Dr Alois Kawa, for himself, & for & on behalf of Dorothy Kawa & as next Friend of Rosalie Kawa, Nigel Kawa, Annette Kawa, Daphne Kawa, Ghai Kawa & Joe Kawa, All Infants v Neville Devete, Solicitor-General and The Independent State of Papua New Guinea (2012) N4614

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2012) N4614
• Date: 16 March 2012
• Year: 2012

Full Title: Dr Alois Kawa, for himself, & for & on behalf of Dorothy Kawa & as next Friend of Rosalie Kawa, Nigel Kawa, Annette Kawa, Daphne Kawa, Ghai Kawa & Joe Kawa, All Infants v Neville Devete, Solicitor-General and The Independent State of Papua New Guinea (2012) N4614

National Court: Cannings J

Judgment Delivered: 16 March 2012

JUDICIAL REVIEW—application for order of mandamus against Solicitor-General—Claims By and Against the State Act, s14 (satisfaction of judgment against the State)—duty of Solicitor-General to endorse certificate of judgment

The plaintiff obtained judgment in the National Court against the State in the sum of K585,648.00. The Registrar subsequently issued to the plaintiff a certificate of judgment under s13(2) of the Claims By and Against the State Act. The plaintiff then served the certificate on the Solicitor-General under s14(1) of that Act. However, the Solicitor-General failed to endorse the certificate under s14(2) and the judgment remained unsatisfied. The plaintiff then filed an application for leave to seek judicial review of the failure of the Solicitor-General to endorse the certificate. Leave was granted and a trial was held on the application for judicial review.

Held:

(1) Once judgment is given against the State, a three-step procedure for satisfaction of the judgment must be followed under the Claims By and Against the State Act: Step 1: the registrar, clerk or other proper officer of the court by which the judgement is given is obliged by s13(2) to issue a certificate in Form 1 to the party in whose favour the judgement is given. Step 2: the Solicitor-General is obliged by s14(2) within 60 days from the date of service upon him of a certificate under s13(2), to endorse the certificate. Step 3: upon receipt of the certificate of a judgement against the State bearing the Solicitor-General's endorsement that judgement may be satisfied, the Departmental Head responsible for finance matters is obliged by s14(3), within a reasonable time, to satisfy the judgement out of moneys legally available.

(2) If any of the three officials fails to perform their duty in accordance with the Act, their failure will constitute an error of law, giving rise to the remedy of judicial review and in particular an order in the nature of mandamus.

(3) In the present case, step 1 had been completed and the certificate of judgment was duly served on the Solicitor-General, who was obliged within 60 days from the date of service to endorse the certificate.

(4) The plaintiff proved that the Solicitor-General failed to endorse the certificate within 60 days, thereby proving error of law.

(5) No good reason was apparent for the Court refusing the application for judicial review. An order in the nature of mandamus was granted, giving the Solicitor-General 14 days to endorse the certificate, failing which he will be summoned to appear before the National Court to show cause why he ought not be charged with contempt of court.

Cases cited

The following cases are cited in the judgment:

Alois Kawa v Hans Yob (2010) N3923; Francis Kawage v The Solicitor–General (1999) N1875; Gabriel Yer, Secretary of Department of Finance v The State (2008) N3326; Isidore Kaseng v Michael Debege (2004) N2735; Mision Asiki v Manasupe Zurenuoc (2005) SC797; Morris Manum v Senior Constable Dimuk Dage (2003) N2435; Pacific Helicopters Limited v Thaddius Kambanei (2007) N3242; Pansat Communications Pty Ltd v Morea Vele [1999] PNGLR 221; Sealark Shipping Pty Ltd v The Secretary for Treasury and Corporate Affairs [1998] PNGLR 333; Stephen John Rose v Neville Devete (2007) N3327

JUDICIAL REVIEW

This was an application by a judgment creditor for judicial review of the failure of the Solicitor-General to endorse a certificate of...