KK Kingston Pty Ltd v Kennedy [1995] PGNC 47; N1389 (8 December 1995)

Unreported National Court Decisions

N1389

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 102 OF 1995
KK KINGSTON PTY LTD - PLAINTIFF
DECLAN KENNEDY - DEFENDANT

Lae

Sevua J
24 March 1995
8 December 1995

PRACTICE AND PROCEDURE - Registration of judgments in Foreign Courts - District Court judgments - Whether can register in National Court for purpose of registration in a foreign court.

PRACTICE AND PROCEDURE - Jurisdiction -Reciprocal Enforcement of Judgments Act Ch 50 - No provision for registration of District Court judgments in National Court.

PRACTICE AND PROCEDURE - Application under s. 155 (4) of Constitution - Power to make such other orders as necessary to do justice - Judicial powers - Of adjectival remedial character - Must be within judicial power.

Cases Cited

Supreme Court Reference No 2 of 1980 [1982] PNGLR 150

8 December 1995

SEVUA J: On 24 March 1995, I gave brief reasons for refusing the plaintiff’s application and undertook to provide my reasons in full later. This I now do.

The plaintiff, by way of originating summons and notice of motion, made an exparte application seeking an order that the Lae District Court order in Complaint GFC 377 of 1993 given and entered on 26 July, 1994 be registered and delivered from the National Court of Justice.

The evidence in support of this application which is quite brief is that, on 26 July, 1994, default judgment was entered in the Grade 5 District Court in Lae against the defendant in the sum of K9, 956.58 together with costs in the sum of K250.00 and interest pursuant to Judicial Proceedings (Interest on Debts and Damages) Act, Ch 52. The defendant however, appeared to have left the country and service of the District Court proceedings was effected by way of substituted service by publication in the Post Courier. Enquires had proved that the defendant could be resident in Australia.

The plaintiff therefore instructed its lawyers to commence proceedings in the Queensland Supreme Court, however, the plaintiff’s lawyers found that only judgments delivered from the National Court and Supreme Court of Papua New Guinea are permitted to be registered pursuant to Part 2 of the Reciprocal Enforcements of Judgments Act 1959.

Mr Ousi of counsel for the plaintiff / applicant briefly submitted that the provisions of the Judgments Reciprocal Enforcement Act do not cover his client’s situation, however he submitted that the basis for this application was founded on the inherent powers of this Court pursuant to s. 155 (4) of the Constitution. This being the case, he submitted, this Court has the inherent powers to grant the order his client is seeking.

On the outset, let me say it is true, this Court as a Court of superior record has inherent powers. S. 155 (4) states, “Both the Supreme Court and National Court have an inherent power to make, in such circumstances as seen to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.” As the plaintiff / applicant is not seeking an order in the nature of a prerogative writ, I consider that what Mr Ousi is really asking this Court to do is to make an order under the second limb of this provision, that is, “such other orders as are necessary to do justice in the circumstances of a particular case,” (underlining mine). The issue, in my view is, can this Court grant such an order pursuant to the second limb of s. 155 (4)?

Unfortunately, I have neither been referred to any authority to support this submission nor have I heard the benefit of full arguments. Nevertheless, the provisions in the Reciprocal Enforcement of Judgments Act, Ch 50, do not provide for this situation therefore, I cannot find any basis for this application under that Act, which is the appropriate legislation in so far as the plaintiff’s application to the Queensland Supreme Court is concerned. That Act does not provide for the registration of judgments of the District Court in the National Court.

The Reciprocal Enforcement of Judgments Act, has two purposes. Firstly, it is to make provision for the enforcement in Papua New Guinea of judgments given in foreign countries which accord reciprocal treatment to judgments given in Papua New Guinea, and secondly, it is for facilitating the enforcement in foreign countries of judgments given in Papua New Guinea. The Act therefore provides for a reciprocal arrangement for enforcement of judgments both in Papua New Guinea and in other countries.

I consider that if the Parliament had intended that our District Court judgments be required to be registered in the National Court for the purpose of taking advantage of this reciprocity then it would have made provisions for this either under that Act or under the District Court Act. In my judgment, the granting of this application would be tantamount to legislating, which is not the function of the judiciary. The principles of separation of powers are clearly entrenched in our Constitution. Therefore in my view, this Court, or the judiciary for that matter must not permit itself to become a vehicle or an instrument of legislation. To do so would mean usurping the legislative function of the legislature which vests in the National Parliament. In my view, if Parliament wants to have District Court judgments registered and delivered in the National Court then it can legislate in that regard. This Court cannot act as the legislature in this case.

Since counsel’s submission, I have had limited time to peruse a Supreme Court decision which touches on the meaning of s. 155 (4) of Constitution, especially the second part of that provision which is the basis of the submission relating to the present application. This is the case of, Supreme Court Reference No 2 of 1981 [1992] PNGLR 150.

It seems to me that three of the Judges in that case were divided in their opinion as to the “other” orders in s. 155 (4). For instance, Greville-Smith, J’s opinion was that, “the other” orders in s. 155 (4) must be procedural in nature and designed to enforce the substantive law as established in s.9 of the Constitution: the “inherent” power can not extend to the making of orders with the character of “law”. Kapi J (as he then was) was of the opinion that, “the other” orders in s. 155 (4) must be orders of a character similar to prerogative writs in the same that they are remedial in nature. Contrast these to Pratt J who said that, “the other” orders in s. 155 (4) need not be order similar in nature to prerogative writs: where the law is silent and where the making of an order would not conflict with any statutory provisions or any principle of the underlying law, an order may be made under s. 155 (4) to fill the gap in such a way that justice will be served.

If I were to adopt the opinion of Pratt J then it seems I could make an order as urged by counsel for the applicant in the present case. However, both Grevell-Smith J and Kapi J (as he then was) talked about the procedural and remedial aspect of such an order which in my view seem to accord with the opinion of Kearney DCJ (as he then was) who was of the opinion that, “Section 155 (4) is directed solely to the power of the Court to issue preventitive or remedial judicial process within judicial power, eg. an injunction, for the purpose of protecting or enforcing a party’s primary rights.” The late former Chief Justice did not express an opinion on this aspect.

If therefore seems to me that the order which the plaintiff / applicant is seeking, would be inappropriate in the circumstances since it is not of a remedial or procedural type, for instance, an injunction.

Really, I consider that the plaintiff’s lawyers should have instituted proceeding for the debt in the National Court in the first instance and had they done so, they would not have found themselves in this situation. Despite the fact that s. 21 (1) (a) of the District Courts Act, Ch 40, confers jurisdiction in a personal action at law claim of up to K10,000.00 upon a Grade 5 Magistrate, claim for that amount could still be made in the National Court in my view. My view is fortified by Order 22 Rule 25 (1) of the National Court Rules which provide that when a plaintiff recovers by judgment or otherwise, a sum of less that K10,000.00 in an action for tort or contract, he would be entitled to costs under the District Court scale.

In the final analysis, it is my judgment that the plaintiff is not entitled to an order pursuant to s. 155 (4) of the Constitution as that remedy is inappropriate in the circumstances. It follows therefore that this application must be refused.

Lawyer for Plaintiff: Warner Shand

Counsel: P Ousi