Barrick Niugini Ltd v Nekitel 2020 PGSC 102 SC2013 - 14 October 2020
SUPREME COURT - PRACTICE AND PROCEDURE - Application for disqualification of judge - reasonable apprehension of bias - test to be applied - necessity to demonstrate real connection between the Judge’s knowledge and the issue for adjudication.
7. The factual basis stated by the Applicant was that the Porgera Joint Venture (“PJV”) was established and issued with the SML in 1989, the Judge had been a Director of a company named Goldfields PNG Holdings Limited (“Goldfields”) from November 2000 to April 2003, that this company had a participating interest in the PJV, and that in 2006 the company had amalgamated with Barrick (Goldfields PNG Holdings) Limited. In March 2020 the NEC had referred to “legacy issues” amongst other matters when making a decision to refuse the SML. In September 2020 the Appellant’s proceedings to judicially review the NEC decision were summarily dismissed, for incompetence and a multiplicity of proceedings amounting to an abuse of process. The Appellant issued these proceedings by way of an appeal against that decision.
8. Other evidence in these proceedings showed that the PJV was an unincorporated entity held 95% by the Appellant and 5% by the 7th Respondent. There was no direct evidence such as a Joint Venture Agreement, of Goldfields’ interest in the PJV. MRE’s evidence relied on some of the financial statements of Goldfields for 2001 which contained a statement in the Notes to the Accounts that Goldfields held a 25% interest in the PJV. MRE submitted from the Bar table that it must be inferred from the statement in the Notes to the Accounts that at that time, in 2001, there were different parties to the PJV, than now. Other evidence showed that there had been a number of changes to the PJV parties since 1989, none of which referred to Goldfields.
27. I therefore make the following Orders:
- The Application by the Seventh Respondent filed on 10 September 2020 that the Honourable Justice Hartshorn be disqualified from presiding over these proceedings, is refused.
- The Seventh Respondent is to pay the Appellant’s costs on a party/party basis, to be agreed or taxed.
- Each of the other Respondents are to pay their own costs.
- The time for entry of these Orders is abridged to the time of settlement by the Registrar, which shall take place forthwith.