Pacific Equities & Investments Limited v Teup Goledu, The Chairman Securities Commission of PNG and Melanesian Trustee Services Limited and National Supterannuation Fund Limited (Third Party/Applicant) (2008) N3400

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 08 May 2008
• Citation: (2008) N3400
• Docket Number: CIA 19 OF 2006
• Year: 2008

Full Title: CIA 19 OF 2006; Pacific Equities & Investments Limited v Teup Goledu, The Chairman Securities Commission of PNG and Melanesian Trustee Services Limited and National Supterannuation Fund Limited (Third Party/Applicant) (2008) N3400

National Court: Hartshorn, J

Judgment Delivered: 8 May 2008

DISQUALIFICATION - Apprehended bias - whether prior professional relationship between lawyer and client will disqualify lawyer, on becoming a judge, from sitting in proceedings to which former client is a party -whether reasonable apprehension of prejudgement of an issue - whether reasonable apprehension that judge may be predisposed to a view of the issue because of past involvement

Facts:

The appellant Pacific Equities & Investments Ltd (PEIL) seeks that the presiding Judge in this matter (Hartshorn J) be disqualified from further hearing and dealing with pending motions in this proceeding, the proceeding generally and any other related proceedings concerning or between the parties on the basis of there being a reasonable apprehension of his bias. The application was opposed by the first and second respondents and the third party applicant.

Held:

1. PEIL has not demonstrated that there is a reasonable apprehension of bias on the part of the presiding Judge towards or against any of the parties and that the presiding Judge should be disqualified on the grounds that:

a) he gave legal advice to a third party concerning the publication of a proposed statement relating to the dispute the subject of the present proceedings,

b) he gave advice to the predecessor of Nasfund on various matters unrelated to the present dispute,

c) his former firm of which he was resident managing partner, acts in proceedings for a unit holder of Pacific Balance Fund against PEIL and MTSL although the issues in those proceedings are not the issues in the present dispute,

d) he gave a decision against PEIL, the appeal from which is pending.

2. PEIL has not demonstrated that the presiding Judge should be disqualified on other grounds such as having a direct or indirect interest in the proceedings or because the presiding Judge was aware of extraneous information.

3. Accordingly the application of the applicant for the presiding Judge to disqualify himself is refused.

Cases cited:

Papua New Guinea Cases

Gobe Hongu Ltd v. National Executive Council & Ors (1999) N1964; Hitron Pty Ltd v. PNG Telecommunication Authority [2000] PNGLR 357; Coecon Ltd v The National Fisheries Authority of PNG [2002] PNGLR 506; Wilson Kamit v Marshall Cooke (2003) N2369; The State v. Puli A’aron (2003) N2432; Paru Aihi v. Sir Moi Avei (2004) N2523; PNG Pipes Pty Ltd v Mujo Sefa (1998) SC592

Overseas Cases

Livesey v. NSW Bar Association (1983) 151 CLR 288; Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; 66 ALR 239; Raybos Australia Pty Ltd v. Tectran Corp Pty Ltd (No. 4) (1986) 6 NSWLR 674; Re Polites; Ex parte The Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78; Webb v R (1994) 181 CLR 41; A1 v King QC (1996) (FCA, Merkel J 31 May 1996, BC 9602233); Aussie Airlines Pty Ltd v. Australian Airlines Pty Ltd & Qantas Airlines Ltd (1996) 65 FCR 215; Gascor t/as Gas & Fuel v Ellicott, Esso Australia Resource Ltd & Anor [1997] 1 VR 332; ; S&M Motor Repairs Pty Ltd v. Caltex Oil (Australia) Pty Ltd (1998) 12 NSWLR 358; Kartinyeri v Commonwealth of Australia [1998] HCA 52; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; S&R Investments Pty Ltd v Minister for Planning [2001] WASC 255; Smits v Roach [2006] HCA 36; British American Tobacco Australia Ltd v Peter Gordon & Anor [2007] NSWSC 109

1. HARTSHORN, J: The appellant Pacific Equities & Investments Ltd (PEIL) seeks that I be disqualified from further hearing and dealing with pending motions in this proceeding, the proceeding generally and any other related proceedings concerning or between the parties on the basis of there being a reasonable apprehension of my bias.

2. The other parties, the first respondent (Goledu), second respondent (MTSL) and third party applicant (Nasfund) oppose the application.

3. The grounds upon which PEIL rely are that:

a) in proceedings OS 673 of 2006 between PEIL as applicant, MTSL as respondent and Nasfund as third party applicant, before I heard an application by PEIL for injunctive relief I made the following disclosure in open court:

“ …. Before we start on this I just want to mention something to counsel concerning my sitting on this matter. I have given advice to a third party concerning the publication of a proposed statement relating to this dispute but it did not involve at all in any way a consideration of the issues before the court today. I have also given advice to the predecessor of Nasfund on various matters but totally unrelated to what is before us today. And thirdly, that the firm in which I was the resident managing partner, Blake Dawson Waldron acts in current proceedings for a unit holder of Pacific Balanced Fund in proceedings against Pacific Equities and Melanesian Trustees Services. The issues there are not the issues in these proceedings and I did not have carriage of that file in any event. Taking the three matters that I have mentioned into account individually and also collectively, I am satisfied that I am not precluded from hearing this matter. I will hear counsel on what I have just said.” (disclosure)

b) counsel who appeared for PEIL in the application informed the court that he had no submissions on my disclosure.

c) I refused the application of PEIL for injunctive relief. That decision is the subject of an appeal to the Supreme Court and is still pending.

4. The leading case in respect of civil matters concerning an application for disqualification is the Supreme Court decision of PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa, Globes Pty Ltd and Romy Macasaet (1998) SC592.

5. In that case 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.”

6. The PNG Pipes case (supra) was relied upon in the National Court decision of Gobe Hongu Ltd v. National Executive Council & Ors (1999) N1964, where Sevua J. held:

1) Judges should not too readily accede to applications for disqualification, whereby parties may effectively influence the choice of a Judge in their cause, Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; 66 ALR 239;

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