Pacific Helicopters Limited and Pacific Property & Investment Limited and Shepherd Aviation Limited v Thaddius Kambanei, Secretary for Department of Finance and The Independent State of Papua New Guinea (2007) N3242

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 29 November 2007
• Court: National Court
• Citation: (2007) N3242
• Docket Number: OS 793 of 2004
• Year: 2007
• Judgement Number: N3242

Full Title: OS 793 of 2004; Pacific Helicopters Limited and Pacific Property & Investment Limited and Shepherd Aviation Limited v Thaddius Kambanei, Secretary for Department of Finance and The Independent State of Papua New Guinea (2007) N3242

National Court: Davani J

Judgment Delivered: 29 November 2007

N3242

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 793 of 2004

BETWEEN:

PACIFIC HELICOPTERS LIMITED

First Plaintiff

AND:

PACIFIC PROPERTY & INVESTMENT LIMITED

Second Plaintiff

AND:

SHEPHERD AVIATION LIMITED

Third Plaintiff

AND:

THADDIUS KAMBANEI, SECRETARY FOR DEPARTMENT OF FINANCE

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Davani .J

2007: 22, 29 November

CLAIMS AGAINST THE STATE – Judgments obtained – compliance with Claims By and Against the State Act – Secretary for Department of Finance failure to pay judgments – Declarations and Mandamus – s.13 (1) and s.14 (3) and (5) of the Claims By and Against the State Act considered.

ENFORCEMENT – Outstanding judgments – Order for examination of Secretary for Department of Finance – O. 13 r. 13 of National Court Rules.

Facts

The plaintiff obtained separate judgments against the defendants for amount in excess of K14 million. The defendant paid approximately K8.4 million. There is a sum outstanding on 11 judgments of K8,437,094.44.

These judgments have remained unpaid since 1998.

Held

1. A declaration that

i. The Secretary for Finance has failed to satisfy the outstanding judgment from monies legally available;

ii. The Secretary for Finances actions in not satisfying these judgments is unreasonable in the circumstances;

iii. The Secretary for Finances actions in not satisfying the judgments is a breach of his duties pursuant to s.14 (3) and (4) of the Claims By and Against the State Act;

2. The Secretary for Finance must pay the monies under the judgment debt or answer to the court for his failure to comply with the law. Mandamus is granted;

3. The Secretary for Finance must be examined as to budget appropriation and if moneys have been appropriated towards payment of judgment debts and have not been properly applied, to explain why and how the monies were applied.

Cases cited

Sealark Shipping Limited and Bismark Maritime Pty Limited v. Secretary of Treasury & the State (1998) PNGLR 333;

Pansat Communications Pty Limited v. Morea Vele & the State (1999) SC 604;

Morris Manum & Benjamin Mana v. Senior Constable Dimuk Dage & the State (2003) N2435.

Counsel:

G. Poole, for the first, second and third plaintiffs

No appearance, for the first and second defendants

DECISION

29 November, 2007

1. DAVANI .J: This is the hearing of the originating summons filed on 15 December, 2004 (‘OS’). The OS seeks several declaratory orders which I will set out below after I provide a summary of the background to this matter.

Preliminaries

2. On 22 November, 2007, the matter came before me as a Judicial Review hearing on the originating summons. Only Mr Poole for the first, second and third plaintiffs (‘the plaintiff’) was in attendance. There was no representation by lawyers for the first and second defendants whom I understand are represented by the office of the Solicitor-General.

3. Mr Poole informed the Court that on 15 November, 2007, both Mr Poole and a lawyer from the office of the Solicitor-General appeared before His Honour Justice Hartshorn who adjourned the hearing of this matter to today, 22 November, 2007. Thereafter, the plaintiffs’ lawyer sent a letter dated 15 November, 2007 to the Secretary, Department of Finance and Treasury informing and advising of the hearing of 22 November, 2007 and also advising that when the matter returns to court on that day, that they propose to proceed. The letter requested that they either attend or are represented by their lawyer. It also advised that they would produce this letter to the court as evidence that the defendants have notice of the hearing.

4. On 19 November, 2007, Mr Poole received a telephone call from a lawyer from the office of the Solicitor-General, who requested a copy of the Review Book. This Review Book was delivered to the Office of the Solicitor-General on the same day, 19 November, 2007, by Brian Agisi of Mr Poole’s firm and which was received by a Mrs Betty Makis, personal secretary to the Acting Solicitor-General. With leave of the court, Mr Poole filed affidavit of service sworn by Graham Agisi, on 22 November, 2007 which affidavit deposes to the above facts relating to service.

5. Mr Poole submits that the hearing should proceed ex parte because his firm had given sufficient notice of today’s hearing to the Office of the Solicitor-General and the defendants, more specifically the first defendant. The court noted this to be correct, in light of the above facts, and ruled that the hearing proceed ex parte.

6. I must also say that half way through the hearing, Mr Nandape of the Office of the Solicitor-General walked into the court room but immediately left. I do not know if he was in court for this matter or for another matter.

Application for judicial review

7. As I stated above, the Originating Summons seeks several declaratory orders which are as follows;

1. An order for declaration that the time that has elapsed from service of the Certificate of Judgment dated 6 August 2004 in WS No. 1439 of 2003 for K971,560.37 (which Certificate was served shortly after 6 August 2004) on the Solicitor General, to the date of filing the Originating Summons in this action is more then a reasonable time to satisfy the judgment out of monies legally available to the Department Head responsible for finance matters in accordance with section 14(3) Claims By and Against the State Act 1996.

2. An order for declaration that the time that has elapsed from service of the Certificate of Judgment dated 7 June 2002 in WS No. 1200 of 1997 for K73,732.82 (which Certificate was served shortly after 7 June 2002) on the Solicitor General, to the date of filing the Originating Summons in this action is more then a reasonable time to satisfy the judgment out of monies legally available to the Department Head responsible for finance matters in accordance with section 14(3) Claims By and Against the State Act 1996.

3. An order for declaration that the time that has elapsed from service of the Certificate of Judgment dated 6 October 1999 in WS No. 1209 of 1997 for K81,007.66 (which Certificate was served shortly after 6 October 1999) on the Solicitor General, to the date of filing the Originating Summons in this action is more then a reasonable time to satisfy the judgment out of monies legally available to the Department Head responsible for finance matters in accordance with section 14(3) Claims By and Against the State Act 1996.

4. An order for declaration that the time that has elapsed from service of the Certificate of Judgment dated 19 June 2001 in WS No. 316 of2000 for K77,972.19 (which Certificate was served shortly after 19 June 2001) on the Solicitor General, to the date of filing the Originating Summons in this action is more then a reasonable time to satisfy the judgment out of monies legally available to the Department Head responsible for finance matters in accordance with section 14(3) Claims By and Against the State Act 1996.

5. An order for declaration that the time that has elapsed from service of the Certificate of Judgment dated 11 November 1999 in WS No. 1210 of 1997 for K18,071.87 (which Certificate was served shortly after 11 November 1999) on the Solicitor General, to the date of filing the Originating Summons in this action is more then a reasonable time to satisfy the judgment out of monies legally available to the Department Head responsible for finance matters in accordance with section 14(3) Claims By and Against the State Act 1996.

6. An order for declaration that the time that has elapsed from service of the Certificate of Judgment dated 6 August 1998 in WS No. 347 of 1995 for K18,365.00 (which Certificate was served shortly after 6 August 1998) on the Solicitor General, to the date of filing the Originating Summons in this action is more then a reasonable time to satisfy the judgment out of monies legally available to the Department Head responsible for finance matters in accordance with section 14(3) Claims By and Against the State Act 1996.

7. An order for declaration that the time that has elapsed from service of the Certificate of Judgment dated 26 August 1998 in WS No. 346 of 1995 for K696,887.45 (which Certificate was served shortly after 26 August 1998) on the Solicitor General, to the date of filing the Originating Summons in this action is more then a reasonable time to satisfy the judgment out of monies legally available to the Department Head responsible for finance matters in accordance with section 14(3) Claims By and Against the State Act 1996.

8. An order for declaration that the time that has elapsed from service of the Certificate of Judgment dated 6 August 1998 in WS No. 345 of 1995 for K445,722.75 (which Certificate was served shortly after 6 August 1998) on the Solicitor General, to the date of filing the Originating Summons in this action is more then...