NCDC v Yama Security Services Ltd

• Jurisdiction: Papua New Guinea
• Judge: Kassman, Logan & Lindsay JJ
• Judgment Date: 10 March 2017
• Citation: (2017) SC1575
• Court: Supreme Court
• Year: 2017
• Judgement Number: SC1575

Full : SCA No 31 of 2016; National Capital District Commission v Yama Security Services Limited (2017) SC1575

Supreme Court: Kassman, Logan & Lindsay JJ

Judgment Delivered: 10 March 2017

SC1575

PAPUA NEW GUINEA

[IN THE SUPREME COURT JUSTICE]

SCA No. 31 of 2016

BETWEEN:

NATIONAL CAPITAL DISTRICT COMMISSION

Appellant

AND:

YAMA SECURITY SERVICES LIMITED

Respondent

Waigani: Kassman, Logan & Lindsay JJ.

2016: 26thOctober

2017: 10th March

PRACTICE & PROCEDURE – The Constitution; s59, s169 – whether judges ought to disqualify themselves due to a reasonable apprehension of bias – alleged prior professional association – whether application ought to be heard and determined by Full Court or by each individual judge the subject of the disqualification application and only to extent that application related to that particular judge – HELD – at least in the first instance, application should be considered on the merits and ruled upon by each individual judge

PNG Cases cited:

Application by Herman Joseph Leahy [2006] PGSC 37; SC981

Burns Philp (NG) Ltd v Maxine George [1983] PNGLR 55

Bore v Wakore (2015) SC1410

Denden Tom, Daniel Wilson & Samuel Tom v The State (2008) SC967

General Accident Fire & Life Assurance Corporation Ltd. v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331

General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331

Joshua Kalinoe v Paul Paraka (2007) SC874

Marape v O’Neill [2015] PGSC 66; SC1472

National Narcotics Bureau v Nauro [2015] PGSC 71; SC1480

Peter Yama v. BSP; Smugglers Inn v Christopher Burt; Yakka Enterprises v Peter Yama (2008) SC921

Peter Yama v BSP & Ors (2008) SC921

Pacific Equities & Investments Ltd v Teup Goledu, NASFund and others (2008) N3400

Peter Norr v Dominic Ikamata (2005) SC815

SC Review (EP) No. 36 of 2013 Anton Yagama v Peter Charles Yama, Steven Biko and Electoral Commission of PNG

State v The Transferees (2016) SC1488

Overseas Cases :

Allen v. Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 and Birkett v. James [1978] AC 297

Barton v Walker [1979] 2NSWLR 740

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Kartinyeri v Commonwealth of Australia (1998) 72 ALJR 1334

Kartinyeri v Commonwealth of Australia A29/1997 [1998] HCA

Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337

Rogers v Wentworth [1998] NSWCA 20

R v Bow Street Metropolitan Stipendiary Magistrate; ex parte Pinochet [1999] 2 WLR 272

Rogers v Wentworth [1998] NSWCA 20

Legislations:

Constitution sections 59, 161(1) and (2), 162(2), 169(3) and 155(4)

Supreme Court Rules Order 13 Rule 16(1) and Order 7 Rule 48 (formerly Rule 53)

Counsel:

Mr I Molloy, & Mr P Kuman, for the Appellant

Mr B Lomai, for the Respondent

10th March, 2017

1. BY THE COURT: This appeal was originally listed for hearing in the August sittings of the Supreme Court. At that time, it proved necessary for the appeal to be adjourned because of a failure on the part of the appellant to obtain, as the rules required, a certified copy of the reasons for judgment as revised by the learned primary judge. That omission was no mere formality. Those reasons for judgment had not just been delivered ex tempore but also, as transcribed, revealed an intention on the part of the learned primary judge that they be subject to correction upon revision by him. They have since been revised and certified by his Honour.

2. In August, the appeal was adjourned to the Court’s October sittings. A little earlier in October 2016, the respondent filed an application in which it sought orders that Kassman and Lindsay JJ respectively disqualify themselves from participating in the hearing of the appeal on the basis that, in each instance, there existed a reasonable apprehension of bias. That application was returned for hearing before the Court as presently constituted on the date upon which the appeal was listed for hearing.

3. Upon the application being called on for hearing, the Court raised with the parties whether it was contended that the application was one for consideration by the Court constituted as a Full Court, in other words by the three judges panelled to hear the appeal, or whether the application ought, so far as it related to him, be separately considered and ruled upon by the individual judge the subject of the disqualification application and then only to the extent that the application related to that particular judge. This point had not been adverted to by the respondent in its extract of argument. The lateness of the disqualification application meant that the appellant had had little enough time to advert to its merits, let alone this issue of practice and procedure. Even so, there was a consensus at the Bar table that, while such an application had sometimes in the past been considered on its merits and ruled upon by each member of a Full Court, it had also sometimes been dealt with solely by the individual judge concerned and that the latter was the course which ought to be followed in this case. We indicated that we proposed to follow the latter course.

4. The procedural issue involved is one of some nicety and the opportunity to address it only infrequently arises. In these circumstances, we consider it desirable that we expand upon why we have followed the course proposed. These joint reasons for judgment are confined to enlarging upon the practice and procedure in respect of an application that a member of a Full Court of the Supreme Court should disqualify him or herself. We expressly refrain from collectively considering and ruling upon whether, on the facts respectively presented, either Kassman J or Lindsay J ought to disqualify himself.

5. For the reasons which follow, we consider that, at least in the first instance, such an application should be considered on the merits and ruled upon by the individual judge concerned. It is for this reason that Logan J has not expressed any view on the substantive disqualification issues and why Kassman and Lindsay JJ will each deliver a separate judgment, confined to the disqualification issue raised in respect of him by the respondent. Neither will express any view as to whether a reasonable apprehension of bias arises in the circumstances of the other.

6. Under the Constitution, the Supreme Court is established as a court which consists of all of the judges of the National Court (including the Chief Justice and the Deputy Chief Justice but excluding the acting Judges): s 161(1) of the Constitution. Establishment is one thing; the constitution of the Court for the exercise of its jurisdiction is another. Subject to those cases in which, by virtue of an Act or rule of court made pursuant to s 162(2) of the Constitution, the jurisdiction of the Supreme Court may be exercised by a single judge, the jurisdiction of the Supreme Court will usually be exercised by a panel of not less than three judges: s 161(2) of the Constitution. For convenience, we shall refer to the Supreme Court constituted in this collegiate fashion by a panel of judges as the “Full Court” (we also use that term in relation to other courts so constituted). The membership of a particular panel of judges to constitute the Full Court in respect of a particular case is, subject to such consultation with the other judges as appropriate, a matter for the Chief Justice in the exercise of the organisational and administrative responsibilities which fall to him to exercise under s 169(3) of the Constitution.

7. In contrast to the Supreme Court, the jurisdiction of the National Court will, almost invariably, be exercised by a single judge. If only for this pragmatic reason, but perhaps also because it must be (as to which see below), in the National Court, a disqualification application will ordinarily be heard and determined by the single judge who constitutes that court with an appeal to the Supreme Court or, exceptionally, a review by that Court then being available in respect of the orders made in any resultant exercise of jurisdiction to determine the substantive National Court proceeding in which the disqualification application was made.

8. For like reasons, when the jurisdiction of the Supreme Court is being exercised by a single judge, any disqualification application will ordinarily be made to that judge.

9. The issue of practice and procedure which has arisen in this case differs from the circumstances just mentioned, because it relates to the exercise by a Full Court of the Supreme Court’s appellate jurisdiction.

10. It is certainly possible to find examples of cases in the Supreme Court where a disqualification application has been considered by each of the members of a Full Court. In Marape v O’Neill [2015] PGSC 66; SC1472 Hartshorn J considered and participated in a ruling upon an application that the other members of the Full Court, Makail and Sawong JJ, should disqualify themselves on the basis of apprehended bias. Practice and...