Amban v Wandil [2023] PGNC 379; N10513 (10 October 2023)

N10513

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 511 OF 2018

JOSEPH NOP AMBAN
Plaintiff

V

MICHAEL WANDIL as Provincial Administrator for the Jiwaka Province
First Defendant

AND
JIWAKA PROVINCIAL ADMINISTRATION
Second Defendant

AND
JIWAKA PROVINCIAL GOVERNMENT
Third Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2023: 06^th & 10^th October

PRACTICE & PROCEDURE – Judicial Review & appeals – notice of Motion – Order 22 Rule 62 NCR – Entry of Judgment of Certified Taxed Cost – Service on State Sealed Copy of Certificate of Taxation – Request to State to Settle – No Evidence State Served – Section 12, 13, 14 Claims By & Against the State Act – No Certificate of Judgement Issued – State Opportunity to Settle – Motion Denied – Cost follow event.

Cases Cited:
Beon Correctional Institution v Mal [2022] PGSC 1; SC2186
Independent State of Papua New Guinea v Nimbituo [2020] PGSC 64; SC1974

Counsel:
B. Boma, for Plaintiff
R. L. Yomilewau, for Defendants

RULING

10^th October 2023

1. MIVIRI, J: This is the Ruling on the Notice of motion of the Plaintiff filed 16^th August 2023 seeking:
   
   • (i) Pursuant to Order 22 Rule 62 of the National Court Rules judgement for taxed costs in the sum of K 97, 852. 04 be entered in favour of the plaintiff.
     
   • (ii) Interests at 2% on the Judgement debt for taxed costs of K 97, 852.04 shall run against the Judgement debt K 97, 852.04 starting from the date of the issue of the Certificate of taxation until the Judgement debt is paid in full pursuant to Judicial Proceedings) Interests on Debts and Damages) Act
     
   • (iii) Cost of the application on an indemnity basis in the sum of K 2000 shall be awarded in favour of the Plaintiff.
     
   • (iv) Any other orders deemed by the Court.
     
2. The motion is supported by the affidavit of one Job Nungu sworn of the 16^th August 2023 filed on that day. He is a lawyer in the employment of Boma Lawyers who acts for the Plaintiff. He recounts obtaining the Judgment in favour of the plaintiff and the orders, annexure “A” that were made which he details out in that affidavit. Which awards costs of the proceedings on an indemnity basis to follow the event forthwith. That is in favour of his client the plaintiff. That order is dated the 2^nd December 2022. This application is of the 06^th October 2023 filed of the 16th August 2023.
   
3. Following a Bill of Costs was filled of the 04^th April 2023 and served the State. Which was taxed by the taxing master one Nickson James on the 04^th July 2023 and award made to the Plaintiff in the sum of K 97, 854.04 certificate issued annexure “B”. On the 14^th July 2023 I personally served on the State a sealed copy of the Certificate of taxation and requested the State to settle the taxed costs. To Which no review was filed by the State pursuant to Order 22 Rule 60 of the Rules. And the lawyer goes on to swear, “Further the State failed or did not request the Secretary for the Department of Finance to settle the taxed Costs of K 97, 854.04, I say this because the Solicitor General did not sent copies of requests for settlement of the taxed costs to the Secretary for Defence. The plaintiffs taxed costs of K 97, 854. 04 is yet to be settled by the State.”
   
4. The State has not disputed the application but states from the bar table that the matter is being processed. This is not material that will be held to determine this matter. There are no submissions by the State despite the adjournment granted to prepare. There is not even a written submission to the Court on the matter particularly with reference to the Claims by and Against the State Act. The applicant also has not drawn what that Act says particularly with relevance to the fact that this is costs that were awarded in his clients favour that the State will pay out from the public purse. Further there is no annexure depicting that indeed the State was served the sealed copy of the Certificate of taxation and requested to settle the taxed costs. It is deposed that this was done on the 14^th July 2023 by the lawyer deponent personally, but he does not place the letter instructing with the sealed copy of that order evidencing that the State indeed was drawn that fact. Here also there is no evidence of the forewarning that Judgement would be sought in accordance with to secure the payment. That is not before me. So, it would be seen as self-serving not verified as with the other annexures set out above.
   
5. Service is fundamental to any party because preparation will come from that fact to properly consider both sides and to determine the matter. And this is relevant and fundamental because of the dictate of section 5 of the Claims by and Against the State Act, which is in the following terms:

5. NOTICE OF CLAIMS AGAINST THE STATE.

(1) No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this section and Section 5A by the claimant to -4

(a) the Departmental Head of the Department responsible for justice

Matters; or

(b) the Solicitor-General.

(2) A notice under this section shall be given –

(a) within a period of six months after the occurrence out of which the claim arose; or

(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or

(c) within such further period as –

(i) the Principal Legal Adviser; or

(ii) the court before which the action is instituted, on sufficient cause being shown, allows.

(3) A notice under Subsection (1) shall be given by –

(a) personal service on an officer referred to in Subsection (1); or

(b) leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., or such other hours as may from time to time be declared by or under the Public Services Management Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).

6. There is no evidence to verify that the State has indeed being served under this section of the intent of the applicant to petition for judgement for the certified costs awarded and ordered in its favour. This section is specific that “no action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this section and Section 5A by the claimant”. This is specific mandatory language imposed upon the applicant to give that notice of the intent to move for Judgement for the certified costs if not paid. And that the notice is in fulfillment of section 5 and 5A on the Departmental head responsible for Justice matters, the Secretary for the Department of Justice and Attorney General, or the Solicitor General.
   
7. It is fundamental and underlying which must be complied with. Here it has not been complied with, there is no evidence to that effect which is fatal to the application because it is the law expounded as fundamental requirement to be satisfied by the claimant not without, so as to proceed to making the claim as here. He would be in the right to move his claim with that requirement in law discharged not without: Independent State of Papua New Guinea v Nimbituo [ 2020] PGSC 64; SC1974 (30 June 2020). Which was affirmed in the case of claiming for breaches of human rights Commander of Beon Correctional Institution v Mal [ 2022] PGSC 1; SC2186 (6 January 2022). For all intent and purposes this application does not subscribe to that in law by the evidence that has been relied on here. The aggregate is that it is refused with Costs to follow the event against on an indemnity basis in favour of the respondents to the motion.
   
8. Costs is discretionary upon the Court. This is a case where the application has been made prematurely because there is no basis in the facts relied on that the State has indeed been served first of all with the Notice under section 5 of the Act set out above. Effectively with intent therein that should the State failed, proceedings will be instituted with intent to securing Judgment and interest on the costs outstanding awarded. There is no evidence that this matter has been approached the State on that level. Counsel applying has pushed with vigour without heed of section 5 set out above. It has drawn the State into Court bearing in mind that Judicial time and resources has been accorded this matter on a clear demarcation in law that is soul to making a claim against the State crystal clear to all invoking. Further if indeed administrative action is underway to pay off this debt that should have been given an opportunity with this action. There is no evidence that this measure has been allowed its course to attain. It means the applicant must pay for the time taken to hear this motion forthwith.
   
9. The formal orders of the Court are:
   
   • (1) The motion is denied and refused.
     
   • (2) Costs are on indemnity basis to follow the event forthwith.

Orders Accordingly.

__________________________________________________________________

Boma Lawyers: Lawyers for the Plaintiff/Applicant

Office of the Solicitor General: Lawyers for the State