Jolpuk v Kabilo [2023] PGNC 237; N10309 (15 May 2023)

N10309

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 176 OF 2004

BETWEEN:
ALOIS JOLPUK, SUSAN JOLPUK, FABIAN TOBI, PETER WRAKOWAFIE, JEFFERY LAWAS, SILO YEHIWANGIE AND OTHERS LISTED IN THE SCHEDULE “A”
Plaintiffs

AND:
LEO KABILO, JOE KASIENG, JAMES BAUGEN, PAUL SIMM, PETER KAVI, JACKSON WAVIEN, SIMON HOMBIGU, STENARD WOHUIENEN, OSCAR MANIHAO, JOHN MURRAY, NOAH TAKURA
First Defendants

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Tamade AJ
2023: 19^th April, 5^th May

NATIONAL COURT – slip rule – interest awarded on judgement – Court to revisit order on interest component – principles of slip rule application - Judicial Proceedings (Interest on Debts and Damages) Act 2015 – Section 4 – pre-judgment interest at 2 per cent from the date the cause of action arose to the date of judgment – orders varied

Cases Cited

The following cases are cited in the judgement:

Jolpuk v Kabilo [2022] PGNC 395; N9885

Trawen v Kama [2010] PGSC 15; SC1063

Kunai v Papua New Guinea Forest Authority [2018] PGNC 439; N7570

Finance Corporation v Kombra (2020) N8285

Kaseng v Debege [2004] PGNC 42; N2735

National Capital District Commission v Dademo [2013] PGSC 37; SC1260

Legislation:

Judicial Proceedings (Interest on Debts and Damages) Act 2015

Counsel:

Mr Cameron Ninawale, for the Plaintiffs
Ms Natasha Aiwara, for the Defendants

15^th May, 2023

1. TAMADE AJ: At the National Court sitting at Bomana, the Plaintiffs moved an application to revisit my decision on interest awarded on a judgment sum I granted in favour of the Plaintiffs. The decision on assessment of damages was granted on 12 September 2022 and reported in Jolpuk v Kabilo [2022] PGNC 395; N9885 (12 September 2022).

2. The final orders of the Court in the assessment of damages hearing is in the following terms:
   
   1. The total judgment sum awarded to the Plaintiffs are K516 500.00
      
   2. Exemplary damages is awarded against the First Defendants in the sum of K11 000 for each named First Defendant to pay a sum of K1 000 each to the Plaintiffs.
      
   100. Interest is awarded at 2 per cent.
        
   4. The Defendants shall meet the Plaintiffs costs of these proceedings to be taxed if not agreed.
      
3. The Plaintiff moves on their Notice of Motion filed on 30 March 2023 that the Court should revisit the order in terms of the interest component and clarify that aspect of the interest component pursuant to Order 8 Rule 59 of the National Court Rules and section 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015.
   
4. The Supreme Court in Trawen v Kama^[1] discussed the following principles of a slip rule application specifically to the Supreme Court but these principles are equally applicable to any court revisiting its’ own decision^[2]:
   

"(1) There is a substantial public interest in the finality of litigation.

(2) On the other hand, any injustice should be corrected.

(3) The Court must have proceeded on a misapprehension of fact or law.

(4) The misapprehension must not be of the applicant's making.

(5) The purpose is not to allow rehashing of arguments already raised.

(6) The purpose is not to allow new arguments that could have been put to the Court below." consistently applied

(7) The Court must, before setting aside its previous decision, be satisfied that it made a clear and manifest, not an arguable, error of law or fact on a critical issue.”

5. This Court is therefore at liberty to revisit its previous decision on interest and give clarity on the interest component of the judgment. This was the approach in Kaseng v Debege[3] when the Court had to correct the error of the issuance of two Certificates of Judgments. In this case, there is no error, there is however a need to clarify so that the parties are clear as what specific interest is awarded and from what period. I note that Ms Aiwara of the Defendants takes no issue with the Court revisiting the decision on interest and agrees that there is ambiguity on the interest component of the judgment and the Court should correct that.

6. Mr Ninawale has submitted that I follow the case of Finance Corporation v Kombra[4] as decided by Justice Anis in relation to the calculation of prejudgment interest and post judgment interest and that my decision should include and clarify these. Ms Aiwara has conceded to allocation of pre-judgment interest however the differing views is that Mr Ninawale submits that I follow Finance Corporation v Kombra that prejudgment should start from the date of the cause of action whilst Ms Aiwara submits that it should start from the date the Writ of Summons was filed.

7. The award of interest is discretionary on the Court. The Supreme Court stated in National Capital District Commission v Dademo[5] that the same Court giving the judgment can revisit and vary the judgment under the slip rule principle to include interest, the Supreme Court held that:

“The award of interest is discretionary having regard to all relevant considerations including the following:

(1) whether the judgment sum for damages is of a kind which should attract award of interest;
(2) the whole or a part of the period calculated from the time the cause of action arose and the date the judgment is given;
(3) whether interest should be awarded for the whole amount or a part thereof;
(4) gross or undue delay in the prompt disposition of the case attributed to either of the parties;
(5) gross or undue delay by the Court in a timely disposition of the case, in particular in delivering a deferred judgment within the three (3) to six (6) months timeline set out in the Judicial Policy on Delivery of Reserved Judgments issued by the office of the Chief Justice on 18 August 2008;
(6) the appropriate interest rate for the particular type of damage awarded; and
(7) The interest of justice, fairness and equity.

8. Section 4 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 is in the following term:

“4. PRE-JUDGMENT INTEREST ON DEBTS AND DAMAGES.

(1) Subject to Section 5, in proceedings in a court for the recovery of a debt or damages, the court may order a rate as it thinks proper to be applied to the sum for which judgment is given interest, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

(2) Where the proceedings referred to in Subsection (1), including proceedings arising out of a breach of express or implied contract or mercantile usage, are taken against the State, the rate of any interest under that subsection shall not exceed 2% yearly.

(3) The maximum rate of interest in Subsection (2) applies notwithstanding that the proceedings against the State arose out of a breach of express or implied contract or mercantile usage and the relevant interest rate in the contract or mercantile usage is higher than 2%.

(4) A judgment entered contrary to Subsections (2) and (3) is a nullity and is liable to be set aside and re-issued according to law by the same judge or judges on application -

(a) by the lawyer for the State; or

(b) by the registrar, clerk or other proper officer of the court by which the judgment is given; or

(c) by any party to the proceedings.”

9. By section 4(1) of the Judicial Proceedings (Interest on Debts and Damages) Act 2015, this Court has the discretion to take the approach in Finance Corporation v Kombra by granting pre-judgment interest from the date of the cause of action to date of judgment or part of the period between the date of the cause of action and the date of judgment. I will therefore uphold the submissions by Ms Aiwara and grant the pre-judgment interest at the rate of 2 percent from the date of the Writ of Summons to the date of judgment. The State is hounded by so many claims and at most times, in practice in my view, it pays attention to a claim when it is filed in Court as opposed to when a section 5 notice of a claim is given.
   
10. In regard to post-judgment, section 6 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 is in the following terms with the applicable parts underlined:
    

“6. POST-JUDGMENT INTEREST ON DEBTS AND DAMAGES.

(1) Subject to Subsections (2) and (3), where judgment is given or an order is made for the payment of money, interest shall, unless the court otherwise orders, be payable at the prescribed rate from the date when the judgment or order takes effect on such of the money as is, from time to time, unpaid.

(2) Where the judgment referred to in Subsection (1) is taken against the State, the rate of any interest under that subsection shall not exceed 2% yearly.

(3) Where, in proceedings on a common law claim, the court directs the entry of judgment for damages and the damages are paid within 30 days after the date that the direction is served, interest on the judgment debt shall not be payable under Subsection (1) unless the court otherwise orders.

(4) Where, in proceedings for damages on a common law claim, the court makes an order for the payment of costs and the costs are paid within 30 days after service of the direction or order that ascertains the amount of the costs by taxation or otherwise, interest on the costs shall not be payable under Subsection (1) unless the court otherwise orders.

(5) Notwithstanding anything in this section, where the judgment given or the order made is given or made against the State -

(a) no interest is payable on a judgment for damages until a certificate of judgment is served on the State; and

(b) to avoid any doubt, no interest is payable on taxed costs until a certificate of taxation is served on the State; and

(c) any payment under Subsections (3) and (4) shall be deemed to have been made on the date of the drawing of the cheque for payment; and

(d) where the sum awarded is increased on appeal, interest shall only be payable on the increase in accordance with this section from the date when the appellate judgment or order takes effect.

(6) A judgment entered or order given contrary to Subsections (5) is a nullity and is liable to be set aside and re-issued according to law by the same judge or judges on application -

(a) by the lawyer for the State; or

(b) by the registrar, clerk or other proper officer of the court by which the judgment is given; or

(c) by any party to the proceedings.”

11. The Court therefore Orders that:
    

1) The Court judgement of 12 September 2022 is varied under the slip rule principle in regard to interest as underlined as follows:

1. The total judgment sum awarded to the Plaintiffs are K516 500.00
   
2. Exemplary damages is awarded against the First Defendants in the sum of K11 000 for each named First Defendant to pay a sum of K1 000 each to the Plaintiffs.
   

100. Interest is awarded at 2 per cent as follows:
     
     2. Pre- judgment interest is awarded on the sum of K516 000.00 at the rate of 2 percent from the date the Writ of Summons which was filed on 27 February 2004 to date of judgement on 12 September 2022. The Plaintiffs are granted a total sum of K 181 318.00.
     3. Post judgment is awarded to the Plaintiff at the rate of 2 percent to be calculated commencing when the State is in receipt of a Certificate of Judgment pursuant to section 6(5)(a) of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 when the judgment remains unpaid.
        

4. The Defendants shall meet the Plaintiffs costs of these proceedings to be taxed if not agreed.
   

Orders accordingly.

________________________________________________________________

Rageau Manua & Kikira Lawyers: Lawyers for the Plaintiffs

Office of the Solicitor General: Lawyers for the Defendants

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[1] [2010] PGSC 15; SC1063 (16 July 2010)
[2] Kunai v Papua New Guinea Forest Authority [2018] PGNC 439; N7570 (4 September 2018) and other cases.
[3] [2004] PGNC 42; N2735 (26 November 2004)

^[4] (2020)(N8285)

^[5] [2013] PGSC 37; SC1260 (28 June 2013)