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) SC1493

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn, Makail and Sawong JJ
• Judgment Date: 05 April 2016
• Court: Supreme Court
• Citation: (2016) SC1493
• Year: 2016
• Judgement Number: SC1493

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) SC1493

Supreme Court: Hartshorn, Makail and Sawong JJ

Judgment Delivered: 5 April 2016

SC1493

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

2016: March 22nd,

: April 5th

Appeal

SUPREME COURT - APPEAL - appeal against an order of National Court that refused to grant applications for two interlocutory injunctions – appeal supported by first, second, fourth, and fifth respondents – appellants’ grounds of appeal – consideration of – seventh respondents submission is that the appellant is attempting to invoke the National Court’s civil jurisdiction to restrain constitutional functions of the police and that the grounds of appeal lack merit, and the primary judge did not make any error in his reasoning and determination of the subject of this appeal –primary judge did not err by refusing to endorse the proposed consent orders and in not granting the interlocutory injunctive relief sought - primary judge’s exercise of discretion was not wrong – primary judge did not fall into error – appeal dismissed – appellant, first, second, fourth and fifth respondents to pay costs of third, sixth and seventh respondents

Cases cited:

Papua New Guinea Cases

Craftworks Nuigini Pty Ltd v. Allan Mott (1997) SC525

Sir Julius Chan v. The Ombudsman Commission of Papua New Guinea [1999] PNGLR 240

Curtain Bros (PNG) Ltd v. UPNG (2005) SC788

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

Tigam Malewo v. Keith Faulkner (2009) SC960

State v. Central Provincial Government (2009) SC977

Mango v. Passismanua Inland Resource Ltd (2009) SC1163

Ron Napitalai v. PNG Ports Corporation Ltd & Ors (2010) SC1016

Ramu Nico Management (MCC) Ltd v. Tarsie (2010) SC1075

James Marape v. Peter O’Neill (2014) SC1378

James Marape v. Peter O’Neill (2014) unreported SCA 87/14 delivered 23rd October 2014

Overseas Cases

American Cyanamid Co. (No. 1) v. Ethicon Ltd [1975] AC 396

In Re the Will of Gilbert [1946] 46 SR (NSW) 318

Counsel:

Mr. R. Leo, for the Appellant

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

Mr. R. Saulep, 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

Chief Superintendent M. Damaru, the Sixth Defendant in person

5th April, 2016

1. BY THE COURT: This is a decision on an appeal that is against an order of the National Court that refused to grant applications for two interlocutory injunctions (Order Appealed). The interlocutory injunctions had been sought by consent of the parties and the Commissioner of Police.

2. The appeal is by the Hon. James Marape in his capacity as the Minister for Finance. It is supported by Hon. Peter O’Neill in his capacity as the Prime Minister, the Royal Papua New Guinea Constabulary, the Independent State of Papua New Guinea and the Hon. Ano Pala in his capacity as the Attorney General and Minister for Justice. The appeal is opposed by Paul Paraka trading as Paul Paraka Lawyers (Paraka), Matthew Damaru in his capacity as the Director of the National Fraud and Anti-Corruption Directorate and Timothy Gitua in his capacity as the Deputy Director of that Directorate.

Background

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 Paraka. In those proceedings the plaintiffs sought, amongst others, 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 Paraka, provided to the State and totaling 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. This Originating Summons was filed following the receipt of a letter dated 15th January 2014 from the then Commissioner of Police Toami Kulunga to Mr. Marape inviting Mr. Marape to attend an interview in relation to the 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 had been entered into restraining the police from arresting Mr. Marape and the Prime Minister pending determination of those proceedings. OS No 10 of 2014 was discontinued by consent on 6th June 2014 resulting in the dissolution of the restraining orders.

The Order Appealed

6. On 17th June 2014, the Prime Minister was joined as the second plaintiff to OS115/14 and the State was removed as the second plaintiff. Also on 17th June 2014 the primary judge ordered:

“Until the matter returns to court at 9:30am tomorrow (18. 06.14):

1. Members of the Royal Papua New Guinea Constabulary are restrained from taking any further steps in the investigation against the Plaintiffs in respect of the payment of legal bills of the defendant.

2. The Commissioner of Police and other senior officers of the Royal Papua New Guinea Constabulary are restrained from taking any actions against the members of the Police Force involved in the investigations against the Plaintiffs in respect of any payments of legal bills of the defendant.”

7. On 18th June 2014, the primary judge ordered:

“1. Matter adjourned to 1:30pm on 25. 06. 14.

2. Interim restraining orders are extended until the return date.

3. Each party bear their own costs.”

8. On 25th June 2014 the primary judge ordered:

a) The matter be adjourned to 1:30pm on 27th June 2014 for continuation of the hearing;

b) The earlier interim orders were extended until the adjourned date.

9. The primary judge also decided on 25th June 2014 that he wanted to hear submissions on behalf of the Commissioner of Police. The primary judge said:

“Because the orders sought affected the police powers, I thought that I direct the police to make appearance and address me and - on the matter of jurisdiction of this court in relation to interference with the police functions, I wanted assistance from the police, particularly when there was indication to the court that there were consent orders proposed to be handed up.”

10. On 27th June 2014 the primary judge considered whether interim injunctions should be continued. He had before him proposed consent orders signed by the lawyers for all of the parties to the proceedings and the lawyer for the Royal Papua New Guinea Constabulary. The consent orders sought to be made and endorsed by the primary judge were relevantly:

“1. An interim injunction is issued restraining all officers and Members of the Royal Papua New Guinea Constabulary from arresting the First Plaintiff Second Plaintiff in respect of any previous payment of legal bills of the Defendant until the proceedings herein are determined.

2. 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.”

11. On 27th June 2014 the primary judge ordered:

“1. Matter reserved for Decision to 11:00am on 01.07.14.

2. Interim orders are extended pending the decision.”

12. On 1st July 2014 the primary judge refused to grant the orders sought.

Grounds of appeal and submissions

13. A copy of the Notice of Appeal that contains the Grounds of Appeal is annexure “A” to this decision. Copies of the written,...