N2481

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 727 OF 1999

BETWEEN:

PAUL & MARY BAL
Plaintiffs

AND:

KENNY TAIYA
First Defendant

AND:

FRANCIS ARUMBA
Second Defendant

AND:

PHILIP DEGE
Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

GOROKA: DAVANI .J
2003: 9, 29 OCTOBER

PRACTISE AND PROCEDURE – Claim for damages for breach of Constitutional rights – notice under s. 5 of Claims By and Against the State Act (‘s. 5 notice’) not given – Although Writ of Summons filed, no cause of action.

PRACTISE AND PROCEDURE – trial – non-compliance with s. 5 notice not raised by both counsel – no application to dismiss before the court – court to exercise discretion on its own initiative to raise and determine questions concerning the regularity or competency of proceedings at any stage of the proceeding, with or without application by an interested party.

Cases Cited:
• Siaman Piri & Anor v Simon Nusen & Ors N1375 (1995)
• John Bokin and others v Sergeant Paul Dana and 2 others, WS 1505 of 2000
• Paul Tohian, Minister for Police and the State v Tau Lui SC 566 
• Karl Paul and Aruai Kispe and the Regional Manager – PNG Forest Authority, Lae and PNG Forest Authority N2085
• William Trnka v The Independent State of Papua New Guinea N1957

Counsel:
D. Umba for the Plaintiffs
No appearance for the Defendants

DECISION
(Substantive hearing)

29 October 2003

DAVANI J:	On 14.7.99, the Plaintiffs filed writ of summons and statement of claim seeking damages for breach of their Constitutional rights for being unlawfully arrested then detained in the Baragawi jail for 5 days.

The Defendants filed a Defence on 4.11.99 but I should state at the outset that this is not recorded in the court file. In fact it was not until completion of the Plaintiff’s evidence, and upon the court’s enquiries that the Plaintiffs lawyer then handed up a sealed copy of the Defence. I will discuss this procedural irregularity in the latter part of this judgment.

Preliminary matters
There are a few procedural matters that I will deal with first and that will ascertain whether I should proceed to reviewing the materials before me in the determination of liability.

1.	Ex-parte Hearing:

This matter was set down for trial on 9 and 10.10.03.

In relation to representation for all defendants, on 6.10.03, Mr Umba for the Plaintiffs and Mr Kuri of the Solicitor-General’s Office appeared before me for the pre-trial of this matter. Mr Kuvi informed the court that he did not have instructions on the matter. I confirmed the trial dates because Mr Umba informed the court that he had posted the "Notice of Appointment of Hearing Date" to the Solicitor-General’s Office under cover of his letter dated 27.7.03. On directions from the court, Mr Umba produced a copy of this letter attached to his affidavit sworn on 7.10.03. I will elaborate further on this.

On the morning of trial on 9.10.03, Mr Umba applied to the court for the trial to proceed ex parte because the Defendants had not shown interest by making appearance at the trial. Nor had they informed the Plaintiffs lawyer of their non-attendance.

On reviewing the court file, I noted the following:

(a)	On 14.7.99, the Plaintiff filed these proceedings. Then followed a series of correspondence exchanged between the parties and appearances in Court on motions filed by either parties. At this time, it is not necessary for me to refer to them.

(b)	On 6.2.01, the matter was listed before Batari .J for a 2 day trial on 12.9.01 and 13.9.01.

(c)	On 12.9.01, there was appearance by Mr D Umba for the plaintiffs. The endorsement on the Court file indicated there was no appearance by the Defendants but the associates note read "Counsel for Defendants did appear for trial to begin today but indicated in writing they have a motion on foot that needs to be dealt with before trial can proceed. Matter S/O to 13.9.01 for mention."

(d)	On 13.9.01, Counsel for Plaintiff appeared and there was no appearance by the State. The trial dates were vacated. The endorsement on the Court file read Plaintiffs counsel was to confer with Defendants counsel and that the matter would be mentioned on 14.9.01 at 9.30.

(e)	On 14.9.01, the matter was stood over to 12.10.01 for mention and that both counsel had agreed to this course. The Plaintiffs’ lawyer was in attendance. There was no appearance by the Defendants’ lawyers.

(f)	On 12.10.01, Plaintiffs’ lawyer applied to the Court to dismiss the Defendants’ motion filed on 26.9.01. These orders were granted with costs to the plaintiffs. There was no appearance by the Defendants’ lawyers.

(g)	On 12.11.01, there was no appearance by either party and the matter was stood over generally.

(h)	On 16.11.01 and 11.02.02, the matter was mentioned and stood over.

(i)	On 12.2.02, the matter was set down for trial on 8 July 2002. The Plaintiffs’ lawyer was in appearance.

(j)	On 1.7.02, Plaintiffs’ lawyer informed the Court that the Defendants’ counsel could not attend the trial so the trial dates were vacated and the matter stood over to the call-over list.

(k)	On 28.10.02, the matter was set down for trial on 10 and 11 June 2003. Only the Plaintiffs’ lawyer was in attendance.

(l)	On 4.6.03, the endorsement on the court file read that on 7.7.03 the matter would be given a trial date. There was no appearance by either parties.

(m)	On 8.7.03, Mr Umba appeared for the Plaintiffs. Mr Kuvi of the Solicitor-General’s Office informed the Court that he had no instructions on this matter. 

On quick perusal of the file, I noted the history set out above and was of the view that the State had been informed of the trial dates and so confirmed the trial dates. I also directed that on 9.10.03, the date of trial, Mr Umba should produce to the Court in affidavit form, his advice to the Defendants lawyers of the trial date. I also directed Mr Kuvi to obtain instructions from the Solicitor-General as to representation by the State on this matter.

On 9.10.03, Mr Umba produced on affidavit sworn on 7.10.03 to which was attached an unsigned letter on Acanufa & Associates lawyers letterhead to the Solicitor-General’s Office dated 25.7.03. The letter advised that it had enclosed to it a sealed copy of the ‘Notice of Appointment of Hearing’. I asked Mr Kuvi if he had received any instructions from the Solicitor-General’s Office. He informed the Court that his attempts since the 6.10.03 were unsuccessful.

On reviewing all the material before me, including the endorsements I set out above, I then made a brief ruling that the State had been aware of these proceedings for some time and that they had been advised of the dates of trial. I ruled that the matter would proceed ex-parte.

In relation to reliance by the court on the several affidavit materials filed by the Defendants, the Plaintiffs submitted that the Defendants had not given notice to them under s.35(1) of the Evidence Act that they would be relying on the affidavit material they had filed, and on that basis, the court should not have recourse to them. I accepted those submissions and ruled accordingly.

2.	S.5 of Claims By and Against the State Act Chapter (‘Claims Act’)

As stated earlier at the commencement of trial, I still had not sighted the Defendants’ Defence because the Court file did not have a copy, nor was it noted on the filing index of the Court file as having been filed. 

But I did not suspect that there was an issue in relation to the giving of notice under s. 5 of the Claims Act because this was not raised by counsel for the Plaintiffs until after the completion of the Plaintiffs’ evidence, and before he commenced submissions on the evidence. I asked Plaintiffs counsel if the Notice of Motion filed by the Plaintiffs on 7.9.01 related to an Application to Dismiss. He said it was such an application but that it was dismissed by the court on 12.10.01 at the Plaintiffs application. I heard that the application was not heard on the merits and dismissed because of the non-appearance by the Defendants lawyers. I informed counsel for Plaintiff then that I would deal with the lack of the s. 5 notice as a threshold issue, in my judgment. He noted that and did not raise objections.

S.5 of the Claims By and Against the State Act (the "Claims Act") reads;

"5.	NOTICE OF CLAIMS AGAINST THE STATE

(1)	No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this section by the claimant to –

(a)	the Departmental Head of the Department responsible for justice matters; or
(b)	the Solicitor-General.

(2)	A notice under this section shall be given –
(a)	within a period of six months after the occurrence out of which the claim arose; or
(b)	where the claim is for breach of a contract, within a period of six months after the claimant became aware of 	the alleged breach; or
(c)	within such further period as –
(i)	the Principal Legal Adviser; or
(ii)	the Court before which the action is instituted,
on sufficient cause being shown, allows.

(3)	A notice under sub-section (1) shall be given by –
(a)	personal service on an officer referred to in Subsection (1); or
(b)	leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 am and 12 noon, or 1.00 pm and 4.06 pm, 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 (Chapter 321).

Numerous cases that have come before the Courts have been dismissed because of the lack of compliance with s.5 of Claims Act.

I should now refer again to when the issue of the lack of notice arose. As I stated earlier, Plaintiffs counsel informed me of the existence of the Defence after I had asked what the Defendant’s Defence was if it was filed, as I wished to hear submissions on that. Mr Umba then handed up a sealed copy of the Defence which bore the date of filing as 4.11.99. The Defence denied the Plaintiff’s claim, and specifically pleaded therein the Defence of contributory negligence by the Plaintiff’s, that the pleadings did not disclose a cause of action and that the claim was statute-barred under s.5 of the Claims Act as the Plaintiffs had not given such notice. 

Mr Umba then advised the Court that the office of the Solicitor-General had filed a motion to dismiss for want of compliance with s.5 of the Claims Act but that this motion was dismissed on 12.10.01. I have in the chronology, set this out in the earlier part of this judgement. Was the application to dismiss heard on the merits. To answer that question, it is necessary that I set out the pleadings relating to the s. 5 notice.

David Lambu’s affidavit of 7.9.01 deposed that after the Writ of Summons and Statement of Claim was received by the Solicitor-General’s Office on 3.8.99 at 3 pm and on checking with the Solicitor-General’s computer file register, it was confirmed that no s.5 notice was given, hence the filing of the Application to Dismiss by the State.

By letter of 12.9.01 from the Solicitor-General’s Office, Mount Hagen to Acanufa Lawyers, with a copy to Batari .J’s Associate, which copy is on the court file, they advised that the issue of the lack of compliance with s.5 of the Claims Act would be dealt with as a preliminary issue on the morning of trial. This was followed by another letter from the Solicitor-General’s Office of 12.9.01 to the Judge’s Chambers advising that they would not be on time for the hearing of the motion because of the late arrival of the flight from Mt Hagen (to Goroka) and asked if the matter could be adjourned to 1.30 pm. Their advice was also that they would raise non-compliance with s.5 as a preliminary issue. Then by another letter of 13.9.01 from the Solicitor-General’s Office, Mount Hagen to the Judge’s Chambers in Goroka, a copy of which is on the court file, that Mr Umba had adjourned the matter to 14.9.01 and had informed the State not to travel to Goroka. The writer also informed the Court that the matter could be resolved administratively if Mr Umba could send them copies of correspondence he claims is the letter giving notice.

On 7.9.01, Mr Umba filed an affidavit he deposed to on 6.9.01, to which was attached letter dated 4.1.99 purportedly giving notice to the State.

By letter to Acanufa Lawyers dated 11.10.01, the Solicitor-General’s Office, Mount Hagen advised that they received Acanufa Lawyers letter of 14.9.01 on 2.10.01 and that they would not be pursuing their motion to dismiss, which was scheduled for hearing on 12.10.01. He said this was because the State had 2 files on the matter, one file which was allocated to a Mr Alus Iwais which did not contain the Section 5 notice letter and one to Mr David Lambu, which did not contain the Section 5 notice letter. The letter stated the following;

"I trust this lays to rest the issue on Section 5 and I seek your concurrence to place this matter on the next call-over list for listing."

I believe that although the Solicitor-General’s letter of 11.10.01 stated that their 2 files did not contain the s.5 notice letter, that this may have been a typing error because the last paragraph of this letter that I quoted in full above, clarified this issue – that one of the files may have had the s.5 notice letter, hence the State was agreeable to this matter being placed on the call-over list for a trial date to be obtained.

Should the Court let the issue rest because the State is not now pursuing the issue on the lack of notice. It is my respectful view that the Court cannot do that if notice, strictly speaking was not given. 

The question I should ask myself is can this Court conduct an inquiry into the apparent lack of notice when the Defendants have indicated that they will not pursue the application? This Court must control and conduct proceedings before it to ensure that the conduct of proceedings in subject to jurisdictional limits set by the Court. Injia .J (as he then was) discussed this issue in Karl Paul and Aruai Kispe and the Regional Manager – PNG Forest Authority, Lae and PNG Forest Authority N2085 delivered on 17.4.01 in Lae, where he said;

"The Court has wide powers to control the conduct of proceedings before it, subject of course, to jurisdictional limitations fixed by statute. It is in the inherent jurisdiction of the Court to take firm control of the proceedings to ensure that the business of the Court is conducted in an orderly and fair and timely manner and to ensure that justice is done in the particular case." 

His Honour, went further to discuss the Courts discretion when acting on its own initiative to screen and weed out claims. He said;

"There is a wide discretion vested in the Court by the National Court Rules to screen and weed out claims which do not disclose a reasonable cause of action, are frivolous and vexatious or an abuse of process of the Court (O.12 r.40) or the documents filed in Court is scandalous, irrelevant or otherwise oppressive (O.2 r.29) or on the ground of irregularity. That discretion is normally exercised upon application by an interested party. Nevertheless, it goes without saying that the Court may exercise that discretion on its own initiative. It is open to the Court to raise and determine questions concerning the regularity (O.1 r.1-9) or competency of proceedings at any stage of the proceedings with or without application by an interested party." 

His Honour, made reference to the case Siaman Piri & Anor v Simon Nusen & Ors N1375 (1995) and I too rely on that.

It is the Court’s duty to ensure that legislated procedures are complied with. In this case, the State did not proceed with the motion to dismiss because it believed notice was given. That does not mean the Court cannot deal with the matter. In my view it can because the motion was not dismissed after a hearing on the merits but because of non-attendance and an understanding reached by parties. In this case, the issue of lack of compliance with the s.5 notice is pleaded in the Defendant’s Defence. It reads;

"8.	Finally, the claim is statute-barred as no Notice of Claim has been given by the Plaintiffs under s.5 of the Claims By and Against the State Act 1996 nor was any leave been granted by the Attorney-General or the Court prior to institution of these proceedings."

Mr Umba’s letter to the Solicitor-General dated 4.1.99, is the purported notice. This letter was issued 4 months after the date the cause of action arose (on 16.3.98). Mr Umba said this was because his clients had not yet instructed him. I do not know when his clients instructed him but if he received instructions after the expiration of the 6 month mandatory period, he should have then asked for an extension of time from either the Principal Legal Adviser (s.5 (2)(c)(1) of the Claims Act) or from the Court. (s.5 (2) (c) (ii) of the Claims Act). But he did neither.

Notwithstanding, even if Mr Umba said he did give notice by his letter of 4.1.99, I do not have an affidavit of service satisfying s.5(3)(a)(b) of the Claims Act, that proper service of the notice was effected.

As it is, no claim exists. The Court will not hear a claim against the State that was not properly instituted. There are numerous authorities where Courts have held that when suing the State, it is mandatory that the Plaintiff comply with s.5 of the Claims Act. Some of these authorities are;

1.	Paul Tohian, Minister for Police and the State v Tau Lui SC 566 delivered on 27.8.98 per Kapi. DCJ, Sheehan .J and Jalina .J. This is an appeal against a decision of the National Court, Mount Hagen, where the presiding judge dismissed the State’s application to have the proceedings dismissed for lack of notice under s.5 of the Claims Act. The Presiding Judge held that because the Writ of Summons was filed within the 6 month mandatory period, that there was no requirement to give notice to the State. The Supreme Court held that this was incorrect, that notice must be given within the 6 month period.

The Supreme Court held there that:

"The purpose of the requirement to give notice remain the same whether or not the notice is required to be given within the 6 months or within such further period as may be granted by the Principal Legal Adviser or the Court. It is clear to us that the notice of intention to make a claim is a condition precedent to issuing a writ of summons in all circumstances."

By the same token, proper service under s.5 (3) (a) or (b) of the Claims Act is a condition precedent. I have earlier set this provision out in full. Personnel Service is mandatory, that it shall be personal service on the Attorney-General or the Solicitor-General or the personal secretary to these officers.

I have seen that mandatory service was not complied with in that there is no affidavit of service on the Court file to prove that service was properly effected. As I said in John Bokin and others v Sergeant Paul Dana and 2 others, WS 1505 of 2000, delivered on 13.6.01, at Mt Hagen, "… s.5 (3) (a) (b) of the Claims Act is to prevent or avoid queries being raised regarding receipt of the notice, as the State is responsible for the actions of so many people over the whole nation. One letter, if properly served, will prevent a lot of uncertainty." I adopt that same reasoning.

2.	William Toka v The Independent State of Papua New Guinea N1957 delivered on 4.5.00 by Sevua .J at Waigani.

In that case, the plaintiff applied for an extension of time to give notice to the State, a requirement under s.5(2) (c) of the Claims Act.

In that case, the Plaintiff had written a letter to the Police Commissioner within the mandatory 6 month period, alleging police brutality by certain policemen. The Court found this did not constitute notice under s.5 of the Claims Act because the letter of notice must be given to either the Attorney-General or the Solicitor-General. (my stress)

In relation to the granting of an extension of time, the Court found that this will involve the exercise of the Courts discretion to be exercised in his favour.

Undoubtedly, these are well established principles of law and there cannot be any doubt that the Plaintiff did not comply with procedure.

It should also be noted that the Plaintiff had the opportunity to apply for an extension of time but did not. In fact at the trial, I asked Defence Counsel if he had any submissions to make in relation to an application for an extension of time, relying on the affidavit material before me and the contents of the court file that I set out above, and he said he did not have any.

So in this case, because proper notice under s. 5 of the Claims Act was not given, there is no action on foot and the claim must be dismissed. Since 1999 to date, the plaintiff had ample opportunity to withdraw the summons and start afresh by either requesting an extension of time and in the event of refusal, to then apply to the court for such orders. But he did not do that. The court should not take a back seat in matters of this nature, but must be vigilant in its delivery of justice by ensuring that parties comply with stipulated, mandated procedure. This is one such case. The Plaintiffs may apply for an extension of time to give notice but that is a matter for them.

This claim is dismissed in its entirety for there being no cause of action. The Plaintiff shall pay the Defendants costs of the proceedings to be taxed if not agreed.
________________________________________________________________
Lawyers for the Plaintiff	:	Acanufa & Associates
Lawyers for the Defendant	:	No appearance for the Defendants