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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCM NO. 32 OF 2018
BETWEEN
ATLAS CORPORATION LIMITED
Appellant
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 Respondent
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent
Waigani: Salika C J, Logan & Thompson JJ
2019: 29th August
2020: 13th March
CONSTITUTIONAL AND ADMINISTRATIVE LAW–Appeal from a judgment of the National Court, declining to make declarations and issue writs of mandamus against the first respondent – where the Supreme Court gave orders for the appellant against the State in 2004 – where the Supreme Court did not give final reasons for its 2004 orders – where the Solicitor General questioned the first Certificate of Judgment – where a subsequent Certificate of Judgment was issued – where the appellant sought and obtained a writ of mandamus, requiring the Solicitor General to endorse the Certificate of Judgment – where the first respondent had an obligation to satisfy the endorsed judgment debt within a “reasonable time” pursuant to s 14(3) of the Claims by and Against the State Act 1996 – where the learned primary judge declined to issue a writ of mandamus or make declarations against the first respondent – whether the learned primary judge erred in finding that no judgment had been made in 2004 – whether the learned primary judge erred by conflating a judgment of the Supreme Court with the reasons for judgment of the Supreme Court – whether the learned primary judge erred in going behind the 2004 judgment.
LIMITATION OF ACTIONS – Where learned primary judge found that the appellant had unduly delayed in bringing its action for a mandamus – section 16(5) of the Frauds and Limitations Act 1988 – where National Court proceedings were first brought in 1991 – where Supreme Court entered judgment in the appellant’s favour in 2004 – where relief was sought in relation to a breach of a statutory obligation by the first respondent perpetrated in 2016 or 2017 – where National Court proceedings seeking relief against the first respondent for his breach were brought in April 2017 – meaning of “action... upon any judgment” – whether s 16(5) refers to enforcement proceedings – whether National Court application was brought out of time.
ADMINISTRATIVE LAW – Appropriateness of remedies for a failure to satisfy a judgment debt under s 14(3) of the Claims by and Against the State Act 1996 – where s 14(3) requires payment out of funds legally available – where there is no evidence of whether funds are legally available – whether it would be premature to issue a mandamus – whether an order for oral examination of the first respondent is appropriate.
The appellant entered into a contract with the State in 1985 for the sealing of a portion of the Magi Highway. The appellant subsequently brought proceedings against the State and default judgment was granted in its favour in the National Court in 2002. The appellant appealed against the National Court’s assessment of damages, seeking greater damages, and the Supreme Court made orders granting the appeal in 2004. The Solicitor General refused to endorse the first Certificate of Judgment made by the Registrar, and a subsequent Certificate of Judgment was made by the Registrar in 2012. The appellant sought a writ of mandamus and declarations against the Solicitor General in 2016, and these were made by the National Court in 2016. The Solicitor General duly endorsed the 2012 Certificate of Judgment on 27 July 2016.
After endorsement by the Solicitor General, the first respondent is obliged to satisfy the judgment debt within a “reasonable time” out of “monies legally available” pursuant to s 14(3) of the Claims by and Against the State Act 1996. In April 2017, the appellant sought declarations and a writ of mandamus against the first respondent, requiring that he satisfy the judgment debt. In late November 2018, the National Court refused to make the declarations or to issue a writ of mandamus. On appeal from that judgment, the appellant contended that learned primary judge erred in going behind the 2004 Supreme Court judgment which was certified in the 2012 Certificate of Judgment and in finding that no judgment had been made. The respondents, meanwhile, contended that the application for a mandamus was brought out of time as an “application... upon any judgment”.
Held:
(1) The orders made by the Supreme Court in 2004 constituted its judgment, which was confirmed by the Supreme Court in 2011. Given the principle of finality, and the National Court’s position on the hierarchy of the National Judicial System, the learned National Court judge erred in seeking to impeach the outcomes in the Supreme Court.
(2) The appellant’s application was not time-barred as “application... upon any judgment” in s 16(5) of the Frauds and Limitations Act 1988 excludes applications in the context of enforcement proceedings, and instead refers to fresh actions brought in respect of a judgment.
(3) In an application for a mandamus to issue against a department head for payments under the Claims by and Against the State Act, a mandamus ought not be issued until it has been ascertained, by oral examination, that there are monies, legally available to the State, for the satisfaction of the judgment.
Cases Cited:
Papua New Guinea Cases
Atlas Corporation Ltd (in voluntary liquidation) v The State [2011] PGSC 42; SC1158
Australia & New Zealand Banking Group (PNG) Ltd v Ian Thomas Short [1986] PNGLR 57
National Airline Commission trading as Air Niugini v Lysenko [1990] PNGLR 226
Pacific Helicopters Ltd v Kambanei [2007] PGNC 72; N3242
Pansat Communications Pty Limited v Morea Vele & the State [1999] SC 604
Sealark Shipping Limited and Bismark Maritime Pty Limited v Secretary of Treasury & the State [1998] PNGLR 333
Overseas Cases
Bennett v Bank of Scotland [2004] EWCA Civ 988
Berliner Industriebank Aktiengesellschaft v Jost [1971] 1 QB 278
D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2006) 223 CLR 1
Gairy v Attorney General of Grenada [2001] UKPC 30; [2002] AC 167
In re Overseas Aviation Engineering (GB) Ltd [1963] Ch 24
Kenny v South Australia (1987) 46 SASR 268
Lowsley v Forbes [1998] UKHL 34; [1999] 1 AC 329
Melbourne Steamship Co Ltd v Moorehead [1912] HCA 69; (1912) 15 CLR 333
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Ridgeway Motors (Isleworth) Ltd v ALTS Ltd [2005] EWCA Civ 92; [2005] 1 WLR 2871
WT Lamb & Sons v Rider [1948] 2 KB 331
Yates Property Corporation Pty Ltd v Boland [1998] FCA 1605; (1998) 89 FCR 78
Yong Jun Qin v Minister for Immigration & Multicultural Affairs (1997) 75 FCR 155
Legislation Cited:
Papua New Guinea Legislations
Constitution ss 11, 12, 155, 209, 211
Claims by and Against the State Act 1996 ss 13, 14
Frauds and Limitations Act 1988 ss 7, 16
Statutes of Frauds and of Limitations Act
National Court Rules O13 r 13
Overseas Legislations
Common Law Procedure Act 1852(UK) ss 128, 129
Crown Proceedings Act 1947 (UK)
Limitation Act 1939 (UK)
Limitation Act 1980 (UK) s 24
Statute of Westminster II (13 Edw 1, c 24)
Supreme Court of Judicature (1873) Amendment Act 1875(UK)
Counsel
Mr Goodwin, for the Appellant
Ms. B Kulumbu, for the Respondents
13th March, 2020
1. SALIKA CJ and THOMPSON J: This is a matter concerning a 1991 dispute which was initially over a difference of approximately K400,000.00, leading to judgment for the Appellant in the principal amount of K1.69m in October 2004. This amount has escalated by the accrual of interest to over K77m in October 2017, and potentially over K90m by the hearing of this Appeal.
2. The basis of the Appellant’s claim for interest as calculated by the Registrar of the National Court, whereby the amount due has multiplied exponentially with successive Certificates of Judgment, does not appear from the evidence in this Appeal, but the correctness of those calculations is not an issue which has been raised before us.
3. The material before us shows that the State has consistently failed over the years to avail itself of remedies which may have been available to it, including under the Judicial Proceedings (Interest on Debts and Damages) Act, and the learned primary judge was justifiably concerned about those matters.
4. However, the only issue now before this Court concerns the Appellant’s application for enforcement of a Certificate of Judgment by mandamus. There was no application for an oral examination.
5. We have had the privilege of reading the decision written by our brother Logan J, and we respectfully agree with his findings, in relation to the Appeal.
6. In relation to the relief sought by the Appellant, as it would be premature to grant mandamus for the reasons set out in Logan J’s judgment, the application for mandamus is refused.
7. LOGAN J: Unlike the United Kingdom but as with other independent nations throughout the Commonwealth, Papua New Guinea has an entrenched constitution. The Constitution and, subject to the Constitution (s 12(1)(a)), the Organic Laws, are the Supreme Law of Papua New Guinea: s 11 of the Constitution. Section 11(2) of the Constitution provides that:
(2) The provisions of this Constitution and of the Organic Laws are self-executing to the fullest possible extent that their respective natures and subject-matters permit.
8. One of the provisions of the Constitution is s 155(6), which provides:
(6) Subject to any right of appeal or power of review of a decision, it is the duty of all persons (including the Law Officers of Papua New Guinea and other public officers in their respective official capacities), and of all bodies and institutions, to comply with and, so far as is within their respective lawful powers, to put into effect all decisions of the National Judicial System.
9. Section 155(6) of the Constitution makes explicit an obligation which, in a country governed by the rule of law, one might regard as implicit and axiomatic even with an unwritten constitution or, if written, where there was no such express prescription but a distribution of sovereign national power as between the legislative, executive and judicial branches of government.
10. Elsewhere in the Constitution, within Part VIII, explicit provision is made for the raising and expenditure of public funds by the National Government to be under the control of Parliament and to be regulated by an Act of Parliament: s 209(1). Also within Part VIII of the Constitution and insofar as presently material, s 211(2) provides:
(2) No money of or under the control of the National Government for public expenditure... shall be expended except as provided by this Constitution or under an Act of Parliament.
11. These constitutional imperatives either of obligation or, as the case may be, prohibition in relation to compliance with judgments made by courts within the National Judicial System and the expenditure of public funds only in accordance with parliamentary appropriation are at large in the present controversy, which concerns the failure by the State to satisfy in full a sealed and entered judgment of this Court for the payment of money by it to the appellant, Atlas Corporation Limited (Atlas).
12. In 1985, Atlas entered into a contract with the State for the sealing of a portion of the Magi Highway. In 1991, after an unsuccessful endeavour to resolve a dispute by arbitration, Atlas commenced proceedings (WS No 895 of 1991) in the National Court against the State, claiming damages for breach of that contract. It later obtained judgment by default in its favour with damages to be assessed. In 2002, those damages were assessed by the National Court with judgment being granted accordingly.
13. Atlas appealed to this Court against that judgment, seeking greater damages. In 2004, the Supreme Court allowed the appeal. By an order dated 19 October 2004, duly sealed and entered, the Supreme Court ordered:
14. The order as entered faithfully and accurately reproduced the orders pronounced orally on 19 October 2004 in a “Summary of Decision” but also recorded in a document so entitled, published by the Supreme Court that day. In part, that summary stated:
[Then follows the recitation of the orders which came to be entered.]
15. As it transpired, the lamentable later coincidence of the attainment of retiring age and a death in office respectively of two of the three judges who had constituted the Supreme Court for the purposes of the hearing and determination of the appeal prevented the subsequent publication by the Supreme Court of the contemplated further reasons for judgmental aborting upon the basis for the assessment on appeal of damages.
16. In hindsight and with respect, some of the language employed in the “Summary of Decision” may be regarded as unfortunate. Read in isolation, the words, “no decision had been reached for varied reasons” have been thought administratively within the Solicitor General’s chambers and even by the learned primary judge in his reasons for judgment to indicate that the sealed and entered order of 19 October 2004 of this Court was but, to adopt the language of the primary judge, a “purported order” and thus of no force and effect, because it was sealed and entered prematurely.
17. It is certainly permissible, even when, as here, the order of 19 October 2004 is not ambiguous in its face, to read an order in conjunction with related reasons for judgment published by a court, in this case the “Summary of Decision” so as to clarify or confirm the court’s intendment. The relevant principle was stated by Drummond J in Yates Property Corporation Pty Ltd v Boland [1998] FCA 1605; (1998) 89 FCR 78, at 78-79:
... [i]t is impermissible ... as well as being quite unrealistic, to attempt to read, that is, to understand, an order in isolation from the context of the reasons for it being made. The Full Court of the Supreme Court of Queensland, in Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230 held that, in interpreting an order of a court framed in unambiguous language, regard should still be had to the reasons given by the Court for making the order because they form part of a context in which the order was made. The case for referring to the reasons for an order where there is any suggestion that order may be expressed in unclear terms is a fortiori.
18. Reading the summary as a whole, as one must, it is tolerably clear that there is nothing tentative about the intended outcome of the appeal and, consequentially, nothing premature about the entry and sealing of the orders pronounced in that summary. In context, “complete” means “finalised”, the earlier reference to, “no decision had been reached” means ‘no decision had been reached on 11 March 2004 when the appeal was heard or until recently’ and “Our reasons for assessment are continuing to be in our draft” means ‘our detailed reasons for judgment are in the course of preparation’.
19. Though uncommon, it is by no means unknown in this jurisdiction and certainly not in other common law based jurisdictions for an appellate court, where it considers the interests of justice so require, to pronounce orders disposing of an appeal, sometimes with and sometimes without offering a brief summary, prior to the publication of detailed reasons for judgment. That is what occurred on 19 October 2004 in this matter.
20. The practice is more often encountered in the exercise of criminal appellate jurisdiction when, after hearing submissions, an appeal court reaches, perhaps even by majority, a settled conclusion that a conviction and sentence cannot stand, that no retrial is warranted and that, consequentially, the appellant must be released from present imprisonment. In such cases, the imperative of liberty of the subject can dictate that orders be pronounced forthwith with the appeal court stating that reasons for judgment will be published at a later date. But the practice is not confined to criminal appeals. 21. Inferentially from the summary of decision, the appeal was one in which the members of the bench had reached a clear view as to the outcome, were conscious of the time in which judgment on the appeal had been reserved and considered that the interests of justice required that the parties have the benefit of knowing the outcome as soon as possible, rather than delaying the publication of that outcome until the conflicting demands of other judicial duties permitted the preparation and publication of detailed reasons for judgment.
22. I can, with respect, readily understand why, in a commercial case long in its progress through the National Judicial System, it was that the learned judges constituting the Supreme Court for the purposes of that appeal adopted the course which they did. Later events show how the adoption of that practice can be fraught. Nonetheless, it is, with respect, a mistake to characterise, as did the learned primary judge and counsel for the respondent State in submissions, the sealed and entered order of this Court of 19 October 2004 as a “purported order”. It is no such thing. It is the record of an outcome of an exercise of judicial power by the highest court in the National Judicial System established under the Constitution.
23. I feel constrained in the circumstances to add the following in relation to the order of 19 October 2004. The 1985 contract was not in evidence before the learned primary judge. Nor did it have to be, given the stage proceedings had reached. However, self-evidently from the order of 19 October 2004, this Court considered that Atlas remained entitled to interest under the terms of that contract and so ordered. It did not at all necessarily follow that any contractual right to interest possessed by Atlas merged in a judgment such that it was always on any view lawfully impossible for Order 4 of the orders made that day to have been made. If the contract provided for the payment of interest so long as any part of the principal should remain due either under the contract or on a judgment, the right to continuing interest would not merge with the judgment: Ex parte Fewings (1883) 25 Ch D 388, at 355 per Fry LJ; Economic Life Assurance Society v Usborne [1901] UKLawRpAC 44; [1902] AC 147, at 149-150 per Earl Halsbury LC. This principle remains good law in other common law jurisdictions, as Parr v Tiuta International Ltd [2016] EWHC 2 (QB),at [19]-[20] per Dingemans J (as his Lordship then was) and Budget Loans Ltd v Commerce Commission [2017] NZHC 695, at [118]-[123] per Edwards J, attest. It would, however, be subversive of the finality principle, discussed below, to explore this subject any further.
24. As a sequel to the order of 19 October 2004, a Deputy Registrar of the Supreme Court signed and sealed an order on 17 January 2005 wherein the amount owing under the order of 19 October 2004, including interest as calculated by that registrar, was stated (17 January 2005 judgment). On 18 January 2005, the Supreme Court, by that registrar, issued a Certificate of Judgment (2005 certificate) certifying the amount then owing by the State in accordance with the order entered on 17 January 2005. The 2005 certificate was served on the Solicitor General, as contemplated by s14(2) of the Claims by and Against the State Act. Neither the 2005 certificate nor for that matter the contract were in evidence before us. But, for reasons which follow, neither did they need to be.
25. The Solicitor General refused to endorse the 2005 certificate. As a consequence, Atlas filed in the Supreme Court on 21 June 2005 an application for orders that neither the 17 January 2005 judgment nor the 2005 certificate contained any “mistake, accidental slip or omission and or correctly expresses the intention of the Court” [sic], together with an order requiring that it be “certified by the Solicitor General within 7 days” and costs. That application was heard by the Supreme Court on 31 August 2005. For that purpose, the Court was constituted by the same judges who had constituted the Court for the purposes of the hearing of Atlas’ earlier appeal, which had resulted in the making of the order of 19 October 2004 and, as a sequel, the 17 January 2005 judgment. The Court heard submissions from counsel for Atlas and, by counsel from the Solicitor General’s chambers, the State that day. Having so done, the Court then reserved judgment. Judgment was not delivered on that application prior to the retirement and death in office mentioned.
26. Eventually, on 28 April 2011, the application made by Atlas came on for hearing again before the Supreme Court as reconstituted for that purpose. As it happened, the remaining member in judicial office of the earlier Supreme Court bench was a member of the Court as reconstituted. That day, without prior notice and without the filing of related written submissions, the State, by its counsel from the Solicitor General’s chambers, made an oral application, the nature of which is apparent from the reasons for judgment which the Court published on 25 May 2011: Atlas Corporation Ltd (in voluntary liquidation) v The State [2011] PGSC 42; SC1158 (2011 judgment). For that reason and because of submissions which were made to us by on behalf of the State in this appeal, it is desirable that we set out the following, albeit somewhat lengthy, extract from those reasons for judgment:
Atlas's application
4, Atlas's application is reliant upon s. 8 (1) (e) and s. 16 Supreme Court Act. As to s. 8 (1) (e), it provides for this court to exercise any of the powers that may be exercised by the National Court on appeals or applications. Atlas submits that this court can review and alter a judgment before it is formally entered as a consequence of Order 12 Rule 16 National Court Rules. This rule provides that a minute of judgment or order can be reviewed in certain circumstances and directions are able to be given to vary the form and content of the minute.
State's application
27. On 25 May 2011, the Supreme Court ordered:
a) the relief sought in the application of the appellant [Atlas] filed 21st June 2005 is refused,
b) the oral application of the respondent [the State] made on 28th April 2011 is refused,
c) each party is to pay its own costs.
(2) Where a judgment is given against the State, the registrar, clerk or other proper officer of the court by which the judgment is given shall issue a certificate in Form 1 to the party in whose favour the judgment is given.
(a) personal service; or\
(b) leaving the document at the office of the Solicitor-General with the person apparently occupying the position of personal secretary to the Solicitor-General between the hours of 7.45 a.m. and 12 noon p.m. or 1 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 1953.
(2) The Solicitor-General shall, within 60 days from the date of service upon him of a certificate under Section 13(2), endorse the certificate in Form 1.
(3) Upon receipt of the certificate of a judgment against the State bearing the Solicitor-General’s endorsement that judgment may be satisfied, the Departmental Head responsible for finance matters shall, within a reasonable time, satisfy the judgment out of moneys legally available.
(4) Any payment in satisfaction of judgment may, in the absolute discretion of the Departmental Head responsible for finance matters, be made by instalments, provided the judgment is thereby satisfied within a reasonable time.
(5) No action–
(a) for or in the nature of mandamus; or
(b) for contempt of court,
or otherwise lies against the Solicitor-General or the Departmental Head responsible for finance matters in respect of the satisfaction of a judgment under this Act, other than for failure to observe the requirements of Subsection (2), (3) or (4), as the case may be, or unless other exceptional circumstances can be shown to the satisfaction of the court.
36. The satisfaction of a judgment against the State under s 14 is qualified by two matters. The first is that it may satisfy judgments "from moneys legally available". Whether or not there are moneys legally available is a separate question and it has not arisen at this stage of the proceedings. That is a matter which may arise at the substantive trial and can be determined at that time. The second matter is that the State may choose to satisfy the judgment by instalments. It is empowered to do this under s 14 (4) of the Act. Again, this is a matter which has not arisen at this stage and it is not necessary to deal with the issue fully.
37. Were the legislated position otherwise and given that the obligation to give effect to the judgment is a constitutional one (s 155(6)), Atlas may well have had the ability to seek a mandamus from this Court in any event to vindicate that constitutional obligation on the State and its officers via the payment of monies appropriated by Parliament for that purpose: Gairy v Attorney General of Grenada [2001] UKPC 30; [2002] AC 167.
38. As it happened, it was the learned primary judge who heard and determined the application by Atlas for a mandamus to issue against the Solicitor General (OS (JR) 389 of 2015). On 8 June 2016 (order entered, 22 June 2016) his Honour granted the application and made the following orders:
2.1 Under Section 14(2) of the Claims by and Against the State Act; and
2.2 Under the Public Finance (Management) Act to safeguard public monies and avoid waste, by permitting statutory interest, at the rate of set out in the Certificate of Judgment, to continue to accrue for an unreasonable period.
39. In his later judgment, the judgment which is the subject of the present appeal, the learned primary judge conceived of his earlier judgment as interlocutory. With respect, it was no such thing. In form and substance, it was a final judgment on the application which Atlas had made for a mandamus. There was no appeal to this Court against that judgment. Instead, on 27 July 2016, the then Solicitor General endorsed her certification on the 2012 certificate.
40. As it transpired, notwithstanding the Solicitor General’s certification, the 2004 judgment, together with the interest specified in the 2012 certificate, was not satisfied in full by the State thereafter. The State has only ever made part payment in respect of the outstanding amount. Following informal attempts via its lawyers to secure satisfaction in full, Atlas commenced, in April 2017, further proceedings for a mandamus, on this occasion naming as respondents the departmental head responsible for finance matters in respect of payment of judgments against the State (the first respondent) and the State.
40. It is impossible to over-emphasise the importance of the principle of finality in relation to the exercise of judicial power. On that subject and the need and importance for finality, we are attracted to the following statement made by Gleeson CJ, Gummow, Hayne and Heydon JJ in the High Court of Australia in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2006) 223 CLR 1 at [34]- [36]:
[Footnote references omitted.]
41. The other basis upon which his Honour refused a mandamus was, as a matter of discretion, because of delay by Atlas. But, with respect, the only conclusion reasonably open on the evidence before his Honour was that there had been no delay by Atlas warranting a refusal of a mandamus on this basis. It had secured a mandamus from his Honour in relation to the anterior step of certification by the Solicitor General. Notwithstanding that forensic success, with all of its implications for the State in terms of a liability to pay, the State had failed to satisfy in full the judgment amount as certified.
42. The respondents submitted that, judgment in favour of Atlas having been given in 2002, the effect of s 16(5) of the Frauds and Limitations Act 1988 was that the 12-year time limit for actions upon a judgment had expired in 2014.
43. This submission is misconceived for a number of reasons. Firstly, the relevant judgment is not that of the National Court given in 2002 but rather that of this Court in 2004 on the subsequent appeal, as given effect as to the calculation of interest in accordance with that judgment by the 2005 judgment. Secondly and more fundamentally, the application which Atlas made for a mandamus to issue in respect of the first respondent was not, in any event, an action upon a judgment in terms of s 16(5) of that Act. The subject being one of some importance in relation to the enforcement of judgments in Papua New Guinea, I shall explain in detail our reasons for that conclusion.
An action shall not be brought upon any judgment after the expiration of 12 years commencing on the date when the judgment became enforceable.
In my view the word ‘enforceable’ in section 2(4) of the Limitation Act 1939... means ‘enforeaceble by action on the judgment’ and not ‘enforceable by execution on the judgment’ ... This distinction between the right to sue on a judgment (which is a substantive right) and the right to issue execution under it (which is a procedural right or remedy) has always been recognised in the law of limitation...
“Execution” means, quite simply, the process for enforcing or giving effect to the judgment of the court: and it is “completed” when the judgment creditor gets the money or other thing awarded to him by the judgment... And the same meaning is to be found in Blackman v. Fysh, when Kekewich J. said that execution means the “process of law for the enforcement of a judgment creditor’s right and in order to give effect to that right.” In cases when execution was had by means of a common law writ, such as fieri facias or elegit, it was legal execution: when it was had by means of an equitable remedy, such as the appointment of a receiver, then it was equitable execution. But in either case it was “execution” because it was the process for enforcing or giving effect to the judgment of the Court.
63. The only reservation which I have as to the outcome of that case is, with respect, that there seems to me to be an inconsistency between the granting of a mandamus requiring the relevant official to satisfy a judgment out of monies lawfully available and establishing on the evidence whether such monies are lawfully available. Further, it needs to be remembered that, pursuant to s 14(4) of the Claims by and Against the State Act, payment by the State, may “in the absolute discretion of the Departmental Head responsible for finance matters, be made by instalments, provided the judgment is thereby satisfied within a reasonable time”.
... a mere statement that there are no moneys legally available will not be sufficient. In accordance with the principles stated in the Constitution Section 51 it would require a proper analysis of the budgetary appropriations in the area and why the moneys so appropriated have not been properly applied or if so how they have been applied and why some people entitled have missed out and to explain in what order the monies have been applied in whatever ways they have been expended.
67. Authority for the making of an order for oral examination is to be found, as Davani J noted in Pacific Helicopters, at [33], in Order 13 rule 13 of the National Court Rules.
What is of additional concern to the Court is that whilst ever the Secretary for Treasury delays complying with the orders for judgment interest is continuing to run on the amount outstanding and these again are more monies that will be payable out of monies required for the benefit of the people of Papua New Guinea. And also this application will itself incur more costs to be paid by the State. Everyone in Papua New Guinea must be concerned about this, not just judgment creditors, as it costs the nation in the end but justice must be done and the law complied with.
Orders:
______________________________________________________________
O’Briens Lawyers: Lawyers for the Appellant
Solicitor General’s Office: Lawyers for the Respondent
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