Pansat Communications Pty Limited v Morea Vele and The Independent State of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Hinchliffe J, Sheehan J.
• Judgment Date: 05 May 1999
• Court: Supreme Court
• Citation: [1999] PNGLR 221
• Year: 1999
• Judgement Number: SC604

Supreme Court: Kapi DCJ, Hinchliffe J, Sheehan J.

Judgment Delivered: 5 May 1999

SC604

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM No. 3 of 1998

BETWEEN:

PANSAT COMMUNICATIONS

PTY LIMITED

Appellant

AND:

MOREA VELE

First Respondent

AND:

THE INDEPENDENT STATE OF

PAPUA NEW GUINEA

Second Respondent

Coram: Kapi DCJ., Hinchliffe J., Sheehan J.

1st October 1998, 5th May 1999

Judgment and Orders — Enforcement — Statutory prohibition on execution against State — Claim by and against The State Act 1996, s 13.

An action for mandamus or contempt of court proceedings may be brought against Solicitor-General or Departmental Head responsible for financial matters for non compliance with requirements under s 14 (2) and (3) respectively.

G. J. Sheppard for the appellant

P. Young for the respondents.

5th May 1999

BY THE COURT: This is an appeal by way of a notice of motion to review a refusal by the National Court to grant leave for judicial review under O 16 of the National Court Rules.

The background to this appeal is as follows. On the 19th December 1997, the parties obtained consent orders in the proceedings, OS 139 of 1997, in the National Court. Apart from other orders, the Court ordered that the State (the second respondent) pays to Pansat Communications Pty Ltd (the appellant) the sum of K19.5 million by way of liquidated damages. There was some suggestion that the consent orders are a nullity and the second respondent and its legal advisers indicated that they would challenge the orders. No proceedings have been brought to set aside the orders.

Subsequent to the consent orders, the appellant obtained a Certificate of Judgment pursuant to s 13 (2) of the Claims By and Against the State 1996 (the Act). It was subsequently endorsed by the Solicitor-General pursuant to s 14 (2) of the Act. The appellant then served the Certificate of Judgment upon the Secretary for Finance for satisfaction of the judgment pursuant to s 14 (3) of the Act. The State failed to satisfy the judgment.

On the 23rd June 1998, the appellant filed judicial review proceedings in the National Court for an order in the nature of mandamus to direct the Secretary of Department of Finance to observe the requirements of s 14 (3) of the Act, namely, to satisfy the judgment out of moneys legally available.

Leave for judicial review was heard by Sevua J. and in a judgment dated the 22nd June 1998, he refused leave and dismissed the application. In refusing to grant leave, the trial judge concluded that the appellant had no prospect of succeeding in that the order sought by the appellant is in effect a proceeding in the nature of "execution, or process in the nature of execution or attachment …against the ….. revenue of the State" which is prohibited by s 13 (1) and s 14 (5) of the Act. The appellant has appealed against this decision.

This appeal raises an important question of the proper interpretation and effect to be given to s 13 and s 14 of the Act. It is convenient to set out these provisions:

" 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.

14. SATISFACTION OF JUDGEMENT AGAINST THE STATE

(1) The certificate referred to in s 13 (2) shall be served on the

Solicitor General by —

(a) personal service; or

(b) leaving the document at the office of the Solicitor-General

with the person apparently occupying the position of personal secretary to the Solicitor-General between the hours of 7.45 a.m. and 12 noon p.m. and 4.06 p.m., or such other hours as may from time to time to be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).

(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 Solicitor-General's endorsement may be satisfied, the

Departmental Head responsible for finance matters shall, within a

reasonable time, satisfy the judgement out of moneys legally available.

(4) Any payment in satisfaction of judgement may, in the absolute

discretion of the Departmental Head responsible for finance matters, be

made by instalments, provided the judgement 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 judgement under this 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 trial judge considered these provisions and set out the arguments put before him by both parties. He then concluded:

"In my...