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Ipara v Trainor [2018] PGNC 525; N7646 (8 August 2018)

N7646

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 691 OF 2017

KURUBA IPARA & ORS
Plaintiffs

-V-

CHRISTOPHER TRAINOR & ORS
First Defendant

MASO KARIPE & ORS
Second Defendant

Waigani: Kariko, J
2017: 17^th October
2018: 8^th August

PRACTICE & PROCEDURE – application to disqualify judge – apprehension of bias – remarks made in an earlier decision in a related case

Cases Cited:

Gobe Hongu Limited v National Executive Council & Ors (1999) N1964
Pastor Steven Bagari v Hon. James Marape (2014) N5675
Peter Yama v Bank South Pacific Limited (2008) SC921

Counsel:

Mr J Haiara, for the First and Second Plaintiffs
Mr J Brooks, for the First Defendant
Ms J Nandape, for the Second Defendant

RULING

8^th August, 2018

1. KARIKO, J: The plaintiffs have applied for my disqualification from hearing this case.
   
2. In this proceeding, the plaintiffs principally seek a declaratory order that the appointments of the second defendants as landowner trustees of the Porgera Special Mining Lease Landowners Children’s Investment Fund (the Trust Fund) are null and void.
   
3. The Trust Fund was established for the benefit of the children of the Porgera Special Mining Lease Landowners (SML Landowners). The appointments of the landowner trustees were made at an Annual General Meeting of the SML Landowners (AGM) conducted on 25^th August, 2017. That meeting was conducted pursuant to a court order made in disposing an earlier proceeding OS No. 685 of 2013 – Pogera Landowners Association Inc. v Christopher Trainor & Ors (OS No. 685 of 2013).
   

The application

4. The two main affidavits filed in support of this application are the affidavits of Kurubu Ipara and John Ondalane both filed on 25^th September, 2017.
   
5. The grounds for the application are as follows:
   
   • (1) In the earlier proceeding, I erred in:
     
     • (a) relying on inadmissible and untested evidence in deciding that proceeding;
       
     • (b) making adverse findings concerning the credibility of first plaintiffs without any proper evidentiary basis; and
       
     • (c) failing to address a crucial issue of what constitutes a proper quorum of an AGM, including the question of which landowners are entitled to attend it.
       
   • (2) I have already expressed a preliminary view against the merits of the plaintiff’s pending application for interim injunctive orders.
     

Legal principles

6. The relevant principles in an application for the disqualification of a judge were summarized by the Supreme Court in Peter Yama v Bank South Pacific Limited (2008) SC921, endorsing the applicable considerations listed in Gobe Hongu Ltd v. National Executive Council & Ors (1999) N1964. In Peter Yama v Bank South Pacific Limited (supra), the Supreme Court after citing a number of case authorities both local and overseas stated at [19]:
   

“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.”

7. Counsel have correctly cited the appropriate legal principles and referred to relevant case authority. I acknowledge the legal principles confirmed by those authorities and note that whether or not a Judge should recuse depends on the particular facts and circumstances of a case.
   

Consideration

8. In relation to the first three reasons advanced for my disqualification, the plaintiffs confirm that they replicate grounds of appeal against my decision in OS No. 685 of 2013. That appeal is referenced SCA 74 of 2017 – Kuruba Ipara & Ors v Porgera Landowners Association Inc. & Ors which I understand is pending hearing.
   
9. In my view, those grounds raise issues properly for adjudication by the Supreme Court and they do not provide any proper bases for my disqualification from hearing the current proceeding except in relation to the ground concerning my remarks in OS No. 685 of 2013 going to the credibility of Kurubu Ipara, John Ondalape and Ruben Nalepe who were named as fourth defendants in that proceeding. I would quickly add however that those remarks were properly founded contrary to the suggestion by the applicants.
   
10. In the end, the sticky issue in OS No. 685 of 2013 was the long-outstanding AGM to properly appoint the landowner trustees for the Trust Fund. In my judgement, I relevantly stated:
    

[26] “There are of course various reasons for this but it is clear to me on the evidence referred to by parties in submissions that the delay in the last two years or so has been caused largely by the fourth defendant. It seems to me that while it is common acknowledgement that it is very much in the interests of the beneficiaries of the Trust Fund that the substantive Trustees are appointed sooner rather than later, the fourth defendant continues to come up with reasons not to convene the AGM.”

[29] “In my opinion, any further delay in the holding of an AGM is prejudicial to the beneficiaries of the Trust Fund and other related stakeholders.”

[30] “The fourth defendant has failed to comply with the Court’s order of 14^th August, 2014 to conduct the AGM. They are seeking relief in equity but in my opinion they have not come to court with clean hands.”

11. There are other passages of the judgement referred to by the applicants, but I do not consider them relevant. In my cited extracts, I suggested that Messrs Ipara, Ondalape and Nalepe were responsible for the lengthy and inexcusable delay in holding the AGM to the detriment of the beneficiaries of the Trust Fund.
    
12. In the present action, Messrs Ipara, Ondalape and Nalepe as plaintiffs allege that the court-directed AGM was not lawfully conducted. The defendants of course deny the claim. The issue of the AGM therefore still remains in dispute. Obviously there is and will be conflicting evidence as to whether proper procedure was followed in calling and convening the AGM. Credibility of witnesses would be critical and an important consideration in the determination of the present case.
    
13. Cases where applications for disqualification were made on the basis that certain views had been earlier expressed by a Judge include Gobe Hongu Ltd v. National Executive Council & Ors (supra) and Pastor Steven Bagari v Hon. James Marape (2014) N5675. The applications to recuse were denied in those cases because the earlier views of the Judge were found to be not determinative of the substantive issues.
    
14. Judges should not readily disqualify themselves from hearing cases but it is also important that the public should have full confidence in the integrity of Judges. A Judge may disqualify himself where a fair-minded lay observer with knowledge of the material facts might entertain a reasonable apprehension that the Judge might not bring an impartial and unprejudiced mind to resolving the issue before him; Gobe Hongu Ltd v. National Executive Council & Ors (supra).
    
15. The AGM ordered by the Court in disposing OS No. 685 of 2013 directly gave rise to the present proceeding. In the earlier case, I made adverse findings regarding the credibility of the now first plaintiffs, and that was a persuasive consideration in my final determination of that matter. The credibility of witnesses will undoubtedly play a significant part in resolving the current claim. In those circumstances, I think that a fair-minded lay observer with knowledge that I have made those earlier findings against the first plaintiffs might have a reasonable apprehension that I might not bring an impartial and unprejudiced mind to determining the substantive proceedings now before me.
    
16. For that reason I recuse from further hearing this case.
    
17. In relation to the plaintiffs’ assertion that I have already formed a view on the merit of their pending application for interim injunctions, I consider that submission without merit. It is suffice to say that my comments complained of merely formed part of my reasons why I declined to hear the motion as an “urgent application”.
    

Conclusion

18. For the reasons explained, I uphold the application. The Orders of the Court are that:
    
    • (1) I disqualify myself from further hearing this case.
    • (2) The case is adjourned to the registry to be referred to the Civil Track Judge Administrator for re-allocation to another Judge.
    • (3) The Registrar shall then advise the parties accordingly.
    • (4) Cost of and incidental to the application shall be in the cause.

_______________________________________________________________
Haiara’s Legal Practice: Lawyer for the First and Second Plaintiffs
Ashurst Lawyers: Lawyer for the First Defendant
Nandape & Associates: Lawyer for the Second Defendant