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Lali Media v Lavaka Ata [2003] TOLawRp 21; [2003] Tonga LR 117 (23 May 2003)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CV 219/2003

Lali Media

v

Lavaka Ata anors

Ward CJ
9 and 12 May 2003; 23 May 2003

Practice and procedure – application for change of judge – considerations

On 4 April 2003, the defendants passed the Protection from Abuse of Press Freedom Ordinance 2003 which applied only to the Taimi `o Tonga newspaper and all other publications of the first plaintiffs. The plaintiffs sought judicial review of that action and, alternatively, damages and an injunction. The defendants applied to have the case heard by another judge.

Held:

1. The test was, would a reasonable and fair-minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the applicant was not possible.

2. The court did not consider that a finding of law on the facts of one case could ever be a reason for suspecting prejudgment of even the same points of law in relation to the facts of the new case unless they were the same facts as in the earlier decision and were still disputed. The application was refused.

Cases considered:

Hannam v Bradford City Council [1970] 1 WLR 937

Livesey v NSW Bar Association [1983] HCA 17; [1983] 151 CLR 288

Metropolitan Poreperties Ltd v Lannon [1968] EWCA Civ 5; [1969] 1 QB 577

R v Liverpool City JJ ex p Topping [1983] 1 WLR 119

Counsel for applicants/defendants: Ms Simiki (with Stanton)
Counsel for respondents/plaintiffs: Mr Tu'utafaiva (with Harrison)

Judgment

On 4 April 2003, the defendants passed the Protection from Abuse of Press Freedom Ordinance 2003 which at present applies only to the Taimi `o Tonga newspaper and all other publications of the first plaintiffs. The plaintiffs seek judicial review of that action and, alternatively, damages and an injunction.

The defendants have applied to have the case heard by another judge. It is clear from the written submissions by Mr Stanton that he believes the court suggested such an application should be made. That is not the case.

The writ was filed on 22 April 2003 with an ex parte application for leave to seek judicial review and interim relief. I was not inclined to grant interim relief if the judicial review could be heard in the near future and I was able to list the case on 19 May 2003 as a preceding trial was likely to go short. At the first chambers hearing on 30 April 2003, I asked counsel if they were intending to object to my trying the case. The reason was that if such an application was to be made and granted, it would be necessary to find, a different hearing date in Ford J's list. Miss Simiki, then appearing for the second defendant only, had not received any instructions on the point and so I adjourned to 2 May 2003. On that date, it was clear the defendants wished to make such an application and so it was adjourned to 6 May and then to 8 May to allow submissions to be filed.

On 8 May it became apparent that there had been some misunderstanding about when the application was to be heard and no submissions had been filed by the defendants. By this time the agreed date for the hearing was 21 May 2003 and so I fixed a timetable to ensure that date would be met. For that reason, I included a decision that I would try the case unless Mr Stanton wished to pursue the application in which case I would consider the application afresh and allow and allow him to file further grounds. He filed written submissions and I allowed Mr Harrison to reply. I now have those submissions and I am grateful to counsel for dealing with the matter so promptly.

The basis for the defendants' suggestion of bias is that I was the presiding judge in a recent case effectively involving the same parties and applications on similar grounds to those made in respect of three previous orders which were intended to ban the Taimi newspaper from Tonga.

The test the Court is to apply in considering such an application has been the subject of differing authorities in England. The result has been an apparent conflict between the long standing test of a real likelihood of bias and the suggestion that it is sufficient if there is a reasonable suspicion of bias. In Hannam v Bradford City Council [1970] 1 WLR 937, Sachs LJ suggested, at 942, that there is little, if any, difference between the two tests although he favoured the former as stated by Denning LJ in Metropolitan Poreperties Ltd v Lannon [1968] EWCA Civ 5; [1969] 1 QB 577. He concluded that, "the question is not whether the tribunal will in fact be biased, but whether a reasonable man with no inside knowledge might well think that it might be biased".

I adopt the formulation suggested by Lord Widgery CJ and approved by Ackner LJ in R v Liverpool City JJ ex p Topping [1983] 1 WLR 119. In such an application the test is, would a reasonable and fair-minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the applicant was not possible.

Mr Stanton cites Livesey v NSW Bar Association [1983] HCA 17; [1983] 151 CLR 288 in which the High Court of Australia suggests the test is one of reasonable apprehension. Citing both the Hannam and Liverpool City JJ cases, they reiterated that "what is in issue in the present case is the appearance of and not the actuality of bias by reason of prejudgment". Counsel relies especially on the passage, at 300:

"It is however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact."

I do not consider this case takes the point further than the English authorities. Reasonable apprehension neither adds to nor detracts from reasonable suspicion and both must be based on reason. As the High Court pointed out, each case must be determined by its particular circumstances and the particular circumstances in Livesey's case showed members of the court had previously determined some of the exact matters in issue in the later proceedings.

Mr Stanton summarised his submission in the following passage:

"The essence of our submission is that given the evidence already given and upon which a judgment has been made together with the issues determined and their replication in these proceedings they conclusively show and firmly establish a reasonable apprehension of bias by reason of prejudgment."

I have considered the instances he suggests show I have already determined the credibility and/or intent of the present second defendant and two of the present first defendants. I do not set them out. I am satisfied that, to the very limited extent I needed to determine any issue of credibility, it would not give any fair-minded person present in court reason for a suspicion of bias.

Similarly, the matters of law I have determined in the earlier case may, (no defences have yet been filed) in some aspects be relevant to the decision I shall have to make in this case. However, I do not consider that a finding of law on the facts of one case can ever be a reason for suspecting prejudgment of even the same points of law in relation to the facts of the new case unless they are the same facts as in the earlier decision and are still disputed.

The application is refused.