In The Matter of The Organic Law on National and Local–level Government Elections and In The Matter of a Disputed Return for The Wapenamanda Open Electorate; Rimbink Pato v Reuben Kaiulo, Electoral Commissioner of Papua New Guinea and Miki Kaeko; EP No 68 of 2002; In The Matter of The Organic Law on National and Local–level Government Elections and In The Matter of A Disputed Return for The Wapenamanda Open Electorate; Masket Iangalio v Yangakun Miki Kaeok and The Electoral Commission of Papua New Guinea (2003) N2455

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 29 August 2003
• Court: National Court
• Citation: (2003) N2455
• Docket Number: EP No 65 of 2002
• Year: 2003
• Judgement Number: N2455

Full Title: EP No 65 of 2002; In The Matter of The Organic Law on National and Local–level Government Elections and In The Matter of a Disputed Return for The Wapenamanda Open Electorate; Rimbink Pato v Reuben Kaiulo, Electoral Commissioner of Papua New Guinea and Miki Kaeko; EP No 68 of 2002; In The Matter of The Organic Law on National and Local–level Government Elections and In The Matter of A Disputed Return for The Wapenamanda Open Electorate; Masket Iangalio v Yangakun Miki Kaeok and The Electoral Commission of Papua New Guinea (2003) N2455

National Court: Kandakasi J

Judgment Delivered: 29 August 2003

[In the National Court of Justice]

EP. NO. 65 of 2002

In the Matter of the Organic Law on National and Local Level Government Elections And in the Matter of a Disputed Return for the WAPENAMANDA OPEN ELECTORATE

Between:

RIMBINK PATO

Petitioner

And:

REUBEN KAIULO, ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

First Respondent

And:

MIKI KAEKO

Second Respondent

EP. NO. 68 of 2002

In the Matter of the Organic Law on National and Local Level Government Elections And in the Matter of a Disputed Return for the WAPENAMANDA OPEN ELECTORATE

Between:

MASKET IANGALIO

Petitioner

And:

YANGAKUN MIKI KAEOK

First Respondent

And:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

WAIGANI: KANDAKASI, J.

2003: 31st July

8th & 29th August 2003

PRACTICE & PROCEDURE – Application for disqualification of a judge is a serious matter and must be made on proper basis – An application without good basis may amount to contempt of court – When such an application is made, it is proper for the judge not to enter into the dispute arena and take a position to maintain his impartiality – Where allegations of fact are made against the judge concerned it is not proper for the judge to deal with the application and another judge must be allowed to deal with the matter.

PRACTICE & PROCEDURE – Use of affidavits – Court may order use of affidavits in which case s. 36 of the Evidence Act Chp.48 applies – Unless notice of intention to cross-examine is given prior to hearing date, there can be no cross-examination - Purporting to give notice of intention to cross-examine on day of hearing and in Court is no prior notice – Section 35 applies in cases where or order is made for use of affidavits under s. 34 of the Evidence Act – ss. 34, 35 and 36 Evidence Act Chp. 48.

COURTS & JUDGES – Application for disqualification of a judge is a serious matter – Application must be made on proper basis – Application made on allegation of judge having coffee with a party/lawyer - Key witness found not a credible witness and lying under oath – Consequence of – Application made without any good basis – Applicant motivated by a determination to prevent judge from further hearing the matter after having lost on preliminary arguments – Application scandalous of the judge and the court - Applicant and witness liable for contempt of court charges.

EVIDENCE – Assessment of – Evidence by affidavit – No cross-examination of evidence in rebuttal – Effect of – Evidence in affidavit not contested –Proper to find in terms of uncontested evidence – Logic and commonsense do play a major role – Evidence that is evasive, not logical, or not in keeping with any commonsense coupled with no cross-examination of evidence in rebuttal is suggestive of lack of credibility and evidence being fabricated.

LAWYERS – Duties of lawyers – Application for disqualification of a judge – Lawyers under duty to carefully consider the basis for such an application when instructed to make it - Lawyer duty bound to carefully consider and only allow meritorious applications to be made – Failure to do so may amount to a breach of the Lawyers Professional Conduct Rules and render the lawyer liable for a referral to the Lawyers Statutory Committee for appropriate disciplinary action – ss. 15(10) Professional Conduct Rules.

Cases Cited:

Edward Ramu Diro v. Justice Amet & Ors [1995] PNGLR 411

Mark Ankama v. Papua New Guinea Electricity Commission (23/10/202) N2363.

The State v. Edward Toude & Ors (No 1) (16/10/01) N2298.

James Togel v. Michael Ogio [1994] PNGLR 396.

The State v. Peter Malihombu (29/04/03) N2365.

The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266.

Coecon Limited (Receiver/Manager Appointed) v The National Fisheries Authority of Papua New Guinea & Anor (28/02/02) N2182.

Gobe Hongu Limited v. National Executive Council & Ors (16/07/99) N1964.

Overseas Cases Cited:

Brown v. Dunn (1879) R (HL).

Counsels:

Mr. J. Poro for the Second and First Respondent/Applicant.

Mr. Rimbink Pato (In Person) Mr S Reid for Petitioner/Respondent.

Mr. G.J.Sheppard and Mr. Leahy for Petitioner/Respondent (Masket Iangalio).

Mr. T. Sirae and Mr R William for the First and Second Respondent/ Respondent.

Mr. K. Kua as Amicus Curiae.

29th August, 2003.

KANDAKASI, J: Before me is an application by Honourable Miki Kaeok (the Member), Member of Parliament for the Wapenamanda Open Electorate seeking to disqualify, his Honour Justice Hinchliffe (his Honour) from further hearing and dealing with one of the two election petitions against the Member on the basis of apprehended bias.

Background

By way of background, the Member won the Wapenamanda Open Seat in Parliament in last year’s National General Elections. Dissatisfied with that result, both Mr. Rimbink Pato and Mr. Masket Iangalio (the petitioners) filed respectively their election petitions under EP 65 of 2002 and EP 68 of 2002. These petitions were progressed through the directions hearing and pretrial and status conferences under the new Election Petition Rules. These were conducted before Justice Sevua and myself. In accordance with the rules and with the consent of the parties, the petitions were finally fixed for a joint trial commencing the 19th of May and ending the 3rd of June 2003. Justice Sevua allocated these dates on the 27th of March 2003.

His Honour as the trial judge was not confirmed until the 3rd of April 2003. On the 19th of May 2003, a status conference was conducted by his Honour where the readiness of the matter for trial was confirmed. The trial commenced with arguments on the competency on the 23rd and 26th of May 2003. The decision on that was delivered on 16th June 2003.

On the 14th of July 2003, the Member filed this application. Filed in support of the application was an affidavit sworn on the 11th of July 2003, by a George Karapus. The deponent alleged that he had seen his Honour and Mr. Pato on the 26th of May 2003, having coffee at the Holiday Inn Hotel (the Hotel) here in the National Capital District (NCD). At the same time, the Member unsuccessfully applied to the Supreme Court for a stay of the hearing of the petitions. That was on the basis that there were two Supreme Court reviews concerning petitions not addressed to the National Court as required by s. 206 of the Organic Law on National and Local-level Government Elections (the Organic Law).

The application to disqualify his Honour was initially heard by himself. His Honour denied the allegations against him and dismissed the application on the basis that there was no factual basis for the allegations. At the same time, his Honour proceeded to consider the conduct of the key witness, Mr. Karapus as contempt of Court and proceeded to deal with him. That included a sending of Mr. Karapus to prison. The Member appealed to the Supreme Court against these decisions and sought a stay of the proceedings pending the appeal.

The Supreme Court heard the Member’s appeal and by consent of the parties, the Supreme Court ordered that the decision not to disqualify be set aside and that the application be made before a different judge. Consequential on that, the parties also agreed and the Supreme Court set aside the contempt proceedings. They further agreed to a stay of the proceedings pending a determination of the Member’s applications.

The above position was reached on the basis of his Honour’s own decision in the matter of Edward Ramu Diro v. Justice Amet & Ors [1995] PNGLR 411. There, his Honour held that a leadership tribunal headed by Justice Amet (as he then was) should have disqualified on the basis of apprehended bias. In consequence of that, his Honour quashed a decision not to disqualify by the tribunal and directed a different tribunal to deal with the matter. This case is authority for the proposition that, where an allegation of bias is leveled against a judge or a tribunal, that judge or the tribunal is not the appropriate authority to deal with the application. Instead, a different tribunal must hear and determine the question of whether or not the judge or tribunal should disqualify.

Following the decision of the Supreme Court, the matter first came before me on the 17th of July 2003. At that...