Sealark Shipping Pty Ltd v Secretary for Treasury and Corporate Affairs [1998] PGLawRp 774; [1998] PNGLR 333 (1 July 1998)

[1998] PNGLR 333

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

SEALARK SHIPPING PTY LTD; AND
BISMARK MARITIME PTY LTD

V

THE SECRETARY FOR TREASURY AND CORPORATE AFFAIRS; AND
THE STATE

WAIGANI: WOODS J
19, 1 July 1998

Facts

The plaintiffs obtained separate judgments against the defendants in the sum of K190,240.27 and K84,595.07 respectively.

Three months after the judgments had been obtained and the judgements had not been satisfied the plaintiffs sought orders in the form of a mandamus that the Treasury makes the amounts payable.

Section 14(3) of the Claims By and Against the State Act 1996 states that the State is required to satisfy the judgment within reasonable time and out of monies legally available. Furthermore under s 14(5), no action in the nature of a mandamus could be brought against the State for a writ of mandamus unless the State had failed to comply with s 14(3) of the Act.

Held

1. That three months should be considered to be reasonable time to satisfy the judgment. The State has failed to comply with Section 14(3) of the Act and therefore under those circumstances the protection against mandamus given under Section 14(5) is not available.
   
2. That if the State through the Secretary of Treasury is to say that no money is legally available, he is required to:
   
   1. support that claim by making the accounts available to the plaintiff pursuant to s 51 of the Constitution.
      
   2. justify why certain budgetary provision are given priority over others.
      
   100. Give some indication as to when the judgment will be satisfied.
        

Mandamus granted.

3. There is increasing call within the community for greater transparency and for State officials to fully appreciate the responsibility placed on them under Section 51 of the Constitution.
   
4. "Section 15(5) of the [Claims By and Against The State Act 1996] clearly recognizes the right to apply for mandamus and appropriate orders to seek compliance or an appropriate explanation. In the interest of freedom of information and open government it is incumbent on me to firstly order the Secretary for Treasury and Corporate Affairs to pay forthwith the monies under the judgements so certified ..." per Woods J at p. 326.
   

Counsel

C Coady, for the plaintiffs.
P Kiele, for the defendants.

1 July 1998

WOODS J. The plaintiffs are applying for Orders in the way of mandamus that the Secretary of the Treasury pay the judgements obtained by the plaintiffs in proceedings instituted against the State. The plaintiffs obtained judgements in the sums of K190,240.27 for the first plaintiff and the sum of K84,595.07 for the second plaintiff.

Claims against the State are regulated by the provisions of the Claims By and Against the State Act 1996. There is no dispute that procedures governing claims against the State have been followed and judgements have been obtained. The satisfaction of those judgements is clearly referred to under that Act.

Section 13:

(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.

Section 14.

(1) The certificate referred to in Section 13 (2) shall be served on the Solicitor-General....

(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 Department Head responsible for finance matters shall, within a reasonable time, satisfy the judgement out of moneys legally available.

(4) ...

(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.

The evidence is undisputed that the requirements of Section 14 (1) and (2) have been met. The requirement for a properly certified certificate of judgement has been properly served on the Departmental Head responsible for finance matters, namely the Secretary for Treasury and Corporate Affairs. The certificate was served at the end of February 1998. It is now over 3 months since then and I find that 3 months is a reasonable time within which to satisfy a judgement for the purposes of subsection (3). However the Secretary has failed to satisfy the judgement out of moneys legally available and thus has failed to comply with Subsection (3). Therefore the protection against mandamus or otherwise is not available as Subsection (5) is quite clear, actually the way it is worded, it suggests that it is the appropriate remedy if there is such a failure to observe the requirements of Section 14. This is what the plaintiff is submitting here. What is quite disturbing here is that the Secretary for the Treasury has made no effort to properly inform the plaintiff or the Solicitor-General the reasons why he has failed to comply with the requirements of the Section. There is an increasing call within the community for a greater ‘transparency’ as the populace and media say, and it seems clear that there has been a failure by the State officials and the Parliament to fully appreciate the responsibility placed on them in Section 51 of the Constitution. This matter before me here is right on the point of freedom of information and transparency in the actions of Government.

Here we have a responsible national company seeking justice through the court and being denied by the refusal of a senior Government official to comply with the law. Section 14 (5) clearly recognises the right to apply for mandamus and appropriate orders to seek compliance or an appropriate explanation. In the interests of freedom of information and open government it is incumbent on me to firstly order the Secretary for Treasury and Corporate Affairs to pay forthwith the monies under the judgements so certified for payment or answer to the Court for his failure to comply with the law. And if he comes to answer why he has failed to comply, a mere statement that there are no moneys legally available will not be sufficient. In accordance with the principles stated in Section 51 of the Constitution it would require a proper analysis of the budgetary appropriations in the area and why the moneys so appropriated have not been properly applied or if so how they have been applied and why some people entitled have missed out and to explain in what order the monies have been applied in whatever ways they have been expended.

What is of additional concern to the Court is that whilst ever the Secretary for Treasury delays complying with the orders for judgement interest is continuing to run on the amount outstanding and these again are more monies that will be payable out of monies required for the benefit of the people of Papua New Guinea. And also this application will itself incur more costs to be paid by the State. Everyone in Papua New Guinea must be concerned about this, not just judgement creditors, as it costs the nation in the end but justice must be done and the law complied with.

I grant an order in the nature of mandamus for the Secretary for Treasury and Corporate Affairs to forthwith pay the amount of K190,240.27 together with any interest accrued to Sealark Shipping Pty Ltd and the amount of K84,595.07 together with interest accrued to Bismark Maritime Pty Ltd as certified under the certificates of judgements received.

Lawyer for the applicants: Henaos Lawyers.
Lawyer for the respondents: Solicitor General.