Before his appointment, the judge had been managing partner of a law firm involved in the privatisation of the bank's predecessor. The appellants said he could not sit on their appeals against the bank. The Supreme Court used the application to state the law on recusal.
Peter Yama and others v Bank South Pacific and another; Smugglers Inn v Burt; Yakka Enterprises v Yama [2008] PGSC 41; SC921
Supreme Court, Waigani — Sakora, Gabi and Hartshorn JJ, 9 July 2008. SCA 110 of 2004, SCA 88 of 2006, SCA 85 of 2003.
What happened
Three related appeals between Peter Yama’s interests and Bank South Pacific came before a bench that included Hartshorn J. The appellants moved under sections 155(4) and 59 of the Constitution to disqualify him. They relied on his former firm’s role in the privatisation of the Papua New Guinea Banking Corporation, later merged with BSP, and on the fact that Mr Yama had been publicly critical of him. An earlier request had been made by letter to the judge’s associate rather than by motion. The bank cross-moved to dismiss the application.
What was argued
The appellants said a reasonable observer would apprehend that a judge who had advised on the bank’s privatisation might favour it, and that his having been attacked by Mr Yama compounded the risk. The bank said the subject matter of the past advice was not in issue, the former client was not a party, no statement or act of the judge showed animosity, and the request had not been properly made.
What the Court decided
1. A prior professional relationship between a lawyer and a client, even a long and close one, does not generally justify a reasonable apprehension that the lawyer, on becoming a judge, will not decide a case involving the former client impartially.
2. The privatisation of PNGBC was not an issue in the appeals and the former client was not a party. There was no evidence of any statement or action showing prejudice or ill feeling toward the appellants.
3. It is not the law that a judge must disqualify himself because a litigant has been, or continues to be, critical of him, even to the point of defamation or contempt, in unrelated matters.
4. Applying PNG Pipes v Sefa (1998) SC592, Application by Herman Leahy (2006) SC981 and the Australian authorities, the test is objective: the fair-minded lay observer is taken to have some knowledge of the way lawyers and judges work. The applicant must first identify the facts, matters and circumstances said to affect the judge and then articulate the logical connection between them and the apprehended departure from deciding on the merits.
5. A request to disqualify must be made by notice of motion, served on all parties, with affidavit evidence. A letter to the associate, the Registrar or a judge is not sufficient, and “acting on client’s instructions” is no excuse; counsel’s first duty is to the Court. Application refused.
Did it make new law?
No National Court decision was under review. The Court consolidated the existing objective test from PNG Pipes and Leahy, imported the two-step method from Ebner v Official Trustee and Smits v Roach, and laid down the procedural rule for how recusal must be sought. Later benches have treated Yama, with Kaman v The State (2021) SC2227, as the standard statement of the principles.
Why it matters
File a motion, not a letter. Set out in an affidavit the specific facts relied on and explain in submissions why they would lead a fair-minded observer to doubt impartiality.
Past practice is rarely enough. Most judges were lawyers with clients; disqualification requires a connection between the past work and the issues or parties now before the court.
Judges should not accede too readily. The Court repeated that litigants must not be allowed to choose their judge by making allegations against the one allocated.
What it does not decide
Yama concerns apprehended, not actual, bias, which must be distinctly alleged and proved by cogent evidence. It does not decide when a judge’s earlier ruling in related proceedings amounts to prejudgment, a question dealt with in later criminal appeals. Nor does it address the position of a judge with a financial interest in a party, where the answer is disqualification without more.
Recent cases applying it
- Terupo v The State [2025] PGSC 133; SC2835 — the test restated from Leahy, Yama and Kaman in refusing to disqualify judges who had heard a co-accused’s earlier appeal.
- Kalase v Registrar of Companies [2024] PGSC 59; SC2590 — the principles from Boateng, PNG Pipes, Leahy and Yama, as summarised in Kaman, applied to a recusal application.
- Electoral Commission v Kaku [2020] PGSC 37; SC1950 — paragraph 19 of Yama, on identifying the facts and the logical connection, quoted and applied.
- Barrick (Niugini) Ltd v Nekitel [2020] PGSC 102; SC2013 — Yama cited for the attributes of the fair-minded lay observer.
Sources
- Yama v Bank South Pacific [2008] PGSC 41; SC921 (Sakora, Gabi and Hartshorn JJ, 9 July 2008)
- Constitution — ss 59, 155(4)
- Application by Herman Joseph Leahy [2006] PGSC 37; SC981
- Terupo v The State [2025] PGSC 133; SC2835; Kalase v Registrar of Companies [2024] PGSC 59; SC2590; Electoral Commission v Kaku [2020] PGSC 37; SC1950; Barrick (Niugini) Ltd v Nekitel [2020] PGSC 102; SC2013
PNG Pipes Pty Ltd v Sefa (1998) SC592, Kaman v The State (2021) SC2227 and the Australian decisions are cited as they appear in the judgments and were not separately opened for this brief.
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