALUSI – President of Oriomu Bituri Local Level Government
Third Plaintiff

AND:

HON. JAMES MARAPE, Minister for Finance
First Defendant

AND:

SCHADRACH HIMATA, Secretary for Mining
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:

OK TEDI MINING LIMITED
Fourth Defendant

AND:

PNG SUSTAINABLE DEVELOPMENT LIMITED
Fifth Defendant

AND:

OK TEDI DEVELOPMENT FOUNDATION LIMITED
Sixth Defendant

AND:

BANK SOUTH PACIFIC
Seventh Defendant

AND:

ANZ BANK LIMITED
Eighth Defendant

Waigani: Hartshorn J.,
2014: April 4th, May 12th

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 
Yama v. Bank South Pacific Ltd (2008) SC921 
Pacific Equities & Investments Ltd v. Goledu (2008) N3400
Tzen Pacific Ltd v. Innovest Ltd (2012) N4713 

Overseas Cases

British American Tobacco Australia Services Ltd v. Laurie [2011] HCA 2
Bienstein v. Bienstein [2003] HCA 7 

Ebner v. Official Trustee in Bankruptcy [2000] HCA 63
Johnson v Johnson [2000] HCA 48
Lashansky v. Legal Practice Board of Western Australia [2012] WASCA 77
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 [2010] 1 NZLR 35
Sengupta v. Holmes [2002] EWCA Civ 1104
Smits v. Roach [2006] HCA 36 

Counsel:

Mr. A. Baniyamai, for the Plaintiffs
Ms. T. Nonggorr, for the First Defendant
Mr. A. Mana, for the Second and Third Defendants
Mr. T. Anis, for the Eighth Defendant

12th May, 2014

1. HARTSHORN J: The plaintiffs' make application for me to be disqualified from presiding over the matter herein or this proceeding. It is supported by the first defendant and opposed by the second and third defendants. The application is made pursuant to Order 12 Rule 1 National Court Rules and the inherent powers of the court.

Background

2. The plaintiffs' claim substantively, declaratory relief to the effect amongst others, that certain Community Mine Continuation Agreements are unenforceable, null and void and are of no effect, that the continuous dumping of mine waste and tailings into the Ok Tedi and Fly River systems is in breach of the Mining and Environment Acts and is unlawful, that certain trust deeds and trust bank accounts are null and void and that certain trust funds are payable to the plaintiffs and others. In addition, orders are sought that certain compensation funds are paid to the plaintiffs' and that a permanent injunction issue against the fourth defendant Ok Tedi Mining Ltd (OTML) from operating the Ok Tedi mine until a proper waste dump or tailings dam is constructed and built to contain its waste and tailings.

Disqualification application

3. The plaintiffs' seek that I be disqualified as they contend that there is an apprehension of my bias. This is presumed primarily on my conduct in this matter, by comments made by another judge that I may have a conflict of interest and upon the following factors:

a)	the manner in which this proceeding was referred to the Commercial List and how I have dealt with the matter since;

b)	that I have made certain statements in my ruling granting a stay of the ex parte orders made on 24th January 2014 by Salika DCJ (ex parte orders) and so am predisposed to a certain view on issues concerning the balance of convenience;

c)	that I heard the stay application in the absence of some of the parties, especially OTML but granted a stay that directly affects OTML;

d)	that I proceeded to hear the stay application when there were two applications for leave to appeal filed in the Supreme Court emanating from this proceeding;

e)	my conduct and views in respect of the lawyers' for the plaintiffs' in another proceeding;

f)	that I may believe that the plaintiffs' were involved in the publication of an article that was adverse to my ruling on the stay application.

4. The first defendant submits that I should be disqualified from hearing the application to set aside the ex parte orders, if not the proceeding, as there is an apprehension of my bias for the reasons advanced by the plaintiffs' and also as:

a)	an application to set aside an ex parte order should be heard by the judge that made the order. As this did not occur, reasons should have been given in my ruling on the stay application as to how I had jurisdiction to hear the stay application;

b)	the matter was not urgent enough for other judges to hear the matter and Davani J had decided that she would hear the matter on 6th March 2014;

c)	the non-compliance with orders by OTML was not taken into account in my consideration of the balance of convenience when determining the stay application;

d)	the evidence of Mr. Nigel Parker, the Managing Director of OTML relied upon by the second and third defendants' in the stay application, being accepted.

5. The second and third defendants' oppose the application for my disqualification as:

a)	the application has been made late, given that the plaintiffs' were invited by this court at an early stage to make any disqualification application but they did not do so until after the ruling on the stay application;

b)	Salika DCJ who made the ex parte orders, and Sakora J, the judge assigned to Common Law - Civil Court Four, the court to which this court file was originally allocated or listed, were both unavailable to hear the matter. The court file then went before Davani J. Davani J was unable to hear the matter until 6th March 2014 and so allocated the matter to me because of its urgency. There was no impropriety involved in the court file being allocated to me to hear.

c)	most of the evidence of the lead plaintiff, Pastor Bagari is not within his personal knowledge and he would not have been aware of the prior proceeding to which his counsel referred;

d)	most of the grounds relied upon by the first defendant are more appropriately grounds of appeal and not for my disqualification;

e)	my consideration of the balance of convenience was necessary in determining the stay application and could not have been avoided;

f)	the applications for leave to appeal have not been served upon the second and third defendants' and no stay has been granted precluding the hearings before me.

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 [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"…. 

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."

11. 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."

Contentions
12. The facts, matters and circumstances which it is contended that might lead me to decide matters other than on their legal and factual merits in summary are that:

a)	upon an enquiry made towards the end of the court vacation from counsel for the second and third defendants, Mr. Mana, in open court as to whether I would hear an application, I said that I would, if the file was available. Counsel for the other parties in the proceeding were not present when the enquiry was made;

b)	Davani J stated on 13th February 2014 in open court that there was a strong possibility that I might have a conflict of interest with one of the parties in this proceeding;

c)	counsel for the second and third defendants' alleged persistence in having the matter brought before me and applying before me to deal with the matter as a commercial matter purportedly in breach of the National Court Rules;

d)	I dealt with the matter on the 20th and 26th February 2014 in the absence of some of the parties, especially OTML;

e)	in my ruling on the application for a stay I considered the balance of convenience and in so doing expressed views concerning the financial capacity of the State, the inadequacy of the plaintiffs' undertakings as to damages, the prejudice suffered by the plaintiffs' and defendants' and that the discharge of mine waste into the Fly River system has been performed in the way that it has for many years;

f)	my conduct in hearing and granting the application to stay in the absence of some of the parties and granting a stay against one of the orders that directly affected OTML when it did not apply for the stay;

g)	the applications for leave to appeal are against my decisions to transfer the matter to the commercial list and to stay the ex parte orders, and raise jurisdictional, abuse and breach issues;

h)	my conduct and views concerning the plaintiffs' lawyers in a previous case WS 474/12, and an award of costs on an indemnity basis against Mr. Jubi.

i)	the publication of an article that was adverse to my ruling on the stay application;

j)	I did not give reasons in my ruling on the stay application as to how I had jurisdiction to hear the stay application and an application to set aside ex parte orders instead of the Judge who made the ex parte orders;

k)	the matter was not sufficiently urgent for other judges to hear it and Davani J had adjourned the matter to be heard on 6th March 2014;

l)	the alleged non-compliance with orders by OTML was not taken into account in my consideration of the balance of convenience when determining the stay application;

m)	the evidence of Mr. Nigel Parker, the Managing Director of OTML relied on by the second and third defendants, being accepted.

13. The logical connection between the above facts, matters and circumstances and the supposed deviation from deciding the matter on its merits, if I understood correctly, is contended on behalf of the plaintiffs' and the first defendant to be that an objective fair minded lay observer might think that:

a)	as I said that I would hear an application if the file was available in circumstances where an enquiry was made in open court in the absence of counsel for the other parties, I may be predisposed to find in favour of the second and third defendants' in this proceeding;

b)	as Davani J stated in open court that there was a strong possibility that I might have a conflict of interest with one of the parties, I may be predisposed to find in favour of the second and third defendants' in this proceeding;

c)	as counsel for the second and third defendants was allegedly persistent in having the matter brought before me and applied before me to deal with the matter as a commercial matter purportedly in breach of the National Court Rules, I may be predisposed to find in favour of the second and third defendants' in this proceeding;

d)	as I dealt with the matter on the 20th and 26th February 2014 in the absence of some of the parties, especially OTML, I may be predisposed to find in favour of the second and third defendants' and OTML in this proceeding;

e)	as I considered the issue of balance of convenience and expressed views concerning the financial capacity of the State, the inadequacy of the plaintiffs' undertakings as to damages, the prejudice suffered by the plaintiffs' and defendants' and that the discharge of mine waste into the Fly River system has been performed in the way that it has for many years, I have formed a view on those issues and that I may be predisposed to a certain view on those issues and the matter generally, in favour of the second and third defendants' and OTML in this proceeding;

f)	as I heard and granted the application for stay in the absence of some of the parties and granted a stay against one of the orders that directly affected OTML, when it did not apply for a stay, I may be predisposed to find in favour of the second and third defendants' and OTML in this proceeding;

g)	as the applications for leave to appeal filed in the Supreme Court are against my decisions to transfer the matter to the commercial list and to stay the ex parte orders, and raise jurisdictional, abuse and breach issues, it is best that I disqualify myself;

h)	as I expressed views concerning the plaintiffs' lawyers in a previous case and awarded costs on an indemnity basis against Mr. Jubi, I may be predisposed to find against the plaintiffs' in this proceeding;

i)	as there has been a publication that was adverse to my ruling on the stay application, there is the possibility that I may form the view that the plaintiffs' were involved in the publication and I may be predisposed to find against the plaintiffs' in this proceeding;

j)	as I did not give reasons in my ruling on the stay application as to how I had jurisdiction to hear a stay application and an application to set aside the ex parte orders instead of the judge who had made the ex parte orders, I may be predisposed to find against the plaintiffs' in this proceeding;

k)	as the matter was not sufficiently urgent for other judges to hear it and Davani J adjourned the matter to be heard on 6th March 2014 yet I heard it earlier, I may be predisposed to find in favour of the second and third defendants' and OTML in this proceeding;

l)	as I did not take into account the purported non compliance with orders by OTML in my consideration of the balance of convenience when determining the stay application, I may be predisposed to find in favour of the second and third defendants' and OTML in this proceeding;

m)	as I accepted some of the evidence of Mr. Nigel Parker, the Managing Director of OTML, I may be predisposed to find in favour of the second and third defendants' and OTML in this proceeding.

Consideration
14. As to the contention in paragraph 13 (a) above, the enquiry was made of me by counsel during the court vacation. I was one of the vacation judges at that time and was ready to hear any matter. That I heard the enquiry from counsel, in the absence of other counsel is not an indication that I would have heard the matter ex parte or that I would be predisposed to find in favour of the second and third respondents. I reject the contention in paragraph 13 (a).

15. As to the contention in paragraph 13 (b) above, the statement by Davani J is of her belief. Her Honour did not elaborate as to why she held that belief. In Yama v. Bank South Pacific (supra), the Court at para 26 was of the view that:

"…. in an application for disqualification, it is the actions of the Judge in question that are critical, not the actions of the litigant complaining."

16. Similarly, the contention here concerns the statement and belief of someone other than me, the judge in question, and does not concern my actions. I reject the contention in paragraph 13 (b).

17. As to the contention in paragraph 13 (c), if counsel for the second and third defendants' was persistent in having the matter brought before for me, why does that lead to the contention that I may be predisposed to find in favour of the second and third defendants'? I did not cause the court file to be allocated to me. It can be assumed that if counsel wanted the court file to be allocated to me it was because he was to make an application for the matter to be transferred to the commercial list, which he did, or merely because he was aware that I was available to hear the matter when other judges were not. I reject the contention in paragraph 13 (c).

18. As to the contention in paragraph 13 (d); that I dealt with the matter on 20th and 26th February in the absence of some of the parties was because of the urgency of the matter. I note that on 20th February all outstanding matters were adjourned by consent for hearing at 9.00am on 26th February 2014. I reject the contention in paragraph 13 (d).

19. As to the contention in paragraph 13 (e); I did consider the issue of the balance of convenience and expressed views concerning the financial capacity of the State, the inadequacy of the plaintiffs' undertaking as to damages, the prejudice suffered by the plaintiffs' and defendants' and that the discharge of mine waste into the Fly River system had been performed in the way that it has for many years. It was necessary for me to consider these matters to properly determine whether a stay should be granted. That I have expressed the views that I have on the above issues, in the absence of evidence to the contrary, does not lead in my view to the contention that I may be predisposed to a certain view on those issues and the matter generally in favour of the second and third defendants and OTML.

20. There is no evidence to suggest, and I am not of the view that my decision on the stay application gives rise to, an apprehension that I will approach the remainder of the proceeding with a closed mind. In this regard I refer to a statement by French CJ in a minority decision of the High Court of Australia decision of British American Tobacco Australia Services Ltd v. Laurie (supra). His Honour 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."

21. I also take the liberty of repeating part of the statement of Mason J in Re JRL; ex parte CJL (supra):

"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"…. 

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."

22. Further, in the English Court of Appeal case of Sengupta v. Holmes [2002] EWCA Civ 1104, Laws LJ stated as to the likelihood of the conduct of a judge in making a preliminary ruling giving rise to an apprehension of bias, the following:

"There may also be cases, though one hopes there will not be, in which a judge called on to make a preliminary decision expresses himself in such vituperative language that any reasonable person will regard him as disqualified from taking a fair view of the case if he is called on to revisit it. ……… But the ordinary case is far from those instances. It is the kind that has happened here: the judge in question has not himself had to resolve the cases factual merits, and has not expressed himself incontinently."

23. As the expression of my views was in a decision on a stay application, they were necessary in a consideration of the balance of convenience and could not be considered to have been expressed in vituperative language. 

24. In this regard, I also refer to the decision of Sevua J. in Gobe Hongu v. National Executive Council & Ors (1999) N1964 where 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 (2008) N3400, where 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. 

25. For the above reasons I reject the contention in paragraph 13 (e).

26. As to the contention in paragraph 13 (f), I dealt with the stay application in the absence of some of the parties because of the urgency of the matter. As to the orders, those granted were those sought. I reject the contention in paragraph 13 (f).

27. As to the contention in paragraph 13 (g), I was informed at the time by counsel that no stay had been issued by the Supreme Court and so the court was able to proceed with the applications. I reject the contention that I should have disqualified myself merely because applications for leave to appeal my decisions had been filed.

28. As to the contention in paragraph 13 (h), the previous case referred to raised different issues and both counsel for the plaintiffs' had different roles and capacities in that case. There is no evidence of any statement or action by me to demonstrate any prejudice towards counsel for the plaintiffs' such that I may be predisposed to find against the plaintiffs in this proceeding. I reject the contention in paragraph 13 (h).

29. As to the contention in paragraph 13 (i), as I referred to above, in Yama v. Bank South Pacific (supra), the Court at para 26 was of the view that:

"…. in an application for disqualification, it is the actions of the Judge in question that are critical, not the actions of the litigant complaining."

30. I am not at all to be taken as suggesting that any of the parties to this proceeding are responsible for the publication. Whoever is responsible for the publication is not presently known. This contention though concerns a publication by someone other than me, the judge in question. The contention does not concern my actions. 

31. Further, at para 27 of Yama (supra), the Court said: 

"It is not the law that a Judge should disqualify himself because a litigant has been or continues to be adversely critical of him even to the point of being defamatory and contemptuous, in unrelated matters."

32. This statement in Yama (supra), in my view, also applies to the present circumstance where the publisher is not known. I reject the contention in paragraph 13 (i).

33. As to the contention in paragraph 13 (j), when I heard and then delivered my decision on the stay application, I had already determined that this matter was properly before me as it had been referred to me by the Civil Judge Administrator, Davani J. Further, I had ordered that the matter be transferred to the commercial list after a successful application by the second and third respondents'. I reject the contention in paragraph 13 (j).

34. As to the contention in paragraph 13 (k), I did not cause the matter to be transferred to me by Davani J. I reject the contention in paragraph 13 (k).

35. As to the contentions in paragraphs 13 (l) and 13 (m) these contentions are more properly to be raised on appeal. In the absence of evidence to the contrary I reject the contentions in paragraphs 13 (l) and 13 (m) that I may be predisposed to find in favour of the second and third defendants' and OTML.

36. As I have rejected the various contentions of the plaintiffs' and the first defendant, the relief sought by the plaintiffs' should be refused. Given this it is not necessary to consider the other submissions of counsel. 

Orders
37. The Orders of the Court are:

a)	the relief sought in the plaintiffs' notice of motion filed 14th March 2014 is refused.

b)	the plaintiffs' shall pay the costs of the second and third defendants' of and incidental to the notice of motion.

c)	time is abridged.

_____________________________________________________________
Baniyamai Lawyers: Lawyers for the Plaintiffs 
Twivey Lawyers: Lawyers for the First Respondent 
Allens Lawyers: Lawyers for the Second and Third Respondents 
Bradshaw Lawyers: Lawyers for the Eighth Respondent