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
• Judge: Cannings J
• Judgment Date: 16 March 2012
• Court: National Court
• Citation: (2012) N4614
• Year: 2012
• Judgement Number: N4614

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

N4614

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

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

Plaintiff

V

NEVILLE DEVETE, SOLICITOR-GENERAL

First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Madang: Cannings J

2012: 9, 16 March

JUDICIAL REVIEW – application for order of mandamus against Solicitor-General – Claims By and Against the State Act, Section 14 (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 Section 13(2) of the Claims By and Against the State Act. The plaintiff then served the certificate on the Solicitor-General under Section 14(1) of that Act. However, the Solicitor-General failed to endorse the certificate under Section 14(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 Section 13(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 Section 14(2) within 60 days from the date of service upon him of a certificate under Section 13(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 Section 14(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, Bunag Kiup, Commissioner of Police and The State (2010) N3923

Francis Kawage v The Solicitor General and The State (1999) N1875

Gabriel Yer v The State (2008) N3326

Isidore Kaseng v Michael Debege (2004) N2735

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Morris Manum and Benjamin Mano v Senior Constable Dimuk Dage (2003) N2435

Pacific Helicopters Limited v Thaddeus Kambanei (2007) N3242

Pansat Communications Pty Ltd v Vele and The State (1999) SC604

Sealark Shipping Pty Ltd and Bismark Maritime Pty Ltd v The Secretary for Treasury and Corporate Affairs and The State (1998) N1732

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 judgment.

Counsel

A Kawa, the plaintiff, in person

No appearance for the defendants

16 March, 2012

1. CANNINGS J: This is a ruling on an application by the plaintiff, Dr Alois Kawa, for judicial review of the alleged failure of the defendant, the Solicitor-General Mr Neville Devete, to endorse a certificate of judgment, which Dr Kawa had obtained against the State. Dr Kawa seeks an order in the nature of mandamus (an order requiring a public official to perform a duty according to law) against the Solicitor-General.

2. The judgment that Dr Kawa seeks to enforce is my judgment of 19 February 2010, by which he was awarded a total amount of damages and interest of K585,648.00, after the State was found liable for the negligence of the Madang Police in not protecting him against a violent raid staged by a group of people on 1 January 2006 on his premises at Gum (Alois Kawa v Hans Yob, Bunag Kiup, Commissioner of Police and The State (2010) N3923).

PROCEDURE FOR ENFORCEMENT OF JUDGMENTS AGAINST THE STATE

3. Before assessing what has happened since 19 February 2010 I will set out the procedure that must be followed, under Sections 13 and 14 of the Claims By and Against the State Act, to enforce a judgment against the State.

4. Section 13 (no execution against the State) states:

(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.

5. Section 14 (satisfaction of judgement against the State) states:

(1) The certificate referred to in Section 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 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 that judgement 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.

6. Sections 13 and 14 thus set out a three-step procedure:

Step 1: the Registrar, clerk or other proper officer of the court by which the judgment is given is obliged by Section 13(2) to issue a certificate in Form 1 to the party in whose favour the judgment is given. Form 1 is prescribed by the Schedule to the Act, as follows:

PAPUA NEW GUINEA

Claims By and Against the State Act

Sec 13(2) Form 1

CERTIFICATE of JUDGEMENT

AB v The Independent State of Papua New Guinea

I certify that AB, of , on 19 , did obtain a judgement of the (name of court) in his favour, and that by such judgement the sum of K was awarded to him.

I certify that—

(a) the judgment may be satisfied

OR

(b) the State proposes to take further action in this matter and satisfaction of judgement cannot take place.

Dated ... 19 .

Registrar (or Clerk)

(Name of Court)

Step 2: the Solicitor-General is obliged by Section 14(2) within 60 days from the date of service upon him of a certificate under Section 13(2), to endorse the certificate. Note that the method of service – either personal service or leaving the document at the office of the Solicitor-General with the prescribed person at the prescribed times – is prescribed by Section...