Workers Mutual Insurance (PNG) Limited (in Liq) v Sathasivam Sivakumaran (2013) N4987

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J
• Judgment Date: 29 January 2013
• Citation: (2013) N4987
• Docket Number: WS 690 of 2011
• Court: National Court
• Year: 2013
• Judgement Number: N4987

Full Title: WS 690 of 2011; Workers Mutual Insurance (PNG) Limited (in Liq) v Sathasivam Sivakumaran (2013) N4987

National Court: Hartshorn J

Judgment Delivered: 29 January 2013

N4987

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 690 OF 2011

BETWEEN:

WORKERS MUTUAL INSURANCE

(PNG) LIMITED (in Liq)

Plaintiff

AND:

SATHASIVAM SIVAKUMARAN

Defendant

Waigani: Hartshorn J.

2012: 21st December

2013: 29th January

Application for disqualification of a Judge – apprehension of bias – principles – indemnity costs – when appropriate to be awarded

Facts:

The defendant sought to disqualify Hartshorn J. from presiding in the substantive hearing of this matter. The defendant contended that there is an apprehension of bias by Hartshorn J. against him as the firm of which Hartshorn J. was the Resident Managing Partner, acted in an arbitration against a company of which the defendant was the Managing Director. The application was opposed by the plaintiff who argued, among others, that there was no evidence that suggested that Hartshorn J. gave advice during his practice on an issue that is presently before this court or whether Hartshorn J. was in a position to receive special knowledge or did receive special knowledge concerning the plaintiff or defendant.

Held:

1. There is no evidence that the subject matter of the arbitration referred to by the plaintiff concerned an issue that is the subject of this proceeding or was related in any way to this proceeding. There is no evidence that Hartshorn J. gave any advice to POSF in the arbitration but if such advice was given, there is no evidence that the advice concerned or was related to an issue in this proceeding. Even if the arbitration concerned an issue in this proceeding or was related to this proceeding and advice was given by Hartshorn J. on such an issue to POSF, there is no evidence that Hartshorn J. was in a position to receive special knowledge or did receive special knowledge concerning an issue or a party in this proceeding.

2. The defendant has failed to demonstrate a reasonable apprehension of bias by Hartshorn J. against him. This application is without merit and the relief that is sought is refused.

3. Costs on indemnity basis are awarded to the Plaintiff

Cases cited:

Papua New Guinea Cases

PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592

Application by Herman Joseph Leahy (2006) SC981

Yama v. Bank South Pacific Ltd (2008) SC921

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

Rex Paki v. MVIL (2010) SC1015

Overseas Cases

Johnson v. Johnson [2000] HCA 48

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

Smits v. Roach [2006] HCA 36

Counsel:

Mr. A. Chillion, for the Plaintiff

Mr. N. K. Magela and Mr. R. Namaliu, for the Defendant

29th January, 2013

1. HARTSHORN J. The defendant seeks that I be disqualified from presiding in the substantive hearing of this matter. He makes application pursuant to Order 12 Rule 1 National Court Rules , s. 155 (4) and s. 158 Constitution. The plaintiff opposes the application.

2. The defendant seeks my disqualification as he contends that there is an apprehension of my bias against him. This is because in or about 2004 and 2005, the law firm Blake Dawson Waldron (BDW), acted for POSF Ltd (POSF) in an arbitration with Workers Mutual Insurance (PNG) Ltd (WMI), the present plaintiff, but not in liquidation. At the time, I was the Resident Managing Partner of BDW and the defendant was the Managing Director of WMI. The defendant submits that there is therefore an apprehension of my bias against him.

3. The plaintiff submits amongst others, that there is no evidence as to whether I acted directly for POSF, whether the arbitration was related to this proceeding or concerned an issue in this proceeding, whether I gave advice to POSF on an issue that is presently before this court or whether I was in a position to receive special knowledge or did receive special knowledge concerning the plaintiff or defendant. Further, given that BDW acted for POSF against WMI, if any complaint of an apprehension of bias were to be made in the context of this case, it would be by WMI and not the defendant.

Law

4. As to an application for the disqualification of a judge for apprehended bias, in PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592, the Supreme Court 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.”

5. Then in an Application by Herman Joseph Leahy (2006) SC981 the Supreme Court held amongst others, that:

“1) For a Judge to be disqualified from hearing a case on the ground of apprehended bias, the test to be satisfied is: would a reasonable and fair-minded person knowing all the relevant facts have a reasonable suspicion or apprehension that a fair hearing was not possible?

2) The suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds.

3) General knowledge on the part of a Judge, obtained in the course of previous employment, of the subject matter of legal proceedings will not, by itself, give rise to a reasonable suspicion or apprehension of bias in the event that the Judge deals with the subject matter in a judicial capacity.

4) If a Judge's knowledge of the subject matter of legal proceedings is contended to be the basis of a suspicion or apprehension of bias there must be a real connection between the Judge’s knowledge and the issues for adjudication in those proceedings, eg if the Judge has expressed a prior opinion on the issues for adjudication ……

7) A party and his counsel have a duty to expeditiously bring an application to disqualify a Judge from dealing with a case, immediately after the facts said to support an alleged suspicion or apprehension of bias are known……..”

6. As to the hypothetical observer, in Yama v. Bank South Pacific Ltd (2008) SC921, the Supreme Court, of which I was a member, observed that an objective, fair minded, lay observer is to be attributed with having some knowledge of the way in which lawyers and judges work. The Australian High Court in Johnson v. Johnson [2000] HCA 48 explained further that:

“The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require the judge to discard the relevant, the immaterial and the prejudicial””

7. To successfully demonstrate a reasonable apprehension of bias by me such that I should be disqualified from hearing this proceeding, the defendant should properly identify the facts, matters and circumstances by reason of which it is said that I might decide this proceeding other than on merit and secondly, demonstrate a logical connection between those facts, matters and circumstances and the apprehended deviation from the course of deciding the proceeding on merit: Peter Yama v. BSP (supra), Pacific Equities & Investments Ltd v. Teup Goledu & Ors (2008) N3400, Ebner v. Official Trustee in Bankruptcy [2000] HCA 63, Smits v. Roach [2006] HCA 36.

Consideration

8. The facts, matters and circumstances which it is contended, might lead me to decide matters other than on their legal and factual merits are that I was the Resident Managing Partner of BDW at the time that the firm acted for POSF in an arbitration with WMI and although it is not in evidence on this application, I assume from previous hearings in this proceeding, that the defendant was the Managing Director...