Steven Pupune, Aunggao Uyassi, Peter Hero, Stainer Sapu, Gitene Soso James Save, Malo Kiniafa and Robin Kosi v Ubum Makarai, Administrator Eastern Highlands Provincial Government (In Suspension) and Papua New Guinea Banking Corporation, Goroka Branch [1997] PNGLR 622

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Injia J
• Judgment Date: 26 September 1997
• Citation: [1997] PNGLR 622
• Judgment Number: N1647
• Year: 1997

Full Title: Steven Pupune, Aunggao Uyassi, Peter Hero, Stainer Sapu, Gitene Soso James Save, Malo Kiniafa and Robin Kosi v Ubum Makarai, Administrator Eastern Highlands Provincial Government (In Suspension) and Papua New Guinea Banking Corporation, Goroka Branch [1997] PNGLR 622

National Court: Injia J

Judgment Delivered: 26 September 1997

N1647

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 266 OF 1995

BETWEEN: STEVEN PUPUNE,AUNGGAO UYASSI, PETER HERO, STAINER SAPU, GITENE SOSO, JAMES SAVE, MALO KINIAFA AND ROBIN KOSI

JUDGMENT CREDITOR/PLAINTIFFS

AND: UBUM MAKARAI, ADMINISTRATOR EASTERN HIGHLANDS PROVINCIAL GOVERNMENT (IN SUSPENSION)

JUDGMENT DEBTOR/DEFENDANT

AND: PAPUA NEW GUINEA BANKING CORPORATION, GOROKA BRANCH

GARNISHEE

Mount Hagen

Injia J

20 June 1997

26 September 1997

JUDGMENTS AND ORDERS — Enforcement — Claims By And Against The State Act 1996, S. 13 (1) — Application for garnishee notice against Interim Provincial Government's operating bank account — National Court Rules O. 13 r. 56.

WORDS AND PHRASES — Meaning of "the State" discussed.

Cases Cited

Pato Lawyers -v- Enga Provincial Government [1995] PNGLR 469, considered, distinguished and not followed.

Held

(1) The Claims by and Against the State Act 1996 is of general application to all properties and revenue of "the State" which includes both the National Government and Provincial Governments.

(2) Pursuant to S. 13 (1) of the Claims By and Against the State Act 1996, the property or revenue of a Provincial Government, in this case the operating bank account of the Eastern Highlands Interim Provincial Government cannot be garnished and accordingly, leave to issue garnishee notice under Order 13 Rule 56 of the National Court Rules was refused.

Counsel

A. Kwimberi for the Plaintiffs

No appearance for the Defendant

26 September 1997

INJIA J: This is an application by motion on notice by the Plaintiffs seeking leave to issue a garnishee notice against the Garnishee under Order 13 rule 56 of the National Court Rules. The Judgment Debtor is now the Eastern Highlands Interim Provincial Government. At the time the judgment debt was incurred was the Eastern Highlands Provincial Government (in suspension). The Judgment Debtor operates a bank account with the garnishee.

In order for leave to be granted, the Court must be satisfied of three things: (1) that there is an unsatisfied judgment or order; (2) that there is a debt due or accruing to the Judgment Debtor from the garnishee; and (3) that the issue of a garnishee notice by the Court is "subject to any Act" which may restrict or qualify the circumstances or conditions upon which a garnishee notice may be issued against the accounts or properties of a judgment debtor. The first and second requirements are stipulated by O. 13 r.56 (3). The third requirement is stipulated by O. 13 r. 56 (1) which provides:

"56. Garnishee notice (46/3)

(1) A judgment creditor may, with the leave of the Court, but subject to any Act, file and serve on the garnishee a garnishee notice in form 60......"

By affidavit of the Applicant's counsel Mr Kwimberi, the Applicant in this case has shown that the there is an order for costs against the judgment debtor obtained on 29 September 1995. That order was a general order for costs made against three Defendants including the present Judgment Debtor who was the First Defendant in the substantive proceeding. The other two Judgment Debtors are Castan Maibawa, Minister for Provincial Affairs & Village Services (Second Defendant) and The Independent State of Papua New Guinea (Third Defendant). As the order for costs was a general order, all these Defendants were jointly and severally liable to pay the Plaintiffs' costs. The Applicant's lawyers obtained a taxed bill of costs in the sum of K5,020 which they only served on the present Judgment Debtor, (the First Respondent), because (according to the Applicant's counsel), it was difficult to recover the costs from the other two Judgment Debtors. As of today, the order for costs for that amount is still unsatisfied. Mr Kwiberi in his affidavit says that the "Judgment Debtor is a statutory body and has a account with PNGBC and there is always sufficient fund in its account" for the garnishee to satisfy the judgment debt under a garnishee order. I accept this evidence on its face value although it lacks particularity as to the types of accounts and balance on those accounts. I am satisfied that the first two requirements under O. 13 r. 56 (3) have been satisfied by this Applicant.

The third requirement requires careful consideration. The Judgment Debtor in this case is a provincial government. In the substantive proceeding, Mr Makrai was...