Francis Kawage v The Solicitor–General and The Independent State of Papua New Guinea (1999) N1875

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 02 July 1999
• Court: National Court
• Citation: (1999) N1875
• Year: 1999
• Judgement Number: N1875

National Court: Injia J

Judgment Delivered: 2 July 1999

N1875

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 124 OF 1999

BETWEEN:

FRANCIS KAWAGE

-Plaintiff-

AND:

THE SOLICITOR GENERAL

-First Defendant-

AND:

THE STATE

-Second Defendant-

LAE : INJIA, J.

1999 : APRIL 9

July 2

Practice and procedure - Civil - Application for mandamus
under S.14(5) of Claims By and Against the State Act 1996 - Application by
Originating Summons under order 4 rule 3 of the National Court Rules inappropriate -
Application for judicial review under Order 16 of National Court Rules appropriate.

Cases cited in the judgment

Pansatt Communications Pty Ltd -v- Morea Vele & The State SC 604 [1999]

S. Tedor for plaintiff

No appearance from the defendants

2 July 1999

Injia, J.: By Originating Summons filed pursuant to Order 4 rule 3 of the National Court Rules, on 11 March 1999, the plaintiff claims the following orders, inter alia:-

1. For an order in and by way of mandamus that the First named Defendant forthwith
endorse the Certificate of Judgement served on him in respect of the Judgement
obtained by the Plaintiff on the 17th day of September, 1998, for the sum of
K46,006.54 with interests plus costs pursuant to Section 14(2) of the Claims by and
Against the State Act, 1996.
2. For an order in and by way of mandamus that the First-named Defendant forthwith
forward the endorsed Certificate of Judgement in respect of the Judgement
obtained by the Plaintiff to the Secretary for Treasury & corporate Affairs.
3. For an order in and by way for mandamus that the First named Defendant include
in the endorsed Certificate of Judgement calculation of interests due in respect of
the Judgement Debt payable at the rate of 8% per annum of K46,006.54 or K10.10
per day commencing the 17th day of September, 1998, up to the date of settlement.

The application is filed pursuant to S.14(2) of the Claims By and Against the State Act 1996. The whole of Sections 13 and 14 are relevant for the purpose of this application. These sections provide:

S.13 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 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.

S. 14 SATISFACTION OF JUDGEMENT AGAINST THE STATE

(1) The certificate referred to in Section 13(2) shall be served on the
Solicitor-General.
(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
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