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Pansat Communications Pty Ltd v Vele [1998] PNGLR 220 (22 June 1998)

[1998] PNGLR 220

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PANSAT COMMUNICATIONS PTY LTD

V

MOREA VELE;
THE INDEPENDENT STATE OF PAPUA NEW GUINEA;
JOHN MOMIS; AND
POST & TELECOMMUNICATION CORPORATION

WAIGANI: SEVUA J
17 and 22 June 1998

Facts

The plaintiff obtained a consent order for the sum of K19.5 million against all defendants except the fourth defendant on the 19th December, 1997. A certificate of judgment was subsequently endorsed by the Solicitor Generals Office and issued by the court to have the judgment satisfied. However, the first defendant has not paid the plaintiff yet. The plaintiff therefore applied for an order in the nature of mandamus to compel the first defendant to satisfy the judgment debt still owing to the plaintiff. Application for enforcement of such judgment is prohibited by ss 13(1) and 14(5) of the Claims By and Against the State Act 1996.

Section 13(1) and 14(5) of the Claims By and Against the State Act 1996 provides:

"13(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.

"14(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 Department 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 Subsections (2), (3) or (4), as the case may be, or unless other exceptional circumstances can be shown to the satisfaction of the court."

Held

1. The plaintiff’s application by way of mandamus is an order to compel the first defendant to make settlement payment of the judgment debt. This action is not different to the plaintiff seeking enforcement of the judgment of the judgment debt.
   
2. The use of court process to compel the State, judgment debtor to pay or settle a judgment debt, whether wholly or partly, is part of the process of enforcement of judgment debt, prohibited by ss 13(1) and 14(5) of the Claims By and Against the State Act 1996.
   
3. The plaintiff’s action in seeking enforcement of judgment is clearly prohibited by ss 13(1) and 14(5) of the Claims By and Against the State Act 1996 and is therefore refused.
   

Papua New Guinea cases cited

Steven Pupune & Ors v Ubum Makarai and PNGBC [1997] PNGLR 622.

Wagambie and Kupo v Bridagier General Rochus Lokinap & Ors [1991] PNGLR 145.

Counsel

G Sheppard, for plaintiff.
P Young, for defendants.

22 June 1998

SEVUA J. This is an application under Order 16 of the National Court Rules for leave for judicial review.

The plaintiff claims an order for judicial review in the following terms:

"(a) As against the first defendant, an order in the nature of mandamus under the provisions of Section 14(5) of the Claims By and Against the State Act (No 52 of 1996) ("the Act") requiring him within 14 days of the date of this order to satisfy the Consent Judgment in OS 130 of 1995 out of monies legally available, in accordance with his duties under s 14(3) or 14(4) of the Act."

The Court refused to entertain the relief sought in sub-paragraphs (b)(i) and (ii) and (c) of the plaintiff’s notice of motion because it deals with OS 130 of 1995 which the plaintiff claims, is no longer in existence, therefore the plaintiff’s counsel only addressed the Court on the relief sought in paragraph 1(a).

Briefly, the plaintiff had obtained a consent order for the sum of K19.5 million against the defendants except the fourth defendant, on 19th December, 1997. On 24th December, 1997, a certificate of judgment was issued by the Court and endorsed by the Solicitor General, who, pursuant to s 14(2) of the Act, certified that the judgment may be satisfied. The State has not paid any of this money therefore the plaintiff has now sought leave for judicial review pursuant to Order 16 Rule (3) of the National Court Rules.

Counsel for the plaintiff submitted that the plaintiff is merely seeking an order for mandamus to compel the performance of a duty under s 14(4) of the Act, on the basis that the Departmental Head responsible for finance matters had not performed his duty. The plaintiff therefore claims mandamus under s 14(5) of the Act as it says, it is entitled to enforcement of the duty under s 14(4).

Section 14 of the Act provides as follows:-

"(3) Upon receipt of the certificate of 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 Departmental 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 the 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."

The defendants opposed this application. Counsel for the defendants appeared by virtue of s 8 of the Act. He made two basic submissions. Firstly, he submitted that, the plaintiffs application is an attempt to enforce judgment against the State and that is prohibited by s.13 of the Act. He relies on Wagambie and Kupo v Brigadier General Rochus Lokinap & Ors [1991] PNGLR 145 and Steven Pupune & Ors v Ubum Makarai and PNGBC [1997] PNGLR 622.

The second submission, which, counsel for the defendants say is really a secondary submission, is that, Woods, J, should deal with this matter as he is dealing with OS 130 of 1995.

In reply, counsel for the plaintiff submitted that the cases cited by the defendants are misleading in that they were not applications for leave for judicial review. Furthermore, it was submitted that the plaintiff is not seeking to attach or execute any property or revenue of the State. The Court is obliged to order mandamus to compel the first defendant to do his duty and there is no problem with the separation of powers between the State and the Court. An order for mandamus is expressed in Order 16 of the National Court Rules.

Secondly, counsel for the plaintiff submitted that the proceedings in OS 130 of 1995 have been concluded.

There is no doubt that the first defendant has a mandatory duty to satisfy the judgment debt out of monies legally available pursuant to s 14(3) and (4) of the Act.

Mr Sheppard, counsel for the plaintiff says, the plaintiff is not seeking to enforce the judgment against any property or revenue of the State, but is merely seeking an order for mandamus to compel the first defendant to do his duty.

In my view, the plaintiff’s counsel’s submission is mischievous. The nature of an order for mandamus is really an order to compel a person to do an act. In this case, the plaintiff seeks an order by way of the writ of mandamus to compel the first defendant to carry out his duty. What then is the first defendant’s duty that the plaintiff is seeking to compel by order of the Court? The duty is to settle the judgment debt by payment from moneys legally available. In my view, that is tantamount to the plaintiff seeking execution of the judgment debt.

Mr Reeve raised the same submission in Wagambie and Kupo’s case. He submitted that the plaintiffs were not trying to enforce the judgment or levy execution in those proceedings, but rather wish to "implement" the judgment in their favour, or at least obtain sufficient information to ascertain whether funds were available to meet their judgment. Sheehan, J said at p147, what I wish to say here too and that is, I think it is quite difficult to see just where Mr Sheppard’s submission differs from compelling settlement by an order in the nature of mandamus.

The order by way of mandamus is an order to compel the first defendant to pay money to the plaintiff. It is no different to the plaintiff seeking enforcement of the judgment debt. Therefore in my view, what the plaintiff is seeking here is, enforcement, which is clearly prohibited by ss 13(1) and 14(5) of the Act.

The plaintiff’s notice of motion clearly spells out what he is seeking. He seeks an order by way of mandamus requiring the first defendant "within 14 days of the date of this order to satisfy the consent judgment in OS 130 of 1995 out of monies legally available."

In my view, the plaintiff is seeking an order to compel the first defendant to effect payment. Surely that must be seen to be an application to enforce the consent judgment.

I consider that the use of the court process to compel the State, the judgment debtor, to pay or settle a judgment debt, whether wholly or partly, is part of the process of enforcement of a judgment debt. I reiterate that this is prohibited by s 13(1) and s 15(5) of the Act. Whilst I agree with Mr Sheppard that Wagambie and Kupo’s case was not an application for leave seeking an order by way of mandamus, I am of the view that the principle is applicable in this case. I think the plaintiff’s application borders on abuse of the court’s process, in view of the prohibition found in the Act.

I am of the view that the use of the Court’s process to grant an order in the nature of mandamus, as sought by the plaintiff, is no different to asking the Court for an order to enforce the judgment debt by compelling the first defendant to pay. It is my view therefore that, that amounts to enforcement which is prohibited by law. The plaintiff’s application therefore must be refused.

Whilst the plaintiff’s application at this stage is for leave for judicial review, it is my view nevertheless, that the application for leave is unmeritorious and should not be granted.

The plaintiff’s application for leave is therefore dismissed with costs.

Lawyer for the plaintiff: Maladinas.
Lawyer for the defendants: Allens Arthur Robinson.