Sealark Shipping Pty Ltd and Bismark Maritime Pty Ltd v Secretary for Treasury and Corporate Affairs [1998] PGNC 64; N1732 (19 July 1998)

Unreported National Court Decisions

N1732

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 208 OF 1998
SEALARK SHIPPING PTY LTD - FIRST PLAINTIFF
BISMARK MARITIME PTY LTD - SECOND PLAINTIFF
V
THE SECRETARY FOR TREASURY AND CORPORATE AFFAIRS - FIRST DEFENDANT
THE STATE - SECOND DEFENDANT

Waigani

Woods J
1 July 1998
19 July 1998

CLAIMS AGAINST THE STATE - judgements obtained – compliance with Claims By and Against The State Act – Secretary for Treasury failing to pay judgements – mandamus – freedom of information.

Counsel

C Coady for the Plaintiffs

Ms 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 uit,utxec oronttacattachment, or process in the nature of execution or attachment, may not be issued against the property venuehe St/p> <ـ Where a judgement is given agan against inst the sthe state,tate, the 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 cere certificate referred to in Section 13 (2) shall be served on the Solicitor-General....

(2) ـ The Solrcitor-GenerGeneral shall within 60 days from the date of service upon f a cicater SectiSection 13on 13 (2) (2) endorse the certificate in Form 1.

(3) & Upon reon receipt of the certificate of a judgement against the State bearing the Solicitor-General’s endorsement that judgement may be satisfied, the Department Head nsibl finaatters shall, within a reasonable time, sati satisfy tsfy the juhe judgement out of moneys legally available.

(4) ـ&#1..

.

(5

(5) &##160;; No acti action - (n - (a) for or in the nature of mandamus; or (b) for contemptourt,

or otherwise lies against the Solicitor-General or the Departmental head resp responsibonsible 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 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 the Constitution Section 51 it would require a proper analysis of the budgetry 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 whilstever 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.