PNG Pipes Pty Limited and Sankaran Venugopal v Mujo Sefa, Globes Pty Limited and Romy Macasaet

• Jurisdiction: Papua New Guinea
• Judge: Amet CJ, Kapi DCJ, Los J
• Judgment Date: 26 November 1998
• Court: Supreme Court
• Citation: (1998) SC592
• Year: 1998
• Judgement Number: SC592

Supreme Court: Amet CJ, Kapi DCJ, Los J

Judgment Delivered: 26 November 1998

PAPUA NEW GUINEA SC592

[In the Supreme Court of Justice]

sca 56 of 1996

Between:

PNG PIPES PTY LIMITED &

SANKARAN VENUGOPAL

Appellants

And:

MUJO SEFA

First Respondent

GLOBES PTY LIMITED

Second Respondent

ROMY MACASAET

Third Respondent

Waigani : Amet CJ, Kapi DCJ & Los J

1997 : 23 May

1998 : 26 October

1998 26 November

Courts and Judges — Judges — Refusal to disqualify himself — Apprehension of bias.

Bias — Reasonable apprehension — Test for — Apprehension of real likelihood of — Not fanciful — Refusal to disqualify

Held: (1) 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.

(2) The refusal by the trial judge, in the particular circumstances of this case, to disqualify himself would have left an objective observer with an apprehension of the real likelihood of bias.

(3) The trial judge should therefore be disqualified from further presiding over this matter.

Cases Cited

The following cases are cited in the judgment:

Trustees of Christian Brothers v Cardone 130 ALR 345.

Metropolitan Properties Co (FGC) Ltd v Lannon (1969) 1 QB 577.

R v Liverpool City Justices, Ex parte Topping (1983) 1 WLR 119

Boatng v The State [1990] PNGLR 342

J Bray, for the Appellant.

G Sheppard, for the Respondent.

25 November 1998

THE COURT: This is an appeal from a ruling by the learned trial judge in the National Court, wherein His Honour refused an application upon motion that he disqualify himself from further hearing the trial matter then before him.

The application before the learned judge pleaded the issue in these terms:

"That a fair minded lay observer with knowledge of the material objective 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."

The application was supported by the affirmation of Mr Sankaran Venugopal. The learned judge dismissed the application, giving an oral judgment to the effect that the test for disqualification for bias had not been satisfied.

Facts

The Appellants are, together with one other, defending a statement of claim, which alleges breaches of fiduciary duties. The pertinent factual matters and circumstances that the Appellants relied upon as affirmed in Mr Venugopal's affirmation are as follows:

1. On the 31 October 1995 the learned judge granted ex parte orders in the nature of Mareva injunctions and Anton Pillar orders.

2. The Anton Pillar orders resulted in the plaintiffs personally as opposed to their lawyers gaining control of all the documents of PNG Pipes Pty Ltd, with no supervision at all.

3. The Anton Pillar order was never executed and this fact was brought to the attention of the learned judge on 2 April 1996.

4. The Appellants sought Discovery by the Respondents on the 3 April 1996. The Respondents failed to give discovery.

5. On 3 May 1996 the Appellants obtained an order from the court that the Respondents give discovery within 14 days.

6. The Respondents again failed to give discovery, within the extended 14 days.

7. On 24 May 1996 the Appellants applied for orders that the Respondents claim be struck out for failing to give discovery within the extended time. The learned judge was fully cognisant of the Respondents failure to give discovery.

8. Notwithstanding this failure the learned judge has done nothing to remedy that situation.

9. The continuing failure to give discovery has prejudiced the Appellants in their application to discharge and vary certain orders, especially those ex parte orders of 31 October 1995, as the Appellants were cross-examined using documents which should have been discovered.

10. The Appellants commenced contempt proceedings against the Respondents for failure to allow inspection of the day to day documents of PNG Pipes, by the Appellant, pursuant to order 5 of 1st March 1996.

11. The learned judge declined to hear those proceedings.

12. On 2nd February 1996 the learned judge made certain orders, one of which included a supervision order in the following terms:

"That Mr. P. Payne or a nominee of his be appointed to oversee PNG Pipes Pty Ltd (the company) accounts, i.e. withdrawals and deposits."

13. The supervision order was never effected. Mr. Payne a lawyer with Blake Dawson Waldron made it plain that he could not supervise the affairs of PNG Pipes, and this matter was brought to the attention of the learned judge.

14. The supervision order was repeated in the orders of 25 March 1995.

15. On 30 April 1996 the court made protection orders in favour of the Second Appellant.

16. On 9 July 1996 the Respondent arbitrarily cancelled the orders.

17. Contempt proceedings were brought before the learned judge, but he declined to deal with the application. He reinstated the initial orders.

18. The Appellants again fixed another day for the inspection of the day to day documents of the operations of PNG Pipes, for Friday 23 August 1996 at 1.30 PM. The Respondents again refused this.

19. Contempt proceedings were again brought, but again the learned judge declined to hear it. Instead the learned judge directed that the Respondents give access on Friday the 30 August at 3.00 PM.

20. Inspection did not take place as ordered by the court.

21. The learned judge has consistently refused to reply to the Appellants' lawyer's requests to hear the...