Atlas Corporation Limited v Dr Ken Ngangan, in his capacity as Departmental Head responsible for finance matters within the terms of the Claims By and Against the State Act And The Independent State of Papua New Guinea (2018) N7674

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu J
• Judgment Date: 29 November 2018
• Court: National Court
• Citation: (2018) N7674
• Docket Number: OS (JR) No. 18 OF 2017
• Year: 2018
• Judgement Number: N7674

Full Title: OS (JR) No. 18 OF 2017; Atlas Corporation Limited v Dr Ken Ngangan, in his capacity as Departmental Head responsible for finance matters within the terms of the Claims By and Against the State Act And The Independent State of Papua New Guinea (2018) N7674

National Court: Gavara-Nanu J

Judgment Delivered: 29 November 2018

N7674

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 18 OF 2017

BETWEEN

ATLAS CORPORATION LIMITED

Plaintiff

AND

DR KEN NGANGAN, in his capacity as Departmental Head responsible for finance matters within the terms of the Claims By and Against the State Act

First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Gavara-Nanu J.

2017: 17 November

2018: 13 & 20 August & 29 November

JUDICIAL REVIEW- Application for judicial review – Relief sought – Declarations and mandamus – Application to enforce a Certificate of Judgment – Original judgment debt amounting just over K1.6m – Accrued interest over about 13 years amounting over K75m.

JUDICIAL REVIEW – Application for judicial review – Certificate of judgment – Endorsement by Solicitor General – State paying part of the principal amount – Judgment debt just over K1.6m – The State through Secretary for Department of Finance not paying interest – Over 13 years of accumulated interest – Whether mandamus would lie against Secretary for Finance.

JUDICIAL REVIEW – Statement in Support – Order 16 r 3 (2) (a) and (b) – Verified facts – Affidavit verifying – Verified facts carry weight – A Statement of Claim distinguished.

Cases cited:

Azzam El Cheikh v. Rimbink Pato (2017) N6879

Gabriel Yer v. Peter Yama (2009) SC996

GaKumiye & 5 Others v. The Independent State of Papua New Guinea & Ors (2018) SC1693

John Momis v. Attorney General [2000] PNGLR 109

Luke Tai v. ANZ Banking Group (PNG) Limited (2018) SC1681

Luke Yaluma v. The State (2010) N4088

NCDC v. Yama Security Service Pty Ltd (2003) SC707

Sam Koim v. Hon. Peter O'Neil (2014) N5694

Steven John Rose v. The State (2007) N3241

The Independent State of Papua New Guinea & Ors v. Toka Enterprises Limited (2018) SC1746

Counsel:

M. Goodwin, for the Plaintiff

F. Barton, for the Defendants

29th November, 2018

1. GAVARA-NANU J: On 17 November, 2017, this application was heard ex-parte of the State following failure by State’s lawyers to appear and defend the application despite being served with the Notice of Trial.

2. On 20 August, 2018, second hearing was convened by the Court because of its view that it needed assistance from the State on some pertinent issues. At that hearing the State was represented by the Solicitor General, Ms. Barton, following a direction by the Court. At the hearing the Court informed counsel that the Solicitor General was directed to appear to clarify issues regarding the interest component of the amount claimed in the Certificate of Judgment which the plaintiff is seeking to enforce against the State.

3. Ms Barton made submissions but only briefly because Mr. Goodwin, counsel for the plaintiff objected to her being heard. He argued that the issues the Court was concerned about had already been argued at the ex-parte hearing and were fully clarified by the documentary evidence already before the Court. Mr. Goodwin also submitted that the Court having heard arguments on the issues at the ex-parte hearing those issues have been fully litigated and the Court should proceed and give its decision.

4. It should be noted that the Solicitor General was directed by the Court to appear because the Court was of the view that the State should be given an opportunity to be heard on over K75m in accrued interests the plaintiff is claiming from the initial judgment debt of just over K1.6m adjudged by the National Court in 2005.

5. After considering submissions by counsel, I have decided that I should decide the application only on the arguments presented by the plaintiff at the ex-parte hearing on 17 November, 2017. I have come to this decision given that the trial had been concluded on 17 November, 2017. I have also for that reason disregarded the materials adduced by the State, including brief submissions by the Solicitor General.

6. The plaintiff’s application is made pursuant to a Notice of Motion filed under Order 16 r 5 (1) of the National Court Rules on 8 January, 2017. The plaintiff relies on two affidavits of Mathew Thomas Trnka, respectively sworn on 30 June, 2017 and 25 January, 2017. The latter is titled “Affidavit Verifying Statement pursuant to Order 16 r 3 (2) (a)”, although it contains supporting evidence. Then there are two affidavits of Michael Goodwin respectively sworn on 21 January, 2017 and 26 April, 2017.

7. In the Notice of Motion, the plaintiff seeks following reliefs:

(i) A declaration that the time which has lapsed from receipt of the Certificate of Judgment in matter SCA No. 6 of 2003, dated 13 March, 2012, endorsed by the Solicitor General on 27 July, 2016, and delivered to the first defendant, exceeds the reasonable time referred to in s. 14 (3) of the Claims By and Against the State Act, in which the first defendant should make payment in satisfaction of the judgment.

(ii) A declaration that the action of the first defendant in failing, refusing or neglecting to satisfy the judgment in matter SCA No. 6 of 2003, dated 13 March, 2012, within a reasonable time with the meaning of s. 14 (3) of the Claims By and Against the State Act, is unreasonable in the circumstances.

(iii) A declaration that the actions of the first defendant in failing, refusing or neglecting to satisfy the judgment in matter SCA No. 6 of 2003, dated 13 March, 2012, within a reasonable time is unlawful and a breach of the first defendant’s duty under s. 14 (3) of the Claims By an Against the State Act.

(iv) An order be issued requiring the first defendant to forthwith satisfy the judgment in matter SCA No. 6 of the 2003, dated 13 march, 2012, in favour of the plaintiff, which was endorsed by the Solicitor General as fit for payment on 27 July, 2016, and served on him immediately thereafter.

(v) A declaration that the actions of the first defendant in failing, refusing or neglecting to satisfy the judgment in a reasonable time in SCA No. 6 of 2003, dated 13 March, 2013, in favour of the plaintiff which was endorsed by the Solicitor General as fit for payment on 27 July, 2016, and served on him, is unlawful and a breach of the first defendant’s duty pursuant to s. 14 (3) of the Claims By and Against the State Act, and a breach of his duty under the Public Finance Management Act, to safeguard public monies and avoid waste, by permitting Court Ordered interest to continue to accrue for an reasonable period.

(vi) An order be issued requiring the first defendant to appear before the National Court and show cause why an Order of the nature of Mandamus should not be issued against him requiring him to forthwith satisfy the Certificate of Judgment in matter SCA No. 6 of 2003, dated 13 March, 2012, in favour of the plaintiff.

(vii) An order that the plaintiff’s costs of this application be paid by defendants on a Solicitor/Client or indemnity basis.

(viii) Such further or other Orders as this Honourable Court deems fit.

8. It is convenient to note that leave was granted on 19 June, 2017 for the plaintiff to apply for judicial review of a purported refusal, failure or neglect by the first defendant to satisfy a Certificate of Judgment issued in favour of the plaintiff by the Registrar on 13 March, 2017, in respect of proceeding SCA No. 6 of 2003.

9. It should be noted that requirements for a review book has been dispensed with by an order of the Court. Thus there is no review book.

10. The Certificate of Judgment, the subject of this application was endorsed by the Solicitor General on 27 July, 2016 and was subsequently forwarded to the first defendant for the State to pay the amount claimed within a reasonable time pursuant to the requirements of s. 14 (3) of the Claims By and Against the State Act 1996.

11. The genesis of this application can be traced back to 3 December, 1991, when the plaintiff issued proceedings against the State for an alleged failure by the State to settle an amount owing to the plaintiff under an agreement entered into between the plaintiff and the State in 1985. The agreement related to sealing of the Magi Highway by the plaintiff.

12. These brief background facts are contained in a transcript of proceedings relating to SCA No.6 of 2003, which is in evidence.

13. Clause 60 of the agreement provided that interest on any outstanding claims made by the plaintiff under the agreement were to be based on the then PNGBC prime lending interest rate.

14. The plaintiff sued the State for its outstanding payments under the agreement. The plaintiff was as a result awarded K1, 692,235.72. However, the National Court in its decision given on 22 December, 2002, refused to award interest at the then PNGBC prime lending rate, it instead awarded interest at 8%.

15. The plaintiff appealed the decision. The appeal was referenced “SCA No. 6 of 2003”, it was heard by...