SC2850

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 152 OF 2023

BETWEEN:
KULE LAYO
in his capacity as a landowner and member of the Pulumani
Ambo Wangai Clan of the Porgera Special Mining Lease Area
First Appellant

AND:
KIMALAYE ONDALANE
in her capacity as landowner and member of the Tieni-Yangua
Clan of the Porgera Special Mining Lease Area
Second Appellant

AND:
RUBEN LOLI NALEPE
in his capacity as a landowner and member of the Pulumani
Enoleme Clan of the Porgera Special Mining Lease Area
Third Appellant

AND:
HON. ANO PALA
in his capacity as the Minister for Mining
First Respondent

AND:
MINERAL RESOURCES AUTHORITY
Second Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

AND:
NEW PORGERA LIMITED
Fourth Respondent

WAIGANI: HARTSHORN J
23 OCTOBER, 6 NOVEMBER 2025

SUPREME COURT - APPEAL – practice and procedure - Application for disqualification

Cases cited

Re JRL; Ex parte CJL [1986] HCA 39
PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592 
Gobe Hongu v. National Executive Council & Ors (1999) N1964
Johnson v. Johnson [2000] HCA 48 
Ebner v. Official Trustee in Bankruptcy [2000] HCA 63 
Paru Aihi v. Sir Moi Avei (2004) N2523
Application by Herman Joseph Leahy (2006) SC981 
Smits v. Roach [2006] HCA 36
Yama v. Bank South Pacific Ltd (2008) SC921 
Pacific Equities & Investments Ltd v. Teup Goledu & Ors (2008) N3400 
Rex Paki v. Motor Vehicle Insurance Limited (2010) SC1015
British American Tobacco Australia Services Ltd v. Laurie [2011] HCA 2
Tzen Pacific Ltd v. Innovest Ltd (2012) N4713
MTI v. SUL [No. 2] [2012] WASCA 87 
Bagari v. Marape (2014) N5675
Nambawan Super Ltd v. Paul Paraka (2019) N7935
Barrick (Niugini) Limited v. Nekitel (2020) SC2013

Counsel

R. Saulep for the first and third appellants
L. Evore for the fourth respondent

1. HARTSHORN J: This is a decision on an application by the first and third appellants (appellants) for my disqualification on the grounds of apprehension of bias from hearing the application of the fourth respondent to dismiss this proceeding for want of prosecution.

Background

2. The appellants appeal decisions of the National Court in OS 39 of 2023 one of which was to dismiss proceeding OS 39 of 2023 in its entirety. The notice of appeal was filed on 9th October 2023.

3. The fourth respondent filed an application to dismiss this appeal for want of prosecution. On 11th September 2025, in the presence of counsel for the appellants and fourth respondent this application was adjourned for hearing to 2:30pm 23rd October 2025.

4. On 23rd October 2025 the appellants filed an amended application seeking amongst others my disqualification from hearing the application to dismiss.

5. This court heard the application to disqualify on 23rd October 2025 and reserved its decision.

This application

6. The appellants seek my disqualification on the following grounds set out in the amended application at [2] as follows:

“On 9th November 2023, His Honor made certain directions denying the Appellants:

a) An adjournment, despite the oral application of the Appellants’ Counsel to seek instructions to counter the Competency Objections; and
b) The refusal and/or denial by His Honor, to allow the Appellants to have the notice of Objection to Competency to be dealt with the substantive Appeal, pursuant to Order 7 Rule 17(2) of the Supreme Court Rules.
c) Refusal and/or denial to list the Appellant’s Motion (Appeal) against his decision of 9th November 2023, to be heard together with the Notice of Objection before the full court and in doing so, denying the Appellant’s right to be heard in breach of s. 59 of the Constitution.
d) In doing so, the Supreme Court constituted by their Honors Polume, Dowa and Pitpit. JJ, refused to hear the Appeal because it was not set down for hearing and therefore not correctly before the Court.
e) In the end result, the Appellants have lost a significant ground of Appeal of the Decision of the Court below to join the 4th Defendant as a party to the primary proceedings – OS No: 39 of 2023.”

Law
7. 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.”
8. 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 [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.” 
9. In essence the tests are the same in all of these jurisdictions. 
10. 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 [2000] HCA 48 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””
11. Then in an Application by Herman Joseph Leahy (2006) SC981 the Supreme Court held amongst others, 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 ……
7) A party and his counsel have a duty to expeditiously bring an application to disqualify a Judge from dealing with a case, immediately after the facts said to support an alleged suspicion or apprehension of bias are known……..”

12. 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.”
13. In Re JRL; Ex parte CJL [1986] HCA 39, 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.”
14. 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.”
15. 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
16. In considering whether I should be disqualified from hearing this application to dismiss for want of prosecution I proceed on the basis that it is an application for me to be disqualified from hearing this proceeding and not merely the application to dismiss.
17. To successfully demonstrate a reasonable apprehension of bias by me such that I should be disqualified from hearing this proceeding, the appellants should properly identify the facts, matters and circumstances by reason of which it is said that I might decide this proceeding other than on merit and secondly, demonstrate a logical connection between those facts, matters and circumstances and the apprehended deviation from the course of deciding the proceeding on merit: Peter Yama v. BSP (supra), Pacific Equities & Investments Ltd v. Teup Goledu & Ors (2008) N3400, Ebner v. Official Trustee in Bankruptcy [2000] HCA 63, Smits v. Roach [2006] HCA 36. 
18. The facts, matters and circumstances which, it is contended, might lead me to decide matters other than on their legal and factual merits are as deposed to by counsel Mr. Saulep. They are that on 9th November 2023, I refused an oral application for an adjournment and did not list an appeal against directions which I had made. Then on 28th November 2023 the full court of the Supreme Court dismissed an appeal against my interlocutory decision because I did not list the appeal for hearing together with the hearing of an objection to competency.
19. In addition, it is deposed to by the third appellant, Mr. Ruben Nalepe, in his affidavit sworn 21st November 2023 that he is aware that I was a senior partner at Blake Dawson Waldron, now Ashurst Lawyers, that I was an advisor, company secretary and director of Barrick (Niugini) Limited and that I resigned from those positions many years ago. Further, the third appellant deposes as to the nature of the orders made by me regarding the notice of objection to competency and “given what is obviously at stake”. 
20. It is contended by the appellants in essence that the logical connection between these facts, matters and circumstances and the supposed deviation from deciding the applications before me on the merits, is that an objective, fair minded lay observer might think that because of the above, I may be predisposed to find against the appellants.
21. As to the first contention that my refusal to grant the orders or relief sought by the appellants may cause an objective, fair minded, lay observer to think that I may be predisposed to find against the appellants, I am not satisfied that there is evidence in this instance to suggest and I am not of the view that my refusal to grant the orders or relief sought gives rise to an apprehension that I will approach this proceeding with a closed mind.
22. 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. 
23. In this regard, as I did Nambawan Super Ltd v. Paul Paraka (2019) N7935 at [28] and [29], I refer to the decision of Sevua J. in Gobe Hongu v. National Executive Council & Ors (1999) N1964 in which 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 (supra), in which I refused a disqualification application which 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: see also Bagari v. Marape (2014) N5675 at [20] and [21].  
24. As to the second contention, although it is not a ground in the application but is referred to in the affidavit of the third appellant, that I was a senior partner at Blake Dawson Waldron now Ashurst Lawyers, an advisor, company secretary and director of Barrick (Niugini) Ltd and that this may cause an objective, fair minded, lay observer to think that I may be predisposed to find against the appellants, again I am not satisfied that there is evidence in this instance to suggest and I am not of the view that my said previous positions give rise to an apprehension of bias by me against the appellants. I ceased holding the positions referred to over 18 years six months ago. I also refer to the judgment of Thompson J in Barrick (Niugini) Limited v. Nekitel (2020) SC2013 in which it was held that an application for my disqualification on very similar grounds concerning my former said positions was refused.
25. Given the above, I am not satisfied that it has been successfully made out that I should disqualify myself from hearing this proceeding.
26. As to the question of costs, the fourth respondent submits that this application of the appellants is an abuse of process, it contravenes the professional conduct rules and that costs should be awarded on an indemnity basis.
27. On the question of whether costs should be awarded on an indemnity basis, as was stated in Rex Paki v. Motor Vehicle Insurance Limited (2010) SC1015 at [28]:
“The award of costs on an indemnity basis is discretionary. An order for costs on an indemnity basis may be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable or blameworthy that he should be so punished by such an order. The question is whether the conduct of the appellant in this matter is such that he caused the respondent to incur unnecessary costs.”

28. In this instance, the application before this court had little prospect of success when regard is had to the judicial authority on point. The application was filed on the day that the application to dismiss for want of prosecution was to be heard and sought my disqualification in respect of hearing the application to dismiss as distinct from the proceeding. The events relied on for the application occured on 9th November 2023. Part of the evidence relied upon was in an affidavit sworn on 21st November 2023. This is contrary to what was held in Application by Herman Joseph Leahy (2006) SC981 at [Held (7)]:

“A party and his counsel have a duty to expeditiously bring an application to disqualify a Judge from dealing with a case, immediately after the facts said to support an alleged suspicion or apprehension of bias are known.”

29. After considering the above facts, I am satisfied that the submission of the fourth respondent, that this application was brought for the purposes of delay, is justified. Further, I am satisfied that the conduct of the appellants and their counsel Mr. Saulep in bringing the application and as they have, constitutes conduct which has caused the fourth respondent to incur unnecessary costs. I am not satisfied however, that it has been made out that indemnity as distinct from solicitor client costs should be awarded. Given the above it is not necessary to consider the other submissions of counsel.

Orders

a) The relief sought in paragraph 1 1 .1 of the amended application of the first and third appellants filed 23rd October 2025 is refused.

b) The first and third appellants shall pay the costs of the fourth respondent of and incidental to the application and hearing of the relief sought in paragraph 1 1.1 of this said amended application on a solicitor and client basis to be taxed if not otherwise agreed.
________________________________________________________________
Lawyers for the first and third appellants: Saulep Lawyers
Lawyers for the fourth respondent:	     Ashurst Lawyers