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Wagambi v Lokinap [1991] PNGLR 145 (10 May 1991)

Papua New Guinea Law Reports - 1991

[1991] PNGLR 145 - Jack Wagambi v Brigadier General Rockus Lokinap 

[1991] PNGLR 145

N978

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WAGAMBIE AND KUPO (APPOINTED REPRESENTATIVES AND ON BEHALF OF RETRENCHED MEMBERS OF PAPUA NEW GUINEA DEFENCE FORCE)

V

BRIGADIER GENERAL ROCKUS LOKINAP (COMMANDER OF PAPUA NEW GUINEA DEFENCE FORCE)

AND MOKIS (SECRETARY FOR THE DEPARTMENT OF DEFENCE)

AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Sheehan J

3 May 1991

10 May 1991

EXECUTION AND ATTACHMENT - State as judgment debtor - Statutory prohibition on “execution” against State - Precludes payment into Court - Precludes examination of officers of State as to assets - Claims By and Against the State Act (Ch No 30), ss 6, 7.

JUDGMENT AND ORDERS - Enforcement - State as judgment debtor - Statutory prohibition on “execution” against State - Precludes payment into Court - Precludes examination of officers of State as to assets - Claims By and Against the State Act (Ch No 30), ss 6, 7.

The Claims By and Against the State Act (Ch No 30), provides:

“6.      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.”

“7.      Satisfaction of Judgment by Secretary for Finance

On receipt of the certificate of a judgment against the State the Secretary for Finance shall satisfy the judgment out of monies legally available.”

Held

Where the State is a judgment debtor, the provision of s 6 and s 7 of the Claims By and Against the State Act (Ch No 30), precludes:

(a)      orders for payment into court of a judgment debt against the State;

(b)      examination of the Secretary of State or other officers of the State as to the means or ability of the State to pay the judgment debt;

because they are part of the process of execution or attachment.

Franklin v The Queen (No 2) [1974] QB 205; [1973] 3 All ER 861, applied.

Cases Cited

Franklin v The Queen (No 2) [1974] QB 205; [1973] 3 All ER 861.

Notice of Motion and Summons

This was the hearing of a notice of motion seeking orders for, inter alia, payment into court of a judgment debt against the State and a summons seeking to examine the Secretary of State as to availability of funds to meet the judgment debt.

Counsel

J Reeve, for the applicants.

J Puringi, for the respondents.

Cur adv vult

10 May 1991

SHEEHAN J: On 7 December 1990, the plaintiffs obtained judgment in the National Court for retrenchment moneys claimed by them as due from the State.

Essentially that order of the court says that judgment is entered against the State for each of the 559 plaintiffs listed in the schedule to the extent of the sum of money set against each plaintiff’s name. These sums range from some K4,900 to several in excess of K300,000. The judgment overall totals a sum in excess of K24 million.

Pursuant to that judgment, on 2 April 1991, the Registrar of the Court issued a certificate, in accordance with s 6(2) of the Claims By and Against the State Act (Ch No 30). This was served the same day on the Secretary for Finance.

Counsel for the plaintiff advised the Court that despite formal service on the Secretary for Finance, the judgment had not been met. The plaintiffs had accordingly given notice of this motion as a means of seeking a method of payment out. Accordingly, they sought the orders set out in the motion, namely, that:

“1.      That the Third Defendant, the Independent State of Papua New Guinea satisfy out of moneys legally available, the judgment and orders in favour of the Plaintiffs’ this Honourable Court ordered on 7 December 1990 and entered on 2 April 1991 in accordance with the provisions of the Claims By and Against the State Act Chapter No 30.

2.       That the said Third Defendant by its responsible Officer, the Secretary for Finance, Morea Vele, be ordered to so satisfy such Judgment by payment into this Honourable Court within seven (7) days of the date of this order in respect of each Plaintiff listed in the schedule to the said judgment and order of the sum set forth against the name of such Plaintiffs in the said schedule to the said judgment and order.”

The plaintiffs also sought further orders that this Court pay out to each plaintiff in due course and the costs of this motion.

Affidavits have been filed confirming that the judgment has not been met by the Secretary for Finance and a summons was issued to him to appear before this Court for the purpose of giving evidence on the availability of funds to meet the judgment debt. Mr Reeve submitted that this was in no way a breach of the provisions of s 6 of the Claims By and Against the State Act since there was no intention of seeking orders for the enforcement of payment. All that was sought was information as to whether funds had been legally available since judgment or, if funds to meet the whole of debt were not then or now available, whether any funds were available to meet it partially at this time and what timetable could be established in which the balance of moneys could be paid.

Mr Puringi for the defendants opposed the motion, submitting that s 6 and s 7 of the Claims By and Against the State Act (Ch No 30) were very clear in prohibiting any enforcement of execution against the State. He further submitted that it was not open to the plaintiff to say that application to the Court to order payment of the judgment, was not in itself an “execution” whether directly or indirectly. The course of action adopted by this motion and the summons to the Secretary for Finance, was clearly one prohibited by s 7 of Ch No 30.

He said it is not open to the plaintiff to seek to compel the Secretary for Finance to give evidence. That procedure is a part of the process of enforcement and directly contrary to the provisions of the statute.

Mr Puringi also submitted that since the judgment, an application for judicial review had been lodged in the Supreme Court; that this application should be refused or at least postponed until the review is heard.

That last submission may be quickly disposed of. Since no application had been made to stay the National Court Order of 7 December 1990, that submission must fail.

The Rules of Court provide the means of enforcing judgments obtained in the National Court. In brief, to ensure payment of a judgment debt or to compel compliance with any order, a judgment creditor can enlist the aid of the court by obtaining orders for: seizure and sale of property; attachment of funds; orders for possession of land and the like. To aid the enforcement process, a judgment creditor may also obtain an order that the judgment debtor be examined as to his means to pay. These remedies are available to all judgment creditors whether it be a person, a company or the State.

But, under the Claims By and Against the State Act, when the State is the judgment debtor it is immune from all ordinary methods of enforcing judgment and nothing in the National Court Rules relating to enforcement applies in respect of any order made against the State. Section 6 and s 7 of that Act read:

“6.      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.

7.       Satisfaction of Judgment by Secretary for Finance

On receipt of the certificate of a judgment against the State the Secretary for Finance shall satisfy the judgment out of monies legally available.”

Mr Reeve has submitted that the plaintiffs are not trying to enforce judgment, or levy execution, in these proceedings but rather wish to “implement” the judgment in their favour, or at least obtain sufficient information to ascertain whether funds are available to meet their judgment.

I find it very difficult to see just where that differs from compelling settlement by further court orders. However, it seems to me that the plaintiffs’ intention is best spelt out in the motion already set out above. In brief, that seeks an order for payment of the judgment debt within seven days. Surely that must be seen to be an application for the court to compel payment. The summons served on the Secretary for Finance is also relevant. It orders the Secretary to attend that Court to give evidence and to produce:

“All 1991 budget papers and documents, cash fund certificates, commitment ledgers, purchase orders, general expense forms and other documents which show or tend to show what moneys were legally available between 2 April 1991 and 2 May 1991 and are now available to satisfy the Judgement and Order of the National Court of Justice in these proceedings as particularised in the Certificate of Judgement dated 2 April 1991 which was served upon you in accordance with the Claims By and Against the State Act — Chapter No 30.”

Now, whether that be a summons to give evidence pursuant to the National Court Rules, O 11, r 2 of (which is the ordinary summons for a witness to attend and give evidence in civil proceedings) or under O 13, r 13 (a summons to examine as to means) there can be no doubt as to the purpose of the summons. It is quite clearly a summons to examine the Secretary for Finance to establish, not only why the money has not been paid to date, but to establish the State’s ability to pay and a programme for payment.

There can be no doubt that such use of court process to compel the State, the judgment debtor, to pay up or detail the means of meeting a judgment debt is part of the process of enforcement of a judgment debt prohibited by Ch No 30.

The plaintiffs’ application must be refused. The statute is clear. There shall be no execution, nor shall like process issue against the State (including questions as to the State’s ability to pay).

The English Court of Appeal, in Franklin v The Queen [1973] 3 All ER 861, held that where the State is a judgment debtor, examination of the officers of the State as to the means or ability to pay is part of the enforcement process and not available to a judgment creditor against the State.

That case was very similar to the present. Judgment had been obtained against the Bank of England for a nominated sum and when only a portion of that was met, the plaintiff sought to examine the bank accountant as to the means of satisfying the rest of the order. It was held that since the judgment was against the Crown no examination was permissible.

Why should this be so? Why is the State exempt from execution process? Essentially it is because the State of Papua New Guinea is a sovereign nation, endowed with the power of its people and, as the Constitution states, resolute in maintaining its national identity, integrity and self- respect.

While the State can sue and be sued in the courts established under that Constitution it, none the less, remains a sovereign State representing the whole of this country’s people. It is part of the State’s integrity to accept the judgments of the Courts created under the Constitution. But the dignity of a sovereign nation does not permit or require that it be subject to examination in the courts as to its means or ability to pay judgment debts. The Claims By and Against the State Act confirms that. Parliament has the control of the State’s finances and the disposition of those finances is debated and decided there.

It was submitted by Mr Reeve that it was anomalous to suggest that even questions as to the ability of the State to meet a judgment could be prohibited or indeed that the State could not be forced by court order to meet judgment against it.

There is no anomaly. The Claims By and Against the State Act (Ch No 30) does provide how the State will meet a judgment debt against it, and it does prohibit any action whether by court order or otherwise to enforce payments. It simply directs that the Secretary for Finance shall meet the judgment out of funds lawfully available to him.

In this case, Mr Reeve has told the Court that the plaintiff’s case is not one where the State or the Secretary for Finance has refused to pay the judgment debt. It is the case where the Secretary for Finance has failed to pay the judgment debt. That only means that the moneys have not yet been paid.

The judgment creditors have no rights in law to the orders they seek. The motions are declined. The summons to the Secretary for Finance is discharged.

Motions refused

Summons discharged

Lawyer for the applicant: Reeves Lawyers.

Lawyer for the defendants: Acting Solicitor-General.