N4191

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 835 OF 2010

BETWEEN:

AGMARK PACIFIC LIMITED
Plaintiff

AND:

NEVILLE DEVETE, in his capacity as SOLICITOR-GENERAL
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Davani, J
2010: 15th, 30th December
 
CLAIMS BY AND AGAINST THE STATE - Judgment Debt – non-payment of Judgment Debt – issue of Certificate of Judgement – s.14 of Claims By and Against the State Act

ENFORCEMENT – Certificate of Judgment – execution of Certificate – Solicitor-General has option – Time runs when service effected – must be proper service – s.14(1)(a)(b) Claims By and Against the State Act ('CBASA')

APPLICATION FOR LEAVE FOR JUDICIAL REVIEW – Leave to judicially review Solicitor-General's decision to sign Certificate of Judgment stating State proposes to take further action and Judgment Debt will not be satisfied – the Certificate of Judgment not properly served – time does not run – no arguable issue – Application for Leave refused.

Facts:

On 27th April, 2010, the plaintiff was awarded judgment of K4,885,260.49 against the Cocoa Board of Papua New Guinea in proceedings WS 979 of 2005. The plaintiff took out Certificate of Judgment on 27th April, 2010 and requested the Solicitor-General to endorse it. The Solicitor-General endorsed the Certificate in Form 1 of the CBASA, which Certificate stated that "The State proposes to take further action in this matter and satisfaction of the Judgment cannot take place."

Plaintiff sought leave to Judicially Review the Solicitor-General's "refusal, failure or neglect" to sign the Certificate and for the Court to order that he reissue a Certificate stating that the Judgment may be satisfied.

Issues:

1.	Whether the Solicitor-General did "refuse, fail or neglect" to sign the Certificate of Judgment?

Reasons:

The Court noted that under s.14(1)(a)(b) of the CBASA, the Solicitor-General must be personally served or his personal secretary, served, with the Certificate of Judgment and that within 60 days after service, the Solicitor-General shall endorse the Certificate of Judgment in Form 1.

The Court noted that the options available to the Solicitor-General in Form 1 is that the Solicitor-General can certify that "the Judgment may be satisfied" or "the State proposes to take further action in this matter and satisfaction of judgment cannot take place." According to the evidence, the Solicitor-General choose to do the latter.

The Court found that;

1.	The Certificate of Judgment must be properly served, done in accordance with s.14(1)(a) or (b) of the CBASA. Only after proper service is proven, will the 60 days time period referred to in s.14(2), begin to run. If service is not properly effected, then time will not run.

2.	An action for Mandamus or Contempt of Court will not lie against the Solicitor-General, unless the Solicitor-General has failed to endorse the Certificate of Judgment in the terms required in Form 1, within 60 days, after he has been properly served with the Certificate of Judgment. In this case, the Solicitor-General did sign the Certificate of Judgment.

Held:

1.	The Application for Leave for Judicial Review is dismissed;

2.	The plaintiff shall pay the defendants' costs of the application, to be taxed if not agreed.

Cases Cited:

•	John Bokin & Ors v. Sergeant Paul Dana & 2 Ors (2001) N2111
•	Peter Makeng v. Timbers (PNG) Limited (2008) N3317

Counsel:

G. Poole, for the plaintiff/applicant
D. Steven, for the first and second defendants

DECISION

30th December, 2010

1.	DAVANI . J: Before the Court is Originating Summons filed on 23rd November, 2010 by Agmark Pacific Limited ('applicant'), seeking leave to judicially review the Solicitor-General's decision to "refuse, fail or neglect" to endorse the Certificate of Judgment dated 27th April, 2010 in favour of the plaintiff in proceedings WS 979 of 2005.

2.	The applicant seeks other orders in the nature of Declarations to have declared unlawful, the first defendant Solicitor-General's ('Solicitor-General) action in not endorsing the Certificate of Judgment on 27th April, 2010, as unlawful.

3.	The applicant also seeks orders in the nature of Mandamus requiring the Solicitor-General to forward the Certificate of Judgment in WS 979 of 2005 to the Department of Finance within 24 hours of the sealing of the Court Order.

4.	The application is opposed by the Solicitor-General by virtue of s.8 of the Claims By and Against the State Act ('CBASA') which provides that an Application for Leave for Judicial Review should not proceed to hearing unless the State has been given an opportunity to be heard. Mr Stevens of Stevens Lawyers is briefed by the State to appear.

5.	Mr Poole for the applicant also seeks the orders sought in the Notice of Motion filed by O'Briens Lawyers on 23rd November, 2010, Motion filed pursuant to O.16 r.3(1) of the National Court Rules ('NCR'). That provision states that an application for judicial review shall not be made unless leave of the Court has been obtained in accordance with this rule, which order is sought in that Motion.

The Application 

6.	Therefore, I must determine firstly whether leave should be granted. I will consider that together with the other orders sought in pars.2, 3 and 4 of the Notice of Motion, as that is how Mr Poole argued this application, although it is entirely against the principles set in Peter Makeng v. Timbers (PNG) Limited (2008) N3317, which I urge counsel Mr Poole to peruse in his own time. That case stands for the principle that only after leave is granted, can a Court then consider other applications, because the applicant would then have secured the jurisdictional basis on which to move his application. I did not raise this important procedural point as an issue only because the Court Vacation will be commencing very soon and that the nature of the matter suggests that I should deal with this before the end of the year. I should qualify this statement by adding that this should by no means be viewed as an exception to the principles set in Peter Makeng (supra).

7.	Paragraphs 2, 3 and 4 of that Motion, seek orders that the Solicitor-General must comply with term 1 of the Consent Order of 14th September, 2010 by endorsing a new Certificate of Judgment with the effect of satisfying the Judgment in WS 979 of 2005 and to serve a copy of the Certificate of Judgment on the applicant's lawyers within 24 hours from the date of the Order.

8.	The applicant seeks further orders that if the order is granted, that the Solicitor-General shall then write to the Department of Finance requesting payment of the Judgment sum in WS 979 of 2005 and to also send a copy of that letter to the applicant's lawyers within 24 hours from the date of the Order.

9.	The applicant also seeks costs on a solicitor/client basis to be paid by the first and second defendants.

10.	There are four elements that must be satisfied in an application for leave for judicial review. They are;

•	The applicant must have exhausted all other statutory remedies;

•	The applicant must not have delayed unduly before bringing the application for Judicial Review of the administrative action;

•	The applicant must have sufficient interest in the decision it seeks to review;

•	The applicant must have an arguable case.

11.	The undisputed facts are that on 19th March, 2010, the applicant obtained judgment in its favour in proceedings WS 979 of 2005 in the principal sum of K4,885,260.49 together with 8% interest in accordance with s.1(1) and (2) of the Judicial Proceedings (Interest on Debts and Damages) Act and for the defendants to meet the applicant's costs of the proceedings ('Judgment Debt').

12.	Thereafter, the applicant served a Certificate of Judgment on the Solicitor-General in accordance with s.14(2) of the CBASA. From 27th April, 2010 to 14th September, 2010, no steps were taken by the Solicitor-General to execute the Certificate of Judgment.

13.	On 14th September, 2010, the Solicitor-General consented to an order that he will sign the Certificate of Judgment in satisfying the Judgment Debt by close of business on 14th September, 2010. For that reason, the applicant discontinued proceedings OS (JR) 488 of 2010.

14.	The Solicitor-General did sign and deliver a Certificate of Judgment in Form 1 of the CBASA, which Certificate stated that "the State proposes to take further action in this matter and satisfaction of the Judgment cannot take place."

15.	By letter of 17th November, 2010 to O'Briens Lawyers, the defendants' lawyers advised that they will not pay the Judgment Debt but will pursue the matter by way of an appeal.

16.	I have heard from Mr Poole that the defendants' Application for Leave to Appeal filed on 20th April, 2010 and Application for Stay filed on 13th September, 2010 in proceedings SCA 48 of 2010 were both dismissed for want of prosecution on 15th November, 2010. Mr Poole handed up a sealed copy of the Supreme Court's Orders. However, the affidavit of Kimberley Kanimba, sworn and filed on 16th September, 2010 deposes at par.8 that SCA 48 of 2010 is still pending hearing. She deposes at par.9 that the Application for Stay in SCA 48 of 2010 was dismissed when a lawyer from the firm of Stevens Lawyers attended late. 

17.	I note that the appellant in those proceedings, the Cocoa Board of Papua New Guinea, through Stevens Lawyers, also filed a Notice of Appeal on 28th April, 2010, which appeal "lies without leave". That Notice of Appeal is in evidence before me as annexure 'D' to Kimberley Kanimba's affidavit sworn on 15th December, 2010 and filed on 16th December, 2010. Therefore, it means the appeal is pending.

(i)	Standing

18.	I set out below the whole of s.14 of the CBASA which reads;

"14. Satisfaction of Judgment 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 the personal secretary to the Solicitor-General between the hours of 7:45 a.m. and 12 noon p.m. and 4:06 p.m., or such other hours as may from time to time be declared 

(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 judgment 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 Department 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."

19.	I agree that the applicant is a Judgment Creditor with a Judgment Debt outstanding against the State and therefore, has standing to bring this application.

(ii)	Alternative administrative remedies

20.	There are other avenues available to the applicant, however, before it can enforce the Judgement Debt, it must have a duly executed Certificate of Judgment which must state that the Judgment Debt "may" be satisfied. 

21.	Section 14(2) of the CBASA makes it mandatory for the Solicitor-General to endorse the Certificate of Judgment in Form 1 within 60 days from the day of service upon him of that Certificate. Section 14(5) of the CBASA also states that no action in the nature of Mandamus will lie against the Solicitor-General or the Department of Finance in respect of the satisfaction of a judgment under the CBASA other than for failure to observe the requirements under subsections (2), (3) or (4) of the CBASA "as the case may be, or unless other exceptional circumstances can be shown to the satisfaction of the Court." (s.14(5) of CBASA)

22.	I agree that there are no other administrative remedies.

(iii)	Principles of delay

23.	I find there is no delay. I say this because, according to the plaintiff's calculations, after the statutory period permitted to allow the Solicitor-General to endorse the Certificate of Judgment expired on 26th June, 2010, the applicant then made representations both in writing and telephone to the Solicitor-General in the months June, July and August, 2010. 

24.	The applicant also submits that it allowed a certain time lapse to enable the Solicitor-General to instruct its lawyers and to conduct their own investigations.

(iv)	Arguable Case

25.	Mr Stevens for the Solicitor-General submits that the Court should not grant leave even if the principles in relation to the grant of leave have all been satisfied. He submits this because the Solicitor-General has complied with the requirements under s.14(2) of the CBASA and the Court Order of 14th September, 2010. He submits that for that reason, there is no arguable issue and that leave should be refused. Mr Stevens further submits that alternatively, the whole proceedings should be dismissed because service was not properly effected. I consider these two issues together.

26.	No doubt, the applicant filed the Application for Judicial Review because it believes it properly served the Certificate of Judgment, upon the Office of the Solicitor-General and that time began to run from when the Office of the Solicitor-General or person apparently authorised to accept service of the Judgment, received the said Judgment. Time began to run, in this case, from 27th April, 2010 at 3:20pm. This is deposed to in the affidavit of Vagi Jack, a legal clerk with the firm of O'Briens Lawyers. In his affidavit sworn on 27th April, 2010, he deposes that on Tuesday, 27th April, 2010 at 3:20pm, he attended at the Solicitor-General's Office, Department of Justice & Attorney-General, Level 7, Buri Kidu Haus, Waigani, National Capital District and served a sealed copy of the Certificate of Judgment filed on 27th April, 2010 on one Brenda Osilis, a woman over the age of 17 years who identified herself as a Data Entry Clerk with the Office of the Solicitor-General. (my emphasis)

27.	The issue is whether Brenda Osilis, a Data Entry Clerk with the Office of the Solicitor-General is authorised to receive that Certificate of Judgment. Section 14(1)(a)(b) of the CBASA is in identical terms to s.5(3)(a)(b) and s.7(1)(a)(b)(2)(b) of the CBASA. I have already reproduced that provision, above.

28.	According to s.14(1) of the CBASA, service on the Solicitor-General of the Certificate referred to in s.13(2), shall be either by personal service upon him or by leaving the document at the Office of the Solicitor-General with the person apparently occupying the position of Personal Secretary to the Solicitor-General. In this case, Brenda Osilis is a Data Entry Clerk. There is no evidence to the contrary. She is not the Solicitor-General's Personal Secretary. Neville Devete in his affidavit sworn on 15th December, 2010 deposes that Mrs Betty Makis is his Personal Secretary and has held that position since July 2006 (par.3). There is also no evidence to the contrary. He deposes that he was not personally served with the Certificate of Judgment and that Mrs Makis does not recall and does not have any record confirming receipt of the Certificate of Judgment in WS 979 of 2005.

29.	So if service was effected on a person not authorised to receive the document, then time does not run. I have in many of my decisions reaffirmed the need for parties to properly comply with service provisions of the CBASA for the reason that proper service prevents a lot of confusion and uncertainty and eventually, time and money, in attempting to prove that service was properly done. In relation to non-compliance with or lack of proper compliance with s.14(1)(a)(b) of the CBASA, I find that the applicant did not properly serve the s.5 Notice. Therefore, time does not begin to run until after service has been properly done. Having said that, I refer to the decision John Bokin & Ors v. Sergeant Paul Dana & 2 Ors (2001) N2111, which case stands for the proposition that a s.5 Notice when properly served, prevents a lot of uncertainties arising later.

30.	Although, Mr Poole submits that the Solicitor-General has sat on the Certificate of Judgment, that submission will hold if service was properly effected. In this case, I find service was not properly effected.

31.	Mr Poole also referred me to the Consent Order of 14th September, 2010 filed in proceedings OS 488 of 2010. The Court ordered, amongst others, that the first defendant Mr Devete, serve on Agmark's Lawyers an endorsed Certificate of Judgment in proceedings WS 979 of 2005 by close of business on 14th September, 2010. Mr Devete served such a Certificate as ordered. However, Mr Poole insists that the Certificate of Judgment served on him does not state that the Judgment Debt will be satisfied. It states "I certify that the State proposes to take further action and satisfaction of the Judgment will not take place." (see Asher Chillion's affidavit sworn on 22nd November, 2010 and filed on 23rd November, 2010).

32.	Mr Poole submits that the Solicitor-General should resubmit the Certificate of Judgment to state that "the Judgment may be satisfied", I do not agree with that submission simply because this is an option available to the Solicitor-General. He is under no obligation to sign the Certificate of Judgment as suggested or demanded by Mr Poole because he has an option, either under option (a) or under option (b) as set out in Form 1. I find no technical irregularity in the manner in which the Solicitor-General dealt with the discretion he has under s.14(a)(b) of the CBASA. He opted for option (b) in the Certificate of Judgment because of the pending Supreme Court appeal, which in my view, is still on foot (see pars. 13, 14 and 15 of Neville Devete's affidavit sworn on 15th December, 2010 and filed on 16th December, 2010).

33.	As for the Certificate of Judgment that was signed and returned by the Solicitor-General, the form signed by the Solicitor-General is in the prescribed form in the Schedule to the CBASA, being Form 1. The Solicitor-General, in this case, opted for option (b) which is that "the State proposes to take further action in this matter and satisfaction of the Judgment cannot take place". Section 14(3) of the CBASA states that "Upon receipt of the certificate of a judgment against the State bearing the Solicitor-General's endorsement that judgment may be satisfied, the Departmental Head responsible for finance matters shall, within a reasonable time, satisfy the judgment out of moneys legally available." The only time the Finance Secretary satisfies the Judgment is where the Solicitor-General states in the Certificate that "the Judgement may be satisfied". In this case, the Solicitor-General has opted not to do that.

34.	And I will emphasise again that the only time an applicant can apply for an order in the nature of mandamus or for contempt of court is if the Solicitor-General or the Secretary for Finance have not properly observed the requirements under subsections (2), (3) and (4) of s.14 of the CBASA. In this case, I have found that service was not properly effected in accordance with s.14(1)(b) of the CBASA. I have also found that the Solicitor-General has endorsed the Certificate of Judgment and has exercised an option available to him, which is a discretion lawfully available to him and which is that the State proposes to take further action and that satisfaction of the Judgment cannot take place.

Formal Orders

35.	I will not dismiss the proceedings, however, I refuse the Application for Leave. It is up to the plaintiff to discontinue the proceedings.

(1)	The Application for Leave for Judicial Review is dismissed;

(2)	The plaintiff shall pay the defendants' costs of the application, to be taxed if not agreed.

_____________________________

O'Briens Lawyers: Lawyer for the Plaintiff/Applicant
Stevens Lawyers: Lawyer for the Defendants