Issue 80 - Sept 2017
Diary of your South Pacific Correspondent

png_intro.jpgBy Joe Crowley

In the first week of September 2016, 12 members of the Queensland Bar travelled to Port Moresby for the annual Commercial Litigation Workshop. 2016 marks the fourth year that this program has been run. The group consisted of three silks (Fleming, Crowe and Varitimos), seven senior juniors (Carmody, Skoien, Steele, Porter, Crowley, Blattman and Dollar) and one junior junior (Dane Jones). Saul Holt QC conducted the one-day criminal law workshop on the Friday.

As has been the case for all four workshops Justice John Logan also attended as a presenter and mentor taking a week out of his annual leave (as a Federal Court Judge) so as to be able to attend.

The workshop is funded by the Australian government as part of its aid to the Law and Justice Sector in Papua New Guinea.

On Sunday morning 4 September the barristers were to fly out on the 10.40 am flight to Port Moresby. However, the plane was delayed. Initially the passengers were told there was a delay in loading the catering and the plane would board in 20 minutes. Later the passengers were told it was a “mechanical [long pause] issue” that was being looked into. After an hour the party realized that their flight was not leaving anytime soon when it could be seen from the terminal that the wheel of the plane had been removed and was on the tarmac. The effect of such technical problems was that this flight eventually left at 5:40pm.

Undaunted by this initial setback Andrew Crowe QC took his charges to the palatial Plaza Premium lounge for beers and a few rounds of cards. This skillful nurturing of the group re-established the camaraderie generated on past trips.

The party arrived at their hotel after 9pm and headed straight for bed.

Monday morning bought the start of a grueling week of teaching in the Commercial Litigation Workshop. It runs for 5 days and is delivered to the students of the Legal Training Institute (‘LTI’). The LTI is the organization tasked with providing practical legal training to law graduates as part of the criteria for admission to practice. The Papua New Guineans have a love of ceremony. Every year the LTI and the students organize an official welcome to the Queensland Bar and an opening of the workshop. 2016 was no different with local dignitaries in attendance such as Mr Tauvasa Tanuvasa the Deputy Solicitor General, Teresa Berrigan Team Leader for Cardno (the NGO that administers the logistics of the Queensland Bars visit to PNG) and Mark Bailey a Counselor in the Law and Justice section of the Australian High Commission.

The cultural feature of the opening ceremony was the Asaro Mudmen who led the procession into the main auditorium. The traditional dress of the Mudmen involved the dancers having large masks or helmets traditionally made from white mud (now made out of a plastic) and their bodies painted with white mud. The group consisted of two adults and two children. One of the adults carried a ceremonial bow and arrow. The other had long sharp bamboo talons on the fingers of both hands. The Mudmen were never still, they moved slowly but deliberately around a small area of the car park mimicking traditional hunting. Even when the barristers posed for photos with them they continued to move in their slow stylized and deliberate way.

At the ceremony the Queensland Bar were welcomed to PNG by the Director of the LTI Mrs Pauline Mogish. Mrs Mogish spoke of her initial meeting in Brisbane in 2013 with John Bond QC (as he then was) who was the Queensland bar’s original convenor and was instrumental (along with Justice Logan, Chief Justice Sir Salamo Injia and Mal Varitimos QC) in the development of the workshop.

Mrs Mogish said to the students that the Queensland Bar was “training you to be good and skillful lawyers”. She reminded them that to be a good lawyer required hard work and honesty and she finished by thanking the Queensland Bar for the sacrifice that had made in their time and money forgone in coming to PNG for a week.

Andrew Crowe QC the convenor of the Commercial Litigation workshop delivered a short address in his avuncular style. Crowe QC identified that the most important people in the hall were the students; “you are fellow lawyers with us” he said. Crowe QC spoke of how the Queensland Bar contingent loved to come and teach in PNG but primarily “we come back because it works”. “This week is about teaching and mentoring” for the Queensland Bar. “We get you to be confident in your written work and advocacy”. “By the end of the week” Crowe QC said “you will be like family and like family we might be critical and demanding of you but that is because we want you to improve”.

Justice Logan, (who holds a commission in the Supreme and National Courts of Papua New Guinea) spoke next. Justice Logan began by reminding the students that Her Majesty Queen Elizabeth II said in 1974 at the Opening of the Law Courts at Waigani with reference to PNG’s forthcoming independence that the country was embarking on a great adventure; that of independence. In that short speech Her Majesty had emphasized the centrality of the rule of law in independent democracies.

The Deputy Solicitor-General Tauvasa Tanuvasa (who is also on the Council of the Legal Training Institute) passed on the apologies of the Chief Justice Sir Salamo Injia and the Deputy Chief Justice Sir Gibbs Salika who were both detained with judicial work. Mr Tanuvasa reminded the students of the privileged position they were in because 80% of Papua New Guineans could not afford to go to university to study law. Mr Tanuvasa said that it was important therefore for the students to make the most of the opportunity they had of being taught by barristers who had a wealth of experience. He finished by extolling them to use their abilities to build their nation.

It fell to Mark Bailey of the High Commission to officially open the workshop. He spoke of the benefit of the rule of law and its impact on the economic success of a country. “Commercial Law plays an important role in economic expansion. A robust commercial law builds confidence and encourages investment. Commercial law advocates are a crucial part of economic development”. Mr Bailey calculated that the Queensland Bar contingent had a combined legal experience of 300 years (Crowe QC was of the view that half of that was attributable to Fleming QC).

Mr Bailey ended by encouraging the students: “this is a great opportunity to have feedback from mentors from the Queensland Bar. Whatever specialization you choose, the dispute resolution skills you will learn [at this workshop] will be invaluable to you.” Mr Bailey then officially opened the 4th annual Commercial Litigation Workshop.

The typical teaching day consisted of a lecture in the morning session from 8:30am to 10:00am with a practical tutorial problem based on the lecture worked through by the students after morning tea from 10:30am to 12 noon. The afternoon session usually mirrored that of the morning session with a further lecture from 1pm- 2pm and the students working on small groups on a practical problem until 4:30 or 5pm.

The 90 strong class was broken up (for tutorials) into six groups of 15 students with each group mentored by two barristers.

The first lecture of the workshop began with a demonstration of an application for leave to apply for judicial review given by Mal Varitimos QC and Justice Logan (as Judge) both in full robes. After the demonstration Justice Logan and Varitimos QC deconstructed their performance to emphasis certain aspects of it before answering questions from the students. The students then received lectures from Andrew Crowe QC on drafting written submissions and on injunctions from Joe Crowley and Mal Varitimos QC before they broke into tutorial groups to work on written submissions on an interlocutory injunction problem. The afternoon tutorial was an advocacy exercise where the students were expected to present or defend an application for an interlocutory injunction.

The quite complex hypothetical problem that was the basis of the tutorials was developed by Varitimos QC. It is based on a Papua New Guinean case in which he was involved: Bemobile Ltd v Digicel (PNG) Ltd [2013] N5064. The problem involves issues of competition law, contract and judicial review. Though the facts and issues are complicated the problem allows the Queensland Bar to teach the students on injunctions, judicial review, discovery, drafting pleadings, preparation for trials and appeals.

The second day the workshop began with a lecture on Court Etiquette from Varitimos QC. As a practitioner in the National and Supreme Courts in PNG Varitimos QC has witnessed areas that warrant improvement in the area of court etiquette which he drew to the attention of students. Justice Logan who had the week before sat in the PNG Supreme Court (the high est appellate court) told of how the lawyer for one party appearing in an appeal before him, turned up to that appeal an hour after it started.

The substantive lecture for the morning was given by Crowe QC on pleadings generally and specifically on drafting a statement of claim.

The students also heard an impromptu talk from Fleming QC about his experience as a prosecutor at the International Criminal Tribunal in Rwanda. Fleming QC provided background to the Rwandan genocide when the majority Hutu tribe killed between 500,000 and 1,000,000 of the minority Tutsi tribes in 100 days between 7 April 1994 and mid July 1994. Fleming QC described how he was in charge of prosecuting the politicians and how the case hinged on attempting to prove a conspiracy to commit this genocide. He moved the students with his description of the evidence given by a Tutsi woman who had fled into the country side with her 16 year old and 2 year old daughters and how she was found hiding in the bamboo having watched her children being murdered in front of her.

The tutorial problem for the morning was for the students to draft a statement of claim.

After lunch Holly Blattman gave a lecture on drafting a defence.

After the lecture the students broke into their tutorials groups and worked on drafting a defence. At the end of the exercise they were given a model defence to the problem to provide guidance on how the document would look in practice.

Day three of the workshop was a particularly busy day. It began with a lecture by Varitimos QC on the Commercial list in the National Court and contained practical information about how that list operated. Before morning tea the students were then given a lecture on discovery by Liam Dollar followed after lunch by a tutorial where the students conducted a mock application for discovery based on the materials involving the Telco problem that the students had worked on all week.

After lunch was a lecture on Judicial Review by Varitimos QC. In PNG the use of judicial review to challenge government decisions is common. As such the National Court of PNG has developed a Judicial Review track with two dedicated judges to administer it.

Before and after afternoon tea the students prepared and presented an application for leave to judicially review a decision of the Minister for Communication who had (in the Telco problem) set the rate for interconnection services between the two Telco companies. The students uniformly performed well and seemed to be finding their feet in dealing with the problem and had become comfortable with their Queensland Bar tutors.

On the Wednesday night the staff of the LTI took the Queensland Bar contingent to dinner at the newly opened hotel “The Stanley”. It was a great opportunity for the Queensland Bar to get to know members of the LTI staff better. Every year the LTI also invites a handful of its best students to the dinner to meet and speak to Queensland Bar presenters informally. Approximately 40% of the 2016 students were female. Karen Carmody and Holly Blattman took this opportunity to speak in particular to the female students invited to the dinner by the LTI.

It has become a tradition that (the younger) members of the Queensland Bar contingent play touch football with the students at lunch time. Despite the practical hurdles that there is only an hour for lunch and the temperature at that time hovers around the mid-thirties, the Queenslanders take a football to the lawn behind the auditorium for a quick game of touch football.

The benefit of this recreation is that it encourages the students to relax with the Queensland contingent. In a country where the national sport is without doubt Rugby League, there is almost universal interest in “throwing a footy around” from both the male and female students.

Members of the touch football contingent (Skoien, Crowley, Blattman and Jones) all ran around in the heat with the students developing that trust and respect that is central to the teacher/student relationship. Skoien particularly, who is captain of the Queensland Bar Soccer team demonstrated that as a touch-footy player he was great at soccer.

The morning lectures on Day 4 was a tag team effort between Skoien, Porter and Jones on trial preparation based on a paper by the grandfather of the PNG legal training John Griffin QC. The lecture began with each presenter speaking to the class in a different language; Skoien in Portuguese, Porter in Norwegian and Jones in Pigeon (Jones, had the advantage having grown up in PNG). Whatever he said to the class, it caused generally hilarity and the left his Queensland Bar colleagues none-the-wiser.

The lecture covered; what needs to be done to prepare for a trial, advising clients on prospects of success, dealing with witnesses, using expert witnesses and exploring avenues for settlement.

The speakers had also organized a written “Checklist” for the students, which provides a quick guide to them on what needs to be done prior to trial.

The morning lecture was finished with a lecture on trial written and oral submissions by Mark Steele.

The preparation for trial sessions ended with the speakers telling stories against themselves. Mark Steele told how, as a young barrister he had lost the power of speech when presenting a consent order to Justice Muir in the Applications court. Crowe QC told how as a junior to Ted Lennon QC he was allowed to take a witness in a trial and asked the one question too many which undermined that witness (his) to the point of making him largely irrelevant.

The practical exercise involved the students preparing a pleadings schedule to identify issues and thus relevant witnesses and documents that would be essential.

In the afternoon session the students were given lectures on appeal from Justice Logan and Fleming QC. Logan J gave a very local perspective on problems he sees in the appeals presented in the PNG Supreme Court.

Fleming QC’s presentation called on his wealth of experience in running appeals in both domestic and international appeal tribunals.

The final day of the workshop is devoted to criminal law. The session centers around a fictitious tutorial problem of intimate partner violence. It was originally written by Peter Callaghan QC who attended the 1st workshop in 2013.

The Criminal Law Workshop this year was run by Saul Holt QC who was stepping into the shoes of Soraya Ryan QC who conducted it in 2014 and 2015.

After the criminal law workshop (which finished at 2:15pm) and before the ceremonial part of the day commencing at 3 pm the auditorium where classes had taken place all week was swept, mopped and decorated for the closing ceremony where the students, would be presented with their certificates of completion.

Once again Mathew Bailey, Councilor in Law and Justice at the Australian High Commission attended along with other High Commission staff and Teresa Berrigan.

png_flag.jpgThe local profession were represented by Michael Henao of the PNG Law Society.

Andrew Crowe QC delivered some closing remarks on behalf of the Queensland contingent. “You are our colleagues and friends. You are part of our family and it is a growing family.” As Crowe QC pointed out the Queensland Bar had trained a total of 400 students through the workshops out of a profession of approximately 1000 practitioners.

“Why a Commercial litigation workshop?” Crowe QC asked rhetorically; The Chief Justice Sir Salamo Injia, Crowe reminded the students, invited the Queensland Bar to send barristers who had experience in complex commercial matters to teach in PNG because the Chief Justice wanted local lawyers to be able to deal with complex commercial litigation in the context of a growing economy.

Crowe QC predicted that in future workshops the Queensland Contingent would seek the assistance of local practitioners and he said, “we won’t be surprised if some of you become teachers at the LTI”.

Crowe QC said how keen the Queenslander were to come back and thanked the High Commission for its support of the project. “I know funding is not automatic”, he said “but we look forward to coming back next year”.

Crowe finished his remarks by praising the students for the improvement in their advocacy skills during the workshop and, mindful that in November the Victorian Bar were running their civil and criminal advocacy workshop at the LTI, Crowe QC said, “We know you [the students] won’t let us down. We want you to show off your skills to those Victorians!” (the Victorian bar runs an annual advocacy workshop for the LTI students).

The Director of the LTI Mrs Mogish then introduced Mal Varitimos QC who has a significant practice in PNG and is highly respected by the lawyers and judges there. He has recently been awarded a CBE for his services to law in PNG. Mrs Mogish proudly listed almost every commission of inquiry and major case that Varitimos QC had appeared in. The list was long. When Varitimos QC finally got up to speak he said what a great honour it was to be part of the Queensland Bar team. He reflected that in 1977 he did a school project on PNG and some of its leaders notably Sir Julius Chan. He never imagined that 20 years later he would be briefed to represent Sir Julius in PNG. This brief in the mid 1990’s began his association with the country. He reminded the students that to become an expert lawyer you needed hard work and dedication. He finished by saying he looked forward to appearing with them or against them in the National Courts in PNG.

Mark Bailey of the High Commission told the students it was heartening to hear that they had performed with excellence and participated whole-heartedly and tenaciously. He said “you have grown in legal knowledge and confidence. Whether you work in the public or private sector, I hope you use the skills that you have learned”. Mr Bailey said that the Australian Government thanked the generosity of the Queensland barristers for donating their time and he told them “the investment you have made in PNG this week will pay dividends now and in years to come”.

Michael Henao on behalf of the PNG Law Society said he had one message for the students; be willing to learn. “What distinguishes a good lawyer from a great lawyers?” he asked “continuing to learn. I hope you will take away and build upon the lessons you have learned this week.”

Following Michael Henao a representative of the students, Ethel Heagi said that the students had felt honoured to spend a week with the Queensland Bar contingent. She expressed the gratitude of the class for the fact that the barristers had taken a week out of their practices to come to PNG to teach them. She also said how excited the students were to have a PNG Supreme Court judge all to themselves for a week (referring to Justice Logan).

Ms Heagi said the course had refined the students’ skills and built their confidence. This was demonstrated, she said, by the fact that some students who had never spoken in class were by the end of the week volunteering to answer questions. One point that Ethel said the students were grateful for was the sense of collegiality that the Queensland team had shown both amongst themselves but also with the students.

The Deputy Director of the LTI David Lambu began his speech by thanking God that the week was incident free and also thanking God for the LTI staff who had put in so much work to organize the smooth running of the Commercial Law Workshop. He reminisced about when he was young in the time before independence during the colonial justice system. For him as a child, judges were scary people because they could sentence a person to death. Then when independence came and the judges were taken more from the ranks of the Papua New Guineans, he said that there was very little commercial law because the country was still developing. “When I was at the LTI [in the 1970’s] I was not taught the difference between pleadings and evidence”. He went on “We did not have the opportunity that you have of being taught by barristers.” “Even now,” he said reflecting on the complex commercial pleading the students had studied “no one in PNG could have taught you the pleadings problem you had.” “It is a valuable experience that you will not forget”. He finished by pointing out that in effect the Queensland Bar contingent had given the students much, both in the donation of their time but also in the value of their experience which they were imparting. “What we can give in return is our gratitude” which was greeted with hearty applause.

It was left to Justice Logan as a representative of the PNG judiciary to officially close the Commercial Litigation Workshop. Justice Logan spoke of a Queensland barrister and former secretary of the Queensland Bar Association who had worked in PNG as a lawyer and had later been appointed to the PNG Courts. Justice Logan traced the origins of the PNG courts and their traditionally Anglo-Saxon judges pre-independence to the appointment of Sir Buri Kidu the first Papua New Guinean Chief Justice and to the National and Supreme Courts of today.

Following Justice Logan the students were presented with their certificates. Each tutorial group was given their certificates by their tutors. After the certificates were handed out the students gave their tutors gifts that the class had purchased. These included pottery, paintings, baskets, and woven bags. The students, barristers and LTI staff then enjoyed refreshments in the evening air on the beautifully decorated lawn outside the hall on the LTI campus.

With two of the party Porter and Skoien gone, the remaining members dined at Bacchus restaurant within the grounds of the Airways hotel. It was a great opportunity for the Queenslanders to relax after a long week of teaching. Justice Logan, sporting an Hawaiian shirt, was a great host and the barristers chatted convivially over diner and later in the bar for a night cap.

The commitment of the practitioners who donated their time to the project should not be forgotten. Several members of the group had work that could not wait and brought it up with them. After returning from a long day teaching at the LTI it was not uncommon for one or two to retire to their rooms to burn the midnight oil on a Brisbane brief. The workshop now being in its fourth year the group members are becoming increasingly confident in the material and in the techniques required for teaching PNG students. As attested to by the staff of the LTI and the students, the Commercial Litigation Workshop is an initiative of the Queensland Bar that is having a real impact on the legal profession of PNG. Hopefully the Australian government will continue to fund this project.

Tutor at the 4th Commercial Law Workshop in Port Moresby Sept 4-10 2016

Joe Crowley