Marape v O'Neill [2016] PGSC 18; SC1493 (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 22^nd,
: April 5^th

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 23^rd October 2014

Overseas Cases

American Cyanamid Co. (No. 1) v. Ethicon Ltd [1975] UKHL 1; [1975] AC 396
In Re the Will of Gilbert [1946] NSWStRp 24; [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

5^th 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 14^th 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 15^th 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 6^th June 2014 resulting in the dissolution of the restraining orders.

The Order Appealed

6. On 17^th 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 17^th 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 18^th 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 25^th June 2014 the primary judge ordered:

a) The matter be adjourned to 1:30pm on 27^th 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 25^th 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 27^th 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 27^th 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 1^st 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, extract of submissions of the appellant, outlines of submissions of the first and fourth respondents, and submissions of the sixth and seventh respondents are annexures “B”, “C”, “D” and “E” to this decision respectively.

(The annexures referred to are not reproduced in this report of the decision)

14. Counsel for the appellant made written and oral submissions but did not specifically address the grounds of appeal. In essence his submissions are that the appeal should be allowed as:

a) The payment of K71.8 million to Paraka raises very serious issues that need to be properly addressed;

b) The issue of whether the money paid on account of legal fees for legal services rendered to the State by Paraka has not yet been determined by a Court. Until that occurs, it is not known whether the payments were fraudulent;

c) A taxation of the bills of costs will determine this issue. Until the proposed taxation is concluded the appellant should not be arrested and the status quo maintained;

d) The balance of convenience favours the grant of an interim injunction as no harm will be caused to the Police, and damages are not appropriate.

15. Counsel for the Prime Minister supported by counsel for the Attorney General and the State, and counsel for the Royal Papua New Guinea Constabulary, submitted that the appeal should be allowed as amongst others the primary judge erred in:

a) Failing to find that there was an arguable case or serious question to be tried;

b) Incorrectly stating and therefore incorrectly applying the relevant and correct principle in relation to the grant of an interlocutory injunction by stating that it is necessary for an applicant to prove that there are, “good prospects of success” instead of “an arguable case”;

c) Not giving sufficient weight to the orders being sought by consent of the parties and by the Commissioner of Police seeking the orders in support of his superintendence and organisation of the Police Force;

d) Incorrectly interpreting sections 63 and 65 Lawyers Act, finding that the plaintiffs have no standing and that they were no “special circumstances”;

e) his consideration of the balance of convenience.

16. Counsel for Paraka submitted that the primary judge did not err in his consideration of whether there was a serious question to be tried and that his ruling should be adopted.

17. Messrs Damaru and Gitua submitted that the appeal should be dismissed as amongst others:

a) OS 115/14 is an abuse of process as it is an attempt to invoke the National Court’s civil jurisdiction to restrain constitutional functions of the police, contrary to the principles in Wartoto v. State (2015) SC1411, and the legal bills sought to be taxed are the subject of criminal investigation or proceedings: Pundi v. Rupen (2015) SC1430;

b) All of 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.

Appeal from discretionary judgment

18. This Court’s role in an appeal from an exercise of judicial discretion is considered in Curtain Bros (PNG) Ltd v. UPNG (2005) SC788. We agree with and respectfully reproduce the following passage from that decision:

“The appellant Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of that discretion is clearly wrong. A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is “unreasonable or plainly unjust” and such that an error can be inferred. These principles are well established. We adopt a passage from Kitto J in the Australian High Court case of Australia Coal and Shale Employees’ Union v The Commonwealth [1953] HCA 25; (1956) 94 C.L.R. 621 at p.627, which was adopted by Clarkson J. in Breckwoldt & Co. (N.G.) Pty Ltd v. Gnoyke [1974] PNGLR 106 at p.112 – 113:

“The decision by the primary judge to stay the action was made in exercise of a judicial discretion and I accept that in those circumstances the principles on which this Court should act are as described by Kitto J. in Australian Coal and Shale Employees’ Union v The Commonwealth ... the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgements is that there is a strong presumption in favour of the correctness of the decisions appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance...”

19. This passage has been agreed with an adopted by this Court in amongst others, the decisions of State v. Central Provincial Government (2009) SC977 and Mango v. Passismanua Inland Resource Ltd (2009) SC1163 and Ron Napitalai v. PNG Ports Corporation Ltd & Ors (2010) SC1016.

20. We also make reference to the following passage of Jordan J. in the case of In Re the Will of Gilbert [1946] NSWStRp 24; [1946] 46 SR (NSW) 318 which was reproduced with approval in the majority decisions of this Court in Sir Julius Chan v. The Ombudsman Commission of Papua New Guinea [1999] PNGLR 240 and Ramu Nico Management (MCC) Ltd v. Tarsie (2010) SC1075:

“I am of the opinion that ......there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges at first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercise of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”

Consideration

21. “The first object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; ........”

“The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried.”

22. These are statements made by Lord Diplock in the seminal House of Lord’s decision of American Cyanamid Co. (No. 1) v. Ethicon Ltd [1975] UKHL 1; [1975] AC 396. The principles contained in the speech of Lord Diplock pursuant to which a court can grant an interlocutory injunction have been followed on many occasions in this jurisdiction. They have been cited with approval by this Court in Craftworks Niugini Pty Ltd v. Allan Mott (1997) SC525 and reaffirmed in Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853.

23. Essential elements of the above statements of Lord Diplock are that the plaintiff must have a right, in an action and that there is a serious question to be tried.

24. To determine if these elements exist, the originating process, in this instance the Originating Summons, must be considered. The first five paragraphs of the Originating Summons seek orders and a declaration in respect of certain paid bills of costs of Paraka to the State and their taxation.

25. Apart from these five paragraphs, no other substantive relief is specifically sought in the Originating Summons. The remaining paragraphs of the Originating Summons seek an interim injunction, such further or other orders, and the costs of the proceedings.

26. It is in this context that the proposed consent order that was put before the primary judge for his endorsement is to be considered. It should be mentioned at this juncture that all the parties, as we understand, are of the correct view that the fact that the proposed order was by consent, did not remove the primary Judge’s discretion in considering whether to grant the interlocutory injunctive orders sought and endorse the proposed consent orders.

27. The rights in the action of Mr. Marape asserted in the Originating Summons are for certain Paraka bills of costs to be taxed, that Paraka file bills of costs in taxable form, that Paraka reimburse any sum paid in excess of the certified amount of the bills and that any amounts paid in excess of the certified amount of the bills be declared not rendered unlawful or illegal.

28. As to the requirements of an originating document we reproduce a passage from this Court’s decision in Tigam Malewo v. Keith Faulkner (2009) SC960:

“As Cannings J pointed out in Kiee Toap v The State and Others (2004) N2766 whenever a person brings a case to court, the originating document must demonstrate that the plaintiff has a cause of action. The document must clearly set out:

· the legal ingredients or the elements of the claim; and

· the facts that support each element of the claim.

If the plaintiff’s originating document does that, there is a reasonable cause of action. If not, it does not disclose a reasonable cause of action.”

29. Although the primary judge concluded that there were no serious questions to be tried, this Court in James Marape v. Peter O’Neill (2014) SC1378 stated that: “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” ...... and that “.... there may be serious issues to be tried.”

30. In this regard we mention that the decisions of this Court in Marape v. O’Neill (supra) and James Marape v. Peter O’Neill (2014) unreported SCA 87/14 delivered 23^rd October 2014, were specifically concerned with the grant of injunctive relief in this court pending the hearing of this appeal.

31. Notwithstanding however, that there are the rights of action in respect of the bills of costs asserted in the Originating Summons, there is no assertion of right or any claim made or any cause of action demonstrated, whether it be for instance, abuse of process or abuse of police powers, against the Police Commissioner, members of the Royal Papua New Guinea Constabulary, the State or police officers attached to Task Force Sweep or Task Force Sweep, and as such there are no serious questions to be tried that can be established by the plaintiffs against those entities, and on those issues.

32. An interlocutory injunction sought to protect the right of the plaintiffs as asserted in the Originating Summons would in our view be seeking interim or interlocutory orders restraining conduct that may prevent the substantive orders and declaration sought in the Originating Summons being made.

33. The proposed consent orders do not seek such orders. They seek orders to restrain the arrest in respect of any previous payment of Paraka legal bills and the prevention of interference with the investigation of payment of Paraka legal bills. None of the proposed consent orders sought seek to restrain conduct that might prevent the taxation of the Paraka bills of costs occurring and the substantive orders and declaration sought in the Originating Summons being made. The proposed consent orders seek relief in respect of a foreshadowed arrest by Police and interference with an investigation by the Police Commissioner and Police, such arrest, investigation or interference and the propriety thereof not being the subject of any right asserted or complaint made in the Originating Summons.

34. We are satisfied therefore that in refusing to endorse the proposed consent orders and in not granting the interlocutory injunctive relief sought therein, the primary judge’s exercise of his discretion was not clearly wrong and he did not fall into error in that regard. Further, in our view the resulting decision of the primary judge was not unreasonable or plainly unjust, such that an error can be inferred. Given our finding it is not necessary to consider the other submissions of counsel and parties.

Orders

35. The Orders of the Court are:

a) This appeal is dismissed;

b) The interim orders dated 30^th July 2014 and 23^rd October 2014 are discharged;

c) The third, sixth and seventh respondents’ costs of and incidental to this appeal shall be paid by the appellant, first, second, fourth and fifth respondents, to be taxed if not agreed.
_____________________________________________________________
Leo Lawyers: Lawyers for the Appellant
Twivey Lawyers: Lawyers for the First Respondent
Saulep Lawyers: Lawyers for the Second and Fifth Respondents
Paraka Lawyers: Lawyers for the Third Respondent
Tame Lawyers: Lawyers for the Fourth Respondent
Sixth and Seventh Respondents in person