SCA NO 74 OF 2011 & SCA NO 86 OF 2011; Hon Patrick Pruaitch, MP v Chronox Manek, John Nero & Phoebe Sangetari, comprising the Ombudsman Commission and Jim Wala Tamate, the Public Prosecutor and Hon. Deputy Chief Justice Gibbs Salika, Senior Magistrates Peter Toliken & Nerrie Eliakim, comprising The Leadership Tribunal and The Independent State of Papua New Guinea (2012) SC1168

• Jurisdiction: Papua New Guinea
• Judge: Batari, Gabi & Makail, JJ
• Judgment Date: 02 March 2012
• Court: Supreme Court
• Citation: (2012) SC1168
• Year: 2012
• Judgement Number: SC1168

Full Title: SCA NO 74 OF 2011 & SCA NO 86 OF 2011; Hon Patrick Pruaitch, MP v Chronox Manek, John Nero & Phoebe Sangetari, comprising the Ombudsman Commission and Jim Wala Tamate, the Public Prosecutor and Hon. Deputy Chief Justice Gibbs Salika, Senior Magistrates Peter Toliken & Nerrie Eliakim, comprising The Leadership Tribunal and The Independent State of Papua New Guinea (2012) SC1168

Supreme Court: Batari, Gabi & Makail, JJ

Judgment Delivered: 2 March 2012

SC1168

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 74 OF 2011 & SCA NO 86 OF 2011

BETWEEN

HON. PATRICK PRUAITCH, M.P

Appellant

AND

CHRONOX MANEK, JOHN NERO & PHOEBE SANGETARI, comprising The Ombudsman Commission

First Respondents

AND

JIM WALA TAMATE, The Public Prosecutor

Second Respondent

AND

HON. DEPUTY CHIEF JUSTICE GIBBS SALIKA, SENIOR MAGISTRATES PETER TOLIKEN & NERRIE ELIAKIM, comprising The Leadership Tribunal

Third Respondents

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Respondent

Waigani: Batari, Gabi & Makail, JJ

2011: 16th December & 2012: 02nd March

SUPREME COURT APPEAL - Apprehension of bias against judge - Disclosure of interest by judge - Whether sufficient disclosure made by judge - No application for disqualification made - No decision made by judge for disqualification - Appropriateness of appeal.

APPEAL COURT APPEAL - Stay of order of National Court - Judge of National Court exercising powers following stay order - Effect of - Excess of jurisdiction - Error of law - Miscarriage of justice - Appeal upheld.

Facts

The appellant who is a member of Parliament appealed against two decisions of the National Court to the Supreme Court, raising among other reasons, apprehension of bias against the primary judge. He alleged when the primary judge made certain directional orders to expedite the matter in the National Court, he referred counsel for the parties to, inter-alia, a Supreme Court case that had a bearing on the proceedings before the National Court, which decision was pending and that the judge was a member of that Court. Following the directional order, the appellant filed the first appeal and obtained a stay order from the Supreme Court. Following that, the primary judge re-called the matter and vacated his own order when the stay order was in force.

Held:

1. In a case where a party seeks to disqualify a judge from further dealing with a matter on the ground of apprehension of bias, an application must be made in writing by notice of motion supported by affidavit evidence to the judge for disqualification.

2. Where a party fails to make an application for disqualification of the judge and appeals to the Supreme Court following disclosure of any interest in the matter by the judge, the appeal amounts to an abuse of process and may be dismissed.

3. In the present case, the appellant failed to make an application in writing by notice of motion supported by affidavit evidence to the primary judge for disqualification on the ground of apprehension of bias before appealing to the Supreme Court. The appeal was an abuse of process.

4. The primary judge acted in excess of jurisdiction when he re-called the matter and vacated the order when there was a stay order of the Supreme Court staying the order.

5. The appeal SCA No 74 of 2011 was accordingly, dismissed.

6. The appeal SCA No 86 of 2011 was accordingly, upheld and the order of the National Court was set aside or quashed.

7. Each party was ordered to bear their own costs of both appeals.

Cases cited:

Papua New Guinea cases

Hon. Patrick Pruaitch MP -v- Chronox Manek & Ors (2011) SC1134

Hon. Patrick Pruaitch MP -v- Chronox Manek & Ors (2011) SC1093

Grand Chief Sir Michael Somare -v- Chronox Manek & Ors (2011) SC1118

PNG Pipes Pty Limited -v- Mujo Sefa & Ors (1998) SC592

Rimbink Pato -v- Rueben Kaiulo & Anor (2003) N2455

Peter Yama -v- Bank South Pacific Limited & Ors (2008) SC921

Matiabe Oberia -v- Chief Inspector Michael Charlie & The State (2005) SC801

Overseas cases

Saxmere Company Ltd -v- Wool Board Disestablishment Company Ltd [2010] 1 NZLR 35

Naijar -v- Hames (1991) NSWLR 224

Counsel:

Mr M M Varitimos & Mr F Griffin, for the Appellant

Mr H Maliso, for the First Respondents

Mr L Kandi, for the Second, Third & Fourth Respondents

02nd March, 2012

JUDGMENT

1. BY THE COURT: The appellant who is a member of Parliament appeals against two decisions of the National Court. In SCA No 74 of 2011, he appeals certain directional orders of the primary judge of 14th June 2011 in relation to the progressing of the matter to trial and in SCA No 86 of 2011, he appeals the decision of the primary judge of 26th July 2011 in which the judge vacated the directional orders of 14th June 2011.

2. The background facts giving rise to these two appeals are set out in detail in the judgment of the Supreme Court of 20th October 2011, given in relation to a consolidated hearing of three different applications, one of which was an application for leave to appeal in SCA No 86 of 2011 in Hon. Patrick Pruaitch MP -v- Chronox Manek & Ors (2011) SC1134. It is therefore not necessary to restated all the background facts suffice to state briefly the Ombudsman Commission referred the appellant to the Public Prosecutor for prosecution on allegations of misconduct in office and the Public Prosecutor requested the Chief Justice to appoint a leadership tribunal to investigate the allegations.

3. Following an earlier unsuccessful application for leave to apply for judicial review in proceedings OS No 456 of 2009 under O 16 of the National Court Rules before Hartshorn, J to review his referral for investigation by a leadership tribunal, a leadership tribunal was established. The appellant then filed further proceedings in OS No 34 of 2010, this time seeking the same relief for which leave was denied in OS No 456 of 2009. Kariko, J dismissed the proceedings on the grounds that it amounted to multiplicity of proceedings and the matter was res judicata. He appealed to the Supreme Court. The Supreme Court allowed the appeal, reinstated the proceedings and ordered that it be heard by another Judge of the National Court. That was in Hon. Patrick Pruaitch MP -v- Chronox Manek & Ors (2011) SC1093.

4. Following the Supreme Court decision, OS 34 of 2010 was initially listed before Kandakasi, J but deferred due to his Honour's unavailability. Then on 14th June 2011, his Honour called the matter. Notwithstanding that the case was not on the list of matters to be heard by the judge; that counsel for all the parties were not present and that no opportunity were given to the parties to be heard on the application, the Court ordered inter alia:

“7. The matter shall return for motion and allocation of a hearing date for the substantive matter on 20 July 2011, and for parties to further consider the matter in light of the decision in Supreme Court Reference No. 8 of 2009 (a reference by the Ombudsman Commission) and the decision of the Supreme Court in SCA Originating Summons No. 2 of 2011, if it is decided and delivered before the matter returns to Court on 20 July 2011.”

5. His Honour Kandakasi, J was a member of the Supreme Court in the matter of Grand Chief Sir Michael Somare v. Manek & Ors, SC OS No. 2 of 2011 where it was held in relation to the proceedings commenced by Hon. Patrick Pruaitch, MP (OS No. 34 of 2010):

“19. …Applying the principles we have set out above, Kariko .J correctly in our respectful view, dismissed the proceedings for abuse of process (OS No. 34 of 2010).”

6. Aggrieved by the manner in which the proceedings leading up to the making of the directional orders were conducted, the appellant filed an application for leave to appeal against the directional orders in SCA 74 of 2011. On 15th July 2011 his Honour Injia, CJ sitting as a single Supreme Court Judge hearing the leave application, ordered, inter-alia:

“1. The Application for Leave to Appeal is granted.

2. Pursuant to Order 7 r 5 (2) of the Supreme Court Rules the order sought, in paragraph 2 at page 9 of the Notice of Application for Leave to Appeal, namely that the Notice of Application for Leave to Appeal be treated as the Notice of Appeal.

3. The matter is fixed on Friday 22 July at 9:30am for directions to be issued in order for the substantive appeal to be listed for hearing by the full Court in the August sittings of the Supreme Court.

4. The Applicant shall prepare, file and serve a draft index to the Appeal Book and a draft Appeal Book for the Court's consideration and endorsement by Wednesday 20 July, 2011.

5. If Order No. 4 is not complied with, the Court will consider referring the appeal to the full Court for summary determination in the August sittings of the Supreme Court pursuant to R.16 (b) of the Supreme Court Listings Rules 2010.

6. The matter is adjourned to Monday, 18 July 2011, at 9:30am, for hearing and arguments on the question of costs of this application and the application for stay.”

7. The Chief Justice granted these orders after being satisfied...