SCM 15 OF 2006; Joshua Kalinoe, Chief Secretary to Government and Gabriel Yer, Acting Secretary for Department of Finance and Simon Tosali, Secretary for the Department of Treasury and the Independent State of Papua New Guinea v Paul Paraka trading as Pual Paraka Lawyers and SCM 03 Of 2007, Hon. Bire Kimisopa, MP Minister for Justice and Winnie Kiap, Secretary National Executive Council and the Independent State of Papua New Guinea v Paul Paraka trading as Paul Paraka Lawyers (2014) SC1366

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Judge: Kandakasi, David, Murray, JJ
• Judgment Date: 10 July 2014
• Citation: (2014) SC1366
• Judgment Number: SC1366
• Year: 2014

Full Title: SCM 15 OF 2006; Joshua Kalinoe, Chief Secretary to Government and Gabriel Yer, Acting Secretary for Department of Finance and Simon Tosali, Secretary for the Department of Treasury and the Independent State of Papua New Guinea v Paul Paraka trading as Pual Paraka Lawyers and SCM 03 Of 2007, Hon. Bire Kimisopa, MP Minister for Justice and Winnie Kiap, Secretary National Executive Council and the Independent State of Papua New Guinea v Paul Paraka trading as Paul Paraka Lawyers (2014) SC1366

Supreme Court: Kandakasi, David, Murray, JJ

Judgment Delivered: 10 July 2014

SC1366

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM 15 OF 2006

JOSHUA KALINOE, CHIEF SECRETARY TO GOVERNMENT

First Appellant

AND:

GABRIEL YER, ACTING SECRETARY FOR DEPARTMENT OF FINANCE

Second Appellant

AND

SIMON TOSALI, SECRETARY FOR THE DEPARTMENT OF TREASURY

Third Appellant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Appellant

AND

PAUL PARAKA trading as PUAL PARAKA LAWYERS

Respondent

AND

SCM 03 OF 2007

HON. BIRE KIMISOPA, MP MINISTER FOR JUSTICE

First Appellant

AND

WINNIE KIAP, SECRETARY NATIONAL EXECUTIVE COUNCIL

Second Appellant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Appellant

AND

PAUL PARAKA trading as PAUL PARAKA LAWYERS

Respondent

Waigani: Kandakasi, David, Murray, JJ.

2014: 30th June

04th July

10th July

CONTRACT LAW - Legal service contract with State or public authority - Application of Public Finance (Management) Act - Need for public tender with terms and conditions on which the State invites tender - Successful tender - Need for contract specifying terms of the contract including price or costs for legal services - Agreements on lawyer professional costs still open to challenge on reasonableness and Court having power to determine issue.

CAUSES OF ACTION - Action to recover a lawyers professional legal costs - Pre-requisites - Costs to be in taxable form - Unless agreed, need for taxation and certificate before commencement of proceedings - Bill of costs to give sufficient detail about work done, time taken and fees charge - Client to be kept inform of legal costs and right to have the lawyers costs taxed - No cause of action accrues to a lawyer unless his bill of costs has been taxed - Lawyer obliged to inform client of clients right to have his lawyers costs taxed and render his bill of costs in taxable form in accordance with the Lawyers Act 1989.

JUDICIAL REVIEW - Leave for - Principles and considerations - kinds of orders and reliefs to be granted at time of granting leaving - Improper to arrive at conclusive determination and grant of substantive reliefs at leave stage - Query whether proper to make orders for payment of certain sums of money within specific time frames and certain manner against the State can be made in judicial review and other proceedings - Such orders inappropriate and improper.

PRACTICE & PROCEDURE - Judicial review - Inappropriate and improper to seek by notice of motion substantive relief and for reliefs not specifically pleaded - Appropriate to grant other reliefs in appropriate cases on proper prove after grant of leave with any consequential reliefs only after grant of substantive relief of judicial review - Orders for payment of certain sums of money being a consequential relief against the State cannot fix time and manner of payment and cannot be granted until after grant of leave and upon grant of judicial review.

PRACTICE & PROCEDURE - Case management - Status conference - purpose of - Court to check and ensure parties are ready for hearing date - Parties obligation -Raise any matter that might prevent hearing from proceeding - Parties may be precluding from raising matters they should have raise at, prior to and soon after status conference.

PRACTICE & PROCEDURE - Adjournments - Law or principles governing - Party seeking adjournment must make proper application with supporting affidavit evidence - Onus on applicant to make a case for adjournment - Applicant onus to demonstrate having taking all steps necessary to prepare for and proceeding with Court fixed event - Failure to - No basis to grant adjournment.

Papua New Guinea Cases Cited:

Joshua Kalinoe & Ors v. Paul Paraka (2007) SC874

Joshua Kalinoe & Ors v. Paul Paraka; Hon Biri Kimisopa & Ors v. Paul Paraka (2010) SC1024

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

Melina Limited trading as CN Mercantile v. Fred Martens (2001) N2183.

OK Tedi Mining Limited v. Niugini Insurance Corporation and Ors (1) [1988-1989] PNGLR 35

Vitus Kais v. Sali Tagau; Tropic Timbers Ltd v. Vitus Kais (2012) N4810

Able Construction Ltd v. W.R. Carpenter Ltd (2014) N5636

Collins v MVIT (1990) PNGLR 580

Ume More v. UPNG [1985] PNGLR 40

PNGBC v Jeff Tole (2002) SC694

Kamali Renali v. Peter Loko (2012) SC1186

Daniel Tulapi v. Steamships Trading Company Ltd (2012) SC1210

Peter Makeng v. Timbers (PNG) Limited (2008) N3317

Jack Livinai Patterson v. National Capital District Commission (2001) N2145

Sarea Soi v Imawe Kewa Land Group Inc (2004) N2560

Marsh v. Haye [1981] PNGLR 392

Tolom Abai and Others v. The State N1762

Dominica Philip v The National Education Board (2008) N4024

Kekedo v. Burns Philp (PNG) Ltd & Others [1988-89] PNGLR 122

Wamp Nga Holdings Ltd v. Popuna Nau (2011) N4378

Gabriel Dusava v The Honourable Madam Justice Teresa Doherty (as she then was) Steven Oli and John Numapo (1999) SC629

Leto Darius v The Commissioner of Police & The State (2001) N2046

Application of Demas Gigimat [1992] PNGLR 322

Isaac Lupari v Sir Michael Somare (2008) N3476

PNG Power Ltd v Ian Augerea (2013) SC1245

Mision Asiki v Manasupe Zurenuoc (2005) SC 797

The State v. Downer Construction (PNG) Ltd (2009) SC979

Frederick Martins Punangi v. Sinai Brown as Minister for Public Service & Ors. (2004) N2661

Ruth Kaurigova v. Dr Russo Perone & Ors (2008) SC964

Jennifer Jean Scott v. Micheal George Scott and Mary Van Duseon (2009) N388

Pansat Communications Pty Limited v. Morea Vele and The Independent State of Papua New Guinea (1999) SC604

Counsel:

P. Mawa, for the Appellants.

H. Nii, for the Respondent.

04th July 2014 (edited and published 10th July 2014)

1. BY THE COURT: These are two separate appeals arising out of two separate proceedings and two separate decisions of the National Court. The decisions concern two separate decisions of public officers or authorities on behalf of the State. The factual background however, is the same and the same legal issues are presented. It is therefore, convenient for us to deal with these appeals together as one save only, to point out the differences where they exist.

Issues for determination

2. Apart from a few factual issues, a number of important substantive and procedural legal issues are presented in this case. We need however to focus on three main issue which are broad enough to cover all of the other issues. The three main issues are:

(1) Can substantive reliefs be sought and granted upon motion at the leave stage in an application for judicial review without such reliefs being specifically sought in the substantive claim?

(2) Is a lawyer entitled to seek and secure judgment for payment of specific sums of money in untaxed professional legal fees against the State without first having his or her costs taxed or without specific agreement on the actual costs?

(3) Can a plaintiff in a judicial review proceeding move for and secure judgment for payment of certain sums of money by the State within a specified time and in a certain manner?

3. These are simple and straight forward issues which could have been determine much earlier but for steps Paraka Lawyers (Paraka) took as will be pointed out in due course, prevented that from happening. At our hearing of these appeals, learned counsel for Paraka did not raise any serious issue on the legal position on each of these questions or issues and indeed most of the State's arguments.

Background and Relevant Facts

4. Before, getting into a consideration and answer to any of the issues, we consider it important that we should set out the relevant background facts, which is simply this. On 19th December 2002, the then Attorney General, the late Francis Damem, began briefing-out to Paraka starting with 56 matters. These were followed by two further briefs-outs of 10 and 100 matters respectively on 23rd March 2004 and 6th December 2004. That brought the total briefs to Paraka to 267 matters. However, for reasons only know to Paraka Lawyers and those involved in its facilitation, the State paid a total of K41, 999, 648.32 to Paraka since 18th September 2002 when a sum of K3, 993, 497.70 was paid. That payment we note was made about two months prior to the first brief out on record dated 19th December 2002.

5. On 6th June 2006, Mr. Joshua Kalinoe, then Chief Secretary to the National Government issued a letter directing Mr. Gabriel Yer, the then Secretary for...