N4614

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

DR ALOIS KAWA, FOR HIMSELF, & FOR & ON BEHALF OF DOROTHY KAWA & AS NEXT FRIEND OF ROSALIE KAWA, NIGEL KAWA, ANNETTE KAWA, DAPHNE KAWA, GHAI KAWA & JOE KAWA, ALL INFANTS
Plaintiff

V

NEVILLE DEVETE, SOLICITOR-GENERAL
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Madang: Cannings J
2012: 9, 16 March

JUDICIAL REVIEW – application for order of mandamus against Solicitor-General – Claims By and Against the State Act, Section 14 (satisfaction of judgment against the State) – duty of Solicitor-General to endorse certificate of judgment
 
The plaintiff obtained judgment in the National Court against the State in the sum of K585,648.00. The Registrar subsequently issued to the plaintiff a certificate of judgment under Section 13(2) of the Claims By and Against the State Act. The plaintiff then served the certificate on the Solicitor-General under Section 14(1) of that Act. However, the Solicitor-General failed to endorse the certificate under Section 14(2) and the judgment remained unsatisfied. The plaintiff then filed an application for leave to seek judicial review of the failure of the Solicitor-General to endorse the certificate. Leave was granted and a trial was held on the application for judicial review.

Held:

(1)	Once judgment is given against the State, a three-step procedure for satisfaction of the judgment must be followed under the Claims By and Against the State Act: Step 1: the registrar, clerk or other proper officer of the court by which the judgement is given is obliged by Section 13(2) to issue a certificate in Form 1 to the party in whose favour the judgement is given. Step 2: the Solicitor-General is obliged by Section 14(2) within 60 days from the date of service upon him of a certificate under Section 13(2), to endorse the certificate. Step 3: upon receipt of the certificate of a judgement against the State bearing the Solicitor-General's endorsement that judgement may be satisfied, the Departmental Head responsible for finance matters is obliged by Section 14(3), within a reasonable time, to satisfy the judgement out of moneys legally available.

(2)	If any of the three officials fails to perform their duty in accordance with the Act, their failure will constitute an error of law, giving rise to the remedy of judicial review and in particular an order in the nature of mandamus.

(3)	In the present case, step 1 had been completed and the certificate of judgment was duly served on the Solicitor-General, who was obliged within 60 days from the date of service to endorse the certificate.

(4)	The plaintiff proved that the Solicitor-General failed to endorse the certificate within 60 days, thereby proving error of law.

(5)	No good reason was apparent for the Court refusing the application for judicial review. An order in the nature of mandamus was granted, giving the Solicitor-General 14 days to endorse the certificate, failing which he will be summoned to appear before the National Court to show cause why he ought not be charged with contempt of court.

Cases cited

The following cases are cited in the judgment:

Alois Kawa v Hans Yob, Bunag Kiup, Commissioner of Police and The State (2010) N3923
Francis Kawage v The Solicitor General and The State (1999) N1875
Gabriel Yer v The State (2008) N3326
Isidore Kaseng v Michael Debege (2004) N2735
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Morris Manum and Benjamin Mano v Senior Constable Dimuk Dage (2003) N2435
Pacific Helicopters Limited v Thaddeus Kambanei (2007) N3242
Pansat Communications Pty Ltd v Vele and The State (1999) SC604
Sealark Shipping Pty Ltd and Bismark Maritime Pty Ltd v The Secretary for Treasury and Corporate Affairs and The State (1998) N1732
Stephen John Rose v Neville Devete (2007) N3327

JUDICIAL REVIEW

This was an application by a judgment creditor for judicial review of the failure of the Solicitor-General to endorse a certificate of judgment.

Counsel

A Kawa, the plaintiff, in person
No appearance for the defendants

16 March, 2012

1. CANNINGS J: This is a ruling on an application by the plaintiff, Dr Alois Kawa, for judicial review of the alleged failure of the defendant, the Solicitor-General Mr Neville Devete, to endorse a certificate of judgment, which Dr Kawa had obtained against the State. Dr Kawa seeks an order in the nature of mandamus (an order requiring a public official to perform a duty according to law) against the Solicitor-General.

2. The judgment that Dr Kawa seeks to enforce is my judgment of 19 February 2010, by which he was awarded a total amount of damages and interest of K585,648.00, after the State was found liable for the negligence of the Madang Police in not protecting him against a violent raid staged by a group of people on 1 January 2006 on his premises at Gum (Alois Kawa v Hans Yob, Bunag Kiup, Commissioner of Police and The State (2010) N3923).

PROCEDURE FOR ENFORCEMENT OF JUDGMENTS AGAINST THE STATE

3. Before assessing what has happened since 19 February 2010 I will set out the procedure that must be followed, under Sections 13 and 14 of the Claims By and Against the State Act, to enforce a judgment against the State.

4. Section 13 (no execution against the State) states:

(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 judgement is given against the State, the registrar, clerk or other proper officer of the court by which the judgement is given shall issue a certificate in Form 1 to the party in whose favour the judgement is given.

5. Section 14 (satisfaction of judgement against the State) states:

(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 7.45 a.m. and 12 noon p.m. and 4.06 p.m., or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of 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 judgement 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 judgement out of moneys legally available.

(4)	Any payment in satisfaction of judgement may, in the absolute discretion of the Departmental Head responsible for finance matters, be made by instalments, provided the judgement 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 judgement 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.

6. Sections 13 and 14 thus set out a three-step procedure:

Step 1: the Registrar, clerk or other proper officer of the court by which the judgment is given is obliged by Section 13(2) to issue a certificate in Form 1 to the party in whose favour the judgment is given. Form 1 is prescribed by the Schedule to the Act, as follows:

PAPUA NEW GUINEA

Claims By and Against the State Act

Sec 13(2)	Form 1	

CERTIFICATE of JUDGEMENT

AB v The Independent State of Papua New Guinea

I certify that AB, of, on 19, did obtain a judgement of the (name of court) in his favour, and that by such judgement the sum of K was awarded to him.

I certify that—

(a)	the judgment may be satisfied

OR

(b)	the State proposes to take further action in this matter and satisfaction of judgement cannot take place.

Dated ... 19 .

Registrar (or Clerk)
(Name of Court)

Step 2: the Solicitor-General is obliged by Section 14(2) within 60 days from the date of service upon him of a certificate under Section 13(2), to endorse the certificate. Note that the method of service – either personal service or leaving the document at the office of the Solicitor-General with the prescribed person at the prescribed times – is prescribed by Section 14(1). In my view the Solicitor-General has a limited discretion as to how he endorses the certificate. He may certify that:

(a)	"the judgment may be satisfied"; or

(b)	"the State proposes to take further action in this matter and satisfaction of judgement cannot take place".

The existence of the discretion is not made express by the words of Section 14(2) which simply state that he "shall … endorse the certificate". However, the words of Form 1 provide for the discretion. Form 1 is part of the Schedule to the Act and is therefore part of the Act by virtue of Section 26(2) (headnotes, schedules etc) of the Interpretation Act.

Step 3: the Secretary for Finance (the Departmental Head responsible for finance matters) upon receipt of the certificate of judgment bearing the Solicitor-General's endorsement that judgment may be satisfied, is obliged by Section 14(3), within a reasonable time, to satisfy the judgement out of moneys legally available. Note that the Secretary's duty to satisfy the judgment only arises upon receipt of the certificate of judgment bearing the Solicitor-General's endorsement that judgment may be satisfied. If the Solicitor-General has not endorsed the certificate in those terms, the Secretary cannot and should not satisfy the judgment (Morris Manum and Benjamin Mano v Senior Constable Dimuk Dage (2003) N2435, Sawong J). The certificate of judgment must also show that there has been entry of judgment for a specific amount in Kina terms (Isidore Kaseng v Michael Debege (2004) N2735, Kandakasi J).

7. It was clearly established by the decision of the Supreme Court (Kapi DCJ, Hinchliffe J, Sheehan J) in Pansat Communications Pty Ltd v Vele and The State (1999) SC604 that the duties imposed on the various public officials by Sections 13 and 14 are enforceable. The decision of Injia J, as he then was, in Francis Kawage v The Solicitor General and The State (1999) N1875, confirmed that the proper method of enforcement of those duties is, in the first instance, by judicial review under Order 16 of the National Court Rules. Examples of cases in which that procedure (which is the procedure being used by the plaintiff in the present case) has been invoked are:

•	Sealark Shipping Pty Ltd and Bismark Maritime Pty Ltd v The Secretary for Treasury and Corporate Affairs and The State (1998) N1732: order for mandamus issued by Woods J against the Secretary requiring him to forthwith pay amounts of K190,240.27 and K84,595.07, plus interest, to the plaintiffs.

•	Pacific Helicopters Limited v Thaddeus Kambanei (2007) N3242: order for mandamus issued by Davani J against the Secretary requiring him within 14 days to pay K8,437,094.44 to the plaintiffs.

8. A failure by the Solicitor-General or the Secretary for Finance to comply with an order for mandamus that has been made for the purposes of enforcement of their duties under Section 14 can be enforced by prosecution for contempt of court. Examples of this method of enforcement are:

•	Stephen John Rose v Neville Devete (2007) N3327: the Solicitor-General was convicted of contempt of court by the National Court (Sakora J) for his failure to obey an order of mandamus that had previously been granted to order him to endorse a certificate of judgment under Section 14(2), his conduct being described as "continuous intransigence and recalcitrance" and having displayed "arrogance and complete indifference to the importance and seriousness of court orders".

•	Gabriel Yer v The State (2008) N3326: the Secretary for Finance was convicted of contempt of court by the National Court (Salika J, as he then was), his disobedience of an order of the National Court being found "deliberate and contumacious".

9. To sum up, if any of the three officials referred to in Sections 13 and 14 of the Claims By and Against the State Act fails to perform their duty in accordance with the Act, their failure will constitute an error of law, giving rise to the remedy of judicial review and in particular an order in the nature of mandamus. Failure to comply with an order for mandamus may result in a prosecution for contempt of court.

FACTS OF THE PRESENT CASE

10. Dr Kawa has adduced sufficient evidence to enable me to make the following findings of fact.

19 February 2010: judgment in WS No 357 of 2010 delivered in Madang and order made for a total judgment sum of K585,648.00 payable by the third and fourth defendants: the Commissioner of Police and the State.

5 March 2010: entry of order.

13 April 2010: certificate of judgment, in Form 1, showing the judgment sum of K585,648.00, endorsed by the Registrar, and forwarded by the Registrar to the Solicitor-General.

28 July 2010: a legal secretary with the plaintiff's lawyers, Daniels & Associates, rang the office of the Solicitor-General and spoke to Mrs Gelu of that office to follow up on the certificate of judgment; and copies of the order of 19 February 2010 and the certificate of judgment, and a covering letter, were sent by fax to the Solicitor-General on the same day.

2 September 2010: another phone call was made by Daniels & Associates to Mrs Gelu who advised that she was awaiting instructions from the Solicitor-General; and a letter enclosing an original of the order of 19 February 2010 was sent the same day.

6 October 2010: another phone call was made by Daniels & Associates to Mrs Gelu who advised that she was still awaiting instructions from the Solicitor-General.

18 May 2011: the present proceedings, OS No 267 of 2011, were commenced.

17 February 2012: leave for judicial review granted.

9 March 2012: application for judicial review heard; by this date the Solicitor-General had still not endorsed the certificate of judgment and the judgment remained unsatisfied.

11. As to identifying a date on which the Solicitor-General was served with the certificate of judgment I conclude that the most reliable date is 28 July 2010, when a copy was faxed by Daniels & Associates to the office of Solicitor-General. It was probably received earlier, upon receipt of the original certificate and covering letter from the Registrar, but there is no proof of service, so for the purposes of making a finding of fact I conclude that it was 28 July 2010.

LEGAL CONSEQUENCES

12. The first question of law to be addressed is: on what date, if at all, did the 60-day period allowed to the Solicitor-General to endorse the certificate of judgment, commence? I use the words "if at all" advisedly as I can see an argument that the Solicitor-General was not obliged to endorse the certificate as it was not served on him in accordance with Section 14(1). There is no evidence that it was served by personal service or by leaving the document at the office of the Solicitor-General with the prescribed person at the prescribed times. 

13. The problem with this argument is that there was nobody to advance it. The Solicitor-General did not enter an appearance in these proceedings. I am not aware of any case in which the Solicitor-General has relied on this provision to avoid the duty to endorse a certificate of judgment. And I am not inclined to interpret Section 14(1) so strictly as to require that the methods of service prescribed by Section 14(1) are exclusive. The better view is that Section 14(1) is providing sufficient but not necessary methods of service. Section 14(1) must be read in the context of Section 14(2), the words of which are general enough to make it sufficient for a party seeking to enforce the duty imposed on the Solicitor-General to prove that, as a matter of fact, the Solicitor-General has been served with the certificate of judgment.

14. I am satisfied that the Solicitor-General was served on 28 July 2010, which means he had until 26 September 2010 to endorse the certificate of judgment. He has failed for a period of 1 year, 5 months and 2 weeks (from 26 September 2010 to the date of trial, 9 March 2012), to perform the duty imposed on him by Section 14(2). This is proof of error of law. I have therefore a discretion to exercise, as the granting of relief in any application for judicial review is a matter of discretion (Mision Asiki v Manasupe Zurenuoc (2005) SC797). No good reason is apparent for the Court refusing the application for judicial review. The error of the Solicitor-General is serious and ongoing, and compounded by his failure, without explanation, to defend these proceedings. The plaintiff has acted reasonably. The only criticism I would offer of his conduct is that he has been unduly patient. An order in the nature of mandamus will be granted. I will give the Solicitor-General 14 days to endorse the certificate, failing which he will be summoned to show cause why he ought not be charged with contempt of court. I earnestly hope that such a course of action is unnecessary. Costs will follow the event.

ORDER

(1)	The application for judicial review is granted.

(2)	Mandamus is issued against the first defendant and accordingly he is ordered to within 14 days after service of this order endorse under Section 14(2) of the Claims By and Against the State Act the certificate of judgment in WS No 357 of 2007 issued by the Registrar of the National Court and dated 13 April 2010 and give the endorsed certificate to the Departmental Head responsible for finance matters; failing which he shall be summoned to appear before the National Court at Madang to show cause why he ought not be charged with contempt of court.

(3)	Costs of the proceedings shall be paid by the defendants to the plaintiff on a party-party basis, which shall, if not agreed, be taxed.
_______________

Lawyers for the plaintiff : Self-represented
Lawyers for the defendants: Nil