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Supreme Court of Papua New Guinea |
SC1560
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO. 99 OF 2013
BETWEEN:
TASK GUARD LIMITED
Appellant
AND:
PAUL FOULTON, ROD SACKER, FELIX TAVI, GUY DOUGALE, STEWARD SHANKY & ANDREW HOLDINGS
First Respondents
AND:
NIOLAM SECURITY LIMITED
Second Respondent
AND:
LIHIR MANAGEMENT COMPANY LIMITED
Third Respondent
Waigani: Sakora J, Kandakasi J & Yagi, J
2013: 28th August
2016: 16th December
CIVIL APPEAL – PRACTICE AND PROCEDURE – Appeal against order dismissing proceeding - Application to dismiss proceeding for want of prosecution – National Court Rules, Order 4 Rule 36(1) – Delay in prosecuting the claim – Aggregate period of delay more than three and half years – Failure to set proceeding down for trial – Lawyers inability to practice is not a reasonable excuse –Whether the respondents went to Court with clean hands – Whether the respondents suffered prejudice and injustice – Whether there was reasonable apprehension of bias on the part of the primary Judge.
Cases cited:
Burns Philp (New Guinea) Limited v Maxine George [1983] PNGLR 55
Gobe Hongu Limited v National Executive Council & Others (1999) N1964
In Application of Herman Joseph Leahy (2006) SC855
Independent State of Papua New Guinea vs Colbert [1988] PNGLR 138
Kai Ulo & 2 Ors v The State [1981] PNGLR 148
Mali Pyali & Others and Jim Kaiya & Others v Leo Kabilo & The State (2003) N2492
Obadia Buka v Jude Baisi (2004) N2602
Peter Yama v Bank South Pacific Ltd (2008) SC921
PNG Pipes Pty Ltd & Sankaran Venugopal v Mujo Sefa & Others (1998) SC592
Ronald Nicholas v Commonwealth New Guinea Timbers Limited [1983] PNGLR 133
The State v Raphael Kuanande [1994] PNGLR 512
Vivisio Seravo v Jack Bahafo (2001) N2078
Counsel:
W. Donald, for the Appellant
D. Wood, for the First & Third Respondents
P. Yange, for the Second Respondent
DECISION
16th December, 2016
1. BY THE COURT: This is an appeal against an order of the National Court dismissing the proceedings for want of prosecution under Order 4 Rule 36(1) of the National Court Rules. The decision was made in Kokopo on 20 July 2011.
2. The appeal alleges both errors of law and fact. There are altogether 8 grounds raised by the appellant in this appeal. They are set out in the amended notice of appeal filed on 6 May 2013. These are reproduced in the written submissions handed up to the Court by the appellant’s counsel during the hearing. We adopt them for the present purposes. The grounds are:
“A. The learned Judge erred in fact and in law to find that there was inordinate delay in prosecuting the Appeal and that such finding was unsupported by any material evidence and contrary to evidence presented in Court such as;
(i) The Notice to set for Trial was signed by the plaintiff and First and Third Respondents Lawyers and sent to the Second Defendants Lawyers who did not sign it and did not return it back.
(ii) There was unexplained delay on the part of the First and Third Respondents Lawyers to amend and provide alternate Statement of Agreed and Disputed Facts and Trial Issues from 28 March 2008 onwards. This delay prompted the Appellant to apply for orders in December 2009 and only then did they provide an alternate Statement of Agreed and Disputed Facts and Triable Issues.
(iii) The Lawyers for the First and Third Respondents further failed to settle the Statement of Agreed and Disputed Facts and Triable Issues until ordered by the Court the second time to do so on 6 September 2010 on application by the Appellants.
(iv) Whilst the Notice to set down for Trial was yet to be returned and the Statement of Agreed and Disputed Facts and Triable Issues yet to be amended and settled the Respondents engaged in further Discovery and Interrogatories which prevented the matter from being brought to trial without these matters been first settled.
(v) The Appellant and the First and Third Respondents Lawyers had been engaged in meaningful discussions up to the end of November 2010 to settle the matter which showed that relevant steps had been taken to bring the matter to finality.
(vi) Before applying to dismiss the proceedings the First and Third Respondents had not taken any steps of their own to bring the matter to trial.
(vii) The First and Third Respondent had refused to endorse the Pleadings Book which would have allowed the matter to proceed to trial. The refusal was without proper basis and designed to further delay the matter being brought to trial.
(viii) The First and Third Respondents had misled the Court to say that all the delay was caused by the Appellant without disclosing their own delays.
(ix) At the time of the application to dismiss the matter was ready to be tried and would be tried except for the refusal by the First and Third Respondents to settle the Pleading Book or give reasons why they could not do so even to take other relevant steps of their own to bring the matter to trial.
(x) Court file records and evidence by the Appellant showed that the matter could not have been readily brought to trial earlier.
B. The learned Judge erred in fact and law to find there was inordinate delay without first finding that there was delay and that such delay was intentional and contumelious delay. Relevant case law on the principles of law concerning intentional and contumelious (delay) cited by the Appellant were not considered or properly considered by the learned Judge.
C. The learned Judge erred in fact and in law by failing to find that the First and Third Respondents when applying to dismiss the proceedings for want of prosecution had not come to court with clean hands when there was evidence before him to make such a finding.
D. The learned trial Judge erred in fact and in law to hold that the First and Third Respondents had suffered and continued to suffer injustice or prejudice because of the delay in bring(ing) the case to trial when,
(i) There was no evidence of actual injustice or prejudice been suffered during the course of the proceedings. All that was before the Court was contemplated injustice or prejudice.
(ii) The First and Third Respondents throughout the proceedings had carried without disclosing what injustice or prejudice they suffered given the fact that they had contributed to the delay in a number of ways.
(iii) The First and Third Respondents had acquiesced their rights to raise the issue of injustice or prejudice by their own conduct by failing to promptly attend to pre trial matters or take any steps of their own to bring the matter to trial.
E. The learned Judge erred in fact and in law to hold that the balance of convenience favoured the dismissal of the proceedings without giving any reasons for such a finding and when it was obvious that in the circumstances dismissal of the proceedings that were ready to be tried would cause great injustice which it did.
F. The learned Judge erred in fact and in law in refusing to hear the Appellants application to set down the matter for trial together with the application to dismiss especially when such a failure was prompted by the First and Third Respondents failure to endorse the Pleading Book without giving reasons for the refusal.
G. There was great apprehension of bias when the learned Judge refused to hear the application to set down for trial with the application to dismiss he could have done so as the applications were interrelated instead the learned Judge said the Appellants application would depend on the outcome of the application to dismiss. However, when the decision was handed down none of the Respondents Lawyers were present in Court,
(i) The learned Judge did not invite arguments as to why both applications needed to be heard together or should not be heard together.
(ii) The Respondents Lawyers were not present in Court to receive Judgment whilst being aware that there was a pending application on foot ready to be made if the application to dismiss failed. This created a reasonable apprehension that the dismissal of proceedings had been contemplated and the matter not properly dealt with.
(iii) The Appellant had made its intention known to make its application together with the application to dismiss for which reason the learned (Judge) adjourned the matter to the afternoon of the same day and directed the Appellants Lawyers to serve the application on the Second Respondent. However when Court resumed in the afternoon the learned Judge refused to hear the Appellant’s application together with the application to dismiss but did not invite arguments and did not give reasons for his refusal. The learned Judge also allowed the Second Respondents Lawyers to appear in Court to support the application to dismiss whereas the Second Respondent up to that afternoon had not been interested in the case. This caused a reasonable apprehension that the presence of the Second Respondent or its Lawyers at the request of the Court was simply to ensure that the entire proceedings be dismissed instead of only part of the proceedings.
H. There was great miscarriage of justice in all the circumstances of the case in that no court or tribunal doing justice would have granted the orders to dismiss the proceedings.”
3. In our view the above grounds of appeal raises the following issues -
(i) Whether there was inordinate delay on the part of the appellant in prosecuting the claim in the proceedings. Grounds 3(A) and (B) in the notice of appeal relate to this issue.
(ii) Whether the first and third respondents went before the National Court with clean hands. This issue is covered under ground 3(C) of the appeal.
(iii) Whether the first and third respondents had and continued to suffer injustice and prejudice as a result of the delay (if any) in bringing the application to dismiss. Ground 3(D) apply to the issue.
(iv) Whether the balance of convenience favour an order for the dismissal of the proceedings. This issues pertains to ground 3(E).
(v) Whether the learned primary Judge erred in refusing to set the proceedings down for trial. Ground 3(F) concerns this issue.
(vi) Whether there was an apprehension of bias on the part of the learned primary Judge in refusing to set the proceedings down for trial. This issue related to ground 3(G).
4. Ground H of the appeal is not a proper ground of appeal as it is too general and lacks particularity. It does not specify the reasons why it is alleged the judgment is said to be wrong in law and therefore must be dismissed without more pursuant to Order 7 Rule 10 of the Supreme Court Rules.
Issue 1: Whether there was inordinate delay on the part of the appellant in prosecuting the claim in the proceedings.
5. The appellant’s submission as regards this issue is essentially that the primary Judge failed to properly consider the facts and misapplied the law to the facts when he found that there was inordinate delay by the appellant in prosecuting the claim when the facts disclosed that the respondents were equally guilty of the delay. Furthermore the conduct of the first and third respondents in not bringing the matter on for trial including a failure to give reasonable notice of their intention to seek a dismissal of the proceedings are relevant matters which the primary Judge over looked or gave insufficient weight. The appellant relies on the following cases in support of its contentions; Ronald Nicholas v Commonwealth New Guinea Timbers Limited [1983] PNGLR 133, Mali Pyali & Others and Jim Kaiya & Others v Leo Kabilo & The State (2003) N2492 and Obadia Buka v Jude Baisi, an unreported judgment of Lay J in WS. No. 982 of 2001.
6. It is important to note that counsel for the appellant at the very outset of the hearing emphasized the point that the finding of the primary Judge on the issue of delay is the gist of the appeal.
7. The application before the primary Judge was to dismiss proceedings under Order 4 Rule 36(1) of the National Court Rules. It states:
“36. Want of Prosecution. (5/12)
(1) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may stay or dismiss the proceedings.
(2) ..............................”
8. The applicants for the relief in the court below (first and third respondents) relied on a number of affidavits including two affidavits of Derek Wood filed on 31 May 2011 and 10 June 2011 respectively, affidavit of Michael Henao filed on 20 June 2011 and affidavit of Michael Howard filed on 15 July 2011. The combined effects of these affidavits provide clear evidence of inaction by the appellant at various times between the period 2006 - 2011.
9. The primary Judge dealt with the issue of delay at paragraph 11 of his judgment stating that:
“As to whether there has been inordinate delay, I am mindful that proceeding was commenced in March 2004. From the evidence, there have been numerous periods of inactivity including 22 months from 2006 to 2007, 19 months from 2008 to 2009, 4 months in 2010 and 2 and half months in 2011. In the 7 years since the proceeding commenced it has never been set down for trial. I am satisfied after all of the evidence and submissions on the point that there has been inordinate delay in prosecuting the proceeding since it was commenced.”
10. We further note that the primary Judge also gave consideration to the question of whether a reasonable explanation was provided in response to the prima facie evidence of delay. His Honour said this at pages 4 and 5 of the judgment:
“...... the onus was on the plaintiff (appellant) to prosecute its claim with due diligence and that it is the plaintiff who should take the necessary steps in a proceeding to have it ready for trial: Obadia Buka v Jude Baisi & Anor (2004) N2602, refered to in Thomas Rangip & Anor v Peter Loko & Anor (2009) N3714. If settlement negotiations occur, the onus upon the plaintiff to prosecute the proceeding is not removed unless the express consent of the defendant is obtained: Rangip v Loko (supra). Further, if there is a disagreement with the defendant for instance over the composition of a document, or conduct of the defendant is such that the timely prosecution of the proceeding is being affected, the onus is upon the plaintiff to apply to the court for appropriate relief.
Following a consideration of the evidence and submissions of counsel, I am satisfied that as to the inordinate delay in prosecuting the proceeding, Task Guard has not given any or any reasonable explanations for the inordinate delay.”
11. The principles as regards the Court’s exercise of power in relation to application for dismissal of proceeding are now well established by a line of case authorities. The cases cited by the appellant namely Ronald Nicholas (supra), Mali Pyali (supra) and Obadia Buka (supra) are just a few examples of those cases. Incidentally, Obadia Buka (supra) is numbered and is referred to in the judgment of the primary Judge. Others include such cases as Kai Ulo & 2 Ors v. The State [1981] PNGLR 148 and Burns Philp (New Guinea) Limited v. Maxine George [1983] PNGLR 55. Perhaps one of the often cited authorities is the case of Vivisio Seravo v Jack Bahafo (2001) N2078 where his Honour Kandakasi J summarized the important principles. His Honour said:
“It is now clear law especially in the context of O.10 r.5 of the NCRs that an application for a dismissal of proceedings for want of prosecution may be granted if:
This is apparent from cases like that of Ronald Nicholas v. Commonwealth Niugini Timbers Pty Ltd [1986] PNGLR 133 which has been followed in a number of other cases such as Umbu Waink & Anor v. Motor Vehicles Insurance (PNG) Trust and The State (15/08/97) N1630. I consider those principles relevant and therefore they apply in the context of O.4. r.36 (1), in the absence of any authority to the contrary.”
12. The Court in Kai Ulo (supra) held that where there is a prima facie case establishing delay the respondent is obliged and must provide a satisfactory explanation for the delay.
13. The Courts power to dismiss a proceeding for want of prosecution is of course discretionary, however, the power must be exercised properly and judicially.
14. In this case the appellant argues that the finding of the primary Judge was unsupported by evidence and is otherwise against the evidence it provided. The appellant relied upon two affidavits to oppose the application. These affidavits were deposed by Wesley Donald, the counsel for the appellant both in the court below and in this court. The affidavits were filed on 17 June 2011 and 6 July 2011 respectively. In our view these affidavits do not provide sufficient or reasonable explanation for the delay during the relevant periods. For instance, there is no explanation as to why the appellant did not engage a new lawyer when Mr. Donald’s ability to practice law was legally restricted. The engagement of Motuwe Lawyers by the appellant did not prove to be beneficial and effective because the law firm apart from filing a notice of change of lawyer did very little, if not, nothing constructive nor substantial in progressing the matter given the respondents tireless efforts.
15. The appellant argues that the primary Judge erred in failing to find that the delay was intentional and contumelious. It is clear
from the written judgment that the primary Judge did not expressly find that there was intentional and contumelious delay; however,
in our view it was open to inference based on the facts. As the trial Judge found in paragraph 11 of the judgment there were substantial
periods of inactivity. Unless there is reasonable explanation for the delay it is open for an adverse finding to be made against
the conduct of the defaulting party. The evidence in general is that Mr. Donald was ineligible to practice during the relevant periods.
This is not a reasonable explanation. There is no evidence as to what steps or action taken or contemplated during these periods
to arrest the situation. It has been held that a failure by the lawyer to act in the best interest of his client is not a good excuse:
Independent State of Papua New Guinea vs Colbert [1988] PNGLR 138. That case relates to a failure by a lawyer to file an appeal within time to protect the interest of his client. The pertinent statement
made in that case was:
“The applicants failed to appeal. This failure was an admitted mistake by the applicant’s legal advisers on the effects of the reference from the National Court. A mistake by a legal adviser is not in itself a convincing reason for a court to exercise discretion. In civil proceedings, the applicants would have a remedy in damages against the legal adviser.”
16. In this case it is a failure by the lawyer to refer the litigation interest of his client to another lawyer during the period of his incapacity or advise the client to seek assistance of another lawyer.
17. Further the Court has held that intention can be inferred by direct or indirect evidence, in other words, by circumstantial evidence: The State v Raphael Kuanande [1994] PNGLR 512. Although that case is a criminal case nevertheless, in my view, the principles also apply in civil proceedings.
18. Having considered the contentions of the appellant and perusing the affidavit materials available before the primary Judge we are not persuaded by the arguments advanced by the appellant. The affidavit materials formed the basis on which findings of facts were made by the primary Judge. There were adequate facts from which the conclusions were drawn and hence findings made. We find that there was ample evidence on which the primary Judge was entitled to make findings and draw conclusions of facts. We find no merit with regards to this issue and it is dismissed accordingly.
Issue 2: Whether the first and third respondents went before the National Court with clean hands.
19. The appellant submits the learned primary Judge overlooked the relevant evidence which showed that the first and second respondents did not come to court with clean hands. However, the appellant has not been able to clearly point to the evidence and articulate how it is said the conduct of the first and third respondents is questionable to the extent that it tainted the decision of the primary Judge.
20. It was generally argued the first and third respondents were uncooperative and non responsive in terms of the appellants efforts in having the notice to set down for trial and the statement of agreed and disputed facts and triable issues executed and filed which according to the appellant were part and parcel of the delay.
21. However, the learned primary Judge was concerned about specific periods of delay as pointed in paragraph 7 of his Honour’s judgment. The evidence showed that during these periods of inactivity Mr. Donald was without a practicing certificate and these were the underlying causes of the delay. These facts were deposed to in the affidavits filed by the first and third respondents. Given this we find there is nothing seriously untoward in the conduct of the respondents. We find there is no merit in the appellant’s argument on this issue.
Issue 3 - Whether the first and third respondents had and continued to suffer injustice and prejudice as a result of the delay (if any) in bringing the application to dismiss.
22. The appellant submits there is no evidence to show that the first and third respondents suffered actual prejudice as a result of the delay and further by their own conduct in contributing to the delay they have acquiesced their rights.
23. It is submitted on behalf of the first and third respondents that they and in particular the third respondent has and continues to suffer prejudice because the persons named as first respondents are no longer in the employ of Lihir Gold Limited and there would be costs and expenses involved in locating and bringing these people for trial. Some of these persons are foreigners and therefore expenses associated with air and land transport, meals and accommodation, medical and travel insurance are necessarily involved.
24. The primary Judge in considering this issue stated:
“14. LMC submits that it is a dormant company and but for these proceeding would be considered for voluntary winding up. It has no assets. Further, as to the 6 members of the committee named as the first defendants, only 2 of those members are now employed by Lihir Gold Limited. LMC does not know the whereabouts of the remaining persons apart from Mr. Paul Foulton. LMC will be prejudiced by having to incur costs in locating the members of the committee named as the first defendant and arranging for them to be in Kokopo for a trial. LMC will also be prejudiced by incurring associated expenses such as airfares, land transportation, food, accommodation, insurance and visa costs.
15. Counsel for Task Guard submits any liabilities of LMC would have been taken into account at the time of the corporate rearrangement with Newcrest Mining Ltd. This submission does not take into account increased costs, prejudice and injustice that LMC submits has occurred as a consequence of the delay in prosecuting the proceeding. Given the above, I am satisfied that LMC has and continues to suffer prejudice because of the delay in prosecuting the proceeding.”
25. These findings are based on the facts deposed to in the affidavit of Mr. Michael Howard the corporate counsel to Newcrest Mining Limited which affidavit was sworn on 14 July 2011. We therefore reject the appellant’s contention that there was no evidence to support such findings.
Issue 4 - Whether the balance of convenience favour an order for the dismissal of the proceedings.
26. The appellants submit the balance of convenience did not favour the dismissal of the proceeding because all that was required to be done was the signing of the Pleadings Book to enable the matter to be brought to trial.
27. The first and third respondents submit the justice of the case and therefore the balance of convenience warranted the dismissal of the proceeding in circumstances where there was inordinate delay without reasonable explanation which would prejudice the respondents in terms of costs and expenses.
28. The primary Judge at paragraph 21 of the judgment was critical of the conduct of the appellant and its lawyers concerning the delay. His Honour observed that:
“....... there has been inordinate delay without any or any reasonable explanation, that LMC continues to suffer prejudice and that the conduct of Task Guard and its lawyers is not the conduct that this court expects of on behalf of a plaintiff who properly prosecute its claim, I am of the view that it is in the interest of justice, and the balance of convenience favours that this proceeding be dismissed for want of prosecution.”
29. The evidence before the Court showed that for a period of 4 years from December 2005 to December 2009, the appellant failed to take any action to prosecute its claim in the proceeding. Then for a part of 2009 to March 2011 no step was taken by the appellant’s lawyer in settling the draft statement of agreed and disputed facts despite numerous correspondences and facsimile communications from the lawyers for the first and third respondents. There is evidence from the Secretary to the PNG Law Society that during this period Mr. Donald the appellant’s lawyer was not holding a valid practicing certificate. On 17 March 2011, Motuwe Lawyer took carriage of the matter from Donald Wesley Lawyers and apart from filing a notice of change of lawyers, failed to settle the draft statement. However, Motuwe Lawyers did forward a defective and irregular document namely a Pleading Book, but even then, the document was contrary to the practice requirements under Order 10 Rule 8 of the National Court Rules and Order 7 Rule 4(v) of the Listings Rules 2005. Consequently, the lawyers for the first and third respondents issued a notice of intention to apply to dismiss proceeding for want of prosecution. This was the second notice to the appellant. All these and other material facts are deposed to in detail in the affidavits by Mr. Derek Wood dated 24 May 2011 and 09 June 2011 respectively. We are satisfied there is sufficient basis or grounds on which the learned primary Judge is entitled to exercise his discretion in finding that the justice of the case and hence the balance of convenience warrant an order for dismissal of the proceeding.
Issue 5 - Whether the learned primary Judge erred in refusing to set the proceedings down for trial.
30. The appellant argues that there was good reason for the primary Judge to hear its application to set the matter down for trial and the first and third respondent’s application to dismiss together because firstly they are inter-related and secondly it has the right to be heard. The refusal by the primary Judge to hear its application not only constituted a breach of the principles of natural justice but also demonstrated an apprehension of bias.
31. The third respondent submits there was no apprehension of bias because the appellant’s application was filed belatedly as a knee jerk reaction to its application to dismiss and in any case its application was filed first in time and therefore having determined the outcome of the third defendant’s application it was not necessary to determine the appellant’s application.
32. We accept the submission of the third respondent. This is a matter of practice and procedure and within the discretion of the learned primary Judge. In any case it matters not whether the appellant’s application was heard together because at the end of the day the primary Judge was entitled to deal with the third respondent’s first and the end result would have rendered the appellant’s application of no consequence. We find no merit in this argument.
Issue 6 - Whether there was an apprehension of bias on the part of the learned primary Judge in refusing to set the proceedings down for trial.
33. The appellant argued that there was reasonable apprehension of bias on the basis that firstly the primary Judge failed to invite arguments on why two applications should or should not be heard together. Secondly, the appellant was directed to serve the respondents its application in anticipation of the hearing in the afternoon following the morning adjournment. Thirdly, the conspicuous absence of the respondents when the decision was made in dismissing the proceeding when the respondents were aware of the appellant’s application pending a hearing that afternoon.
34. The third respondent reiterated its earlier submissions and submits there was no apprehension of bias because the appellant’s application was filed belatedly as a knee jerk reaction to its application to dismiss and in any case its application was filed first in time.
35. The issue of apprehension of bias is a very serious indictment and must be clearly supported on the facts. It is not sufficient to rely on ill conceived and unsupported facts. We agree with the remarks by late Sevua J in Honge Gobe Limited (supra) where his Honour was critical of lawyers forming misconceived views and jumping to conclusion without proper basis or cause as regards to trial Judge’s discretion in the proper management of the case before the Court. His Honour made the following remarks:
“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 vigor, 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.”
36. The law and the governing principles in relation to bias as a ground to have a Judge disqualify or removed from a cause is settled. The case authorities make it plain that a Judge may be disqualified from presiding over a matter where it can be clearly demonstrated that from a fair minded objective observer having full knowledge of the relevant facts is likely to conclude that there is a real likelihood of bias on the part of the Judge. see Gobe Hongu Limited v National Executive Council & Others (1999) N1964, PNG Pipes Pty Ltd & Sankaran Venugopal v Mujo Sefa & Others (1998) SC592, In Application of Herman Joseph Leahy (2006) SC855 and Peter Yama v Bank South Pacific Ltd (2008) SC921.
37. The tests to be considered were applied in Peter Yama case (supra) where the Supreme Court reiterated as follows:
“1) 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;
2) Judges should resist from being driven from their Courts by the conduct or assertion of parties. Raybos Australia Pty Ltd v. Tectran Corp. Pty Ltd (No. 4) (1986) 6 NSWLR 674 (at 689);
3) A Judge may disqualify himself in circumstances where a fair minded lay observer, with knowledge of the material facts might entertain a reasonable apprehension that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question in issue. Livesey v. NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288;
4) A Judge should disqualify himself by reason of apprehension of bias, under one or more of the following principles, where it is demonstrated that, firstly, he has an interest in the case before him, which interest may be direct, indirect, pecuniary or otherwise. Secondly, by his conduct including published statements, whether such conduct is in the course of, or outside the proceedings. Thirdly, where the Judge, through association or relationship, either by himself, his spouse or children, has a direct pecuniary interest in the case and finally, disqualification by extraneous information, where the Judge had presided over an early case or he has had some knowledge of prejudicial and inadmissible facts. Webb v. R [1994] HCA 30; (1994) 181 CLR 41;
5) It is of fundamental importance in the administration of justice that litigants and the general public have full confidence in the integrity, including the impartiality of those entrusted with the administration of justice so that the impartiality and the Constitutional independence of the judiciary is not interfered with.
6) The test of an ‘objective observer’ established by the Supreme Court in PNG Pipes Ltd & Anor v. Mujo Sefa & Ors should also include ‘a fair minded, lay observer’ as considered in Livesay v. NSW Bar Association (supra).”
38. In this case the appellant has not pointed to any specific facts in support of its arguments. It simply relied on the transcript of proceedings. However, the transcript does not support its contention. The transcript show that the appellants counsel conceded at the very outset before the primary Judge that the appellant’s application will depend on the outcome of the respondent’s application to dismiss for 2 reasons; firstly that the respondents application was filed first in time and secondly of the nature of the application itself. The following appears from page 227 of the transcript as a matter of records with regards to the exchanges between counsel for the appellant and the Court:
“HIS HONOUR: Yes. So there are two notices of motion, is that right?
MR. DONALD: Yes, Your Honour. There is a motion by the first and third defendants for dismissal of proceedings, then we have one for having the matter to be set down for trial. We are of the position that both motions can be heard together where first and third defendants make their application. We will respond by moving our motion. Your Honour.
HIS HONOUR: Well, I would have thought that in the event – I am not adjudging the matter but in the event that I find in favour of the first and third defendants, there is no point in hearing your motion, is that?
MR. DONALD: Yes.
HIS HONOUR: So normally in a cause like this, when there is an application to dismiss, that will go first because in the event that it is successful, the other matters fall by the way sides, so we will proceed that way.
MR. DONALD: Yes, your Honour.
HIS HONOUR: And also I believe that that motion was filed first in time, was it not?
MR. DONALD: That is correct.”
39. On the basis of the concession and understanding reached between the appellant’s counsel and the Court the application for dismissal of proceeding was heard in the morning whilst the appellant’s application was parked away pending the outcome of the motion for dismissal. The transcript showed that after the Court heard the arguments on the motion the primary Judge reserved his ruling to a date and time to be advised through his Associate. The ruling was delivered 3 days later. It is not clear whether the respondents were advised of the date and time of the decision and if so when. However, the records indicate that lawyers for the respondents are non-resident and need to organize travel arrangements into Kokopo to receive the ruling. On the other hand Mr. Donald the lawyer for the appellant was a resident lawyer. There is no strict requirement for all parties to be present to receive a decision of the Court, although this is considered a matter of professional courtesy and respect. In these circumstances, we are not satisfied that there is any substance in the contention by the appellant.
40. For all the foregoing reasons we dismiss the entire appeal with costs.
Orders
41. The formal orders are:
__________________________________________________________________
Donald & Company Lawyers: Lawyer for the Appellant
Ashurst Lawyers: Lawyer for the First & Third Respondents
Warner Shand Lawyers: Lawyer for the Second Respondent
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