Mond v Kumura [2007] PGNC 175; N4639 (26 April 2007)

N4639

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 72 OF 2007

BETWEEN:

AINA MOND, APA GRAIALPONES, SIWI KOGLUA, BAUNDO MOGONO and ANDREW KONMA on their own behalf and on behalf of all members of the Auakane, Morombagawamo, Tamogoyani, Okundie and Awauglakana Clans of the Kamaneka tribe more particularly named in Schedule "A" of the Writ of Summons.
First Plaintiffs/Applicants

AND:

TANGANE KOGLWA and all those people named in Columns 2 and 3 of Schedule "B" of the Writ of Summons
Second Plaintiffs/Applicants

AND:

GIGBAI KOGLWA by his next friend ALPHONES SIWI KOGLWA and all those infants by their next friend named in Schedule "C" of the Writ of Summons
Third Plaintiffs/Applicants

AND:

UMBA SIWI and all those persons named in Columns 2 and 3 of Schedule "D" of the Writ of Summons
Fourth Plaintiffs/Applicants

AND:

GUNDU UMBA and all those persons named in Columns 2 and 3 of Schedule "E" of the Writ of Summons
Fifth Plaintiffs/Applicants

AND:

KUNDUANE SIWI by his next friend UMBA SIWI and all those infants named in Schedule "F" of the Writ of Summons
Sixth Plaintiffs/Applicants

AND:

JOHN KUMURA, ACTING SOLICITOR GENERAL, DEPARTMENT OF JUSTICE, ATTORNEY GENERAL
First Defendant/Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant/Respondent

Waigani: Hartshorn, J.
2007: 15 March, 26 April

Application for Stay – principles to be considered – Commission of Inquiry

Facts:

This is an application by the Defendants for this proceeding to be stayed pending the determination of the Commission of Inquiry into The Management Generally of Public Monies by the Department of Finance (Commission of Inquiry), pursuant to O. 13 r. 21 National Court Rules or alternatively pursuant to s.155 (4) and (5) Constitution.

Held:

1. From a consideration of the uncontested facts concerning the status of WS 434/97 it is apparent that it is not a file that is covered by the Terms of Reference of the Commission of Inquiry.
   
2. As to possible hardship, prejudice, or inconvenience to the parties, the Plaintiffs are entitled to the benefits of their judgment after waiting for almost 9 years since judgment was ordered.
   
3. There is no evidence that the State will in some way successfully challenge WS 434 of 1997 and therefore the State does not have an arguable case on this point.
   
4. Given the above and taking into account the interests of all parties, it is not in the interests of justice that this proceeding be stayed.
   
5. Accordingly, the application for a stay by the Defendants is refused.
   

Cases cited:

McHardy v. Prosec Security and Communication Limited [2000] PNGLR 279
Bire Kimisopa & Ors v. Paul Paraka trading as Paul Paraka Lawyers (2007) Unreported SCM 3/07

Counsel:

K. Kua, for the Plaintiffs
S. Lau, for the Defendants

26 April, 2007

1. HARTSHORN, J: This is an application by the Defendants for this proceeding to be stayed pending the determination of the Commission of Inquiry into The Management Generally of Public Monies by the Department of Finance (Commission of Inquiry), pursuant to O. 13 r. 21 National Court Rules or alternatively pursuant to s.155 (4) and (5) Constitution. This proceeding is by Originating Summons in which the Plaintiffs seek leave to apply to judicially review the failure by the Solicitor General to endorse the Certificate of Judgment in proceedings WS 434/97 between the Plaintiffs in this proceeding and Chief Inspector Robert Kalasim and the State (WS 434/97) pursuant to s. 14(2) Claims By and Against the State Act 1996 and substantively, an Order for mandamus directing the Solicitor General to so endorse the Certificate of Judgment.

2. The Defendants filed three affidavits in support of their Notice of Motion. In summary they contend that WS 434/97 is one of the many files to be investigated by the Commission of Inquiry, that no action can be taken on their file relating to WS 434/97 as it has been sent to the Inquiry team for the Commission of Inquiry for investigation, that the file is subject to or falls within the jurisdiction of the Commission of Inquiry and that this proceeding cannot proceed until and when the Commission of Inquiry has concluded its findings.

3. The Plaintiffs contend that these proceedings do not come within the jurisdiction of the Commission of Inquiry, that it is almost 16 years since the actions of the Police which led to WS 434/97 being commenced, that it is almost 9 years since judgment was entered and that they have waited long enough to enjoy the fruits of their judgment and are entitled to continue this proceeding against the Defendants.

4. The uncontested facts concerning the status of WS 434/97 are:

(a) There was a Police raid on the villages of the Plaintiffs on 29 May 1991.

(b) Proceedings were commenced by Writ of Summons for damages on 8 May 1997.

(c) Judgment was entered by Kapi DCJ (as he than was) with the consent of the Solicitor General on 17 December 1997.

(d) On June 21, 22, 23, 2004 there was a contested hearing on damages to be assessed. Judgment on damages was given on 26 August 2004 by Manuhu, AJ (as he then was) in the sum of K14,524,907.08.

(e) An appeal was lodged to the Supreme Court by the State. The Supreme Court ordered on 3rd November 2006 that the appeal by the State be dismissed for want of prosecution.

(f) Certificate of Judgment was issued by the National Court on the 14 November 2006.

(f) The Certificate of Judgment was served on the Office of the Solicitor General on 16 November 2006.

5. The principles to be considered upon an application for stay are laid down in the Supreme Court case of McHardy v Prosec Security and Communication Limited [2000] PNGLR 279. Injia, DCJ in the recent decision of Bire Kimisopa & Ors v Paul Paraka trading as Paul Paraka Lawyers (2007) unreported SCM 3 of 2007 states the principles laid down in the McHardy case:

"in the exercise of its discretion, the Court is to consider all relevant and appropriate circumstances in determining whether it is just, reasonable and in the interest of justice that the order ought to be stayed. Various considerations were enumerated in that case. It was not intended that the Court's discretion in a particular case should be restricted to selected considerations and circumstances; rather the Court is required to consider their totality in order to do substantive justice to the parties. The circumstances of a particular case may warrant greater or less or even no weight to be given to a particular consideration and that again is a matter of discretion.

6. I have considered the affidavit material and the submissions made by Counsel.

7. The main thrust of the Defendants submission is that the file is one to be investigated by the Commission of Inquiry. The terms of reference of the Commission of Inquiry dated 23 November 2006 concern claims for payment, made to the State for the period 2000 to 1st July 2006. The Terms of Reference relevantly are as follows:

(b) 1 to inquire into the existence and extent of illegal, false or improper claims for payment made to the State and approved or paid by the Department of Finance in the period 2000 to 1st July 2006 and to establish:-

(iii) the value of such claims for each year in the period 2000 to 1st of July 2006;

(iv) the number of illegal, false or improper claims, Judgments, or out of Court settlements approved for payment by the Department of Finance in the period 2000 to 1st July 2006.

2. The Commission is to inquire into all Consent and Default Judgments entered against the State in the period 2000 to 1st July 2006 and conclude as to the number and value of these judgments and the circumstances in which they came to be entered against the State.

4. The Commission is to make recommendations for action by the State in respect of Consent and Default Judgments made against it and the liabilities therefrom;

5. The Commission is to examine each out of Court settlement made against or entered into by the State in the period 2000 to 1st July 2006 ....."

8. As referred to earlier, the judgment in WS434/97 was ordered by consent on 17 December 1997, some two years before the commencement date of judgments to be investigated by the Commission of Inquiry. In addition, that consent judgment was commented upon and considered in the decision of Manuhu, AJ in the trial for assessment of damages in June 2004. The quantum of damages was not consented to by the State and was awarded after a contested hearing. That order was appealed to the Supreme Court by the State but was eventually dismissed for want of prosecution.

9. I note that annexed to the affidavit of the Acting Solicitor General Mr. David Lambu dated 7 March 2007 is a list entitled "Schedule No: 2 listed hereunder are list of what the Commission believe are Fraudulent, Illegal, or Improper Claims against the State". This is purported to be on the letterhead of "Council to Commission of Inquiry Into The Department of Finance". Listed as No: 6 is Aina Mond & Others K14.4 million Default Judgment". There is no evidence as to who prepared this list. Given the terms of reference of the Commission of Inquiry and the uncontested facts concerning the status of WS 434/97, it is argued by the Plaintiffs that it should not have been included on the list.

10. There presently are not any proceedings pending by which the Defendants are challenging the judgment or quantum of WS434/97 and as stated, the Supreme Court appeal has been dismissed.

11. Counsel for the Defendants submitted to the Court that the Defendants were not arguing that the State was not going to pay the Plaintiffs but that it would pay after the findings of the Commission of Inquiry. It was also submitted that the Courts should take account of the reasons why the Commission of Inquiry was established and the public policy considerations involved. In this regard the Court is cognizant of the reasons for the establishment of the Commission of Inquiry and the public policy considerations involved. However, the submissions of Counsel for the Defendant presuppose that WS434/97 is one of the files that the Commission of Inquiry is to investigate. From a consideration of the uncontested facts concerning the status of WS 434/97 it is apparent that it is not a file that is covered by the Terms of Reference of the Commission of Inquiry.

12. As to possible hardship, prejudice, or inconvenience to the parties, the Plaintiffs are entitled to the benefits of their judgment after waiting for almost 9 years since judgment was ordered.

13. The Defendants do not have any present proceedings challenging WS 434/97 and say they are waiting for the findings of the Commission of Inquiry. The Defendants also say that if payment was made to the Plaintiffs the prospects of them repaying the amount are slim. This submission presupposes that the State will in some way successfully challenge WS 434/97. There is no evidence before me of that occurring and the State does not have an arguable case on this point.

14. Given the above and taking into account the interests of all parties I find that it is not in the interests of justice that this proceeding be stayed.

Accordingly, I refuse the application for stay by the Defendants and order costs of this application to the Plaintiffs.
______________________________________________

Posman Kua Aisi Lawyers: Lawyer for Plaintiffs
Solicitor-General: Lawyer for the Defendants