Atlas Corporation Ltd v Ngangan [2022] PGNC 185; N9611 (9 May 2022)

N9611

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: Dingake J
2022: 14^th February, 14^th March, 05^th May

EQUITY – application by plaintiffs seeking orders in the nature of mandamus to compel defendants to satisfy judgment debt – plaintiffs entitled to judgment debt and interest on the sum ordered – plaintiff’s application granted

Counsel:

Mr. Anthony Roden-Paru, for the Plaintiff
No representation for Defendants

9^th May, 2022

1. DINGAKE J: The Plaintiff is a beneficiary of a judgment delivered by the Supreme Court on the 19^th of October, 2004, in terms of which the Court entered judgment in its favour in the sum of K1,692,235.72.
   
2. Over twelve (12) years later, payment to satisfy the judgment has not been made to date and interest on the sum appears to have grown exponentially.
   
3. Aggrieved by failure of the Defendants to satisfy the debt, the Plaintiff commenced proceedings in the National Court, seeking, inter alia, Orders by way of Mandamus, requiring the Defendants to satisfy the judgment in Supreme Court proceedings entitled SCA No. 6 of 2003.
   
4. Judicial review proceedings were heard, and on the 29^th of November, 2018, the National Court refused the Plaintiff’s application for judicial review.
   
5. Aggrieved by the decision of the National Court, the Plaintiff successfully appealed against the said decision to the Supreme Court. However, the Plaintiff’s (Appellant) application for an Order in the nature of mandamus was refused, the Court intimating, in effect, that an application for an Order of mandamus must be preceded by an oral examination of the responsible departmental head.
   
6. It would appear that this application to order the aforesaid Oral Examination pursuant to Order 13, Rule 13 1(a), (b) and 2(a) of the National Court Rules, as per the Plaintiff’s Notice of Motion filed on the 10^th of September, 2021, is a sequel to that intimation or suggestion by the Supreme Court.
   
7. The Plaintiff contends that it would be appropriate that Oral Examination, contemplated by Order 13 Rule 13, be conducted before an application for mandamus is made.
   
8. The relevant Order relied by the Plaintiff for the relief it seeks, bears being quoted in full. Order 13 Rule 13 provides as follows:

“13. Order for Examination or Production (43/1)

1. The Court may, on motion by a person entitled to enforce a judgment or order, order a person bound by the judgment or order in Form 57 to –
   • (a) attend before the Registrar and be orally examined on the material questions; and
   • (b) produce any document or thing in the possession, custody or power of the person bound relating to the material questions.
2. For the purposes of Sub-rule (1), the material questions are –
   • (a) as to so much of a judgment or order as requires the person bound to pay money –
     • (i) whether any and, if so, what debts are owing to the person bound;
     • (ii) whether the person bound has any and, if so, what other property or means of satisfying the judgment or order; and
   • (b) as to so much of the judgment or order as does not require the person bound to pay money, such questions concerning or in aid of the enforcement or satisfaction of the judgment or order as may be specified in the order for examination or production.”
9. It is plain from the above quoted rule that the required attendance must be before the Registrar.
   
10. I have considered the evidence in support of this application (Documents 32, 54 and Affidavit of Anthony Roden-Paru sworn on 3^rd September, 2021 and filed on the 6^th of September, 2021).
    
11. The aforesaid evidence stands uncontradicted as the Defendants did not oppose this application.
    
12. In all the circumstances of this case, I am satisfied that the Plaintiff is entitled to the Orders it seeks that are consistent with Order 13, Rule 13.
    
13. At the hearing of this matter, I expressed the view that it would be wise for the parties to discuss how best to satisfy the judgment of the Court, and only care to this Court if there is a compelling need to do so.
    
14. In the result, this Court makes the Plaintiff Orders:
    1. Pursuant to Order 13, Rule 13(1)(1), (b) and 2(a) of the National Court Rules and term 2 of the Court’s Order dated 5^th November, 2020, the First Defendant attend before the Registrar of the National Court at Waigani, at a date to be fixed by the Registrar, and 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:
       1. 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 27^th July, 2016, being the date upon which the Solicitor General signed the Certificate of Judgment dated 13^th March, 2012, in SCA No. 6 of 2003, until the date of examination.
       2. All schedules to the Budget Act, and budget papers for the 2020 and 2021 fiscal year showing amounts allocated to:
          1. the Solicitor General’s Office to pay judgments;
          2. pay judgments generally; and
          3. the Secretary for Finance’s Advances.
       100. Accounts showing the disbursement of amounts appropriated in respect to the items set out at paragraph 1 (b) (i) to (iii) above.
       4. All draft schedules proposed by the Department of Finance for inclusion in the 2022 Budget Acts to be recommended to the Minister for presentation to Parliament.
       5. The statements and bank reconciliations of the Second Defendant’s accounts kept at the Bank of Papua New Guinea as at the last date of each month for the 2021 fiscal year to date; and
       6. Audited Financial Statements of corporations held or owned by the Second Defendant, particularly in:
          1. Kumul Minerals Holdings Limited and subsidiaries;
          2. Kumul Petroleum Holdings Limited and subsidiaries;
          3. Kumul Consolidated Holdings Limited and subsidiaries.
             
2. The Defendants pay the Plaintiff’s costs of and incidental to this application.

_______________________________________________________________
O’Briens: Lawyers for the Plaintiff
No Appearance for the Defendants