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Rageau v Kina Finance Ltd [2018] PGNC 277; N7405 (16 January 2018)

N7405

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 1021 of 2016

BETWEEN:
DR. ONNE RAGEAU
Plaintiff

AND:
KINA FINANCE
LIMITED
Defendant

Waigani: Hartshorn J
2018: 16^th January

Application for disqualification of a Judge

Cases cited:
Papua New Guinea Cases

PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592
Gobe Hongu v. National Executive Council & Ors (1999) N1964
Paru Aihi v. Sir Moi Avei (2004) N2523
Pacific Equities & Investments Ltd v. Goledu (2008) N3400
Yama v. Bank South Pacific Ltd (2008) SC921
Tzen Pacific Ltd v. Innovest Ltd (2012) N4713
Pastor Steven Bagari v. James Marape (2014) N5675

Overseas Cases

Bienstein v. Bienstein [2003] HCA 7
British American Tobacco Australia Services Ltd v. Laurie [2011] HCA 2.
Ebner v. Official Trustee in Bankruptcy [2000] HCA 63
Johnson v Johnson [2000] HCA 48
Lashansky v. Legal Practice Board of Western Australia [2012] WASCA 77
MTI v. SUL [No. 2] [2012] WASCA 87
Porter v. Magill [2002] 2 AC 357
Re JRL; Ex parte CJL [1986] HCA 39
Saxmere Company Ltd & Ors v. Wool Board [2009] NZSC 72; [2010] 1 NZLR 35

Counsel:

Mr. K. Kipongi, for the Plaintiff
Mr. A. Paru, for the Defendant

16^th January, 2018

1. HARTSHORN J: This is a decision on a contested application by the plaintiff for my disqualification from hearing this proceeding on the ground that there is a reasonable apprehension of my bias.

Background

2. The plaintiff and defendant are in dispute concerning the defendant exercising rights as mortgagee of a certain property owned by the plaintiff. The plaintiff alleges that the defendant has been negligent in its dealings with the plaintiff. The plaintiff in this proceeding is seeking damages, orders and declarations in respect of the property.

This application

3. The plaintiff seeks my disqualification pursuant to Order 12 Rule 1 National Court Rules on the grounds, if I understand correctly, that:

a) I presided over two earlier related proceedings involving the same parties and the same property;

b) I found against the plaintiff in both proceedings.

4. The defendant submits that the application should be refused as:

a) The evidence in the affidavit in support does not disclose why I should be disqualified;

b) no reasonable grounds are disclosed to support my disqualification;

c) the plaintiff by making this application is embarking on a course of forum shopping for a preferred judge and attempting to delay the proceeding.

Law

5. As to an application for the disqualification of a judge for apprehended bias, in PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592, it was held that:

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

6. In Tzen Pacific Ltd v. Innovest Ltd (2012) N4713, I noted that the law as to apprehended bias in respect of a judge in this jurisdiction 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, though the governing principle is that, subject to qualifications concerning waiver or necessity, a judge is disqualified:

“if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: Ebner (supra), Johnson v Johnson [2000] HCA 48, British American Tobacco Australia Services Ltd v. Laurie [2011] HCA 2.

In essence the tests are the same in all of these jurisdictions.

7. As to the hypothetical observer, in Yama v. Bank South Pacific Ltd (2008) SC921, the Court observed that an objective, fair minded, lay observer is to be attributed with having some knowledge of the way in which lawyers and judges work. The Australian High Court in Johnson v. Johnson (supra) explained further that:

“The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require the judge to discard the relevant, the immaterial and the prejudicial””

8. In cases where the allegation is that the apprehension of bias arises because a judge has presided over an early 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.

9. 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.”

10. In the minority decision of the High Court of Australia decision of British American Tobacco Australia Services Ltd v. Laurie [2011] HCA 2, French CJ said in the general context and not specifically as to the matter then before the High Court, that in regard to a finding properly made by a judge in the course of an interlocutory ruling or in earlier proceedings, that:

“It is an area in which courts should be astute not to defer to that kind of apprehension (of bias) that is engendered by the anticipation of an adverse outcome, rather than a legitimate concern about partiality. By way of example, the fact that a judge who has made a finding of fact adverse to a party on particular evidence is likely to make the same finding on the same evidence, is not of itself indicative of bias. It could be indicative of consistency subject to the judge having an open mind when it came to argument about the effect of the evidence.”

11. In considering whether a reasonable apprehension of bias has been established, in Yama v. Bank South Pacific Ltd (supra) at para 19 the Court said:

“ 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.”

Consideration

12. The facts, matters and circumstances which it is submitted, might lead me to decide matters other than on their legal and factual merits are that:

a) It is submitted that I have dealt with two related proceedings involving the same parties and subject matter;

b) I found against the plaintiff in these two related proceedings.

13. As to the contention that I have ruled against the plaintiff in the two related proceedings, as I said in Pastor Steven Bagari v. James Marape (2014) N5675 at [20], I am not satisfied that there is evidence in this instance to suggest, and I am not of the view that my decisions in the previous two proceedings give rise to an apprehension that I will approach this proceeding with a closed mind. I refer to the statement of French CJ in British American Tobacco v. Laurie (supra) in this regard.

14. 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.

15. 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 (supra) where I refused a disqualification application that was made on the basis amongst others, that I had refused injunctive relief in the same proceeding.

16. I reject the contention that because of my previous decisions in two other proceedings that an objective, fair minded, informed observer would reasonably apprehend that I may be predisposed to find against the plaintiff. The plaintiff is not entitled to the relief that he seeks.

Orders

17. It is ordered that:

a) The relief sought in the notice of motion of the plaintiff filed 9^th February 2017 is refused;

b) The plaintiff shall pay the defendants costs of and incidental to the said notice of motion;

c) Time is abridged.
_____________________________________________________________
Baniyamai Lawyers: Lawyers for the Plaintiff
O’Briens Lawyers: Lawyers for the Defendant