IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

CV 90 of 2014

BETWEEN:

VILIAMI UASIKE LATU
First Petitioner

'AISEA SILIVENUSI
Second Petitioner

AND:

'ETUATE SUNGALU LAVULAVU
Respondent

BEFORE LORD CHIEF JUSTICE PAULSEN 

Date of Hearing: 16 November 2015
Date of Ruling: 18 November 2015

Counsel: Mr. W. C. Edwards SC for the first petitioner
Mr. Lavulavu in person
Mr. 'O. Pouono (granted leave to withdraw) 

RULING

Introduction 

[1]	This ruling concerns applications by Mr. Lavulavu that: 

[1.1]	I recuse myself from hearing the first petitioner's election petition, which is set down for a trial of three week's duration at Vava'u commencing on 25 November 2015.

[1.2]	The trial of the election petition be adjourned. 

[2]	I had these applications brought before me on an urgent basis after a request from Mr. Lavulavu was received on Friday, 13 November 2015. Both applications are opposed by the first petitioner. The second petitioner has given notice that he does not intend to proceed with the petition.

[3]	Before hearing Mr. Lavulavu's applications I called upon Mr. Pouono to address me on a notice that he has filed of his intention to withdraw as Mr. Lavulavu's lawyer. I understood, and Mr. Pouono confirmed, that he has been the local agent for a New Zealand barrister, Mr. Nalesoni Tupou who on 25 March 2015 filed notice that he was acting as "Senior and Leading counsel for the defendant ('Etuate Sungalu Lavulavu)". Mr. Pouono said he could not continue to act for Mr. Lavulavu because there was a conflict between his advice and the instructions he received from Mr. Lavulavu. He also said Mr. Lavulavu had alleged that he was taking sides with opposing Counsel and as a result had no trust and confidence in him. Mr. Lavulavu had collected his file from Mr. Pouono on 11 November 2015. I granted him leave to withdraw. 

[4]	I then heard Mr. Lavulavu's applications. Mr. Lavulavu filed written submissions which I read before the hearing. Both Mr. Lavulavu and Mr. Edwards made detailed oral submissions. At the conclusion of the hearing I reserved my decision to give myself time to reflect upon the applications.

The recusal application 

[5]	Mr. Lavulavu says that I am not impartial and that he is being deprived of his right to a fair hearing.

[6]	The recognised grounds for recusal are founded on protecting public confidence in the independence and impartiality of the judiciary. The existence of bias in judicial decision-making is antithetical to public confidence in the integrity of the judiciary. In Muir v Commissioner of Inland Revenue [2007] NZCA 334 at [64] Hammond J said:

First, a Judge should not decide a case on purely personal considerations. Secondly, there should not reasonably be room for perception that the Judge will decide the case on anything but the evidence in front of him or her. Thirdly, a Judge must be in a position to consider all potentially relevant arguments. Fourthly, there may conceivably be a series of events or rulings which reasonably warrant an inference that the challenged Judge's perception is warped in some way. 

[7]	It is an important principle that Judges are obliged to sit on any case allocated to them unless grounds for disqualification exist. As noted in Muir, at [35], the duty to sit exists to protect judicial independence by preventing parties from:

…manoeuvering ... to improve their chances of having a given matter determined by a particular Judge or to gain forensic or strategic advantages through delay or interruption to the proceeding 

[8]	Judicial bias is a predisposition resulting from prejudice. There are two forms of bias. Presumptive bias arises where a decision-maker has a direct pecuniary interest in the outcome of a case. Apparent bias arises where a decision-maker has some other personal or professional relationship with a party or witness, or a prejudice against or preference towards a particular party or result, or a predisposition leading to a predetermination of the issues. Joseph Constitutional and Administrative Law in New Zealand (4th Ed, 2014 at 1076). Mr. Lavulavu does not allege that I have a direct pecuniary interest in the outcome of the election petition. I am therefore dealing with an allegation of apparent bias. 

[9]	The test to be applied in cases where bias is alleged has varied between jurisdictions. In England and Wales the question to be asked was found in R v Gough [1993] AC 646 to be whether having regard to the relevant circumstances there is a real danger of bias on the part of the decision maker in the sense the he might unfairly regard (or have unfairly regarded) with favour, or disfavor, the case of a party to the issue under consideration. 

[10]	In Muir v Commissioner of Inland Revenue the New Zealand Court of Appeal rejected the test in R v Gough, of a real danger of bias, in favour of the Australian test of 'reasonable apprehension' of bias set out in Webb v R (1994) 181 CLR 41 at [9]. In that case the High Court of Australia said: 

Of the various tests used to determine an allegation of bias, the reasonable apprehension test of bias is by far the most appropriate for protecting the appearance of impartiality. The test of "reasonable likelihood" or "real danger" of bias tends to emphasis the court's view of the facts. In that context, the trial judge's acceptance of explanations becomes of primary importance. Those two tests tend to place inadequate emphasis on the public perception of the irregular incident. 

[11]	Again in a New Zealand context, in Saxmere v New Zealand Wool Board Disestablishment Co Ltd (No 1) [2010] 1 NZLR 35, 37, Tipping J described the test in the following terms: 

The crucial question ... is whether a fair-minded, impartial, and properly informed observer could reasonably have thought that the Judge might have been unconsciously biased. 

[12]	As Scott LCJ noted in Tu'ifua and ors v The Public Service Tribunal and anor (Unreported, CV 45 of 2013, 13 June 2014, Supreme Court) there may well be little practical difference between these tests. For present purposes I consider the Saxmere test to be most advantageous to Mr. Lavulavu and will adopt that in consideration of his application.

[13]	Mr. Lavulavu is the Minister of Infrastructure and the Chairperson of the Housing Committee responsible for Housing Assets in Tonga. He says that during 2014 a Cabinet Decision was made that upon the retirement of the former Lord Chief Justice his house would be made the official residence of the Prime Ministers of Tonga. I was appointed Lord Chief Justice in January 2015 and took up residence in that house. Apparently in February or March 2015 the Housing Committee made a decision to give effect to the Cabinet Decision and allocate the house to the Prime Minister. Mr. Lavulavu says that one of the reasons for the decision was that the Prime Minister's house had burned down. That unfortunate event did not occur until 23 April 2015 and so could not have been a relevant consideration before the Housing Committee in February or March 2015, but for present purposes nothing turns on that. He goes on to say that I was given a letter dated 14 May 2015 directing me to vacate the house within two weeks. Although he accepts that this direction was soon withdrawn, Mr. Lavulavu submits that the Cabinet Decision has not been rescinded and contractual arrangements between me and the Housing Committee for my occupancy of the house have not been finalised. 

[14]	As an additional matter, Mr. Lavulavu says that there is money owing to the Government by the former Lord Chief Justice for rent, water, electricity and costs associated with the removal of 'renovations' from the house. The Housing Committee is, he says, considering claiming this money from me as the present occupier of the house.

[15]	These matters, Mr. Lavulavu says, have given rise to a conflict between him and me since February 2015. In his written submission of 16 November 2015 he states:

Such conflict will not give a fair and impartial hearing, for the conflict has existed since February this year until now (November 2015), while my case was before Your Honour.

[16]	It is correct that on 15 May 2015 I received a letter, signed by the CEO of Infrastructure on behalf of the Housing Committee, asking me to vacate my house within two weeks so that it could be occupied by the Prime Minister. I have never had any contact whatsoever with Mr Lavulavu or the Housing Committee about the direction that I vacate the house. To maintain my independence I passed the letter of 14 May 2015 to the Lord Chancellor. The matter was resolved by him. The direction that I vacate the house was promptly withdrawn around the end of May 2015. I understand that my occupancy of the house is secure.

[17]	Applying the test in Saxmere, no fair-minded, impartial, and properly informed observer could reasonably think that I might be consciously or unconsciously biased against Mr. Lavulavu so that I would determine the election petition other than on its merits. There is no logical connection between the events that Mr. Lavulavu describes and the allegation that I am not impartial. 

[18]	The direction that I vacate the house was disputed, not by me, but by the Lord Chancellor and it was very quickly resolved on an entirely acceptable basis. I have had no dealings with the Housing Committee or Mr. Lavulavu and no reason to develop or harbor resentment about the matter. There is presently no other dispute between me and the Housing Committee and/or Mr. Lavulavu. 

[19]	I have never been asked to finalise arrangements over my occupancy of the house. The absence of such arrangements cannot therefore have created in my mind any prejudice against Mr. Lavulavu. 

[20]	The suggestion that the Housing Committee may take action against me to recover debts owing by the former Lord Chief Justice is both fanciful and mischievous. It is also a matter of which I was, until the hearing, totally unaware and could not possibly have prejudiced me against Mr. Lavulavu. 

[21]	Mr. Lavulavu complains that every application that he has made to me has been unsuccessful. This is factually incorrect and Mr. Lavulavu accepted as much at the hearing. Mr. Lavulavu's application to have the election petition heard in Vava'u was granted by me on 20 April 2015 despite the strong objection of the petitioners. 

[22]	In relation to other applications, Mr. Lavulavu has filed an appeal or sought leave to appeal from three of my decisions. He has been unsuccessful in all of his challenges (AC 11 of 2015, 16 September 2015, AC 25 of 2015, 30 September 2015 and AC 25 of 2015, 27 October 2015). A further application by Mr. Lavulavu direct to the Court of Appeal, for a stay of the election petition was also refused (AC 25 of 2015, 11 November 2015). The decisions I have made against Mr. Lavulavu are not evidence of bias but a reflection of the fact that the applications lacked merit. 

[23]	If Mr. Lavulavu's argument was accepted there would be no logical reason why the same argument could not be extended to a range of persons who have been concerned with or affected by my living arrangements. That might include, for instance, the Prime Minister, the members of the Housing Committee and the former CEO for Infrastructure. In a small jurisdiction with just two permanent Supreme Court Judges, where it is inevitable that the Judges will have dealings with many people who regularly appear before the Court, that is a totally unrealistic approach. 

[24]	For the reasons I have given I would dismiss the application that I recuse myself. But before leaving this issue, there is another reason why Mr. Lavulavu's application must be dismissed. 

[25]	Mr. Lavulavu asserts that the conflict between us (by which I take it he means my alleged bias) has existed since February 2015. Logically, this cannot be correct as it was not until 15 May 2015 that I was directed to vacate the house and I knew nothing of the activities of the Housing Committee before that. Since 15 May 2015 I have continued to deal with this petition in the Supreme Court. I have convened a number of directions conferences and made timetabling orders including the orders made on 9 October 2015 setting the case down for trial. I have heard and ruled on applications by Mr. Lavulavu and I have ruled on applications for costs on those applications by Mr. Latu.

[26]	At no stage until 10 November 2015 has Mr. Lavulavu alleged that I lacked impartiality. It was only raised after Mr Lavulavu failed to get the first petitioner's consent to an adjournment. A considerable amount of time and expense has been devoted towards arranging the trial. At this late stage, if I was to recuse myself, there is no other Judge available to hear this petition. It would inevitably be adjourned until April or May 2016. Three full weeks of my sitting time would be lost and much expense all ready incurred to move the Court to Vava'u would be wasted. The first petitioner will also no doubt have large wasted costs. 

[27]	In the circumstances I have described, Mr. Lavulavu has waived any entitlement to object to my hearing this petition. 

[28]	In Re Alley; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [1985] 64 ALR 6, 7 the High Court of Australia said:

"The law has, in the past, taken a strict view of the consequences of the failure of a party to object to the participation in proceedings by a member of a tribunal who is said to be biased. In some cases it has been held that a party entitled to object to the participation of an adjudicator, disqualified by interest or likelihood of bias, will be deemed to have waived that entitlement if, being fully aware of the circumstances, he fails to object as soon as is reasonably practicable. In other cases it has been held that a party failing to take objection may be refused relief if he seeks a discretionary remedy. The question whether it is possible to waive a right of this kind raises interesting questions which it is not necessary to consider here."

[29]	In Lindon v Commonwealth (No 2) (1996) 136 ALR 251 Kirby J said at [32]:

Although, at one stage, I myself doubted the existence of a principle of waiver in the context of judicial disqualification (upon the ground that it was not for an individual to waive the public's entitlement to a manifestly fair trial of contested matters), it is now conclusively established, as part of the common law of Australia, that a party may be held to have waived the right to object to a judicial officer continuing to hear and dispose of a case on the basis of ostensible bias. Waiver will most readily be inferred where a party affected has knowingly failed to make known any objection it has to the continuing participation of the judicial officer. The foundation of such waiver is that failure to make a timely objection may deprive the judicial officer concerned of the opportunity to correct a wrong impression of bias, to refrain from hearing the case and to save the time, costs and efforts both of the court and of the other party. The principle of waiver has been justified by reference to the fact that, were it not so, a person, by silence, might seek to gain an advantage, waiting until the litigious waters had first been tested before deciding to raise the suggested ground of disqualification.

[30]	In Vakauta v Kelly (1989) 167 CLR 568, 579 Dawson J in the High Court of Australia said:

In my view, where a party in civil litigation, being aware of the circumstances giving rise to a right to object, allows the case to continue for a sufficient time to show that he does not presently intend to exercise that right, he may be held to have waived it. 

[31]	And as Hood J. said in Re McCrory; Ex parte Rivett (1895) 21 VLR 3, at p 6:

A litigant who knows (as the applicant did here) that there may be some objection to the constitution of the Bench is bound to mention it at once, in fairness both to the magistrate and to the other side, and even if the objection be a good one the litigant cannot afterwards be allowed to complain if with knowledge he remains silent. 

[32]	The application that I recuse myself is dismissed. 

Application for adjournment 

[33]	I take as my starting point that in deciding whether to grant or refuse an application for adjournment I am exercising a discretion and the overriding consideration is what is required to do justice as between the parties. However, in a case such as this there are also important public interest factors that I must weigh in the balance of my consideration. 

[34]	Mr. Lavulavu advances a number of grounds in support of his application for an adjournment and I shall deal with each in turn. 

Outstanding appeals

[35]	Mr. Lavulavu argues that he has outstanding appeals which should be heard before the election petition is heard. Mr. Lavulavu has already sought to avert the trial on this ground by applying to the Court of Appeal for a stay of the petition. That application was refused by Lord Tupou on 11 November 2015. Mr. Lavulavu is now attempting to achieve the result refused him under a different guise. 

[36]	Whilst it will generally be desirable that appeals on procedural issues be heard before trial this is not an inalienable right. Appeals are a creature of statute and it is not unusual for there to be no rights of appeal in certain types of case. In Tonga, where the Court of Appeal sits only twice a year, it may not always be possible to hear all procedural appeals before trial. 

[37]	In any case, the appeals are weak (as demonstrated by the fact that leave to appeal has already been refused in both cases), they raise no important issues and Mr. Lavulavu will not be prejudiced in his defence of the petition if they are not heard before the trial.

The need to find a new lawyer

[38]	Mr. Lavulavu seeks time to find and instruct a new lawyer. He has been represented by Mr. Nalesoni Tupou, as lead Counsel, and in those circumstances the withdrawal of Mr. Pouono should not be a matter of major significance. When I raised this with Mr. Lavulavu he advised me that he has also terminated the instructions of Mr. Tupou who he felt was too busy to handle his case. 

[39]	There is nothing presently on the Court file to show that Mr. Tupou has withdrawn as Mr. Lavulavu's Counsel or that he is not able to represent Mr. Lavulavu at the trial.

[40]	I am not satisfied either that Mr. Lavulavu cannot find a new lawyer to represent him at the trial. He advises me that he has approached two lawyers to act and he is supplying them with information about the case. I note also that should new Counsel be engaged then the Court will accommodate any reasonable requirements for time to prepare which do not prejudice the completion of the trial within the time allocated for it. 

[41]	Mr. Lavulavu argued that as he is not a lawyer he will be prejudiced if he has to present his own case against an experienced lawyer. He also said he requires more time than is available to review the file. I accept that there may be some disadvantage to him if he is not represented by Counsel but he makes too much of this. Mr. Lavulavu has proven himself to be a skilled advocate in his own cause on the occasions he has appeared before me. Whilst important, this case is not complex. Mr. Lavulavu has the first petitioner's briefs of evidence and bundle of documents. The amount of material Mr. Lavulavu must digest is modest. There is sufficient time for him to prepare before trial taking into consideration that much preparation should have already been done since this petition was filed almost a year ago. 

Complaint to the Electoral Commission

[42]	Mr. Lavulavu has filed a complaint to the Electoral Commission against Mr. Latu and in the absence of any decision on the complaint he wants to pursue it as a counterclaim. I have already refused Mr. Lavulavu's request to file a counterclaim for reasons I set out in a written decision of 16 October 2015. Mr. Lavulavu has also been refused leave to appeal that decision. This matter adds nothing to the matter I have dealt with at paragraphs 35-37.

The position of the second petitioner

[43]	Mr. Lavulavu argues that as the second petitioner has withdrawn from the proceeding he should be given the right to amend his defence. Mr. Lavulavu has not shown me that there is any need to amend his defence but he may apply to do so. It is not grounds for an adjournment. 

Other relevant factors 

[44]	In democratic electoral systems throughout the World it is recognised that judicial challenges to an election result must be expedited. Free and fair elections are the cornerstone of democracy and public confidence in the electoral system will be eroded should there not be certainty that those in power were fairly elected. In the absence of rules for the conduct of electoral petitions this Court must fashion practices to ensure the just but efficient and speedy hearing of an electoral petition and to discourage frivolous applications which have the intention or effect of delaying the hearing. The public interest in the maintenance of confidence in the electoral system may on occasion transcend the interests of individual litigants. 

[45]	Mr. Edwards submitted that any further delay in the hearing of this petition is unfair and unacceptable to the people of Tonga. I agree with that assessment. 

[46]	Having weighed all these factors the application for an adjournment is dismissed. 

The result 

[47]	Mr. Lavulavu's applications are dismissed. 

[48]	The first petitioner is entitled to costs which are to be fixed by the Registrar if not agreed. 

O.G. Paulsen
LORD CHIEF JUSTICE

NUKU'ALOFA