N2435

PAPUA NEW GUINEA

[In the National Court of Justice in Madang]

WS 92 of 1999

BETWEEN:

MORRIS MANUM & BENJAMIN MANO on
behalf of themselves and as representatives of
44 other persons of Portion 511 Billia Point
Madang, Madang Province
(Plaintiffs)

AND:

SENIOR CONSTABLE DIMUK DAGE
(First Defendant)

AND:

CHIEF INSPECTOR BEN SIMANJON –
PROVINCIAL POLICE COMMANDER OF
MADANG PROVINCE
(Second Defendant)

AND:

PETER AIGILO
THE POLICE COMMISSIONER
(Third Defendant)

AND:

THE INDEPENDENT STATE OF PAPUA
NEW GUINEA
(Fourth Defendant)

MADANG : SAWONG J.
2003 : 7TH & 11TH JUNE

CLAIMS AGAINST THE STATE - Judgments obtained–Compliance with Claims by and Against the State Act–Secretary for Treasury failing to pay judgment–mandamus-section 14(3) and 14(5) of the Claims By and Against the State Act considered

PRACTICE & PROCEDURE – Claims Against the State - Judgement obtained - Compliance with Claims By and Against the State Act-Certificate of judgement not endorsed by Solicitor General

PRACTICE & PROCEDURE – Claims Against State-Application by Notice of Motion in the nature of mandamus to seek payment of judgment-Certificate of judgment not endorsed by Solicitor General Application refused

FACTS: 

The Applicants obtained a judgement in the National Court against the State. Subsequently a certificate of judgement was issued duly signed by the proper officer of the Court. The certificate of judgement did not have the endorsement of the Solicitor General. The Applicants lawyers have been corresponding with the respective officers of the Department of Finance and Treasury but the judgement debt remained unpaid.

The Applicants then applied by way of Notice of Motion in the nature of mandamus to have the Head of the Department of Finance and/or Treasury to pay the judgment debt.

HELD:

1.	The Solicitor General must sign or endorse the Certificate of judgement pursuant to s.14(2) of the Claims By and Against the State Act, 1996.
2.	Where the Solicitor General has not endorsed the Certificate of judgement any application in the nature of a mandamus will not succeed.
3.	Any application in the nature of mandamus pursuant to s.14(5) of the Claims By and Against the State Act, 1996 must be by way of judicial review applications under O.16 of the National Court Rules.

Counsel:
C. NARAKOBI, for the Applicant
NO APPEARANCE, for the Respondents

11th June, 2003

SAWONG J: By a Notice of Motion the applicant sought the following orders:

1.	That the defendant pay the judgment debt within 14 days failing which defendants pay 15.5% interest on judgment till paid.
2.	Time be abridged to the date of settlement of this order which shall take place forthwith three such orders court deem fit.

In support of the relief claimed Mr Narakobi relied on this affidavit sworn on the 1st February, 2003 and filed on the 5th of March, 2003.

The State’s lawyers had been served with the Notice of Motion and the other relevant materials but did not appear at the hearing of the motion. I granted leave to Mr Narakobi to proceed ex parte.

The Motion was in the nature of a mandamus to compel the State and its officers and agents to satisfy the judgment debt within 14 days failing which they be ordered to pay interest at the rate of 15.5 percent until the judgment debt that is paid.

Before I deal with the application and the submissions it is necessary to set out a brief history of the matter from the affidavit evidence. On the 14th of August, 2002 the court ordered the fourth defendant, the Independent State of Papua New Guinea to pay on behalf of all other defendants the sum of one million nine hundred and forty-seven thousand three hundred and thirty kina (K1,947,330.00) inclusive of costs and interest (the judgment debt) to the plaintiff. On the 21st of August, 2002 a certificate of judgment was issued by the Registrar of the Court. Mr Narakobi then deposes that he has written numerous letters and made numerous contacts with all relevant agencies for the payment of the judgment debt but no payments have been made whatsoever. He also deposed that he has been instructed by his clients to invest the monies upon receipt of it with the Government Treasury bills at interest rates of 15.5 percent. He deposed that the long delay in the payment of the judgment debt has deprived his clients of the potential interest that they could have earned had they made that investment.

During submissions Mr Narakobi relied on the provisions of s. 14 of the Claims By and Against the State Act, 1996. He also relied on the Supreme Court decision in Pansat Communications Pty. Limited v Morea Vele & The Independent State of Papua New Guinea unreported judgment SC604. He submitted that s. 14 (3) and (4) provides for the departmental head responsible for financial matters to satisfy the judgment out of the monies legally available within reasonable time. The satisfaction of those monies could be in the whole or in part by way of instalments. He submitted that as he has made numerous efforts both in writing and verbally to the various relevant government agencies and that they have not responded and the judgment has not been satisfied either in full or by way of part payments, he submitted that the court should grant the orders as sought in the Notice of Motion. He submitted that only in having such an order and the subsequent failure by the person responsible for financial matters failing to comply with the court orders than he would seek pursue either contempt or other proceedings against that person.

In relation to the claim for interest he conceded during argument that the proper rate would be 8 percent. 
It is necessary to set out in full the relevant provisions of the Claims By and Against the State Act namely, s.13 & 14.

s. 13 NO EXECUTION AGAINST THE STATE.
(1)	In any suit, execution or attachment, or process in the nature of execution or attachment, may not be issued against the property or revenue of the State.
(2)	Where a judgment is given against the State, the registrar, clerk or other proper officer of the court by which the judgment is given shall issue a certificate in Form 1 to the party in whose favour the judgment is given.

"s. 14 SATISFACTION OF JUDGEMENT AGAINST THE STATE.
(1) The certificate referred to in Section 13(2) shall be served on the Solicitor-General by –
(a)	Personal service; or 
(b)	Leaving the document at the office of the Solicitor-General with the person apparently occupying the position of personal secretary to the Solicitor-General between the hours of 7:45a.m. and 12 noon p.m. and 4.06p.m., or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours or duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).
(2) The Solicitor-General shall, within 60 days from the date of service upon him of a certificate under Section 13(2), endorse the certificate in Form 1.
(3)	Upon receipt of the certificate of a judgment against the State bearing the Solicitor-General’s endorsement that judgement may be satisfied, the Departmental Head responsible for finance matters shall, within a reasonable time, satisfy the judgment out of moneys legally available.
(4)	Any payment in satisfaction of judgment may, in the absolute discretion of the Departmental Head responsible for finance matters, be made by instalments, provided the judgment is thereby satisfied within a reasonable time.
(5)	No action –
(a)	for or in the nature of mandamus; or
(b)	for contempt of court,
or otherwise lies against the Solicitor-General or the Departmental Head responsible for finance matters in respect of the satisfaction of a judgment under this Act, other than for failure to observe the requirements of Subsection (2), (3) or (4), as the case may be, or unless other exceptional circumstances can be shown to the satisfaction of the court."

These provisions have been interpreted by the Supreme Court in Pansat case (supra). The Supreme Court discussed and analysed the meaning and effect be given to these to provisions. The facts in that case in summary were that on 19th December 1997, the parties obtained consent orders in the National Court. Apart from other orders, the court order that the State paid to the second Respondent (pays to Panset Communication Pty. Limited (the Appellant)) the sum of 19.5 million kina by way of liquidated damages. Subsequently the consent orders, the Appellant obtained a certificate of judgment pursuant to s. 13 (2) of the claims by and against the State Act, 1996. It was subsequently endorsed by the Solicitor General pursuant to s. 14 (2) of the Act. The Appellant then served the certificate of judgment upon the Secretary for Finance for satisfaction of the judgment debt pursuant to s. 14 (3) of the Act. The State failed to satisfy the judgment. On 23rd June 1998, the Appellant filed judicial review proceedings in the National Court for an order in the nature of mandamus to direct the Secretary of the Department of Finance to observe the requirements of s. 14 (3) of the Act, namely, to satisfy the judgment out of monies legally available. The application for leave for judicial review was heard by Sevua J and in a judgment dated 22nd of June 1998, he refused leave and dismissed the application.

The Supreme Court in discussing the meaning and effect of s. 13 and 14 of the Act said this at p. 7:

"The issue raised in this case is essentially one of proper interpretation and applications of ss. 13 and 14 of the Act. Section 13 (1) is clear in its terms that no suit, execution or attachment or process in the nature of execution or attachment may be brought against the property or revenue of the State. In the normal cost applications to the court for judicial review of administrative actions are not automatically proceedings in the nature of attachments or against the revenue of the State. In the present case, the judicial proceedings have not been brought directly against the revenue of the State. Clearly, the proceeding is not in the nature of attachment. The question is; whether, the proceeding is a "suit" or "a process in the nature of execution against the revenue of the State"? We are of the opinion that it is a suit in the nature of execution against the revenue of the State. "

The court than went on and said that s. 13 and 14 must be read together. It said:

"However, section 13 has to be read with section 14 of the Act. Section 14 requires the Solicitor General and the Departmental Head responsible for financial matters to comply with certain requirements in relation to a judgement given against the State. The first is that the Solicitor General should endorse a certificate of judgment within 60 days of service upon him of the certificate (s. 14 (2)). The second is that when such a certificate is served upon the responsible Departmental Head for finance matters, he shall satisfy the judgment out of monies legally available within a reasonable time (s. 14 (3)). Payment in satisfaction of the judgment may be made a way of instalments (s. 14 (4))."

The court than went on to discus whether proceedings or enforcement of the judgment could be brought by way of mandamus or contempt of court proceedings against the Solicitor General or the person responsible for finance matters. This is what the court said:

"Subsection 14 (5) specifically prohibits any action for mandamus contempt of court proceedings against the Solicitor General or the responsible Departmental Head in respect of the satisfaction of the judgment either than for failure to observe the requirements set out in s. 14 (2), (3) and (4) of the Act. This prohibition is no different in effect to the prohibition under s. 13 (1) of the Act accept that the prohibition here is specifically against an action for mandamus contempt of court proceedings.

However there is an expressed exception to this prohibition in the latter part of s. 14 (5). This effectively means that an action for an order for mandamus or contempt of court to enforce the requirements set out in s. 14 (2) and (3) of the Act may be brought against the appropriate officer. Where there is a failure by the Solicitor General or the Departmental Head responsible for finance to matters to comply with the requirements under s. 14 (2) and (3) of the Act, an action for mandamus or contempt of court may be brought against them to ensure compliance."

It is important to note that before a judgment is satisfied two things must be done. The first is that the Solicitor General must endorse a certificate of judgment within 60 days of service upon him of that certificate. (S.14 (2) (emphasis added)). The next step is that, that certificate of judgment with the Solicitor General’s endorsement that a judgment may be satisfied, is to be served on the Departmental Head of Finance who shall within reasonable time satisfy the judgment out of monies legally available and the monies can be paid either in the whole or in part (S. 14 (3), (4)).

In the present case the application must be dismissed or refused for several reasons. First is that the plaintiff applicant has not complied with the requirements of s. 14 (2) of the Act, in that the certificate of judgment does not have the endorsement of the Solicitor General. The document marked with letter "B" being the Certificate of Judgment, annexed to Mr Narakobi’s affidavit bears no endorsement from the Solicitor General. In other words the Solicitor General has not endorsed that Certificate of Judgment. This is fatal to the relief sought.

Secondly, the whole application is misconceived in that the relief sought is in the nature of a mandamus and such orders could only be obtained by way of judicial review proceedings. Judicial review proceedings must be by way of proceedings founded under O.16 of the National Court Rules. This means in effect that the applicant must firstly seek leave of the court as required under O.16 of the National Court Rules. As it is the proceedings are incompetent and must be dismissed.

In any case as I have indicated earlier the applicant has not produced any evidence that the Solicitor General has endorsed the certificate of judgment as required under s. 14 (2) of the Act such that a judicial review application ought to be made.

For those reasons I refuse the application and order that the applicant/plaintiffs pay the costs of this motion.
________________________________________________________________
LAWYERS FOR THE APPLICANTS : NARAKOBI LAWYERS
RESPONDENTS : NO APPEARANCE