Unreported National Court Decisions
N1777
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS NO. 266 OF 1995
BETWEEN:
STEVEN PUPUNE, YAUNGGAO UYASSI, PETER HERO, STAINER SAPU, GITENE SOSO, JAMES SAVE, MALO KINIAFA AND ROBIN KOSI
-JUDGMENT CREDITOR/PLAINTIFFS -
AND:
UBUM MAKARAI, ADMINISTRATOR EASTERN HIGHLANDS PROVINCIAL GOVERNMENT (IN SUSPENSION)
- JUDGMENT DEBTOR/DEFENDANT -
AND:
PAPUA NEW GUINEA BANKING CORPORATION, GOROKA BRANCH
- GARNISHEE -
Mount Hagen
Injia J
16 October 1998
23 October 1998
PRACTICE AND PROCEDURE - Reservations under s.15 Supreme Court Act - Question of law - Conflicting views of two or more judges of the National Court on an important point of law - Point of law determinate of case - Desirability of reserving point for Supreme Court - Supreme Court Act (Ch. No. 37), s.15(1)(a).
Cases Cited
Pato Lawyers -v- Enga Provincial Government [1995] PNGLR 469.
Michael Carter -v- Korobosea Development Corporation [1986] PNGLR 157
Pupune -v- Makarai & Ors N1647 [1997]
Ruta & Menanike -v- Eastern Highlands Provincial Government, Unreported National Court judgment of Sawong, J dated 12 June 1998.
Counsel
D. Kwimberi for Plaintiff.
No appearance for the Defendants.
23 October 1998
INJIA J: In 1995, in Pato Lawyers -v- Enga Provincial Government [1995] PNGLR 469; Kapi DCJ held the view that the term “the State” in section 6(1) of the Claims By and Against the State Act (Ch. No. 30) (the “former Act”) does not include a “Provincial Government”. Consequently, Kapi DCJ, granted leave to the plaintiff (judgment creditor) to issue garnishee notice against the bank accounts operated by the Enga Provincial Government (judgment debtor) pursuant to O 13 r 56 of the National Court Rules.
In 1996, the Claims By and Against the State Act (Ch. No. 30) was repealed and replaced by the Claims By and Against the State Act (the “new Act”) 1996. However, section 6(1) of the former Act was retained in s.13(1) of the new Act.
On 26 September 1997, in Pupune -v- Makarai & Ors, N1647 (1997) I held a different view that the term “the State” in S.13(1) of the said Claims By and Against the State Act 1996 does include a “Provincial Government”. Consequently, I refused the plaintiff (judgment creditor) leave to issue a garnishee notice pursuant to Order 13 r 56 of the National Court Rules against the PNGBC (Garnishee) bank accounts operated by the Eastern Highlands Provincial Government (judgment debtor).
Subsequently, on 12 June 1998 in Ruta & Menanike -v- Eastern Highlands Provincial Government unpublished National Court judgment in WS. 1049/97 & WS 1188/97 dated 12 June 1998; Sawong J, shared the view held by Kapi DCJ, in Pato Lawyers -v- Enga Provincial Government and declined to follow my view in Pupune -v- Makarai & Ors. Consequently, Sawong J, granted leave to the plaintiffs (judgment creditors) to issue garnishee notice against the PNGBC (Garnishee) bank accounts operated by the Eastern Highlands Provincial Government (judgment debtor).
Following Sawong J’s decision in Ruta & Menanike -v- Eastern Highlands Provincial Government, 16 October 1998, the plaintiffs (judgment creditors) in Pupune -v- Eastern Highlands Provincial Government, have now re-applied before me for leave to issue garnishee notice against the PNGBC (garnishee) bank accounts operated by the Eastern Highlands Provincial Government (judgment debtor). They have asked me to re-consider my earlier decision in the same matter in the light of Sawong J’s decision.
In view of the difference of opinion of several judges of the National Court in relation to the meaning of the term “The State” in s.13(1) of the Claims By and Against the State Act 1996, it is necessary to refer the question to the Supreme Court for its opinion under s.15 of the Supreme Court Act. The question I am reserving is:
Does the term “the State” in Section 13(1) of the Claims By and Against the State Act 1996 include a “Provincial Government” as defined in the Organic Law on Provincial and Local-Level Governments?
Further hearing and judgment on the plaintiffs’ (judgment creditor’s) application in this matter (Pupune -v- Eastern Highlands Provincial Government) will have to be postponed pending the Supreme Court’s opinion on the question.
Section 15(1)(a) of the Supreme Court Act under which this reservation is made provides:
“Cases or points of law reserved for the Supreme Court”
(1)      A Judge or Judges of the National Court Sitting in the exercise of any jurisdiction other than criminal jurisdiction —
(a)      may reserve any case or any point in a case for the consideration of the Supreme Court ..... and the Supreme Court may hear and determine any such case or point so reserved or directed to be argued”.
The power to reserve a point of law for the Supreme Court’s opinion conferred on a judge by s.15(1)(a) is a discretionary one and it is to be exercised in appropriate cases. It is to be exercised where “the reservation of any point in a case will advance the litigation or effectively dispose of the matter”: Michael Carter -v- Korobosea Developments Pty Ltd [1986] PNGLR 157 at 158. In a case such as this where there is an important point of law which is determinative of the application and in which there is a difference of opinion on the point among two or more judges of the National Court, it is highly desirable for reasons which are obvious, that the next judge before which the same point arises for determination should reserve the point for the Supreme Court.
Lawyer for the Plaintiff: Dowa Lawyers.
Lawyer for the Defendant: Solicitor General.