POST ANALYSIS OF PMS CASE - Part - TopicsExpress

POST ANALYSIS OF PMS CASE - Part 2 ///////////////////////////////////////////////////////////////////////////////////////////////////////////////////// Part 1 of my first article went through the events leading up to Fridays hearing. Where for the first time in legal history and what seems only in PNG five lawyers in a single court room all arguing in support of the same application and agreeing on the same issue. Begs the question why the other four lawyers bothered to make an appearance if theres no one to argue against it. I was tempted to draw analogy (compare) to circus and clowns (white faces/red noses) but because it relates to the Court I respectfully reconsidered. Before I continue from where I left off let me first take two steps back to explain why five lawyers were in court in the first place. Before police served the PM the arrest warrants on Monday 16th June 2014 there was a legal case on foot (under way) in the National Court. James Marape filed proceedings together with the State (State Solicitor/Govt Lawyer) against Paul Paraka Lawyers to have the legal fees that were paid to the firm over the years including K71.8m allegedly authorised by the Prime Minister be taxed (taxation). Taxation is the term used for the process of reviewing legal fees or costs after a case has been determined by the Court and costs awarded to the winning party. Remember two parties will typically go to court and both will incur legal costs for engaging a lawyer to represent them. In some cases one party may engage a top shot lawyer who charges up to K2,000 an hour for their time while the other engages a backstreet/bush lawyer whos hourly rate is K100. Assuming the highly paid lawyer wins the case for his client and the judge awards costs in his favour. But because the court is unaware of the costs at the time of the judgement the Judge will typically always state if parties cant agree on costs then they may apply for taxation. Taxed costs are costs based on the Court rates. Just because a losing party is ordered to pay costs doesnt mean he/she has to pay the real costs of the other party. So if a top shot lawyer whos hourly rate is K2,000 per hour and he spends 100 hours on your case. Researching case law, preparing court documents and appearing in court he may charge you K200,000. (K2,000 x 100 hours). Where a backstreet/bush lawyer whos rate is only K100 may charge only K10,000 (K100 @ 100 hours). Obviously the losing party can not afford to pay K200,000 on top of his own costs so he will go back to court and file a motion for taxation of the legal costs he has been ordered to pay. The Court will then order the Sheriff (court officer) to assess the costs to determine the cost on the rates set by the Court This would involve going through the fees and itemizing the hours spent in Court and on the case. Then apply the rates of the Court. Example in my election petition case the rates for pre-trial matters K450 per hour, rates for letters (K50/K25) phone calls etc. The Sheriff will confirm the fees the losing party will have to pay determined by the Court which could be half if not less of the real costs. In the example assuming after taxation the legal costs amount to only K20,000. So it doesnt always pay to get a top shot lawyer thinking if you win your case the other party will pay all of your costs. In the example the winning party only recovered 10% of his costs and lost K180,000 in the process. Back to the Paraka case, Its alleged the State (Govt) paid Paraka Lawyers 10s if not 100s of millions of Kina over the years for representing the State by providing legal representation not only in defence of bogus (false) claims against the State but also legal representation for criminals or those charged with criminal offences. By law every person arrested and charged by Police is entitled to free legal representation (Public Solicitor). But because of the shortage of lawyers Paul Paraka was taking up these cases and charging fees at commercial rates to the Govt. When the Govt should have just employed more lawyers to represent them and paid them fortnightly wages for their employment saving millions of public/tax payers money. Not to dwell into the whole Paraka issue that requires an article of its own. Back to the issue so the Finance Department has been issuing payments to Paraka without ever taxing or properly assessing the fees and instead paying them based on bulk billing, one-line amounts no details of costs, hours etc ever properly assessed. For some unknown reason Marabe who was also been implicated/interviewed in the K71.8m Parakagate scandal has now sought to have the National Court tax the fees already to paid to Paraka Lawyers. One can argue its a ploy by lawyers to try and get the court rule K71.8m paid to Paraka was in fact legal thus there can be no charge for corruption or misappropriation against the PM or Marabe. When the Prime Minister was served the arrest warrants his lawyers filed an application to join these proceedings. The reason is unknown but can be speculated because the K71.8m is before the court they thought to rely on the argument the Judge should grant a stay arrest until the court can assess the fees and determine if they are in fact illegal. The unusual or illogical point in this whole exercise is that the PM has publicly stated he never authorised the K71.8m his signature was forged. If that is the case then the K71.8m payments are illegal and defeats the purpose to have them taxed or assessed in the first place?? A second point is why is Marabe seeking taxation of payments already made to Paraka shouldnt the State have sought taxation before the payments were made not years after??? So in that case you had lawyers representing the James Marabe (1), Acting Solicitor General Jubilee Tindiwe representing the State (2), Lawyer representing Paraka Lawyers Martin Kombri (3), Lawyer representing the PM, Tiffany Nonggor Twivey(4) lawyer representing the Police Sam Boner represented by Queens Council lawyer from Australia Mal Varitimos (5). So back to Queens Council (QC) arguments in Court on Friday, as I explained in his one and half hour submission supporting the Prime Ministers application rather than the interest of Police investigation team, the QC relied on overseas cases where the Courts allowed stay (suspension) on arrest warrants. He also relied on the PM affidavit claiming he would give police a formal interview if the possibility for arrest was removed. QC argued the procedure by Police to first obtain the warrant of arrest before giving him the right to be heard in an interview was abuse of his constitutional rights (Section 59 Principles of Natural Justice). He argued he should have afford the PM an interview then after hearing the PMs side of the story if they still believed him to be guilty apply for arrest warrants and charge him. Police already presumed the PM was guilty thus denying him natural justice. Following OC arguments PMs Lawyer Ms. Twivey added that there was an internal division in the Police Force. Mr. Vaki was the duly appointed Commissioner of Police and should afforded recognition yet Police members referring to Eluh and others sitting behind her were rogue members of force that effected Vakis arrest. The Court must intervene to prevent further division and tension that would lead to Civil unrest. She said this was supported by reports of planned mass protests and that Keregna Kuas supporters would shut down the highlands highway over his sacking. The judge said he was still to be convinced by the arguments by the QC. He put the question to the OC is there any case law (previous court ruling) in PNG that support the view the Court has jurisdiction (power) to interferer with Police constitutional powers to investigate and arrest. The QC made reference to Rimbink Pato case. In the Pato case Rimink Pato successfully obtained a stay order against his arrest in a election related matter back in 1997. The same Judge later struck out the stay order. Mr Pato then took the matter to Supreme Court. The Supreme Court (three man bench) dismissed Patos case and held the view. He (Patos) rights,whatsoever they may be, in respect of a criminal prosecution are protected by the Constitution. If he claims such rights are violated, he has recourse pursuant to s.57 Constitution. We can’t see how he can suppress and prevent, by injunction, a criminal investigation by police, which is a constitutional function. With respect, the applicant’s case in a nutshell, is simply that he does not want to be investigated and arrested for whatever reasons the police might have, and just because he does not want that to happen to him, he cannot be justified in continuing the interlocutory injunction against the respondents. It is analogous to a Judge being restrained from dealing with a persons case because that person does not like to be dealt with by the Judge It is our view that the restraining order against the police, is not only outrageous and spurious, but an interference with the constitutional function of the police The second argument the QC relied on being the overseas cases, the Court in PNG is not bound to follow case law in other countries they only provide persuasive value to a Judge should he wish to adopt it as his own ruling if he believes it would do justice in the circumstances. Otherwise the Constitution schedule 2.5.9 All decisions of law are bound by decisions of a higher court. Meaning the District Court is bound to follow decisions of the National & Supreme Courts. The National Court is bound to follow decisions of the Supreme Court. A Supreme Court single judge is bound to follow ruling of a three man bench and three man to five etc. ...... to be continued. pictures PM Paul Paraka - James Marabe - Geoffrey Vaki Tiffany Twivey - Sam Bonner - QC Mal Viritimos