N2736

PAPUA NEW GUINEA

[In the National Court of Justice in Madang]

WS 1107 OF 2002

Between:

YAWASORO POULTRY FARM
(Plaintiff)

And:

THE PNG DEFENCE FORCE
(First Defendant)

And

THE STATE
(Second Defendant)

MADANG : SAWONG, J.
2004 : 13TH & 19TH OCTOBER

PRACTICE & PROCEDURE – Notice of Intention to make a claim against The State – Failure to give notice – s.5 Claims By and Against The State Act.

The Claims By and Against The State, s.5, provides that no action to enforce any claims against The State lies against The State unless a notice in writing of intention to make a claim is given in accordance with this section by the claimant. 

The Departmental Head of the department responsible for justice matters or the Solicitor General. Section 5 (2) provides that 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 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 Advisor, or

(ii) the Court before which the action is instituted, on sufficient cause being shown allows.

HELD:

(1)	On a proper construction of s.5 a Notice of Intention to make a claim is mandatory.
(2)	Notice of Intention to make a claim is a condition precedent to the institution or commencement of an action to enforce any claim against The State. 

CASES CITED:

Paul Tohian v Tau Liu, (Unreported Judgment of the Supreme Court, No. SC566);
Minato v Philip Kumo & The State (Unreported Judgment of the National Court No. N1768);
Daniel Hewali v PNG Police Force & The State (2002) (Unreported Judgment of the National Court No. N2233);
John Bokin v The State (2001) (Unreported Judgment of the National Court No. N2111);
Olympic Stationery Ltd. v The State (2001) (Unreported Judgment of the National Court No. N2194);
Paul & Mary Bal v Kenny Taiya (2003) (Unreported Judgment of the National Court No. N2481).

COUNSEL:
NO APPEARANCE for Plaintiff
MR. L. VAVA, for the Defendants

DECISION

19th October, 2004

SAWONG, J: By an amended Notice of Motion the applicant/defendant seeks the following orders:

1.	Dismissal of the entire proceedings for breach of s.5 of the claims by and against The State Act.
2.	In the alternative, dismissal of proceedings for disclosing no reasonable cause of action pursuant to O.12 r 40 of the National Court Rules. 
3.	Further in the alternative, the first defendant be removed as a party to the proceedings pursuant to O.5 r 9 of the National Court Rules.
4.	Alternatively, proceedings be dismissed for want of prosecution pursuant to O.10 r5 of the National Court Rules.
5.	Costs.

At the hearing of the Motion there was no appearance by either the counsel for the plaintiff or a representative of the plaintiff despite being informed by the counsel for the applicant. The matter therefore preceded ex parte. 

In support of the Motion the applicant relies on the evidence contained in the following affidavits:

(1)	The affidavit of Luke Vava Jnr sworn and filed on the 27th July, 2004.
(2)	Supplementary affidavit of Luke Vava Jnr sworn and filed on the 29th September, 2004.
(3)	Affidavit of Tau Tau sworn on the 17th September, 2004 and filed on the 29th September, 2004
(4)	The affidavit of Francis Kuvi sworn on the 17th September, 2004 and filed on the 29th September, 2004.

For reasons that will become obvious later on, I do not propose to deal with the alternative grounds. I propose to deal with the first ground of the application, for in my view that will be a determining of the proceedings.

Mr Vava submitted that a breach of the mandatory requirement to give notice under s.5 of the Act, would automatically amount to the proceedings being time barred, resulting in its dismissal. He relies on Minato v Philip Kumo & The State (Unreported Judgment of the National Court No. N1768), Daniel Hewali v PNG Police Force & The State (2002) (Unreported Judgment of the National Court No. N2233), John Bokin v The State (2001) (Unreported Judgment of the National Court No. N2111), Olympic Stationery Ltd. v The State (2001) (Unreported Judgment of the National Court No. N2194) and Paul & Mary Bal v Kenny Taiya (2003) (Unreported Judgment of the National Court No. N2481).

Section 5 of the Claims By and Against The State Act places a mandatory obligation on a party wishing to enforce any claim against The State to give a notice of his or her intention to make a claim against The State. Such a notice must be made within 6 months from the date on which the cause of action arose or in the case of a alleged breach of contract, within 6 months from the date on which the party became aware of the breach occurring. It is a mandatory terms that, such a notice must be given within the time prescribed to either the Departmental Head of the department responsible for justice matters or the Solicitor General before instituting any proceedings against The State. 

All those decisions followed and applied the principles decided by the Supreme Court relating to this particular provision in Paul Tohian v Tau Liu (Unreported Judgment of the Supreme Court No. SC566). In the course of its judgment the Court said at p.2:

"In our view the trial judge was correct in holding that the provision under consideration is similar to s.54 of the MVIT Act. However, he fell into error when he did not follow the reasoning in (Randall v MVIT). The purpose of the requirement to give notice remains the same whether or not the notice is required to be given within 6 months or within such period as may be granted by the Principle Legal Advisor 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." (My emphasis).

In the present case there is evidence from Francis Kuvi, the Acting Solicitor General, who deposes that he conducted a search of their manual and electronic records and discovered that no notice had been given to the Solicitor General or his personal secretary. He therefore held the opinion that the plaintiff had not complied with the mandatory requirement of s.5 of the Act. 

His evidence is supported by the evidence of Tau Tau who is the professional Legal Assistant to the Solicitor General. He too states in his affidavit that after a thorough check of their records of the department, he discovered that no Notice of Intention to make a Claim against The State had been given by the plaintiff. 

It is obvious that the plaintiff has not complied with the mandatory obligation on it. In other words the plaintiff has not complied with the mandatory requirements of s.5 of the Act, in that it had not given the required notice at all. Consequently, the proceedings is incompetent and in breach of s.5 of the Act. 

I therefore order that the entire proceedings be dismissed with costs. As I have alluded to earlier, in view of the conclusion that I have arrived at, it is unnecessary to consider the alternative arguments. 

_____________________________________________________________________
LAWYERS FOR THE PLAINTIFF : KETAN LAWYERS
LAWYERS FOR THE 2ND DEFENDANT : PARAKA LAWYERS