Barrick (Niugini) Ltd v Nekital [2020] PGSC 155; SC2107 (28 September 2020)

SC2107

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 18 OF 2020

BETWEEN:
BARRICK (NIUGINI) LIMITED
Appellant

AND:
STANLEY NEKITAL
First Respondent

AND:
JERRY GARRY
Second Respondent

AND:
MINERAL RESOURCES AUTHORITY
Third Respondent

AND:
HON. JOHNSON TUKE, MP Minister for Mining
Fourth Respondent

AND:
HON. JAMES MARAPE, MP
Fifth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

AND:
MINERAL RESOURCES ENGA LIMITED
Seventh Respondent

AND:
HON. DAVIS STEVEN, MP
Eighth Respondent

Waigani: Hartshorn J,
2020: 25^th & 28^th September

SUPREME COURT – practice and procedure - Application for disqualification of a Judge – application supported by the Attorney General – Attorney General is the Minister responsible for National Justice Administration and the Chairman of the Judicial and Legal Services Commission – Judicial and Legal Services Commission appoints Judges of the Supreme and National Courts – likelihood of incorrect perception or belief for a decision to disqualify

Cases Cited:

PNG Pipes Pty Ltd v. Sefa (1998) SC 592
Yama v. Bank South Pacific Ltd (2008) SC921
Tzen Pacific Ltd v. Innovest Ltd (2012) N4713

Counsel:

Mr. D. Wood, for the Appellant
Mr. N. Saroa, for the First, Third and Fourth Respondents
Mr. L. Kandi, for the Fifth Respondent
Mr. T. Tanuvasa, for the Second, Sixth and Eighth Respondents
Mr. G. Geroro, for the Seventh Respondent

Oral decision delivered on
28^th September 2020

1. HARTSHORN J: On 25^th September 2020, I heard an application for my disqualification from hearing these appeal proceedings. The application was moved by the seventh respondent and was opposed by the appellant. All the other respondents supported the application for my disqualification and adopted the submissions of the seventh respondent.

2. One of the respondents is the Hon. Davis Steven, MP in his capacity as the Attorney General and nominal defendant on behalf of the Head of State.

3. The Attorney General is the Minister responsible for the National Justice Administration and is the Chairman of the Judicial and Legal Services Commission. The Judicial and Legal Services Commission amongst others, appoints Judges of the Supreme and National Courts.

4. The Attorney General has supported an application for my disqualification on the ground that there is an apprehension of my bias. By supporting the application, the Attorney General has taken the position that it is not appropriate or proper that I should hear these appeal proceedings, he has questioned the propriety of these appeal proceedings being heard by me and has questioned my ability to correctly and properly adjudicate upon these appeal proceedings.

5. If I uphold the application and disqualify or recuse myself from hearing these appeal proceedings, there is in my view, the likelihood of a perception or belief that the reason for my decision is because the Attorney General, the Chairman of the body that appoints Judges, has requested me not to hear these appeal proceedings and I have acceded to his request or that I have agreed to the application for my disqualification merely because it is supported by the Chairman of the body that appoints Judges.

6. This is distinct from me deciding to disqualify myself according to law and upon proper principles. I refer in this regard to the principles contained in amongst others, the judgments of PNG Pipes Pty Ltd v. Sefa (1998) SC 592; Yama v. Bank South Pacific Ltd (2008) SC921 and Tzen Pacific Ltd v. Innovest Ltd (2012) N4713.

7. The likelihood of the perception or belief to which I refer, also arises due to a person being appointed a Judge of the Supreme and National Courts by the Judicial and Legal Services Commission for a renewable term of up to ten years if that person is a citizen and up to three years if that person is a non-citizen.

8. In such circumstances, I have decided that to ensure that there is no basis for such perceptions and beliefs, to emphasise and uphold the independence of the judiciary and in accordance with my judicial oath, I shall not consider or deliberate upon this application for my disqualification any further.

9. It is important to state that my decision should not be construed as being in anyway an adverse criticism of the Attorney General or his office.

10. Consequently, this application is adjourned for the Chief Justice to appoint another Judge to conduct the hearing as to my disqualification on a date to be advised.
__________________________________________________________________
Ashurst Lawyers: Lawyers for the Appellant
Nelson Lawyers: Lawyers for the First, Third and Fourth Respondents
MS Wagambie Lawyers: Lawyers for the Fifth Respondent
Solicitor General: Lawyers for the Second, Sixth and Eighth Respondents
Geroro Lawyers: Lawyers for the Seventh Respondent