PNG Air Services v NHC

• Jurisdiction: Papua New Guinea
• Judge: Polume-Kiele J
• Judgment Date: 19 June 2018
• Citation: (2018) N7364
• Court: National Court
• Year: 2018
• Judgement Number: N7364

Full : OS 745 of 2014; Papua New Guinea Air Services and National Airports Corporation v National Housing Corporation and Sike Toulik, Patrick Maiyau, John Paul, Anthony Simitap, Haggai Zeriga & Ors in the schedule appended (2018) N7364

National Court: Polume-Kiele J

Judgment Delivered: 19 June 2018

N7364

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 745 OF 2014

BETWEEN

PAPUA NEW GUINEA AIR SERVICES

First Plaintiff

AND

NATIONAL AIRPORTS CORPORATION

Second Plaintiff

AND

NATIONAL HOUSING CORPORATION

First Defendant

AND

SIKE TOULIK, PATRICK MAIYAU, JOHN PAUL, ANTHONY SIMITAP, HAGGAI ZERIGA & ORS IN THE SCHEDULE APPENDED

Second Defendant

Waigani: Polume-Kiele J

2017: 22 September & 6 October

2018: 20 March & 19 June

PRACTICE AND PROCEDURE- Application for disqualification of trial judge - Fair hearing- Trial judge disclosure of being related to two individuals who are identified in the proceedings – One from same village, an applicant for joiner – another related by marriage – not an applicant for joiner.

PRACTICE AND PROCEDURE - Apprehension of bias – Apprehended bias – Application for joiner entered by consent of parties - The first plaintiff now seeks the disqualification of trial judge - whether proper basis for disqualification supported by the second plaintiff- Nature of apprehension requiring Judge to disqualify himself or herself from hearing a matter – Whether apprehension reasonable – Relevant legal principles considered.

Cases Cited:

Papua New Guinea Cases

Application by Herman Joseph Leahy (2006) SC855

Bank of Papua New Guinea & Anor v. Marshall Cooke QC & Anor (2003) N2369

Coecon Ltd v. National Fisheries Authority of PNG (2002) N 2182

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

Hitron Pty Ltd v. PNG Telecommunication Authority [2000] PNGLR 357

NCDC v Yama Security Services Ltd (2017) SC1575

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

Peter Yama v. BSP; Smugglers Inn v Christopher Burt; Yakka Enterprises v Peter Yama (2008) SC 921

PNG Pipes Ltd & Anor v. Mujo Sefa & Ors (1998) SC 592

The State v. Puli A’aron (2003) N 2432

Overseas Cases

Galea v. Galea (1988) 19 NSWLR 263

Livesey v. New South Wales Bar Association (1983) 151 CLR 288; 47 ALR 45

Metropolitan Properties Co. (FCE) Ltd v Lannon [1969] 1 QB 577

Raybos Australia Pty. Ltd. v. Tectran Corp. Pty. Ltd. (No.4) (1986) 6 NSWLR 674

Re Keely; Ex parte Ansett Transport Industries (Operations) Pty. Ltd. (1990) 94 ALR 1, 64 ALJR 495.

R. v. Leckie; Ex parte Felman (1997) 18 ALR 93; 52 ALJR 155.

Re JRL; Ex parte CJL (1986) 161 CLR 342

Trustee of Christian Brothers v. Cardone (1995) 130 ALR 345

Webb v. R (1994) 181 CLR 41; 122 ALR 41

Ruling on Application for Disqualification

19 June, 2018

1. POLUME-KIELE J: On the 30th of March 2018, the first plaintiff moved a motion before me which motion was supported by the second plaintiff seeking orders that I as a trial judge disqualify myself from presiding further in the trial of this matter.

2. These proceedings arose following a declaration made by the Minister for Civil Aviation Authority (CAA) on the 28th January 2016 in which the CAA was redesignated. This organisation is now called the Civil Aviation Safety Authority (CASA) pursuant to s 324A and 324B of the Civil Aviation Act. Pursuant to this redesignation, all assets and liabilities of the former CAA now vest with the CASA.

3. It appears that the assets of the CAA include a list of properties; the subject of these proceedings which the National Airport Corporation (Second Plaintiff) and the PNG Air Services Limited (First Plaintiff) and the National Housing Corporation, (first defendant) all lay claims over. These proceedings have been subject to an appeal to the Supreme Court in SCA No. 163 of 2014. Following this appeal, the matter has been reverted to this Court for re-hearing.

Brief Background

4. The basis of the application is that during the course of hearing parties on the application for joiner; I discovered that at least two persons whose names were on the list of 100 applicants wishing to be joined as applicant to these proceedings were related to me, one a John Konabe is from the same Village as me and the other a Sespi Kouse, is related by marriage. This fact was disclosed during a hearing on the 22nd of September 2017. In the course of the hearing of the application and exchanges with Counsels, it was agreed that the parties discuss the application for joiner and to indicate any inclusion and or exclusion and return to Court on the 6th of October 2017 with a view to handing up a draft consent order as to the list of applicants for joiner.

5. Upon listing for a re-hearing of the matter, Kubak & Associates Lawyers moved an application for joiner of the 54 applicants who had been identified in SCA No. 163 of 2014 as parties interested in the proceedings and therefore be joined.

6. Since then, a number of new applicants have filed applications for joiners. Amongst these new applicants are two persons who are related to me as the trial judge. These two applicants are close relatives (one by marriage and another from the same village). Thus the application by the Plaintiffs for disqualification. This information was disclosed to the parties during the hearing of the application on the 22nd of September 2017.

7. During discussion in Court, it appeared that only applicant; John Konabe (from same village) had actually filed an affidavit in support of the joiner application. The other applicant, Sespi Kouse (related by marriage) did not file any affidavit or indicated a willingness to be joined as a party. Thus this application may not affect him at all.

8. Given these circumstances, parties were invited to discuss the issues of joiner and to specifically determine who should be included and or excluded from being joined as a party to the proceedings and to return to court with their proposals.

9. On the 6th of October 2017, parties had entered a Consent Order which included all the 54 applicants (as per the SCA No. 163 of 2014 and the 46 new applicants (including John Konabe) as parties to the proceedings. Upon entering into a consent order which apparently had included one John Konabe as a party to the proceedings, the First and Second Plaintiff now seek orders to disqualify the trial judge from hearing and determining the matter.

10. This is my ruling on the application.

Plaintiff’s evidence

11. The first plaintiff’s application for disqualification relates to the issue of whether in all the circumstances a fair minded, lay observer with knowledge of the material objective facts “might entertain a reasonable apprehension that [the Judge] might not bring an impartial and unprejudiced mind to the resolution of the question” in issue.” The application is supported by two affidavits; that of Mr Nelson Kopunye, Lawyer for the First Plaintiff sworn on the 17th of January 2018, filed on the same date and Ms Rosemary Sariman sworn on the 17th of January 2018, filed on the same date, Ms Sariman the In-house Lawyer for the Plaintiff.

12. It is noted that there is no supporting affidavits sworn by any relevant persons of authority from within the First and Second Plaintiff’s organisation.

13. The application is supported by the Second Plaintiff as per Mr Aku’s submission but again there is no support affidavit filed by any person of authority from within the Second Plaintiff’s organisation attesting to seeking the disqualification of the trial judge.

14. However I note that on the 6th of October 2017, a draft consent order was endorsed by the Parties. The consent order was handed up in Court on the 6th of October 2017 for endorsement. A perusal of the consent orders confirms that the applicant John Konabe is listed as an applicant for joiner to these proceedings.

Second Defendant’s evidence

15. The Second Defendants object to the application and say there that whilst there are appropriate case authorities that apply in this type of situation, they submit that there is no proper basis for disqualification. In this regard, whilst it was open for the First and Second Plaintiffs to raise such matters in the interest of fair justice. When the applicant does raise the issue by way of a formal application, the onus is on the applicant to satisfy or imputed or apprehended bias.

The law

16. The relevant principles and the test applicable in an application for a Judge to disqualify themselves are established in PNG Pipes Limited and Sankaran Venugopal -v- Mujo Sefa & 2 Ors, (1998) SC 592 in which the Supreme Court referred to a number of similar cases and statements of principles in overseas jurisdiction and applied those principles and the test as the law in our jurisdiction. The test is that of an ‘objective observer’ (underlining mine).

17. In Gobe Hongu Ltd v. National...