Hitron Pty Limited v Papua New Guinea Telecommunications Authority and Paul Ginis (2000) N1970

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: [2000] PNGLR 357
• Date: 09 June 2000
• Year: 2000

Full Title: Hitron Pty Limited v Papua New Guinea Telecommunications Authority and Paul Ginis (2000) N1970

National Court: Sevua J

Judgment Delivered: 9 June 2000

1 Practice and procedure—Courts and Judges—Hearing—Judges—Application for disqualification of Judge—Bias—Application based on incorrect reporting in media—Applicant not verified media report with official Court transcript—Applicant's witness not present in Court and did not observe proceedings—Whether issue of bias properly and reasonably raised—Conclusion of facts based on unverified media report—Whether application satisfies the disqualification test.

2 Fidelis Agai v Buckley Yarume [1987] PNGLR 124, The State v Joe Ivoro [1980] PNGLR 1, The State v Peter Sari [1990] PNGLR 48, PNG Pipes Pty Ltd v Mujo Sefa (1998) SC592 and Gobe Hongu Ltd v National Executive Council [2000] PNGLR 372 referred to

Held:

1. The defendant's witness, Thomas Waim, was not present in Court, he did not observe the proceedings and did not hear what was actually said in Court. Therefore, he could not be an objective observer or a fair minded lay–person.

2. What was reported in the Post Courier was sensational and misleading, and the report incorrectly created an impression that the Court was biased.

3. It is unfair and ridiculous to make allegations of bias against Judges who receive goods and services from organisations like the plaintiff, the banks, Elcom, Telikom, Post PNG, etc.

4. The defendants' application arose in a convoluted manner, it is unprincipled, frivolous and unreasonable. The test for disqualification has not been satisfied.

___________________________

Sevua J: The defendants have made this application for me to disqualify myself for reason of bias and breach of natural justice. This application relates to a decision I made on 3 April 2000, when the plaintiff, in an ex parte application, applied for and was granted an interim injunction.

I will set out the background of this matter so one could appreciate the nature of this application, as this application and the affidavit in support sworn by the first defendant's Managing Director, Thomas Waim, made some very serious allegations of bias against myself as the presiding Judge. Those allegations amount to findings and conclusions of facts.

On 3 April 2000; the plaintiff made, an ex parte application seeking an interim injunction to restrain the defendants from enforcing a District Court Warrant which they had obtained for the purpose of closing down the plaintiff's repeater stations in the National Capital District on 31 March 2000, initially then, on 3 April 2000.

The plaintiff's notice of motion filed on 3 April 2000 and heard on the say day, due to its urgency, sought an interlocutory injunction restraining the defendants from executing the warrant issued by the Port Moresby District Court on 30 March 2000, which warrant authorised and commanded the second defendant to enter the plaintiff's premises and seize its active Multi–Channel Multi–Point Distributor Services (MMDS) Repeaters located at Burns Peak, Ela Makana, University of Papua New Guinea and Six Mile. The warrant was to effectively shut...