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
• Judge: Hartshorn J
• Judgment Date: 08 May 2008
• Court: National Court
• Citation: (2008) N3400
• Docket Number: CIA 19 OF 2006
• Year: 2008
• Judgement Number: N3400

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

N3400

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA 19 OF 2006

BETWEEN:

PACIFIC EQUITIES & INVESTMENTS LIMITED

Applicant

AND:

TEUP GOLEDU, The Chairman Securities Commission of PNG

First Respondent

AND:

MELANESIAN TRUSTEE SERVICES LIMITED

Second Respondent

AND:

NATIONAL SUPERANNUATION FUND LIMITED

Third Party/Applicant

Waigani: Hartshorn, J.

2007: 12 December,

2008: 8 May

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. National Fisheries Authority of PNG (2002) N 2182

Bank of Papua New Guinea & Anor v. Marshall Cooke QC & Anor (2003) N 2369

The State v. Puli A’aron (2003) N 2432

Paru Aihi v. Sir Moi Avei (2004) N 2523

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

PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa, Globes Pty Ltd and Romy Macasaet (1998) SC 592

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

Counsel:

Mr. P. N. Mawa, for the Appellant

Mr. R. Raka, for the First Respondent

Mr. D. Koeget, for the Second Respondent

Mr. E. G. Andersen, for the Third Party Applicant

8 May, 2008

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) SC 592.

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;

2) Judges should resist from being driven from their Courts by the conduct or assertion of parties. Raybos Australia Pty Ltd v. Tectran Corp. Pty Ltd (No. 4) (1986) 6 NSWLR 674 (at 689);

3) A Judge may disqualify himself in circumstances where a fair minded lay observer, with knowledge of the material facts might entertain a reasonable apprehension that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question in issue. Livesey v. NSW Bar Association (1983) 151 CLR 288;

4) A Judge should disqualify himself by reason of apprehension of bias, under one or more of the following principles, where it is demonstrated that, firstly, he has an interest in the case before him, which interest may be direct, indirect, pecuniary or otherwise. Secondly, by his conduct including published statements, whether such conduct is in the course of, or outside the proceedings. Thirdly, where the Judge, through association or relationship, either by himself, his spouse or children, has a direct pecuniary interest in the case. And finally, disqualification by extraneous information, where the Judge had presided over an early case or he has had some knowledge of prejudicial and inadmissible facts. Webb v. R (1994) 181 CLR 41;

5) It is of fundamental importance in the administration of justice that litigants and the general public have full confidence in the integrity, including the impartiality of those entrusted with the administration of justice so that the impartiality and the Constitutional independence of the judiciary is not interfered with.

6) The test of an ‘objective observer’ established by the Supreme Court in PNG Pipes Ltd & Anor v. Mujo Sefa & Ors should also include ‘a fair minded, lay observer’ as considered in Livesay v. NSW Bar Association (supra).

7. These cases have been followed in Hitron Pty Ltd v. PNG Telecommunication Authority [2000] PNGLR 357, Coecon Ltd v. National Fisheries Authority of PNG (2002) N 2182, Bank of Papua New Guinea & Anor v. Marshall Cooke QC & Anor (2003) N 2369 and The State v. Puli A’aron (2003) N 2432.

8. In the judgments of PNG Pipes (supra) and Gobe Hongu (supra) there are numerous references to Australian...