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Port Moresby City Council v Sheriff of PNG [1981] PNGLR 477 (24 November 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 477 - Port Moresby City Council v The Sheriff of PNG 

[1981] PNGLR 477

SC215

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PORT MORESBY CITY COUNCIL

V

THE SHERIFF OF PAPUA NEW GUINEA

EX PARTE PORT MORESBY CITY COUNCIL

Waigani

Andrew J Miles J Bredmeyer J

5 October 1981

24 November 1981

COSTS - Costs of execution - Writ of fifa - Costs indorsed on writ - Costs payable to judgment creditor - Rules of the National Court, O. 47 rr. 15, 16.

EXECUTION - Costs of - Writ of fifa - Costs on writ payable to judgment creditor - Rules of the National Court, O. 47, rr. 15, 16.

PREROGATIVE WRITS - Mandamus - Available against Sheriff of Papua New Guinea - Discretionary remedy.

The sum which a plaintiff may indorse on a writ of execution, for costs of the writ under O. 47 r. 16 of the Rules of the National Court, are costs of the judgment creditor and are payable to him by the sheriff.

The Sheriff of Papua New Guinea is a public official expressly designated as such under the Sheriff Act (Amalgamated) 1973, and mandamus will lie to secure the performance of his duties, and to compel him to pay a sum of money.

The Queen v. Commissioners for Special Purposes of the Income Tax [1888] UKLawRpKQB 130; (1888) 21 Q.B.D. 313 applied.

Return of Order Nisi for Writ of Mandamus.

This was the return of an order nisi commanding the Sheriff of Papua New Guinea to show cause why a writ of mandamus should not issue compelling him to pay the sum of K9.90, recovered as execution costs on execution of a writ of fifa, to the Port Moresby City Council.

Counsel:

W. J. Karczewski, for the prosecution.

B. Sakora, for the Sheriff of Papua New Guinea.

Cur. adv. vult.

24 November 1981

ANDREW J MILES J BREDMEYER J:  The Port Moresby City Council obtained a default judgment against Tomay Investments Pty. Ltd. for K4,742.40 and costs of K31.50. The Council obtained a writ of fieri facias on 16th December, 1980, addressed to the Sheriff commanding him to seize the lands, goods and chattels etc. of Tomay Investments Pty. Ltd. and levy a total sum of K4,923.16 against that company made up as follows:

TOTAL LEVY

The Sheriff recovered the total sum and paid K4,742.40 plus the costs of the writ of summons and judgment of K31.50 to the Council. The Council’s solicitor requested the Sheriff to also pay to the Council the execution costs of K9.90. The Sheriff refused. He said that was a cost payable to him for executing the writ of fieri facias. He said that the practice dating back for more than fifteen years has been to retain this sum. The Council’s solicitor disagreed and sought an order of mandamus against the Sheriff to compel him to pay the sum of K9.90 to the Council as judgment creditor. On 29th July, 1981, Quinlivan A.J. granted an order nisi returnable before this Court commanding the Sheriff to show cause why a writ of mandamus should not issue to the Sheriff commanding him to pay the sum of K9.90 to the Port Moresby City Council.

This Court undoubtedly has jurisdiction to make the order absolute under s. 155(4) of the Constitution. The K9.90 was payable to the Sheriff under O. 47 r. 16 of the Rules of the National Court. It is necessary to quote rr. 15 and 16 which read as follows:

15.     “In every case of execution the party entitled to execution may levy the taxed costs of the writ of execution, and the poundage, fees, and expenses of execution, over and above the sum recovered.”

16.     “The plaintiff may indorse on a writ of execution a direction to levy the sum of K9.90 for costs of the writ, which sum shall not be subject to taxation.”

By r. 9 the term “writ of execution” includes a writ of fieri facias. In r. 16 “the plaintiff” clearly refers to the party entitled to execution. By that rule he can indorse on the writ a direction to levy the sum of K9.90 for his costs of preparing the writ and the necessary praecipe and of lodging them with the Registrar. By r. 15 he can have his costs of preparing the writ of execution taxed and these costs are added to the judgment debt to be recovered by levy against the debtor’s lands, goods and chattels. Alternatively, if the party entitled to execution does not wish to have his costs of preparing the writ of execution taxed, he may by r. 16 simply indorse costs of K9.90 on the writ which sum is not subject to taxation. The K9.90 indorsed on the writ of fieri facias under r. 16 is the judgment creditor’s costs. It is different from the “poundage, fees and expenses of execution” referred to in r. 15 which the Sheriff may charge for his work in executing the writ which are delineated at length under the heading of “Sheriff’s Fees” in the Third Schedule to the Rules of the National Court. These fees were originally set out in the Rules of Court published in vol. 1, Laws of New Guinea 1921-45 at pp. 1054-55 but by Statutory Instrument No. 35 of 1978 the Sheriff’s fees were increased and they are now found in that Statutory Instrument.

The National Court Rules are not unique in providing that the judgment creditor receives fixed costs for preparing a writ of execution. Similar provisions are found in other jurisdictions. Thus in the District Court of Papua New Guinea the judgment creditor can indorse costs of K4.20 on a warrant of execution for a debt which exceeds K400 (see Item 9, Third Schedule, District Court Regulations 1965). Under the Rules of the English Supreme Court costs of issuing execution are allowed to the judgment creditor of £7.40p (Item 13, O. 62 Appendix 3, as at 1st September, 1979).

It follows from our interpretation of r. 16, that the Sheriff must pay the K9.90 to the Port Moresby City Council. But Mr. Sakora, counsel for the Sheriff, has argued that in this case mandamus should not lie against the Sheriff, that it is an inappropriate remedy to collect a debt, that the City Council should have first exhausted other remedies available to it.

The writ of mandamus is one of the prerogative writs and the Supreme Court’s power to grant it is found in s. 155(4) of the Constitution. The grounds for the award of mandamus are briefly summarized in de Smith Judicial Review of Administrative Action (2nd ed.) p. 561:

“Mandamus lies to secure the performance of a public duty, in the performance of which the applicant has a sufficient legal interest. The applicant must show that he has demanded performance of the duty and that performance has been refused by the authority obliged to discharge it. It is pre-eminently a discretionary remedy, and the court will decline to award it if another legal remedy is equally beneficial, convenient and effective.”

In this case the Sheriff of Papua New Guinea holds a statutory office created under the Sheriff Act (Amalgamated) 1973 in force on 1st May, 1975. (This Act is only published as Ch. 55 of the Revised Laws.) He is required to carry out his duties according to law. The City Council has a sufficient legal interest in the K9.90, which the Sheriff has obtained from the judgment debtor, and the City Council seeks to have it paid over. The Council demanded the sum from the Sheriff and was refused. It is true that remedies other than mandamus were available to the City Council and would have been equally effective and beneficial. For instance, a declaration could have been obtained before a single judge without the two-stage process of order nisi and order absolute required in obtaining mandamus. Despite the availability of the remedy of a declaration we think it not in the best interests of justice to refuse mandamus and compel the Council to apply for a declaration. The sum of money is small but the principle is an important one. This is a test case, the City Council is challenging the legality of the Sheriff’s practice going back many years. We propose to make the order sought but because the City Council chose the more cumbersome remedy of mandamus instead of declaration we propose to limit the Council’s costs and disallow the costs incurred in obtaining the order nisi.

Counsel for the Sheriff argued that although mandamus does lie against a public official to compel him to perform his duty, it does not lie to compel him to pay a sum of money. We disagree. There is authority against this proposition. Thus income tax commissioners were ordered by mandamus to repay overpaid income tax, R. v. Commissioners for Special Purposes of the Income Tax[dcclxvii]¹. (See also de Smith (2nd ed.) p. 576.)

Although not argued before us we need to refer to another point. It is a well-known rule of common law that mandamus does not lie against the Crown or against Crown servants acting exclusively in that capacity, see de Smith, pp. 562, 574. But where a statute has imposed a duty on an expressly-designated public official, and his duty is to be wholly discharged by him in his own official capacity, as distinct from his capacity as an adviser to or instrument of the Crown, the courts have shown a readiness to grant mandamus, de Smith, p. 576. Whether or not this doctrine of Crown immunity applies in Papua New Guinea, the Sheriff of Papua New Guinea is required to carry out his duties under the Sheriff Act (Amalgamated) 1973 and the Rules of Court according to law. He enjoys no immunity from suit. By s. 10 of that Act he may be sued in the name of the “Sheriff of Papua New Guinea” and any damages or costs are to be paid out of government revenue.

The orders of the court will be:

1.       Order absolute for the issue of a writ of mandamus.

2.       The writ is not to issue provided that the Sheriff of Papua New Guinea pay to the Port Moresby City Council within fourteen days the sum of nine kina ninety toea (K9,90).

3.       The Sheriff of Papua New Guinea is to pay the costs of the Port Moresby City Council incurred in this application save and except for the costs of obtaining the order nisi.

Orders accordingly.

Solicitor for prosecutor, Port Moresby City Council: W. J. Karczewski.

Solicitor for Sheriff of Papua New Guinea: Secretary for Justice.