Electoral Commission of Papua New Guinea v Kaku [2020] PGSC 37; SC1950 (11 May 2020)

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APPLICATION UNDER SECTION 155 (2) (b) OF THE CONSTITUTION
AND
IN THE MATTER OF PART XVII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

PRACTICE & PROCEDURE – Application for disqualification of a Judge – serious matter - must be on good basis – must be by formal application clear pleading basis for –supported by affidavit disclosing factual basis for – counsel to certify application made in good faith - application without good basis could amount to scandalising the court and contempt of court – facts not disputed – application based on allegations of prejudice arising from Judge’s decision in an earlier interlocutory application – having made a decision in earlier proceedings alone not good reason to disqualify – to succeed in an application based on prejudice or bias prejudice must be brought home to the Judge – no case made out for disqualification – application dismissed with costs.

PRACTICE & PROCEDURE – Duty of a lawyer appearing in court – as an officer of the court - duty to the court paramount – duty to the court attached to a duty to assist in the administration of justice – duty to safe guard against scandalising the court and avoid wastage of court’s time bringing baseless applications or cases - duty extends to disclosing all cases relevant to the issues before the court including those against own client – failure to disclose earlier decision in the same case – effect of – fatal to client’s case - Lawyers Professional Conduct Rules, 1989; rr. 10 (1) and 15 (5).

PRACTICE AND PROCEDURE - Lawyer communicating with the Court without copying other parties – purpose of communication - seeking to disqualify a Judge - duty to inform the other parties and Judge concerned at the first instance – failure to - effect of - Judge shopping -unprofessional conduct and in breach of professional conduct rules –consequence of – could be fatal to clients case and lawyer’s own reputation and standing before the court – Professional Conduct Rules, r. 15(12) and (13).

WORDS & PHRASES – Prejudice – meaning of - bias, preconception, prejudgement, predisposition, or partiality” – in terms of a judicial prejudice - favouritism that is shown by a judge to one party that is involved in a law suit.”

The first respondent applied to have a judge disqualified without clearly stating the basis for the application. However, from submissions the basis for the application was identified as prejudice based on the judge having made observations and a decision in a deliberate judgement in an interlocutory application in the same case. The affidavit filed in support of the application merely referred to parts of the Judge’s earlier decision in the same case without any additional facts supporting the applicant’s claim of prejudice. The application was a repeat of an earlier failed application on essentially the same basis but made orally, and which fact, was not disclosed by the applicant and his lawyer when making the second application. Also, the applicant’s lawyer did not assist with most of the relevant cases on point. Further, the applicant’s lawyer wrote to the court asking for a judge other than one sought to be disqualified to hear and determine the application. That was done without first informing the judge concerned and without copying the relevant communication to the other parties.

Held: (In addition to the established principles governing applications for disqualification of a judge):

1. Applying to disqualify a judge from presiding in a case is a serious matter and as such it must be made seriously on substantial grounds failing which the application could amount to a scandalising the court and could amount to contempt of court.

2. Given the seriousness of an application for the disqualification of a judge, the application must be made formally with the grounds clearly pleaded with particulars, supported by an affidavit setting out the relevant facts and certified as being made in good faith by the applying party’s lawyer or counsel.

3. The affidavit filed in support of an application for disqualification on the basis of prejudice or bias must amongst others disclose and meet the test that 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.

4. A judge having made observations and or a decision in an earlier interlocutory application in the same matter does not of itself give rise to prejudice and hence a basis to disqualify the judge from further dealing with the matter unless, a case of real likelihood of prejudice against the applicant is made out and not a mere speculation.

5. A lawyer appearing for a party making an application for a disqualification of a judge has a duty to the court which is paramount and that duty requires the lawyer to disclose all cases or authorities on point, including those against his client.

6. In this case, in addition to disclosing cases, the applicant was required to disclose the fact of having made a similar application earlier and the decision and that failure was fatal to the application.

7. It is unprofessional and a clear breach of the Professional Conduct Rules 1989 for a lawyer to further his client’s interest by seeking to have an application for disqualification of a judge heard by a judge other then the judge concerned without first informing and seeking the judge’s consent or approval and without copying or informing the other parties.

7. The applicant failed to establish a case of prejudice against the presiding judge and was in any event, precluded by the doctrine of res judicata and or issue estoppel from making the application on the basis of which the application for disqualification was dismissed with costs.

Airlines of PNG Ltd v Air Niugini Ltd (2010) N4047
Anderson Agiru v Aluago Alfred Kaiabe (2015) SC1412
An Application by Herman Joseph Leahy (2006) SC981
Boateng v. The State [1990] PNGLR 342
Digicel (PNG) Ltd v. Miringtoro (2015) SC1439
Dr. Bob Tawa Danaya v Ati Wobiro (2014) N5674
Dr Onne Rageau v Kina Finance Ltd (2018) N7405
Electoral Commission v. Pr Bernard Kaku (2019) SC1866
Gobe Hongu Ltd v. National Executive Council & Ors (1999) N1964
Inland Revenue Commissioners v. National Federation of Self-Employed and Small Business Limited [1981] UKHL 2; [1982] AC 617
Ipara v. Trainor (2018) N7646
MVIL v. Kauna Kiangua (2005) SC1476
National Housing Corporation v. Paul Asakusa & Ors (2012) SC1165
Peter Bire v. Dr Philip Kereme (2016) N6328.
Peter O’Neil v. Nerrie Eliakim (No 1) (2016) SC1522
Peter Yama v. Bank South Pacific (2008) SC921
Philemon Wass Korowi & Others v. Sgt Elijah Aron & The State (2016) N6215
PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa, Globes Pty Ltd and Romy Macasaet (1998) SC 592
Telikom PNG Limited v. ICCC (2007) N3144
Telikom PNG Ltd v. ICCC (2008) SC906
Titi Christian v. Rabbie Namaliu (1995) SC1583
The State v. James Gurave Guba (2000) N2020
Tzen Pacific Ltd v. Innovest Ltd (2012) N4713
William Powi v. Bernard Peter Kaku (2019) SC1856

Mr. R. Diweni, for the Applicant/First Respondent
Mr. H. Nii, for the First Respondent/Applicant
Mr. L. Tangua, for the Second Respondent

1. KANDAKASI DCJ: Pastor Bernard Kaku (Pr. Kaku), the First Respondent in this proceeding applied for my disqualification from hearing the Electoral Commission’s (EC) application for leave to apply for judicial review. This was a repeat of an application he made on 17^th October 2019, at the hearing of a related proceeding, namely SC Rev (EP) 4 of 2019 - Electoral Commission v. Pastor Bernard Peter Kaku and William Powi, without disclosing that fact.

2. Pastor Kaku filed his present application on 17^th April 2020. The application does not specify the grounds relied upon for my disqualification. However, in the second last paragraph of his lawyers’ submissions filed on 22^nd April 2020, he states the grounds in terms of:

“It is submitted that His Honour may have, is likely to and or been seen to be prejudiced and that there is likely to be an apprehension of bias in dealing with the current application.”

(1) Is Pastor Kaku entitled to repeat his application for my disqualification and do so without first disclosing his earlier application?

(2) Subject to an answer to the first question, has Pr Kaku made out a case of I “may have, [am] likely to and or been seen to be prejudiced and that there is likely to be an apprehension of bias in dealing with the current application?

4. In support of his application, Pr Kaku deposed to and filed an affidavit on 17^th April 2020. The following is the relevant chronology of events:

(1) After the 2017 elections, Pr Kaku filed a petition against Mr Powi’s election victory for the Southern Highlands Regional Seat;

(2) The EC and Mr Powi responded by filing separate objections to the competency of the petition.

(3) The objections were heard in the National Court by His Honour, Manuhu J., who delivered his decision on 18^th February 2019. The decision only determined Mr Powi’s objection upholding parts of the grounds for the objection resulting in a strike out of some grounds of the petition. However, the Court did not make a decision on the EC’s objection.

(4) Both the EC and Mr Powi filed for leave for a review of the decision on their respective objections and before that they also filed applications for dispensation of the requirements under Order 5, r.7 of the Supreme Court Rules restricting review applications to only final decisions out of an election petition.

(6) The EC and Mr Powi applied to the full Court for a review of Hartshorn J.’s decision.

(7) While the Supreme Court proceedings were pending, Manuhu J., proceeded with the trial with Pr Kaku closing his case on 19^th March 2019.

(8) On 20^th March 2019, the pending Supreme Court applications got mentioned in Court before Mogish, Dingake JJ., and myself. The Court ordered a stay of proceedings in the National Court pending a determination of the proceedings in the Supreme Court. That was in due recognition of the hierarchy of courts under s. 155(1) of the Constitution and more so, to avoid arriving possible conflict decisions, one from the National Court and another from the Supreme Court.

(9) On 1^st April 2019, the full Court heard the applications for dispensation by the EC and Mr Powi.

(10) On 30^th April 2019, the full Court delivered its decision granting the dispensation requested by the EC and Mr Powi.

(11) Following the dispensation, Salika CJ., heard the applications for leave for review and decided to dismiss Mr Powi’s application and granted the EC’s application for leave.

(12) On 17^th October 2019, the Supreme Court comprising of David and Anis JJ and myself heard the EC’s application for review and granted the application in a written judgment delivered on 30^th October 2019.

(13) Before the full Court could hear the matter, an application was made by counsel for Pr Kaku for my disqualification (the first application) which application was dismissed in an ex tempore decision.

(14) Pastor Kaku’s petition then went for a hearing before her Honour, Berrigan J., who first dealt with the EC’s objection to competency on 11^th March 2020.

(14) On 03^rd April 2020, Berrigan J., delivered her decision upholding the objection in part, dismissing 7 out of 9 grounds of the petition.

(15) On 10^th April 2020, the EC filed its application for leave to review the decision of Berrigan J.

5. Pastor Kaku refers in is affidavit to paragraphs 63 – 68, 74 – 78, 89, 93 and 95 of the decision delivered on 30^th April 2019,which were also raised in his first application. Granted, that the first application did not refer specifically to each of the paragraphs of the judgment, it nonetheless came under the main submission or argument that, as a part of the Court that made the relevant decision, I made certain observations and decisions which warrant my disqualification. In Pr Kaku’s counsel’s submission at paragraph 22 the focus is on paragraphs 91 – 93. A quick look at each of these paragraphs of the judgment in a sequential order reveals the following:

Paragraph number	What it does
63	Notes Mr Powi’s claims in his application.
64 & 66	Notes the EC’s claims in its application.
65 & 67	Discusses both the EC and Mr Powi’s claims in their respective applications and the issues those gave rise to.
68	Tries to make sense of Mr Powi and the EC’s claims.
74 - 78	Discussing and finding the form of the petition is not in the prescribed from.
89	Discusses the number of votes in play, the total collected by Mr Powi, those collected by Pr Kaku, the runner up and winning margin. Then, having regard to the relevant law on point, I make an observation that there appears to be a lack of pleading in those circumstances that the election outcome was affected and that it is just and fair that Mr Powi’s election must be overturned.
91 - 92	States the law on special circumstances under s. 175 (1A) of the Organic Law on National and Local-level Government Elections(Organic Law on Elections)
93	Partly states what the law is as to the manner of pleading a special circumstance, what Pr Kaku should have pleaded and concludes: “Our quick perusal of the Petition does not appear to disclose any such pleading.”

6. Pastor Kaku’s claim here is that, I am or would be prejudiced and there is a likely appearance of bias. This, he says is the case because of the comments and decisions I made in the paragraphs mentioned above and that the same issues are presented in the current pending application. This is however, incorrect because the present pending leave application raises issues that are not the same as those that were raised in the earlier proceeding. The table below contains a summary of the issues raised in the present leave application.

Grounds for leave	Issue raised
2.1 – 2.3	Withdrawal of grounds 1 – 3 of the petition and its effect. The EC not being heard and formal ruling not made.
2.4 – 2.5	Withdrawn and or struck out grounds provided the context and basis for the remaining grounds of the petition and as such the remaining grounds of the petition cannot stand.
2.6	Surviving ground 4 of the petition ought to have been struck out because it was ambiguous and or confusing,
2.7	Trial judge erred in striking out ground 7 of the petition because it was a repeat of ground 4 when both should have been struck out.
2.8 – 2.9	The trial judge erred in striking out only ground 5 of the petition because it was also a repeat of ground 4 and both should have been struck out.
2.10 – 2.11	The learned trial judge erred in failing to take into account and apply authorities on point namely, Kopaol v. Embel (2003) SC727; Ekip v. Wimb (2012) N4899 and Tulapi v. Lagea (2013) N5235, which do not permit alternative pleadings and strike out grounds 4 and 5 of the petition.
2.12 – 2.14	Learned trial judge failed to strike out ground 6 of the petition for contradictory pleading.
2.13	Trial judge erred in holding the date of the directions of the EC were immaterial.
2.15	Trial judge erred in referring the matter back to EP Manager judge and for trial before Manuhu J against the Supreme Courts orders for the trial to be conducted by a judge other than his Honour.

7. I will deal firstly with the current application for my disqualification on its merits first. That means I deal firstly with the second issue. At the beginning of Pr Kaku’s application he raised both bias and prejudice as the basis for his application. However, at the hearing, his counsel did not press on and hence abandoned the claim of bias. Thereafter, counsel did not assist the Court with any submission as to what constitutes “prejudice” that is capable of disqualification of a judge.

8. However, the application based on prejudice is not all that clear. It would have greatly assisted if Counsel for Pr Kaku assisted with submissions on what is meant by the term “prejudice” and what are the essential elements for the purposes of making out a case for disqualification based on prejudice. This lack of clarity is not surprising because the application for disqualification does not clearly set out the grounds or the basis for seeking my disqualification. I will get to this point a little later but for now, let me deal with the concept of “prejudice” and whether a case has been made out for my disqualification.

9. Searching most dictionaries for the definition of the term “prejudice” reveals its meaning in terms of “bias, preconception, prejudgement, predisposition, or partiality”. The Law Dictionary Featuring Black’s Law Dictionary, Free Online Dictionary 2^nd Ed., asks and answers the question:

a term that is used for the favouritism that is shown by a judge to one party that is involved in a law suit.”

10. Consistent, with the above definition, most of the case law treat the use of the word “bias” to mean the same as “prejudice” and vice versa. This they do to emphasise the need for a judge to be impartial. Being impartial means a judge must come to a case without any preconceived or predisposed idea or that the judge has not prejudged the parties, their witnesses, their counsel and the matters in contest between the parties which favours one of the parties, without first having heard the parties. To succeed in an application for disqualification of a judge, the party marking the application must show the judge harbouring a personal bias or prejudice against the applicant or in favour of the other side. Consequently, generalised allegations claiming a likely prejudice based on factors like the history of the case, a judge’s prior involvement with the parties, or his general view of the law, or similar considerations are not sufficient to warrant disqualification. Instead, the alleged bias or prejudice must be brought home to the judge’s personal attitude or disposition toward a party in the action before him.^[1]

11. It is difficult in most cases, to label most if not all judicial conduct as demonstrating prejudice or bias. Given that difficulty, most of the cases on judicial prejudice or bias speak of allegations of apprehended biases rather than actual bias or prejudice because, that would be hard to prove. This does not mean that parties have an open licence to apply for the disqualification of a judge as and when they please. Applying to disqualify a judge is a very serious matter. Given that seriousness, applicants are required as of necessity, to clearly state and establish the reasons for suggesting apprehended bias if they wish to succeed in their applications.

12. Given that seriousness, some jurisdictions require all parties seeking to disqualify a judge to come only with serious applications with clear grounds and facts supporting the application. In most jurisdictions in the United States, they provide for the process of disqualification in their legislation or court rules. Such provisions prescribe the requirements that must be met by applicants. An example of this is rule 2.160 of the State of Florida’s, Florida Rules of Judicial Administration.^[2] This provision requires a formal motion to be filed with the motion specifically stating the reasons for seeking disqualification and which must be supported by an affidavit. Also, counsel for the party seeking the disqualification is required to separately certify that the motion and the affidavit in support are made in good faith. Clearly, this means, an application for disqualification cannot be sprung up casually as and when a party wants to. Instead, such applications must be the product of much care and careful consideration before filing and moving them. Counsel assisting a party in such applications are expected to and should possess the necessary knowledge of the relevant principles of law governing disqualification. Hence, they are expected to ensure they serve as a necessary filter and allow only meritorious applications to be filed and pursued. As officers of the court, counsel have a duty to ensure they do not become the channel for scandalising the court by spurious and baseless applications. Bringing or supporting a baseless application comes with the risk of the application amounting to contempt in the face of the court and the offending party or parties being dealt with for contempt.

13. The principles of law governing disqualification of a judge is trite law in Papua New Guinea. As his Honour Hartshorn J noted in Tzen Pacific Ltd v. Innovest Ltd (2012) N4713, the law as to apprehended bias of a judge in PNG “is similar to the law in the United Kingdom, Australia and New Zealand: Saxmere Company Ltd & Ors v. Wool Board [2009] NZSC 72; [2010] 1 NZLR 35, Porter v. Magill [2002] 2 AC 357, Ebner v. Official Trustee in Bankruptcy [2000] HCA 63.

14. Pastor Kaku relies on the decision in Ipara v. Trainor (2018) N7646 as one judgment following and applying the principles settled in the Supreme Court decision in Peter Yama v. Bank South Pacific (2008) SC921 (per Sakora J., Gabi J. (as they then were) and Hartshorn J.).
15. However, the leading Supreme Court authority on point is PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa, Globes Pty Ltd and Romy Macasaet (1998) SC 592 (per Amet CJ, Kapi DCJ, Los J (as they then were). There the Court 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.”
(Underlining supplied)

16. The Supreme Court in the above case, enunciated the test after having regard to the decision of Lord Denning MR in Metropolitan Properties Co (FGC) Ltd v Lannon[1969] 1 DB 577at 598. In that case, after expounding on the subject his Lordship concluded:

“Nevertheless, there must appear to be real likelihood of bias. Surmise or conjecture is not enough: There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was bias.’”

17. It should become clearer that, the test is one of a “reasonable man” test having a “reasonable suspicion” on the impartiality of the judge knowing all the relevant facts. In Boateng v. The State [1990] PNGLR 342, the Supreme Court adopted as the proper test the following statement from R v. Liverpool City Justices; Ex parte Topping [1983] 1 WLR 119:

“Would a ‘reasonable and fair-minded person sitting in a court and’ knowing all the relevant facts have a ‘reasonable suspicion that a fair trial for’ the appellant ‘was not possible’?”

18. In the following year after the decision in the PNG Pipes case, Sevua J (as he then was) in Gobe Hongu Ltd v. National Executive Council & Ors (1999) N1964, added (from the headnotes):

“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;

19. The principles referred to above have been repeatedly restated and applied in numerous Supreme and National Court decisions. One such case is the decision of the Supreme Court in An Application by Herman Joseph Leahy (2006) SC981.^[3] There, the judgment reaffirmed the principles enunciated in the earlier cases.

20. Turning specifically to the claim of bias or prejudice based on a judge’s earlier decision in the same case or a similar case, which is what Pr Kaku is claiming here, I note the law is also very clear. Pastor Kaku’s counsel has failed to draw to the Court’s attention any case authority on point except only for the two cases cited in his submissions. The void has been filled by the submissions of learned counsel for the EC and Mr Powi in their respective submissions. Their submissions give a list of cases in which each of the respective judges were asked to disqualify because of their involvement in earlier proceedings or have made decisions arising out of the same set of facts.

21. The first of the cases of Philemon Wass Korowi & Others v. Sgt Elijah Aron & The State (2016) N6215. In that case, the appellant on appeal from the District Court, applied to have his Honour, Makail J., disqualified. That was on two grounds. They were as his Honour noted by him, that his Honour:

22. The earlier matter related to criminal charges against Paul Paraka. There, Mr Paraka appealed against an interlocutory ruling of the District Court. After having heard the parties, his Honour dismissed the appeal on the basis that no appeals lie to the National Court on interlocutory decisions of the District Court in criminal cases.

23. In the case before his Honour, the appellants were charged with various criminal offences relating to monies paid to Paul Paraka Lawyers as legal costs. Amongst other things, police alleged that, they were part of and were involved with Mr. Paraka of Paul Paraka Lawyers in illegally obtaining these monies from the State. The offences were pending committal proceedings in the District Court. Mr. Paraka was also charged for the same offences.

24. At paragraph 11 of his Honour’s judgement, he succinctly stated the issue he had to deal with in these terms: “whether I should disqualify myself because I decided the same issue in dispute in an earlier case”. After considering the relevant cases on point, like the one in the PNG Pipes case, his Honour refused to disqualify himself. In arriving at that decision, his Honour noted that the appellants were not able to cite any authority to support them in their application. His Honour reasoned:

“I think the reason why the appellants and even the respondents were not able to refer to a case on point is that the mere fact that a judge has decided an issue in an earlier case and the same issue is raised in a subsequent case does not provide a foundation for a reasonable apprehension that the judge might be biased. In my view this proposition is based on a very sound legal principle. Where a judge decides a case, it is a judicial pronouncement of an issue in dispute between the parties. It has a binding effect on the parties in the dispute. It can also be used as a reference to resolve future disputes of the same kind. The binding effect of the Court’s decision is referred to as a judicial precedent or appropriately in the legal sense, doctrine of stare decisis. It forms part of our law pursuant to Schedules 2.8 and 2.9 of the Constitution. Lawyers and judges have been applying this doctrine for centuries and in this jurisdiction, it is fair to say for decades.

(Underlining supplied)
25. His Honour then proceeded to apply in the case before him the principles he stated in the following way:

“I decided the issue of jurisdiction in the Paul Paraka appeal. It was a judicial pronouncement of the law as it were in section 219 of the District Courts Act in relation to the appropriate mode of commencing proceedings in the National Court to challenge an interlocutory ruling or order of the District Court in a criminal proceeding. It was fundamental to the invoking of the National Court’s jurisdiction to hear Mr. Paraka’s grievance. As it was a Court decision, it was binding on the parties in that case. It may be adopted by parties in future cases based on the doctrine of stare decisis. In this instance parties will have the opportunity to address me as to why I should or should not follow my earlier decision. In my view, a reasonable fair-minded lay observer properly informed of the material facts of these cases would not apprehend that I might not bring an impartial mind to the resolution of the question I am required to decide.”
(Underlining supplied)

26. His Honour also gave thought to the possible effect for acceding to the appellants’ application and said:

“On the other hand, if I accede to the appellants’ application, I would be doing a disservice to the doctrine of stare decisis and will be driven from the judgment seat by a group of dissatisfied litigants. I add by respectfully adopting what late Sevua J said in Gobe Hongu case ‘I believe that a litigant, by his conduct or assertion, should not be permitted to influence the choice of a Judge. If that is allowed, it would, in my view, impugn and impeach the principle of judicial independence. The independence of the judiciary must never be influenced by a group of litigants or a section of the community.’”

27. The second case is the decision of Sevua J in In Gobe Hongu Ltd v. National Executive Council & Ors (supra). In that case, the basis for seeking the judge’s disqualification was that the judge had earlier ruled against the applicant in an interlocutory application in the same proceeding. In refusing the application his Honour stated:

“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, ..., 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 vigour, 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.”
(Underlining supplied)

28. The third case is the decision in Dr Onne Rageau v Kina Finance Ltd (2018) N7405. There, the application for disqualification was on the basis that, his Honour Hartshorn J., dealt with an earlier related proceeding involving the same parties and subject matter. In those proceedings, his Honour found against the applicant. There was no evidence to connect the judge’s knowledge and findings in the earlier case to the issue for adjudication in the latter case. In dismissing the application, his Honour said at paragraph 14 of his judgment:

“The mere fact that a judge has previously decided cases in favour or against a party does not provide a foundation for a reasonable apprehension that the judge might not consider another case involving one or both of the parties with other than an impartial and unprejudiced mind; MTI v. SUL [No. 2] [2012] WASCA 87. To my mind, this applies equally to interlocutory decisions made by a judge in the same proceeding.

29. The other cases on point which were referred to by Counsel for the EC and Mr. Powi, were also referred to in Hartshorn J.’s decision in the above case. They are mentioned at paragraph 15 of his Honour’s judgment as follows:

“In this regard, I refer to the decision of Sevua J. in Gobe Hongu v. National Executive Council & Ors (1999) N1964 where His Honour rejected an application for disqualification made on the basis that he had ruled against the applicant in an earlier application for interlocutory relief; of Injia DCJ (as he then was) in Paru Aihi v. Sir Moi Avei (2004) N2523, where His Honour refused a disqualification application made on the basis that he was a member of the bench of 3 previous Supreme Court election review cases which had ruled against the applicant, and my decision in Pacific Equities & Investments Ltd v. Goledu (2008) N3400, where I refused a disqualification application that was made on the basis amongst others, that I had refused injunctive relief in earlier proceedings that had related issues involving two of the parties and from which an appeal was pending. I also refer to my decision in Bagari v. Marape... [(2014) N5675] where I refused a disqualification application that was made on the basis amongst others, that I had refused injunctive relief in the same proceeding.”

30. The final case on point is the decision in Dr. Bob Tawa Danaya v Ati Wobiro (2014) N5674. That was also a case, in which the respondents filed and moved unsuccessfully before Hartshorn J, objections to the competency of an election petition. Upon a successful review application, the Supreme Court quashed the dismissal orders, reinstated the petition and remitted it to the judge Administrator of Election Petitions who allocated the matter back to his Honour, Hartshorn J. The petitioner applied to disqualify his Honour on the basis that he already dismissed the petition. However, his Honour, reasoned that the petitioner had to establish a strong case for disqualification which the petitioner failed to do. In support of that position his Honour took, he cited the relevant authorities on point as follows at paragraph 15 of his judgment:

“In cases where the allegation is that the apprehension of bias arises because a judge has presided over an earlier case or cases involving one or other of the parties, it has been held that:

‘While it is important that justice must be seen to be done, a judge should not disqualify himself or herself on the basis of bias or a reasonable apprehension of bias unless substantial grounds are established: Re JRL; Ex parte CJL [1986] HCA 39, Bienstein v. Bienstein [2003] HCA 7, MTI v. SUL [No. 2] [2012] WASCA 87, Lashansky v. Legal Practice Board of Western Australia [2012] WASCA 77.’”
(Underlining supplied)

“16. In Re JRL; Ex parte CJL (supra), Mason J stated that an apprehension of bias must be firmly established. His Honour said:

‘It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in the proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgement and this must be ‘firmly established’....

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

‘In considering whether a reasonable apprehension of bias has been established, it is necessary first to identify the facts, matters and circumstances by reason of which it is said that a judge might decide a case other than on its merits and secondly, to articulate the logical connection between those facts, matters and circumstances and the apprehended deviation from the course of deciding the case on the merits, Ebner v. Official Trustee in Bankruptcy [2000] HCA 63; Smits v. Roach [2006] HCA 36.’”
(Underlining supplied)

32. The only case in which there was a successful application for disqualification was the case, counsel for Pr Kaku referred to, namely, Ipara v. Trainor (supra). The disqualification in that case, in my view, was warranted on the particular facts of the case and having due regard to the relevant legal principles as discussed above. There, his Honour Kariko J., made certain findings of fact touching on the credibility of a number of persons, including Mr. Ipara and other Plaintiffs. His Honour also found that an AGM for the Porgera Special Mining Lease Landowners Children’s Investment Fundwas delayed for more than 2 years by Mr. Ipara and the other plaintiffs who were then defendants in the earlier proceedings.

33. The foregoing discussions of the case law on point bring out clearly the applicable principles governing disqualification of a judge who previously made a decision or expressed an opinion:

(1) The principles of law governing disqualification of a judge is trite law in Papua New Guinea and are similar to those applicable in the United Kingdom, Australia, New Zealand and elsewhere.

(2) The applicable test is “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”: PNG Pipes (supra) case.

(3) Although it is important that justice must be seen to be done, it is equally important that:

(a) judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour, thereby effectively allow parties to influence the choice of a judge in their cause; and

(b) judges should resist from being driven from their Courts by the conduct or assertion of parties.

(4) The mere fact that a judge has decided an earlier cause or an issue in an earlier case and the same issue is raised in a subsequent case does not provide a foundation for a reasonable apprehension that the judge might be biased. An earlier decision is a judicial pronouncement of an issue in dispute between the parties and has a binding effect on the parties and others based on the doctrine of stare decisis. Hence, it does not necessarily form the foundation for the disqualification of a judge.

(5) Ajudge should not be disqualified because of the vigour, firmness and decisiveness with which he has conducted a case, admonishing or criticising of a litigant or his lawyer.

(6) It is a very serious matter to seek the disqualification of a judge and as such, it must be based on reasonable, genuine and objective basis or grounds and not driven by unreasonable, emotive and non-objective views of parties or their counsel. An application for disqualification must be based on substantial grounds.

(7) A judge should disqualify if in an earlier case the judge has made findings of fact and decided on the credibility of a litigant or a witness who is a party or witness in a subsequent case.

34. Given the seriousness of an application for the disqualification of a judge, I consider the practice of most of the States in the United States should be adopted and applied in PNG. Here, I am speaking about the requirement for such an application to be in writing with supporting affidavit material clearly disclosing the factual foundation for an application. The supporting affidavit should contain facts covering and meet sufficiently the test for disqualification. The notice of motion or the formal application, as the case might be, should clearly plead the grounds on which disqualification is sought with the relevant particulars and certified by the applicant and his counsel that the application is made in good faith. This will enable the opposing parties and the judge concerned to ascertain the basis for the application without any difficulty and if need be, concede or properly respond to the application.

35. Turning to the application now before me, I first note that, the application is a formal one filed on 17^th April 2020. Relevantly, in paragraph 1 (a) of his application, Pr Kaku pleads:

“Pursuant to s. 155(4) of the Constitution, an order that His Honour, Deputy Chief Justice Ambeng Kandakasi be disqualified from hearing or further hearing this proceeding.”

36. I make a number of observations. Firstly, there is nothing in that line or anywhere else in the application which discloses the basis for the application. In support of the application, Pr Kaku deposed to and filed only one affidavit by himself, as already identified. That affidavit in paragraphs 1 to 10 sets out the litigation history of the proceeding from his petition through to my interlocutory decision delivered on 30^th April 2019. From paragraphs 11 – 16, he refers to various paragraphs of that decision. A summary of what I said and is contained in the relevant paragraphs are set out in the table appearing at paragraph 5 of this judgment, which I need not repeat that here. Pastor Kaku, then concludes with this statement “It is clear that His Honour is prejudice in this matter”.

37. Secondly, picking up from Pr. Kaku’s last statement, there is nothing in that statement or anywhere else in his affidavit of a substantial ground of bias or basis to infer or support his claim of prejudice. Similarly, there is no statement of how the unspecified prejudice is connected to the issues that are now raised in the application for leave that is pending in this proceeding. A quick response to this observation might be that, the deponent’s conclusion is based on what is deposed to in the earlier part of his affidavit. That necessarily gives rise to the question, what facts are deposed to in the earlier parts of the affidavit and how do they clearly form the foundation for the conclusion of prejudice? Except only to mention the various paragraphs forming part of my earlier decision and what is stated in each of the paragraphs, nothing is stated by way of facts or evidence or even in Pr Kaku’s submission which discloses a possible case of prejudice on my part as against him. If the allegation of prejudice is to be established by inference drawn from each of the various parts of the judgment, the deponent had the duty and obligation to specify and provide the foundation to draw such inferences and is the only inference that is reasonably open. In the absence of any evidence to the contrary, the comments and observations I made followed by the decision eventually arrived at in the earlier case were confined to the issues then presented.

38. Thirdly, the earlier proceedings leading to my decision of 30^th April 2019, mainly concerned, Pr Kaku’s pleadings in his petition, the objections filed against those pleadings, arguments presented by all parties which revolved around the law on pleadings in election petitions, a look at the pleadings, having those checked against the relevant law which then resulted in comments, observations and the decision arrived on the issues before the Court then. That was in the context of the issue of whether, an arguable case was made out for a grant of leave for the EC and Mr. Powi to file for leave for a review of the decision on their respective objections to competencies by his Honour Manuhu J and before then, a dispensation of the provisions of O.5, r 7 of the Supreme Court Rules. There is no suggestion in the affidavit or the submissions of Pr Kaku that my observations and decision went beyond what was pleaded, or the arguments presented, or the relevant law on point and the issue I had to deal with and finally decide upon, in order for Pr Kaku to suggest possible prejudice on my part against him. Also, there is no demonstration in the affidavit by a statement of the relevant facts from which it could be inferred that, the observations and comments I made with the decision resulting therefrom did not represent fair comments and shows a lack of a proper consideration of the law on point and an improper application of the law to the case and all of these were actuated by prejudice or bias against him.

39. Fourthly, there is no suggestion by Pr Kaku that the observations I made in the context of the issues then before me were final and conclusive and that, I am bound to follow and act on the basis of the relevant comments, observations and ultimately, the earlier decision for the purposes of determining the issues presented in the present application. If, however, the decision was final, there is no factual foundation and certainly there is nothing in Pr Kaku’s submissions which demonstrates how the doctrine of stare decisis would not apply.

40. Fifthly, following from the fourth observation, I note that the issues raised in the current proceeding are not exactly the same as those raised in the earlier proceeding. The table setting out in summary the issues in this application at paragraph 6 of this judgment confirms this observation.

41. In his submissions, Pr Kaku’s counsel placed much emphasis on paragraphs 91 – 93 of my decision of 30^th April 2019. Those paragraphs discussed s. 175 (1A) of the Organic Law on Elections which concerns “special circumstances” that could form the foundation for the EC making a decision on the result of an election. That was part of ground 6 of Pr Kaku’s petition. In paragraphs 91 – 93, I discuss the law, how special circumstances under s. 175 (1A) could be pleaded, a quick look at the pleadings in Pr. Kaku’s pleadings and concluded: “Our quick perusal of the Petition does not appear to disclose such pleading.” Ground 6 of Pr Kaku’s petition is one of the grounds that survived the objection to competency test in her Honour, Berrigan J.’s decision. However, as one could gather from the grounds for the now pending leave application before me, as set out in table summarising the grounds, the issue I commented upon does arise. Instead, the issue now is a claim by the EC that ground 6 of the petition by Pr Kaku should have been struck out for contradictory pleading. That is not the same as properly pleading the existence or the none existence of “special circumstances” for the purposes of s. 175 (1A) of the Organic Law on Elections. Also, even if the same issue arises here, the observations that I made were purely preliminary in nature. That was necessary and in the context of an application for leave to be granted for leave for a review of an objection to competency brought pursuant to s. 155 (2) (b) of the Constitution and before that, for the purposes of O.5, r.7 of the Supreme Court Rules. The context there was, the EC not being given its natural justice in respect of its objection to competency of the petition and its application for leave for a review of the relevant decision that denied that right. In any case, whether, the pleadings in fact failed to meet the required standard of pleading, was a matter left for a trial judge to consider and come to a final decision on the issue, if need be.

42. That decision was akin to an application for leave for judicial review. One of the requirements that must be met before there can be a grant of leave for judicial review, is for the applicant to demonstrate by appropriate pleadings and evidence that, he or she has an arguable case. Almost all case authorities on judicial review under Order 16 of the National Court Rules, clearly point out that the test whether the Court should grant leave to apply for judicial review is not a difficult one to satisfy. One of the often-cited authorities on point is Lord Diplock in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Business Limited [1981] UKHL 2; [1982] AC 617 at 644 where his Lordship said:

“If, on a quick perusal of the material then available, the court (that is the judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting the relief claimed, it ought, in the exercise of judicial discretion, to give him leave to apply for judicial relief........”.

43. This test has been adopted and applied in many cases including the decision of the Supreme Court in Digicel (PNG) Ltd v. Miringtoro (2015) SC1439.

44. Given that test, after grant of leave in almost all cases, the same judge presides in the substantive matter and determines the case. There is no requirement for a different judge to deal with the substantive matter because he dealt with the leave application and granted it. In some cases, despite the grant of leave, plaintiffs who succeed at the leave stage do not succeed. In other cases, plaintiffs succeed on the substantive application. Given this and more so the preliminary nature of the leave applications and for expedited hearing and determination of the substantive matters, applications for disqualification of judges because of their decision at the leave stage are unheard of. Not surprisingly therefore, counsel for Pr Kaku was not able to draw the Courts attention to any authority that points to the contrary. There is however, authority against Pr Kaku’s application and his arguments. A case on point is the decision of the Supreme Court in Anderson Agiru v Aluago Alfred Kaiabe (2015) SC1412, where the Court said at paragraph 20 of the decision:

“As for the res judicata point, we consider that the fact that in the course of granting leave to make an application for review under Section 155(2)(b) of the Constitution of an interlocutory decision of the National Court in an election petition, a single Judge of the Supreme Court (in this case, Batari J) rules that the application is competent does not prevent the party who argued that point (in this case the first respondent) from arguing it again before the full court of the Supreme Court. There is no issue estoppel. Nor does it prevent the full court forming its own view and deciding the question of competency differently to that of the single Judge.”

45. Sixthly, the various grounds for the EC’s objection to the petition were not considered in any serious manner when the matter was before me in the earlier proceeding. This was because, there was no decision on that objection. The only ground advanced by EC in its application for leave was its claim of not being accorded its right to be heard or natural justice resulting in no decision on its objection after its hearing. Indeed, as established in the earlier proceedings and more so the decision delivered on 30^th October 2019, there was in fact no decision on the EC’s objection. Proceeding on that basis, the Court decided in favour of grant of judicial review and a rehearing of the objection in its entirety. Eventually, the EC’s objection to competency received a full hearing before her Honour, Berrigan J. and a decision has been arrived at. That decision is now the subject of the application that is pending before me. Clearly therefore, the grounds now advanced in support of the EC’s application for leave are raised for the first time before me. Strictly speaking, this means, there is no connection between the issues that were determined in the earlier proceedings to ones that are raised in this current proceeding.

46. Finally, proceeding from the last observation, Pr Kaku has failed to demonstrate either in his affidavit or his counsel’s submission, how my earlier views, observations or decisions will hinder or hamper a consideration of each of the grounds presented in the present case on their own merits. Most importantly, Pr Kaku had the onus to clearly establish a case of how I am predisposed by matters extraneous to a proper adjudication of the issues raised in this proceeding and that I will arrive at a conclusion other than on the merits of the case and within the confines of the issues disclosed in the current leave application.

47. I will now at this juncture turn to the first of the two issues before me. That is the question of whether Pr Kaku is entitled to repeat his application for my disqualification without disclosing his first unsuccessful application? In his affidavit, Pr Kaku makes no mention of the fact that he had earlier unsuccessfully applied for my disqualification on 17^th October 2019 (first application). His counsel also failed to make any mention of that application. I got reminded of that fact, after having heard the current application and as I started to work on my decision on the current application. It became clearer to me that Pr Kaku through his counsel, Mr. Diweni, did make the first application. I therefore, asked all the counsel to address the Court and they did on 1^st May 2020. That was to be followed by written submissions if need be, upon the provision of the transcript of proceedings on 17^thOctober 2019, covering the first application and the decision on it. The transcripts which were eventually provided to all the parties, confirms the application being made and ruled upon on the same day with reasons given ex tempore.

48. Counsel for Pr Kaku seeks to justify his failure to inform the Court of the first application by arguing that the current application is in the context of a new proceeding. He also claims it is different to the earlier one because:(1) the first application was informal and made orally; and (2) the specific paragraphs referred to in the current application were not specifically mentioned or referred to in the first application. Whilst counsel is correct, these factors do not change the essence of the first application compared to what is before me in the current application. The essence of the first application was the same as the present. This is apparent from the following relevant parts of the transcript:

“MR DIWENI: Your Honour, we are ready but, having said that, we have a preliminary issue point to raise, your Honour, and I wish to make that – bring it to your Honour, as the president of the bench, but I would like to just raise this issue – concern.

MR DIWENI: I do not have a formal application. I only became aware of the panel just this morning, so I do not have the written formal application. But if your Honour pleases, I will just keep this fairly straight.

MR DIWENI: Yes. The nature of my client’s concern is that your Honour may recall also sitting as the president of the three-man bench in an application for dispensation and that was on the 1st and 30 April this year where this matter came before his Honour Justice Hartshorn and his Honour refused to dispense with the requirements for leave, yes.

MR DIWENI: All right, your Honour, I wish to – I have the decision here and there are a couple of comments, if I can say that your Honour made. It is in the nature of, with respect, pre-determining some of the issues that are before the court and there are a couple of your Honour’s comments. For example, your Honour has made a statement in that decision in relation to natural justice.

MR DIWENI: Yes. And your Honour basically has - we are submitting with respect that your Honour may have made some predetermined statements that may go to the very point that- - - -

MR DIWENI: Predetermined the issues, especially the issue on natural justice that your Honour- - - -

KANDAKASI DCJ: Predetermined prior to that ruling or predetermined prior to today?

MR DIWENI: Prior to today. What happened was that your Honour was considering the issue of arguable case, whether there is an arguable case in this. And your Honour, with respect, we are of the- - - -

KANDAKASI DCJ: So, what happens down at the judicial review track? Obviously, someone has to apply for leave.

KANDAKASI DCJ: And in the context of hearing the leave application, the judge makes all sorts of observations. Does that disqualify the judge from presiding in the substantive matter if leave is granted?

MR DIWENI: Well, we are taking the position that, yes, it may hinder on your Honour’s- - - -

KANDAKASI DCJ: Is that what happened? If that is the case then all of the judicial review cases that we are all too familiar with have to have a disqualification as a matter of course.

MR DIWENI: No, your Honour. In other cases there is always the leave application dealt with someone else - with a single judge who usually does- - - -

KANDAKASI DCJ: And then now with the case docketing system, judges are in charge of each of the cases. And in the course of interlocutories or interrogatories or preliminaries, judges make rulings along the way.

KANDAKASI DCJ: Does that then disqualify them from presiding in the substantive matter?

MR DIWENI: Not necessarily but I raised this point so that – of course, in every application for disqualification, the judge concerned of course makes the – is the best person to make the assessment and make a decision.

KANDAKASI DCJ: I need some good answers to the questions I am raising, counsel. This is a small jurisdiction and now with the – as I just said to you, is there any implication on how the court runs in these cases and with the issue of delay and needing to get the substantive justice quickly, all to be considered, what are you saying? That if a judge deals with a preliminary matter, he should disqualify on the substantive?

MR DIWENI: Not necessarily but it is – as I said and I am repeating but it is my respectful submission that your Honour has made some findings that more or less that - in the perspective of finding that there is an arguable case- - - -

KANDAKASI DCJ: What has been the practice here in the Supreme Court, leave application is made, usually most of the cases come before the Chief Justice or the judges assisting, I am not aware of anyone being asked to disqualify after having dealt with the leave application.

MR DIWENI: All right. Well, the case management, I am aware so usually the leave application is dealt with by a certain judge who determines the leave stage and then as soon as the three-man panel usually is a different- - - -

KANDAKASI DCJ: And sometimes it includes the judge who dealt with the preliminary point as well.

MR DIWENI: Well, your Honour, that is just my comment I raised and it is your Honour’s of course judgment and you make the best judgment but we just raise this comment and if your Honour considers that there are no problems with your Honour proceeding, then we can proceed.

KANDAKASI DCJ: Let us check with your friends on the other side. Mr Baniyamai and Mr Nii. Perhaps, Mr Nii, first.

MR NII: Your Honour, first, we do not have any problems with the composition of the court this afternoon. The issue that is raised by your Honour in relation to the leave application situation is a common practice. Judges in the course of their duties make comments, look at the cases at a cursory glance, not without considering the merits and they form an opinion does not necessarily mean that they will form another opinion or the same opinion. And so it is a common practice to have the judges determine this – I mean, the same judges sitting in substantive applications. We have no issue with that. We oppose the application. We would like to have this matter dealt with because it is a pressing matter for the nation.

MR BANIYAMAI: Your Honour, we are also in a similar situation to Mr Nii. The first respondent had pushed for a date in this review application.

We were not aware that the matter would go back for directions. A date was given and we said, all right, proceed with the matter so we are all here but if anything, there is an issue about your Honour’s further participation in the matter, then it would assist the court and all parties if a formal application is filed so the issues can be argued. Again, we do not have any issue with the composition of the bench and we would like to have this matter dealt with as soon as possible.

The other scenario is that whilst your Honour was part of the bench that determined the dispensation application, we still went through the application for leave process where our client’s application was refused, but the electoral commission’s application was allowed to proceed to this stage. So in my respective submission, it does not really assist anyone if we continue to delay the matter but again, I am not sure whether my friend is serious about raising an application for recusal, so it is for him to speak on that. We do not have any issue, your Honour.

MR DIWENI: Your Honour, I will not make any replies, but as I said, your Honour, I am happy to proceed with whatever your Honour decides today.

MR DIWENI: We are happy to proceed with whatever your Honour considers and we are happy to proceed with what the court rules- - - -

KANDAKASI DCJ: ... the disqualification is directed at me so it solely rests with me to decide on that point. As I was observing in the course of arguments put forwarded and in particular, by learned counsel for the first respondent, judges in this court, in the Supreme Court and the National Court, they are limited in number. That is the first observation. Second observation, it is a normal part of the process in all cases coming before the National and the Supreme Court. In some instances, parties come as of right and in some instances, parties come to court with leave or permission of the court.

Leave is normally sought in cases that are described as judicial review proceedings or cases where specific leave is required. A judge is called upon to exercise his judicial power and discretion after having heard the parties and will come to a decision. If a decision is made in favour of granting permission for the plaintiff or the applicant as the case might be, to take the next step in the proceeding, it does not necessarily follow. Certainly, it is not the case and certainly there is no case authority that binds the judge to the views he or she has expressed in the course of dealing with the interlocutory or preliminary matter. The power of reasoning always remains. The need to hear the parties on the merits of the case remains and a final decision is arrived at when all the issues have been fully argued by both sides and the court is able to come to a decision.

The effect of the objection taken today is basically to say a judge who has dealt with a preliminary matter should not preside in the subsequent dealing of the matter, more so in the substantive hearing. Disqualifications are, and should be expected on the basis where the integrity, the impartiality of the judge concerned is seriously in question. But if it is about an opinion or view expressed in the course of dealing with the matter, it does not necessarily follow that the judge is impartial or is biased already towards this party or that party. Instead, parties should be examining the basis on which a case is brought before the court and the context in which the judge or the court may have made the comment, In some cases, there could be straightforward clear cases, and by all means the judge should be able to make a comment as to where everything is headed. For instance, if the case is a futile exercise, the judge should be free to be able to say so. And if the substantive matter comes on, that should not necessarily restrain or disqualify a judge from dealing with the matter.

At the end of the day, interest of justice requires expedited hearing and disposal. And if the process is going to be affected by clear case of impartiality then the judge presiding may ought to be disqualified.

But if there is nothing beyond, just a comment being made or observation being made as to the strength or weakness of the case, or at least making some preliminary observations, that should not form any foundation whatsoever for disqualification of the judge. Otherwise, we will have dire consequences which our judiciary, our country can ill afford. For those reasons, I refuse to disqualify or grant the application. We will proceed with the hearing.”

49. Counsel for the EC and Mr Powi argued that the grounds for Pr. Kaku’s present application are no different to those he relied upon to seek my disqualification in the first application. They go on to argue that, counsel for Pr Kaku was duty bound to disclose the fact of the first application, its outcome. They also argue that, nothing has changed for the purposes of the application. This is the case because the parties are exactly the same, the grounds or basis for Pr. Kaku’s application which gives rise to the relevant issues are the same and the Court has already come to a decision on its merits. Hence, they submit that the common law doctrines of res judicata and or issue estoppel have now arisen. Consequently, they argued that, Pr. Kaku is precluded and is not entitled to make the same application again.

50. Further, counsel for Mr Powi with the support of the EC’s counsel submitted that, the failure to inform or disclose the fact of the first application and its outcome is fatal. It amounts to a breach of the lawyers Professional Conduct Rules (PCR), rr. 10 (1) and 15 (5). He then drew the Courts attention to the decision of his Honour Gavara-Nanu J., in Peter Bire v. Dr Philip Kereme (2016) N6328. Ultimately he submitted that, the failure to disclose is fatal to the current application.

51. I will deal firstly with the issue of Pr Kaku’s counsel’s failure to disclose the first application for my disqualification on 17^th October 2019 and its outcome. I start with rr.10 (1) and 15 (5) of the PRC which state:

“(1) Subject to the duty of a lawyer to the court, a lawyer shall give undividedfidelity to his client’s interests, unaffected by–

“(5) A lawyer shall ensure that the Court is informed of any relevant decisionon a point of law or any legislative provision of which he is aware and which heconsiders to be relevant, whether it be for or against his contention.”

52. To these rules I also had the provisions of rule 15 (4)(a) and (b) of the PCR. These provisions require a lawyer to “act with due courtesy to the court” and “use his best endeavours to avoid unnecessary expenses and waste of the Court’s time.”

53. His Honour, Gavara-Nanu J., in Peter Bire v. Dr Philip Kereme (supra), stated:

“It is a fundamental principle of law that a lawyer’s duty to the court takes precedence over his other duties, including his duty to his client. This principle is based on the position of the lawyer as an officer of the court, and as one who has control of his client’s case in court. This duty includes the duty to disclose to the court all the cases that are or may be relevant to the issues before the court, even those which may not support his client’s case.This in fact is a requirement under the Lawyers Professional Conduct Rules, 1989, viz; rr.10 (1) and 15 (5). What is of paramount importance is that the court must be fully assisted by counsel, in deciding issues and in the administration of justice to all the parties to the litigation.”

54. I had occasion to consider the provisions of rule 15(5) of the PCR in The State v. James Gurave Guba (2000) N2020. That was in the context of counsel’s failure to appropriately assist the Court with good submissions. I commented:

“Counsel... need not be reminded of their duties, both as officers of the court and counsel representing their client’s interests. ... Unless they are able to properly prepare and present arguments with proper legal authorities in support, they cannot and should not expect the court to bend backwards and perform their roles. It is not simply good enough for a lawyer to turn up in court and make submissions or present arguments without proper preparation with all the relevant cases and statutory authorities on point. ... Indeed, s. 15(5) of the Professional Conduct Rules provided that:

‘A lawyer shall ensure that the court is informed of any relevant decision on a point of law or any legislative provision of which he is aware and which he considers to be relevant, whether it be for or against his contention.’”

55. In this case, the matter that needed to be drawn to the Court’s attention was not a decision made by a different judge in a different matter. Instead, the need to disclose went into the very application counsel presented and argued in the first application and a decision arrived at. Counsel had the duty to draw that fact to the attention of the Court and point out how, his client is entitled to bring the same application again in the light of the doctrines of res judicata and issue estoppel.

56. Further, I note that there is support for Mr. Baniyamai’s submission that a failure to disclose a material fact is fatal. Although there is no authority directly on point, the issue of none disclosure is a subject that is well covered. The issue usually comes up almost regularly in the context of applications for interim injunctions. There are numerous authorities on point but I refer only to the recent decision of his Honour Hartshorn J., in Airlines of PNG Ltd v Air Niugini Ltd (2010) N4047, as illustrative of the relevant principles and law on point. In that case, his Honour, duly noted the arguments put before him and said of the principle:

“4. Counsel for Air Niugini submitted that the court’s power to grant an injunction is discretionary, that an injunction is an equitable remedy and that an applicant for an injunction must disclose all material facts. A failure to disclose material facts is fatal to an injunction application. Here, it is submitted, Airlines PNG has not disclosed material facts.

5. This principle was referred to in Golobadana No 35 Ltd v. Bank of South Pacific Ltd (2002) N2309, a decision of Kandakasi J. in which his Honour said that the duty to disclose all relevant and necessary information that might affect the grant of an interlocutory injunction, “is a requirement that must be met in equity given that the grant or not of an interlocutory injunction is an exercise of the Court’s power or discretion in equity.”

57. The need to disclose, is already part of the PCR in rule 15 (5). Counsel was required to fully disclose the fact that his client made his first application and its outcome and then demonstrate how his client is entitled to effectively bring the same application again. This is a matter in which Pr Kaku’s learned counsel owes a professional duty to both his client and the Court but more so, the Court as one of its officers. The need to do so was required more than not because of the public policy requirement for finality in litigation and the availability of the doctrines of res judicata and issue estoppel. The failure to so disclose has caused the Court and the parties to have the issue raised and argued in Court by counsel on 1^st May 2020, a request for and making available of the relevant transcript of proceedings for the first application and time taken by the Court to come to this decision. As will be shortly shown, the decision not to disclose was possibly a deliberate one. Given that this is an election related proceeding and time is ticking away, counsel was and still is under a duty and obligation to ensure that the Court and their respective clients’ times are not wasted unnecessarily. Obviously, Pr Kaku’s counsel has breached the requirements of r.15 (4) (a) and (b) of the PCR.

58. Counsel for Pr Kaku, Mr. Diweni, in pursuing his client’s interest, further breached another professional conduct rule, namely r. 15 (12) and (13). This rules state:

“(12) A lawyer representing an interested party in a Court shall not initiate

communication with the Court about the facts or issues in a case that the lawyer knows is pending or likely to be pending before the Court unless he has first informed the lawyer for the other interested party of the nature of the matters he wishes to discuss with the Court and has given that other lawyer and the interested party an opportunity to be present.

(13) If a lawyer has a discussion with the Court regarding an issue in a case in the absence of the opposing lawyer, he shall fully inform the opposing lawyer of such discussion at the earliest opportunity.”
(Underlining supplied)

59. I discovered and raised with all counsel in Court on 24^th April 2020, a letter dated 22^nd April 2020, addressed to the Registrar of the Supreme Court by Mr Diweni. Neither I, nor counsel for the EC and Mr Powi were copied in on that letter. Relevantly, Mr Diweni wrote from the 2^nd – 5^thparagraph of his letter:

“The matter was mentioned before His Honour, Deputy Chief Justice Kandakasi on 17 April 2020 who was to hear the leave application then, however His Honour was notified the first respondent (our client) had filed an application seeking to disqualify His Honour from hearing the matter. Further, parties required the transcript of the proceedings. The matter was therefore adjourned to this Friday, 24 April 2020 at 9:30 am for hearing of all the applications.

Our client is very concerned and has instructed us to request that his application seeking disqualification be heard before the leave application.

More importantly, our client seeks that his application be heard by a judge other than His Honour, Kandakasi, DCJ, himself.

We are aware that the usual practice is for the judge against whom an application for disqualification is brought, would hear the application himself or herself. However, we are also aware of instances when another judge, who is not the subject of the application can hear the application to disqualify his colleague.

Our client is concerned because it has previously unsuccessfully made an oral application for His Honour’s disqualification from sitting to hear a review matter brought about by the Electoral Commission.”

60. Then from the last paragraph of the first page through to the top of the third page, he outlined what his client had deposed to in his application for my disqualification. He then continued:

“Given the sensitivity of the matter and the importance of the case, we appeal to His Honour, the Chief Justice to intervene to have the application for disqualification allocated to another judge to be dealt with.

Please bring this letter to the attention of the Chief Justice and if His Honour agrees with our request, the application for disqualification can be listed tomorrow afternoon or otherwise directions can be issued for the hearing of the application for disqualification alone before another judge at 9:30am on 24^th April 2020.”

61. Apparently, I discovered just before the matter returned before me on the set date and time, 24^th April 2020, this communication behind the backs of the EC and Mr Powi and their respective counsel and myself. The file ended up with his Honour, Cannings J., who eventually referred the matter back to me. Counsel for the EC and Mr Powi were both taken by surprise when I disclosed the existence of the said letter and its contents. Upon the return of the matter on 24^th April 2020, Mr. Diweni did not voluntary disclose his communication with Court. Clearly, Mr. Diweni acted in breach of the clear dictates of r. 15 (12) and (13) of the PCR. In so doing, he was for the benefit of his client and may be himself, conducting judge shopping which is unethical for a lawyer and a party. When I raised the matter with the parties, Mr. Diweni offered no satisfactory or good explanation for his conduct.

62. The instances of failure to disclose as noted above are serious. They go into a most important part of the judicial process, namely, impartially, something Pr Kaku and his counsel, Mr. Diweni are seeking through the application for my disqualification. It does not take one wrong to correct another. Also, building upon the principles of equity, it is trite law in our jurisdiction that he who comes to court complaining about something against another must do so with clean hands. In some instances, a failure to come with clean hands could prove fatal.

63. Turning now to the twin doctrines of res judicata and issue estoppel, I note these are well known concepts in our jurisdiction. The doctrine of res judicata has been recognised in a number of decisions of the Supreme Court. Examples of cases on point are the decisions in Titi Christian v. Rabbie Namaliu (1995) SC1583 (per Amet, CJ, Kapi DCJ, Los, Salika, Doherty, Andrew &Sevua JJ (as they then were); Telikom PNG Ltd v. ICCC (2008) SC906 (per Injia DCJ (as he then was and Kirriwom and Cannings JJ); MVIL v. Kauna Kiangua (2005) SC1476 (per Davani, Kassman JJ.( as they then were) and Logan J); Peter O’Neil v. Nerrie Eliakim (No 1) (2016) SC1522 (per Kandakasi J (as I then was), Hartshorn J., and Kassman J (as he then was)). In short, the doctrine says, where an action has been brought or an issue has been raised and judgment has been entered in that action or the issue, no other proceeding may be subsequently brought and maintained on the same cause of action or issue.

64. The decision in Telikom PNG Ltd v. ICCC (supra), came out of my decision in the National Court Telikom PNG Limited v. ICCC (2007) N3144. The majority, Kirriwom and Cannings JJ., upheld my decision. In that case, I had regard to a number of decisions on point and commented on the rationale behind this doctrine as follows:

“... the rationale behind the principles of res judicata is to bring about finality in litigation and to avoid multiplicity of proceedings. This is a very important principle for the good of both the litigating public and the society which funds the court systems because, the principle saves a lot of time and costs for all involved. ...”

“Given the importance of principles of res judicata, the principles extend to and applies to all decisions of a court as well as other tribunals however constituted, which are empowered and do come to a final decision on an issue or dispute between two or more disputing parties. The authority to hear a dispute and arrive at a final decision may be based on statute or by the consent of the parties as in the case of arbitration. Where the decision maker is created and empowered by statute the presumption is usually in favour of the principle of res judicata...”

66. Turning then to the doctrine of issue estoppel, I note it is part of the doctrine of res judicata. In Peter O’Neill v Nerrie Eliakim (supra), the Court referred to the English House of Lords decision in Carl Zeiss Stiftung v. Rayner & Keeler Ltd (No. 2) [1966] 3 WLR 125 at 160, where Lord Guest stated:

“Within recent years the principal has developed so as to extend to what is now described as “issue estoppel,” that is to say, where in a judicial decision between the same parties some issue which was in controversy between the parties and was incidental to the main decision has been decided, then that may create an estoppel per rem judicatam.”

67. The Court in Peter O’Neill v Nerrie Eliakim also referred to the later decision of Buckley J in Carl Zeiss Stiftung v. Rayner & Keeler Ltd (No. 3) [1970] 1 Ch 506. There, is Honour said at 538G:

“To make good a claim of estoppel per rem judicatam the party asserting the estoppel must establish: (1) that there has already been a judicial decision by a competent court or tribunal, (2) of a final character, (3) of the same question as that sought to be put in issue by the plea in respect of which the estoppel is claimed, (4) between the same parties, or their privies, as the parties between whom the question is sought to be put in issue.”

68. Further, the Court noted that, Rimer LJ in Olympic Airlines SA v. ACG Acquisition XX LLC [2014] EWCA Civ 821, cited this statement with approval. His Lordship then added that:

“an express judicial determination of a particular issue will not create an issue estoppel unless it was necessary and fundamental to the court’s overall decision:

‘The question is whether the determination was necessary and fundamental to the decision that resulted in the making of the order.’”

69. Furthermore, the Court noted that, Lord Sumption in Virgin Atlantic Airways Ltd v. Zodiacs Seats UK Ltd [2013] UKSC 46; [2014] AC 160, with whom the other members of the Supreme Court agreed, said:

“... the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: Duchess of Kingston’s Case (1776) 20 State Tr 355.”]

70. Before considering these overseas cases, the Supreme Court also noted its earlier decision in National Housing Corporation v. Paul Asakusa & Ors (2012) SC1165 which held that, there are three prerequisites for the operation of the doctrine of issue estoppel. These are:

“a) the issue raised in the second proceeding is the same issue as that raised in prior proceedings;

71. Applying these principles to the case before it, the Supreme Court in Peter O’Neill v Nerrie Eliakim (supra) held the doctrine of issue estoppel applied. In arriving at that decision, the Court found the issue raised in the earlier proceeding was the same issue in the second proceeding and that, the decision was a necessary decision that had to be made on an issue that was before the court. Also, the Court held that, the parties in the two proceedings were the same.

72. In the present case, in his first application for my disqualification, Pr Kaku raised the issue of my making comments and decisions against him in the decision now published as William Powi v. Bernard Peter Kaku (2019) SC1856. He raised the issue at the outset of the subsequent hearing of the substantive review on 17^th October 2019. Although Pr Kaku’s Counsel did not specifically refer to the relevant parts of the judgment, the fact remains that, his application was based on my making the observations, the comments and a decision adverse to him. The same arguments are repeated here in the present application. A new matter the application refers to and or mentions is an identification of specific paragraphs or parts of the same judgement, in the earlier decision. The only other difference is the fact that, the current application is a formal one in writing with a supporting affidavit sworn and filed by Pr Kaku on 17^th April 2020. The affidavit merely refers to the relevant parts of the judgment without more. The only additional matter deposed to is at paragraph 17 which states: “It is clear to me that His Honour is prejudiced in this matter”.

73. Dealing firstly with the issue of the first application being informal, I note Pr Kaku’s counsel failed to assist with any authority on point. If there is any authority on point supporting his proposition, it would be an exception to the doctrine of res judicata or issue estoppel. The duty was upon counsel to assist the Court with any such authority on point, but he did not. A consideration of all the authorities on the twin doctrines of res judicata and issue estoppel, make one thing very clear. If an issue was raised in an earlier proceeding, both parties were heard on that issue and a court or a tribunal of competent jurisdiction as come to a final decision on it, the decision is final and it puts an end to the issue, subject only to any right of appeal or review. Given that, the same issue cannot be reagitated in any subsequent proceeding. This accords well with the public policy consideration that, there must be finality in litigation. The form in which the issue was raised and dealt with is never a consideration. If, however, it is a relevant and necessary factor for consideration, it was incumbent upon Pr Kaku’s counsel to draw the Court’s attention to any relevant authority on point. This he failed to do, simply because there is no such authority as the issue does not arise anywhere.

74. What has been said above, equally applies with appropriate modifications to the second matter raised by Pr Kaku. The second matter he raised was that, he did not fully present the case for my disqualification when he made his first application. He therefore claims, he is at liberty to repeat the application, this time, fully. If this is permissible as an exception or as against an application of the twin doctrines of res judicata and issue estoppel, it was for Pr Kaku through his learned counsel to draw this Court’s attention to the relevant authorities on point. With respect, however, he also failed to assist appropriately resulting in their arguments being left without the support of any authority on point.

75. I am not surprised with the lack of authority supporting any of Pr Kaku’s propositions as against the application of the doctrines of res judicata and issue estoppel. For what matters, are the essential elements for the application of either or both of the two doctrines clearly spelt out by the various authorities, I discussed in the foregoing. The essential elements for either of the doctrines to apply are again as stated by the decision of the Supreme Court in National Housing Corporation v. Paul Asakusa & Ors (supra) namely that the:

“a) issue raised in the second proceeding is the same issue as that raised in prior proceedings;

76. As long as these essential elements are met, either of the doctrines apply. In the present case, the issue of my disqualification based on my having made comments and decisions adverse to Pr Kaku in the earlier proceedings was clearly raised in the proceedings that eventually led to the decision now published as Electoral Commission v. Pr Bernard Kaku (2019) SC1866. After having heard the parties, I came to a final decision on the question of my disqualification. The parties remain the same. The decision I arrived at was a necessary decision that had to be made and was made before a hearing of the substantive matter.

77. The only thing that is new is that, the EC’s review application was granted and a retrial or rehearing of the EC’s objection to the competency of Pr Kaku’s petition was ordered before a different judge and not the initial trial judge. Following that decision and order, the objection and the petition went before her Honour, Berrigan J. Her Honour heard the objection and decided to uphold the objection in part and ordered a strike out of 7 out of 9 grounds of the petition. Her Honour also ordered the trial on the remaining grounds to go back to the original trial judge, his Honour, Manuhu J. The current application for leave arises out of that decision. The application for my disqualification is essentially based on the same grounds relied upon in the first application. In these circumstances, I find res judicata and issue estoppel has arisen. Accordingly, I am of the view that, Pr Kaku is precluded from making the same application again.

78. The above observations show clearly that the Pr Kaku has failed to establish a case for my disqualification. That failure is based on his failure to establish a case of an objective observer, knowing all the surrounding facts, would be left with a reasonable apprehension, not a conviction, that I am predisposed, by matters extraneous to a proper adjudication, to reach a particular conclusion in the application now pending before me. Put another way, Pr Kaku has failed to establish a case that I will determine the pending matter partially or with prejudice against him and I therefore have to disqualify myself. Although it is important that justice must be seen to be done, it is equally important that I should discharge my duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage Pr Kaku and any other person in his position to believe that, by seeking my disqualification, they will have their case tried by a judge whom they think more likely to decide the case in their favour, thereby effectively allow them to influence the choice of a judge in their cause. The conduct of Pr Kaku through his counsel, especially his failure to disclose the first failed application for my disqualification, the relevant cases on point particularly those that goes against him and seeking the application for my disqualification to be heard by a judge other than myself without first informing the EC and Mr Powi and this Court, clearly demonstrates his wish to have a judge of his choice hear his case and not me. That appears to be the main reason for his application and not necessarily on the basis of prejudice or bias.

79. The mere fact that I made a decision in the earlier interlocutory proceedings in this case, does not provide a foundation for a reasonable apprehension that I might be biased. My earlier decision is a judicial pronouncement on an issue in dispute between the parties and has a binding effect on the parties and others based on the doctrine of stare decisis and does not necessarily form the foundation for the disqualification of a judge.That would be the case, if the decision is to be taken final. If the decision was not a final decision, the views I expressed in the earlier proceedings are merely interlocutory and are open for re-visitation.

80. It is a very serious matter to seek the disqualification of a judge and as such, it must be based on reasonable, genuine and objective basis or grounds and not driven by unreasonable, emotive and non-objective views of parties or their counsel. The application for my disqualification is not based on any substantial ground. A substantial ground would for example be similar to the case of Ipara v. Trainor, a case relied upon by Pr Kaku. There, the judge concerned in an earlier proceeding,made findings of fact and decided on the credibility of a litigant or a witness who was a party or witness in a subsequent case. This findings and views have not changed. I am not in the same position as was the judge in that case.

81. I find also that Pr Kaku with the assistance of his counsel has failed to attach any seriousness to his application given the seriousness of an application seeking to disqualify a judge. He started with a very casual and halfhearted application on the first occasion on 17^th October 2019. That application was determined on its merits against him. He has now made the same application again, essentially on the same grounds that were relied upon in the first application and were not sustained. This he has done without having any good basis to argue against and prevent the doctrines of res judicata or issue estoppel from applying. That, he has done without first disclosing at the outset of making is current application, the fact of his first application and its outcome. He has also failed to demonstrate how he is now entitled to bring the same application. Additionally, while I was seized of the matter, counsel did his best to take his client’s application out of this Court and present it before another judge who could hopefully, make a decision in favour of his client. That was behind the backs of his learned colleagues, this Court and in clear breach of the professional conduct rules.

82. Ultimately, I find Pr Kaku has not made out a case for my disqualification based on prejudice or bias. I also find Pr Kaku is precluded from making his current application by operation of the doctrines of res judicata and issue estoppel based on his first failed application on 17^th October 2019. Accordingly, I refuse his application for my disqualification and order its dismissal with costs to the Applicant and the Second Respondent.
________________________________________________________________
Harvey Nii Lawyers: Lawyers for the Applicant
Diwenis Lawyers: Lawyers for the First Respondent
Baniyamai Lawyers: Lawyers for the Second Respondent

^[1] This points are based on a number of decisions coming out of the State of North Carolina courts, namely Dunn v. Canoy, 180 N.C. App. 30, 38 (2006); State v. Vega, 40 N.C. App. 326, 331 (1979); Love v. Pressley, 34 N.C. App. 503, 506 (1977); In re Paul, 28 N.C. App. 610, 618 (1976) and State v. Scott, 343 N.C. 313, 325 (1996), as cited in the work of Michael Crowell, headed “Recusal” in Administration of Justice Bulletin No. 2015/05, © 2015 School of Government, University of North Carolina, Chapel Hill.
^[2] Copy available at https://www.floridasupremecourt.org/content/download/326766/2940293/03-2169_LegFormat.pdf
^[3]Not SC855 as cited in the Yama v Bank South Pacific case.

Supreme Court of Papua New Guinea

Electoral Commission of Papua New Guinea v Kaku [2020] PGSC 37; SC1950 (11 May 2020)