SCA 87 OF 2014; Hon James Marape, in his capacity as the Minister for Finance and Hon. Peter O’Neill, in his capacity as the Prime Minister and Paul Paraka trading as Paul Paraka Lawyers and Royal Constabulary of PNG and The Independent State of Papua New Guinea (2014) SC1378

• Jurisdiction: Papua New Guinea
• Judge: David, Hartshorn and Sawong JJ
• Judgment Date: 30 July 2014
• Citation: (2014) SC1378
• Court: Supreme Court
• Year: 2014
• Judgement Number: SC1378

Full Title: SCA 87 OF 2014; Hon James Marape, in his capacity as the Minister for Finance and Hon. Peter O’Neill, in his capacity as the Prime Minister and Paul Paraka trading as Paul Paraka Lawyers and Royal Constabulary of PNG and The Independent State of Papua New Guinea (2014) SC1378

Supreme Court: David, Hartshorn and Sawong JJ

Judgment Delivered: 30 July 2014

SC1378

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 87 OF 2014

BETWEEN:

HON. JAMES MARAPE, in his capacity

as the MINISTER FOR FINANCE

Appellant

AND:

HON. PETER O’NEILL, in his capacity

as the PRIME MINISTER

First Respondent

AND:

PAUL PARAKA trading as

PAUL PARAKA LAWYERS

Second Respondent

AND:

ROYAL CONSTABULARY of PNG

Third Respondent

AND:

THE INDEPENDENT STATE

OF PAPUA NEW GUINEA

Fourth Respondent

Waigani: David, Hartshorn and Sawong JJ

2014: 29th, 30th July

Application for injunction

Cases cited:

Papua New Guinea Cases

Employers Federation of Papua New Guinea v. Papua New Guinea Waterside Workers and Seaman’s Union and Arbitration Tribunal (1982) N393

Robinson v. National Airlines Commission [1983] PNGLR 478

Markscal Ltd v. MRDC [1996] PNGLR 419

Craftworks Nuigini Pty Ltd v. Allan Mott (1997) SC 525

Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853

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

Ramu Nico Management (MCC) Limited and Ors v Tarsie and Ors (2010) SC1075 Airlines of PNG v. Air Niugini Ltd (2010) N4047

PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126

Overseas Cases

American Cyanamid Company v. Ethicon Limited (1975) AC 396

Counsel:

Mr. R. Leo, for the Appellant

Ms. T. Nonggorr, for the First Respondent

Mr. M. Kombri, for the Second Respondent

Mr. S. Bonner, for the Third Respondent

Mr. R. Saulep, for the Fourth Respondent

30th July, 2014

1. BY THE COURT: Before the Court is an urgent application for an interim injunction in a matter of public importance. The applicant for the interim injunction is the Hon. James Marape. An undertaking as to damages in respect of the interim injunction sought has been offered in accordance with standard practice. Notwithstanding that the court was informed that all parties consented to the application, we proceeded to hear argument on the application to ascertain whether the applicant was entitled to the relief that he seeks.

Background

2. The application for the interim injunction relates to orders made by the National Court on 1st July 2014 in proceeding OS 115 of 2014 Minister James Marape and Prime Minister Peter O’Neill v Paul Paraka trading as Paul Paraka Lawyers. The background to these orders is explained in detail in the judgment of His Honour below of 1st July 2014. In summary, it is as follows:

3. In OS 115 of 2014 by way of Originating Summons filed on 14th March 2014, Mr. Marape as first plaintiff and the Independent State of Papua New Guinea as second plaintiff had commenced proceedings against Paul Paraka trading as Paul Paraka Lawyers (“Paraka”). In those proceedings the plaintiffs sought, inter alia, an order for taxation (in accordance with s. 63 (4) and/or s. 65(1) and (2) Lawyers Act, s. 155 (4) Constitution and the National Court Rules) of 2,716 identified bills of costs of the defendant Paraka, provided to the State and totalling K51,348,652.

4. Mr. Marape had also sought an interim injunction against servants or agents of the Independent State of Papua New Guinea including members of the Royal Papua New Guinea Constabulary and the Officers of the Task Force Sweep Team restraining them from conducting a Record of Interview of him or such further or other investigative actions against him in respect of any previous payments of legal bills of Paraka. As His Honour below explained, this Originating Summons followed a letter dated 15 January 2014 by the then Commissioner of Police Toami Kulunga to Mr. Marape inviting Mr. Marape to attend an interview in relation to alleged fraudulent payment of legal bills to Paraka.

5. These events took place against a background of related proceedings (OS No 10 of 2014) wherein four police officers had taken steps to arrest a number of persons (including Mr. Marape and the Prime Minister) in relation to payments to Paraka. Consent orders were entered into restraining the police from arresting Mr. Marape and the Prime Minister pending determination of those proceedings. His Honour noted that OS No 10 of 2014 was discontinued by consent on 6 June 2014 resulting in the dissolution of the restraining orders.

6. Before His Honour the parties put forward the following proposed orders by way of consent:

a) That pursuant to Order 12 Rule 1 of the National Court Rules and/or Section 155 (4) of the Constitution an interim injunction is issued restraining all officers and members of the Royal Papua New Guinea Constabulary from arresting the First Plaintiff or Second Plaintiff in respect of any previous payment of legal bills of the Defendant until the proceedings herein are determined.

b) That pursuant to Order 12 Rule 1 of the National Court Rules and/or Section 155(4) of the Constitution the Police Commissioner and other Senior Officers of the Royal Papua New Guinea Constabulary are prevented from interfering with the investigation of the payment of the Paul Paraka legal bills by the police officers attached to Task Force Sweep pending the determination of these proceedings.

c) That the matter be adjourned to the Registry for the allocation of a date for Directions.

d) That the time for entry of these Orders is abridged.

Decision of His Honour

7. After explaining in detail the background facts His Honour then turned to the application for interim restraining order before him. At [20]-[21] his Honour observed:

“20. The established legal principles governing whether an interim injunction should be ordered are found in many cases including those cited by counsel : Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853; Ramu Nico Management (MCC) Limited and Ors v Tarsie and Ors (2010) SC1075; Chuan v Chin (2004) N2538. The principles confirmed in the case of Chief Collector of Taxes v Bougainville Copper Ltd (supra) and approved in many subsequent cases are that an applicant for an interim injunction must show that:

(1) There is a serious question to be tried;

(2) An undertaking as to damages has been given;

(3) Damages would not be an adequate remedy if the interim order is not granted; and

(4) The balance of convenience favours the granting of the interim order.

21. The plaintiffs have each filed an appropriate undertaking as to damages and in my view the question of whether damages are an adequate remedy is not significant in this case. The issues remaining for my determination are whether there is a serious question to be tried and where does the balance of convenience lie.”

8. After extensive discussion, His Honour concluded that there was no serious question to be tried in this matter. In reaching this conclusion, His Honour said (in summary) as follows:

· Authorities such as Craftworks Niugini Pty Ltd v Allan Mott (1997) SC 525 and Robinson v National Airlines Commission [1983] PNGLR 478 are authority for the proposition that the Court must be satisfied the issue to be tried is not a frivolous matter and that the party seeking the injunction has good prospects of success (at [22])

· The substantive case concerned whether taxation of costs should be ordered pursuant to section 63 (4) and/or sections 65 (1) and 65 (2) Lawyers Act 1986 and section 155 (4) Constitution (at [23])

· Third parties may apply for taxation of costs under section 65 Lawyers Act 1986 (at [24])

· In this case the relevant bills of costs were charged to the State as a client for legal work undertaken on the State’s behalf by Paraka (at [25])

· In section 65(1) of the Lawyers Act, the term“liable” means legally liable or responsible, that is liable or responsible by law. Such liability may be pursuant to a Court Order; a principle of law or by a Statute (at [28]).

· Mr O’Neil and Mr Marape failed to show how they are liable to pay the Bill of Costs of Paraka as the bills were charged to the State (at [28]).

· Even if the Plaintiffs are proper persons under Section 65 (1) to apply for taxation, they are required to establish “special circumstances” (at [29]). There was no evidence amounting to special circumstances because:

a) There was no proper basis for the contention that the Attorney General and the Solicitor General had filed to apply for taxation of the Paul Paraka legal bills so as to amount to a special circumstance (at [33]).

b) Taxation was not the only way the validity of the bills could be determined (at [37]).

c) There would be no criminality if the bills are valid (at [38])..

d) The plaintiffs did not comply with the mandatory requirements of Order 22 Rule 47 of the National Court Rules in that they had failed to annex to the application the bills to be taxed. (at [40]).

9. His Honour below then considered the issue of balance of convenience. After extensive discussion, he...