Hitron Pty Limited v Papua New Guinea Telecommunications Authority and Paul Ginis

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 09 June 2000
• Court: National Court
• Citation: [2000] PNGLR 357
• Year: 2000
• Judgement Number: N1970

Full Title: Hitron Pty Limited v Papua New Guinea Telecommunications Authority and Paul Ginis

National Court: Sevua J

Judgment Delivered: 9 June 2000

N1970

PAPUA NEW GUINEA

[National Court of Justice]

OS 153 of 2000

BETWEEN

HITRON PTY LIMITED

Plaintiff

AND

PAPUA NEW GUINEA TELECOMMUNICATIONS AUTHORITY

First Defendant

AND

PAUL GINIS

Second Defendant

Waigani: Sevua, J

2000: 19th April &

9th June

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.

Cases referred to:

Fidelis Agai v. Buckley Yarume [1987] PNGLR 124

The State v. Joe Ivoro & Anor [1980] PNGLR 1

The State v. Sari [1990] PNGLR 48

PNG Pipes & Anor v. Mujo Sefa & Ors., SC 592

Gobe Hongu Ltd v. National Executive Council & Ors., N1964

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.

B. Andrew for Plaintiff

J. Yagi for Defendants

9th June, 2000

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 3rd 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 3rd 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 31st March, 2000, initially then, on 3rd April, 2000.

The plaintiff’s notice of motion filed on 3rd 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 30th 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 down those repeater sites so that the plaintiff would not continue to distribute satellite programs to viewers.

The basis for the defendants obtaining that Warrant from the District Court was that they alleged the plaintiff had failed to pay annual Spectrum Licence Fees imposed by the first defendant. The issue of non-payment of such licence fees is not relevant at this stage of the preceedings.

When the plaintiff’s counsel moved his notice of motion, the Court was advised that the defendants had been served, however no one appeared on their behalf. Due to the nature of the urgency, I considered that I should proceed to hear the plaintiff’s application ex parte. After I had heard the application and granted an interim injunction, the Court was just about to rise when Mr Yagi, counsel for the defendants, walked in. I did not have to wait for Mr Yagi or his clients He was then advised that an interim injunction had already been granted and that there was no return date, however the defendants were at liberty to have the matter returned to Court. Apart from a national lady whom I understood to be a journalist from the Post Courier, and an expatriate man, whom I understood to be the plaintiff’s witness, the courtroom was empty. The first defendant’s Managing Director, Thomas Waim, was not present in Court, therefore had no idea whatsoever, of how the hearing proceeded and what was said. Even Mr Yagi was not present and did not hear what was said. I mentioned this fact at this stage because it will become pertinent in my judgment later on.

The next day, 4th April, 2000, a report of the proceedings appeared in the Post Courier. The part of the report which Mr Waim relied on in his affidavit sworn on 13th April, 2000, is as follows:

“Judge Sevua, when handing down his decision said, he was familiar with the basis of the dispute. He said in relation to the fees, Pangtel was going about in a wrong way. He said he was prepared to grant the interim orders sought by Hitron Pty Ltd. He added he was dealing with a case between Hitron and Channel 8. Judge Sevua informed Hitron Lawyer, Greg Sheppard that he was a Hitron client and in the case between Hitron and Channel 8, he had made that known, however both parties did not object to him hearing the case.”

Again I emphasise that Mr Waim was not present in Court; did not actually hear what was exchanged between the bar and the bench; did not know the context of what was said by the Court, and did not observe the proceedings. On the basis of the above report, which his lawyer failed to verify with the Court’s official transcript, Mr Waim...