Pruaitch v Manek [2011] PGSC 35; SC1134 (20 October 2011)

SC1134

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 74 OF 2011
&
SCA NO. 86 OF 2011

BETWEEN:

HON. PATRICK PRUAITCH MP
Applicant

AND:

CHRONOX MANEK, JOHN NERO & PHOEBE SANGETARI, Comprising the Ombudsman Commission
First Respondent

AND:

JIM WALA TAMATE, the Public Prosecutor
Second Respondent

AND:
HON. DEPUTY CHIEF JUSTICE GIBBS SALIKA, SENIOR MAGISTRATES PETER TOLIKEN & NERRIE ELIAKIM, comprising the Leadership Tribunal
Third Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Batari, J, David, Gabi, JJ
2011: 13th September & 20th October

PRACTICE AND PROCEDURE – APPEAL - Application for Leave to Appeal a National Court interlocutory directive orders – Application for a stay pending Appeal hearing - Tests to be applied in applications for leave to appeal - Trial Judge continued dealing with proceedings while Supreme Court has seized of the matter – Propriety of – Trial Judge was member of Supreme Court bench that had made adverse comments against same proceedings – Bias – Apprehension of - Arguable case established - sufficient cause shown – Leave to appeal granted

PRACTICE AND PROCEDURE – National Court directive orders for further dealings with matter – Stay of - Factors to consider - Interests of justice favour grant of stay of proceedings – stay order granted

Facts:

The appellant seeks leave to appeal and to stay directive orders of the National Court. The directive orders purported to vacate the initial orders the Supreme Court had stayed. The National Court further ordered that the proceedings come before another judge for expedited hearing.

Held:

1. The appellant has established that it has an arguable case. Sufficient cause has been shown to interrupt the trial process by an appeal. Leave to appeal is granted.

2. The overall interests of justice favour the grant of a stay of proceedings pending the determination of the appeal.

Cases cited:

Sir Julius Chan v. Ombudsman Commission [1999] PNGLR 240
McHardy v. Prosec Security and Communications Ltd [2000] PNGLR 279
Matiabe Oberia v. Police & The State (2005) SC801
Grand Chief Sir Michael Somare v. Manek & Ors, SC OS No. 2 of 2011

Counsel:

MM Varitimos & F Griffin, for the Applicant
H. Maliso, for the First Respondent
T Tanuvasa, for the Second, Third and Fourth Respondents

20 October, 2011

1. BY THE COURT: OVERVIEW: On 15 July 2011, the Applicant obtained leave in SCA. 74 of 2011 to appeal against interlocutory orders in the form of directional orders made by the National Court in respect of proceedings OS. No. 34 of 2011. The Supreme Court also granted stay orders of the interlocutory orders.
   
2. Subsequent to the grant of leave and the stay orders, the Applicant filed a Supplementary Notice of Appeal on 21 July 2011. That Supplementary Notice of Appeal is objected to by the respondents in their Notice of Objection to Competency filed on 28 July 2011. In the meantime, the Applicant filed a further Application for leave to Appeal in SCA 86 of 2011.
   
3. This is a consolidated hearing of three applications brought under SCA 74 of 2011 and SCA 86 of 2011. The applications namely; an Objection to Competency of Supplementary Notice of Appeal, SCA 74 of 2011, Application for Leave to file Notice of Appeal in SCA 86 of 2011 and Application for Stay of the Court Orders the subject of appeal in SCA 86 of 2011 were heard together and ruled on by this Court in that order. The three Applications are contested.
   

Background

4. These applications arise from the proceedings before the National Court in OS No. 34 of 2010, Hon. Patrick Pruaitch v. Chronox Manek, Chief Ombudsman & Ors filed on 4 February 2010. The relief being sought is against the decision of the Ombudsman Commission to refer the Applicant to the Public Prosecutor for prosecution on allegations that he committed misconduct in office. The action was also against the Public Prosecutor's decision to request the Chief Justice to appoint a leadership tribunal to investigate the allegations.
   
5. The proceedings in OS 34 of 2010 were preceded by a similar application for judicial review of the decision of the Ombudsman Commission filed by Applicant in OS 456 of 2009 under O 16 of the National Court Rules. He was there, challenging his referral arguing inter alia, that he had been denied the right to be heard in respect of the allegations in the referral. The application for leave for judicial review was dismissed by Hartshorn J on 8 September, 2010.
   
6. Upon establishment of the tribunal the Applicant filed the proceedings in OS 34 of 2010 under Constitution s. 23 seeking the same relief for which leave was denied in OS 456 of 2009. Kariko J dismissed the entire proceedings in OS 34 of 2010 on the grounds that it amounted to multiplicity of proceedings and that a plea of res judicata had been made. The res judicata doctrine was held to be applicable as the National Court had earlier on, dismissed an application for leave for a judicial review of the same decisions.
   
7. The Applicant appealed the National Court decision in OS 34 of 2010 and the Supreme Court in SC1093 allowed the appeal, reinstated the proceedings and ordered that the matter be heard by another Judge. Following that successful appeal, the First Respondent again filed a Notice of Motion seeking a dismissal of the entire proceedings for disclosing no reasonable cause of action and in the alternative, directive orders for expedited hearing.
   
8. Following the Supreme Court decision, OS 34 of 2010 was initially listed before Kandakasi J but deferred due to his Honour's unavailability. Then On 14 June 2011, his Honour called the matter. Notwithstanding that the case was not on the list of matters to be heard by the judge; that counsel for all the parties were not present and that no opportunity were given to the parties to be heard on the application, the court ordered inter alia:
   

"7. The matter shall return for motion and allocation of a hearing date for the substantive matter on 20 July 2011, and for parties to further consider the matter in light of the decision in Supreme Court Reference No. 8 of 2009 (a reference by the Ombudsman Commission) and the decision of the Supreme Court in SCA Originating Summons No. 2 of 2011, if it is decided and delivered before the matter returns to Court on 20 July 2011."

9. His Honour Kandakasi J was a member of the Supreme Court in the matter of Grand Chief Sir Michael Somare v. Manek & Ors, SC OS No. 2 of 2011 where it was held in relation to the proceedings commenced by Hon. Patrick Pruaitch, MP (OS No. 34 of 2010):
   

"19. ...Applying the principles we have set out above, Kariko .J correctly in our respectful view, dismissed the proceedings for abuse of process (OS No. 34 of 2010)".

10. Aggrieved by the manner in which the proceedings leading up to the making of the directional orders were conducted, the Applicant filed an Application for Leave to Appeal the directional orders, (SCA 74 of 2011). On 15 July 2011 his Honour Injia CJ sitting as a single Supreme Court Judge hearing the leave application ordered inter alia:
    

"1. The Application for Leave to Appeal is granted.

2. Pursuant to Order 7 r 5 (2) of the Supreme Court Rules the order sought, in paragraph 2 at page 9 of the Notice of Application for Leave to Appeal, namely that the Notice of Application for Leave to Appeal be treated as the Notice of Appeal.
   
3. The matter is fixed on Friday 22 July at 9:30am for directions to be issued in order for the substantive appeal to be listed for hearing by the full Court in the August sittings of the Supreme Court.
   
4. The Applicant shall prepare, file and serve a draft index to the Appeal Book and a draft Appeal Book for the Court's consideration and endorsement by Wednesday 20 July, 2011.
   

5. If Order No. 4 is not complied with, the Court will consider referring the appeal to the full Court for summary determination in the August sittings of the Supreme Court pursuant to R.16 (b) of the Supreme Court Listings Rules 2010.

6. The matter is adjourned to Monday, 18 July 2011, at 9:30am, for hearing and arguments on the question of costs of this application and the application for stay."

11. The Chief Justice granted these orders after being satisfied that, an arguable case of apprehension of bias and denial of fair hearing has been made out. His Honour stated:
    

"14. That much said, I consider that those arguments do not provide a satisfactory answer to the perceived or apprehended bias that may arise or occur on the part of the Court or trial Judge in the future conduct of the proceedings. The applicant's right to a fair hearing in the future conduct of the case in all its procedural and substantive aspects of the case is fundamental to the dispensation of justice in the case. That is the pivotal point raised in these appeal proceedings...

15. I am satisfied on the face of those material before me that an arguable case has been made out that the trial Judge erred in taking into account the impending decision in SCOS No. 2 of 2011 which was not properly before that Court, and in so doing the apprehension of bias. I am also satisfied that there was an error which is not only patent but that is adversely affected applicant's right to a fair hearing of his claim and stood to prevent fair proper determination of the issues in the trial. For the foregoing reasons I am inclined to grant leave to appeal."

12. The matter returned to his Honour on 18 July 2011, for interim Stay Orders that:
    

"1. Compliance with Orders numbered 6 and 7 of the orders of 14 June 2011 are stayed until 19 July 2011 at 9:30am.

2. The application for stay is fixed for hearing on 19 July 2011 at 9:30am.

3. The costs of the application for leave is reserved to 19 July 2011 at 9:30am."

13. On 19 July 2011, Injia CJ heard the application for stay and ordered that;
    

"1. Orders numbered 6 and 7 made by Kandakasi J on 14 June 2011 in OS No. 34 of 2010 be stayed until the hearing and determination of this Appeal.

2. The costs of and incidental to the application for leave and stay be reserved."

14. Notwithstanding the orders of Injia CJ, sitting as a Supreme Court on 15 July, 2011 which granted the applicant leave to appeal from the orders of 14 June 2011 in OS No. 34 of 2010 and the Supreme Court stay of orders numbered 6 and 7 made on 18 and 19 July 2011, Kandakasi J re-called the matter in OS No. 34 of 2010 on 26 July 2011 and ordered that:
    

"1. The Orders of 14 June 2011 are forthwith vacated.

2. Without admitting or affirming in any manner or form or whatsoever that Kandakasi J has been actuated, moved, influenced by any form of bias against the Plaintiff, Kandakasi J is disqualified to enable an expedited hearing of and disposal of this particular proceedings.

3. Parties to inform the Supreme Court of these orders.

4. Parties are to liaise with the Registrar to have this matter listed before a different Judge for an expedited hearing."

15. When the matter in proceedings OS 34 of 2010 was mentioned before Kandakasi J on 26 July, 2011 lawyers appearing for the parties informed his Honour of an appeal against his directional orders of 14 June 2011 and conceded that the Supreme Court is seized of the matter. We also note from the common facts that, the matter was listed in the Diary of the Court sittings for that day without adequate notice to the lawyers and that there was no application before the Court for the orders that were made.
    

1. Objection to Competency of Supplementary Notice of Appeal
   

16. On 21 July 2011, the Appellant filed a Supplementary Notice of Appeal without leave with the inclusion of paragraph 2A and a statement of the relief sought. These are in the following terms:
    

"2A On 15 July 2011, Injia, CJ ordered relevantly:

(1) The Application for Leave to Appeal is granted.

(2) Pursuant to Order 7 R5 (2) of the Supreme Court Rules the order sought in paragraph 2 at page 9 of the Notice of Application for Leave to Appeal, namely that the Notice of Application for Leave to Appeal be treated as the notice of appeal,

"Orders sought on Appeal

1. The judgment, orders and directions made by the Honourable Justice Kandakasi on 14 June 2011 in OS No.34 of 2010 is discharged, set aside and quashed.
   
2. Originating Summons proceedings No.34 of 2010, including any mention, directions hearing, motions or trial, be presided over by another Judge.
   
3. Originating Summons proceedings No.34 of 2010 be listed for mention in the National Court of Justice on a date to be advised by the Registrar of the National Court after consultation with the legal representative of the parties.
   
4. Such further or other orders as may be appropriate.
   
5. The time for the entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith."
   

17. On 28 July 2011, the Appellant filed a Notice of Objection to Competency relying on the following grounds:

"1. The Supplementary Notice of Appeal filed pursuant to Order 7 Rule 24 of the Supreme Court Rules is without jurisdiction. That provision is not applicable to Applications for Leave to Appeal provided for under Order 7 Rule 24 of the Supreme Court Rules. Order 7 Rule 24 of the Supreme Court Rules only applies to amendments to appeals filed as of right on questions of law and or mixed fact and law. The Appellant's appeal was by way of an Application for Leave to Appeal;

2. Amendments to appeals sought through Applications for Leave to Appeal are provided for under Order 11 Rule 11 of the Supreme Court Rules. The Appellant has not sought leave to amend the Application for Leave to Appeal (treated as notice of appeal per Supreme Court Order of 15 July 2011);

3. The orders sought in the Supplementary Notice of Appeal filed on 21 July 2011 are matters for which leave was not sought. They cannot now be raised as of right by way of filing a Supplementary Notice of Appeal;

4. No orders were sought by the Honourable Chief Justice on 15 July 2011 for the filing of an amended or a supplementary notice of appeal;

5. Filing of a supplementary notice of appeal is contrary to Section 14 (3) of the Supreme Court Act which requires leave of the Court to appeal interlocutory orders of the National Court."

18. Order 7 Rule 24 of the Supreme Court Rules states:

"24. A notice of appeal may, before the date of appointment to settle under Rule 42 be amended without leave by filing a supplementary notice."

19. The First Respondents supported by the Second, Third and Fourth Respondents rely on Bruce Tsang v Credit Corporation (PNG) Ltd (1993) PNGLR 112 and submit that Order 7 Rule 24 of the Supreme Court Rules specifically applies to appeals instituted as of right by way of a notice of appeal and not to an Application for Leave to Appeal treated as a Notice of Appeal following the grant of leave. It is contended therefore that the Appellant should have obtained leave to amend his Application for Leave to Appeal which was ordered to be treated as his Notice of Appeal under Order 11 Rule 11 of the Supreme Court Rules.

20. The question we ask is whether Order 7 Rule 24 of the Supreme Court Rules applies to appeals pursued following the grant of leave?

21. We are persuaded by the Applicant's contention that, O. 7 r. 24 of the Supreme Court Rules is not restrictive or exclusive to appeals instituted by a notice of appeal. That provision extends to notice of appeal and orders to treat application as notice of appeal filed following the grant of leave to appeal under O 7 r 5 of the Supreme Court Rules.

22. Order 7 Rule 5 authorizes filing of notice of appeal after leave has been granted. There are two legs to that rule. The first is that when leave to appeal has been granted, the Supreme Court has discretion to order that the Notice of Application for Leave be treated as Notice of Appeal. The second is that the phrase "but otherwise" connotes an alternative to the first leg in that a notice of appeal must be separately filed within 21 days after the date on which leave is granted or within such extended time.

23. The term "treat" is crucial to the application of the first leg of Order 7 Rule 5. This term was considered by the High Court in Federal Commissioner of Taxation v York Motors Pty Ltd (1947) CLR 459, where at p.468 Williams, J stated:

"Treat" 'is a wide word': In re Masters and Duveen [(1923) 2 KB 729, at p.734]. A number of meanings are given to it in the dictionaries. The most suitable, in the collocation in which it is used in s.17, would appear to be that given in the Shorter Oxford Dictionary, 'To consider or regard in a particular aspect and deal with accordingly'."

24. We too, adopt and apply the definition given in the Shorter Oxford Dictionary, i.e., 'To consider or regard in a particular aspect and deal with accordingly'.

25. Hence, there can be no doubt that when the Supreme Court exercises its discretion under the first leg of O 7 r 5 of the Supreme Court Rules to order that the Notice of Application for Leave be treated as a Notice of Appeal as in the present case, for all intents and purposes that document becomes an appellant's notice of appeal. It is also clear from the second leg of O 7 r 5 that, without the order to treat the Notice of Application for Leave as Notice of Appeal, a successful applicant who is granted leave to appeal must file a notice of appeal within the prescribed or extended time.

26. Order 7 r 24 of the Supreme Court Rules permits an appellant to file a supplementary notice to cure defects in the Notice of Appeal filed as of right under section 14 of the Supreme Court Act and to appeals pursued following the grant of leave to appeal.

27. Such amendment is permissible without leave before the date of appointment to settle the Appeal Book. In this case, the date of appointment was 2 August 2011. Hence, the amendment was made in time. On the other hand, leave may be required if the additional ground raises issues of facts only. This is not the respondents' contention here. But we are satisfied that the grounds in the supplementary notice do not require leave and the inclusion of the relief is consequential to what is sought in the grounds of appeal.

28. The case of Bruce Tsang is clearly distinguishable on the basis that the Supreme Court in that case found the appellant's supplementary notice of appeal to be incompetent for a number of reasons including:

1. No leave was sought to appeal against part of the judgment that was interlocutory;
   
2. The appellant introduced an entirely new matter, namely an application to obtain leave to appeal;
   
3. The supplementary notice was filed outside the 40 days time limit required by s. 17 of the Supreme Court Act.
   

29. In the present case, the Supplementary Notice was filed:

1. after leave to appeal was sought and granted;
   
2. with no new grounds that required leave; and
   
3. before the settlement of the Appeal Book.
   

30. We also uphold the Appellant's submissions that the objection to competency is misconceived as it seeks to disregard that:

1. Injia, CJ ordered that the Application for Leave to Appeal be treated as the Notice of Appeal;
   
2. the objection to competency does not render incompetent the actual appeal in the light of the fact that the Application for Leave to Appeal which was ordered to be treated as the Notice of Appeal still stands without the objection.
   

31. It is not disputed that on 15 July 2011, the Chief Justice granted the Appellant leave to appeal the interlocutory decision of Kandakasi, J made on 14 June 2011 and also ordered that the Notice of Application for Leave to Appeal be treated as the Appellant's Notice of Appeal consistent with Order 7 Rule 5 of the Supreme Court Rules.

32. It is also not disputed that on 21 July 2011, the Appellant filed a Supplementary Notice of Appeal without leave pursuant to Order 7 Rule 24 of the Supreme Court Rules. The Supplementary Notice of Appeal was filed without making any amendment to the grounds of appeal, the amendments were made before the date scheduled for the appointment to settle the appeal book including the index consistent with Order 7 Rule 42 of the Supreme Court Rules and they were made within 40 days of the orders made on 14 June 2011. The only substantive amendments made were the inclusion of paragraph 2A and the orders sought in the appeal.

33. For the foregoing reasons, we conclude that the respondents grounds of objection are unsustainable and should be dismissed.

2. Appeal SCA 86 of 2011 – Application for Leave to Appeal
   

34. The appeal in SCA 74 of 2011 is concerned with the manner in which the proceedings leading up to the making of the directional orders were conducted by the National Court and the issuance of Order No. 7 in particular.
    
35. Like the Appeal in SCA 74 of 2011, this appeal is similarly concerned with the procedure leading up to the making of the National Court Orders of 26 July 2011. The Application for Leave to Appeal and the Application for Stay raise serious concerns relating to the manner in which the proceedings leading up to the directional orders were conducted and whether the National Court should have proceeded to list, hear and make the orders it did while the Supreme Court was seized of the matter. The issues can be stated thus:
    
    • (i) Whether or not the National Court is bound by a Supreme Court decision, ruling or order?
      
    • (ii) Whether or not there is an apprehension of bias if a Judge decides in an unrelated matter, that the proceedings (now before him) are an abuse of process?
      
    • (iii) Whether there is a denial of natural justice or an abuse of procedural fairness when there is no application before the Court and the Judge lists a matter and makes orders without notice to and in the absence of parties?
      

Application for Leave to Appeal – Principles Applied

36. The Application for Leave to Appeal is made pursuant to s.14 (3)(b) of the Supreme Court Act (Ch. 37) in relation to appeals in civil cases. The grant or refusal of leave is discretionary. The applicant must show that there is an arguable case, that the decision was wrong and if not reviewed or corrected on appeal, will result in substantial injustice. See, Sir Julius Chan v. Ombudsman Commission [1999] PNGLR 240; Boyepe Pere v Emmanuel Ningi (2003) SC711, The State v John Talu Tekwie (2006) SC843. In some instances the applicant may be required to show exceptional circumstances and compelling reasons for leave being granted: See, Hii Yii Ann v Canisius Kami Karingu (2003) SC718; Matiabe Oberia v Chief Inspector Michael Charlie and Ors. (2005) SC801.
    
37. Where the appeal is against exercise of discretion on procedural matter in a civil case, such as an appeal against an interlocutory order, the onus is higher as the majority view in Sir Julius Chan v. Ombudsman Commission held:
    

"so to obtain leave to appeal an interlocutory judgment, it is not simply a matter of asserting there is an arguable case there has been some error. It is not the case that every error will affect the outcome of the substantive proceedings. What must be shown is not only that there has been the errors affect a party's substantive rights or will prevent the determination of issues. That is, there is an error in the interlocutory judgment that goes to jurisdiction."

Respondents' Position

38. The respondents submissions are that, the appellant has recourse in the court below and that he has not shown cause to interrupt the trial process by this appeal. Mr Maliso of counsel for the First respondent cites the case of Matiabe Oberia v Police and The State (2005) SC 801 as supporting this proposition. That case suggests two important considerations when appealing interlocutory orders as follows:
    
    1. Does the appellant have recourse in the court below?
    2. Has cause been shown that the trial process should be interrupted by an appeal?
       
39. Counsel argued that the filing of this appeal and the appeal in SCA 74 of 2011 is a ploy to draw attention away from substantive relief the applicant is seeking under Constitution sections 23 (2) and 155 (4) in OS 34 of 2010. These appeals, the respondents submitted are intended to side tract and procrastinate the trial of the substantive issues.
    
40. The respondents also argued that, the directions issued by his Honour, Kandakasi J on 26 July 2011 do not prevent or prejudice the substantive relief sought in proceedings OS 34 of 2010. The directions are essential to expedite the hearing of the substantive issues before another judge. It was a genuine way forward to dealing with the crucial relief the appellant is seeking.
    
41. Mr. Maliso, supported by Mr Tanuvasa of counsel for the Second, Third and Fourth Respondents argued that Kandakasi J correctly exercise his discretion to set aside his previous orders as there was no stay on the court from recalling and exercising its jurisdiction and discretion. And because the issue of apprehension of bias is resolved by the National Court directive orders of 26 July 2011, there is no longer a cause for this appeal (SCA 86 of 2011) or the appeal in SCA 74 of 2011.
    

Ruling on Issues Raised

42. The submissions by the First Respondents supported by the Second, Third and Fourth Respondents are appreciated. However, on a closer examination of the grounds, this appeal is clearly about the Trial Judge's continued dealing with the National Court proceedings in OS No. 34 of 2010 when the Supreme Court is for the time-being, seized of the matter. The appeal grounds also raise the issues of apprehension of bias and denial of natural justice. We discuss these issues below.
    

Whether or not the National Court is bound by a Supreme Court decision/ruling or order?

43. This is a jurisdictional issue having its origin in the hierarchy of Courts set up in Constitution s.155 (1). The Supreme Court is the highest Court of the land followed by the National Court and other Courts (lower Courts). It is the final Court of appeal and has inherent jurisdiction to review decisions of the National Court (s.155 (2) (b). Under Sch. 2.9(1), all decisions of the Supreme Court are binding on all other Courts, but not on itself. The Constitution also makes it clear under Sch.2.9 (2) that all decisions of law by the National Court are binding on all other Courts except the Supreme Court.
    
44. From this constitutional arrangement of the hierarchy and jurisdictions of the courts, it is clear that proceedings in the National Court are subject to and subservient to the proceedings and decisions or rulings of the Supreme Court.
    
45. In this case, after the Supreme Court granted the applicant leave to appeal the interlocutory orders of Kandakasi J and stayed further proceedings in OS No. 34 of 2010, his Honour re-called the matter and issued orders which purportedly vacated his previous orders. Those previous orders were the same orders that have been the subject of the Supreme Court appeal in SCA 74 of 2011. The trial judge also issued directional orders to expedite the hearing of the substantive issues.
    
46. The process adopted by Kandakasi J is arguably pragmatic and possibly well intended for expeditious trial of the substantive issues. However, the manner in which his Honour continued to deal with OS 34 of 2010, when an application for leave to appeal has been granted and an appeal is pending before the Supreme Court in SCA 74 of 2011 raises serious questions of jurisdictional boundaries of the Supreme Court and National Court. The trial judge lacked the jurisdiction to deal with proceedings OS 34 of 2010 and what he did is arguably in defiance of the Supreme Court having been seized of the matter.
    
47. So, this raises the issue of whether or not the trial judge had properly exercised his judicial functions and powers or whether or not his Honour exceeded his powers when he recalled the case and continued to deal with it in the face of a pending appeal. We conclude that, the applicant has shown an arguable case that the Orders of 26 July 2011 were made in excess of jurisdiction.
    

Issue of apprehension of bias

48. For the same reasons set out in the written judgment of Injia CJ, we also hold on the face of the records before us that, an arguable case has been made out that, there was and is a real apprehension of bias when Kandakasi J re-called the matter and gave directional orders on 26 July 2011 in proceedings OS No. 34 of 2010. His Honour was a member of the Supreme Court that made, delivered and published its decision in the matter of Grand Chief Michael Somare v. Manek & Ors, SC OS No. 2 of 2011 that stated inter alia, that the OS No. 34 of 2010 proceedings was "correctly dismissed" by Kariko J for "abuse of process." The orders of 26 July 2011 were made after the decision in SCOS 2 of 2011 was handed down. There is indeed a case to remove the trial judge from continuing to deal with the case for suspected apprehension of bias.
    

Whether there has denial of natural justice?

49. We are also satisfied that the proceedings towards and surrounding the orders of Kandakasi J on 26 July 2011 raises serious questions pertaining to natural justice and fairness in the complaint that the parties including the applicant were not given any notice or adequate notice of the proceedings or not being given the opportunity to properly make submissions contrary to Constitution s.59.
    

100. Stay of Orders of 26 July 2011.
     

50. Section 19(i) of the Supreme Court Act provides that;
    

"1. Unless otherwise ordered by the Supreme Court or a Judge, an appeal, or an application for leave to appeal, to the Supreme Court, does not operate as a stay of proceedings".

51. The case of McHardy v. Prosec Security and Communications Ltd [2000] PNGLR 279, on the question of stay stated:
    

"...To conclude that the test for a successful application for stay should be whether there are "special" or "exceptional circumstances: or that there is a "good reason" or that is an "appropriate case" is restrictive. We think what is important to articulate are the factors and circumstances that may be relevant or appropriate in differing cases from time to time."

52. Leave to appeal has been applied for and granted as there is, in our view, a case on appeal based on denial of natural justice and procedural fairness and apprehension of bias. This application has been made promptly. In our view, prejudice to the applicant is likely if the matter proceeds. There is a real risk from the history of the proceedings in OS No. 34 of 2010 that, it may continue to be dealt with while there is a serious challenge to the orders of 26 July 2011. Furthermore, the grant of stay will be consistent with the earlier stay granted by the Supreme Court.
    
53. We are also satisfied that in all the circumstances, the overall interest of justice and balance of convenience support a grant of stay.
    
54. The orders of the Court are:
    
1. The objection to competence of the supplementary notice in SCA 74 of 2011 is dismissed.
   
2. The application for leave to appeal in SCA 86 of 2011 is granted.
   
3. Pursuant to O 7 r 5 (2) of the Supreme Court Rules the Notice of Application for Leave to Appeal in SCA 86 of 2011 is to be treated as the Notice of Appeal.
   
4. The parties go before the Chief Justice or the Supreme Court Listing judge as soon as practicable for directions with a view to listing the substantive appeals in SCA 74 of 2011 and SCA 86 of 2011 for hearing in the November sittings of the Supreme Court.
   
5. The Orders of the National Court of 26 July 2011 are stayed.
   
6. Costs are in the cause.

______________________________________________

Young & Williams Lawyers: Lawyers for the Applicant
Ombudsman Commission: Lawyers for the First Respondent
Solicitor-General: Lawyers for the Second, Third and Fourth Respondent