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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 1118 OF 2018
BETWEEN:
HOWARD MALISO
As Acting Ombudsman at all relevant times
Plaintiff
AND:
THE OMBUDSMAN COMMISION OF PAPUA NEW GUINEA
First Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
Waigani: Tamade, AJ
2022: 7th April, 10th June
PRACTICE & PROCEDURE – Application to disqualify Judge – Apprehension of bias – plaintiff suggests an innuendo to remarks made by Judge during the hearing – plaintiff alleges that Judge had pre-determined his case – lack of evidence establishing allegation – Application refused.
BIAS – apprehension of bias – test to apply in an application to disqualify a judge from hearing a matter based on an apprehension of bias is an objective test – no reasonable perception that judge has had pre-determined plaintiff’s case – Refusal of application.
Cases Cited
The following case is cited in the judgment:
PNG Pipes Pty Limited and Venugopal v Sefa, Globes Pty Limited and Macasaet [1998] PGSC 52; SC592
Gobe Hongu Ltd v National Executive Council [1999] PGNC 115; N1964
Olga v Wimb [2013] PGNC 106; N5321
Counsel:
Mr. Howard Maliso, Plaintiff in Person
Mr. Mathew Kik, for the First Defendant
10th June, 2022
“Mr Maliso is not a learned person in law. He is an accountant by profession and therefore his conduct in not naming the First Defendant may have been to serve him better however a litigant can not get to enjoy the fruits of his judgement through running proceedings without the knowledge of every party whose conduct he is aggrieved by. “The State can not be also used as a milking cow”, a phrase commonly used by our Courts. Direct tort feasors who fall under the ambit of the State should be specifically named to ensure they answer to such claims and properly assist the Court as all matters in dispute to ensure adequate resolution with all proper and relevant parties.”
Does Mr Maliso’s complaints amount to sufficient grounds for me to disqualify as a judge in this matter?
“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.”
“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 (1977) 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 being driven from their courts by the conduct or assertion of parties.
(d) Judges should not be disqualified because of the vigour with which they conduct proceeding.
(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 will necessarily then fall to another judicial officer for whom the task may be no more congenial: Raybos Australia Pty Ltd v. Tectran Corp Pty Ltd (No 9) (unreported).
It brings home this point: in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right- minded persons would think that, in the circumstances, there was a real 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:
There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: “The judge was bias.”
"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 [e.g., 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 [e.g., a case where a Judge is disqualified by reason of having heard some earlier case: see, e.g., 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."
“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.
...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.”
Orders accordingly.
________________________________________________________________
Mr Howard Maliso: Plaintiff In Person
The Ombudsman Commission In-House Lawyers: Lawyers for the First Defendant
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