SCA 88 OF 2006; SCA 85 OF 2003; Peter Yama and Others v Bank of South Pacific and Another; Smugglers Inn and Others v Christopher Burt and Others; Yakka Enterprises v Peter Yama and Others (2008) SC921

• Jurisdiction: Papua New Guinea
• Judge: Sakora J, Gabi J and Hartshorn J
• Judgment Date: 09 July 2008
• Court: Supreme Court
• Citation: (2008) SC921
• Docket Number: SCA 110 OF 2004
• Year: 2008
• Judgement Number: SC921

Full Title: SCA 110 OF 2004; SCA 88 OF 2006; SCA 85 OF 2003; Peter Yama and Others v Bank of South Pacific and Another; Smugglers Inn and Others v Christopher Burt and Others; Yakka Enterprises v Peter Yama and Others (2008) SC921

Supreme Court: Sakora J, Gabi and Hartshorn J

Judgment Delivered: 9 July 2008

SC921

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 110 OF 2004

SCA 88 OF 2006

SCA 85 OF 2003

BETWEEN:

PETER YAMA AND OTHERS

Appellants

AND:

BANK SOUTH PACIFIC AND ANOTHER

Respondents

AND:

SMUGGLERS INN AND OTHERS

Appellants

AND:

CHRISTOPHER BURT AND OTHERS

Respondents

AND:

YAKKA ENTERPRISES

Appellant

AND:

PETER YAMA AND OTHERS

Respondents

Waigani: Sakora J., Gabi J. and Hartshorn J.

2008: 10th June

: 9th July

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 that judge may be predisposed to a view of the issue because of past involvement

Facts:

The Appellants by a Notice of Motion seek orders to disqualify Hartshorn J from presiding on these matters pursuant to s.155 (4) and s.59 Constitution as they contend that there is a reasonable apprehension of Hartshorn J’s bias. The Respondent’s Notice of Motion seeks to dismiss the Appellant’s motion.

Held:

1. A prior professional relationship between a lawyer and client - even a long and proximate one - does not generally justify a reasonable apprehension that the lawyer on becoming a judge will not determine proceedings to which a former client is a party impartially on their legal and factual merits.

2. The specific subject matter upon which Hartshorn gave advice or acted upon, namely the privatisation of PNGBC, is not an issue in these proceedings. The client for whom Hartshorn acted is not a party to these proceedings. Such circumstances do not support the contention that Hartshorn J may be predisposed to find in favour of the Respondents in these proceedings.

3. There is no evidence whatsoever of any statements or actions of Hartshorn or Hartshorn J. that demonstrate any prejudice, ill feeling or animosity to the Appellants.

4. It is not the law that a Judge should disqualify himself just because a litigant has been or continues to be adversely critical of him even to the point of being defamatory and contemptuous, in unrelated matters.

5. If a litigant wishes to request a Judge to disqualify himself from hearing a case, the litigant himself or through his lawyer must file and serve on all parties to the proceedings, a Notice of Motion seeking that relief together with affidavit evidence in support of the Motion. It is not sufficient that a request to disqualify is contained in a letter to a Judge’s Associate or the Registrar of the Court or the Associate to the Chief Justice or to any Judge directly.

6. It is not a valid excuse to depart from the procedure in paragraph 5 above and the rules of professional conduct generally because “counsel is acting on client’s instructions”. The first duty of lawyers and counsel is to the Court and secondly to the client.

7. The application of the Appellants that Hartshorn J. be disqualified from presiding over these matters is refused

8. The motion of the Appellants dated 23rd May 2008 is dismissed.

Cases cited:

Papua New Guinea Cases

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

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

An Application by Herman Joseph Leahy (2006) SC855

Pacific Equities & Investments Ltd v. Teup Goledu & Ors (2008) N3400

Overseas Cases:

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

British American Tobacco Australia Ltd v. Peter Gordon & Anor [2007] NSWSC 109

Ebner v. Official Trustee in Bankruptcy [2000] HCA 63

Gascor t/as Gas & Fuel v. Ellicott, Esso Australia Resource Ltd & Anor [1997] 1 VR 332

Kartinyeri v. Commonwealth of Australia [1998] HCA 52

Livesey v. NSW Bar Association (1983) 151 CLR 288

Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; 66 ALR 239

Rayon 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

S &M Motor Repairs Pty Ltd v. Caltex Oil (Australia) Pty Ltd (1998) 12 NSWLR 358

S &R Investments Pty Ltd v. Minister for Planning [2001] WASC 255

Smits v. Roach [2006] HCA 36

Counsel:

Mr. P. B. Lomai, for the Appellants in SCA 110/04 & 88/06 and Respondents in SCA 85/03

Mr. E. G. Andersen and Mr. N. Pitoi, for the Respondents in SCA 110/04 & 88/06 and Appellant in SCA 85/03

9 July, 2008

1. BY THE COURT: There are 2 notices of motion before this court for determination:

a) by Peter Yama & Others (Appellants) that Hartshorn J. be disqualified,

b) by Bank South Pacific & Others (Respondents) that the Appellants’ motion be dismissed.

2. Although proceeding SCA 85 of 2003 is included in the title to this decision it was agreed by the parties that the 2 notices of motion do not relate to that proceeding.

3. Both motions are brought following directions issued by this court on 14 May 2008 which are:

1. Lawyers for [the Appellants] serve copies of all correspondence to the Chief Justice or the Registrar, and copies of all responses from the Chief Justice or the Registrar in this matter, on the lawyers for the [Respondent's] by Friday, 16 May 2008.

2. Lawyers for [the Appellants] file and serve on the lawyers for the [Respondents] any application that is intended in this matter, together with supporting affidavits, by Friday 23 May 2008.

3. The lawyers for the [Respondents] file and serve answering affidavits and cross- applications, if any, on the lawyers for the [Appellants] by Friday 30 May 2008.

4. All parties through their respective lawyers file and serve any further affidavits on each other by Tuesday 3 June 2008.

5. All parties file their written submissions by Thursday 5 June 2008.

6. If the application for disqualification is not filed and all other directions in respect of it not complied with by Tuesday 10 June 2008, for the application to be heard then at 9.30 am, the Court will hand down its decision in these appeals.

Disqualification application

4. The Appellants apply for Hartshorn J. to be disqualified from presiding over these matters pursuant to s.155 (4) and s.59 Constitution. The basis for the application is not specified in the notice of motion but it is apparent from the oral and written submissions made on behalf of the Appellants that the basis is that there is a reasonable apprehension of Hartshorn J’s bias.

5. The Respondents opposed the Appellants’ application.

6. In the written submissions made on behalf of the Appellants the following 8 points are listed under the heading “Application of Evidence and Law” and appear to be the grounds of the application:

“1. Justice Derek Hartshorn then was one of the Managing Partners of Blake Dawson Waldron Lawyers, Port Moresby Office.

2. Blake Dawson Waldron Lawyers drafted the Constitution for the Bank South Pacific (BSP) Limited.

3. Gadens Lawyers drafted the Amalgamated Deed and Covenant and Support Deed for BSP Limited.

4. Blake Dawson Waldron Lawyers and Gadens Lawyers were heavily involved in the merger of Papua New Guinea Banking Corporation (PNGBC) into the BSP Limited.

5. Then Mr. Derek Hartshorn was involved in case OS No 424 of 2001 for Privatisation Commission. This entity is the conduit of the amalgamation process, which saw the merger of PNGBC to BSP Limited.

6. In the case referred to in OS No 424 of 2001 then Mr. Hartshorn was seen opposing a restraining application to restrain the amalgamation of PNGBC to BSP Limited until employees issues (claims) are sorted out. See P. Ben Lomai’s Affidavit filed on the 03rd of June 2008 annexure BLP 1 at p15 and 16 Line 30 onwards.

7. According to Henry ToRobert’s Affidavit annexed to Peter Yama’s affidavit filed on the 23rd of May 2008 at paragraph 2 Blake Dawson Waldron Lawyers were involved in conducting a competitive trade sale process for PNGBC.

8. Mr. Yama was against the sale of PNGBC to BSP Limited and literally appeared on a confrontational course with Mr. Stuart Littlemore QC in the Commission of Enquiry into the sale of PNGBC to BSP Limited.”

7. The evidence relied upon by the Appellants in support of the above grounds is contained in the affidavits of P. B. Lomai filed 23rd May 2008, Stanley Wori filed 23rd May 2008, Peter Yama filed 23rd May 2008 and P.B Lomai filed 3rd June to 2008.

8. The Respondents relied upon the affidavit evidence of John Maddison and Mayambo Peipul both filed on 30th of May 2008.

9. A transcript of the proceedings of the Supreme Court held on 31st October 2008 comprising Davani J., Gabi J. and Hartshorn J. was...