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Yama Security Services Ltd v National Capital District Commission [2016] PGNC 270; N6469 (2 March 2016)

N6469

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS No. 1221 of 1999


BETWEEN:


YAMA SECURITY SERVICES LIMITED
Plaintiff


AND:
NATIONAL CAPITAL DISTRICT COMMISSION
Defendant


Waigani : Sakora J
2015: 27 August, 1 September
2016: 02 March


PRACTICE & PROCEDURE – Civil Claim – National Court - Contracts for Services - Assessment of Damages – Liability having been determined by operation of law – Failure to plead under the National Court Rules – Liability not challenged or denied – No application to set aside order for entry of default judgment - Deed of Release – Appeals to Supreme Court dismissed – Issues raised ex post facto – National Court Rules, Order 8 Rules 4, 8, 13 (h) & 14; Order 12 Rules 8, 25, 26 & 28.


PRACTICE & PROCEDURE – Civil Claim – Contracts for Services – Public body - Ministerial approval for certain contracts – Duties & responsibilities for financial management – Reports on financial management – Not pleaded nor any evidence of – Public Finance (Management) Act, ss 2, 3, 4, 5, 61, 62 & 63.


PRACTICE & PROCEDURE – Doctrine of Ostensible Authority – Commercial Reality – 3rd Parties dealing with public bodies.


Cases Cited:


The following are cases cited in the judgment:


AGC (Pacific) Ltd v Woo International Pty Ltd [1992] PNGLR 100
Green & Co Pty Ltd v Green [1976] PNGLR 73
Hon Peter O'Neill & Anor v Nellie Eliakim & Ors (Unreported) SC 1524 of 2016
Mapmakers Pty Ltd v BHP [1987] PNGLR 78
NCDC v Yama Security Services Pty Limited [2003] PNGLR 1 (SCA 24 of 2002)
Wenam Elkum v PNG [1988-89] PNGLR 665


Counsel:


B Lomai, for the Plaintiff.
P Kuman, for the Defendant.


2nd March, 2016


Preliminary comments


  1. SAKORA J: This proceeding has its genesis in a commercial transaction entered into between the parties way back in February of 1989 when, on the 5th of that month followed by 27th of March, two contracts were formally entered into, for the provision of security services.
  2. The detailed discussion on the nature, duration and terms of this contractual relationship between the parties will appear in due course hereunder, but for the brief purpose of these preliminary comments at this juncture, it can be said that this proceedings has a very chequered history.
  3. Some 16 years or so following the order of another National Court on 27 March 2002 to enter judgment against the defendant Commission, the matter came before me on 27 August 2015 for assessment of damages. The intervening years between the entry of judgment and the assessment of damages have witnessed what I have no hesitation in characterising as 'too much lawyering'. This had involved various trips to the Supreme Court and back (to the National Court), challenging the decisions of two previous trial courts.
  4. This had involved also a series of revolving- door changes of lawyers, the sum total of all of which was to delay and procrastinate the proper consideration and determination of the case according to law, and with certainty and finality.

Needless to say, these challenges had been mounted in the face of an amicable settlement of the judgment debt well demonstrated by a Deed of Release signed by the parties, which ought properly to have been accepted and respected as demonstrative of their unequivocal wishes and intentions.


  1. As well as the many trips to the appellate court and back, the case had been riddled with multiple adjournments with trial dates being frequently vacated, which do not appear to have been based on genuine reasons. The case suffered greatly also from one of the favourite pastime of some lawyers in this jurisdiction in recent times: not pleading in faithful compliance with the rules of court, resulting naturally in legal consequences that the defaulting and negligent lawyers want to interfere with, ex post facto, and put on hold, or even set aside, and avoid.
  2. This often frantic ex post facto activity of lawyers is invariably indulged in unashamedly with straight faces! And offering the flimsiest of excuses that defy reason and logic. The 'cringe' value[1] of such aberrant behaviour is either not appreciated or just escapes all understanding. One cannot help but wonder as to how much the defendant Commission has ‘coughed up’ in legal fees for this never-ending litigation.
  3. I hasten to add that not all lawyers indulge in this unsavoury behaviour. Not all want to use and abuse the law and procedures of our courts to wreak injustice. Just a few who stand out like sore thumbs, because they are driven by motives other than the faithful and ethical application of our laws consonant with the Lawyers Oath they took on the day of their admission to practise the profession of law.

The Commission has a corporate and statutory, not to mention moral, duty and responsibility to the rate payers of this capital city. They include individual and corporate citizens, as well as foreign residents.


  1. I have had occasion to talk about this lawyering phenomenon in a recent judgment.[2] This was a respectful adoption of what Acting Justice Brian Brunton observed in Wenam Elkum v PNG [1988-1989] PNGLR 665, characterising such procrastinated litigation and ‘abuse of process’ as “litigation by attrition”, analogous to the war of attrition on the famous western front in the first world war in France.
  2. What is of immediate concern in relation to this unhealthy culture that appears to have infected the practice of law in this jurisdiction, apart from the serious issues of professional experience and competency, not to mention professional ethics, and common and professional courtesies, is inherent in the question: what is the role of the so-called 'in-house' lawyers? These lawyers are found scattered throughout all government departments and various public statutory organisations and institutions.
  3. These public bodies prefer to bring on board, as it were, their own legal advisors not connected to or associated with the Department of Justice and Attorney-General. More often than not, these lawyers lack proper litigation experience. Despite this, these lawyers are much better remunerated and under over-generous entitlements than the long-suffering neglected lawyers from the Office of the Solicitor-General.
  4. By definition, the Solicitor-General is the official lawyer for the State, and, thus, by definition and extension, ought to include or incorporate all statutory agencies and instrumentalities of the State.[3]

Of equal immediate concern is, as will be adverted to in due course hereunder, the authority of these State agencies and instrumentalities enjoying the protective ‘wrap’ or umbrella of a ‘public body’ under ss 2 and 61 Public Finance (Management) Act (PFMA), and ‘briefing out’ to private lawyers vis-a-vis the statutory duties and responsibilities of the Attorney-General under the Attorney-General Act.


  1. It may be recalled that such uncontrolled and unregulated ‘farming out’ of cases to private lawyers, in the guise of proper ‘brief outs’ was the subject of a Commission of Inquiry headed by retired judge Warwick Andrew, appointed on 22 July 2014.[4] The focus of the Inquiry under the Terms of Reference was the consideration of the processes and procedures involved with ‘brief outs’ and the payment out of public monies that is involved.

Anecdotal evidence suggests, amongst other things, that certain prominent lawyers were recommended for referral to appropriate statutory and Constitutional authorities for their appropriate actions.[5]


Section 7 (i) of the Attorney-General Act 1989 contemplates the engagement of law firms and lawyers outside the Office of the Solicitor-General to conduct legal work on behalf of the State.[6] It then becomes a question of competency and experience.


As they say, you cannot have your cake and eat it! That is to say, a so-called ‘public body’ ought not invoke[7] those protective provisions without having in the first place duly complied with its statutory obligations under the pertinent legislation. Obligations such as those found under ss 3, 4, 5, 62 and 63 of the PFMA.


  1. Furthermore, without having duly complied with the pleading requirements of the NCR in the first place. Section 61 of this Act does not sit there and exist on its own! And, as I have commented on many occasions before on provisions such as this, it is not a panacea for a ‘rescue mission’[8], as it were, when lawyers through negligence and/or incompetence default on faithfully and diligently complying with the requirements of the pleading rules and timelines prescribed under the NCR.

The courts ought not entertain nor sanction ‘red herrings’ that are proffered in the guise of genuine meritorious arguments, and in the face of demonstrable defaults and shortcomings in the due compliance with the requirements of the law and the rules of court. These are (or do) nothing in law, except to cause mischief and vexation, that inexorably lead and contribute to the procrastination of the proceedings, making the attainment of certainty, finality and justice in legal disputes nigh on impossible.


In a recent case,[9] I took the opportunity to characterise such shenanigans as ‘blatantly irregular and unconventional’, the use of which would constitute ‘mere invented nonsense riding on the coat-tails of mischief.’[10] In that case, I had no hesitation in importing the rugby (and rugby league) analogy of the five-eighth (# 10 and 6 respectively), the smart/tricky player who displays guile by his evasive and avoiding tactics, such as side-steps and pretend passing of the ball, described colloquially in those sports as doing the ‘ dummy’, or ‘show and go’.


  1. Although the court is now concerned only with assessment of damages, the forgoing comments that will be adverted to in due course here have been made necessary by the very fact that, contrary to the principles and rules of courts governing litigation such as this, these issues I comment on[11] have been constantly raised ex post facto by what I describe as vexatious and mischievous lawyers whose only purpose appears to be to delay and/or deflect the inevitable.

It is part of our substantive and procedural laws that a party is bound by its pleadings, and, thus, if a claim or issue in a claim has not been properly pleaded,[12] or, for instance, a threshold issue of jurisdiction, or a ground of appeal and review have not been invoked and stated precisely,[13] these will be precluded from being raised and argued later.


To countenance such ‘after-thought’ and interruptive raising of issues would only be a licence for creating dysfunctional litigation with no end, no certainty, to any legal disputes. A classical example of this, attempted in this case that will be dealt with in some detail hereunder, is the issue of s 61 PFMA.
Another is the Deed of Release. I hasten to emphasise here that, with respect, not all lawyers engage in unconventional and often unconscionable behaviour. It is the very few who are motivated by personal and/or political, not to mention financial agendas, and thereby paint a bad image for the profession of law.


Introduction


  1. The plaintiff company, the judgment creditor in this proceedings, is but one of several companies described collectively as the ‘Yama Group of Companies’ involved in a variety of business and commercial undertakings in the country. Mr Peter Charles Yama is and has been the overall managing director of the group from its inception.

This present proceedings which I shall elaborate upon in due course here, has its genesis between 5 February and 27 March 1989 when the plaintiff company and the defendant Commission entered into two (2) security contracts,[14] wherein it was agreed that the former should provide security services to and for the latter’s premises and personnel for monetary profit.


The plaintiff company carried on the business of protection and security services to clients for monetary/financial reward. Pursuant to the two agreements, these services were to be provided for periods of 48 and 39 months respectively.

Protection and security of persons and property is now a growth industry in our country. Unfortunately, some of our people have abandoned the well-known and universally accepted traditional social control mechanisms offered by respect for others and their properties, and respect for authority, and have become unashamedly lawless and violent. Also against the dictates of our formal ‘received laws’.

  1. On 7 and 9 September 1999 respectively, the Commission unilaterally terminated those contracts prematurely. The plaintiff company then filed a Writ of Summons on 29 October 1999, claiming breach of contracts on the part of the defendant Commission, seeking Damages in the total amount of K7, 513, 83. 84 with the usual ancillary reliefs of interest and costs.
  2. Pending the assessment of damages, the National Capital District (NCD) Commissioners under the chairmanship and Governorship of the Hon Philip Taku MP convened and held a Board Meeting [15] on 25 November 2001, and duly passed the following resolution:

“That the National Capital District Commission agrees to pay the claim as ordered on 18 day of December 2000 and further that the National Capital District Commission appoints the Chairman of Finance Executive and Tenders Committee appointed by the Board to negotiate the payment of K8, 500, 000.00 to Yama Security Services in the intention to pay in monthly instalments or to cut the original payout and re-engage Yama Security Services Limited. It was resolved that the Governor execute the Deed of Release of the National Capital District.”

  1. Three days following the Board meeting and resolution, Governor Taku and Mr Yama as the Managing Director of the plaintiff company formally executed a Deed of Release dated 28 November 2001 to settle the Commission’s debt to the company. And the amount of K8, 500, 000.00 was inclusive of interest. The Deed is to be found as an annexure to the supporting affidavit of Peter Charles Yama.

Background facts [16]

  1. These background factual circumstances giving rise to the contractual relationship entered into between the parties in February and March of 1989 can be conveniently prefaced here by characterising the proceedings that eventually came before me on 27 August 2015 as having a very chequered history. This is indisputable by the mere perusal of the court records[17].

It is a matter of public record that soon after the execution of the Deed of Release the Hon Philip Taku MP and his Board of Commissioners,[18] were displaced as a direct consequence of the amendments promulgated by Parliament to the governing legislation[19].

Following these changes to the management of the NCDC, the defendant Commission reneged on its Deed of Release, refusing to honour the undertaking and obligation inherent in that Deed.

Compelled thus to seek relief and remedy from the courts, following the many failed requests and demands for the defendant to comply with terms of the Deed of Release, the plaintiff had filed on its behalf an application pursuant to a Notice of Motion dated 7 March 2002, seeking orders to enforce the Deed.

  1. On 18 March 2002, the National Court heard the application and ordered the entry of judgment in default against the defendant in the sum of K8.5 million on 27 March 2002. The NCDC had defaulted in its pleading obligation under the NCR to file its Defence within the rule-prescribed period.

As it was entitled to, if properly and legitimately aggrieved, the defendant appealed that decision to the Supreme Court in April 2002.[20] Be that as it may, no ‘stay’ of the National Court judgment was applied for and obtained until November of 2002.

It is not without significance to note that before availing of the right to appeal, the well-recognised procedure under the NCR following order for default judgment ‘regularly entered,’ was never availed of in the first instance.[21] It could properly be argued, therefore, that going to the appellate court without first applying to have the default judgment ‘set aside’ as envisaged under Order 12 Rule 8 constituted an ‘abuse of process’ of the court. This Rule is in the following terms:

8. Setting aside or varying judgment or order.

(1) The Court may, on terms, set aside or vary a direction for entry of judgment where notice of motion for the setting aside or variation is filed before entry of the judgment.

(2) Default judgment envisaged under sub-Rule (a).

(3) . . .

(4) . . .

(5) . . .


But before the ‘stay’ order the Commission made two separate payments of its judgment debt to the plaintiff in August 2002:

  1. It would be safe to suggest here that, after the two payments of the judgment debt leaving a balance of K6.5 million, if politics and personalities had not intruded into and interfered with a perfectly legitimate and legally binding[22] contract for services, the outstanding amounts would have over time have been discharged to the mutual satisfaction of the parties, as was the intention of the Deed of Release. The Deed envisaged payment on instalment basis. In the process, greatly escalating interest and costs would undoubtedly have been saved. That is exactly what transpired here.
  2. It is not without significance to note in this respect that the mutually beneficial agreement to settle the judgment debt without further litigation, which the Deed of Release was, has its integrity intact when it suggest an alternative to the monetary settlement:

. . . in the intention to pay in monthly instalments or cut the original payout and re-engage Yama Security Services Limited.

  1. From the official court records, it can be ascertained that, after these payments the matter went to the Supreme Court, back to the National Court, then up to the Supreme Court again, argued on different legal issues such as the validity of the Deed of Release, whether or not the Deed constituted a fresh contract between the parties such that its enforcement necessitated fresh proceedings, and the perennial reliance on s 61 Public Finance (Management) Act by public statutory institutions, often lacking legitimate and legal defences to claims against them.[23]

It is intended here in due course to recite these ‘trips’ to the Supreme Court and their consequences, if only to emphasise the multiplicity of the legal proceedings undertaken over what would appear to be, with respect, an ordinary run-of-the-mill claim for damages consequent upon breach of contract for provision of services.

  1. Finally on 17 December 2012 the Supreme Court in proceedings SCA No 20 of 2012 dismissed the defendant Commission’s appeal. This then, in the normal course of events in litigation, paved the way for the National Court to finally [24] assess the damages as claimed by the plaintiff in its Statement of Claim, and as ordered by the primary judge in 2002.[25]
  2. The case was then listed before me in Civil Track 4 for assessment of damages. It is not without convenience and significance to now set out in chronological order the 'trips' to the appellate and other trial courts, and their results. I do so hereunder as follows:
  3. It is of course a matter of record that during all those many 'trips' in this long drawn-out litigation, as well as the many lawyers I have adverted to already, the case landed on many Benches, and a conservative estimation says seven (7) National Court judges had the case before them before it came to me last year, not counting the two times it went up to the Supreme Court (6 different judges on appeal).

The case came to my court last year, after languishing in those other courts over these years, by a vehicle that I have had no problem with characterising as 'dig and dump'. It is so reminiscent of what was happening at the Fairfax Harbour waterfront reclamation exercise a few years ago. It, pursuant to a large notice at the site, involved digging gravel and rocks elsewhere and dumping these at the site. Court files eventually unearthed languishing in other chambers or at the Registry, and gleefully dumped in mine, to my consternation.

  1. Finally on these many ‘trips’ around the entire spectrum of the superior courts in our jurisdiction, it needs to be noted that the last time another National Court dealt with this case was when yet another Notice of Motion filed by the lawyers for the defendant Commission went before my brother Salika J (as he then was) on 12 October 2006. Keeping in pace with all other attempts to defeat the claim of the plaintiff company, the application pursuant to this Notice of Motion was to, amongst other reliefs, dismiss the entire proceedings,[27] as being an ‘abuse of process’. A case of the kettle calling the pot black?

His Honour canvassed in detail the history of this matter, paying particular attention to what exactly it was that the lawyers took the NCDC to the Supreme Court for, and what exactly it was that the court said. These are matters of record that aspects of which have either been adverted to already or will be in due course here.

  1. But it will be noted that, after acknowledging[28] that the defendant had never appealed against the National Court’s judgment on its liability to the plaintiff for breaches of the two contracts, his Honour dismissed the defendant’s ‘entire notice of motion’. His Honour, with respect, characterised the application as another attempt ‘to throw out the plaintiff’s claim’.[2] The defendant’s lawyers had, once again, mischievously attempted to connect the Deed of Release[29] to the claims of breaches of the two contracts, conveniently side-stepping the fact that the issue of liability for breaches of contract had been determined by Justice Los on 17 March 2000, and this determination had never been appealed against.

It is a matter of court records also that in the Supreme Court appeal SCA No. 24 of 2002, his Honour Injia J (as he then was), after describing the Deed of Release as raising a ‘threshold fundamental procedural issue . . . where the validity of the deed (sic) is contested on substantive grounds’, proceeded to describe the Deed as constituting ‘a settlement or compromise of a pending action.’[30]

And the pending action was the plaintiff’s claim for unpaid invoices rendered in respect of the two contracts of service following breach by the defendant Commission in unilaterally terminating the two contracts prematurely.

And yet, a subsequent Supreme Court constituted by three different judges held on 9 December 2005 that the ‘Deed was illegal and null and void for non compliance of s. 61 of the Public Finance (Management) Act 1996.’ (sic), overturning the decision of Justice Sevua that held otherwise.

  1. His Honour Justice Salika held that the effect of the Supreme Court decision on the Deed of Release was to extinguish the compromise of the agreement to settle the debt out of court, and that the original judgment on liability having remained unchallenged by appeal, the claim had to proceed to assessment of damages. This was exactly what the ‘first’ Supreme Court had ordered upon the Deed of Release being heard and determined by the National Court.

After accommodating several unheralded oral applications[31] for adjournments at the instance of defence lawyers,[32] engaging in their usual ‘musical chairs’, date for assessment of damages was finally nominated, upon directions for filing of affidavit evidence in the usual way. Trial on assessment of damages eventually took place on Thursday 27 August 2015.

  1. Counsel for both parties were duly heard, aided by their respective written submissions. The court has also perused the contents of the ‘Statement of Agreed and Disputed Facts and Legal Issues for Determination’, filed by the defendant’s lawyers on 4 October 2006, that is devoid of any evidence of consensus from the plaintiff’s lawyers.
  2. A necessary question posed only rhetorically here is: how can anything that is intended to be reduced to written form to be used in a court of be said to be ‘agreed’, when there is no indication on that document that the other party did agree?

The plaintiff’s claim

  1. The court sets out hereunder the details of the services rendered under the two contracts, which details were intended to constitute the incurring of liability by the defendant Commission were, in the course of normal business practices, submitted by invoices to the beneficiary of the services rendered by the plaintiff company.
  2. Needless to say, none of these invoiced debts of the defendant Commission were ever disputed. Indeed, as demonstrated in these itemised invoices, the cumulative sum total of the invoiced claims constituted the subject of the Deed of Release that was entered into by both parties and duly executed by them for the sole purpose of settling the debt, out of court.

Principal Contract

2.3 Period of Determination:
Date of premature termination of contract: 07/09/1999
Date of expiry of full term of contract: 05/02/2002
Period: 28 months


No. of months with 30 days from 07/09/99 to 07/09/2000
= 12 months

No. of months with 31 days from 07/09/2000 to 07/09/2001

= 12 months
No. of months with 30 days from 07/09/2001 to 07/09/2002
= 04 months


2.4 Rates of Security Personnel


  1. Static Guard - K2.80 per guard per hour.
  2. Dog & Handler - K4.50 per handler per hour.

2.5 Formula for Daily Rate


(No. of Guards X hours/day X rate) + (No. of Dog Handler X hours/day X rate) = Daily Rate


3. Particulars of location and deployment of guards


3.1 NCDC CITY HALL


Daily Rate = 23 X 24 X 2.80 + 6 X 24 X 4.50
= K1, 545.60


  1. 15 Guards working from 6.00 am to 6.00 pm.
  2. 8 Guards working from 6.00 pm to 6.00 am.
  3. 3 Dog Handler & dog working from 6.00 am to 6.00 pm.
  4. 3 Dog Handler & dog working from 6.00 pm to 6.00 am.

CALCULATIONS:


A.1 1,545.60 X 31 X 12 = 574,963.20
A.2 1,545.60 X 30 X 12 = 556,416.00
A.3 1,545.60 X 30 X 4 = 185,472.00


Total = K1,316.851.20


3.2 SECTION 73 ALLOTMENT 34 HENAO DRIVE

Daily Rate = (7 X 24 X 2.80) = K470.40


  1. 4 Guards working from 6.00 am to 6.00 pm.
  2. 3 Guards working from 6.00 pm to 6.00 am.

CALCULATIONS:


B.1 470.40 X 31 X 12 = 174,988.80
B.2 470.40 X 30 X 12 = 169,344.00
B.3 470.40 X 30 X 4 = 56,780.00


Total = K400,780.80


3.3 GORDONS MARKET

Daily Rate = 25 x 24 x 2.80 = 1680 t 1 x 245 =K245.00

= K1, 925.00

  1. 15 Guards working from 6.00 am to 6.00 pm.
  2. 10 Guards working from 6.00 pm to 6.00 am.
  3. 1 vehicle with Supervisor full time (day and night).

CALCULATIONS:


C.1 1,925 X 31 X 12 = 716.100.00
C.2 1,925 X 30 X 12 = 693,000.00
C.3 1,925 X 30 X 4 = 231,000.00


Total = K1,640,100.00


3.4 KOKI MARKET


Daily Rate = 25 X 24 X 2.80 = K1, 680.00


  1. 15 Guards working from 6.00 am to 6.00 pm.
  2. 10 Guards working from 6.00 pm to 6.00 am.

CALCULATIONS:


D.1 1,680 X 31 X 12 = 624,960.00
D.2 1,680 X 30 X 12 = 604,800.00
D.3 1,680 X 30 X 4 = 201,600.00


Total = K1,431,360.00


  1. VIP ESCORTS

Daily Rate = 14 X 24 X 2.80 = 940.80 t 1 X 245 = 245
= K1, 185.80


  1. 6 Guards working from 6.00 am to 6.00 pm.
  2. 6 Guards working from 6.00 pm to 6.00 am.
  3. 2 Guards on a full time 4x4 vehicle fully equipped.
    1. 4x4 escort vehicle.

CALCULATIONS:


E.1 1,185.80 X 31 X 12 = 441,117.20
E.2 1,545.60 X 30 X 12 = 426,888.00
E.3 1,545.60 X 30 X 4 = 142,296.00


Total = K1,010,301.60


b) SUPPLEMENTARY CONTRACT


4.1 Period of Determination:


Date of premature termination of contract: 09/09/1999
Date of expiry of full term of contract: 05/02/2002
Period: 29 months


No. of months with 30 days from 09/09/99 to 09/09/2000
= 12 months

No. of months with 31 days from 09/09/2000 to 09/09/2001

= 12 months
No. of months with 30 days from 09/09/2001 to 09/09/2002
= 05 months


4.2 Rates of Security Personnel
  1. Static Guard - K2.80 per guard per hour.
  2. Dog & Handler - K4.50 per handler per hour.

4.3 Formula for Daily Rate
(No. of Guards X hours/day X rate) + (No. of Dog Handler X hours/day X rate) = Daily Rate


5. Particulars of location and deployment of guards


5.1 CITY HALL – RESPOND UNIT


Daily Rate = 15 X 20 X 2.80 = K840.00


  1. 75 Guards working from 8.00 am to 5.00 pm.
  2. 8 Guards working from 5.00 pm to 8.00 am.

CALCULATIONS:


F.1 840 X 31 X 12 = 312,480.00
F.2 840 X 30 X 12 = 302,400.00
F.3 840 X 30 X 5 = 126,000.00


Total = K740, 880.00


5.2 LITTER RULE ENFORCEMENT

Daily Rate = (18 X 20 X 2.80) = K1, 008.00


  1. 8 Guards working from 8.00 am to 5.00 pm.
  2. 10 Guards working from 5.00 pm to 8.00 am.

CALCULATIONS:


G.1 1,008.00 X 31 X 12 = 374,976.00
G.2 1,008.00 X 30 X 12 = 362,880.00
G.3 1,008.00 X 30 X 5 = 151,200.00


Total = K889, 056.00


5.3 GORDONS MARKET


Daily Rate = (10 X 10 X 2.80) = K280.00


  1. 10 Guards working from 8.00 am to 5.00 pm.

CALCULATIONS:


H.1 280.00 X 31 X 12 = 104,160.00
H.2 280.00 X 30 X 12 = 100,800.00
H.3 280.00 X 30 X 5 = 42,000.00


Total = K246, 960.00


5.4 KOKI MARKET
Daily Rate = (10 X 10 X 2.80) = K280.00


  1. 10 Guards working from 8.00 am to 5.00 pm.

CALCULATIONS:


I.1 280.00 X 31 X 12 = 104,160.00
I.2 280.00 X 30 X 12 = 100,800.00
I.3 280.00 X 30 X 5 = 42,000.00


Total = K246, 960.00


6. TOTAL AMOUNT OWING:


  1. NCDC CITY HALL = K1,316,851.20
  1. SECTION 73 ALLOTMENT 34 HENAO

DRIVE = K 400,780.80


  1. GORDONS MARKET = K1,640,100.00
  3. KOKI MARKET = K1,431,360.00
  5. VIP ESCORTS = K1,010,301.60
  7. CITY HALL RESPOND UNIT = K 740,880.00
  1. LITTER RULE ENFORCEMENT = K 889,056.00
  2. GORDONS MARKET = K 246,960.00
  4. KOKI MARKET = K 246,960.00

SUB TOTAL = K7, 923,249.60

10% VAT = K 792,324.96


GRAND TOTAL= K8, 715,574.56


  1. ADD EIGHT PERCENT (8%) INTEREST

per statute[33] from date of Writ filed:

29th October 1999 to judgment date

(Proposed date: 29th October 2015) –


16 years in total = K11, 155,935.44


TOTAL INCLUSIVE OF INTEREST = K19, 871,510.00


  1. LESS PAYMENTS MADE BY

DEFENDANT = K2, 000,000.00

GRAND TOTAL DUE & PAYABLE = K17, 871,510.00


  1. ADD COSTS (Proposed) = K5,000,000.00

Evidence

  1. Assessment of damages following entry of judgments usually involves a trial by affidavit evidence. It should be noted here that a party, having succeeded in obtaining a judgment on liability, can quite conceivably fail at the assessment of damages stage if there is lack of admissible and credible evidence, or if there is no evidence at all.

Thus, obtaining an order on liability does not necessarily mean the successful claimant will recover damages as a matter of course. The claimant carries the onus of demonstrating, according to law, that the claims to have suffered damage (s) are genuine and legitimate, deserving of remedy from the court.

  1. In support of the amount(s) claimed as damages, the plaintiff company relies on three sworn depositions contained in the three affidavits of Peter Charles Yama, sworn 12 January 2000, 7 March 2002 and 16 December 2003 respectively.

The 12 January 2000 affidavit has annexures “A” and “B”, true copies of the written Security Contracts [34] entered into between the parties. These contracts were duly executed by the proper authorities empowered by law to do so on behalf of their respective organisations. [35]

  1. The 7 March 2002 affidavit of Peter Charles Yama annexes a true copy of the subject Deed of Release (“A”) and a true copy of the Commission’s Resolution to pay the debt to the plaintiff (“B”).

Whilst the plaintiff’s written submissions deal in some detail with the calculations of types of security services that were provided at the four (4) physical locations and the other two agreed services provided, [3]no rebuttal evidence has been forthcoming from the defendant Commission whose various lawyers have been trying to defend what, in my respectful opinion is really indefensible.

  1. Liability of the Commission for the debt owed to the plaintiff company having been determined by operation of law, and, having survived the multiple ‘trips’ to the Supreme Court ‘intact’, there really is no need to consider anything else here, other than the legitimacy or integrity of the damages claimed.

Nothing new comes out of the defendant’s submissions as put by Mr Kuman, to rebut and create issues about the legal liability of the defendant. What is indulged in repeatedly is to avoid the facts of the claim itself, pursuant directly to performed security services, demonstrated by invoices rendered as required. No single or an amalgam of invoices has ever been challenged or disputed.

  1. That is the very reason why the Deed of Release, although one Supreme Court in this continuing litigation saga held it to be ‘illegal and null and void’,[36] and one previous Supreme Court acknowledged such a Deed as constituting ‘a settlement or compromise of a pending action’, was entered into.

It is part and parcel of the ‘alternate dispute resolution’ mechanism that is now a panacea for keeping legal disputes out and away from formal litigation before the courts.[37]

Needless to say, such a Deed, expressing the wishes of the disputants, is an acknowledgment of the respective rights and obligations of the parties, and that these should be accorded practical expression by compromising and settling their dispute out of court. Not lawyers and judges rewriting new agreements for the parties, and importing into these intentions alien to the parties, but what these outsiders would wish.

  1. Is not there a well known doctrine of contract law that is described as ‘privity of contract’?

Then, unfortunately litigation-happy lawyers get hold of and get their teeth into these disputes, turning them into ‘litigation by attrition’, using the law and its procedures to defeat and/or delay the course of justice, attainment of justice according to law.

  1. Does not this qualify for the epithet of ‘abuse of process’? When it is engaged in against the express wishes of the contracting parties in what they surely must agree must be a ‘win-win’ outcome.

As adverted to in my preliminary comments, the usual ‘suspect’, as it were, is beaten with the usual and tired weapon (s)[38], that, in my respectful opinion, firstly defy, the doctrine of ostensible authority,[39] and, secondly, overstretch the meaning and intention of s 61 PFMA. Section 61 is in the following terms:

61. Approval required for certain contracts

(1) The provisions of this section apply to and in

respect of all public bodies notwithstanding any

provision to the contrary in any other law and

notwithstanding and without regard to any exceptions,

limitations, conditions, additions or modifications

contained in any other law.

(2) Subject to Subsection (3), a public body shall

not, except with the approval of the Minister, enter

into a contract involving the payment or receipt of an

amount, or of property to a value, (or both) exceeding

(a) K100,000.00; or
(b) In the case of a public body declared by the Head of State, acting on advice, by notice in the National Gazette, to be a public body to which this paragraph applies – K500,000.00.
(3) . . .

Issues raised in lieu of Rebuttal Evidence against Evidence of Damages.

  1. It needs to be noted here that these issues that Justice Injia (as he then was) characterised as ‘threshold fundamental procedural issues’) ought properly to have been raise and dealt with during the pleadings, not, as here, long after the entry of judgment on liability, and now during the assessment of damages stage.

With respect, the issue of s 61 compliance is really an issue about jurisdiction of the court to entertain disputes over a contract of services entered into by governmental authorities or institutions with third parties (private contractors).

  1. It is analogous to pleading at the very outset (upon service of a claim) non-compliance with the mandatory requirement of s 5 Claims By and against the State Act. Similarly, when there is asserted non-compliance with the statutory time limits prescribed, for example, in legislation such as: CBAS Act, Statute of Frauds and Limitation Act, and Motor Vehicles (Third Party Insurance) Act, as to initiating legal claims.
  2. That is what, it should be remembered, the Independent State of Papua New Guinea (3rd defendant) did in its challenge to the writ of summons. The State also invoked the principle that the NCDC was an incorporated instrument of government that enjoyed a separate status when its governing legislation defined it as being ‘able to sue and be sued in its corporate name’.
  3. The Independent State was, therefore, properly removed as a party. The capacity of corporate statutory bodies such as the NCDC to sue and be sued, which also includes the capacity to own and dispose of property (assets), would suggest, in my respectful opinion, that no notice such as that under s 5 CBAS Act need be served by intending claimants.

I have adverted to the issues of s 61 PF (M) Act and the Deed of Release in my foregoing discussions. Here, I wish only to elaborate on them by way of emphasis.

  1. Firstly, a Deed of Release is a perfectly legal document to use in litigation. Nowhere in our laws is this agreement (to settle) proscribed. To suggest otherwise is to engage in mischief. It is a well recognised device or tool for parties to come to a compromise about their legal dispute (s), and agree to settle these out of court to their mutual satisfaction.

As such, to suggest that the Deed was illegal and, thus, void and unenforceable involves indulging in mischief that, in my respectful opinion, can be quite conveniently characterised as a ‘red herring’. The Deed constitutes a ‘compromise’, the definition of which, according to the authoritative lexicon The Oxford Dictionary of Law is: ‘The settlement of a disputed claim by agreement between the parties. Any court proceedings already started are terminated.’

  1. In this, the defendant questioned the legality of the Deed of Release before the ‘first’ Supreme Court in SCA 24 of 2002, not as an accepted device in settlement of cases, but rather its connection to what Justice Injia (as he then was) as the s 61 PF (M) Act raising ‘threshold fundamental procedural issue . . . where the validity of the deed is contested on substantive grounds’.

And that Supreme Court ordered that the issue of the validity of the Deed of Release go back to the National Court for hearing and determination. That is what Justice Sevua undertook and held it regular and legal, ordering the defendant Commission to pay the plaintiff company forthwith.[40]

And as it becomes monotonous by repetition, the lawyers for the NCDC went back to another Supreme Court appealing against his Honours judgment.

Ministerial Approval

  1. Section 61 has been reproduced above. It is my respectful opinion that the statutory requirement for obtaining the approval of the Minister for Finance as provided there has been misunderstood and thus misconstrued and misapplied in a number of contracts involving third parties and governmental agencies and institutions, such as in this case.
  2. The provision, in my respectful opinion, was never intended to be used and considered as a panacea for avoiding contractual obligations by State authorities and instrumentalities to third parties[42] who came and dealt with (or treated with) them on any business or commercial undertakings. These third parties dealt (or treated) with these ‘public authorities’ in good faith, whose legitimate and legal officials presented themselves as duly authorised officers and agents to represent and act for and on behalf of the authorities.

Is it suggested then that the then Governor of NCD, the Hon Philip Taku MP, and his Board of Commissioners, duly appointed under the prevailing legislation, lacked the necessary legal authority to enter into any agreement (s) with the plaintiff company, as here? Is it suggested by this that Governor Taku and his Board were on a frolic of their own, engaging in misrepresentation and thereby misled the plaintiff?

  1. This is the classical example of business commercial relationships envisaged under the well known doctrine of ostensible authority, an important doctrine of company law.
  2. With respect, the 1992 case of AGC (Pacific) Ltd v Woo International Pty Ltd[43] discusses the origin and applicability of this doctrine, a doctrine that is quite pertinent and applicable here. It is instructive, I would respectfully suggest, to recite hereunder what the decision in that case said:

Where a person dealing with a company acts in good faith and with no notice or reasonable grounds of suspicion of irregularity or impropriety, he is not affected by any actual irregularity or impropriety in a matter of internal regulation. That is, a third party dealing with a company is not bound to ensure that the internal regulations, derived, inter alia, from the articles of association, have in fact been complied with as regards the exercise and delegation of authority in the company. A third party need not go further: he need not ensure that the rules of internal management – sometimes referred to as the rules of “indoor management” have been observed. Royal British Bank v Turquand [1856] EngR 470; (1856) 6 E & B 327; (1856) 119 ER 886; and, Sangara (Holdings) Ltd v Hamac Holdings Ltd (In Liquidation) [1973] PNGLR 504 applied.

  1. It ought to be accepted as a ‘given’ that the law would not have intended that ‘public authorities’ could quite casually but deliberately enter into any commercial transactions such as contracts with private service providers, third parties, giving them the impression that it or they had the necessary legal capacity and authority to do so, and subsequently reneging on their obligations by pleading s 61 PF(M) Act?

This would undoubtedly be an unconscionable act on the part of the public authority concerned. Nobody would want to do business with such a dishonest and unreliable public body. Such a bad reputation would (and should) spread like bush fire to warn unsuspecting third parties.

  1. Contract law has remedies for misrepresentations, mistakes and unconscionable agreements.

It has been suggested in the course of these multiple proceedings that have bedevilled just one claim on breach of contract that the onus is on a party contracting with a public body to ensure that Ministerial approval under s 61 PFMA has been obtained.

  1. How ludicrous and ridiculous! It is the height of mischief and frivolity! It is the obligation of these public bodies to obtain the necessary approval from the Minister before they even consider treating with third parties, let alone signing contracts with them.
  2. The absurdity of such a suggestion is clearly demonstrated by a reading of sub-s (2) of s 61, where the onus and obligation is placed directly, and unequivocally, on ‘a public body’ intending to ‘enter into a contract involving payment or receipt of an amount, or property to a value. (or both) exceeding K1000, 000.00.’ Sub-s (20(b) concerns the amount of K500, 000.00.

Any irregularity or non-compliance with requirements of s 61 PFMA are the irregularity or non-compliance of the contracting ‘public body’.

  1. The second point that needs noting and emphasising is that the contracts under consideration in the plaintiff company’s claim are contracts for provision of security services. By their very nature, these types of contracts do not specify, and cannot possibly specify, identifiable liquidate amounts. Simply because, at the entering into of such contracts, it would be impossible to nominate an exact amount from the outset, not even a notional figure.

These types of contracts, by their very nature, should be informally described as ‘pay as you receive’ agreements, because that is exactly what happens, or ought to happen. Monthly or mutually agreed periodical invoices are rendered as security at the agreed locations and purposes are provided.

  1. Such contracts involve and entail the provision of the contracted service(s) on a regular basis for a stated term or duration of the service, invoicing the financial obligations incurred periodically.[44] These were not contracts for supply of goods that would naturally be evidenced by individualised and ascertainable one-off costs forming part of the terms agreed between the parties.

In all of the arguments put before me,[45] Mr Kuman has not directed my attention to the terms and conditions of the two contracts where a specific liquidated amount in excess of K100,000.00 was nominated. So this ‘red herring’ of an argument by Mr Kuman should have failed as mischievous and unmeritorious.

  1. Section 61 envisages the entering into of large ascertainable liquidated amounts, which are of course the subject of other types of contract.[46] This opinion is fortified by the very fact that nowhere in the principal and supplementary contracts is or are to be found specific liquidated amounts included as terms of the contracts.

It is not without significance to note that the plaintiff company did not claim damages for the unceremonious breach of the two contracts. It just wanted to be paid for the cost of services rendered under the contracts. This was part of the consideration for the entering into and signing of the Deed of Release.

  1. The Oxford Dictionary of Law defines ‘compromise’ as: ‘The settlement of a disputed claim by agreement between the parties.’ Any court proceedings already instituted are terminated (withdrawn) as a consequence of the compromise for settlement.
  2. Similarly, the part- payment of the debt by the defendant Commission on two occasions in August 2002, totalling K2million. Now, if this large amount of money was not part-payment for an existing duly acknowledged debt to the plaintiff company, then what do the defendant Commission’s lawyers say it was for? They, especially Mr Kuman of counsel say nothing! Is it suggested that the defendant Commission is a charitable organisation that quite freely donates such large amounts of public monies to a private company? No!

It is submitted on behalf of the defendant Commission by its counsel, without so much as offering anything new and substantive, but mischievously engaging in ‘beating’ the old and tried hobby-horse,[47] and contending that the plaintiff company’s claim should fail.

  1. There is an attack on the burden of proof. This bold stance is assumed in the face of well-documented invoices demonstrating how, when and where these costs had been incurred. It is instructive to note also, at the risk of repetition, that the defendant Commission took no issue (s) at all with any of the invoiced services the plaintiff claims were rendered, pursuant to the two contracts.
  2. And Mr Kuman’s submissions on the indefensible, therefore, fly in the face of the Deed of Release, not to mention the K2million part-payment. These could quite conceivably constitute admission of liability that would become the subject of an order for summary judgment pursuant to Order 12 Rule 38 NCR. Counsel also attacks the claims by describing them as ‘balance of contract’ that would constitute penalty and/or unjust enrichment.

This court, with respect, fails to follow this line of argument. In any case the Deed of Release that acknowledges the well-documented itemisation of the service (s) rendered to the NCDC demonstrate counsel’s assertions here to be without foundation and merit, and, once again, offered merely as a ‘red herring’.

  1. Furthermore, counsel for the defendant Commission deliberately, in my respectful opinion, ignores the judicial history of this proceedings that he was an active participant in, even if chequered. Counsel, thus, thereby indulges in vexation and mischief.

In my considered opinion, by indulging in this mischief, counsel fails to deal with the pertinent principles of law backed-up by case law precedents. And this is magnified by not producing relevant and admissible evidence to rebut the plaintiff’s evidence on its claim.

The colloquial term ‘wishy-washy’ keeps rearing its ugly head here in respect of the arguments on behalf of the defendant Commission.

  1. The plaintiff’s admitted evidence must, and does, by law, stand unchallenged and not rebutted. The credibility of the plaintiff’s evidence would, and does, by law stand unmoved.

It should go without saying that if you have not produced any relevant and admissible rebuttal evidence, then one has no business, let alone a legal entitlement, to engage in futile attacks, peppered with ‘red herrings’, on the party that has produced evidence in support of its case, evidence that in fact constitute liability of the opposing party. No amount of red-herrings, nor attempts at evading or avoiding the inevitable, should succeed here.

Nor should one such party be talking about the standard and degree of proof, when one has not discharged its own obligations under the law. There is a useful advisory that goes: if you point a finger at someone (accusingly), there will be at least three fingers pointing back at you!

  1. A quick perusal of the two court files on this matter would lead inexorably to the conclusion that there has been too much ‘lawyering’ that I adverted to in the preliminary comments. I need not, therefore, canvass the history of this here.

Conclusion

  1. It is the respectful judgment of this court that the evidence of the plaintiff company to substantiate its claim is made out, established, to the satisfaction of the court. That is to say, I am satisfied on the balance of probability that the plaintiff company did render the security services, at the locations and rates detailed in the invoices submitted, at the costs claimed, and which remained unpaid at the time of instituting this claim.[48]

Part-payments of the debt (by two instalments totalling K2million) and the Deed of Release give substance, clarity and credence to the case for the plaintiff.

  1. The two contracts, either individually or in tandem, did not and cannot come within the purview of s 61 PFMA for the reasons expressed already here. Parties through their lawyers relying on this provision, suffer from treating this provision as a panacea for any defaults or shortcomings on their own part in the due compliance with the requirements of law and procedure, that it is not.
  2. Section 61 is not an isolated provision for parties and their legal representatives to avail of, as an after- thought, when they have shortcomings or defaulted in faithfully adhering to and complying with the requirements of law and procedure. It was never intended to be an ‘escape route’ for unprepared and/or negligent lawyers.
  3. The provision is surrounded by other provisions,[49]obliging public bodies to, for instance, keep bank accounts, engage in borrowing, investment and application of funds, entering into contracts for goods and services, keeping of records, reports and financial statements, and last, but not least, the powers of the Minister.[50] Part 11 – Responsibility for Financial Management, ss 3, 4, 5 & 6 PFMA.

The plaintiff company’s two contracts with the defendant Commission were for the provision of security services that could not, by their very nature and operation, nominate in their respective terms an identifiable liquidated sum, such that Section 61 (2) could properly be said to be relevant and applicable.

The Deed of Release did not, and could not possibly,[51] constitute a new or fresh contractual obligation between the parties, whose pre-existing respective rights and obligations under the two contracts were the very subject of that Deed.

  1. To suggest or think so is so absurd; where did the Deed of Release come from? Did it just drop out of the big blue sky unexpectedly and with no connection whatsoever to or with anybody or anything?

It is not without significance to note that if the Deed of Release had been left to run its normal course without being interfered with by frivolous and vexatious trips to the appellate courts, as happened here, the legal obligation (s) under the Deed would undoubtedly have been duly and fully discharged as intended, long before now, to the mutual satisfaction of the parties. It would undoubtedly have saved the huge amount[52] that is claimed as ‘interest’ that has accumulated over the last 16 years.[53]

It did not escape the court’s attention that, during the course of negotiating and crafting a mutually acceptable settlement through the Deed of Release, there was an intimation that the services of the plaintiff company could be retained. Similarly, the payment of the outstanding amounts by regular instalment payments.

  1. There is abroad in our country an unhealthy culture of reneging on previous legal undertakings and obligations upon changes of governments and management personnel! It would appear in most cases to be motivated more by personal private and political interests than anything legitimate and legal.

There does not appear to be any qualms about going back on one’s promises. When a man gives his word, he is expected to keep it. Usually he does.

  1. There is an old saying that goes: ‘An Englishman word is his bond’, and it should be applicable here because the basis of that statement is part of our ‘received law’. A Papua New Guinean’s word should be his bond. Similarly, and most crucially, a PNG governmental authority, a ‘public body’ should honour its undertaking and agreement.

The notion that a pledge is to honoured is understood and accepted by all civilised peoples and societies. Honour, pledge, honesty, respect, all of the beautiful words that make a man human are involved here.

  1. Up to a point, promises are self-executing, self-enforcing. This has a traditional element to it that time does not permit discussing here. It is part of the social control mechanisms of our traditional village societies.

Now, reverting to the subject at hand, that of assessing the damages the plaintiff company claims, it has to be repeated here for emphasis that the defendant Commission did not nor does it now, by the production of contrary and rebuttal evidence, dispute the claims as evidenced in the invoices rendered by the plaintiff company.

  1. The defendant Commission was, as repeatedly mentioned in the foregoing discussions, fixated about the ‘red herrings’: s 61 PFMA and illegality of the Deed of Release. The defence of the NCDC has been a futile exercise as far as the detailed itemisation of the different invoices are concerned. There has been too much mischievous lawyering lacking substance. An instance of lawyers stirring up litigation in this case.

An initial amount of K8.5 million remaining unpaid, with the cascading interest, has a ballooning effect on the liability of the Commission, when it ought not have reached this far.

  1. Now, from evidence before the court on behalf of the plaintiff company, as helpfully calculated,[54] there is an amount of K8, 715, 574.56 claimed as the grand total. Added to this is the 8% interest per the Judicial Proceedings (Interest on Debts and Damages) Act, from the date of issuance of the writ of summons to date of judgment (29 October 1999 – 02 March 2016), a period of 16 years 6 months, giving total interest at K11, 155, 935.44. Total amount inclusive of interest is K19, 871, 510.

Deducting part-payments of K2, 000, 000.00, leaves the final balance of K17, 871, 510.00.

In the end result, I am satisfied that above calculations be accepted as the assessed Damages that the defendant Commission should be ordered to pay the plaintiff, and I so order.

  1. The court orders, therefore, that judgment in the amount of K 17, 871, 510.00 be entered in favour of the plaintiff. The plaintiff’s costs of and incidental to this proceedings in the amount of K5, 000,000.00 be paid by the defendant.

Orders accordingly.


_______________________________________________________________
Lomai & Lomai Attorneys: Lawyers for the Plaintiff
Kuman Lawyers : Lawyers for the Defendant


[1] For want of a better term.
[2] The Hon Peter O’Neill PM v Nerrie Eliakim & Ors; unreported SC 1524 of 2016.

[3] In conjunction with the duties and responsibilities of the Attorney-General/Minister for Justice under the Attorney-General Act 1989; see, ss 3, 4, 5, 7 (e), (f), 8 (4) & 13.
[4] Because of the public interest, controversy or debate about such activities.
[5] Though the Report of the Commission of Inquiry was submitted in December 2014, it does not appear to have been tabled in Parliament. Lawyer parties would appear to have hastened to move courts and obtained the perennial supposedly cure-all ‘stay’ that has basically kept under wraps the report on the Inquiry (the findings and recommendations). When the report will see the light of day is of course a mystery.
[6] In conjunction with the powers of the Attorney-General under s 15 of the Act: Employment of Barristers, etc; practising outside the country.
[7] In a properly crafted Defence under the NCR that pleads ss 2 and 61 as a preliminary and threshold issue of jurisdiction.
[8] A frequent victim is s 155 (4) of the Constitution.
[9] The Hon Peter O’Neill v Nerrie Eliakim & Ors, supra.
[10] Ibid
[11] For clarification and emphasis.
[12] In a trial court.
[13] In the trial court and before the appellate court respectively, a party will be precluded from raising and arguing these later.
[14] Principal and supplementary dated 5 February and 27 March 1989 respectively.
[15] Board Meeting No. 3, Resolution 29/2001.
[16] Important dates and amounts of money, as well as what are considered to be other important information have been emboldened for emphasis. Unnecessary though this may seem, I do this to counter the ever-present tendency in some deceptive lawyers to conveniently evade and avoid these.
[17] Preliminary part of which has already been canvassed in the Introduction to this judgment.
[18] And then administrators of the NCD.
[19] The National Capital District Commission Act.
[20] SCA No. 24 of 2002.
[21] Case law in this jurisdiction is replete with many instances where this Rule has been invoked. See the oft-cited and followed cases of Green & Co Pty Ltd v Green [1976] PNGLR 73; and, Mapmakers Pty Ltd v Broken Hill Proprietary Company Ltd [1987] PNGLR 78.
[22] See the discussion on s 61 PF(M) Act below.
[23] Or frantically ‘clutching at straws’ when their legal representatives/advisors have been negligent in failing to faithfully comply with the timelines prescribed by the rules of court for pleading.
[24] After ten (10) years of multiple court proceedings, going up and down the hierarchy of our superior courts system.
[25] See the discussion on the 12 October notice of motion of the defendant, and ruling of Salika J (as he then was) on 29 November 2006 (supra, pp 18 & 19).
[26] Note that the customary way under the NCR when the prescribed timeline for filing a Defence is approaching and will not be met in time is to apply and seek 'leave' to file out of time. It is a substantive application to be properly supported by credible admissible evidence as to why the timeline cannot be met. It was never intended that such an application would be made after the expiry of the prescribed timeline. Nor was it intended to be 'an extension of time'.
[27] WS No. 1221 of 1999.
[28] By supportive reference to the rulings of the Supreme Court.

[29] That Justice Sevua had declared legal and enforceable, which attracted yet another appeal by the NCDC to yet Supreme Court, which court granted the appeal.
[30] Page 9 of the Supreme Court’s ruling on 6 June 2003.
[31] Because these were invariably attempted on the very day (12th hour) nominated for hearing.
[32] That went from the Commission’s in-house lawyers to private lawyers (Posman Kua & Aisi) who had represented the Commission, presumably on a brie-out, to another private lawyers (Kuman),
[33] Judicial Proceedings (Interest on Debts and Damages) Act.
[34] Supra.
[35] Managing Director of the plaintiff company, under the protection and authority of the doctrine of ostensible authority; and the Governor as political head and chairman of the executive commission of the statutory body established under law respectively.
C City Hall, Section 7[3] Allotment 34 Henao Drive, Gordons and Koki Markets, City Hall Respond (sic) Unit, VIP Escorts and Litter Enforcement.

[36] For ‘non-compliance of (sic) s 61 of the Public Finance (Management) Act 1996’ (sic).
[37] For very good reasons, to save the parties the well known inhibiting factors of litigation: costs and delays.
[38] For want of a better term.
[39] See, my decision in AGC (Pacific) Ltd v Woo International Pty Ltd [1992] PNGLR 100.
[40]41 On the amount that featured in the Deed of Release rather than a judgment in default.
[42] Individuals or private corporate entities.
[43] Supra.
[44] According to the prevailing business practices in respect of the particular (goods) and services contracted for.
[45] And none in the various courts before this.
[46] For instance, large developmental project agreements involving multinationals.
[47] Adverted to briefly in the preliminary comments.
[48] Which on the court records took the form of a Writ of Summons filed on 29 October 1999, some 16 years ago.
[49] Found under Part V111 – dealing with financial duties and responsibilities of Public Bodies.
[50] Sections 52, 56, 57, 58, 59, 62, 63 and 64, respectively.
[51] As some mischievous busybodies and others who personally would not wish the company to be paid such amounts of money for the legitimate provision of contractual services, because they themselves would wish they could have these. In ordinary parlance, this is called jealousy! It is definitely not as unthinkable as it may seem. Unfortunately, some in PNG have unconscionably adopted this as a way to deal with opponents (or detractors) , unashamedly using and abusing law, and powers of the State.
[52] Legitimate.
[53] Pursuant to Judicial Proceedings (Interest on debts and damages) Act.

[54] See the foregoing calculations on the various services provided at the various localities.

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