Danaya v Wobiro [2014] PGNC 31; N5674 (14 May 2014)

N5674

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP 70 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF A DISPUTED RETURN FOR THE WESTERN PROVINCIAL ELECTORATE IN THE 2012 GENERAL ELECTIONS

BETWEEN:

DR. BOB TAWA DANAYA
Petitioner

AND:

ATI WOBIRO
First Respondent

AND:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J.
2014: March 4th
: May 14th

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
Yama v. Bank South Pacific Ltd (2008) SC921
Tzen Pacific Ltd v. Innovest Ltd (2012) N4713

Overseas Cases

Bienstein v. Bienstein [2003] HCA 7
British American Tobacco Australia Services Ltd v. Laurie [2011] HCA 2
Ebner v. Official Trustee in Bankruptcy [2000] HCA 63
Edwards v. Santos Ltd (No 3) [2011] FCA 886
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
Northern NSW FM Pty Ltd v. Australian Broadcasting Tribunal (1990) 26 FCR 39
Porter v. Magill [2002] 2 AC 357
Re JRL; Ex parte CJL [1986] HCA 39
Saxmere Company Ltd & Ors v. Wool Board [2009] NZSC 72; [2010] 1 NZLR 35

Counsel:

Mr. A. Furigi, for the Petitioner
Mr. G. Gileng, for the First Respondent
Mr. M. Kuma, for the Second Respondent

14th May, 2014

1. HARTSHORN J: The petitioner makes application for my disqualification from hearing the trial of the petition for the Western Provincial Seat for the 2012 National General Election. The application is opposed by both respondents.

Background

2. The petitioner disputes the election of the first respondent as the Member for Parliament for the Western Provincial Electorate in the 2012 General Election. On 5th March 2013, after hearing objections to competency by the two respondents, I dismissed the petition. On 4th November 2013 the Supreme Court quashed the dismissal and reinstated and remitted this petition to the Judge Administrator, Election Petitions. On 5th December 2013, the petition was adjourned by the Judge Administrator to me. I then heard the petitioner's application for my disqualification.

Preliminary

3. The first respondent objects to the notice of motion as it does not contain a concise reference to the court's jurisdiction to grant the orders sought. As far as I am aware, there is no similar requirement in the National Court Election Petition Rules for such a reference to be contained in a notice of motion, as there is in Order 4 Rule 49 (8) National Court Rules. As the National Court Rules do not apply in this instance, this objection is rejected.

Application to disqualify

4. I will consider this application pursuant to the inherent powers of the court.

5. The petitioner contends that as an objection to competency has already been heard by me, and I found against the petitioner, there could be a reasonable apprehension of pre-judgment by me against the petitioner if I continue to hear the petition.

6. Specifically, the petitioner contends that in my decision in which I found against the petitioner, I alluded to s. 208 (a) Organic Law on National and Local Level Government Elections (Organic Law), and the respondents are to raise competency issues concerning that section. Having already alluded to that section, the petitioner contends that I have already formed an opinion on issues concerning that section and therefore should not continue to hear the petition.

7. The petitioner submits that he does not contend that I be disqualified because of any prior association that I may have had with either of the respondents or because of any conduct by me that leads to a reasonable apprehension of bias.

8. The respondents' oppose the application for my disqualification as:

a) a judge should not readily accede to an application for his disqualification and to seek a judge's disqualification is a serious matter;

b) there is no factual foundation to the application and it is based on an assumption only;

c) in my decision dismissing the petition, I only considered issues concerning s. 208 (d) Organic Law and did not consider any others, thus my statement, "Given this finding it is not necessary to consider the other submissions of counsel."

Law

9. The petitioner relies upon the decision of the Full Court of the Federal Court of Australia: Northern NSW FM Pty Ltd v. Australian Broadcasting Tribunal (1990) 26 FCR 39, at 42-43. In the context of a remittal of a matter to a tribunal the Court said:

"If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing. The aggrieved party may think that a rehearing before the Tribunal as originally constituted could be worthless, for the member's views have been stated."

The petitioner also cited the following passage from Northern NSW FM (supra) at 43:

"Justice is in general better seen to be done if the Court or tribunal is reconstituted for the purpose of the rehearing".

10. In Edwards v. Santos Ltd (No 3) [2011] FCA 886, Logan J clarified the practice referred to in Northern NSW FM (supra), at para 41:

"In the context of appeals from or the judicial review of decisions of administrative tribunals, this Court does follow a practice described in the Northern NSW FM Case. Usually, any remitter order is cast in general terms, remitting the case to the tribunal for hearing and determination according to law. In the absence of cause, to do otherwise can be seen to be an unwarranted interference with the task of administration of that tribunal consigned by its governing statute to its president. The position though is different if there is some special feature of the decision which was under challenge which makes it at least desirable, if not necessary, that the tribunal be or not be differently constituted. In such cases, and especially when a party is legally represented, the expectation is that attention will be drawn ideally in the course of submissions and certainly no later than the making of final disposition orders to any special feature. The reason for that is obvious. It avoids controversy in respect of apprehended bias if, after remitter, the tribunal is constituted as before."

Apprehended bias
11. Notwithstanding that the petitioner submits that it is not contended that there is a reasonable apprehension of my bias because of my conduct, by contending that there is a reasonable apprehension of pre-judgment, he is contending that there does exist a reasonable apprehension of bias.

12. 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."

13. 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 [2009] NZSC 72; [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.

14. 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""

15. 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."

16. 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."

17. 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."

18. In this instance the only facts, matters and circumstances which it is contended that might lead me to decide matters other than on their legal and factual merits are that:

a) I have already heard and found against the petitioner in an objection to competency;

b) I alluded to s. 208 (a) Organic Law in my decision and so have formed an opinion on issues concerning that section.

19. The logical connection between the above facts, matters and circumstances and the supposed deviation from deciding the petition on its merits, if I understand correctly, is contended on behalf of the petitioner to be that an objective, fair minded, lay observer might think that:

a) as I have already found against the petitioner in this petition, I may be predisposed to find in favour of the respondents in this petition;

b) as I have alluded to s. 208 (a) Organic Law in my decision I have formed an opinion on issues concerning that section and I may be predisposed to find in favour of the respondents in this petition.

Consideration
20. As to the contention in paragraph 19 (a) above, notwithstanding that I have already found against the petitioner in this proceeding, that was in relation to s. 208 (d) Organic Law. I did not find against the petitioner on any other issue. The present scenario can be distinguished from the one referred to in Northern NSW FM (supra). That case concerned a remittal of a matter to a tribunal as distinct from a court. Secondly, the reason given in Northern NSW FM (supra) for remitting a matter to a differently constituted tribunal; that a member constituting the tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing; is not the position here. There is no evidence that I have expressed a view upon facts which will have to be determined in the petition or indeed on other objections to competency apart from s. 208 (d) Organic Law. There is no basis for the petitioner to think that a rehearing or continuation of the hearing of his petition before me "could be worthless" as my views have not been stated. I reject the contention in paragraph 19 (a).

21. As to the contention in paragraph 19 (b) above, I did not consider s. 208 (a) Organic Law, only s. 208 (d) in my decision. I specifically stated after only considering s. 208(d) that, "Given this finding it is not necessary to consider the other submissions of counsel." I reject the contention that I have formed an opinion on issues concerning s. 208 (a) and reject the contention in paragraph 19 (b).

22. As I have rejected the contentions of the petitioner, the relief sought by him should be refused.

Orders

23. The Orders of the Court are:

a) the relief sought in the petitioner's notice of motion filed 3rd February 2014 is refused;

b) the petitioner shall pay the costs of the respondents' of and incidental to the notice of motion.
_____________________________________________________________
Furigi Lawyers: Lawyers for the Petitioner
Posman Kua Aisi Lawyers: Lawyers for the First Respondent Parua Lawyers: Lawyers for the Second Respondent