Isidore Kaseng and 24 Other Persons are Listed in The Schedule v Michael Debege, Acting Administrator, Department of Western Province Kina Finance Limited, Fly River Provincial Government, Collin Travetz, Secretary, Department of Provincial Affairs and The Independent State of Papua New Guinea (2004) N2735

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 26 November 2004
• Court: National Court
• Citation: (2004) N2735
• Year: 2004
• Judgement Number: N2735

Full Title: Isidore Kaseng and 24 Other Persons are Listed in The Schedule v Michael Debege, Acting Administrator, Department of Western Province Kina Finance Limited, Fly River Provincial Government, Collin Travetz, Secretary, Department of Provincial Affairs and The Independent State of Papua New Guinea (2004) N2735

National Court: Kandakasi J

Judgment Delivered: 26 November 2004

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 1070 OF 1998

BETWEEN

ISIDORE KASENG AND 24 OTHER PERSONS ARE LISTED IN THE SCHEDULE

Plaintiffs

AND:

MICHAEL DEBEGE, ACTING ADMINISTRATOR, DEPARTMENT OF WESTERN PROVINCE KINA FINANCE LIMITED

First Defendant

AND:

FLY RIVER PROVINCIAL GOVERNMENT

Second Defendant

AND:

COLLIN TRAVETZ, SECRETARY, DEPARTMENT OF PROVINCIAL AFFAIRS

Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

WAIGANI: KANDAKASI, J.

2004: 08th October

26th November

JUDGMENTS AND ORDERS - Certification of judgments against the State – Purpose of – Facilitate satisfaction of judgment or order and not itself constitute an order or judgment - Entry of – Orders not made by the Court – Effect of – Abuse of Court’s process – Certification invalid – Effectively error on Court record – Open for correction under “slip rule”– Delay in application for correction not detrimental but entitles other party to costs.

Papua New Guinean Cases Cited:

Drew v. Towers Investment Pty Ltd [1973] PNGLR 450.

Simon Mali & Ors. v. Independent State of Papua New Guinea (03/04/02) SC690.

The Honourable Andrew Baing & The State (23/02/2000) and PNG National Stevedores Pty Ltd & BSP (23/02/2000) SC672.

Coecon Limited (Receiver/Manager Appointed) v. The National Fisheries Authority of Papua New Guinea (28/02/02) N2182.

Papua New Guinea Banking Corporation v. Jeff Tole (27/09/02) SC694).

Internal Revenue Commission v. Dr. Pirouz Hamidian-Rad (22/03/02) SC692.

Orogen Minerals Limited v. Internal Revenue Commission (26/09/03) N2464.

Richard Dennis Wallbank and Jeanette Minifie v. The Independent State of Papua New Guinea [1994] PNGLR 78.

Re Nomination of Governor–General; Application by Sir Pato Kakaraya (No 2) (18/06/04) SC752.

Umapi Luna Pakomeyu & Ors. v. James Siai Wamo & Ors. (12/11/04) N2718.

Overseas Cases Cited:

Autodesk Inc. v. Dyason (No.2) of (1993) 67 CLR 270 where Mason CJ., at page 302.

Counsel:

K. Kua for the Defendants/Applicants.

P. Parkop for Plaintiffs/Respondents.

26th November 2004

KANDAKASI J.: The defendants (applicants) are applying by notice of motion filed on 22nd September 2004 for a set aside of two certificates of judgment against the State dated 30th April 2004 and 7th May 2004. The application is under O 8 r 59 of the National Court Rules (Rules). The applicants claim that, the Court did not make any order forming the foundation for either of these certificates. Alternatively, they submit that if the Court made such orders, there is then an error, on the face of the certificates of judgment and therefore the Court’s record, which requires correction under the slip rule.

The plaintiffs’ (respondents) oppose the application saying the Court made the relevant orders by consent of the parties. They also submit that, there is no error for correction in the way argued for by the applicants and that the orders were the subject of certification by the Solicitor General and not the Court. Further, they take issue on the timing of the application and submit that, there has been unreasonable delay, which the applicant has not satisfactorily explained. Based on these factors, they ask for a dismissal of the application.

The Relevant Issues

From the arguments of the parties, it seems the issues are as follows:

1. Did the Court make the orders in terms of the certificates of judgment dated 30th April and 7th May 2004?

2. Depending on the answer to the first question, are the certificates of judgment valid?

3. If the Court made those orders, are there mistakes warranting correction under the slip rule?

4. Has there been unreasonable delay in bringing this application?

I will consider the first issue first as a determination of that issue in the negative, in my view, might render a consideration of the other issues unnecessary or only secondary. However, before getting into a consideration of the issues, it is necessary to set out the evidence and the facts they support and to appreciate the background to the issues to properly determine them. Accordingly, I descend into that aspect now.

The Relevant Evidence

The applicants rely on the Affidavit of John Kumura sworn on 21st September 2004. Mr Kumara is a senior lawyer with the Solicitor General’s Office. He deposes that from time to time, he has acted on the matter or alternatively acted as liaising officer between the Solicitor General’s Office and external lawyers who acted on behalf of the Defendants.

For the respondents is an affidavit by a Gonene Kurokuro, sworn on 6th October 2004. He is one of the plaintiffs in these proceedings, responding to the application. The applicants have also filed the affidavit of Powes Parkop, sworn on 23rd August 2004 and filed on 3rd September 2004. That affidavit covers the circumstance leading to the two certificates of judgment under consideration.

The Relevant Facts and Background

From the above affidavits, come the relevant backgrounds and facts giving rise to the application and the issues before this Court. This starts with the issuance of the writ of summons on 29th October 1998. The statement of claim endorsed thereto contains a claim for various declaratory relief orders together with a claim for an order at paragraph 18.6 that:

“The Third Defendants pay the Plaintiff named in schedule 1 attached to the Writ of Summons, the amount specified in schedules 2 and 3 attached to this Writ of Summons”.

Schedules 2 and 3 set out each of the plaintiffs liquidated claims totaling K2,148,834.

On 18th March 1999, the Court entered default judgment against the defendants with damages to be assessed. About two years later, on 16th February 2001, on the application of the second defendant, the default judgment was varied in the following terms:

“That pursuant to Order 8 Rule 59 of the National Court Rules, paragraph 1 of the Default Judgment entered on 11th day of June 1999 is corrected to read as ‘Default Judgment is entered in favour of the Plaintiff against the Fourth named Defendant.’”

Consequentially, the Court deleted the default judgments as against the first, second and third defendants. Hence, there is no judgment against those defendants at the present.

On 16th December 2003, the Deputy Governor of Fly River Provincial Government, Hon. John Malom MPA, wrote to Mr John Kumura to settle the Plaintiffs claim at K16, 035,000. In the following year on 14th January 2004, the Governor of the Fly River Provincial Government, Hon. Bob Danaya wrote to their then Lawyer, Henaos Lawyers informing them of a termination of their services and the appointment of the Solicitor General as lawyers for the Second Defendants as well. A copy of this letter was sent to Mr John Kumura in his capacity as Acting Solicitor General and to Mr Nelson Hungrabos, the Provincial Administrator.

On 4th February 2004, Hon. Bob Danaya, wrote to the Fly River Provincial Government’s in-house lawyer, Mr Sinclar Gore instructing Mr. Gore to liaise with Mr. Kuvi of the Solicitor General’s Office to settle the Plaintiffs claim “in full and in a manner requested by the claimants.” This letter was also copied to the now Acting Solicitor General, Mr Francis Kuvi. In that same letter, Governor Danaya also said, “I endorse the submission by the claimant’s lawyers to the office of Solicitor General” without mentioning any specific amount(s).

Following those correspondence, the Court entered a judgment by consent in the following terms on 21st April 2004:

“1. That the Defendants settle the Plaintiffs claim as agreed between the Plaintiffs and the Second and Fourth Defendants.

2. That by consent, interest, costs and CPI adjustments be included for the period 30th June 2003 to the date of agreement.

3. That by consent, the Second and Fourth Defendants facilitates (sic) all documentation necessary to facilitate the immediate settlement of the judgment debt in full.

4. The Judgment debt be...