Because execution does not lie against the State, the Claims By and Against the State Act 1996 substitutes an administrative process. Section 14 sets it out.
The statutory sequence
Section 13(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.
The duty is on the court officer, but in practice the successful party must ask. Do so as soon as the judgment is entered and the minute settled.
Section 14(1): the certificate 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 stated hours, 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 under the Public Holidays Act (Chapter 321).
The subsection reproduces the same machinery used for the section 5 notice and for section 7 service — personal service, or the personal secretary, within normal public service hours of duty on a working day.
As at the earlier stages, record the date and the time of service. The 60 days in subsection (2) runs from the date of service, and that date is what a later application will turn on.
Section 14(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.
The word is shall. The endorsement records that the judgment may be satisfied.
Section 14(3): Upon receipt of the certificate of a judgement against the State bearing the Solicitor-General’s endorsement that judgement may be satisfied, the Departmental Head responsible for finance matters shall, within a reasonable time, satisfy the judgement out of moneys legally available.
Section 14(4)
Any payment in satisfaction of judgement may, in the absolute discretion of the Departmental Head responsible for finance matters, be made by instalments, provided the judgement is thereby satisfied within a reasonable time.
The discretion to pay by instalments is described as absolute, but the subsection closes with a condition: provided the judgement is thereby satisfied within a reasonable time.
So an instalment schedule that would take an unreasonable period to discharge the judgment is not within the subsection. That is the point at which a judgment creditor may have a complaint under subsection (5).
Note too that under section 12(2) the Court itself may not include any order as to time or method of payment. Time and method belong to this section, not to the judgment.
Section 14(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 judgement 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.
The first exception is the practical one. Subsections (2), (3) and (4) impose duties — endorse within 60 days; satisfy within a reasonable time out of moneys legally available; if by instalments, satisfy within a reasonable time. Failure to observe those requirements is expressly outside the immunity.
So a judgment creditor whose certificate was served, and where the 60 days has passed without endorsement, may seek mandamus under Order 16 to compel the endorsement.
The second exception — other exceptional circumstances — is a residual discretion, and the applicant must satisfy the court of it.
The affidavit should exhibit the judgment, the Form 1 certificate, proof of service on the Solicitor-General with the date and time, and any correspondence pursuing the endorsement or payment. Establish the elapsed period precisely; the case is built on dates.
Where the complaint is against the finance Departmental Head under subsection (3), the applicant must also address “within a reasonable time” and “moneys legally available” — the second is a real qualification, and evidence about appropriations may be relevant.
What creditors should expect
- The process takes time. Sixty days for endorsement alone, then a reasonable time for satisfaction. Advise clients accordingly at the outset.
- Nothing starts until the certificate is served. A judgment sitting on the file with no Form 1 issued goes nowhere.
- Costs follow the same route. A costs order against the State, once taxed and certified, is satisfied under section 14 in the same way.
- Interest continues to run on the judgment until satisfaction, under the Judicial Proceedings (Interest on Debts and Damages) Act 1962.
The position reverses. Under section 15, 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 full Order 13 machinery.
Sources
- Claims By and Against the State Act 1996 — ss 5, 7, 12–15, Form 1
- National Court Rules 1983 — O 12 r 4; O 13; O 16; O 22
- Public Services (Management) Act 1995; Public Holidays Act (Chapter 321); 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.