Hon James Marape v Paul Paraka Trading

• Jurisdiction: Papua New Guinea
• Judge: Kariko, J
• Judgment Date: 01 July 2014
• Citation: (2014) N5740
• Court: National Court
• Year: 2014
• Judgement Number: N5740

Full : O.S. NO. 115 OF 2014; In the matter of an Application under Sections 63(4) and or 65(1) & (2) of the Lawyers Act 1986; Hon. James Marape, MP in his capacity as Minister for Finance and Hon. Peter O’Neill, MP in his capacity as Prime Minister v Paul Paraka Trading as Paul Paraka Lawyers (2014) N5740

National Court: Kariko, J

Judgment Delivered: 1 July 2014

N5740

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

O.S. NO. 115 OF 2014

IN THE MATTER OF AN APPLICATION UNDER SECTIONS 63(4) AND OR 65(1) & (2) OF THE LAWYERS ACT 1986

BETWEEN:

HON. JAMES MARAPE, MP in his capacity as MINISTER FOR FINANCE

First Plaintiff

AND:

HON. PETER O’NEILL, MP in his capacity as PRIME MINISTER

Second Plaintiff

AND:

PAUL PARAKA trading as PAUL PARAKA LAWYERS

Defendant

Waigani: Kariko, J

2014: 17th, 18th, 25th, 27th June & 1st July

Cases cited:

Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853

Chuan v Chin (2004) N2538

Craftworks Niugini Pty Ltd v Allan Mott (1997) SC 525

Grand Chief Sir Michael Somare v Ila Geno (2008) N3406

Grand Chief Sir Michael Thomas Somare v Chronox Manek, John Nero and Pheobe Sangetari as Ombudsman Commissioners and the Ombudsman Commission (2011) SC1108

Pius Nui v Mas Tanda (2004) N2765

Ramu Nico Management (MCC) Limited and Ors v Tarsie and Ors (2010) SC1075

Rimbink Pato v Anthony Manjin [1997] PNGLR 6

Robinson v National Airlines Commission [1983] PNGLR 478

Royal Thompson v Sylvester Kalaut (2011) N4265

Zachary Gelu v Sir Michael Somare MP (2008) N3526

Legislation:

Constitution

Lawyers Act 1986

National Court Rules

Counsel:

Mr R Leo, for the first plaintiff

Mrs T Twivey-Nonggorr, for the second plaintiff

Mr M Kongri, for the defendant

Mr M Varitimos Q.C., as amicus curiae (and representing the Police Force)

1st July, 2014

1. KARIKO, J: These are separate applications by each plaintiff, Hon. James Marape, MP Minister for Finance and Hon. Peter O’Neill, MP Prime Minister, seeking an interim restraining order against the Police from arresting each of them. Before considering the applications, it is necessary to refer to the history of this matter.

2. This proceeding relates to the alleged fraudulent payments in the years 2012 and 2013 of over K71million by the State through the Department of Finance for legal bills of Paul Paraka trading as Paul Paraka Lawyers.

3. Based on a concern that substantial amounts had been paid by the State as legal fees and out-of- court settlements, Prime Minister O’Neill issued a Directive on 13th May 2013 instructing amongst other things that “...a High Level Investigation must be conducted into the legality of the payments and settlements. The investigation team should be made up of Taskforce Sweep and Police Fraud Squad, with the support of the Australian Federal Police and Interpol.”

Police request to interview Mr Marape concern

4. By letter dated 15th January 2014, the then Commissioner of Police Toami Kulunga invited Mr Marape for an interview in relation to the alleged fraudulent payment of legal bills to Paul Paraka Lawyers explaining that “Police through the work of the Task Force Sweep have analysed the information that was gathered and are of the opinion that there is evidence of criminality implicating yourself in the complaint, hence the need to speak to you.”

5. Through his lawyer, Mr Marape requested for the interview to be deferred until the determination of certain National Court proceedings that had emanated from steps taken by four policemen (not part of the Taskforce Team) allegedly at the behest of Hon. Leader of the Opposition Beldan Namah, to arrest a number of persons including Mr O’Neill and Mr Marape in relation to the payments to Paul Paraka Lawyers.

6. In one of those proceedings (OS No. 10 of 2014) consent orders were entered into, the effect of which included the Police being restrained from arresting Mr O’Neill and Mr Marape pending determination of that proceeding.

7. On 14th March 2014 Mr Marape filed this proceeding for himself and the State seeking amongst others, an order for the taxation of a total of 2,716 legal bills of costs charged by Paul Paraka Lawyers and claimed for legal work rendered to the State between 6th May 2003 and 30th October 2006. Other Orders sought in the originating summons are summarized as follows:

(1) That following the grant of the application for the taxation, Paul Paraka Lawyers shall file and serve the respective bill of costs in taxable form.

(2) That if the taxed costs are of an amount less than the amount charged and paid, the excess amount shall be refunded by Paul Paraka Lawyers, and the payment of that excess amount shall be deemed lawful and legal.

8. Mr Marape also filed a notice of motion seeking an interim restraining order against the Police and the Taskforce Sweep Team from investigating him in relation to the payment of legal bills to Paul Paraka Lawyers. This application was not moved because of the interim orders issued in proceeding OS No. 10 of 2014.

9. On 6 June 2014 OS No. 10 of 2014 was discontinued by consent of the parties resulting in the restraining orders being dissolved.

10. Mr Marape then took steps to move his outstanding motion in this proceeding.

Police request to interview Mr O’Neill

11. By letter dated 16th June 2014, the then Police Commissioner invited the Prime Minister for a formal interview. This letter reads:

“My dear Prime Minister

REQUEST FOR FORMAL RECORD OF INTERVIEW

With the greatest respect to yourself and your esteemed office, I refer to the above and request your attendance at the National Fraud and Anti-Corruption Directorate at Konedobu, National Capital District for a formal record of interview at 11.00am or 1.00pm on 16th June, 2014.

The interview relates to the allegations of fraudulent payments made to Paul Paraka Lawyers between February, 2012 (sic) and May 2013. The investigations were carried out at your request through a Prime Ministerial Directive issued under your hand dated 13th May, 2013.

Pursuant to the requirements of law, a warrant of arrest has been issued today, ordering police to arrest you. A copy of the warrant of arrest dated 12th June 2014 is enclosed herein for your reference. You would note that a warrant is a court order demanding police to effect your arrest.

It would help if you could make your way to the nominated time and place for a formal record of interview and answer questions that would be put to you formally.

Yours sincerely,

(Signed)

Toami Kulunga, Kt, OBE, DPS, QPM

Commissioner of Police”

12. The Warrant of Arrest was issued based on an Information alleging the offence of official corruption under section 87(1) Criminal Code.

13. The Prime Minister then filed an urgent application late on 16th June 2014 seeking ex parte orders to join this proceeding as a plaintiff and for the issue of an interim restraining order in the same terms as that sought by Mr Marape plus a stay of the Warrant of Arrest.

14. I gave chamber directions for service of documents (including on the Police) before hearing the applications the next day, after I noted that the orders sought would impinge on the constitutional functions of the Police.

The interlocutory applications

15. On 17th June 2014, I commenced hearing the applications. As preliminary matters, I made the following orders after submissions:

(1) Leave was refused to the Taskforce Sweep Team to appear as I considered the Team’s interests could be represented through counsel for the Police; and

(2) The State was removed as a plaintiff, based on the undisputed fact that the Attorney-General had not authorised for the State to be a party to the proceeding.

16. The application by Mr O’Neill to join as a plaintiff was not opposed and was granted, and the hearing then proceeded on the applications of the plaintiffs for the interim restraining orders.

17. During the course of submissions, counsel for Mr O’Neill sought leave to amend her client’s application. Mrs Twivey-Nonggorr informed the Court that Mr O’Neill would only seek an interim restraining order against the Police from arresting him until determination of the substantive proceeding. This position was also adopted for Mr Marape by his counsel.

18. The hearing of submissions were the subject of three adjournments, but were finally completed last Friday. On the last occasion, Mr Varitimos Q.C. appeared for the Police on “late instructions” but was still able to properly and fairly assist the Court.

19. Most of the submissions focused on the question of whether the Court has should exercise its discretionary power to restrain the Police from effecting an arrest. The Court was concerned that an exercise of that power is prima facie an interference with the functions of the Police under section 197 Constitution. I will return to discuss this issue later.

Application for interim restraining order

20. The established legal principles governing whether an interim injunction should be ordered are found in many...