Kega v Mondo [2023] PGNC 380; N10514 (10 October 2023)

N10514

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 568 OF 2018

GORDON KEGA
First Plaintiff

And
GRACE KEGA
Second Plaintiff

V

SIMON JONES MONDO
First Defendant

And
JOHN DEGE AS MANAGING DIRECTOR FOR NATIONAL HOUSING CORPORATION
Second Defendant

And
NATIONAL HOUSING CORPORATION
Third Defendant

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2021: 03^rd March
2023: 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 Judgment Issued – State Opportunity to Settle – Motion Denied – cost follow event.

Cases Cited:
Commander of 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 Plaintiffs
R. L. Yomilewau, for Defendants

RULING

10^th October 2023.

1. MIVIRI, J: This is the ruling on the Plaintiff’s notice of motion of the 24^th of August 2023 where he seeks:
   
   • (i) Pursuant to Order 22 Rule 62 of the National Court Rules, judgment for taxed costs in the sum of K 67, 000.00 be entered in favour of the Plaintiffs.
     
   • (ii) Interests at 2% on the Judgement Debt for taxed costs K 67, 000.00 shall run against the Judgment debt K 67, 000.00 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 Chapter 52.
     
   • (iii) Costs of this application on an indemnity basis in the sum of K 2000.00 shall be awarded in favour of the Plaintiffs.
     
   • (iv) Any other orders the Court deems fit.
     
2. That order is in the following terms: “62. Judgement. (52/63), Where the amount of any costs has been certified under this Division the Court may, on motion by a party, direct the entry of such judgement for the costs as the nature of the case requires.
   
3. It is established fact that K 67,000.00 was certified as costs in favour of the applicant against the defendants. And which was served by the applicant on the 14^th July 2023 around 2.00pm in the sealed copy of the certificate of taxation filed of the 07^th July 2023 upon one Ms. Carmeline Tauwaole Executive Assistant of the Solicitor General on level 6 of the WNB Haus Waigani. Which is deposed to by the affidavit of Dorcas Boma filed of the 19^th September 2023. The Certificate of Taxation is dated the 07^th July 2023 in the sum of K 67, 000.00 taxed. And this subject Notice of Motion has been served Ms. Carmeline Tauwaole together with an affidavit by one Job Nungu lawyer with Boma Lawyers moving the subject motion.
   
4. This evidence does not establish that there is prior contact of the applicant seeking the State to make good that order of the Court. There are no letters or correspondence to the State asking them to discharge the that order for costs certified leading to this application. It is important because section 5 Notice of Claims Against the State states:

(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

(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 Service 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).”

5. There is no evidence that has been filed in support of the application to enter the costs order into a judgement that has been the case that notice has been given the State of this fact. The materials relied on do not discharge and suffice in this regard. In order words it is not just the application that has been made now but that this is the pinnacle of intent that has been expressed the State over to pay that money, to discharge the commitments by that order. There is notice to the State satisfying section 5 set out above. Here it seems that this is the first time that intent has been made to the State for the intent of the Applicant to convert the subject costs order into a Judgement. The subject costs order is of the 07^th July 2023. And this application was filed of the 24^th of August 2023. It is a month apart and no notice has been given in accordance with section 5 of the Act set out above satisfying so that this application has fulfilled to accord favour for the applicant. And consistent with 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. It will therefore be dismissed with costs.
   
6. The formal orders of the court are:
   
   • (1) The notice of motion to enter Judgement on the Taxed certified costs is refused.
     
   • (2) Costs will follow the event.

Orders Accordingly.

__________________________________________________________________

Boma Lawyers: Lawyers for the Plaintiffs

Office of the Solicitor General: Lawyers for the Defendant