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National Capital District Commission v Yama Security Services Ltd [2017] PGSC 7; SC1575 (10 March 2017)

SC1575

PAPUA NEW GUINEA
[IN THE SUPREME COURT JUSTICE]


SCA No. 31 of 2016


BETWEEN:


NATIONAL CAPITAL DISTRICT COMMISSION
Appellant


AND:


YAMA SECURITY SERVICES LIMITED
Respondent


Waigani: Kassman, Logan & Lindsay JJ.

2016: 26thOctober

2017: 10th March


PRACTICE & PROCEDURE – The Constitution; ss. 59, 169 – whether judges ought to disqualify themselves due to a reasonable apprehension of bias – alleged prior professional association – whether application ought to be heard and determined by Full Court or by each individual judge the subject of the disqualification application and only to extent that application related to that particular judge – HELD – at least in the first instance, application should be considered on the merits and ruled upon by each individual judge


PNG Cases cited:
Application by Herman Joseph Leahy [2006] PGSC 37; SC981
Burns Philp (NG) Ltd v Maxine George [1983] PNGLR 55
Bore v Wakore (2015) SC1410
Denden Tom, Daniel Wilson & Samuel Tom v The State (2008) SC967
General Accident Fire & Life Assurance Corporation Ltd. v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331
General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331
Joshua Kalinoe v Paul Paraka (2007) SC874
Marape v O’Neill [2015] PGSC 66; SC1472
National Narcotics Bureau v Nauro [2015] PGSC 71; SC1480
Peter Yama v. BSP; Smugglers Inn v Christopher Burt; Yakka Enterprises v Peter Yama (2008) SC921
Peter Yama v BSP & Ors (2008) SC921
Pacific Equities & Investments Ltd v Teup Goledu, NASFund and others (2008) N3400
Peter Norr v Dominic Ikamata (2005) SC815
SC Review (EP) No. 36 of 2013 Anton Yagama v Peter Charles Yama, Steven Biko and Electoral Commission of PNG
State v The Transferees (2016) SC1488


Overseas Cases :
Allen v. Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 and Birkett v. James [1978] AC 297
Barton v Walker [1979] 2NSWLR 740
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Kartinyeri v Commonwealth of Australia (1998) 72 ALJR 1334
Kartinyeri v Commonwealth of Australia A29/1997 [1998] HCA
Kartinyeri v Commonwealth of Australia [1998] HCA 22; (1998) 195 CLR 337
Rogers v Wentworth [1998] NSWCA 20
R v Bow Street Metropolitan Stipendiary Magistrate; ex parte Pinochet [1999] UKHL 1; [1999] 2 WLR 272
Rogers v Wentworth [1998] NSWCA 20


Legislations:
Constitution sections 59, 161(1) and (2), 162(2), 169(3) and 155(4)
Supreme Court Rules Order 13 Rule 16(1) and Order 7 Rule 48 (formerly Rule 53)


Counsel:


Mr I Molloy, & Mr P Kuman, for the Appellant
Mr B Lomai, for the Respondent


10th March, 2017


  1. BY THE COURT: This appeal was originally listed for hearing in the August sittings of the Supreme Court. At that time, it proved necessary for the appeal to be adjourned because of a failure on the part of the appellant to obtain, as the rules required, a certified copy of the reasons for judgment as revised by the learned primary judge. That omission was no mere formality. Those reasons for judgment had not just been delivered ex tempore but also, as transcribed, revealed an intention on the part of the learned primary judge that they be subject to correction upon revision by him. They have since been revised and certified by his Honour.
  2. In August, the appeal was adjourned to the Court’s October sittings. A little earlier in October 2016, the respondent filed an application in which it sought orders that Kassman and Lindsay JJ respectively disqualify themselves from participating in the hearing of the appeal on the basis that, in each instance, there existed a reasonable apprehension of bias. That application was returned for hearing before the Court as presently constituted on the date upon which the appeal was listed for hearing.
  3. Upon the application being called on for hearing, the Court raised with the parties whether it was contended that the application was one for consideration by the Court constituted as a Full Court, in other words by the three judges panelled to hear the appeal, or whether the application ought, so far as it related to him, be separately considered and ruled upon by the individual judge the subject of the disqualification application and then only to the extent that the application related to that particular judge. This point had not been adverted to by the respondent in its extract of argument. The lateness of the disqualification application meant that the appellant had had little enough time to advert to its merits, let alone this issue of practice and procedure. Even so, there was a consensus at the Bar table that, while such an application had sometimes in the past been considered on its merits and ruled upon by each member of a Full Court, it had also sometimes been dealt with solely by the individual judge concerned and that the latter was the course which ought to be followed in this case. We indicated that we proposed to follow the latter course.
  4. The procedural issue involved is one of some nicety and the opportunity to address it only infrequently arises. In these circumstances, we consider it desirable that we expand upon why we have followed the course proposed. These joint reasons for judgment are confined to enlarging upon the practice and procedure in respect of an application that a member of a Full Court of the Supreme Court should disqualify him or herself. We expressly refrain from collectively considering and ruling upon whether, on the facts respectively presented, either Kassman J or Lindsay J ought to disqualify himself.
  5. For the reasons which follow, we consider that, at least in the first instance, such an application should be considered on the merits and ruled upon by the individual judge concerned. It is for this reason that Logan J has not expressed any view on the substantive disqualification issues and why Kassman and Lindsay JJ will each deliver a separate judgment, confined to the disqualification issue raised in respect of him by the respondent. Neither will express any view as to whether a reasonable apprehension of bias arises in the circumstances of the other.
  6. Under the Constitution, the Supreme Court is established as a court which consists of all of the judges of the National Court (including the Chief Justice and the Deputy Chief Justice but excluding the acting Judges): s 161(1) of the Constitution. Establishment is one thing; the constitution of the Court for the exercise of its jurisdiction is another. Subject to those cases in which, by virtue of an Act or rule of court made pursuant to s 162(2) of the Constitution, the jurisdiction of the Supreme Court may be exercised by a single judge, the jurisdiction of the Supreme Court will usually be exercised by a panel of not less than three judges: s 161(2) of the Constitution. For convenience, we shall refer to the Supreme Court constituted in this collegiate fashion by a panel of judges as the “Full Court” (we also use that term in relation to other courts so constituted). The membership of a particular panel of judges to constitute the Full Court in respect of a particular case is, subject to such consultation with the other judges as appropriate, a matter for the Chief Justice in the exercise of the organisational and administrative responsibilities which fall to him to exercise under s 169(3) of the Constitution.
  7. In contrast to the Supreme Court, the jurisdiction of the National Court will, almost invariably, be exercised by a single judge. If only for this pragmatic reason, but perhaps also because it must be (as to which see below), in the National Court, a disqualification application will ordinarily be heard and determined by the single judge who constitutes that court with an appeal to the Supreme Court or, exceptionally, a review by that Court then being available in respect of the orders made in any resultant exercise of jurisdiction to determine the substantive National Court proceeding in which the disqualification application was made.
  8. For like reasons, when the jurisdiction of the Supreme Court is being exercised by a single judge, any disqualification application will ordinarily be made to that judge.
  9. The issue of practice and procedure which has arisen in this case differs from the circumstances just mentioned, because it relates to the exercise by a Full Court of the Supreme Court’s appellate jurisdiction.
  10. It is certainly possible to find examples of cases in the Supreme Court where a disqualification application has been considered by each of the members of a Full Court. In Marape v O’Neill [2015] PGSC 66; SC1472 Hartshorn J considered and participated in a ruling upon an application that the other members of the Full Court, Makail and Sawong JJ, should disqualify themselves on the basis of apprehended bias. Practice and procedure was adverted to in that case but only in relation to the form of the application: Marape v O’Neill at [24] per Makail and Sawong JJ. So, too, in Application by Herman Joseph Leahy [2006] PGSC 37; SC981 was an application as to whether a member of the Full Court (Cannings J) was disqualified on the basis of apprehended bias arising from prior employment in the Ombudsman Commission considered by each member of the Full Court (Kapi CJ, Cannings and David JJ). But the application in that case was that the necessary consequence of any disqualification of Cannings J was that the Full Court as then constituted had wholly to be reconstituted. So the very nature of the disqualification application made in that case serves to explain why each member of the Full Court considered it necessary to address the substantive issue. The practice and procedure in relation to such applications was not separately addressed in the Court’s joint judgment.
  11. In contrast, in National Narcotics Bureau v Nauro [2015] PGSC 71; SC1480, an application that Gavara-Nanu J disqualify himself on the basis of a reasonable apprehension of bias was considered and ruled upon by his Honour alone, not by the other members of the Full Court (Kandakasi and Yagi JJ). Obviously enough, the members of the Full Court considered that this was the appropriate course which should be followed but there was no elaboration in that case as to why that was so.
  12. As it happens, there are cases decided overseas which offer guidance as to the appropriate practice and procedure.
  13. In Australia, an application that Callinan J disqualify himself, on the basis of a prior professional association, from sitting to hear an appeal as a member of the Full Court of the High Court of Australia, was heard and determined by his Honour in chambers prior to the commencement of the hearing of that appeal: Kartinyeri v Commonwealth of Australia (1998) 72 ALJR 1334. Having ruled that he should not disqualify himself, Callinan J then participated as a member of the Full Court in the subsequent hearing of submissions on the appeal. Shortly thereafter, and on the basis of further evidence, an application was made to the High Court that Callinan J should not participate in the Full Court’s judgment. In the course of a directions hearing before Brennan CJ in chambers in respect of that further disqualification application, Kartinyeri v Commonwealth of Australia A29/1997 [1998] HCA Trans 43, the Chief Justice informed the parties that, after Callinan J had heard submissions from counsel in respect of the original disqualification application, Callinan J had called upon him to tell him of the issues which had been raised. Brennan CJ recorded that Callinan J had advised him that he had not decided whether or not he should sit as a member of the Full Court the following day. The Chief Justice further recorded that, in relation to this original disqualification application:

I advised the Judge that there was no necessity for a decision before the following day and that he should think about the question overnight. Although the Judge would have welcomed consultation with other members of the Court, the view was taken by me and by the other Justices that, at least in the first instance, the decision was one for the Judge alone.


  1. The transcript of this directions hearing also reveals that Callinan J did not propose to sit upon the hearing of the further disqualification application. As it happened, that further application was never heard and determined because, as is revealed by the Full Court’s judgment on the substantive proceeding, Kartinyeri v Commonwealth of Australia [1998] HCA 22; (1998) 195 CLR 337, Callinan J did not participate in that judgment. Even so, the history of the case management of the appeal after the initial disqualification application was made discloses what appears to be a settled approach in Australia’s final court of appeal where an application is made that one member of a Full Court is disqualified from sitting. That approach is that, at least in the first instance, the issue is one to be determined by the judge concerned alone. It has been left as an open question as to whether, thereafter, the other members of the Court can consider the correctness of that ruling but such a course has at least been contemplated.
  2. Instances prior to Kartinyeri v Commonwealth of Australia when objection was taken to a judge or some but not each of the judges constituting a Full Court and practices and procedures adopted in those cases were canvassed in 1975 in a note in the Current Topics section of the Australian Law Journal, “High Court Practice as to Eligibility of Judges to Sit in a Case” (1975) ALJ 110. Given that the later statement made by Brennan CJ in Kartinyeri v Commonwealth of Australia represents the collective, contemporary view of the judges of that court and that the consensus at the Bar table in the present case accords with our own view, it is not necessary to refer to the earlier cases discussed in that article.
  3. Since Kartinyeri v Commonwealth of Australia, Australian practice and procedure in relation to judicial disqualification applications has been remarked upon by a majority (Gleeson CJ, McHugh, Gummow and Hayne JJ) of the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner). The point arose in the context of an application for disqualification for interest made to a trial judge (in that case, Goldberg J), not to a member of a Full Court, so it is not directly analogous to the present. The majority stated in Ebner at 361, [74]:

Resolution of challenges


74. We note that Callinan J, in relation to the third matter referred to in his reasons for judgment, has expressed the view that it would be preferable in future for challenges of apprehended bias to be determined, where possible, by a judge other than the one who has been asked to disqualify himself or herself. With respect, we are unable to agree. On that approach, for example, some other judge of the Federal Court would have considered the challenge made to Goldberg J in Ebner. Adopting such a procedure would require examination of the power of that other judge to determine the question and the way in which that other judge's conclusion would find its expression. In particular, is the question of possible disqualification to be treated as an issue in controversy between the parties to the proceeding and is it to be resolved by some form of order? The issue is not one which was argued in the present appeals, and it is sufficient to say that, in our view, Goldberg J adopted what was both the ordinary, and the correct, practice in deciding the matter himself.


  1. In Papua New Guinea also, and for like reasons to those given in Ebner at [74], when such an issue arises in the National Court or when the Supreme Court is constituted by a single judge, we consider that any issue as to disqualification ought ordinarily be heard and determined by the judge concerned, rather than by an application heard and determined by another single judge. Here, too, to adopt some other course in such cases “would require examination of the power of that other judge to determine the question and the way in which that other judge's conclusion would find its expression”.
  2. With respect to an application for the disqualification of a member of a Full Court, the practice adopted in Kartinyeri v Commonwealth of Australia of regarding that application as one for determination by the judge concerned accorded not just with that adopted where a court’s jurisdiction was to be exercised by a single judge (as in Ebner) but also with a like longstanding practice adopted by intermediate appellate courts in Australia: see Rogers v Wentworth [1998] NSWCA 20 (Rogers v Wentworth) and Barton v Walker [1979] 2 NSWLR 740 at 749-750. The intermediate appellate practice is that the judge concerned, having heard the application, then pronounces reasons as to why the judge is or is not going to sit as a member of the Full Court. Such a pronouncement having been made and with respect to an intermediate appellate level court the jurisdiction of which is exercised by a Full Court, it is not considered that the other members of the particular Full Court have any power to review the decision reached by that particular judge: Rogers v Wentworth. Regard to these New South Wales cases also discloses that, in turn, this practice accords with that adopted by the United States Supreme Court, which is a final court of appeal and review. Yet in Kartinyeri v Commonwealth of Australia that there existed such a power was, as we have noted already, at least left open by the High Court, which is an ultimate appellate court.
  3. In R v Bow Street Metropolitan Stipendiary Magistrate; ex parte Pinochet [1999] UKHL 1; [1999] 2 WLR 272 (Pinochet), the House of Lords, then the United Kingdom’s ultimate appellate court, considered that it possessed jurisdiction to vacate one of its earlier judgments in circumstances where it later transpired that one member of the bench which had given that earlier judgment ought not to have sat because there existed a reasonable apprehension of bias. That was on the basis that the affording of natural justice, of which the bias rule forms part, was a fundamental feature of the exercise of judicial power. Given the presence of s 59 in The Constitution, it may readily be accepted that, in Papua New Guinea, natural justice is no less a fundamental feature of the exercise of judicial power by a Full Court of the Supreme Court but it is not presently necessary to consider whether the approach adopted in Pinochet is applicable in Papua New Guinea.
  4. Kartinyeri v Commonwealth of Australia is one of many cases and articles by learned authors analysed in an illuminating and comprehensive discussion paper, “Disqualification of Judges – Practice and Procedure”, prepared in 2001 for the Australian Institute of Judicial Administration by Dr M A Perry, Barrister (as her Honour then was). We have derived much assistance from her scholarship in that paper. Notably included in her paper is a discussion (at pp 62-64) of how, if at all, the correctness of a pronouncement on a disqualification application by an individual member of an ultimate appellate court might be considered by other members of that court. It is not presently necessary to rehearse that discussion or all of the cases to which reference is made on that subject. It is sufficient to record that the course promoted by the parties and which we have adopted in this case is consistent with Kartinyeri v Commonwealth of Australia and also, as the New South Wales cases mentioned disclose, with that adopted by other multi-member appellate courts.
  5. The only difference in the practice adopted in the present case arises from circumstances peculiar to Papua and New Guinea. Here, because the particular composition of a Full Court is often not determined until shortly prior to the listed hearing date and usually entails the panelling of at least one judge ordinarily resident in a provincial centre and because of provincial judicial commitments, it will often not be feasible (and in this case it was not, especially given the lateness of the disqualification application) for the individual judge concerned to hear in advance a disqualification application. Instead, as occurred in this instance, the application may necessarily have to be heard on the day appointed for the hearing of the appeal.
  6. For these reasons, Logan J will not make any pronouncement in relation to the disqualification application and, Kassman and Lindsay JJ will each proceed to deliver a separate judgment in respect of that application as it relates to him.
  7. KASSMAN J: The Respondent Yama Security Services Limited ("Yama") filed on 25 October 2016, an application to disqualify me from presiding over this appeal which was set for hearing on 26 October 2016. Yama also seeks disqualification of my brother Lindsay J who, like me, will respond separately. Although the Appellant ("NCDC") was served the application and supporting affidavits five minutes before commencement of the hearing, NCDC was ready to respond to the application. This appeal was first listed before us on 26 August 2016 but was adjourned to allow NCDC further time to secure reasons for judgment of the learned primary judge. It is acknowledged that in most proceedings set for hearing in the Supreme Court, parties are not advised of the composition of the bench until days before the date for hearing. At times, there can be changes to the membership of the bench with no notice to parties.
  8. The application to disqualify is made pursuant to Section 155(4) of the Constitution, the second limb of which provides both the National Court and the Supreme Court with unfettered inherent powers to make such “orders as are necessary to do justice in the circumstances of a particular case”.
  9. The Applicant relied on three affidavits all filed on 25 October 2016. Shadrach Teta and Gaskin Bolly say they were each employed as a para-legal with the legal firm engaged by Yama at the relevant times and they were aware of my involvement as lawyer for parties in proceedings involving Yama personally and his companies. They support the contentions of Peter Yama.
  10. Peter Charles Yama says he is the director and shareholder of Yama Group of Companies which consists of nine subsidiary companies including the Appellant Company. The relevant parts of his affidavit are repeated here. "I had on numerous occasions had a legal encounter with them on most of my cases, some of which were very controversial in nature and that their Honours were professional and personally were involved. Some of these cases I pointed here were cases in which their Honours were vigorously pursuing against the appellant and Peter Charles Yama at the relevant time. They include a. PNG Power Limited v Smugglers Inn Resort Hotel Limited WS No. 1067 of 2005.This matter involved some element of confrontations between parties and their lawyers as it related to a disconnection of power supply to the appellant's hotel in Madang, Madang Province. b. His Honour Justice Kassman was involved in his capacity as member of the Commission of Inquiry into the Finance Department when Peter Charles Yama was personally involved in a matter: OS No. 371 of 2008 - Gabriel Yer (the Finance Secretary) over his claim against the State for K15.5 million over a land in Madang. ... On the basis of His Honours having previously involved in these matters as aforementioned. I am of the strong opinion that Their Honours may have an apprehension of bias. "
  11. Yama does not assert that prior to my appointment to the bench I acted for NCDC, the Respondent in this appeal. Despite that, I can disclose that I did act for NCDC on a few matters. I cannot recall the details of those matters but none involved Peter Yama or any of his companies including the Respondent. I can say NCDC was not a major client of my legal practice of Kassman Lawyers. I also confirm that I acted for PNG Power Limited in the proceeding mentioned by Yama. Further, I also confirm I was Counsel Assisting the Commission of Inquiry into the Department of Finance and Peter Yama did appear before the Commission with his lawyers in response to a summons issued by the Commission which was investigating certain claims against the State and payments made by the Department of Finance to Peter Yama and his companies. This all occurred prior to my appointment as a judge of the National and Supreme Court of Justice.
  12. Peter Yama made a similar application seeking orders that I disqualify myself from sitting as single judge of the Supreme Court in the year 2013, two years into my first term as a judge of this court. In SC Review (EP) No. 36 of 2013 Anton Yagama v Peter Charles Yama, Steven Biko and Electoral Commission of PNG. I had before two applications for leave to review decisions of a judge of the National Court sitting as a Court of Disputed Returns. I dismissed the application to disqualify. In my judgement, I discussed the law on bias and disqualification which I restate here.

Law on bias and disqualification


  1. The Supreme Court discussed in detail the law on bias in Peter Yama v. BSP; Smugglers Inn v Christopher Burt; Yakka Enterprises v Peter Yama (2008) SC 921.I set out that discussion below.

“10. The leading case in respect of civil matters concerning an application for disqualification is the Supreme Court decision of PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa, Globes Pty Ltd and Romy Macasaet (1998) SC 592. This was followed by the Supreme Court in An Application by Herman Joseph Leahy (2006) SC855. This decision concerned an application to disqualify a Judge who had sat on a three man bench hearing an application for judicial review in criminal proceedings.


  1. In PNG Pipes (supra) it was held that: “the test applied in determining whether apprehension of bias was satisfied was whether an objective observer, knowing all surrounding facts, would be left with an apprehension, not a conviction that the judicial officer was predisposed, by matters extraneous to a proper adjudication, to reach a particular conclusion.”

12. In Leahy’s case (supra) it was held that:


“1) For a Judge to be disqualified from hearing a case on the ground of apprehended bias, the test to be satisfied is: would a reasonable and fair-minded person knowing all the relevant facts have a reasonable suspicion or apprehension that a fair hearing was not possible?


  1. The suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds.
  2. General knowledge on the part of a Judge, obtained in the course of previous employment, of the subject matter of legal proceedings will not, by itself, give rise to a reasonable suspicion or apprehension of bias in the event that the Judge deals with the subject matter in a judicial capacity.
  3. If a Judge's knowledge of the subject matter of legal proceedings is contended to be the basis of a suspicion or apprehension of bias there must be a real connection between the Judge’s knowledge and the issues for adjudication in those proceedings, eg if the Judge has expressed a prior opinion on the issues for adjudication.”

13. The PNG Pipes case (supra) was relied upon in the National Court decision of Gobe Hongu Ltd v. National Executive Council & Ors (1999) N1964, a decision of Sevua J. The head notes of that decision succinctly state factors to be considered on an application for disqualification:


“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).”


14. These cases have been followed in Hitron Pty Ltd v. PNG Telecommunication Authority [2000] PNGLR 357, Coecon Ltd v. National Fisheries Authority of PNG (2002) N 2182, Bank of Papua New Guinea & Anor v. Marshall Cooke QC & Anor (2003) N 2369, The State v. Puli A’aron (2003) N 2432 and recently in Pacific Equities & Investments Ltd v. Teup Goledu & Ors (2008) N3400.”


  1. The Supreme Court in PNG Pipes set the guide where a judge should disqualify. With respect, I adopt that guide. In the proceedings referred to by Yama, I acted for PNG Power Limited in one matter where claims were brought against Yama and his companies for non-payment of electricity bills. In the other, I was counsel assisting the Commission of Inquiry into the Department of Finance appointed by the Prime Minister. In both matters, I was acting as legal counsel for a commercial statutory entity and as Counsel Assisting the Commission of Inquiry appointed by the national government.
  2. In this appeal, the party opposing Yama is different. NCDC is a statutory organisation established by an Act of Parliament. The evidence submitted by Yama does not bring this application under any of the exceptions set out by the Supreme Court in PNG Pipes.
    1. Yama has not argued and neither has he established that I have an interest in this appeal, either direct, indirect, pecuniary or otherwise;
    2. Yama has not satisfactorily demonstrated by affidavit evidence that, by my conduct including published statements, I would be prejudicial or biased in the determination of this appeal;
    1. Yama has not demonstrated by affidavit evidence that, through association with other people including his family members and friends, I have a direct interest in this appeal, whether pecuniary or otherwise; and
    1. Yama has not demonstrated by affidavit evidence that I have presided over an earlier case or I have had some knowledge of prejudicial and inadmissible facts which are relevant to this appeal.
  3. I also repeat my discussions of four cases where applications were made for judges to disqualify themselves from sitting on matters on the basis of their past association or employment before being appointed to the bench. They all reiterate and apply well established principles of the common law on disqualification. None of those judgments are of assistance to Yama in his application now under consideration.
  4. In Peter Yama v BSP & Ors (2008) SC921 the Appellant Peter Yama applied to the Supreme Court to have His Honour Justice Hartshorn disqualify himself on the basis that Justice Hartshorn in his former employment as partner with Blake Dawson Waldron Lawyers, acted for Bank South Pacific Limited. Yama did not produce any evidence to substantiate the claim of apprehension of bias other than alleging that Blake Dawson Waldron was heavily involved in the privatization process that led to the merger or the sale of PNGBC to BSP and his Honour was also seen acting for the Privatization Commission in an OS proceeding by disgruntled employees over the amalgamation/merger of the banks until the employees’ outstanding issues were sorted out. The Court, in refusing the Yama’s application to disqualify Justice Hartshorn, held among others that “a prior professional relationship between a lawyer and client – even a long and proximate one – does not generally justify a reasonable apprehension that the lawyer, on becoming a judge, will not determine proceedings to which the former client is a party impartially on their legal and factual merits, because the relevant fair minded observer understands that the counsel is not beholden to the client after the relationship is severed”.
  5. In SCR No. 34 of 2005; Review Pursuant to Constitution Section 155(2)(B); Application by Herman Joseph Leahy (2006) SC981, the Appellant sought the disqualification of Justice Cannings from presiding over the Supreme Court bench to determine his review against the National Court’s decision to accept an ex officio indictment relating to misappropriation of funds belonging to the (formerly) National Provident Fund (NPF).The applicant alleged that Justice Cannings was formerly employed as the Counsel to the Ombudsman Commission prior to becoming a judge. At the time a Commission of Inquiry into the NPF referred a number of matters relating to the applicant to the Ombudsman Commission for further investigation. The application was not a leader, therefore not subject to the jurisdiction of the Ombudsman Commission. However, the applicant contented that the Judge would have had, in his capacity as a former lawyer for the Ombudsman Commission, prior knowledge of the allegations against the applicant and that a reasonable person would consider that that Judge may not bring impartial and unprejudiced mind to the resolution of the questions in issue in the Supreme Court. The Court in refusing the application held, amongst others, that “general knowledge on the part of a Judge, obtained in the course of previous employment, of the subject matter of legal proceedings will not, by itself, give rise to a reasonable suspicion or apprehension of bias in the event that the Judge deals with that subject matter in a judicial capacity... unless there is a real connection between the judge and the knowledge, i.e, if he has expressed an opinion on the issues for adjudication”.
  6. In Denden Tom, Daniel Wilson & Samuel Tom v The State (2008) SC967 the Appellants appealed against the decision of the trial judge Justice Mogish to convict them for wilful murder. One of the grounds of appeal was that the trial judge was the Public Prosecutor before becoming a judge, and therefore he should have disqualified himself from presiding over the matter on the ground that he was a former Public Prosecutor. This issue had not been raised with the trial judge, i.e, it was then raised in the Supreme Court for the first time. In any case the Supreme Court said that the Appellants did not provide any evidence of the trial judge having a party to play in their case during his time as Public Prosecutor, etc. The Court in refusing the appeal, among other things, said that asking “a Judge to disqualify merely because he had been a particular public office holder, or acting for a party particularly a larger organization like the State without more, hence amounts to a serious attack on the Judge’s integrity and impartiality, hence it should not be entertained.
  7. In Pacific Equities & Investments Ltd v Teup Goledu, NASFund and others (2008) N3400 in an appeal before the National Court, Justice Hartshorn was asked to disqualify himself because he had professional relationship with one or more of the parties during his time as a lawyer before he became a judge. The judge reasoned that professional relationship alone does not demonstrate apprehension that he would be biased in the appeal before him. Reasons similar to the ones given in the Peter Yama case were given.
  8. Yama has not made out a case for disqualification. I refuse the application by Yama for my disqualification in this appeal.
  9. LINDSAY J: On Wednesday 26th October 2016 Kassman, Logan and Lindsay JJ were listed to deal with SCA 31 of 2016: National Capital District Commission v Yama Security Services Pty Ltd (appeal). The appeal was listed before us for (i) summary determination (for non-attendance by the appellant on the first directions hearing date in September 2016 as per the full court’s order of 29th August 2016) and (ii) application by the appellant to discharge the order referring the appeal to the full court for summary determination and for possible hearing of the substantive appeal.
  10. When the Supreme Court (court) convened and after counsel for the parties entered their appearances (Mr. Ian Molloy and Mr. Peter Kuman for the appellant and Mr. Ben Lomai for the respondent), lead counsel for the appellant, Mr. Ian Molloy (Mr. Molloy) informed the court that there is an application filed by their client and that they are ready to deal with their client’s application as well as summary determination of the appeal. The respondent’s counsel Mr. Ben Lomai (Mr. Lomai) informed the court that there are four matters to be dealt with by the court and these are; (i) application for disqualification, (ii) application to set aside the order referring the appeal to the court for summary determination, (iii) summary determination of the appeal and (iv) application to have the appeal heard. Mr. Lomai submitted that the application for disqualification should be dealt with first followed by the application to set aside the order referring the appeal to the court for summary determination. Mr. Molloy informed the court that the application for disqualification was served at the bar table before the court convened. In any event, Mr. Molloy submitted he was ready to respond to the application for disqualification and did not take issue with the approach suggested by Mr. Lomai in dealing with the application for disqualification of Kassman J and Lindsay J first followed by the application to set aside the order referring the appeal to the court for summary determination. The court proceeded to hear submissions from Mr. Lomai and Mr. Molloy on the application for disqualification of Kassman J and Lindsay J and the application to set aside the order referring the appeal to the court for summary determination.
  11. Mr. Lomai moved the application to disqualify me. The application seeks the following orders; (b) an order pursuant to Section 155 (4) of the Constitution that I disqualify myself from presiding over the matter in this proceeding, (c) an order pursuant to Section 155 (4) of the Constitution that the hearing of this matter: SCA No. 31 of 2016 be vacated and the matter returns before the first available directions hearing for further directions, (d) an order for costs to be in the cause of the substantive appeal and (e) such further order(s) and or direction(s) as the court considers appropriate to make in the circumstances of this case and or the interests of justice.
  12. The grounds relied upon in support of the application are; (1) prior to my appointment to the Bench, I was involved in many of the appellant’s matters where Peter Charles Yama was and is still the director and majority shareholder in the appellant’s company and eight other companies under Yama Group of Companies. Smugglers Inn Resort Hotel, Yama Security Services Limited, Madang Taxi Hire, Ace Guard Dog Security Limited was some of the nine companies that come under the umbrella of Yama Group of Companies, (2) I was personally involved in a number of matters, as then junior counsel to Eric Anderson of Gadens Lawyers. These matters include ; O.S No. 511 OF 2000 – PETER YAMA & ORS vs. PNGBC & ORS, Yama Security Services v. Post (PNG) Limited – WS No. 567 of 2000, DAVID GUINN ats PETER YAMA & AGATHA YAMA – O.S NO. 488 OF 2007 (COMM), Peter Yama vs. Public Officers Superannuation Fund – WS. No. 1295 of 2000, SCA NO. 110 OF 2004 – PETER YAMA & 2 ORS vs. BANK SOUTH PACIFIC LIMITED, PNGBC & CHRISTOPHER S. BURT vs. SMUGGLERS INN RESORT HOTEL, NEISENEL NO. 77 LTD & YAMA SECURITY SERVICES LTD – SCA. NO. 41 OF 2002, APPLICATION TO RE-OPEN: SCA. NO. 106 & 108 OF 2003 – YAMA SECURITY SERVICES LTD & ACE GUARD DOG SECURITY SERVICES LTD ats TELIKOM PNG LTD & LINDSAY LAILAI, SCA No. 110 of 2004 and SCA No. 112 of 2004, SCA. NO. 88 OF 2006 and few others which are not included on this list and (3) Some of these matters were protracted matters which involved a lot of controversies, particular with the former PNGBC Bank issues which tied down Mr. Yama to an alleged bank loan. The issues were vigorously pursued by the bank’s lawyers Gadens in which Eric Anderson and I were involved, even to the time immediately prior to my appointment to the Bench.
  13. The evidence relied upon in support of the application are the affidavit of Mr. Peter Charles Yama (Mr Yama) filed on 25 October 2016, the affidavit of Mr. Shadrach Teta (Mr. Teta) filed on 25 October 2016 and the affidavit of Mr. Gaskin Bolly (Mr. Bolly) filed on 25 October 2016. Mr. Yama deposes that; (i) he is the director and shareholder of Yama Group of Companies which consists of 9 other subsidiary companies which includes the appellant’s company, (ii) The composition of the judges allocated to hear this matter was made known to him on Monday 24th October 2016 when he just arrived in Port Moresby from Manila, (iii) When the court dealt with the appeal on 26th August 2016 and ordered it adjourned because the judgement of the trial judge Sir Sakora J was not available, he arrived 15 minutes late thus did not have an opportunity to instruct his lawyers to ask for my disqualification on the basis of the grounds alluded to in his application, (iv) He requested for my disqualification as on numerous occasions he had a legal encounter with me on most of his cases, some of which were very controversial in nature and that I was professional and personally involved, (v) Some of these cases he referred to here were cases in which I was vigorously pursuing against the appellant and him at the relevant time and (vi) He repeats the cases listed under (2) of the grounds for the application to disqualify me. Mr. Yama annexes 7 correspondence. The correspondence are marked PCY 3 to PCY 9 to his Affidavit.

  1. Mr. Teta deposes that he was a former paralegal with Mr. Lomai’s law firm and was employed from 2004 to 2009. He assisted Mr. Lomai in many big cases in the National and Supreme Courts. He says Mr. Yama was biggest client who brought in plenty of big instruction (cases) against big companies to the firm. He remembers Yama Security Services Limited and other company of Yama Group going against BSP, MVIL, POST PNG, TELIKOM, etc. He remembers Posman Kua Lawyers, Gadens Lawyers, Kassman Lawyers and Blake Dawson Lawyers and couple of Queens Counsels were big law firms representing the other parties on the other side. He remembers me assisting Erik Andersen with BSP cases involving millions of kina and now he knows I have been appointed National/Supreme Court Judge. He says I have been involved in cases for/against the respondent and other companies and have a fair idea/knowledge of all cases. Therefore he opposes me sitting to hear this appeal and with respect wants me to disqualify myself from hearing this appeal.
  2. Mr. Bolly deposes that he was employed by Mr. Lomai’s law firm from 2007 to 2010 as a paralegal. During that time Mr. Lomai and his law firm had carriage of all litigation matters for Mr. Yama and the Yama Group of Companies. Most of the cases against Mr. Yama and his companies were instituted by Papua New Guinea Banking Corporation (PNGBC) now Bank of South Pacific Limited (BSP). The Banks were represented by Gadens Lawyers at that time. Gadens Lawyers at that time acted for BSP and the lawyers of those matters were I and the managing partner of Gadens Lawyers Mr. Erik Anderson. He vividly recalls when assisting Mr. Lomai to bring case files to the court room and observing the lawyers over the bar table in those proceedings concerning Yama’s matters, I and Erik Andersen were on the other side representing the bank BSP. I and Erik Andersen also represented other clients like Telikom PNG Limited against Yama Security Services Ltd in other separate matters in the National Court (WS#567 of 2000). He has been reliably informed that this matter is still pending before the National Court.
  3. Mr. Lomai referred to and relied on his written submission when making the application. Mr. Lomai submitted when I was a lawyer up to my appointment as a Judge of the National and Supreme Court, I was involved in representing clients in many matters in which the respondent was a party. Accordingly there is an apprehension of perceived and or actual bias thus I should disqualify myself from presiding over and dealing with the appeal. Mr. Lomai referred to and relied on Sections 59 (2) and 155 (4) of the National Constitution and the following PNG and Overseas cases; (a) The State v Stuart Fancy [1994] PNGLR 548, (b) PNG Pipes & Anor v Mujo Sefa & Anor SC 592, (c) Buateng v The State [1990] PNGLR 342, (d) Ex parte Felman [1978] 52 ALJR 155 at p158, (e) The State v Joe Ivora & Anor [1980] PNGLR 1, (f) The State v Sari [1990] PNGLR 48, (g) Yama & Ors v BSP Bank & Ors (SCA NO. 85 OF 2003, SCA 110 OF 2004, SCA 88 OF 2006), (h) Trustee of Christian Brothers v Cardone [1995] FCA 1309; 130 ALR 345, (i) Metropolitan Properties Co. (FGC) Limited v. Lannon (1969) 1 Q13 577, (j) R v. Liverpool City Justices, Ex parte Topping (1983) 1 WLR 119 and (k) Levesey v. NSW Bar Association CLR p 293 – 4.
  4. Mr. Molloy opposed the application to disqualify me. Mr. Molloy submitted the law on disqualification of judges is settled in PNG. Mr. Molloy submitted the evidence in support of the application to disqualify me did not meet the test and the law on disqualification of judges thus the application should be refused. Mr. Molloy referred to the following PNG and Overseas cases; (i) PNG Pipes & Anor v Mujo Sefa & Ors SC 592, (ii) BSP & Ors v Yama & Ors SC 921, (iii) Pacific Equities & Investments Ltd v Teup Goledu & 3 Ors N3400 and (iv) British American Tobacco Australia Ltd v Peter Gordon & Anor [2007] NSWSC 109.
  5. Kassman J has succinctly set out the law and the criteria or test that has to be met for a disqualification application against a judicial officer such as a judge to be successful and cited and discussed the relevant case authorities, which I respectfully adopt and apply in the application to disqualify me.
  6. I was an employed lawyer with Gadens now known as Dentons (Gadens) from October 2002 to February 2015. I practised on my own from March 2015 to February 2016. I was sworn in as a judge of the National and Supreme Courts of Justice in PNG on 03rd March 2016. During my employment with Gadens, I assisted Erik Andersen – Senior Litigation Partner (Mr. Andersen) handle matters for Gadens clients’ in which some of the parties on the other side included the respondent and companies where Mr. Yama was a director and a shareholder. Gadens ceased to act on matters for clients’ in which some of the parties on the other side included the respondent and companies in which Mr. Yama was a director and a shareholder in January 2010. Gadens filed and served the prerequisite Notice of Ceasing to Act (Notice) for these matters on lawyers representing the respondent and companies where Mr. Yama was a director and a shareholder in January 2010. Notices for some of these matters were filed and served after January 2010 due to the files not being located by the National and Supreme Court Registry staff at Waigani and some files being filed outside of Waigani especially in Madang National Court Registry.
  7. The appellant in this appeal is National Capital District Commission (NCDC), a statutory organisation established by an Act of Parliament. The appeal is not a matter that NCDC briefed to Gadens when I was an employed lawyer and so neither I nor Mr. Andersen handled the appeal nor did I assist Mr. Andersen deal with the appeal for NCDC.
  8. Paragraphs 1 and 6 of Mr. Yama’s affidavit are defective as NCDC did not brief the appeal to Gadens and NCDC is not part of the Yama Group of Companies. Annexures PCY 3, PCY 4, PCY 5, PCY 6, PCY 7, PCY 8 & PCY 9 to Mr. Yama’s affidavit are defective as they are not authored by Mr. Yama nor are they copied to Mr. Yama, they are not on letterhead and Mr. Yama does not state how they came into his possession. The last page of the affidavit of Mr. Yama is not signed by Mr. Yama. It is defective. The first page of Mr. Bolly’s affidavit is not executed. It is defective.
  9. Notwithstanding the defects in the affidavit evidence highlighted above, the evidence relied on in support of the application to disqualify me does not show;
  10. Having held that some parts of the affidavit evidence in support of the application to disqualify me are defective and having held that the affidavit evidence does not meet/satisfy the criteria/test for disqualification of a judicial officer such as a judge, it follows that the application to disqualify me should be dismissed with costs to be taxed if not agreed, which I so order.

Summary Determination


53. BY THE COURT: With Kassman and Lindsay JJ having refused Yama's applications that they disqualify themselves from sitting on this appeal, we now turn to the remaining preliminary applications.


54. When we vacated the hearing on 29 August 2016 to allow the Appellant further time to obtain a certified copy of the reasons for judgment as revised by the learned primary judge, we also ordered "2. The appeal returns for directions on the first directions date in October 2016." The first directions date in October 2016 was 3 October 2016.The Appellant's lawyer failed to appear. Indeed the Respondent's lawyer also failed to appear although Peter Yama was present in person. His Honour The Chief Justice Sir Salamo Injia presided over directions that day and ordered:


"1. The appeal is fixed for Summary Determination on 26 October 2016 at 9:30am.


  1. Deputy Registrar Supreme Court to issue an order in those terms and issue a Notice of Summary Determination Hearing and serve those documents on parties and file and Affidavit of Service forthwith.
  2. Reasons for referral for Summary Determination is the Appellant's failure to attend Court today as per the Full Court's Orders of 29 August 2016."

55. On 14 October 2016, the Appellant filed an application seeking a number of orders the essential one being an order that the directional order of 3 October 2016, referring the appeal to us for summary determination, be set aside. On 26 October 2016, we heard together the referral for summary determination and the Appellant's application to set aside. The relevant documents are contained in the Application Book compiled by the Deputy Registrar Supreme Court and filed 24 October 2016.


Law on Summary Determination or summary dismissal


56. Order 13 Rule 16(1) of the Supreme Court Rules provides "The Court may summarily determine a matter:- (a) on application by a party; or (b) on referral by a Judge; or (c) on the Court's initiative; or (d) upon referral by the Registrar in accordance with the procedure set out in sub rule (2) below or pursuant to s11 of the Act."


57. The Supreme Court has consistently said the power to summarily determine a matter is discretionary, similar to the power to dismiss an appeal for want of prosecution pursuant to Order 7 Rule 48 (formerly Rule 53) of the Supreme Court Rules. In General Accident Fire & Life Assurance Corporation Ltd. v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331 the Supreme Court held that:-

"1. The power to dismiss an appeal for want of prosecution pursuant to Rule 53 (a) of the Supreme Court Rules is to be exercised where the appellant has not prosecuted the appeal with due diligence, having regard to the public interest in finalizing litigation.

  1. Matters relevant to the want of due diligence include failure to attend on settlement of the appeal book, failure to explain non-attendance, failure to respond to correspondence and failure to provide any explanation for dilatory conduct where an explanation could properly be expected.

  1. The discretionary power under Rule 53 (a) should not be exercised where no explanation for want of due diligence is made."

58. The Supreme Court has adopted and applied the common law principles in two English cases General Accident Fire & Life Assurance Corporation Ltd. v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331Allen v. Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 and Birkett v. James [1978] AC 297 at 298. The relevant principles adopted was “That the power of the Court to dismiss an action for want of prosecution should be exercised only when the plaintiff’s default had been intentional and contumelious or where there had been inordinate and inexcusable delay on his or his lawyer’s part giving rise to a substantial risk that a fair trial would not be possible or to service prejudice to the defendant."


59. These principles have been applied in numerous authorities including Burns Philp (NG) Ltd v Maxine George [1983] PNGLR 55; Joshua Kalinoe v Paul Paraka (2007) SC874; Peter Norr v Dominic Ikamata (2005) SC815: Bore v Wakore (2015) SC1410: State v The Transferees (2016) SC1488.


60. The Chief Justice's referral was made on the basis of "... the Appellant's failure to attend Court today as per the Full Court's Orders of 29 August 2016." In other words, the Chief Justice referred the appeal to this court for summary determination on the basis of the failure by the Appellant's lawyer to attend court for directions on 3 October 2016, being the first date for Supreme Court directions in the month of October 2016.The referral was made especially considering the order to attend directions was specifically ordered by the full court.


61. The Appellant filed and relied on four affidavits all sworn by the lawyer for the Appellant Peter Kuman ("Kuman") the first two filed on the 14th and the next two filed on the 19thof October 2016. Kuman says that since the hearing was vacated on 29 August 2016, he has been following up on the written decision of the primary judge communicating with Sakora J's Associate John Lelegi ("Lelegi") by numerous telephone calls, mobile phone text messages, email and letters. Mobile phone text messages were exchange between Kuman and Lelegi on the 1st, 9th, 15th, 20th and 29th of September 2016.Kuman also attached to his affidavit copies of letters and email communication with Lelegi on the 20th, 21stand 28th of September 2016. Kuman says the Primary judge's Decision was eventually released by Sakora J's chamber and was collected the same day by Kuman's secretary on 4 October 2016.


62. Kuman also says he was not aware this appeal was listed for directions on 3 October 2016 and that is the sole reason why he failed to appear in court that day for directions in this appeal before the Chief Justice. He became aware of the directions and the Chief Justice orders referring the appeal for summary determination when his secretary attended at the Registry on 4 October 2016 to collect the Decision of Sakora J when she also obtained a copy of the court file endorsement of 3 October 2016.Kuman says his failure to attend directions on 3 October 2016 was not intentional as he was not aware of the date being fixed for directions and he was not advised of the fixture by the Supreme Court Registry Officers. Kuman also says the lawyer for the Respondent did not attend directions although Yama himself appeared in person. Kuman however concedes he received at 9am on 3 October 2016 an email from the court to all lawyers attaching the daily diary for the Supreme and National Court sittings in Waigani for that day 3 October 2016 but he says the same email did not have attached the list of matters for directions that day. That may have been the case but the daily diary clearly states the Chief Justice was conducting Supreme Court directions at 9:30am that morning. The responsibility fell on Kuman and also on Lomai to appear at directions to advise the court as to the steps taken to progress this appeal and its readiness for listing for hearing.


63. The question for this court is whether, the Appellant's default was intentional and 4 contumelious or whether there has been inordinate and inexcusable delay on the of the Appellant's lawyer giving rise to a substantial risk that a fair hearing of the appeal will not be possible or that inordinate and inexcusable delay has resulted in some prejudice to the Respondent in the hearing of the appeal.


64. We are satisfied the Appellant's lawyer has provided an explanation for his failure to attend directions on 3rd October 2016.That is a reasonable explanation and that explanation was not seriously challenged or disputed by the Respondent. In fact the Respondent's lawyer also failed to attend directions on 3rd October 2016 and that may have been for the very same reason advanced by the Appellant's lawyer. We are satisfied the appeal is ready to be listed for hearing with the written reasons for decision of the learned primary judge released to the parties on 4th October 2016.That was the only reason why the earlier hearing date of 29th August 2016 was vacated and directions issued by this court to be attended to by the Appellant. There was no serious argument raised by the Respondents that they have been prejudiced by the default on the part of the lawyer for the Appellant or that there is any risk that a fair hearing of the appeal will not be possible. Naturally, costs have been occasioned by the delay but that can be easily compensated by appropriate orders for costs at the relevant time.


65. As for the Appellant, it will suffer substantial injustice if the appeal is summarily determined on the basis of the default on the part of its lawyer and without the appeal being determined on its merits. The default was unintentional and the Appellant's lawyer has shown to our satisfaction that he was diligently pursuing collection of the written reasons of the learned primary judge, as directed by this court, from the time the hearing was vacated up until the day of its release on 4 October 2016 and that period includes the day of the Chief Justice's referral of 3 October 2016.We also agree with the Appellant's counsel that to summarily dismiss this appeal will be totally disproportionate to the failure to attend directions on just one occasion on 3 October 2016.We also note the judgment under appeal is an order that the Appellant pay the Respondent K17,871,510.00 in addition to an order that the Appellant pay the Respondents costs of K5,000,000.00.The total judgment debt now under appeal is K22,871,510 which is very substantial amount of public funds.


66. For the reasons stated, we will not summarily determine or dismiss this appeal.


67. The formal Orders of the Court are:


  1. The application for disqualification of Justice Kassman is refused.
  2. The application for disqualification of Justice Lindsay is refused.
  1. The respondent will pay the appellant’s costs of the applications for disqualification, to be taxed if not agreed.
  1. As to the referral for summary determination, the appeal will not be summarily dismissed.
  2. The appeal is to be listed on the directions hearing list for Monday 13 March 2017 at 09.30 am for allocation of a hearing date of the Appeal in the August 2017 sittings of the Supreme Court at Waigani.

____________________________________________________________________
Kuman Lawyers : Lawyer for the Appellant
Lomai & Lomai Attorneys : Lawyer for the Respondent


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