SCA 87 of 2014; Hon. James Marape in his capacity as Minister for Finance v Hon. Peter O’Neill in his capacity as Prime Minister and Hon. Ano Pala, Attorney General & Minister for Justice and Paul Paraka trading as Paul Paraka Lawyers and Royal Constabulary of PNG and The Independent State of Papua New Guinea and Matthew Damaru, as the Director of National Fraud & Anti-Corruption Directorate and Timothy Gitua, as the Deputy Director National Fraud & Anti-Corruption Directorate (2016) SC1492

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn, Makail and Sawong JJ
• Judgment Date: 18 March 2016
• Court: Supreme Court
• Citation: (2016) SC1492
• Year: 2016
• Judgement Number: SC1492

Full Title: SCA 87 of 2014; Hon. James Marape in his capacity as Minister for Finance v Hon. Peter O’Neill in his capacity as Prime Minister and Hon. Ano Pala, Attorney General & Minister for Justice and Paul Paraka trading as Paul Paraka Lawyers and Royal Constabulary of PNG and The Independent State of Papua New Guinea and Matthew Damaru, as the Director of National Fraud & Anti-Corruption Directorate and Timothy Gitua, as the Deputy Director National Fraud & Anti-Corruption Directorate (2016) SC1492

Supreme Court: Hartshorn, Makail and Sawong JJ

Judgment Delivered: 18 March 2016

SC1492

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 87 of 2014

BETWEEN:

HON. JAMES MARAPE in his capacity as Minister for Finance

Appellant

AND:

HON. PETER O’NEILL in his capacity as Prime Minister

First Respondent

AND:

HON. ANO PALA, Attorney General & Minister for Justice

Second Respondent

AND:

PAUL PARAKA trading as Paul Paraka Lawyers

Third Respondent

AND:

ROYAL CONSTABULARY OF PNG

Fourth Respondent

AND:

THE INDEPENDENT STATE OF

PAPUA NEW GUINEA

Fifth Respondent

AND:

MATTHEW DAMARU, as the Director of National

Fraud & Anti-Corruption Directorate

Sixth Respondent

AND:

TIMOTHY GITUA, as the Deputy Director National

Fraud & Anti-Corruption Directorate

Seventh Respondent

Waigani: Hartshorn, Makail and Sawong JJ

2015: 17th November,

2016: 18th March

SUPREME COURT – Application to discharge order of single Judge - Referral of two lawyers to Lawyers Statutory Committee for disciplinary action – Alleged improper conduct by lawyers – Grounds of – Alleged breach of natural justice and procedural fairness – Denial of right to be heard – Constitution – Section 59 – Supreme Court Rules – rules 25 and 26

PROFESSIONAL CONDUCT – Lawyers conduct – Improper conduct – Conduct arising from legal proceedings – Conduct amounting to collusion to pervert the course of justice – Referral by judge constituted a complaint – Lawyers Act, 1986 – Sections 48, 49, 50, 51, 52, 53, 54, 55, 57, 58 & 59 – Professional Conduct Rules, 1989 – Rule 15

Cases cited:

Papua New Guinea cases:

C L Toulik Business Consultant Ltd v. Kuek (2006) SC876

James Marape v. Peter O’Neill (2015) SC1458

John Bedford Bray v. Susan Kupa Derks (2008) N3483

Madang Development Corporation Limited v. Radtrad Madang Limited (2013) N5259

Rimbink Pato v. Reuben Kaiulo & Ors (2003) N2455

Simon Ketan v. PNG Law Society (2002) N2290

Spirit Haus Limited v. Robert Marshall (2004) N2630

Yakasa v. Piso (2014) SC1330

Overseas cases:

Ainsworth v. Criminal Justice Commission (1992) 175 CLR 564

Evan Rees v. Richard Crane [1994] 2 AC 173

Re Sandbrook Solicitors [2015] EWHC 2473

Counsel:

Mr. R. Leo, for the Appellant

Mr. M.M. Varitimos QC and Mr. D. Kipa, for the First Respondent

Mr. J. Umbu, for the Second and Fifth Respondents

Mr. R. Kasito, for the Third Respondent

Mr. I.R. Molloy, and Mr. N. Tame for the Fourth Respondent

Mr. G. M. Egan and Mr. M. Nale, for the Sixth and Seventh Respondents

18th March, 2016

1. HARTSHORN J: (Dissenting) This is a decision on an application by the first respondent to review the decision of Kirriwom J sitting as a single judge of the Supreme Court. The part of the decision of Kirriwom J that this decision is concerned with is in respect of His Honour’s decision to refer Ms. Tiffany Twivey to the lawyers Statutory Committee. As His Honour’s decision to refer was also in respect of Mr. Sam Bonner, I will treat the application as though it refers to both lawyers. The specific question is whether those lawyers should have been accorded natural justice and procedural fairness before they were referred.

2. The appellant, second respondent, fourth respondent and fifth respondent support this application, the third respondent takes no position and the sixth and seventh respondents oppose this application.

Background

4. Kirriwom J heard an application by the fourth respondent for interim injunctions. His Honour published his Ruling in the matter and refused the interim injunctions sought. Another decision of this Court has considered a review of His Honour’s decision in that regard.

5. His Honour in his Ruling also found that at pages 30 – 31:

“In this case lawyers for the Fourth Respondent Sam Bonner and the First Respondent Ms Twivey could be guilty of collusion in perverting the course of justice where they filed application in the District Court and signed consent judgment setting aside the warrant of Arrest of Dairi Vele without notifying Detective Chief Inspector Gitua who was the complainant in the proceeding before the District Court in this matter and who was by virtue of being the Complainant was a party in the case. And they did so by removing Timothy Gitua’s name as the Informant and replaced it with Royal PNG Constabulary. Is that standard practice in the Police force? No it is not. And Mr Sam Bonner someone who spent so many years with Police Force as career policeman and lawyer ought to know this very well. That is the way it has always been and that was the only way to deal with this matter. By deliberately changing the name of the case halfway through the proceeding, actions of these very experienced and senior lawyers can only be described as deliberate act by them to avoid opposition from the Sixth and Seventh Respondents. I am given no choice but to refer both lawyers to the Lawyers Statutory Committee for disciplinary action. As to how the Sixth and Seventh Respondents wish to take this matter further I leave to them.”

6. In essence, His Honour made a direction referring both lawyers to the Lawyers Statutory Committee for disciplinary action.

7. In evidence is a letter signed by His Honour, on official Chambers letterhead, dated 27th August 2015, entitled “Referral of lawyers Sam Bonner and Tiffany Twivey.” The letter referred to the Supreme Court decision delivered by His Honour and attached a copy of the judgment. In the letter it was stated amongst other that, “… I undertook to refer to (sic) senior lawyers ….. for conduct which I found to be unethical, unprofessional and could very well amount to perverting the course of justice.” Then later, “This is a very deceitful conduct or practice by two (2) very senior lawyers….”

8. His Honour went on to state, in bold type, “it smacks of deliberate acts perpetrated with malice to defeat the course of justice”.

Power to review the referral to the Lawyers Statutory Committee

9. The jurisdiction to review is afforded by Order 11 Rule 25 Supreme Court Rules which provides that amongst others, a party dissatisfied with a direction or order given by a Judge under these rules or Section 5 of the Act may apply to the Court which may make such order as appears just.

10. Section 5 (1) (a) Supreme Court Act provides amongst others that where an appeal is pending before the Supreme Court, a direction not involving the decision on the appeal may be made by a Judge.

11. The direction of Kirriwom J that the two lawyers be referred to the Lawyers Statutory Committee was made when an appeal was pending, but was not a decision involving the decision on appeal. It accordingly falls within s. 5 (1) (a) Supreme Court Act.

12. I am satisfied that the direction that the two lawyers be referred to the Lawyers Statutory Committee was made under s. 5 Supreme Court Act and, pursuant to Order 11 Rule 25 Supreme Court Rules, was open to challenge.

13. I refer to this Court’s decision of James Marape v. Peter O’Neill (2015) SC1458 and its consideration of applications made pursuant to Order 11 Rules 25 and 26 Supreme Court Rules. In accordance with the observations made in that decision, I am satisfied that the notice of motion as amended and the application contained therein meet the requirements of those Rules.

Referral of lawyers to the Lawyers Statutory Committee

14. The first respondent contends that before Kirriwom J referred the two lawyers to the Lawyers Statutory Committee he should have accorded them natural justice and procedural fairness.

15. The fourth respondent contends that Kirriwom J acted without hearing any submissions on the question of whether the two lawyers should have been referred to the Lawyers Statutory Committee and without giving Mr. Bonner and Ms. Twivey a reasonable opportunity to be heard. This is contrary to s. 59 Constitution. It does not matter that the two lawyers will have an opportunity to be heard before the Lawyers Statutory Committee it is contended.

16. Further, as the pronouncement of Kirriwom J was public, will remain in the public record and was made with the authority of a senior Supreme and National Court Judge, it was unfair that the two lawyers were not first given any opportunity to be heard.

17. The sixth and seventh respondents contend that:

a) the application concerning the referral of the two lawyers is an abuse of process: Ketan v. Lawyers Statutory Committee (2002) N2290;

b) as Kirriwom J has acted judicially, it is for the Lawyers Statutory Committee to decide;

c) the fourth respondent has not applied to become a party to this proceeding and it is not their fight in any...