Atlas Corporation Ltd v Ngangan [2020] PGSC 86; SC1995 (13 March 2020)

SC1995

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: 29^th August
2020: 13^th 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

13^th 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:

1. The appeal is upheld and the decision of the National Court in proceedings WS No 895 of 1991 is quashed.
2. Judgment for the appellant in the sum of K1,692,235.72.
3. Costs of the arbitration in the sum of K749,271.89 be paid by the respondent to the appellant.
4. Interest on the judgment sum and the arbitration costs be paid by the respondent pursuant to clause 60 of the terms and conditions of the contract between the appellant and the respondent.
   

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:

• This appeal was heard on 31 March 2004 but no decision had been reached for varied reasons including backlog of cases to catch up and continuous sittings of various Leadership tribunals. Nevertheless, we give the summary of our decision here.
• ...
• In the appeal, the sole issue was on the failure to assess and grant full damages on the claim before the Court and application of a wrong interest rate and granting it on the amount of damages. The State raised no other defence than that of failure by the Appellant to seek leave. On the later we hold that leave having been filed though not served, the issue could not be a complete bar to the appeal anymore.
• Our reasons for assessment are continuing to be in our draft. However the summary of result of our view and the finding are complete.
  

[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.

5. Without considering whether this court has the power to review and alter its judgment as submitted by Atlas, we note that Atlas does not seek to question the 2005 Orders or to have the 2005 Orders reviewed. Indeed, Atlas seeks to have the 2005 Orders confirmed. Even if this court does have the jurisdiction as submitted by Atlas, in respect of which we do not give any opinion, this does not assist Atlas as Atlas does not wish us to review and alter the 2005 Orders. Similarly, Atlas is not able to successfully rely upon Order 2 Rule 18 National Court Rules which provides for the National Court to review an act or decision of the Registrar, as Atlas is not seeking to have any act or decision of the Registrar concerning the 2005 Orders, reviewed.
   
6. As to Atlas's reliance upon s. 16 Supreme Court Act, the two references to "judgement" in our view refer to the judgment of the National Court being appealed, notwithstanding the definition of "judgment" in s. 1 (1) Supreme Court Act. This is so as s. 16 Supreme Court Act is concerned with the jurisdiction of this court on the hearing of an appeal. Atlas is unable to rely upon this section for the relief that it seeks.

• 
  
  7. Consequently the relief sought by Atlas should be refused.
     

State's application

8. The oral application by counsel for the State was for this court to invoke its inherent jurisdiction or to rely upon s. 155 (4) Constitution to reduce the amount that is owed by the State to Atlas. The grounds relied upon are that sufficient reasons were not given by this court for the 2005 Orders and that the award of interest in the 2005 Orders was unjust, unfair and not in the National Interest. As to the amount of interest owing, if this is a concern to the State as submitted, and in our view it should be, we note that s. 16 (6) Frauds and Limitations Act 1988 was not raised before us and so we do not consider it.
   
9. No notice of the State's application was given to Atlas and no written submissions were filed. The application should be rejected for these reasons alone. As to reliance upon s. 155 (4) Constitution, this court has said on numerous occasions that s. 155 (4) Constitution can only be relied upon to enforce a primary right. In this instance the State no longer has a primary right. All rights of both parties were exhausted when this court determined the appeal and delivered the 2005 Orders.

• 
  
  10. As to invoking this court's inherent jurisdiction, we have grave doubts that this court has such a jurisdiction to vary or alter its judgment delivered following a defended appeal on the grounds that its decision was unfair and unjust and not in the National Interest. We are not minded to consider the application further given the circumstances of its making. We note that as to the court not giving sufficient reasons, no application has ever been made by the State pursuant to the Slip Rule. The State's application is refused.
      

27. On 25 May 2011, the Supreme Court ordered:

a) the relief sought in the application of the appellant [Atlas] filed 21^st 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.

28. It must be emphasised that these orders left in place the 2005 judgment and the 2005 certificate.
    
29. The following year, on 13 March 2012, Atlas obtained from the Supreme Court’s Registrar a further Certificate of Judgment (2012 certificate) under the Claims by and Against the State Act, certifying as to the amount owing as by the State at 31 December 2011 under the Court’s judgment of 19 October 2004. Once again, the Solicitor General refused to add his certification under that Act to that Certificate of Judgment. Atlas then instituted proceedings in the National Court against the Solicitor General and the State, seeking an order in the nature of a mandamus requiring the Solicitor General to add his certification.
    
30. Reference now needs to be made to material provisions of the Claims by and Against the State Act. In relation to the satisfaction of money judgments against the State, that Act follows a model the origins of which may be traced to the Crown Proceedings Act 1947 (UK) and which has many counterparts throughout the Commonwealth. Under the local version of this model, execution cannot go against the property of the State; nor can the State’s revenues be subject to any garnishee (s 13(1)). Instead, the model contemplates the obtaining of a certificate in respect of the judgment from the proper officer of the court concerned, the service of that certificate upon a nominated representative of the State and the subsequent and consequential satisfaction of the judgment from public funds appropriated by Parliament for that purpose. Thus, s 13(2) of the Claims by and Against the State Act provides:
    

(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.

31. The involvement of the Solicitor General in the specified, subsequent process for the satisfaction of a judgment as so certified is apparent from s 14 of the Claims by and Against the State Act:
    
    14. SATISFACTION OF JUDGMENT AGAINST THE STATE.
        
        • (1) The certificate referred to in Section 13(2) shall be served on the Solicitor-General by–
          

(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.

32. The evident purpose of the requirement for the service upon the Solicitor General of the Certificate of Judgment is so that the State may have the benefit of advice as to its apparent liability from its principal, permanent legal adviser and so as to permit the institution of such legal proceedings, if any, as may at that stage be open to impeach or question that liability or the amount thereof.
    
33. The stipulation in relation to mandamus and contempt in s 14(5) is expressed as a prohibition with exceptions. That the Claims by and Against the State Act thereby admits of such remedies avoids any question as to whether, by a general prohibition, it would run contrary to s 155(6) of the Constitution and the related inherent power of the two superior courts of record established under the Constitution, this Court and, under it, the National Court, to grant such remedies of the interests of justice so requires. Instead, in relation to proceedings against the State resulting in a judgment for the payment of money by the State, the procedure laid down in s 14 of the Claims by and Against the State Act reconciles the constitutional obligation (subject to any right of appeal or review) of all persons to give effect to judgments delivered within the National Judicial System with the constitutional requirement, found in s 211(2) of the Constitution, that public funds be expended only in accordance with an appropriation approved by Parliament.
    
34. This understanding of the operation and effect of s 14 of the Claims by and Against the State Act is evident in the following observation of this Court in Pansat Communications Pty Limited v Morea Vele & the State [1999] SC 60:
    
35. In our opinion, s 14 was enacted with the intention to ensure that judgments against the State are satisfied. The latter part of s 14(5) expressly allows an action for an order in the nature of mandamus and contempt of court to ensure that the two officers comply with the requirements. The practical effect of this view is that if an action for mandamus is not complied with, an action for contempt of court may be taken out against the appropriate officer to effect compliance. If this interpretation is not adopted, the State could refuse to comply with the requirements with impunity. If the State is allowed to do this, judgments obtained against the State would be rendered worthless. We cannot imagine that the Parliament intended such an absurd result.
    

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:

1. An Order in the nature of a Declaration that the actions of the First Defendant [the Solicitor General] in failing, refusing or neglecting to endorse as fit the Certificate of Judgment issued in favour of the Plaintiff in matter SCA No. 6 of 2003, signed and issued by the Registrar of the Supreme Court on 18 January 2005, is unlawful and a breach of the First Defendant’s duty:
   • 1.1 Under Section 14(2) of the Claims by and Against the State Act; and
   • 1.2 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.
2. An Order in the nature of a Declaration that the actions of the First Defendant in failing, refusing or neglecting to endorse as fit the Certificate of Judgment issued in favour of the Plaintiff in matter SCA No. 6 of 2003, signed an issued by the Registrar of the Supreme Court on 13 March 2012, is unlawful and a breach of the First Defendant’s duty:

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.

3. An Order in the nature of mandamus requiring the First Defendant to forthwith endorse as fit the Certificate of Judgment issued in favour of the Plaintiff in matter SCA No. 6 of 2003, dated 18 January 2005, and served on her on 19 January 2005.
4. An Order in the nature of mandamus requiring the First Defendant to forthwith endorse as fit the Certificate of Judgment issued in favour of the Plaintiff in matter SCA No. 6 of 2003, dated 13 March 2012, and served on her on 14 March 2012.
5. The Plaintiff’s costs of the proceedings be paid by the Defendants on an indemnity basis.
   

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.

36. Upon the initial hearing of that application, neither of the respondents appeared. The hearing of the application was adjourned with the Court directing that an appearance be made by the Solicitor General on that date. Counsel from the Solicitor General’s chambers appeared on the adjourned date. After hearing from her and further from counsel on behalf of Atlas, his Honour reserved judgment. On 29 November 2018, for reasons delivered ex tempore, his Honour dismissed the application made by Atlas for a mandamus.
    
37. As mentioned earlier, his Honour erroneously regarded the order made in June 2016 as interlocutory. That understanding formed part of a belief by his Honour that it was open to him to impeach or question the 2004 judgment of this Court or the later calculations by a registrar of interest in accordance with the specification in that judgment. His Honour did so seemingly on the basis that the original judgment as to liability was a default judgment and that the precise amount of interest was not specified in the 2004 judgment.
    
38. Unfortunately, and with respect, and as Atlas correctly submitted, what his Honour has not appreciated is that the 2002 judgment was the subject of an appeal to this Court. In that appeal, it was open to the State to raise whatever alleged deficiencies attended the default judgment and to respond to the case made by Atlas for a greater award of damages. The result was a judgment of this Court which increased the amount of damages and which specified with precision the method by which interest was to be calculated. Yet further, in the 2011 judgment, this Court had expressly declined an application by the State to review the 2005 judgment in which the calculated amount of interest as certified in the 2005 and 2012 certificates is specified. In short then, there were two subsisting judgments of Papua New Guinea’s final court of appeal which vindicated both the amount of damages and the interest calculation. It was not, with very great respect, for the National Court, a court lower in the hierarchy of the National Judicial System, to seek to impeach or question either of these outcomes in the Supreme Court, with all of the finality they entailed in the quelling of the controversy between Atlas and the State.
    
39. Lest it be thought to have passed unnoticed by me, I emphasise that also concluded by the principle of finality by the 2011 judgement was any question as to the meaning and application of s 16(6) of the Frauds and Limitations Act 1988, which provides, “No arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years commencing on the date when the interest became due.” As this Court recited in the 2011 judgement, no question as to the application of that provision was raised before it on behalf of the State on that occasion. But it was a question which was capable of then being raised. Because it was capable of then being raised, whatever benefit the State might have derived from it is concluded against it by the finality principle. As it happens, the State did not, in the present proceeding, seek to raise the issue. Even if the State had sought to raise that point before us, “Anshun estoppel”, which prevents a party from raising in subsequent proceedings an issue which could have been raised in earlier ones, would apply, such that the State would be estopped from raising that point: see Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, adopted in PNG in National Airline Commission trading as Air Niugini v Lysenko [1990] PNGLR 226, at 232-233 per Los J, Kapi DCJ and Hinchliffe J agreeing on this point. In all of these circumstances, it would be most inappropriate for this Court gratuitously to consider the issue.
    

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]:

34. A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding.
35. The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called “fresh evidence rule”) are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: “[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.” \
36. The rules based on the need for finality of judicial determination are not confined to rules like those mentioned above. Those are rules which operate between the parties to a proceeding that has been determined. Other rules of law, which affect persons other than the parties to the original proceeding, also find their justification in considerations of the need for finality in judicial decisions. And some of those rules are rules of immunity from suit.
    

[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.

44. Subsection 16(5) of the Frauds and Limitations Act provides:
    

An action shall not be brought upon any judgment after the expiration of 12 years commencing on the date when the judgment became enforceable.

45. The terms of s 16(5) are materially identical to the terms of s 24(1) of the Limitation Act 1980 (UK), with the only exception being that the specified time limit in Papua New Guinea is 12 years, rather than, in the United Kingdom, six years. The local, 12 year specification accords with the position in the predecessor United Kingdom Act, the Limitation Act 1939 (UK) (Repealed). For these reasons it is apt to discuss the English authorities on the interpretation of s 24(1) and its predecessors.
    
46. In Lowsley v Forbes [1998] UKHL 34; [1999] 1 AC 329 (Lowsley), the House of Lords was confronted with the question of how “action... brought upon any judgment” should be defined for the purposes of the UK Act. Lord Lloyd of Berwick (albeit with some hesitation but with whom the rest of the House agreed on this point) concluded, at 342, that, “‘Action’ in section 24(1) means a fresh action, and does not include proceedings by way of execution.”
    
47. This has subsequently been treated as the definitive statement of English law on this question: see, e.g., Ridgeway Motors (Isleworth) Ltd v ALTS Ltd [2005] EWCA Civ 92; [2005] 1 WLR 2871 (Ridgeway Motors).
    
48. As to the distinction between fresh proceedings on a judgment and the enforcement of a judgment, his Lordship referred inLowsley to the earlier authority of Berliner Industriebank Aktiengesellschaft v Jost [1971] 1 QB 278, in which Brandon J had stated, at 293:
    

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...

49. His Honour then referred to WT Lamb & Sons v Rider [1948] 2 KB 331 (WT Lamb & Sons), where Scott LJ stated, at 336, that the legislation had retained reference to the old common law rule that, “the law presumed a judgment to have been satisfied when a year and a day had elapsed without execution being issued upon it; and at common law the only remedy in such a case (in personal actions) was an action of debt on the judgment...”.
50. In Lowsley, Lord Lloyd of Berwick, at 335-339, traced the origins of this regime to the 1285 Statute of Westminster II (13 Edw 1, c 24). Under the Statute of Westminster II, a judgment had the effect of binding one half of the judgment debtor’s freehold lands as a charge. The judgment would be executed by a writ of elegit, whereby a judgment creditor was put in possession of half the rent or profits of the land. However, so as to not be overly oppressive, a judgment was presumed to have been satisfied a year and a day after it had been entered. After that period of time, the judgment creditor could apply to “revive” the judgment by way of a writ of scire facias. Thus, the writ of elegit was a writ of execution of judgment, and the writ of scire facias was an action brought upon the judgment.
    
51. As Lord Lloyd of Berwick explained, this largely remained the position until the year and a day rule was abolished by s 128 of the Common Law Procedure Act 1852 (UK) (15 & 16 Vict c 76), and replaced by a six-year time limit to seek execution of a judgment. Thereafter, revival was still available under s 129 but it was by writ of reviver or, in simple cases, suggestion on the roll, rather than scire facias. Under s 129, revival was also available in cases of a change of parties, usually by death. This was again amended after the Supreme Court of Judicature (1873) Amendment Act 1875 (UK) (38 & 39 Vict c 77), Schedule 1 to which created Rules of the High Court of Justice and the Court of Appeal. Order 42 rr 18-19 of those Rules provided, respectively, that execution may issue at any time within six years of judgment being entered, and that thereafter or if the parties have changed, the judgment creditor could apply to the Court for leave to issue execution so long as revival was sought fewer than 20 years from when judgment was entered.
    
52. Nearly three-quarters of a century later, Scott LJ in WT Lamb & Sons held, at 338, that despite the explicit reference to revival being omitted in the Limitation Act 1939, the substantive right to sue and obtain a judgment was not extinguished.
    
53. WT Lamb & Sons was applied in the National Court in Australia & New Zealand Banking Group (PNG) Ltd v Ian Thomas Short [1986] PNGLR 57 (ANZ Bank v Short), where McDermott AJ held that, in relation to the former Statutes of Frauds and of Limitations Act, enforcement measures were not subject to limitation periods.
    
54. In Lowsley, Lord Lloyd of Berwick, at 339-342, disagreed with the conclusion reached by Scott LJ in WT Lamb & Sons, yet refrained from overruling it, because of how frequently it had been cited and, crucially, because the Limitation Amendment Act 1980 had been plainly influenced by an understanding that the law was as described by Scott LJ, which had been picked up by the Law Reform Committee’s 1977 Report on the Limitation of Actions. Despite describing it as a “parliamentary error”, Lord Lloyd of Berwick concluded, at 342, that “action” refers to a fresh action, not an enforcement action.
    
55. ANZ Bank v Short is a local authority which has stood for over 30 years upon the correctness of which it may reasonably be presumed that the commercial and wider community have acted. Further, the inference is inescapable from the symmetry of language that, in enacting s 16(5), Parliament has proceeded upon the same assumption as did the United Kingdom Parliament when enacting that country’s Limitation Act 1980. In these circumstances and for like reasons to those given by Lord Lloyd of Berwick in Lowsley, I consider that enforcement proceedings are not “action upon a judgment”.
    
56. As it happens, there is comparatively recent authority which evidences the use of actions upon a judgment, in contradistinction to the enforcement of a judgment. In Ridgeway Motors, it was noted, at [8], that Bennett v Bank of Scotland [2004] EWCA Civ 988 (Bennett), “is a recent example of the circumstances in which a judgment creditor may have, or thinks that he may have, a valid reason for seeking another judgment based on an existing judgment.” In Bennett, the Bank, as a “judgment creditor... under an existing, but possibly unenforceable, judgment” sought “to pursue a second action based on the first judgment in order to obtain and enforce a second judgment against Mr Bennett by, for example, bankruptcy proceedings”: [2]. In that case, the Bank had obtained judgment against Mr and Mrs Bennett under a guarantee for £150,000 in 1994. It obtained judgment against Mr Bennett by default in 1995. The proceedings against Mrs Bennett went on appeal to the House of Lords, where it was held that the guarantee was unenforceable as against her because of actual undue influence by her husband. The Bank commenced a second set of proceedings against Mr Bennett to preserve its position against him on the day before the six-year time period was due to expire. This was found by the Court of Appeal not to be an abuse of process.
    
57. As we have seen, s 13(1) of the Claims by and Against the State Act forbids any “execution or attachment, or process in the nature of execution or attachment ... against the property or revenue of the State” but s 14 allows the granting of a mandamus in certain circumstances.“Execution” was authoritatively defined by Lord Denning MR in In re Overseas Aviation Engineering (GB) Ltd [1963] Ch 24, at 39-40:
    

“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.

58. It is apparent that the reference in Lowsley to “execution” refers to the taking of steps to enforce a judgment debt. The process of “execution” does not conclude until the judgment debt has been satisfied.
    
59. For these reasons, s 16(5) does not apply to enforcement or execution measures. In the absence of any statutory limit on the period of time in which a judgment creditor must enforce a judgment debt, there is no local time limit on the taking of enforcement measures. In relation to a claim against the State, the enforcement measures are those prescribed in s 14 of the Claims by and Against the State Act.
    
60. For completeness, I add that, even if, contrary to our view, the application for a mandamus were to be regarded as an “action... upon any judgment”, s 7(1) of the Frauds and Limitations Act 1988 provides that, where there has been a part-payment of a claim, the right to the debt is deemed to have accrued on the date of the last payment. Here, it is acknowledged that the date of last payment fell in 2011. Thus, even if s 16(5) did apply, the right would have accrued in 2011, such that the present mandamus application would still fall within time.
    
61. Even though Atlas has demonstrated error on the part of the primary judge in refusing to grant a mandamus, does it follow that it is entitled to that relief from this Court?
    
62. In Pacific Helicopters Ltd v Kambanei [2007] PGNC 72; N3242 (Pacific Helicopters), Davani J offered a valuable survey of prior authority in this jurisdiction, from which I have gained much assistance, relating to the availability of mandamus against officers of the State for the enforcement of money judgments. Apart from granting declaratory relief and a mandamus, the orders made by her Honour included:
    
    6. That the Secretary for Department of Finance before the Registrar of the National Court, at a date to be advised, and be orally examined on the question of whether the Department of Finance has monies legally available to satisfy the outstanding judgment debt in the sum of K8,437,094.44 and produce a Statement of Account of the monies paid out by the First Defendant to satisfy the various judgments obtained against the Second Defendant since the filing of these proceedings on 14 December, 2004 and six (6) months prior to the filing of these proceedings.
       

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”.

64. I note that like orders simultaneously granting a mandamus and providing for an oral examination of the responsible departmental head were made by the National Court in Sealark Shipping Limited and Bismark Maritime Pty Limited v Secretary of Treasury & the State [1998] PNGLR 333(Sealark Shipping).
    
65. In my respectful view, to order the issuing of a mandamus and, at the same time an examination of the responsible departmental head as to whether monies are legally available is to conflate two logically successive steps in the ordained enforcement process. One must first establish whether monies are legally available (and, if not, why not) and also allow for the statutory option of payment by instalments. If it is established that funds are legally available and no decision to pay by instalments has been made, a mandamus could then be issued requiring payment. The responsible departmental head could then, on application, be dealt with for contempt in the event that he or she failed, without reasonable excuse, to cause payment to be made in full.
    
66. Our voicing this qualification in no way diminishes my agreement with this observation made by Woods J in Sealark Shipping, at 3, as to what would constitute an adequate response by the responsible departmental head in an examination:

... 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.

68. This is a judgment which has remained unsatisfied ever since 2005 in relation to which all avenues of challenge under the National Judicial System have long ago been exhausted. And that judgment was the result of proceedings originally instituted almost 3 decades ago. There is no evidence of fraud in relation either to the procuring of the judgement or of the Solicitor-General’s certificate. The time for questioning the correctness of the amount owed has long passed. The time for the payment of the debt has been long arrived. Never more so than in the circumstances of the present case are these further observations made by Woods J in Sealark Shipping, at 3, apt:
    

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.

69. I cannot pass from disposing of this appeal without making this further observation. Notwithstanding express earlier directions in relation to the prior filing of extracts of argument, the respondents failed to file and serve such submissions by the specified date. Instead, counsel from the Solicitor General’s chambers in appearing for the respondents sought to file such submissions in Court. This did a gross disservice to the Court and to Atlas, in terms of the ability to assimilate in advance those submissions. Of all of the members of the legal profession in Papua New Guinea, the Solicitor General and his officers, in acting for the State and its officers and agencies, have a particular duty to act as a model litigant, scrupulously complying with court directions, refraining from taking technical points which divert attention from the substantive issues in the case, putting opposing parties to proof on the existence of facts well-known to the State and, even in the absence of an opposing party, offering the Court the benefit of dispassionate assistance on issues of law and fact, including reference to authorities which may be against the State: see, further, Melbourne Steamship Co Ltd v Moorehead [1912] HCA 69; (1912) 15 CLR 333, at 334; Kenny v South Australia (1987) 46 SASR 268, at 273and Yong Jun Qin v Minister for Immigration &Multicultural Affairs (1997) 75 FCR 155, at 166. Of course, it is incumbent upon the State, in the interests of all in Papua New Guinea, to ensure that the Solicitor General’s chambers are sufficiently resourced so as to meet the singular responsibilities which that office must discharge.
    
70. Atlas has led no evidence as to whether or not there are monies legally available to the State to satisfy the judgment. For the reasons given above, I consider that it would be premature to grant a mandamus. It is, though, entitled to an order for the examination of the first respondent. Though it would have been possible to select earlier dates, I have selected 27 October 2016 in the statement of account requirement in our oral examination order, because that it’s the date upon which the Solicitor General came to provide the certification required by the Claims by and Against the State Act. Depending upon the evidence disclosed at the examination, Atlas would be at liberty to make a further application for a mandamus. The respondent must pay the costs of Atlas both in this Court and in the National Court.
    
71. For these reasons, I would make the following orders:
    
    1. The appeal be allowed.
       2. The orders made by the National Court on 29 November 2018 be set aside.
       3. In lieu thereof, order:
          
          1. The plaintiff’s application for an order in the nature of a mandamus be dismissed, without prejudice to its ability to make a further application for such an order following the examination for which these orders provide.
             
             2. The first respondent (or his successor in office) attend before the Registrar of the National Court, 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 produce a Statement of Account of the monies paid out by the first respondent (or any predecessor in office) to satisfy the various judgments obtained against the second respondent on and from 27 July 2016, detailing the monies presently available for payment of judgments and the overall amount of outstanding judgments against the second respondent, including that the subject of these proceedings.
                
          3. The Registrar may adjourn such examination from time to time and make such further directions in relation to the Statement of Account and production of related documents as, in his opinion, occasion requires.
             
          4. The defendants (present respondents) pay the plaintiff’s costs of and incidental to the proceedings, up to and including 29 November 2018 and of the examination for which this order provides, to be taxed if not agreed. Liberty granted to the plaintiff to tax forthwith its costs up to and including 29 November 2018. Save as aforesaid, costs of any further proceedings be reserved.
             
       4. The respondents pay the appellant’s costs of and incidental to the appeal, to be taxed if not agreed.
          

Orders:

1. The Appeal is allowed
   
2. The Orders made by the National Court on 29 November 2018 are set aside.
   
3. The Appellant’s application for an order in the nature of mandamus is dismissed.
   
4. Each party is to pay its own costs.
   

______________________________________________________________
O’Briens Lawyers: Lawyers for the Appellant
Solicitor General’s Office: Lawyers for the Respondent