Jack Wagambi and Kupo (Appointed Representatives 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 Department of Defence) and The Independent State of Papua New Guinea [1991] PNGLR 145

• Jurisdiction: Papua New Guinea
• Judge: Sheehan J
• Judgment Date: 10 May 1991
• Court: National Court
• Citation: [1991] PNGLR 145
• Year: 1991
• Judgement Number: N978

Full Title: Jack Wagambi and Kupo (Appointed Representatives 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 Department of Defence) and The Independent State of Papua New Guinea [1991] PNGLR 145

National Court: Sheehan J

Judgment Delivered: 10 May 1991

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...