State v Transferees [2014] PGSC 23; SC1348 (2 June 2014)

SC1348

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 31 OF 2014

BETWEEN

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant

AND

THE CHIEF MIGRAITON OFFICER, RABURA MATAIO
Second Appellant

AND

THE TRANSFEREES
First Respondent

AND
AMNESTY INTERNATIONAL
Second Respondent

Waigani: Makail, J
2014: 16th April & 02nd June

PRACTICE & PROCEDURE – Application for leave to appeal – Proposed appeal against refusal by trial judge to disqualify – Grounds of – Apprehended bias – Trial judge's conduct and association – Inquiry into allegations of breaches of human rights of asylum seekers – Inquiry commenced by National Court own its own initiative – No prescribed procedure for inquiry – Trial judge issued ad hoc directions for conduct of inquiry – Trial judge fixed time-table for inquiry – Appointment of medical expert witness who is a personal friend of Trial judge of long standing – Parties not given opportunity to be heard on the ad hoc directions and appointment of medical expert witness – Breach of natural justice – Arguable case established – Constitution – ss. 57, 59 & 185 – Supreme Court Act – s.14(3)(b).

PRACTICE & PROCEDURE – Application to extend stay order – Stay of National Court proceedings – Inquiry in allegations of breaches of human rights of asylum seekers – Inquiry commenced by National Court own its own initiative – Trial judge's conduct and association – Breach of natural justice – Arguable case established – Necessary for inquiry to be stopped – Supreme Court Act – s. 19.

Cases cited:

Papua New Guinea cases

Boyepe Pere v. Emmanual Ningi (2003) SC711
Chief Collector of Taxes v. Bougainville Copper Limited (2007) SC853
Wawoi Guavi Timber Company Ltd v. Mondiai (2007) SC1028
Chan v. Ombudsman Commission [1998] PNGLR 240
Matiabe Oberia v. Chief Inspector Charlie (2005) SC801
Liu v Emoto (2009) SC 1032
Sekesu Sisapi Land Group (Inc.) v. Turama Forest Industries Ltd (2008) SC976
Patrick Pruaitch v Chronox Manek (2011) SC1134
Ramu Nico Management (MCC) Limited v. Koroma (2009) SC1046
Gobe Hongu Limited v National Executive Council (1999) N1964
Yama v Bank of South Pacific Limited (2008) SC921
MVIT Ltd v. Yama Security Services Limited (2009) SC 1004
Re Assistant Registrar, Philip Kaumba (2004) N2763
Re Conditions at Buimo Corrective Institution [1988-89] PNGLR 266; N741
Robinson v. The State [1986] PNGLR 307
Toll v. the State (1989) SC378
Consort Express Line Limited v. Namane (2001) N2147
Sir Julius Chan v. The Ombudsman Commission (1998) SC607
Kwame Okyere Boateng v. The State [1990] PNGLR 342
Sela Gipe v. State [2000] PNGLR 271
Herman Joseph Leahy (2006) SC9681
Patrick Pruaitch v. Chronox Manek (2012) SC1168
Lysenko v. National Airline Commission [1989-90] PNGLR 69
National Airline Commission v. Lysenko [1990] PNGLR 226
SCR No. 3 of 2005; Public Prosecutors Power (2008) SC1011
Gelu v. Somare [2008] PNGLR 279
Nui v. Tanda (2004) N2765
Pato v. Manjin (1999) SC622
Kamit v. Cooke (2003) N2369
Kakaraya v. Ombudsman Commission (2003) N2400

Overseas cases

Webb v. R [1994] HCA 30; (1994) 181 CLR 41
AZ v. The Age (No. 2) (2013) VSC 346
Ebner v. Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Saxmere Company Ltd v. Wool Board Disestablishment Company Ltd [2009] NZSC 72; [2010] 1 NZLR 35
Smits v. Roach [2006] HCA 36; (2006) 80 ALJR 1309
Porter v. Magill [2008] 2 AC 357

Counsel:

Mr I Molloy QC with Mr T Boboro, for Applicants
Mr F Pitpit, for First Respondent
Ms M Peipul, for Second Respondent

RULING

02nd June, 2014

1. MAKAIL, J: These are applications for leave to appeal against a decision of Cannings J made on 17th March 2014 refusing to disqualify himself from hearing proceedings HR01 No. 1 of 2014 in the National Court and for an extension of a stay order of those proceedings pending appeal. At the hearing of the applications, counsel for the applicants and the second respondent provided written submissions and spoke to them and the Public Solicitor representing the Transferees made oral submissions. I have considered them together with the additional material provided for and against the applications and this is my ruling.

2. On 24th February 2014, the National Court presided by Cannings J commenced those proceedings "on its own initiative to enforce the guaranteed rights and freedoms of those persons, those guaranteed rights and freedoms including:

• the right to freedom based on law under Constitution, Section 32(2);
  
• the right to freedom from inhuman treatment under Constitution, Section 36(1);
  
• the right to the full protection of the law under Constitution, Section 37(1);
  
• the right to be treated with humanity and with respect for the inherent dignity of the human person under Constitution, Section 37(17);
  
• the right of persons under voting age who are in custody to be separated from other persons in custody and be accorded treatment appropriate to their age under Constitution, Section 37(19);
  
• the right to liberty under Constitution, Section 42(1);
  
• the right of any person who is detained to be informed promptly, in a language that he or she understands, of the reasons for his or her detention and of any charge against him or her, to be permitted wherever practicable to communicate without delay and in private with a member of his or her family or a personal friend, to be permitted whenever practicable to communicate without delay and in private with a lawyer of his or her choice, to be given adequate opportunity to give instructions to a lawyer of his or her choice in the place of detention and to be informed immediately on his or her detention of those rights, under Constitution, Section 42(2);
  
• the right of any person who is detained to complain to the National Court that he or she is unlawfully or unreasonably detained, under Constitution, Section 42(5).........": see Notice of Commencement of Proceedings and Summons (Peter Kuman's affidavit annexure "PK1")
  

Leave to Appeal

3. Leave is required because the appeal is from an interlocutory judgement not falling within any of the exceptions referred to in s. 14(3)(b) of the Supreme Court Act Ch. No. 37.

4. The principles applicable on an application for leave to appeal are well established. In Boyepe Pere v. Emmanual Ningi (2003) SC711, the Supreme Court said the reason for leave is "to ensure that only meritorious cases go to the Supreme Court on appeal... If the court is satisfied there is merit in the proposed grounds of appeal....the appellant should be granted leave to allow to proceed to lodge his appeal."

5. Similar, in Chief Collector of Taxes v. Bougainville Copper Limited (2007) SC853, the Court said "the purpose of the requirement for leave to appeal under s.14 of the Supreme Court Act is to ensure only meritorious cases go to the Court on appeal. It is clear law now that, in order to obtain leave of this Court, an appellant must satisfy the Court that, there is a meritorious and arguable case."

6. Other considerations may be relevant, particularly where the application for leave is from a discretionary decision on a matter of procedure within the Court's jurisdiction, and unlikely to have any bearing on the final outcome. In this regard in Wawoi Guavi Timber Company Ltd v. Mondiai (2007) SC1028 (application for leave to appeal against a grant of leave to apply for judicial review), and the cases there cited, including Chan v. Ombudsman Commission [1998] PNGLR 240 (application for leave to appeal against orders in respect of discovery and affidavit evidence), and Matiabe Oberia v. Chief Inspector Charlie (2005) SC801 (application for leave to appeal against a refusal to enter default judgement, and to extend time for filing a defence. See also Liu v Emoto (2009) SC1032 (valid exercise of discretion to enter default judgment). However, even where the appeal is form a discretionary decision on a matter of practice, the Court is not precluded from granting leave; it all depends on the circumstances; Sekesu Sisapi Land Group (Inc.) v. Turama Forest Industries Ltd (2008) SC976 (leave to appeal against a grant of leave to apply for judicial review).

7. In this case, the appeal raises issues of apprehended bias and breach of the rules of natural justice. The National Court decision is not a discretionary judgment on a mere matter of practice or procedure, but is fundamental to the court's jurisdiction to hear and determine the proceedings and ultimately to any orders that may be made. It is similar to Patrick Pruaitch v. Chronox Manek (2011) SC1134 in which the proposed grounds of appeal also raised issues of apprehension of bias and denial of natural justice (see paragraph 42 of the judgment). The court there acknowledged that the grant of leave was discretionary, citing authorities such as Oberia, but found that it was appropriate that leave be granted (and there be an order for a stay) where an arguable case had made out that there is a real apprehension of bias or breach of the rules of natural justice (paragraphs 48 and 52 of the judgment). See also Ramu Nico Management (MCC) Limited v. Koroma (2009) SC1046 (appeal from a decision on jurisdiction which may result in prejudice).

8. Turning to the merits of the proposed appeal, the matter before the National Court involved proceedings initiated by the judge himself acting under s. 57(1) of the Constitution. That subsection provides relevantly that a right or freedom referred to in Part III Division 3 of the Constitution shall be protected by, and is enforceable in, the Supreme Court or the National Court, including on the court's "own initiative". The appeal is not a challenge to his Honour's jurisdiction to initiate the proceedings. However the manner of commencement of the proceedings is relevant particularly to the question of apprehended bias.

9. In Gobe Hongu Limited v. National Executive Council (1999) N1964, the National Court, quoting Deane J in Webb v. R [1994] HCA 30; (1994) 181 CLR 41, identified four distinct, though sometimes overlapping, categories of bias or apprehended bias. Relevantly, they include (1) conduct – where the judge has engaged in conduct in the course of, or outside, the proceedings, giving rise to such an apprehension of bias; and (2) association – where the judge has a direct or indirect relationship, experience or contact with a person or person interested in, or otherwise involved in, the proceedings. The decision in Gobe Hongu was endorsed by the Supreme Court in Yama v. Bank of South Pacific Limited (2008) SC921.

10. The case of apprehended bias involves each of the above categories (either one of which is sufficient) and also illustrates how they may overlap with one another, and also involves a breach of the rules of natural justice embodied in s. 59 of the Constitution.

Conduct

11. Conducting giving rise to a reasonable apprehension of bias may consist of a single act or the cumulative effect of several matters: AZ v. The Age (No. 2) (2013) VSC 346. As stated, the proceedings were commenced by the court "on its own initiative" as permitted by s. 57 (1) of the Constitution. His Honour considered that having initiated the proceedings he was thereafter conducting an enquiry. For example, in his Opening Statement, (Peter Kuman's affidavit, Annexure "PK2"), his Honour refers to "this Inquiry" (pages 3 and 4), "the focus of the inquiry" (page 5), and to the Inquiry's "terms of reference" (page 5).

12. It is the applicants' contention here and that it will be contended at the substantive hearing that if the proceedings are properly described as an inquiry, then a usual first step would be to appoint counsel assisting so that the decision-maker is removed from the arena. In the context of conventional court proceedings, the court will appoint an animus curae, that is, a friend of the court, "synonymous with an independent counsel with no fixed agenda or instructions from a party on an issue, usually legal, in the proceedings before the Court": MVIT Ltd v. Yama Security Services Limited (2009) SC 1004. See also Re: Contempt of Court; Re Assistant Registrar, Philip Kaumba (2004) N2763; Re Conditions at Buimo Corrective Institution [1988-89] PNGLR 266 N741: Robinson v The State [1986] PNGLR 307 and Toll v the State (1989) SC378.

13. Instead of appointing counsel assisting, or an amicus, the judge personally conducted the proceedings giving rise to reasonable apprehension of bias. These matters are referred to in the application for leave to appeal. Firstly, the National Court summoned persons to attend before it on 27th February 2014. The Court then made various directions and orders. No-one was given any right to be heard prior to the making of those orders. In his reasons for decision (Peter Kuman's affidavit, annexure "PK10"), his Honour acknowledged that he has made these and other orders without hearing submissions, but "none have been of any substantial prejudice to any party or person". The applicants contended that, that misses the point. The issue is not substantial prejudice, but the apprehension of bias and denial of natural justice including the right to be heard.

14. It is their further contention here and will be contended at the substantive hearing that the suggestion that a party can apply to amend or revoke an order already made also misses the point. Interested persons have a right to be heard before an order is made. It is not an answer that an interested party can apply to the judge to alter his decision; the right to be heard should precede the making of the decision. They relied on a passage from Arson & Groves, Judicial Review of Administration Action, Fifth edition that "Notice, and an opportunity to be heard before a decision is made, are generally regarded as fundamental."

15. These submissions were countered by the respondents who contended that the inquiry conducted by his Honour is quite unique in the sense that it was initiated by the Court purposely to enquire into allegations of breaches of human rights of asylum seekers detained on Manus Island under s. 57 of the Constitution. There is no prescribed procedure for the inquiry but s. 185 of the Constitution gives the court power to develop procedures where they are lacking and his Honour exercised this power and gave certain ad hoc directions as to the conduct of the inquiry in relation to matters such as the time-frame, who to be witnesses, manner in which witnesses are to be called including visitation by the Court and parties' lawyers of the detention centre. These directions essentially constitute the procedure for the inquiry. What his Honour had done was in effect "giving life to the process" in order to ensure that it is effectively implemented with minimum delay because an inquiry under s. 57 of the Constitution is special in nature as requires a speedy hearing given its constitutional significance. It is purposely established to enquire into allegations of human rights breaches under the Constitution.

16. In Chan v. Ombudsman Commission, the Supreme Court held that the onus is on an applicant to establish a case for grant of leave and must establish that there exist exceptional or special circumstances. In this case, the ad hoc directions are reasonable and there is no substance or nothing exceptional or special in the applicants' contention that by initiating and conducting the inquiry, his Honour compromised his independence and placed himself in a conflict of interest situation to justify the exercise of discretion in their favour.

17. The respondents' contention that the inquiry is quite unique is a valid one because it is established by the court on its own initiative and there is no prescribed procedure for it. To begin with, who are the parties? That is, who is the plaintiff and who is the defendant? Then, who are the witnesses, who will they give evidence for and will they give oral or affidavit evidence? The other important consideration is the time the inquiry will take. It is arguable that given the lack of procedure and that the inquiry should not be prolonged or delayed, it was open to his Honour to fix a time frame for the inquiry, appoint witnesses including appointing Dr Crouch-Chivers to assist in the inquiry in so far as medical and health side of things are concerned.

18. On the other hand, it is also arguable that the procedure adopted by his Honour was onerous and in breach of the principles of natural justice because the orders made on 27th February 2014 included a very short time-frame ( month) for the hearing as follows: an hearing at which directions shall be given; a second stage in one week's time for any motions or application to be joined as party; a third stage anticipated to be in Lorengau to take evidence, including visiting the processing centre, during which "Transferees will be invited to give evidence", a fourth stage, in Madang in the week commencing 17th March, when submission will be received. His Honour said "It is my intention to close the inquiry by delivering judgement by the end of March 2014." No-one was heard as to the procedure, timetable, or anything else. Despite his Honour's belief to the contrary the timetable has the appearance of speed and haste.

19. The matter was mentioned in Madang on 6th March 2014. At that time, his Honour again issued various directions and orders. And again they were made without giving anyone an opportunity to be heard. They included an order appointing Dr Crouch-Chivers, a specialist consultant in clinical and public health to inspect, to examine and evaluate the provision of clinical and public health services at the processing centre. At no time were any of the parties or counsel invited to make any submissions on the appointment of a medical expert witness. His Honour did not reveal how he chose Dr Crouch-Chivers, what communication he had had with him or any previous association.

20. His Honour's conduct to that point is described in the affidavit of the Attorney General (Peter Kuman's affidavit "PK5"). He refers to his Honour making the allegations in the originating process, making orders and directions without any submissions from interested persons, proposing to go to the processing centre, and presiding over the case. The judge is described as "as party, prosecutor, witness, counsel and Judge". In his reasons, his Honour said that it was extremely unlikely that he should become witness in the case. As to the conduct of hearing, he said in page 7 "there is nothing improper in a Judge who initiates an inquiry under section 57 (1) of the Constitution conducting the proceedings himself." This reveals that his Honour sees the proceedings as "an inquiry", and that he is conducting them, not just initiating them and adjudicating.

21. His Honour's subsequent conduct confirms the matters raised above. In order to fall within the time frame of the inquiry his Honour made orders curtailing cross-examination. Between 18th to 20th March approximately 10 transferees were cross-examined on their affidavits. On 21st March 2014, mind-full of the time frame he had set, without any input from the parties, his Honour made an order that he would only hear oral evidence if there was a special reasons. Thereafter, a further approximately 16 affidavits were admitted into evidence without the deponents attending court and without cross-examination because no special reasons could be shown (Peter Kuman's supplementary affidavit, paragraph 3, annexure "PK2").

22. In considering apprehended bias, it is relevant how the judge came to be hearing the case. In Ebner v. Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 the High Court of Australia said, at paragraph 19, it is relevant that judges are assigned to cases and "do not select the case they will hear". Similarly, at paragraph 21, the court said the question of apprehended bias "usually arises in a context in which the judge has no particular personal desire to hear a case". The point of those comments is that, when considering whether certain conduct gives rise to apprehended bias, it is relevant that the judge did not choose to hear the case. By contrast, here the judge not only chose the case, he initiated it.

23. Finally, conduct after an appeal is lodge, may be relevant to apprehension of bias. For Consort Express Line Limited v. Namane (2001) N2147, the appeal was on the basis that the complainant's wife had communicated with the magistrate hearing the case. On hearing of the appeal, the magistrate described the ground of appeal as totally absurd, intolerable and stupid. The National Court said this outburst; "in condemning what is a perfect legitimate ground of appeal" strengthened the claim of bias against the magistrate.

24. In this case, the National Court has granted an order in the subject proceedings allowing one Jay Williams, an Australia lawyer, to have access to 75 of the transferees whom he described as his clients. An application to extend that order was made but could not be dealt with because of the stay. So his Honour issued fresh proceedings, and made access orders, circumventing the stay. He acted without notice to any of the parties, and without giving the applicants, who had an interest, any right to be heard on the order (Peter Kuman's supplementary, paragraphs 5, 6 and 7).

25. I am satisfied that there is an arguable or meritorious case for disqualification of the judge for apprehended bias based on his conduct of the proceedings and breach of the rules of natural justice.

Association

26. The second category of apprehended bias involves the judge's association with the witness Dr Crouch-Chivers. In their submissions, the applicants emphasised that the witness has been specially chosen by the judge. No-one had been given any opportunity to be heard on the choice of witness (or even whether such evidence was necessary or relevant). No-one knew the process by which the witness was chosen by the judge or what communications passed between the judge and the witness. There was no mentioned of the judge's association with the witness.

27. In response, the respondents contended that the application for disqualification made on 17th March 2014 was neither the sole recourse, nor the most appropriate recourse, to address the applicants' complaints, and "leave should not be given whereby through the rules of the court there is obvious recourse for further application on the matter......" Sir Julius Chan v. The Ombudsman Commission (1998) SC607.

28. It has always been open to the applicants to make applications in the National Court to amend or set aside the interlocutory orders made in relation to the timetable ordered in those proceedings if they believed they are particularly onerous. They have not done so. Similarly, the applicants' complaints about the manner in which his Honour appointed Dr Crouch-Chivers as an expert, and his Honour's relationship with Dr Crouch-Chivers, could have been the subject of an application by the applicants for Dr Crouch-Chiver's appointment to be revoked and for another expert to be appointed in his place, or for Dr Crouch-Chiver's evidence to be excluded.

29. There is no evidence that the applicants have pursued these avenues in relation to these concerns before making the application for disqualification. Nor can it properly be said that the applicants should not have to seek to exhaust its recourse in the court below because it believes it "knows" the likely outcome. As Sheehan and Jalina JJ noted in the context of a leave to appeal application; "To argue that such a course may end in the same result is inappropriate because such assertion makes an unwarranted presumption on the Courts [sic] integrity which demands that all applications made at any time be considered judicially." Sir Julius Chan v. The Ombudsman Commission (1998) SC607.

30. In any case, the applicants had the opportunity to raise the issue of bias during cross-examination of Dr Crouch- Chivers and they did not. Therefore, it is not open to them to raise it on appeal. Furthermore, mere relationship between his Honour and the witness is not sufficient to establish apprehension of bias. The relationship must be considered in the context of the purpose and time for establishing and conducting the inquiry. In that context, it was less time consuming for the inquiry for his Honour to appoint Dr Crouch-Chivers as he was someone known to his Honour and readily available to assist in the inquiry.

31. In the context of association between the judge and witness, again, it is arguable that given that the inquiry is established by the court on its own initiative, that there is no prescribed procedure to govern its conduct and that it must be conducted with minimal delay, it was open to his Honour to appoint Dr Crouch-Chivers to assist in the inquiry in so far as the medical and health side of things are concerned. On the other hand, it is arguable that the applicants were denied natural justice because the parties made no input on the appointment of this witness and were not aware of the relationship between his Honour and the witness. The first parties knew of the association was when, on 17th March 2014, prompted by the application for disqualification on other grounds, his Honour decided to reveal that the witness "is a personal friend of mine of longstanding." (Peter Kuman's affidavit "PK8").

32. The leading case on apprehended bias through association is Kwame Okyere Boateng v. The State [1990] PNGLR 342. In that case, the judge's wife was seen in the company of the prosecutrix in the court precincts. The Supreme Court (Kidu CJ, Amet & Hinchliffe JJ) in quashing the decision in the National Court said: "Justice requires that there be complete absence of any inference or impression that a judge or his family have, by personal association with parties or witnesses, influenced the outcome of a case. However impeccable a judgement or decision of a judge might be the appearance created by such association in the mind of a reasonable man that justice might not have been done to a party cannot be remedied by denials, however true, that such association has not effect on the outcome of the case."

33. This case was followed in Sela Gipe v. State [2000] PNGLR 271 where there had been contact between the judge and a witness bank officer on a professional basis. Applying the test enunciated by the Boateng v. The State, the Supreme Court (Hinchliffe, Jalina & Sakora JJ) said: "In order to ensure that justice is seen to be done we exercise the power given to this Court by s. 155(4) of the Constitution, allow the appeal and quash the conviction and sentence."

34. In the present case, there was a direct personal association between the judge and the witness, which made this arguable a stronger case than either Boateng or Sela Gipe. There are also several other relevant factors. First the evidence of the witness, although an expert medical practitioner, was not confined to matters of a purely scientific or medical nature. He reported on matter such as "overcrowding" on which views may legitimately differ. These are matters on which the applicants could be expected to call contrary to evidence and/or making submission.

35. Secondly, the witness was not called by one of the parties, in the sense that the judge had no control or notice that he would be giving evidence. This witness was chosen by the judge himself.

36. Thirdly, his Honour failed to reveal his association with the witness until prompted to do so by the applicant's application. In application of Herman Joseph Leahy (2006) SC9681, the Supreme Court (Kapi CJ, Cannings & David JJ) said, at paragraph 20 that a judicial officer has "an equal duty and obligation to bring to the attention of the parties any matter which may given the impression of apprehended bias."

37. Similarly, in Patrick Pruaitch v. Chronox Manek (2012) SC1168, the Supreme Court (Batari, Gabi & Makail JJ) quoted from a New Zealand Court of appeal decision Saxmere Company Ltd v. Wool Board Disestablishment Company Ltd [2009] NZSC 72; [2010] 1 NZLR 35 including: "A matter should be disclosed in any case where it is possible that the observer might reasonable think the judge could be biased as a consequence of it. The judge or the Court can then consider the responses of all the parties to the disclosure and assess what course to take on that fully informed basis." (Emphasis added).

38. In Smits v. Roach [2006] HCA 36; (2006) 80 ALJR 1309 the High Court of Australia (per Kirby J) said at paragraph 102, disclosure by a judge of a potentially disqualifying interest or association "is not just a question of prudence. It is part of the governing law." And, at paragraph 118, "the failure of the judge to reveal the association at the outset adds to the strength of the argument of reasonable apprehension of bias."

39. Then following is refusal to disqualify himself, his Honour made orders on 17th March 2014, that the CEO of Lorengau General Hospital provide and make available to Dr Crouch-Chivers, certain equipment and personnel (Peter Kuman's affidavit no. 2, annexure "PK1"). None of the parties were consulted about that order, which provided evidence that there was on-going communication between the judge and the witness.

40. In Boateng, the Supreme Court said that reasonable apprehension of bias cannot be remedied by denials, however true, that the association had no effect on the outcome of the case. That is consistent with common law authority, that a judge's explanation, or statement that he will not be unduly influenced, are not usually given any weight: Porter v. Magill [2008] 2 AC 357 at 495.

41. His Honour's refusal to disqualify himself was not something capable of being remedied in the National Court by objecting to the use of Dr Crouch-Chivers evidence. The evidence was not objectionable on any of the grounds of admissibility. The only argument against its receipt was one of reasonable apprehension of bias. His Honour had already ruled on that point creating an issue estoppel: Lysenko v. National Airline Commission [1989-90] PNGLR 69 and National Airline Commission v. Lysenko [1990] PNGLR 226.

42. The application to disqualify his Honour, and this proposed appeal, are not pre-emptory, and it is incorrect to suggest that the applicants should wait for his Honour's findings. In SCR No. 3 of 2005; Public Prosecutors Power (2008) SC1011 the Supreme Court, referring to a leadership tribunal, quoted from De Smith, Judicial Review of administrative Action, Fourth Edition, page 115, and said: "It would be wrong in law and unfair to the parties appearing before the tribunal and the interested public, to allow the proceedings to commence, continue and be completed by a tribunal which lacks jurisdiction to deal with the matter in the first place, only to be quashed by a Court on Judicial Review."

43. I am also satisfied that there is an arguable or meritorious case for disqualification for apprehended bias based on association between the judge and a witness.

44. The proposed appeal raised two issues of apprehended bias and breach of the rules of natural justice such that it is arguable that his Honour erred in failing to disqualify himself. The appeal does not raise a mere matter of practice or procedure or a challenge to a discretionary judgement that will not prejudice the outcome. It raises issues fundamental to the judicial process and the exercise of jurisdiction: Patrick Pruaitch v. Chronox Manek (2011) SC1134.

45. For the foregoing reasons, I am satisfied sufficient cause has been shown as to why the proceedings in the National Court should be interrupted by an appeal and leave to appeal should be granted.

Stay of National Court Proceedings

46. The applicant seeks an extension of the stay order of National Court proceedings HR01 No. 1 of 2014 pending the determination of the appeal. The application is made under s.19 of the Supreme Court Act Ch. No. 37.

47. The principles governing a stay were considered by the Supreme Court in Gary McHardy v. Prosec Security & Communication Ltd (2000) PNGLR 279; (2000) SC646 which has been followed and applied in many subsequent cases for example Jubi v. Fraser (2004) SC735; Kilip v. Mosley (2005) SC784l; Willie Edo v. Margaret Elias (2008) SC1160; Pruaitch v. Manek (2011) SC1134 and Bishop Wenge v. Mitio (2013) SC1234.

48. In Gary McHardy, the Supreme Court said that there are no hard and fast pre-conditions to the grant of a stay. There is no need to show "exceptional" or "special" circumstance. By reference to Gary McHardy's case the following factors may rise:

(a) Whether leave to appeal is required and whether it has been obtained. Leave is required because the appeal is from an interlocutory judgement not falling within any of the exception contained in s. 14(3)(b) of the Supreme Court Act. Leave is applied for contemporaneously with this application for a stay. (Leave has been granted).

(b) Whether there has been any delay in making the application; the decision the subject of proposed appeal was made on 17th March 2014. The application was filed on 21st March 2014. There has been no delay in the making the application. The hearing of the application on 26th March was adjourned for less than a week on the application of the Public Solicitor. An application for an adjournment on 01st April was also on the application of the Public Solicitor and was opposed.

(c) Possible hardship, inconvenience or prejudice to either party.

(i) If the stay is not granted the National Court proceedings will continue. His Honour said on 27th February 2014 that he intended to complete the evidence in one week, hear submission, and to give his decision by the end of the month (Peter Kuman's affidavit, "PK2" page 5). That timetable has been interrupted, but it is clear that without a stay the proceedings will be completed and a decision given before the appeal could be heard. That could result in enormous inconvenience, upheaval and prejudice, to everyone concerned if the appeal is ultimately successful and the proceedings quashed. His Honour as asked the transferees what relief they want if the court finds that their human rights have been breached, including whether they want to return to Australia. The expense to the State could be enormous without any prospect of recompense. A stay for so long as it take to hear an appeal will simply maintain the status quo and can be the subject of compensation to the transferee if it is eventually shown there has been breach of their rights.

(ii) The second respondent refers to Gelu v. Somare [2008] PNGLR 279 for the proposition that a Court will only reluctantly halt an investigation. That is correct but it is important to understand the context in which that was said in that and other cases: Nui v. Tanda (2004) N2765; Pato v. Manjin (1999) SC622; and Kamit v. Cooke (2003) N2369, Kakaraya v. Ombudsman Commission (2003) N2400. The important distinguishing feature is that an investigator/inquirer does not ordinarily determine any rights. Thus in Gelu, in refusing to stay a commission of inquiry, the court said at paragraph 33;

"The Commission does not determine any rights. Its functions are confined to inquiring into the matters set out in terms of reference and reporting its findings to the Prime Minister. It does not even directly publish its findings."

(iii) In this case, the inquiry may result in the Court imposing sanctions, among others, orders for compensation/damages against the applicants in the event that the Court finds that the transferees' human rights have been breached. The Court may also publish its decision and findings which maybe determinative of the rights of the parties.

(d) The nature of the proceeding sought to be stayed: The proceedings are human rights proceedings.

(e) The financial ability of the applicants. The first applicant is the State and able to meet any award of compensation. If marinating the status quo involves a contravention of the transferee' rights then they can claim compensation. There is no prospect of the State being compensated for the expense it may incur if the proceedings continue, orders adverse to the State are made, and those orders are then quashed on appeal.

(f) Preliminary assessment about whether the applicants have an arguable case on the proposed appeal. For the same reasons given in relation to the application for leave to appeal, the applicants have an arguable case.

(g) Whether on the face of the record or the judgement there is apparent error of law on the face of the record as indicated above. The orders and decisions of the National Court are relied on as showing reasonable apprehension of bias denial of natural justice.

(h) The overall interest of justice. The overall interest of justice favours the granting of the stay. In Patrick Pruaitch v. Chronox Manek (2011) SC1134, the claim was similarly apprehended bias and denial of natural justice. The Chief Justice, and later the Supreme Court (Batari, David & Gabi, JJ) each granted a stay. The Supreme Court referred to the way in which the proceedings had been dealt with and the on-going risk, and held that a stay should be granted citing the overall interest of justice and the balance of convenience.

(i) The balance of convenience. The balance on convenience favours granting the stay for the reasons stated above.

(j) Whether damages would be sufficient remedy. If a stay is granted, and the appeal is ultimately unsuccessful, then the National Court proceedings will resume, and the transferees can claim compensation for any consequent delay in the delivery of judgement. If no stay is granted, and the National Court proceedings continue, there is no prospect of the applicants receiving recompense for the loss they may sustain.

49. In light of the foregoing, I am satisfied that in order for the Court to further consider the competing arguments of the parties, it is necessary that the inquiry be stopped. Accordingly, there shall be an order to that effect.

Order

50. The orders are:

1. The applications for leave to appeal and extension of the interim stay order of 21st March 2014 are upheld.

2. The applicants shall file and serve a notice of appeal within 14 days from the date of this order.

3. The interim stay order of 21st March 2014 is extended until the determination of the appeal.

4. The matter is adjourned to Monday 16th June 2014 at 9: 30 am for directions hearing.

5. Costs of the applications shall be in the appeal.

6. Time for entry of these orders shall be abridged to the date of settlement by the Registrar which shall take place forthwith.
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Kuman Lawyers: Lawyers for Applicants
Public Solicitor: Lawyers for First Respondent
Ketan Lawyers: Lawyers for Second Respondent