Marape v O'Neill [2014] PGSC 30; SC1378 (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] UKHL 1; (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 concluded that in the interest of justice or public interest the balance of convenience favoured the refusal to grant the interim injunctive orders. In reaching his conclusion His Honour said (in summary) as follows.

• Authorities such as S. 197 of the Constitution, Rimbinak Pato v. Anthony Mundjin (1997) PNGLR 6; Pius Nui v. Mas Tandi (2004) N2765; Zachary Gelu v. Sir Michael Somare (2208) N3526; Grand Chief Sir Michael Somare v. Ila Geno (2008) N3406; and Grand Chief Sir Michael Thomas Somare v. Chronox Manek, John Nero, & Phoebe Sangatari as Ombudsman Commisioners & The Ombudsman Commission (2011) SC 1108, are authorities for the proposition that the Court should not readily interfere with the police or other investigative bodies in carrying out a criminal investigation and or exercising the Constitutional functions..... That the Court should do so sparingly and on the clearest of cases of abuse of power by the police (Royale Thompson v. Sylvester Kalaut (2011) N4265 (at [44;45;47;48 & 49])"
  
• There was no evidence of clear abuse of power by the police in conducting the current criminal investigations of the plaintiff or that the investigations are politically motivated (at [52]).
  
• The police are entitled to arrest a person or suspect based on the evidence they posses. The evidence may or may not include any statement from the suspect by way of a record of interview or otherwise (at [53]).
  
• As to the draft Consent Order, His Honour refused to endorse it because;
  

a) The police were not a party to it.

b) It was irrelevant to grant interim orders when the substantive matter is an application for the Court to grant an order for costs.

c) There were no serious questions to be tried in the substantive proceedings (at [57]).

10. A notice of appeal dated 3rd July 2014 was filed on 7th July 2014 in which the appellant claims that His Honour below erred in law and/or mixed fact and law on thirteen grounds. It is unnecessary to restate the grounds of the Appeal for the present purposes.

11. The issue to determine is whether this Court should grant the interim injunctive orders.

Application for interlocutory injunctive relief

12. As to the submissions of Counsel for the applicant, he did not address us on this issue. Instead his submissions were founded on the principles relating to stay applications. Whilst we accept that the effect of a stay order and an interim injunctive order are about the same, different principles apply. The principles relating to grant or refusal of a stay order are quite different to those relating to interim injunctive orders.

13. To that extent, the submissions made by the Appellant's lawyer were irrelevant to the application before us. If it was not for other reasons, to which we will refer to shortly, we would have had no hesitation in refusing the application on that fact alone.

14. The principles upon which the court can grant an interlocutory injunction are well settled. The leading authority is a decision of the House of Lords in American Cyanamid Company v. Ethicon Limited [1975] UKHL 1; (1975) AC 396. This case has been followed on many occasions in this jurisdiction and cited with approval by the Supreme Court in Craftworks Nuigini Pty Ltd v. Allan Mott (1997) SC 525. These principles have been reaffirmed by the Supreme Court in Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853.

15. In Chief Collector of Taxes v. Bougainville Copper Limited [2007] SC 853, the Supreme Court said at 31:

"In our jurisdiction the principles relevant to injunctive reliefs (sic) are well settled. In Golobadana No. 35 v. Bank of South Pacific, Kandakasi J. ... concluded as follows:

"A reading of these authorities shows consistency or agreement in all of the authorities that the grant of an injunctive relief is an equitable remedy and it is a discretionary matter. The authorities also agree that before there can be a grant of such a relief, the Court must be satisfied that there is a serious question to be determined on the substantive proceedings. This is to ensure that such a relief is granted only in cases where the Court is satisfied that there is a serious question of law or fact raised in the substantive claim. The authorities also agree that the balance of convenience must favour a grant or continuity of such a relief to maintain the status quo. Further, the authorities agree that, if damages could adequately compensate the applicant then an injunctive order should not be granted"."

16. Similarly, in Ramu Nico Management (MCC) Limited and Ors v Tarsie and Ors (2010) SC1075 at 53, in a decision in which Hartshorn J. dissented on matters not currently relevant, he said:

"The law on injunctions is settled in this jurisdiction. Injunction is an equitable remedy. It is a matter for the discretion of the Court to refuse or grant the relief sought. In order for an injunction to be granted, the applicant must demonstrate to the Court that there is a serious case to be tried on the substantive proceedings. The leading authority is a decision of the House of Lords in "American Cyanamid Company v Ethicon Limited (1975) 1 All ER 594. This case has been followed on many occasions in this jurisdiction and cited with approval by the Supreme Court in Craftworks Niugini Pty Ltd v Allan Mott (1997) SC525 and Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853."

17. The first consideration is whether the applicant has a serious question to be tried. A serious question to be tried has been interpreted to mean:

"What the plaintiff must prove is that he has a serious, not a speculative case which has a real possibility of ultimate success....": Robinson v. National Airlines Commission [1983] PNGLR 478 and

"..... a strong case which, on the evidence presented would support a permanent injunction" :Markscal Ltd v. MRDC [1996] PNGLR 419.

18. The applicant has filed affidavits in support of his application. As to the court's consideration of that evidence at this stage, we are mindful of the words of Lord Diplock in American Cyanamid (supra):

It is not part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations.

19. As to whether there are serious issues to be tried in the substantive proceedings, the grounds raised in the Notice of Appeal raise numerous errors alleged to have been made by the learned trial Judge. The submissions from counsel for the applicant, the Prime Minister, the Royal Constabulary and the State are that there are serious issues to be tried in the substantive proceedings.

20. We agree. One of the serious grounds raised in the Notice of the Appeal is the proper interpretation and or application of sections 63 and 65 Lawyers Act. There are also other grounds in the Notice of Appeal which taken individually or collectively demonstrate that there may be serious issues to be tried.

21. In any event however, given, amongst others, the necessity to deliver a quick ruling on this application, we will not consider further whether the applicant has established that he has a serious question to be tried. We will presume only for present purposes that he has.

22. Given this, the next consideration is whether the applicant would be adequately compensated in damages. If damages would be an adequate remedy then even if there is a serious question to be tried interlocutory injunctive relief should be refused: Airlines of PNG v. Air Niugini Ltd (2010) N4047 at 22 and 23 and PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126 at 30.

23. The rationale for the court considering whether damages would be an adequate remedy was explained by Lord Diplock in American Cyamamid (supra) at 408:

"[t]he court should go on to consider whether, if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant's continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages... would be an adequate remedy and the defendant would be in a financial position to pay them, no interim injunction should normally be granted, however strong the claimant's claim appeared to be at that stage."

24. The consideration is whether damages would compensate the applicant should it be found that his legal rights have been infringed by the party he is seeking to enjoin: Employers Federation of Papua New Guinea v. Papua New Guinea Waterside Workers and Seaman's Union and Arbitration Tribunal (1982) N393, 3-4.

25. In Airlines PNG v. Air Niugini (supra), Hartshorn J. refused to grant injunctive relief as he was satisfied that any loss suffered by Airlines PNG would be able to be quantified and that it had not been shown that damages would not be an adequate remedy.

26. We also refer to Ramu Nico v. Tarsie (supra) in which it was said at 53:

"The authorities also agree that once it has been determined that there is a serious question to be tried, if damages could adequately compensate the applicant, the injunction should not be granted: Golobadana No. 35 Ltd v Bank of South Pacific Ltd (2002) N2309, Ewassa Landowners Association Incorporated v Hargy Oil Palms Limited (2005) N2878, Gobe Hongu Limited v The National Executive Council & Ors (1999) N1920."

27. Damages in this instance should be an adequate remedy. This is because, as Hartshorn J said in Grand Chief Sir Michael Somare v. Ila Geno (2008) N3406:

"if the Plaintiff was successful in enforcing his rights under for instance, ss.57, 58 Constitution, one of the remedies to which he could be entitled is compensation. It has long been the case that if a plaintiff is successful in an action for defamation as his reputation is likely to be injured or he is likely to be injured in his profession or trade, he will be awarded damages. This is seen as being an appropriate remedy."

28. Damages are also the appropriate remedy for a successful action for malicious prosecution. The same principle should apply here especially as a person tasked with performing functions under a law such as a police officer, should not be restrained in the performance of his duties

29. When the above is considered in relation to the Royal Papua New Guinea Police Constabulary, it is on the assumption that the Police Force is an effective, united and disciplined force under the command and control of the Police Commissioner and consists of policemen and women who perform their duties and functions with professionalism and integrity. Further, it is assumed that policemen and women will exercise their powers on a proper legal basis. An unlawful and improper arrest is assumed unlikely to occur.

30. We have however, heard submissions from counsel for the applicant, the Royal Constabulary, the Prime Minister and the State which to say the least, are disturbing, distressing and saddening. They are amongst others, that the lawyer for the Acting Police Commissioner was assaulted in the precincts of this court by other policemen, the Acting Police Commissioner has been charged with two offences by other policemen, that he is unable to properly perform his constitutional duties to control the Police Force and that he has issued orders which have been ignored or contravened. In effect the Acting Police Commissioner seeks this Courts intervention to perform his functions as he is unable to perform them himself. Further, it was submitted that it is necessary that the interim relief sought is granted not only for the protection of the applicant, but in the interests of Papua New Guinea.

31. The evidence before us, is that the Acting Police Commissioner is not able to effectively perform his constitutional duties or functions as Acting Police Commissioner as he has been charged with abuse of office of the Police Commissioner and of perverting the course of justice and that the charges have created animosity and division amongst members of the Police Force. Further, the Acting Police Commissioner deposes that he needs sufficient time to restore the integrity and reputation of the office of the Commissioner and also the Police Force.

32. Also, with the consent of the parties we were shown a list of all of the various court proceedings which have been commenced that amongst others involve members or former members of the Police Force who have taken a position contrary to that of the Acting Police Commissioner, as evidence of a split or division in the Police Force.

33. From the evidence of the Acting Police Commissioner relied on by counsel for the applicant, the Prime Minster, the State, and the Royal Constabulary, we can conclude that if the Acting Police Commissioner requires sufficient time to restore the integrity and reputation of the Police Force, they all believe that any integrity and reputation that the Police Force has, needs to be restored.

34. Given that the Acting Police Commissioner's evidence relied upon by the applicant, the Prime Minister and the State, is that the integrity and reputation of the Police Force has to be restored, that there are divisions in the Police Force, and that the Acting Police Commissioner is unable to perform his constitutional duties and functions, which includes commanding and controlling the Police Force, and that he himself has been charged with offences, we are of the view that there is small justification for the belief that if indeed the applicant was arrested, that such arrest would be performed properly in accordance with the law, and not because the particular policeman or woman who performed the arrest was motivated by other improper reasons.

35. Notwithstanding that damages should be an adequate remedy for any unlawful or improper arrest, given the present state of the Police Force, that is lacking in integrity and reputation, which is split and divided and which is unable to be controlled by the Acting Police Commissioner, we are of the view that there is more than a likelihood that the applicant will be subject to an arrest that is unlawful or improper. No citizen of this country, regardless of any position that he may hold, should have to live in fear of such treatment from a supposedly disciplined force. In these circumstances, we are of the view that damages would not be an adequate remedy. We are also satisfied for the above reasons that the balance of convenience favours the interim relief sought being granted.

36. Consequently, the application for the interim injunction contained in paragraph one of the Amended Application of the Appellant filed 11th July 2014 is granted. Given that all of the parties consented to the application, each of the parties shall pay their own costs.
_____________________________________________________________

Leo Lawyers: Lawyers for the Appellant
Twivey Lawyers: Lawyers for the First Respondent
Kombri Lawyers: Lawyers for the Second Respondent
Bonner Lawyers: Lawyers for the Third Respondent
Saulep Lawyers: Lawyers for the Fourth Respondent