N9723

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1118 OF 2018

BETWEEN:
HOWARD MALISO
As Acting Ombudsman at all relevant times
Plaintiff

AND:
THE OMBUDSMAN COMMISION OF PAPUA NEW GUINEA
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani:  Tamade, AJ
2022:  7th April, 10th June

PRACTICE & PROCEDURE – Application to disqualify Judge – Apprehension of bias – plaintiff suggests an innuendo to remarks made by Judge during the hearing – plaintiff alleges that Judge had pre-determined his case – lack of evidence establishing allegation – Application refused.

BIAS – apprehension of bias – test to apply in an application to disqualify a judge from hearing a matter based on an apprehension of bias is an objective test – no reasonable perception that judge has had pre-determined plaintiff’s case – Refusal of application.

Cases Cited

The following case is cited in the judgment:

PNG Pipes Pty Limited and Venugopal v Sefa, Globes Pty Limited and Macasaet [1998] PGSC 52; SC592 
Gobe Hongu Ltd v National Executive Council [1999] PGNC 115; N1964
Olga v Wimb [2013] PGNC 106; N5321 

Counsel:

Mr. Howard Maliso, Plaintiff in Person
Mr. Mathew Kik, for the First Defendant

10th June, 2022

1.	TAMADE, AJ:  This is a decision on an application by the Plaintiff to disqualify myself from further presiding over this matter. 

2.	The Plaintiff is self-represented and makes reference to the manner in which I presided over an interlocutory application that came before me in regard to an application seeking to set aside a default judgment obtained by the Plaintiff and an application seeking leave by the Ombudsman Commission to file their Defence out of time to the Plaintiff’s claim.

3.	The Plaintiff is claiming that when the matter first came before me sometime earlier on or about August of 2021, the Plaintiff alleges that I made remarks which to him suggested that I had predetermined his case.  

4.	He makes references to words such as “challenged” in regard to his Statement of Claim filed 20 September 2018 and that I refused him making submissions on the principle of res judicata that “estopped the First Defendant from defence to liability” the Plaintiff’s words. The Plaintiff also complains that he wrote submissions that I did not consider when making a decision as to set aside the default judgment previously entered and granting leave to the First Defendant to file a Defence to the Plaintiff’s claim. I am of the view that the Plaintiff’s complaints as to his dissatisfaction over my ruling on 10 September 2021 setting aside the default judgment entered in this matter and allowing the First Defendant to file a Defence to his claim are matters that should be the subject of an appeal.

5.	Words such as “challenged”  and “whatever” in which the Plaintiff alleges that I made in hearing his matter in which he states go to me predetermining his case should with respect to Mr Maliso in my view not be taken out of context as they should be understood in the hearing before me at the relevant time and the transcripts of those proceedings will give the full context and meaning of what I meant by those words and in response to what exchange Mr Maliso had with the Court and with Mr Kik of the First Defendant.

6.	Mr Maliso also claims that I misstated the fact that he is an accountant when he is a lawyer by profession, and this showed in my ruling made on 10 September 2021. In paragraph 21 of my decision on 10 September 2021, I made the following remarks:

“Mr Maliso is not a learned person in law. He is an accountant by profession and therefore his conduct in not naming the First Defendant may have been to serve him better however a litigant can not get to enjoy the fruits of his judgement through running proceedings without the knowledge of every party whose conduct he is aggrieved by. “The State can not be also used as a milking cow”, a phrase commonly used by our Courts. Direct tort feasors who fall under the ambit of the State should be specifically named to ensure they answer to such claims and properly assist the Court as all matters in dispute to ensure adequate resolution with all proper and relevant parties.”

7.	Mr Maliso seems to suggest an innuendo in my remarks that the phrase in relation to “milking cow” refers to him and therefore that I had formed an opinion already against his case. This is further from the meaning of those words as can be seen in the context of my ruling. In saying that, Mr Maliso clearly aggrieved by my decision has a right of appeal to the Supreme Court.

8.	In regard to addressing Mr Maliso as an accountant in my ruling, I accept the fact that it is a misstatement, I accept Mr Maliso’s correction that he is not an accountant but a lawyer by profession. Mr Maliso has my sincere apology for misstating that fact. Having said that, it does not diminish or water down my admonishment in my ruling in the context of the issues and the conclusions in my ruling. To my mind, Mr Maliso’s dissatisfaction over my ruling and my reasoning for that ruling should be the subject of an appeal to the Supreme Court.

Does Mr Maliso’s complaints amount to sufficient grounds for me to disqualify as a judge in this matter?

9.	Mr Kik of the Ombudsman Commission has objected to the application by Mr Maliso and has made submissions that Mr Maliso’s complaints do not meet the grounds for a judge to be disqualified in hearing a case.

10.	I now address the law in this regard as to the disqualification of a judge.

11.	The test to apply in such an application to disqualify a judge from hearing a matter based on an apprehension of bias is an objective test and can be found in the Supreme Court case of PNG Pipes Pty Limited and Venugopal v Sefa, Globes Pty Limited and Macasaet [1998] PGSC 52; SC592 (26 November 1998). In that matter the Supreme 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.”

12.	The Supreme Court in PNG Pipes considered the Australian case of Trustees of Christian Brothers v. Cardone [1995] FCA 1309; 130 ALR 345 in which the following is quoted from Gallop J’s dissenting decision which the Supreme Court adopted as useful principles to be applied in imputed judicial bias. The following is stated:

“On the one hand there are the repeated assertions of the courts that:

(a)	Judges by their training and experience are able to bring a detached mind to the task: R v. Leckie; Ex parte Felman (1977) 18 ALR 93; 52 ALJR 155 at 160;

(b)	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

(c)	Judges should resist being driven from their courts by the conduct or assertion of parties.

(d)	Judges should not be disqualified because of the vigour with which they conduct proceeding.

(e)	Judges should perform the duties of their office, which, of their nature, will often be painful and unrewarding. They should do so with courage and decisiveness, avoiding the relinquishment of such duties which will necessarily then fall to another judicial officer for whom the task may be no more congenial: Raybos Australia Pty Ltd v. Tectran Corp Pty Ltd (No 9) (unreported).

13.	The Supreme Court in the PNG Pipes therefore adopted the above principles and went on further to state that:

It brings home this point: in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right- minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand:

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.”

14.	Various other National Court decisions have followed the PNG Pipes case with particularity as to the grounds of apprehension of bias towards a judge raised in those cases.

15.	Justice Mark Sevua (as he then was) in the case of Gobe Hongu Ltd v National Executive Council [1999] PGNC 115; N1964 (16 July 1999) considered and applied the principles adopted and applied in the Supreme Court case of PNG Pipes discussed above. Late Justice Sevua considered an application to disqualify himself in the matter wherein counsel for the Plaintiff had argued an interim injunction application whether the injunctions should continue or not. Counsel for the Plaintiff in that matter applied for His Honour to disqualify himself on the basis that His Honour may have an apprehension of bias towards his clients. His Honour considered the Australian case of Webb -v- R [1994] HCA 30; (1994) 181 CLR 41 at 67-8; [1994] HCA 30; 122 ALR 41 in which His Honour adopted the dissent of Deane J in that judgement as applicable principles in categories of disqualification as  follows;

"The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first [e.g., a case where a dependent spouse or child has a direct pecuniary interest in the proceedings] and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third [e.g., a case where a Judge is disqualified by reason of having heard some earlier case: see, e.g., Livesey -v- NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288; Australian National Industries Ltd -v- Spedley Securities Ltd (in liq)(1992) 26 NSWLR 411] and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstances give rise to the apprehension of bias."

16.	I also adopt the words of the Late Justice Sevua in relation to the need for litigants and lawyers to carefully assess a claim for disqualification before launching an application for disqualification. His Honour said these:

“These principles are so fundamental that, in my view, they reflect due consideration that all litigants and their lawyers must study before they embark on questioning the integrity and impartiality of a Judge each time, they lose an interlocutory application. In my view, the Court must draw a well-defined demarcation line between a spurious and misconceived application, and a genuine application. The Courts must ensure that disgruntled litigants and their disgruntled lawyers do not manipulate the judiciary and its judicial process by running to Court each time an interlocutory decision is made against them. In my view, disgruntled litigants and their lawyers must never be allowed to manipulate the judiciary and the judicial process. It is tantamount to attacking the constitutional independence of the judiciary. I consider therefore that it is of fundamental importance that litigants including members of the public, have full confidence in the integrity and impartiality of those entrusted with the administration of justice so that, the impartiality and constitutional independence of the judiciary is not interfered with. 

…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, in my view, 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.”

17.	His Honour in the above case therefore found that there was no evidence from an objective observer be it someone in Court who would have had an objective view regarding the hearing before the Court on that day. His Honour therefore refused to disqualify himself.

18.	Justice Colin Makail also considered an application for disqualification in an election petition matter in Olga v Wimb [2013] PGNC 106; N5321 (2 August 2013). The application before Justice Makail was to disqualify him on the allegation that His Associate had told a third party that Justice Makail had pre-determined the petition in favour of the Petitioner Mr Tom Olga. Justice Makail therefore took evidence in the matter and found that he should not disqualify himself because of what his Associate said as he was not satisfied that a fair-minded observer would hold a reasonable suspicion that the trial would be rendered unfair.

19.	In adopting the principles discussed by the Supreme Court in the PNG Pipes case as to the objective test, I find that Mr Maliso has not put evidence from an observer in Court on the days he claims I may have acted in a manner that pre-determined his case. The principle discussed in the PNG Pipe case on the objective test is there that the Court does not look at the mind of the judge presiding over the case, the Court looks at the mind of the independent observer and or the impression which would be given to a person at arm’s length who is right-minded and who would have observed that in the circumstances, there was a real likelihood of bias and that a right-minded person be it a member of the public would walk away thinking that the judge was indeed biased. It is the perception of an independent observer.

20.	I also find that Mr Maliso’s allegations do not fall under the categories discussed on disqualification by interest, disqualification by conduct including published statements, disqualification by association and or disqualification by extraneous information.

21.	I also adopt the words of the Late Justice Mark Sevua that an application for disqualification is a serious matter and an applicant bears the onus and the tremendous weight of carefully considering such an application which must never be irrational and unreasonable before hurling it at the judge concerned. Admonishing litigants is the duty of the Court to ensure litigants and lawyers come within the rules and processes to ensure justice is dispensed with on a balanced scale of fairness. If anything, Mr Maliso’s grievances having been dissatisfied with my ruling should be matters for an appeal. To my mind, his complaints fall short of the principles for the disqualification of a judge, and it, therefore, fails the observer objective test. I, therefore, refuse Mr Maliso’s application for disqualification.

22.	I, therefore, make the following orders:

i)	Mr Maliso’s application for disqualification of myself is refused.

ii)	Mr Maliso shall meet Mr Kik’s costs for the application.

Orders accordingly.
________________________________________________________________
Mr Howard Maliso:  Plaintiff In Person
The Ombudsman Commission In-House Lawyers:  Lawyers for the First Defendant