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Waluka v Taubuso [2009] PGNC 284; N3848 (27 March 2009)

N3848

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 673 OF 2008

TITUS WALUKA
Plaintiff

v.

PHILIP TAUBUSO
First Defendant

WEST NEW BRITAIN PROVINCIAL ADMINISTRATION
Second Defendant

Kimbe: Cannings J
2009: 27 March

JUDGMENTS AND ORDERS – draft consent orders – Judge's discretion whether to endorse – judgments involving public money.

The plaintiff, a former officer of a provincial government, sued the provincial government (the second defendant) and one of its officers (the first defendant) for unpaid entitlements. The defendants were legally represented. The plaintiff and the officer he sued and the current provincial administrator signed a draft consent order and presented it to the court for endorsement. The draft order was not signed by the defendants' lawyer.

Held:

(1) A judge to whom a draft consent order is presented has a discretion to exercise: to endorse or refuse to endorse the draft order.

(2) A draft consent order should only be endorsed when conventional practices have been followed: written consent to the order of all parties or their lawyers must be evidenced by endorsement on a draft; the Judge should endorse the draft order; an application to enter a consent order should not usually be made ex parte or in chambers (Simon Mali v The State (2002) SC690).

(3) If one or more of the parties is a governmental body, the Judge should exercise considerable caution before endorsing the draft order by ensuring that the draft order has been approved and signed by the lawyer on the record for that governmental body.

(4) In the present case, the draft order was not signed by the defendants' lawyer. A substantial amount of public money was involved and some of the amounts contained in the draft order appeared excessive. Therefore, the court refused to endorse the draft order.

Cases cited

The following cases are cited in the judgment:

Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
Gelu v Somare (2008) N3524
Simon Mali v The State (2002) SC690

APPLICATION

This was an oral application for endorsement of a draft consent order.

T Waluka, the plaintiff, in person
P Taubuso, the first defendant, in person

27th March, 2009

1. CANNINGS J: These are my reasons for refusing to endorse a draft consent order. The draft order was presented by the plaintiff, Titus Waluka, and the first defendant, Philip Taubuso. An oral application was made seeking the court's endorsement of the draft order.

2. Mr Waluka was a senior finance officer with the West New Britain Provincial Government from 1992 to 2004. In June 2008 he commenced proceedings against the provincial government and Mr Taubuso, the acting Adviser for Human Resources in the provincial government. He is claiming unpaid recreation leave fares to and from New Ireland Province on the basis that his wife is from New Ireland.

3. It is unclear from the statement of claim (which is poorly drafted) for what periods Mr Waluka says he was not paid leave fares. It appears that it might be for 1996, 2000 and 2004. The amount claimed in the statement of claim is K20,968.00 unpaid leave fares + K31,216.56 damages, a total of K52,184.56.

4. In October 2008 a notice of intention to defend was filed on behalf of both defendants by Pius Kingal & Associates, Lawyers of Port Moresby. Also in October 2008 default judgment on liability was entered in Mr Waluka's favour, with the amount of unpaid entitlements to be assessed.

5. The draft consent order, presented on 27 March 2009, was in these terms:

• unpaid leave fares K20,968.00 +
• interest of K1,118.29 on the sum of K20,968.00 calculated at 8 per cent (the period over which interest was accrued is unspecified) +
• K36,530.32 general damages "for the hardship and mental anguish that the plaintiff was put through calculated at 18 per cent commercial interest rate" +
• K22,044.00 "being the amount of costs incurred as a result of instituting these legal proceedings" =
• a total judgment sum of K80,660.61.
  

6. The draft consent order was signed by Mr Waluka, Mr Taubuso and Mr Steven Raphael, the West New Britain Provincial Administrator. It was not signed by the defendants' lawyers.

DISCRETION WHETHER TO ENDORSE A DRAFT CONSENT ORDER

7. A judge to whom a draft consent order is presented has a discretion to exercise: to endorse or refuse to endorse the judgment. A draft consent order should only be endorsed when customary practices have been followed: written consent to the order, of all parties or their lawyers, must be evidenced by endorsement on a draft; the Judge should endorse the draft order; an application to enter a consent order should not usually be made ex parte or in chambers (Simon Mali v The State (2002) SC690). In my view, if one or more of the parties is a governmental body, the Judge should exercise considerable caution before endorsing the draft order by ensuring that the draft order has been approved and signed by the lawyer on the record for that governmental body. This is especially the case if public money is involved.

8. Having regard to those principles, I refuse to endorse the draft consent order for these reasons:

➢ First, the draft order was not signed by the defendants' lawyers, Pius Kingal & Associates.

➢ Secondly, a substantial amount of public money is involved: more than K80,000.00. The circumstances in which these sorts of consent orders are drafted is a matter of great public interest, as shown by the current proceedings of the Commission of Inquiry into the Management Generally of Public Monies by the Department of Finance (Gelu v Somare (2008) N3524).

➢ Thirdly some of the amounts contained in the draft order appear excessive. For example:

• K36,530.32 general damages for hardship and mental anguish exceeds the amount claimed in the statement of claim and refers to an interest rate of 18 per cent without any justification. The amount of interest awarded on a judgment is always at the discretion of the court, exercised in accordance with the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52 (Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24). The conventional interest rate awarded is 8 per cent, so 18 per cent seems grossly excessive.
  
• K22,044.00 is claimed for legal costs. But the plaintiff has no lawyer on the record.
  

9. I will not entertain a similar sort of oral application again in this case. I will give directions to ensure that proper procedures, aimed at ensuring transparency and accountability in dealing with public money, are followed in future.

ORDERS

(1) The application for endorsement of the draft consent order presented in the National Court at Kimbe on 27 March 2009 is refused.

(2) Any further application for endorsement of a draft consent order must be made by notice of motion, supported by affidavits by the lawyer on the record for the defendants and by the West New Britain Provincial Administrator, deposing that each has satisfied himself that the amount of the draft judgment is proper and in accordance with law.

(3) The matter shall return to court on 14 April 2009 for mention.

(4) The parties bear their own costs.

Ruling accordingly.
____________________________

Lawyers for the Plaintiff: The Plaintiff in Person
Pius Kingal & Associates: Lawyers for the defendants