N8624
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 18 OF 2017

BETWEEN:
ATLAS CORPORATION LIMITED
Plaintiff

AND:
DR KEN NGANGAN, in his capacity as Departmental Head responsible for Finance matters within the terms of the Claims by and against the State Act
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2020: 22nd October, 5th November

PRACTICE & PROCEDURE – Judicial Review & appeals – notice of Motion – Application for Oral Examination of First defendant – Judgment & Orders – Enforcement of – Order 13 rule 13 (1) (a) (b) & 2 (a) – Whether or not moneys legally available settlement of Judgment debt – Exact figure owing – Matter originating from 2002 court action – number of court proceedings since – no material as to exact figures accrued outstanding – proper to ascertain exact amount owing & due – cost in the cause.

Cases Cited:

Sealark Shipping Pty Ltd and Bismark Maritime Pty Ltd v Secretary for Treasury and Corporate Affairs [1998] PGNC 64; N1732 
Counsel:

A. Paru, for the Plaintiff
B. Kulumbu, for First & Second Defendants
					
RULING 
 05th November, 2020
1.	MIVIRI, J: This is the Ruling on the Plaintiff’s notice of motion filed the 21st July 2020 pursuant to Order 13 Rule 13 (1) (a), (b) and 2 (a) of the National Court Rules, “the Rules” for the attendance of the First Defendant before the Registrar of the National Court at Waigani at a date to be fixed by the Court, and to be orally examined on the question of whether the Department of Finance has monies legally available to satisfy the outstanding judgment debt and to produce the following documents:

(a)	A statement of account of the monies paid out by the First Defendant to satisfy the various judgments obtained against the Second Defendant on or from 27th July 2016, being the date upon which the Solicitor General signed the certificate of Judgment dated 13th March 2012 in SCA No. 6 of 2003 detailing the monies presently available for payment of Judgments and overall amount of outstanding judgments against the second Defendant, including that the subject of these proceedings;

(b)	 All Schedules to the Budget Acts and budget papers for the 2020 fiscal year showing amounts allocated to;

(i)	The Solicitors General’s office to pay Judgments;
(ii)	Pay Judgments generally;
(iii)	The Secretary for Finance’s Advance

(c)	 The Statements and bank reconciliations of the Second defendants accounts kept at the bank of Papua New Guinea as at the last date of each month for the 2020 fiscal year to date and

(d)	All valuation reports of assets held by the second defendant particularly in;
(i)	Kumul Minerals Holdings Limited and subsidiaries;
(ii)	Kumul Petoleum Holdings Limited and subsidiaries;
(iii)	Kumul consolidated Holdings Limited and subsidiaries

(e)	Respondents to pay the costs incidental to this application.

2.	The following is evident from the affidavits of Alu Konena sworn 20th July 2020 filed 21st July 2020, affidavit of Neil Daniel sworn 15th July 2020 and of Morea Raka sworn 12th August 2020 filed on that day. State is sought through the Secretary for Finance to attend before the Registrar to be examined whether there are moneys legally available to pay this judgment debt arising from a claim made by the appellant now applicant in the National Court in 2002 for a contract made in 1985 for sealing of road works along the portion of the Magi Highway. The award of damages in the National Court was appealed to the Supreme Court seeking higher which was awarded granting the appeal in 2004. A number of court proceedings eventuated which are adequately covered in the Supreme Court SCM 32 of 2018 Between Atlas Corporation Limited v Dr Ken Ngangan & The Independent State of Papua New Guinea heard 29th August 2019 and delivered 13th March 2020. Primarily over allegation of non-payment by the State the Judgment debt due. And no doubt over the years of non-payment interest would have accrued. On the converse this is a court order and on record of SCM 32 of 2018 certification of Judgment was issued to the Solicitor General twice by the Registrar of the Court no doubt with intent for the settlement of the moneys owing. On the 27th July 2016, the Solicitor General endorsed the 2012 certificate of Judgment. It is not clear as to what the figure was when that certification was made and whether pursuant if any payment was made there from. 

3.	This is the Independent State of Papua New Guinea that is sought through its finance department by a company for moneys it is owed by a Judgment of this court dating back to when the claim was first made out in 2002 from a contract in 1985. This is not against an ordinary Papua New Guinea living in the settlements perched around Port Moresby or the other major centres in Papua New Guinea whose means of cash and money would be minimal as opposed to the Independent State. And Particularly with offices such as that of the Solicitor General’s working with the courts and department of Finance in this area to administer specifically court ordered Judgment debts with a vote in the Government Budget specifically called Court Order vote appropriate 2020 in the sum K26, 000,000.00 and which was reduced by revised appropriation 2020 to K8, 554,843.00 because of the recent pandemic spread around the Globe and which is present in the country. But two warrants were released early this year 2020 to address outstanding court ordered claims received from the office of the Solicitor. One was for K5million and the other was for K1.6 million. The outstanding revised appropriation up to the present is K1, 654,843.00 and no further warrants have been forthcoming. There is nothing in the court ordered vote at this point in time.

4.	But claims that have been vetted by the office of the Solicitor General stands at K 230, 013,986.35 and this is the break up from the office of the Solicitor General relating; 2018 batch –K130, 318,234.88; 2019 batch- K75, 495, 646.81; 2020 batch-K24, 200,104.66 giving the total sum K 230, 013,986.35. This is materially the affidavit of Dr Ken Ngangan dated the 06th October 2020 filed.

5.	On the 13th August 2016, the amount owing on the Judgment debt was K67, 806, 280. 11 and which was served the first defendant. On the 31st March 2020, the Judgment debt was in the figure K 101, 984, 860.00. This is the figure after four years. It is not clear as to how this figure has been arrived at. Nor is it clear if this has been consulted with the State as that figure has accrued and accumulated outside of court presumably with interest. It is important that the State be a part as the money will come from the Public Purse belonging to the 8 million plus people of Papua New Guinea to be paid to a single corporate individual. It is proper because of the years that matter has seen out possibly 16 years at the highest to properly settle the figure that must be paid to the certified Judgment debt. 

6.	And it must also be settled that the Budget appropriation Act is an act of parliament passed by parliament every year in every budget allocation. It is law unto itself for proper management budget of the country as a whole. Votes are created as a result of this act of parliament. Here the specific vote is the Court Order vote which is specifically designated for that purpose and that purpose alone. Similarly, the Secretary’s advance is also in the like by the appropriation Act passed by parliament for each year and is not dictated at will. That is why there is an appropriation bill which is passed by parliament to become an Act of parliament.

7.	Instrumentalities of government business arms companies of the government likewise including Kumul holdings in its various entities have laws setting them up and to bring them as their status in law. And for the debts of the State will not be in the right within the law to invoke their participation it is not their liability it is of the State and the State is not them individually. The motion as pleaded seeks to send tentacles to where regard is not accorded that wrongs of the State do not mean every entity of the State is responsible for the damages that arise. The Corporate citizen is part of the wider community in Papua New Guinea and respect must be accorded by instrumentalities, organizations, entities, and authorities of the State. There is no doubt that the plaintiff is owed money but what is the amount since initially when the order was made in 2002 up to now. That must be settled as the matter has been in court since that date and has fluctuated by interest and other developments since the matter has come to life. It is proper that the amount owing is ascertained before an order is made for the oral examination of the Finance Secretary who in material terms has honestly upfront made admission that there is no money in the court order vote to cater immediately for the amount owing. But the action to pay evidenced in the court order judgement is there. And no doubt will be paid. Firstly, the amount since must be settled in my view then a schedule drawn to meet that payment to satisfy and fulfil the court order made. So, the call to the Secretary for Finance to come forward now for oral examination would be premature as it must be settled as to the figure that is due and payable. 

8.	In making this I am mindful of Section 14 of the Claims by and Against Act but would be effected with a confirmed figure owed and due since the original date of the certification of Judgment counted with the times that matter has been in court and whether or not the figure has been altered in any way by payment made if any and the interest accruing up to the date now.

9.	I also take due account of Sealark Shipping Pty Ltd and Bismark Maritime Pty Ltd v Secretary for Treasury and Corporate Affairs [1998] PGNC 64; N1732 (19 July 1998) but the facts that stand out here against is that the figure is not clear and settled since. And therefore, it is necessary to expedite that the orders here are made but not to orally examine now but in course should it warrant after the directions now to be issued. I make no order as to time within which to comply except a general time when the matter will return for directions.

10.	In the totality the motion to orally examine the Secretary will not be immediate now because it must be confirmed the exact figure due and payable on the Judgment debt certified since the last appearance in court. The orders of the court are; 

(1)	The application of the Plaintiff is denied.
(2)	The Secretary for Finance will not be immediately orally examined now but liberty is granted for the same after these directions return.
(3)	The court directs the parties to confirm the exact figure to be paid since the certification of Judgment up to the present.
(4)	The State is directed to confirm since the date of certification of the Judgment as to whether or not there have been payments since.
(5)	If so, how much has been paid and on what figure what year time and date up to the present date.
(6)	If the amount owing and due is confirmed to bring forward a schedule of payments time date to see out payment of that confirmed figure due and owing since the certification of the Judgement.
(7)	Parties are granted liberty to file further affidavits and material to settle and discharge the orders made.
(8)	The matter is in this respect adjourned to Monday 14th December 2020 at 9.30am for the further directions and or orders to expedite the matter. 
(9)	Parties are granted liberty to seek variation of these orders by notice within a week’s notice.
(10)	Costs follow the event forthwith.
Orders Accordingly.
__________________________________________________________________
O’Briens: Lawyer for the Plaintiff/Applicant		
Office of the Solicitor General: Lawyer for the Defendants