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Kawage v Solicitor General [1999] PGNC 65; N1875 (2 July 1999)

Unreported National Court Decisions

N1875

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 124 OF 1999
BETWEEN: FRANCIS KAWAGE
PLAINTIFF
AND: THE SOLICITOR GENERAL
FIRST DEFENDANT
AND: THE STATE
SECOND DEFENDANT

Lae

Injia J
9 April 1999
2 July 1999

PRACTICE AND PROCEDURE - Civil - Application for mandamus under S.14(5) of Claims By and Against the State Act 1996 - Application by Originating Summons under order 4 rule 3 of the National Court Rules inappropriate - Application for judicial review under Order 16 of National Court Rules appropriate.

Cases Cited

Pansatt Communications Pty Ltd -v- Morea Vele & The State SC 604 [1999]

Counsel

S. Tedor for plaintiff

No appearance from the defendants

2 July 1999

INJIA J: By Originating Summons filed pursuant to Order 4 rule 3 of the National Court Rules, on 11 March 1999, the plaintiff claims the following orders, inter alia:-

1. ټ&##160; F60; For an r an order in and by way of mandamus that the First named Defendant forthwith endorse the Certificate of Judgement served on him in respect of the Judgement obtained by the Plaintiff on the 17th day of September, 1998, for the sum of K46,006.54 with interests plus costs pursuant to Section 14(2) of the Claims by and Against the State Act, 1996.

2. &##160; F60; For an oider d anwayy way of mandamus that the First-named Defendant forthwith forward the endorsed Certificate of Judgement in respect of the Judgement obtained by the Plaintiff to the Secretary forsury corp Affairffairs.

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3. For an order dn anwaby or for mandamus that the First named Defendant include in the endorsed Certificate of Judgement calculation of interests due in respect of the Judgement Debt payable e rat8% peum of K46,006.54 or K1or K10.10 0.10 per dper day commencing the 17th day of September, 1998, up to the date of settlement.

The application is filed pursuant to S.14(2) of the Claims By and Against the State Act 1996. The whole of Sections 13 and 14 are relevant for the purpose of this application. These sections provide:

S13. ҈ NO EXECUTION AGAINSGAINST THE STATE

(1) ;&#16 any suit, uit, executxecution or attachment, or process in the nature of execution orchment, may not be issued against the property or revenue onue of the State.

(2) &#160re aejudgement is give given against the State, the registrar, clerk or other proper officer of the court by which the judgement is given shall issue a certificn Foro they in favour the judgement is give given.

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S14.&S14. SATISFACTION OF JUDGEMENT AGAINST THE STATE

(1) ;ټ The cere certificaificate referred to in Section 13(2) shall be served on the Solicitor-General.

160;&ـ&#1he Soor-General shall, wll, withinithin 60 d 60 days from the date of service upon himn him of a of a certificate under Section 13(2), endorse the certificate in Form 1.

(3) ټ Ueon rt eipt of thef the certificate of a judgement against the State bearing the Solicitor-General’s endorsement that judgement may be satisfied, the Departmental Head responsible fnanceers s withinithin a re a reasonaasonable time, satisfy the judgement out of moneys legally available.

(4) &#Any payment in satisfactifaction of judgement may, in the absolute discretion of the Departmental Head responsible for finance ms, be by imentsvided the judgements is thereby satisfied within a reasonablenable time time.

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(5) No action:

(6)t for or in the naturm of mundamus; or

(b) &##160;; fotempttemptourt,orrwise against the Solicitor-General or the Departmental ntal Head Head resporesponsiblnsible fore for finance matters in respect of the satisfaction of a judg undes Act, other than than for 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.

The plaintiff’s application is supported by the affidavit of Mr. Tedor, Counsel for the plaintiff. He deposes to the fact that judgement was obtained from the National Court at Lae on 17 September 1998 against the defendant in the matter of WS No. 776 of 1995 Francis Kawage -v- State. The judgment was for the sum of K42,448.00 plus interest at K3,558.54, a total of K46,006.54. On 16/11/98, a Certificate of judgment was issued by the Assistant Registrar pursuant to S.13(2). The Certificate of judgment was duly served on the Solicitor General on 27 November 1998 in compliance with S.14(1). Since then, Mr. Tedor has telephoned the Solicitor General in an attempt to get the latter to forward the Certificate of judgment to the Secretary for Finance to effect payment but the Solicitor General has failed to do so in breach of S.14(2). Mr. Tedor submits the Solicitor General has failed to comply with the mandatory requirement of S.14(2) and (3) of the Act, hence it is necessary to obtain an order of mandamus to compel him to do so as allowed by S.14(5).

I have reservations concerning the regularity of the procedure employed in this application. An application by an interested party for an order for mandamus to compel a statutory authority to perform its statutory duty where it has refused or failed to perform that duty, is required to be commenced by an application for judicial review under Order 16 of the National Court Rules. Order 16 r 1(1) provides that “An application for an order in the nature of mandamus, prohibition, certiorari or quo warrants shall be made by way of an application for judicial review in accordance with this order”. The requirement under O16 r1(1) is mandatory. A person aggrieved by the failure of a statutory authority to perform its statutory duty has no right to seek an order for mandamus in the Courts. He only does so by leave of the National Court: O16 r3. This is the normal procedure to be adopted when the Court is asked to intervene to compel an administrative statutory authority to perform its statutory function: see for instance, Pansatt Communications Pty Ltd -v- Morea Vele & The State Unreported Supreme Court Judgment No. SC604 dated 5 May 1999.

Mr. Tedor concedes this procedural irregularity but submits the application is made under S.155(4) of the Constitution. However, there is no reference in the Originating Summons to the application being based under S.155(4) of the Constitution. Therefore, I reject this submission.

Mr. Tedor then cites a number of previous similar applications made before the National Court at Lae before another judge and the applications being dealt without any procedural difficulties being encountered. However, I do not think I am bound by those decisions. In any event, I am not persuaded that such is an appropriate procedure.

The procedure employed by the plaintiff in this case appears to be under Order 4 r(1) and (3) which requires a plaintiff to commence proceedings by Originating Summons where he desires to apply for, inter alia, a declaration of right: O4 r3(1). As there is no question of a declaration of rights in the present case, it is inappropriate to apply for an application in the nature of an order of mandamus by way of Originating Summons, which do not require leave of the Court to commence the proceedings. For these reasons, I rule that the proceedings are incompetent as being irregular. I dismiss the proceedings. I grant the applicant liberty to institute fresh proceedings under Order 16. I make no order as to costs.

Lawyer for the plaintiff: Sialis Tedor & Associates

Lawyer for the defendants: Solicitor General