Application under Section 155 (2) (b) of the Constitution and in the matter of Part XVII of the Organic Law on National and Local-Level Government Elections; Electoral Commission of Papua New Guinea v Pastor Bernard Peter Kaku and William Powi (2020) SC1950

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi DCJ,
• Judgment Date: 01 May 2020
• Docket Number: SCREV (EP) 01 of 2020
• Court: Supreme Court
• Judgement Number: SC1950

Full Title: SCREV (EP) 01 of 2020; Application under Section 155 (2) (b) of the Constitution and in the matter of Part XVII of the Organic Law on National and Local-Level Government Elections; Electoral Commission of Papua New Guinea v Pastor Bernard Peter Kaku and William Powi (2020) SC1950

Supreme Court: Kandakasi DCJ,

Judgment Delivered: 1 May 2020

SC1950

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 01 OF 2020

APPLICATION UNDER SECTION 155 (2) (b) OF THE CONSTITUTION

AND

IN THE MATTER OF PART XVII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

BETWEEN

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Applicant

AND

PASTOR BERNARD PETER KAKU

First Respondent

AND

WILLIAM POWI

Second Respondent

Waigani: Kandakasi DCJ,

2020: 24th April, 01st May

PRACTICE & PROCEDURE – Application for disqualification of a Judge – serious matter - must be on good basis – must be by formal application clear pleading basis for –supported by affidavit disclosing factual basis for – counsel to certify application made in good faith - application without good basis could amount to scandalising the court and contempt of court – facts not disputed – application based on allegations of prejudice arising from Judge’s decision in an earlier interlocutory application – having made a decision in earlier proceedings alone not good reason to disqualify – to succeed in an application based on prejudice or bias prejudice must be brought home to the Judge – no case made out for disqualification – application dismissed with costs.

PRACTICE & PROCEDURE – Duty of a lawyer appearing in court – as an officer of the court - duty to the court paramount – duty to the court attached to a duty to assist in the administration of justice – duty to safe guard against scandalising the court and avoid wastage of court’s time bringing baseless applications or cases - duty extends to disclosing all cases relevant to the issues before the court including those against own client – failure to disclose earlier decision in the same case – effect of – fatal to client’s case - Lawyers Professional Conduct Rules, 1989; rr. 10 (1) and 15 (5).

PRACTICE AND PROCEDURE - Lawyer communicating with the Court without copying other parties – purpose of communication - seeking to disqualify a Judge - duty to inform the other parties and Judge concerned at the first instance – failure to - effect of - Judge shopping -unprofessional conduct and in breach of professional conduct rules –consequence of – could be fatal to clients case and lawyer’s own reputation and standing before the court – Professional Conduct Rules, r. 15(12) and (13).

WORDS & PHRASES – Prejudice – meaning of - bias, preconception, prejudgement, predisposition, or partiality” – in terms of a judicial prejudice - favouritism that is shown by a judge to one party that is involved in a law suit.”

Facts

The first respondent applied to have a judge disqualified without clearly stating the basis for the application. However, from submissions the basis for the application was identified as prejudice based on the judge having made observations and a decision in a deliberate judgement in an interlocutory application in the same case. The affidavit filed in support of the application merely referred to parts of the Judge’s earlier decision in the same case without any additional facts supporting the applicant’s claim of prejudice. The application was a repeat of an earlier failed application on essentially the same basis but made orally, and which fact, was not disclosed by the applicant and his lawyer when making the second application. Also, the applicant’s lawyer did not assist with most of the relevant cases on point. Further, the applicant’s lawyer wrote to the court asking for a judge other than one sought to be disqualified to hear and determine the application. That was done without first informing the judge concerned and without copying the relevant communication to the other parties.

Held: (In addition to the established principles governing applications for disqualification of a judge):

1. Applying to disqualify a judge from presiding in a case is a serious matter and as such it must be made seriously on substantial grounds failing which the application could amount to a scandalising the court and could amount to contempt of court.

2. Given the seriousness of an application for the disqualification of a judge, the application must be made formally with the grounds clearly pleaded with particulars, supported by an affidavit setting out the relevant facts and certified as being made in good faith by the applying party’s lawyer or counsel.

3. The affidavit filed in support of an application for disqualification on the basis of prejudice or bias must amongst others disclose and meet the test that 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.

4. A judge having made observations and or a decision in an earlier interlocutory application in the same matter does not of itself give rise to prejudice and hence a basis to disqualify the judge from further dealing with the matter unless, a case of real likelihood of prejudice against the applicant is made out and not a mere speculation.

5. A lawyer appearing for a party making an application for a disqualification of a judge has a duty to the court which is paramount and that duty requires the lawyer to disclose all cases or authorities on point, including those against his client.

6. In this case, in addition to disclosing cases, the applicant was required to disclose the fact of having made a similar application earlier and the decision and that failure was fatal to the application.

7. It is unprofessional and a clear breach of the Professional Conduct Rules 1989 for a lawyer to further his client’s interest by seeking to have an application for disqualification of a judge heard by a judge other then the judge concerned without first informing and seeking the judge’s consent or approval and without copying or informing the other parties.

7. The applicant failed to establish a case of prejudice against the presiding judge and was in any event, precluded by the doctrine of res judicata and or issue estoppel from making the application on the basis of which the application for disqualification was dismissed with costs.

Cases Cited:

Papua New Guinea Cases

Airlines of PNG Ltd v Air Niugini Ltd (2010) N4047

Anderson Agiru v Aluago Alfred Kaiabe (2015) SC1412

An Application by Herman Joseph Leahy (2006) SC981

Boateng v. The State [1990] PNGLR 342

Digicel (PNG) Ltd v. Miringtoro (2015) SC1439

Dr. Bob Tawa Danaya v Ati Wobiro (2014) N5674

Dr Onne Rageau v Kina Finance Ltd (2018) N7405

Electoral Commission v. Pr Bernard Kaku (2019) SC1866

Gobe Hongu Ltd v. National Executive Council & Ors (1999) N1964

Inland Revenue Commissioners v. National Federation of Self-Employed and Small Business Limited [1982] AC 617

Ipara v. Trainor (2018) N7646

MVIL v. Kauna Kiangua (2005) SC1476

National Housing Corporation v. Paul Asakusa & Ors (2012) SC1165

Peter Bire v. Dr Philip Kereme (2016) N6328.

Peter O’Neil v. Nerrie Eliakim (No 1) (2016) SC1522

Peter Yama v. Bank South Pacific (2008) SC921

Philemon Wass Korowi & Others v. Sgt Elijah Aron & The State (2016) N6215

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

Telikom PNG Limited v. ICCC (2007) N3144

Telikom PNG Ltd v. ICCC (2008) SC906

Titi Christian v. Rabbie Namaliu (1995) SC1583

The State v. James Gurave Guba (2000) N2020

Tzen Pacific Ltd v. Innovest Ltd (2012) N4713

William Powi v. Bernard Peter Kaku (2019) SC1856

Overseas Cases

Carl Zeiss Stiftung v. Rayner & Keeler Ltd (No. 3) [1970] 1 Ch 506

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

Metropolitan Properties Co (FGC) Ltd v Lannon[1969] 1 DB 577

Olympic Airlines SA v. ACG Acquisition XX LLC [2014] EWCA Civ 821

Porter v. Magill [2002] 2 AC 357

R v. Liverpool City Justices; Ex parte Topping [1983] 1 WLR 119

Saxmere Company Ltd & Ors v. Wool Board [2010] 1 NZLR 35

Virgin Atlantic Airways Ltd v. Zodiacs Seats UK Ltd [2014] AC 160

Zeiss Stiftung v. Rayner & Keeler Ltd (No. 2) [1966] 3 WLR 125

Counsel:

Mr. R. Diweni, for the Applicant/First Respondent

Mr. H. Nii, for the First Respondent/Applicant

Mr. L. Tangua, for the Second Respondent

11th May, 2020

1. KANDAKASI DCJ: Pastor Bernard Kaku (Pr. Kaku), the First Respondent in this proceeding applied for my disqualification from hearing the Electoral Commission’s (EC) application for leave to apply for judicial review. This was a repeat of an application he made on 17th October 2019, at the hearing of a related proceeding, namely SC...