A judgment creditor against an ordinary defendant has the enforcement machinery of Order 13 of the National Court Rules 1983. Against the State, none of it is available.
Section 13
(1) In any suit, execution or attachment, or process in the nature of execution or attachment, may not be issued against the property or revenue of the State.
(2) Where a judgement is given against the State, the registrar, clerk or other proper officer of the court by which the judgement is given shall issue a certificate in Form 1 to the party in whose favour the judgement is given.
“In any suit” — not only claims brought under the Act.
“Execution or attachment, or process in the nature of execution or attachment” — the third limb is deliberately wide. It is not confined to the named writs; it catches anything that operates as execution by another name.
“Against the property or revenue of the State” — both the assets and the income.
Order 13 does not apply
| Method under Order 13 | Against an ordinary defendant | Against the State |
|---|---|---|
| Writ for levy of property | Available | Barred — s 13(1) |
| Garnishee (attachment of debts) | Available | Barred — s 13(1) |
| Writ of possession | Available | Barred — s 13(1) |
| Writ of specific delivery | Available | Barred — s 13(1) |
| Charging order | Available | Barred — s 13(1) |
| Examination of the judgment debtor | Available | Pointless — no execution can follow |
| Order for payment within 14 days — O 12 r 4 | Available | Barred — s 12(2) |
Notwithstanding anything in the National Court Rules, a court giving judgement against the State may not include any order as to time or method of payment for satisfaction of the judgement.
So the Court cannot order the State to pay by a particular date, nor by instalments of a particular size. Time and method are matters for the statutory process, not the judgment.
The certificate route
In place of execution, the successful party receives a certificate in Form 1 from the registrar, clerk or other proper officer of the court by which the judgement is given.
That certificate is then served on the Solicitor-General, who must within 60 days endorse it; and on receipt of the endorsed certificate the Departmental Head responsible for finance matters must within a reasonable time, satisfy the judgement out of moneys legally available.
The steps are set out in how a judgment against the State is paid.
Section 14(5) restricts the remedies. 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 judgement under this Act.
But there are two exceptions on the face of the subsection: other than for failure to observe the requirements of Subsection (2), (3) or (4), or unless other exceptional circumstances can be shown to the satisfaction of the court.
So the immunity is not absolute. A judgment creditor whose certificate has not been endorsed within the 60 days, or which has been endorsed but not satisfied within a reasonable time, is within the first exception. See mandamus and contempt.
Section 15 — the contrast
Where in any suit a judgement is given in favour of the State against any person, the State may enforce the judgement against him by such execution, attachment or other process as could be had in a suit between other persons.
The State cannot be executed against, but may execute in the ordinary way — the full range of Order 13 methods is open to it.
That is consistent with the general position under section 11, that the rights of parties, as nearly as possible, are the same, subject to the specific modifications the Act makes. Sections 13 and 15 are two of those modifications, and they run in opposite directions.
The same asymmetry appears in section 10, which gives the State a security for costs power in circumstances the Rules would not otherwise reach.
For judgment creditors
- Obtain the certificate promptly. Nothing happens until Form 1 issues under section 13(2). Ask the Registrar for it as soon as the judgment is entered.
- Serve it correctly. Section 14(1) requires personal service on the Solicitor-General, or leaving it with the person apparently occupying the position of personal secretary, within the statutory hours. The section 7 method applies again.
- Record the date of service. The 60 days for endorsement runs from it, and it is the date you will need if the process stalls.
- Do not attempt execution. A writ issued against State property is a nullity under section 13(1), and pursuing it wastes costs.
- Consider who else is liable. Where an individual officer was joined and judgment was given against that officer, section 13(1) does not protect them — execution lies in the ordinary way. See damages against officers.
A delay in satisfaction does not extinguish the judgment. Post-judgment interest under the Judicial Proceedings (Interest on Debts and Damages) Act continues to run on the judgment sum, and the certificate should reflect the judgment as entered.
Sources
- Claims By and Against the State Act 1996 — ss 7, 11–15
- National Court Rules 1983 — O 12 r 4; O 13
- Judicial Proceedings (Interest on Debts and Damages) Act 1962 — not available on PacLII
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.