N8158

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1276 of 2016 (COMM)

BETWEEN:
AIR NIUGINI LIMITED
Plaintiff

AND:
KAVIENG DISTRICT DEVELOPMENT AUTHORITY
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Anis J
2019: 5th September & 17th December

NOTICE OF MOTION – Enforcement – mandatory injunction against the Solicitor General to endorse certificate of judgment signed by the Registrar of the National Court – whether first defendant “the State” within the meaning of section 3 of the Interpretation Act Chapter No. 2 and within the meaning of section 13(2) and 14(2) of the Claims By and Against the State Act 1996 

Cases Cited:

Davidwestern Advertising Group Ltd v. Hiri 152 Developments Ltd and Ors (No. 2) (2019) N8112
SCR No. 1 of 1998: Reservation Pursuant to s. 15 of the Supreme Court Act (2001) SC 672

Counsel:

Mr B Nutley, for the Plaintiff
Mr S Geita, for the Defendant

RULING

17th December, 2019

1.	ANIS J:	The plaintiff applied for this Court to issue mandatory injunction against the Solicitor General, Mr Tanuvasa Tauvasa, that is, mandatory injunction to compel him to endorse a certificate of judgment which the plaintiff had obtained in this proceeding.

2.	The plaintiff’s notice of motion was heard on 5 September 2019.  I reserved my decision thereafter to a date to be advised.  Parties have been notified so I will rule on it now.

RELEVANT BACKGROUND

3.	On 12 April 2017, the plaintiff obtained default judgment in the sum of K1, 203, 344.60 with interest and costs, against the first defendant.  The background of the claim is not relevant so I will not go there.  What is relevant for this purpose is that on 30 July 2017, plaintiff obtained a Certificate of Judgment from the Registrar of the National Court (the Registrar).  On 1 August 2017, the Registrar forwarded the Certificate of Judgment to the office of the Solicitor General.  

4.	Since that time and despite follow-ups by the plaintiff, the plaintiff did not receive any response or endorsement of the Certificate of Judgment from the Solicitor General.  The plaintiff claims that the Solicitor General was required to endorse the Certificate of Judgment under section 14(2) of the CBASA within 60 days as required under the said provision but that it had failed to do so.  It therefore filed this notice of motion on 9 August 2019.

NOTICE OF MOTION

5.	The plaintiff’s notice of motion seeks 2 main relief, which are: 

1.	Pursuant to:

(a)	Section 22, 155(4), (6) and 166(1), (2) (a) of the Constitution, by way of mandatory enforcement of a Constitutional duty; and
(b)	Sections 14(2) and (5) of the Claims By and Against the State Act 1996;
(c)	Section 12 of the Laws Adoption and Adaptation Act Chapter 20;
(d)	Order 12 Rule 1 of the National Court Rules; and
(e))	Inherent equitable powers of the Court,

For Orders that:

(f)	A mandatory injunction be issued against the Solicitor General, Tanuvasa Tauvasa, requiring him to endorse the Certificate of Judgment signed by the Registrar of the National Court on 28 May 2018 within 7 days from the date of service of the Order at the Office of the Solicitor General.

2.	The State shall pay the Plaintiff’s costs of and incidental to this Notice of Motion on an indemnity basis.

EVIDENCE

6.	In support of the notice of motion, the plaintiff relies on 3 affidavits, namely, 2 affidavits of Linus Kaidoga which were filed on 21 and 29 March 2017, and the affidavit of Bobby Nutley which was filed on 9 August 2019.  The defendants did not file any affidavit in reply.  It instead raised arguments of law in reply to and in opposing the application.

ISSUES

7.	In my view, the main issues are, (i), whether the first defendant is “the State” within the meaning of section 13(2) and 14(2) of the CBASA, if so, (ii), whether the Certificate of Judgment was duly served, if so, (iii), whether the plaintiff may seek mandatory injunction in this manner, or whether the correct mode of proceeding should have been by way of a judicial review, and subject to all of the above, (iv), whether this Court should grant mandatory injunction and order the Solicitor General to endorse the Certificate of Judgment as required under section 14(2) of the CBASA.

LAW

8.	The basis of the plaintiff’s application is its reference to section 14(2) of the CBASA and its claim that the first defendant falls within the definition of the State under the said Act.  Also relevant for discussion is section 13(2) of the CBASA as it is referenced to by section 14(2).

9.	The sections read in part: 

13.	No execution against 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.

(Underlining mine)

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 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 on 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.

WHETHER KAVIENG DISTRICT DEVELOPMENT AUTHORITY IS “THE STATE”

10.	I have to ask myself this.  Is the first defendant “the State” within the meaning of section 13(2) of the CBASA?  In this case, I must say that I have answered this question in my recent decision, that is, Davidwestern Advertising Group Ltd v. Hiri 152 Developments Ltd and Ors (No. 2) (2019) N8112.  I stated at paragraphs 17 and 18 therein, and I quote:

16.	The first material fact to note, in my view, is that the State or the Independent State of Papua New Guinea is not named as a party to this proceeding.  In my view, section 3 of the Interpretation Act is expressly clear.  The 6th defendant is not the Independent State of Papua New Guinea as defined under section 3.  It may be a public body or an entity of the State.  However, it is not, in my view, the State as defined by the Act of Parliament, namely, by the Interpretation Act.  The Supreme Court in Habolo Building and Maintenance Ltd v. Hela Provincial Government (2016) SC1549, also expressed its view on point, which I find to be accurate, and I quote in part,
20.  It has been presumed that the appellant was obliged to give a Section 5 notice before commencing the proceedings. In fact, a Section 5 notice was not necessary as there was no claim against “the State”. If a person sues a provincial government, as distinct from the State, and does not sue the State, it is not necessary to give a Section 5 notice. 

17.	The 6th defendant, the Hiri Local Level Special Purpose Authority is being sued as one a total of 6 defendants.  And it claims, by this application, that a section 5(1) notice under the CBASA was warranted and should have been issued to the State before the plaintiff filed this proceeding.  It claims that a section 5(1) notice was required because it was, and still is, part of the State; that it is a state entity.  In my view, and as stated above, the 6th defendant may be a public entity or body of the State, but it is not the Independent State of Papua New Guinea.  I note that it can acquire assets and sue or be sued under its own name or style, that is, amongst its other capabilities as stated under the LLG Act and its Constitution.  I think this may be better illustrated if we picture the State as a holding or parent company.  Its subsidiaries may be related or be wholly owned by it, but they are also regarded as separate entities who may acquire assets and they may sue or be sued under their names or styles.  But they are not the parent company so if one wishes to sue the parent company, then it must name the parent company and sue the parent company as a separate legal person.  In this case, the 6th defendant may be an independent public entity or body that is related to or which may or may not form part of the State through the provincial or local-level government or pursuant to the provisions of the LLG Act, but it cannot, in my view, be regarded as the State within the meaning of section 3 of the Interpretation Act and section 5 under the CBASA.  Only the Independent State of Papua New Guinea is, in my view, defined as the State and therefore only the Independent State of Papua New Guinea shall be notified under section 5(1) of the CBASA if a person intends to commence an action against it.  Similarly, a section 5(1) notice under the CBASA is not required if one intends to sue entities that may relate to or be part of but are not the Independent State of Papua New Guinea within the meaning of section 3 of the Interpretation Act.

11.	I would adopt the reasoning in the said case herein.  The Kavieng District Development Authority may be an independent legal entity, or it may be created by a statute or a provincial legislation, or it may be regarded as a public body or a state entity.  However, it is not “the State” as defined under section 3 of the Interpretation Act Chapter No.2 (Interpretation Act).  The term “the State” is defined therein to mean the Independent State of Papua New Guinea.  

12.	I note the slight differences in the facts between the two cases.  In the present case, the Independent State of Papua New Guinea is named as a party to the proceeding.  This was not the case in Davidwestern.  But in the present case, despite the fact that the State is a party, which was not so in Davidwestern, judgment has not been entered against the State but only against the first defendant.  Therefore and at this stage of the proceeding, there is no judgment against “the State” or against the Independent State of Papua New Guinea.  I would remark that had judgment been entered against both defendants herein, it would have been a different scenario altogether, and I may not reach the same conclusion as this.

13.	I do not think or see my conclusion as contradictory to the established Supreme Court precedents.  For example, I refer to the five men decision of the Supreme Court in SCR No. 1 of 1998: Reservation Pursuant to s. 15 of the Supreme Court Act (2001) SC 672.  The Supreme Court held, and I quote, The term, "the State" also includes a Provincial Government.  As I have stated in Davidwestern, the Hiri Special Purpose Authority may be a state entity or an entity of the Central Provincial Government which may be part and partial of the State, and as held by the Supreme Court in SCR No. 1 of 2008.  However, it is not the State within its definition under section 3 of the Interpretation Act.  In my view, there is no ambiguity to the definition of the term “the State” that would require clarity, and I note that I have also reached that conclusion in Davidwestern.  

14.	I would remark that it makes sense where State bodies or entities are sued and where the State is also named as a nominal defendant.  In fact, it should be mandatory for parties that sue State entities or bodies, to ensure to also name the State or the Independent State of Papua New Guinea as a defendant.  In that way, registration of a Certificate of Judgment under section 14(2) may ensure in the event that judgment is entered against the said State entity and the State or the Independent State of Papua New Guinea.  A party who sues a state entity or body without also naming the State as a party to the proceeding shall face the real risk of not being able to have its Certificate of Judgment registered under section 14(2) of the CBASA.

SUMMARY

15.	Because of the conclusion reached, this notice of motion will be declined, and I do not see the need to consider the other remaining issues.  I find that no judgment has been entered against the State which is the Independent State of Papua New Guinea in the present proceeding.  As such, I find that it is misconceived to expect or request the Solicitor General to endorse the Certificate of Judgment under section 14(2) of the CBASA.

COST

16.	Cost award is discretionary in this instance.  I will order cost to follow the event.  I will order the plaintiff to pay the costs of the defendants on a party/party basis which may be taxed if not agreed.

THE ORDERS OF THE COURT

17.	I will make the following orders:

1.	The plaintiff’s notice of motion filed on 9 August 2019 is dismissed.

2.	The plaintiff shall pay the defendants’ costs in opposing the notice of motion on a party/party basis which may be taxed if not agreed.

3.	Time for entry of these orders is abridged to the date of settlement by the Deputy Registrar of the National Court which shall take place forthwith.

The Court orders accordingly.
_______________________________________________________________
O’Briens Lawyers:     Lawyers for the Plaintiff
Solicitor General:       Lawyer for the Defendant