Pansat Communications Pty Limited v Morea Vele and The Independent State of Papua New Guinea (1999) SC604

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: [1999] PNGLR 221
• Date: 05 May 1999
• Year: 1999

Full Title: Pansat Communications Pty Limited v Morea Vele and The Independent State of Papua New Guinea (1999) SC604

Supreme Court: Kapi DCJ, Hinchliffe J, Sheehan J

Judgment Delivered: 5 May 1999

1 Judgment and Orders—Enforcement—Statutory prohibition on execution against State—Claims by and against The State Act 1996, s13.

2 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 s14(2) and s14(3) respectively.

3 Emas Estate Development Pty Ltd v John Mea [1991] (Unnumbered and Unreported National Court judgment), Sealark Shipping Pty Ltd v The Secretary for Treasury and Corporate Affairs [1998] PNGLR 333, Steven Pupune v Ubum Makarai [1997] PNGLR 622, Jack Wagambi v Brigadier General Rockus Lokinap [1991] PNGLR 145 referred to

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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 O16 of the National Court Rules.

The background to this appeal is as follows. On 19 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 s13(2) of the Claims By and Against The State Act 1996. It was subsequently endorsed by the Solicitor–General pursuant to s14(2) of the Claims By and Against The State Act 1996. The appellant then served the Certificate of Judgment upon the Secretary for Finance for satisfaction of the judgment pursuant to s14(3) of the Claims By and Against The State Act 1996. The State failed to satisfy the judgment.

On 23 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 s14(3) of the Claims By and Against The State Act 1996, namely, to satisfy the judgment out of moneys legally available.

Leave for judicial review was heard by Sevua J and in a judgment dated 22 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 s13(1) and s14(5) of the Claims By and Against The State Act 1996. The appellant has appealed against this decision.

This appeal raises an...