IN THE COURT OF APPEAL OF THE PITCAIRN ISLANDS

													CA 1/2023
[2025] PNCA 1

IN THE MATTER	of an appeal against Supreme Court decision 2/2022 [2023] PNSC 3 in respect of the validity of swearing in of the Chief Justice

BETWEEN	 MICHAEL CALVERT WARREN
	Appellant

AND 	THE ATTORNEY GENERAL OF PITCAIRN
	First Respondent

AND 	THE GOVERNOR OF PITCAIRN
							Second Respondent

Hearing:		15 June 2025 on Pitcairn Island (via AVL)
		16 June 2025 New Zealand

Coram:		Young P
		Dean JA
		Dobson JA

Counsel:		A J Ellis for Appellant 
		D E Kelly & K Raftery KC for Respondents

Judgment:		8 July 2025

______________________________________________________________________
JUDGMENT OF YOUNG P 
On Recusal
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[1]	On 15 June 2025, a day before two civil appeals (CA 1/2023 and CA 2/2023) were to be heard by this Court, counsel for Mr Warren, Dr Ellis, filed “Submissions in support of recusal of the President”.  The submissions sought my recusal with respect to appeal CA 1/2023.  That appeal concerned the circumstances under which Heath CJ was sworn in as Chief Justice on 20 January 2022.  
[2]	On 16 June 2025, after hearing submissions from the parties, I advised that I would not recuse myself and that the two appeals therefore should immediately proceed to a hearing.  I advised that I would in due course give my reasons for refusing to recuse myself from hearing appeal CA 1/2023.  I now do so.
[3]	To understand the context of the submissions seeking recusal, it is necessary to briefly and in summary recount the circumstances which led to the challenge to the lawfulness of the swearing in of the Chief Justice on 20 January 2022. 
[4]	The previous Chief Justice, Blackie CJ, wrote to the Governor of Pitcairn on 14 January 2022 advising, in summary, that he was about to turn 75 years of age (the retirement age for judges of Pitcairn) and suggesting a process by which the new Chief Justice could be sworn in.  Blackie CJ suggested he would resign as Chief Justice and invited the Governor to appoint him as an Acting Chief Justice to swear in the new Chief Justice.  He would then immediately resign as the Acting Chief Justice.  The purpose of the proposed process was said to be to avoid the situation of having two Chief Justices simultaneously.  
[5]	The Governor agreed to the proposal and after Blackie CJ’s resignation appointed him to what was called Acting Chief Justice.  Blackie ACJ then swore in Heath J as Chief Justice.  Immediately afterwards Heath CJ took the oaths of office of two new Court of Appeal Judges, Asher and Dobson JJ.  
[6]	Subsequently, the lawfulness of Blackie CJ’s appointment as Acting Chief Justice was challenged in the Supreme Court, and on 30 June 2022 Heath CJ re-swore his oaths of office before Lovell-Smith J, on the basis that the re-swearing of the oaths was said to remove any doubt.  Asher and Dobson JJ were re-sworn by Heath CJ on 14 October 2022.  No challenge is now made to the lawfulness of the taking of those oaths. 
[7]	The proceedings instituted in the Supreme Court alleged that Blackie CJ was not lawfully appointed a judge after his resignation on 19 January 2022 from the position of Chief Justice.  So it was said that he could not lawfully administer the oaths of office for Heath CJ.  It followed therefore that Heath CJ had not been lawfully sworn in as Chief Justice and that when he had then administered the oaths of office with respect to Asher and Dobson JJ they were not lawfully sworn in as judges of the Pitcairn Courts.
[8]	Mr Warren’s challenge to the lawfulness of the swearing in of Heath CJ came before Haines J in the Supreme Court.  He concluded that Blackie CJ had been properly appointed by the Governor of Pitcairn as an Acting Judge of the Court on 19 January 2022.  However, Haines J concluded that given Blackie CJ had not taken, as was required, the oath of allegiance and judicial oath, he could not therefore be seen as a judge de jure.  Haines J applied the de facto officer doctrine and concluded that the oath of allegiance and judicial oath taken by Heath CJ on 20 January 2022 was lawful and from that date the Chief Justice was properly appointed a judge of the Supreme Court of Pitcairn.  
[9]	I note that counsel for Mr Warren raised a number of other issues before Haines J, which counsel also submitted undermined the lawfulness of Blackie CJ’s appointment as Acting Chief Justice.  All such further points raised by counsel for Mr Warren were dismissed by Haines J.  For the purpose of considering this application for recusal, I do not need to record the detail of these other submissions.  The above brief summary is not intended therefore to identify all of the issues litigated before Haines J.  
[10]	The appeal in CA 1/2023 was due to be heard by this Court on 29 April 2025 with a coram consisting of Young P, Asher and Dobson JJ.  Over the weekend of 26/27 April 2025 a member of this Court, Dobson J, became aware that Asher J was not a judge of the Pitcairn Court of Appeal, given that he had already reached the retirement age of 75 years.  The only other member of the Court of Appeal who could potentially sit, Dean J, was not available to sit on such short notice and consequently the hearing of 29 April was abandoned.  A memorandum to this effect was released to counsel on 28 April.  
[11]	Dr Ellis then asked for further information as to the circumstances under which the appeal hearing date had to be abandoned.  Accordingly, I released a further memorandum to counsel on 2 May 2025.  In the circumstances it is appropriate to set out verbatim most of that memorandum:

MEMORANDUM OF YOUNG P
(adjournment of hearing)
…
[3]	Members of the Court became aware during the weekend of 26/27 April 2025 that Justice Asher, a member of the panel to hear the appeals, was not then a Judge of the Pitcairn Court of Appeal.
[4]	Section 54 of the Constitution of Pitcairn provides that Justices of the Court of Appeal hold office until they attain the age of 75 years.  The Governor may, however, permit a Judge who has attained the age of 75 years to remain in office for a further period not exceeding two years, as agreed between the Governor and the Judge.  Justice Asher had turned 75 years before the hearing date allocated for these appeals.  There was no agreement for any extended period pursuant to s 54(1).
[5]	Given those facts, it was evident Justice Asher was no longer a Judge of the Court of Appeal.  No other member of the Court of Appeal was available to sit on these appeals at such short notice.  Pursuant to s 51(3)(a) of the Constitution, the Court of Appeal may only sit with an uneven number of Judges and not fewer than three Judges. 
[6]	In the above circumstances, it was evident the hearing could not proceed, given a Court could not be convened which complied with s 51(3)(a).
[7]	The Court acknowledges the late advice of the abandonment of the fixture and that the late advice was understandably upsetting to both counsel and the appellant. 
[8]	We record that the responsibility to ensure compliance with the constitutional provisions regarding judicial eligibility fell on the Attorney General’s Office.  They have offered their apology to all parties for their oversight.
[12]	At the oral hearing of the recusal application, Dr Ellis asked how the members of the panel came to understand that Asher J was in fact not a member of the Court and how the coram of the Court of Appeal for the hearing had been “appointed”.  The Court responded that Dobson J had identified the fact that Asher J was over 75 years of age at the time of the hearing of the appeal.
[13]	As to the coram inquiry, the Court advised Dr Ellis that after it became apparent Asher J was not a judge of the Court, there were four judges remaining who could sit as judges of the Court of Appeal, that is, the current coram plus the Chief Justice (ex officio).  Given this appeal involved the challenge to the swearing in of the Chief Justice, it was evident, given the obvious conflict, that he could not sit on this appeal.  As a result, there were only three judges eligible to sit on the panel for this appeal, the minimum number for a coram (see s 51(3)(a) of the Constitution).  
[14]	Accordingly the current panel consisted of the only judges effectively eligible to consider this appeal.
[15]	Counsel for Mr Warren raised two grounds in support of the submissions that I should recuse myself.  Counsel submitted that the circumstances under which it was identified that Asher J was not a member of this Court was the second “unlawful appointment of Justice Asher”.  Counsel said that the first unlawful appointment of Asher J was in January 2022 when Heath CJ presided over the taking of the oaths of office with respect to Asher J when he had no lawful authority to do so.  The second unlawful appointment was the appointment by me of Asher J to the panel to hear this appeal.  Counsel submitted that the decision to appoint Asher J to the panel would have required me to consider “the system of appointments and its lawfulness in respect of Asher J which inevitably requires the President to consider the greater issue of the lawfulness of judicial appointments”.  
[16]	Counsel said the essential issues regarding the appointment of the Chief Justice in this appeal were the same as the issues relating to the appointment of Asher J to the Court of Appeal panel.  It was said therefore that by my actions I had “…. determined the issue of the lawfulness of the appointment of Justice Asher.  He cannot then sit on a determination of the lawfulness of the Chief Justice as he is now under challenge of the lawfulness of the appointment of Justice Asher”. 
[17]	 Counsel for Mr Warren accepted that Asher J had been lawfully appointed and had taken the oaths of office as a judge of the Court as at the swearing in of October 2022 and accepted that swearing in occurred before Asher J turned 75 years of age.  
[18]	I reject the submission that the allocation of Asher J to the panel was as asserted by counsel an “appointment”, which can in some way be equated with an appointment to judicial office.  The assignment of a judge to a panel to hear an appeal is no more than an assignment or allocation of work of the particular court.  
[19]	The assignment of Asher J did not, in my view, require me to consider the lawfulness of judicial appointments in Pitcairn.  The issues in question with respect to the Chief Justice’s swearing in are as identified by Dr Ellis;  the claim that Blackie CJ lobbied for his own appointment;  the failure of Blackie CJ to take the judicial oaths;  the appointment to an office that did not exist (Acting Chief Justice);  and the application of the de facto doctrine.  None of those issues arose with regard to the assignment of Asher J to the panel for this case.  
[20]	I therefore reject this submission as a basis to recuse myself.  
[21]	Secondly, counsel submitted that litigants should be advised by the Court of any proposed reassignment and the reasons for the reassignment of a panel member in any case and be given an opportunity to be heard on such proposed reassignment.  This process was not followed in this case.  Counsel submitted that when this case was adjourned and the panel reconstituted, without input from the appellant, this was in breach of s 8 of the Constitution; the right to a fair trial.
[22]	Where the reassignment (and we stress our conclusions relate only to reassignment of members of a coram of this Court) of a member of a coram is for administrative reasons, there is no reason to invite submissions from counsel before the reassignment.  Where the reassignment is for other reasons, for example, a possible conflict of a judge assigned to a hearing, the circumstances may be such that the President considers it appropriate to seek counsel’s input.  These occasions are likely to be rare.  
[23]	As is evident from the comments above (see paras [13] to [14]), after it was apparent that Asher J was not a judge of this Court and that given this appeal involved a challenge to the lawfulness of the appointment of the Chief Justice, there were only effectively three judges who could sit on the hearing of this appeal.  That is the minimum required by s 51(3)(a) of the Constitution.  Even if Dr Ellis is correct that a reassignment of a member of a judicial panel requires some form of public notification and an invitation to submissions from counsel affected, this reassignment of a panel member was administrative, in the sense it was dictated by necessity.  No purpose would be achieved by such notice and invitation to submissions in this case.
[24]	For the reasons given therefore I reject the submission by Dr Ellis that I recuse myself from sitting on appeal CA 1/2023.  

	_____________________
	Justice Young
	President