Susan Merrell




A RECENT SALVO FROM THE AUSTRALIAN NEWSPAPER last month expressed outrage at the amount of money that has been paid out in compensation claims by the Papua New Guinea government. 
The journalist claims that: “A cabal of top public servants and lawyers have hijacked Papua New Guinea’s chequebook, plundering more than $300 million through sham compensation claims.” 
The ‘Finance Inquiry’ of the Papua New Guinea government was instrumental in uncovering this. Yet the big question is whether the inquiry will lay the blame at the right doorstep or whether this very expensive report, estimated at costing more than K30 million, will merely provide scapegoats.
For instance, take the compensation claim brought against the State in the early 2000s by MP Andrew, Member for Port Moresby North East, investigated by the inquiry. 
The state had cancelled Mald’s licence to occupy a particular piece of land. 
Mald believed he had an unrescindable title and was seeking compensation.  
Not being a lawyer, I couldn’t comment on whether he had a valid compensation claim, suffice to say he thought he had and decided to pursue it lawfully through the courts. 
He employed PNG lawyer Peter Pena to act on his behalf.
I can only imagine Pena’s delight when lawyers for the State and Department of Lands failed to file a defence within the prescribed time allowed by the Rules of the Court. 
The case was won by default with minimum effort.  What’s more, while Mald waited for a Default Judgment, the lawyers for the State still produced no defence – they could, and even maybe should have.
Mald and Pena are just two of the people the Inquiry has named as having a case to answer. But why?  Mald did what he was entitled to do under PNG law: Pena did his job - also within those laws.
It was the lawyers for the State, Maladinas, (now known as Young and Williams) who didn’t do theirs. 
Why didn’t they rigorously defend the action? Surely the state’s lawyers are versed in the adversarial nature of Papua New Guinea’s judicial system – you lay down and die, you lose.
Were Maladinas incompetent, negligent or worse?
It’s true that a hotel group coveted the land in question. It’s also true that Maladinas represented the covetous hotel group as well as the state.
Furthermore, prior to his appointment as one of the three arbiters of the inquiry, Maurice Sheehan was also, amongst other things, a consultant to Maladinas. There was a series of incestuous relationships - even the Managing Director of the hotel group was on the State Physical Planning Board.
If, for instance, the lawyers for the State deliberately threw the court case against Mald (which at this stage is conjecture) it would pave the way for their other client’s (the hotel group) speedy acquisition of the land. It’s a plausible explanation.  Certainly, had they defended the matter vigorously in court on behalf of the state, the resolution of the claim could have gone on for years; the land tied up until the case resolved. 
There’s a clear conflict of interest here. Think of it as a soccer game – an adversarial sport. 
Mald’s team was playing the state.  But there was another team waiting in the wings, (call them the ‘Hotel’ team) which would play the winner of the Mald/State game. The problem was, the players on the State team were the same as those on the Hotel team. 
You’re with me aren’t you? That’s right, if the State team won, it would end up playing itself in the next round.  One answer was for the State team to leave their goal unattended – to throw the match.
It was Pena’s job to win this game for the Mald team. He didn’t have the option of saying “this is too easy, I couldn’t take advantage”. 
He had a job to do. He did his job.  He kicked the goals.
The umpire declared the Mald team the winner and to the victor the spoils.
So let’s talk about the umpire. 
Justice Cathy Davani sat in judgment on the Mald case in her judicial capacity. 
She then reappeared in another capacity as one of the three heads of the Finance Inquiry. In essence, in the Mald case, she was sitting in judgment on herself.
If this particular inquiry has found that Mald and Pena have a case to answer, then the learned Justice has found against herself.
If she doesn’t trust her own judgments, then how can anyone else?
I have to ask: does this sort of thing happen often in PNG? 
Because a similar situation arose earlier this year when the Chief Ombudsman Chronox Manek found that in the Julian Moti matter, Moti had been unlawfully arrested. 
A shame he didn’t know that at the time – he was the public prosecutor.  Ostensibly, he’s found against himself too.
It’s clear that someone should be asked to account for what happened in the Mald case – I’m not sure it should be Mald and Pena. 
On the other hand, lawyers Maladinas have escaped the inquiries censure. 
Why?  It was their inaction that won the case for Mald. It’s fairly clear where the blame lies, even if the motives are less clear.
Surely, Papua New Guinea has enough competent people that conflicts of interest, so rife in this case, shouldn’t occur.
However, as far as corruption is concerned, while people sit in judgment on themselves and advocates are playing two sides against the middle, what can you expect?