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Yama v Bank South Pacific [2008] PGSC 41; SC921 (9 July 2008)

SC921

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 110 OF 2004
SCA 88 OF 2006
SCA 85 OF 2003

BETWEEN:

PETER YAMA AND OTHERS
Appellants

AND:

BANK SOUTH PACIFIC AND ANOTHER

Respondents

AND:

SMUGGLERS INN AND OTHERS
Appellants

AND:

CHRISTOPHER BURT AND OTHERS
Respondents

AND:

YAKKA ENTERPRISES
Appellant

AND:

PETER YAMA AND OTHERS
Respondents

Waigani: Sakora J., Gabi J. and Hartshorn J.
2008: 10th June
: 9th July

DISQUALIFICATION - Apprehended bias - whether prior professional relationship between lawyer and client will disqualify lawyer, on becoming a judge, from sitting in proceedings to which former client is a party - whether reasonable apprehension that judge may be predisposed to a view of the issue because of past involvement

Facts:

The Appellants by a Notice of Motion seek orders to disqualify Hartshorn J from presiding on these matters pursuant to s.155 (4) and s.59 Constitution as they contend that there is a reasonable apprehension of Hartshorn J’s bias. The Respondent’s Notice of Motion seeks to dismiss the Appellant’s motion.

Held:

1. A prior professional relationship between a lawyer and client - even a long and proximate one - does not generally justify a reasonable apprehension that the lawyer on becoming a judge will not determine proceedings to which a former client is a party impartially on their legal and factual merits.

2. The specific subject matter upon which Hartshorn gave advice or acted upon, namely the privatisation of PNGBC, is not an issue in these proceedings. The client for whom Hartshorn acted is not a party to these proceedings. Such circumstances do not support the contention that Hartshorn J may be predisposed to find in favour of the Respondents in these proceedings.

3. There is no evidence whatsoever of any statements or actions of Hartshorn or Hartshorn J. that demonstrate any prejudice, ill feeling or animosity to the Appellants.

4. It is not the law that a Judge should disqualify himself just because a litigant has been or continues to be adversely critical of him even to the point of being defamatory and contemptuous, in unrelated matters.

5. If a litigant wishes to request a Judge to disqualify himself from hearing a case, the litigant himself or through his lawyer must file and serve on all parties to the proceedings, a Notice of Motion seeking that relief together with affidavit evidence in support of the Motion. It is not sufficient that a request to disqualify is contained in a letter to a Judge’s Associate or the Registrar of the Court or the Associate to the Chief Justice or to any Judge directly.

6. It is not a valid excuse to depart from the procedure in paragraph 5 above and the rules of professional conduct generally because "counsel is acting on client’s instructions". The first duty of lawyers and counsel is to the Court and secondly to the client.

7. The application of the Appellants that Hartshorn J. be disqualified from presiding over these matters is refused

8. The motion of the Appellants dated 23rd May 2008 is dismissed.

Cases cited:

Papua New Guinea Cases

PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa, Globes Pty Ltd and Romy Macasaet (1998) SC592
Gobe Hongu Ltd v. National Executive Council & Ors (1999) N1964
Hitron Pty Ltd v. PNG Telecommunication Authority [2000] PNGLR 357
Coecon Ltd v. National Fisheries Authority of PNG (2002) N2182
Bank of Papua New Guinea & Anor v. Marshall Cooke QC & Anor (2003) N2369
The State v. Puli A’aron (2003) N2432
Paru Aihi v. Sir Moi Avei (2004) N2523
An Application by Herman Joseph Leahy (2006) SC855
Pacific Equities & Investments Ltd v. Teup Goledu & Ors (2008) N3400

Overseas Cases:

A1 v. King QC (1996) (FCA, Merkel J. 31 May 1996, BC 9602233)
Aussie Airlines Pty Ltd v. Australian Airlines Pty Ltd & Qantas Airlines Ltd [1996] FCA 1308; (1996) 65 FCR 215
British American Tobacco Australia Ltd v. Peter Gordon & Anor [2007] NSWSC 109
Ebner v. Official Trustee in Bankruptcy [2000] HCA 63
Gascor t/as Gas & Fuel v. Ellicott, Esso Australia Resource Ltd & Anor [1997] 1 VR 332
Kartinyeri v. Commonwealth of Australia [1998] HCA 52
Livesey v. NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; [1986] HCA 39; 66 ALR 239
Rayon Australia Pty Ltd v. Tectran Corp. Pty Ltd (No. 4) (1986) 6 NSWLR 674
Re Polites; Ex parte The Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78
Webb v. R [1994] HCA 30; (1994) 181 CLR 41
S &M Motor Repairs Pty Ltd v. Caltex Oil (Australia) Pty Ltd (1998) 12 NSWLR 358
S &R Investments Pty Ltd v. Minister for Planning [2001] WASC 255
Smits v. Roach [2006] HCA 36

Counsel:

Mr. P. B. Lomai, for the Appellants in SCA 110/04 & 88/06 and Respondents in SCA 85/03
Mr. E. G. Andersen and Mr. N. Pitoi, for the Respondents in SCA 110/04 & 88/06 and Appellant in SCA 85/03

9 July, 2008

1. BY THE COURT: There are 2 notices of motion before this court for determination:

a) by Peter Yama & Others (Appellants) that Hartshorn J. be disqualified,

b) by Bank South Pacific & Others (Respondents) that the Appellants’ motion be dismissed.

2. Although proceeding SCA 85 of 2003 is included in the title to this decision it was agreed by the parties that the 2 notices of motion do not relate to that proceeding.

3. Both motions are brought following directions issued by this court on 14 May 2008 which are:

1. Lawyers for [the Appellants] serve copies of all correspondence to the Chief Justice or the Registrar, and copies of all responses from the Chief Justice or the Registrar in this matter, on the lawyers for the [Respondent's] by Friday, 16 May 2008.

2. Lawyers for [the Appellants] file and serve on the lawyers for the [Respondents] any application that is intended in this matter, together with supporting affidavits, by Friday 23 May 2008.

3. The lawyers for the [Respondents] file and serve answering affidavits and cross- applications, if any, on the lawyers for the [Appellants] by Friday 30 May 2008.

4. All parties through their respective lawyers file and serve any further affidavits on each other by Tuesday 3 June 2008.

5. All parties file their written submissions by Thursday 5 June 2008.

6. If the application for disqualification is not filed and all other directions in respect of it not complied with by Tuesday 10 June 2008, for the application to be heard then at 9.30 am, the Court will hand down its decision in these appeals.

Disqualification application

4. The Appellants apply for Hartshorn J. to be disqualified from presiding over these matters pursuant to s.155 (4) and s.59 Constitution. The basis for the application is not specified in the notice of motion but it is apparent from the oral and written submissions made on behalf of the Appellants that the basis is that there is a reasonable apprehension of Hartshorn J’s bias.

5. The Respondents opposed the Appellants’ application.

6. In the written submissions made on behalf of the Appellants the following 8 points are listed under the heading "Application of Evidence and Law" and appear to be the grounds of the application:

"1. Justice Derek Hartshorn then was one of the Managing Partners of Blake Dawson Waldron Lawyers, Port Moresby Office.

2. Blake Dawson Waldron Lawyers drafted the Constitution for the Bank South Pacific (BSP) Limited.

3. Gadens Lawyers drafted the Amalgamated Deed and Covenant and Support Deed for BSP Limited.

4. Blake Dawson Waldron Lawyers and Gadens Lawyers were heavily involved in the merger of Papua New Guinea Banking Corporation (PNGBC) into the BSP Limited.

5. Then Mr. Derek Hartshorn was involved in case OS No 424 of 2001 for Privatisation Commission. This entity is the conduit of the amalgamation process, which saw the merger of PNGBC to BSP Limited.

6. In the case referred to in OS No 424 of 2001 then Mr. Hartshorn was seen opposing a restraining application to restrain the amalgamation of PNGBC to BSP Limited until employees issues (claims) are sorted out. See P. Ben Lomai’s Affidavit filed on the 03rd of June 2008 annexure BLP 1 at p15 and 16 Line 30 onwards.

7. According to Henry ToRobert’s Affidavit annexed to Peter Yama’s affidavit filed on the 23rd of May 2008 at paragraph 2 Blake Dawson Waldron Lawyers were involved in conducting a competitive trade sale process for PNGBC.

8. Mr. Yama was against the sale of PNGBC to BSP Limited and literally appeared on a confrontational course with Mr. Stuart Littlemore QC in the Commission of Enquiry into the sale of PNGBC to BSP Limited."

7. The evidence relied upon by the Appellants in support of the above grounds is contained in the affidavits of P. B. Lomai filed 23rd May 2008, Stanley Wori filed 23rd May 2008, Peter Yama filed 23rd May 2008 and P.B Lomai filed 3rd June to 2008.

8. The Respondents relied upon the affidavit evidence of John Maddison and Mayambo Peipul both filed on 30th of May 2008.

9. A transcript of the proceedings of the Supreme Court held on 31st October 2008 comprising Davani J., Gabi J. and Hartshorn J. was provided by the court.

Law

10. The leading case in respect of civil matters concerning an application for disqualification is the Supreme Court decision of PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa, Globes Pty Ltd and Romy Macasaet (1998) SC 592. This was followed by the Supreme Court in An Application by Herman Joseph Leahy (2006) SC855. This decision concerned an application to disqualify a Judge who had sat on a three man bench hearing an application for judicial review in criminal proceedings.

11. In PNG Pipes (supra) 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."

12. In Leahy’s case (supra) it was held that:

"1) For a Judge to be disqualified from hearing a case on the ground of apprehended bias, the test to be satisfied is: would a reasonable and fair-minded person knowing all the relevant facts have a reasonable suspicion or apprehension that a fair hearing was not possible?

2) The suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds.

3) General knowledge on the part of a Judge, obtained in the course of previous employment, of the subject matter of legal proceedings will not, by itself, give rise to a reasonable suspicion or apprehension of bias in the event that the Judge deals with the subject matter in a judicial capacity.

4) If a Judge's knowledge of the subject matter of legal proceedings is contended to be the basis of a suspicion or apprehension of bias there must be a real connection between the Judge’s knowledge and the issues for adjudication in those proceedings, eg if the Judge has expressed a prior opinion on the issues for adjudication."

13. The PNG Pipes case (supra) was relied upon in the National Court decision of Gobe Hongu Ltd v. National Executive Council & Ors (1999) N1964, a decision of Sevua J. The head notes of that decision succinctly state factors to be considered on an application for disqualification:

"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;

2) Judges should resist from being driven from their Courts by the conduct or assertion of parties. Raybos Australia Pty Ltd v. Tectran Corp. Pty Ltd (No. 4) (1986) 6 NSWLR 674 (at 689);

3) A Judge may disqualify himself in circumstances 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 the resolution of the question in issue. Livesey v. NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288;

4) A Judge should disqualify himself by reason of apprehension of bias, under one or more of the following principles, where it is demonstrated that, firstly, he has an interest in the case before him, which interest may be direct, indirect, pecuniary or otherwise. Secondly, by his conduct including published statements, whether such conduct is in the course of, or outside the proceedings. Thirdly, where the Judge, through association or relationship, either by himself, his spouse or children, has a direct pecuniary interest in the case and finally, disqualification by extraneous information, where the Judge had presided over an early case or he has had some knowledge of prejudicial and inadmissible facts. Webb v. R [1994] HCA 30; (1994) 181 CLR 41;

5) It is of fundamental importance in the administration of justice that litigants and the general public have full confidence in the integrity, including the impartiality of those entrusted with the administration of justice so that the impartiality and the Constitutional independence of the judiciary is not interfered with.

6) The test of an ‘objective observer’ established by the Supreme Court in PNG Pipes Ltd & Anor v. Mujo Sefa & Ors should also include ‘a fair minded, lay observer’ as considered in Livesay v. NSW Bar Association (supra)."

14. These cases have been followed in Hitron Pty Ltd v. PNG Telecommunication Authority [2000] PNGLR 357, Coecon Ltd v. National Fisheries Authority of PNG (2002) N 2182, Bank of Papua New Guinea & Anor v. Marshall Cooke QC & Anor (2003) N 2369, The State v. Puli A’aron (2003) N 2432 and recently in Pacific Equities & Investments Ltd v. Teup Goledu & Ors (2008) N3400.

15. An objective, fair-minded lay observer has been attributed with having some knowledge of the way in which lawyers and judges work. In Pacific Equities (supra), Hartshorn J. noted with approval the following propositions that have been established by the authorities in this regard that were listed by Brereton J. in British American Tobacco Australia Ltd. v. Peter Gordon & Anor (2007) NSWSC 109:

a) A prior professional relationship between a lawyer and client - even a long and proximate one - does not generally justify a reasonable apprehension that the lawyer, on becoming a judge, will not determine proceedings to which the former client is a party impartially on their legal and factual merits, because the relevant fair minded observer understands that the counsel is not beholden to the client after the relationship is severed, Re Polites; Ex parte The Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78; Aussie Airlines Pty Ltd v. Australian Airlines Pty Ltd & Qantas Airlines Ltd [1996] FCA 1308; (1996) 65 FCR 215; S&M Motor Repairs Pty Ltd v. Caltex Oil (Australia) Pty Ltd (1998) 12 NSWLR 358.

b) Even having given advice to the former client, present litigant on an issue that arises in the matter before the court does not generally give rise to such an apprehension, because a judge can be expected to approach afresh with an open mind from the bench issues on which he or she has previously advised, illuminated by evidence and argument, Polites (supra);Kartinyeri v. Commonwealth of Australia [1998] HCA 52; A1 v. King (supra)

c) Nor does having advocated forensically a position on such an issue generally give rise to such an apprehension, Gascor t/as Gas & Fuel v. Ellicott, Esso Australia Resource Ltd & Anor [1997] 1 VR 332; indeed the position is a fortiori having given advice, because whereas giving advice involves counsel in reaching and expressing his or her own opinion on the issue, proper advocacy involves no more than presenting a tenable argument, which does not necessarily reflect counsel’s own opinion on the issue; advice therefore involves far greater potential for prejudgement than advocacy.

d) However, if the judge may be considered to have an interest in the outcome - for example, if the appropriateness of the advice is in issue, or if it will be necessary to decide whether a course of conduct advised by the judge as counsel was legally effective or appropriate - a reasonable apprehension of bias will arise Polites (supra); A1 v. King (supra).

e) Moreover, if the judge as counsel may reasonably be supposed to have gained special knowledge of the facts through prior involvement - including through privileged material in a brief - that may found a reasonable apprehension that as judge he or she may have in mind extraneous material not known to at least one party, S&R Investments Pty Ltd v. Minister for Planning [2001] WASC 255, because a lay observer may reasonably think that a judge might not be able to put such information out of his or her mind.

16. In the judgments of PNG Pipes (supra), Gobe Hongu (supra) and Pacific Equities (supra), there are numerous references to Australian and English cases on the question of disqualification. In PNG Pipes (supra) the Supreme Court stated that:

"It is useful and instructive to refer to similar cases and statements of principle in overseas jurisdictions which may be of assistance."

17. The Courts in this jurisdiction have taken into account and have adopted Australian and English authorities on the question of disqualification and the law is essentially the same in all common law jurisdictions.

18. We are of the view that the propositions listed in British American Tobacco (supra) are a proper reflection of the law as it has developed concerning an objective, fair-minded lay observer and we see no reason why these propositions should be departed from.

Contentions

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, Ebner v. Official Trustee in Bankruptcy [2000] HCA 63; Smits v. Roach [2006] HCA 36.

20. The facts, matters and circumstances which it is contended might lead Hartshorn J. to decide matters other than on their legal and factual merits in summary are that:

a)

i) Hartshorn's firm, Blake Dawson Waldron (BDW) of which he was the Resident Managing Partner, was involved with respect to the privatisation of PNGBC.

ii) the evidence on behalf of the Appellants is that BDW acted for the Privatisation Commission, the shareholder of PNGBC and not the Respondents, with respect to the privatisation of PNGBC.

iii) there is evidence that BDW drafted a constitution for the Bank South Pacific Limited (BSP), one of the Respondents. This draft constitution is an annexure to the Amalgamation Deed between the Privatisation Commission, PNGBC and BSP prepared by Gadens Lawyers.

iv) in the Amalgamation Deed there is a reference to the "Yama Proceedings" at clauses 8.2 d) iv) and 8.8. The "Yama Proceedings" are defined as any liability of PNGBC to Yama Securities Ltd with respect to the matter relating to a judgment obtained by Yama Securities Ltd against MVIL and/or Motor Vehicles Insurance Trust Ltd.

v) there is no evidence that the judgment obtained by Yama Securities Ltd against MVIL or Motor Vehicles Insurance Trust Ltd is in anyway related to or concerns any of the issues in these proceedings. Yama Securities Ltd is not a party to these proceedings.

vi) there is evidence that Hartshorn acted for the Privatisation Commission in proceedings OS 424 of 2001. In those proceedings the Privatisation Commission opposed an application for restraining orders seeking to prevent the amalgamation of PNGBC and BSP.

b) it is not disputed that BDW and Hartshorn have acted for the Respondents on other matters. There is no evidence that they have acted on such matters involving the Appellants.

c)

i) Hartshorn and BDW acted for the Respondents at the Commission of Inquiry into the sale of PNGBC.

ii) notwithstanding this being alleged by the Appellants on a number of occasions, there is no evidence of Hartshorn and BDW acting for the Respondents at the Commission of Inquiry whatsoever. In fact the evidence is to the contrary. In the affidavit of Mr. Maddison, he deposes that Mr. Littlemore QC appeared at the Inquiry on behalf of the Bank of Papua New Guinea and/or its Governor and that BDW was never instructed on behalf of BSP formerly PNGBC, to represent its interests and further at no time was BDW ever engaged by BSP formerly PNGBC, to act against the Yama Group of Companies.

d) that Mr. Yama clashed with Mr. Littlemore QC at the Inquiry and adversely criticised the role of BDW and Gadens in the privatisation of PNGBC. This is not in dispute.

e)

i) that Hartshorn J. saw a letter written by Mr. Yama dated 6th September 2007 addressed to the Registrar National & Supreme Court copied to the Chief Justice and the Deputy Chief Justice on 6th September 2007 when Hartshorn J. had said in the Supreme Court hearing of 31st October 2007 that the first time he had seen the letter was when it was handed up to the Court by counsel on 31st October 2007.

ii) the evidence on this is contradictory and confusing but there is no evidence that the letter of the 6th of September 2008 was ever read by Hartshorn J.

iii) even if the Appellants evidence is accepted, it merely shows that Mr. Yama wrote a letter to the Registrar, that was received at the Registry and was pigeon-holed and that Hartshorn J. may have read a different letter over the shoulder of his associate on or about that date.

iv) As to whom the letter of 6th September 2008 was given, there is evidence that the issue of Hartshorn J.'s disqualification did not come to the attention of the Chief Justice until a further letter dated the 3rd January 2008 addressed to him was received even though the letter dated 6th September 2008 had been copied to the Chief Justice and Deputy Chief Justice.

Facts, matters and circumstances

21. The facts, matters and circumstances that arise from the evidence, as opposed to what was contended by the Appellants in our view are:

a) Hartshorn by his firm BDW acted for the Privatisation Commission on the sale/amalgamation of PNGBC to or with BSP.

b) Hartshorn acted generally for the Respondents.

c) Hartshorn acted for the Privatisation Commission in litigation commenced by PNGBC National Staff Association in which they sought inter alia, to restrain the sale of PNGBC.

d) Mr. Yama adversely criticised the role of BDW in the privatisation of PNGBC although he was mistaken as to the client of BDW.

22. The logical connection between those facts, matters and circumstances and the supposed deviation from deciding the case on its merits, we believe it is contended on behalf of the Appellants to be:

a) an objective, fair-minded lay observer might think that because Hartshorn had acted on the sale of PNGBC for a third-party, Hartshorn J. may be predisposed to find in favour of the Respondents in these proceedings.

b) an objective, fair-minded lay observer might think that because Hartshorn had given advice to the Respondents on unrelated matters, Hartshorn J. may be predisposed to find in favour of the Respondents in these proceedings.

c) an objective, fair-minded lay observer might think that because Hartshorn had acted for a defendant third-party in proceedings seeking to restrain the sale of PNGBC, Hartshorn J. would be predisposed to find in favour of the Respondents in these proceedings.

d) an objective, fair-minded lay observer might think that because Mr. Yama had adversely criticised the role of BDW in the privatisation of PNGBC, albeit incorrectly, Hartshorn J. would be predisposed to find in favour of the Respondents in these proceedings.

23. The contentions in 22 (a) and (c) concern Hartshorn giving advice to or acting for a third-party on matters unrelated to these proceedings. The specific subject matter upon which Hartshorn gave advice or acted upon, namely the privatisation of PNGBC, is not an issue in these proceedings. The client for whom Hartshorn acted is not a party to these proceedings. We reject the contentions contained in paragraphs 22 (a) and (c).

24. The contention in 22 (b) concerns Hartshorn giving advice to the Respondents on unrelated matters. The proposition in 15 (a) above is specifically relevant here. That is, a prior professional relationship between a lawyer and client - even a long and proximate one - does not generally justify a reasonable apprehension that the lawyer on becoming a judge will not determine proceedings to which a former client is a party impartially on their legal and factual merits. Here, in our respectful view, there is no evidence to suggest otherwise.

25. As to the contention in 22 (d) that an objective, fair-minded lay observer might have an apprehension of bias as Mr. Yama was adversely critical of BDW’s role in the privatisation of PNGBC; there is no evidence whatsoever of any statements or actions of Hartshorn or Hartshorn J. that demonstrate any prejudice, ill feeling or animosity to the Appellants.

26. We agree with the submission of counsel for the Respondents that in an application for disqualification, it is the actions of the Judge in question that are critical, not the actions of the litigant complaining.

27. It is not the law that a Judge should disqualify himself just because a litigant has been or continues to be adversely critical of him even to the point of being defamatory and contemptuous, in unrelated matters.

28. In this regard we cite with approval the following from the Gobe Hongu case (supra):

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;

2. Judges should resist from being driven from the Courts by the conduct or assertion of parties. Raybos Australia Pty Ltd v. Tectran Corp. Pty Ltd (No.1) (1986) 6 NSWLR 674 (at 689);

29. We reject the contention contained in paragraph 22 (d).

30. At this juncture, we comment on how the question of whether a judge should be disqualified should be brought before either the National or Supreme Court.

31. In this instance there were amongst others, letters written directly by Mr.Yama to the Chief Justice and a further letter written by Lomai Lawyers directly to the Chief Justice. In our view it is completely unacceptable for a litigant or his lawyers to write directly to a Judge or indirectly by copying in a Judge in correspondence, unless a Judge has specifically authorised such correspondence. We note that the Associate to the Chief Justice wrote to Mr. Yama and informed him that it was not appropriate for a litigant to write to a Judge directly.

32. If a litigant wishes to request a Judge to disqualify himself from hearing a case, the litigant himself or through his lawyer must file and serve on all parties to the proceedings, a Notice of Motion seeking that relief together with affidavit evidence in support of the Motion. It is not sufficient that a request to disqualify is contained in a letter to a Judge’s Associate or the Registrar of the Court or the Associate to the Chief Justice or to any Judge directly.

33. It is not a valid excuse to depart from the procedure outlined in the paragraphs above and the rules of professional conduct generally because "counsel is acting on client’s instructions". Lawyers and counsel must remember that their first duty is to the Court and secondly to the client.

Conclusion

34. In all the circumstances therefore and for the above reasons we refuse the application of the Appellants that Hartshorn J. be disqualified from presiding over these matters. The motion of the Appellants dated 23rd May 2008 is dismissed. The costs of and incidental to the motion are to be paid to the Respondents by the Appellants in SCA 110/04 and 88/06.

35. Given the above orders it is not necessary for us to consider the notice of motion of the Respondents.

______________________________

SCA 110/04 and 88/06

Lomai Lawyers: Lawyers for the Appellants
Gadens Lawyers: Lawyers for the Respondents

SCA 85/03

Gadens Lawyers: Lawyers for the Appellant
Lomai Lawyers: Lawyers for the Respondents