N3031

PAPUA NEW GUINEA
(NATIONAL COURT OF JUSTICE)

WS1425 OF 2004

IVAN SAUN
Plaintiff

AND

CHIEF INSPECTOR HODGES ETTE
First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

LAY J
WAIGANI
2005: 16th March, 24th June

Civil proceedings-res judicata-decision on the merits-Claims by and Against the State Act s5- decision on condition precedent to cause of action-whether decision establishes res judicata for whole action.

Cases Cited:

Menapo Tulia and Others v Eke Lama and Others N1824; N1402 Tolom Abai v The State; N1804 Tin Siew Tan v Pelsin; Paul Tohian v Tau Liu SC566; N1804 Tin Siew Tan v Pelsin; N2143 Koitaki Farms Ltd v Kenge, N2694 Mark Ekepa & Ors v William Gaupe & Ors.

Facts

The Plaintiff issued proceedings against the Defendants which were struck out because notice had not been given pursuant to the Claims by and Against the State Act s5. The Plaintiff gave notice under the Act and commenced fresh proceedings for the same cause. The Defendants applied to strike out the action on the basis that the new action was res judicata.

Held

Notice pursuant to Claims by and Against the State Act s5 was a condition precedent to the right to issue the writ. A decision on a condition precedent is not a decision on the merits of the substantive action. There was no finding on the merits and the doctrine of res judicata did not apply.

Appearances

Chief Inspector Hodges Ette in person
Mr J Yagi for the Plaintiff

LAY J. The Plaintiff issued proceedings entitled WS No 1486 of 2003 against the Defendants which were struck out for failing to give a notice pursuant to s5 of the Claims by and Against the State Act. The Plaintiff obtained an extension of time to serve a s5 notice, served it and then commenced these proceedings, which claim essentially the same relief as the earlier dismissed proceedings.

The First Defendant submits that these proceedings are res judicata. He relies upon statements of principle cited in Menapo Tulia and Others v Eke Lama and Others1; in particular the following passage from Halsbury’s Law of England2:

"In order that a defence of res judicata may succeed it is necessary to show not only that the cause of action was the same but also that the plaintiff had the opportunity to recovering and but for his own fault might have recovered in the first action that which he seeks to recover in the second. A plea of res judicata must show either an actual merger or that the same point has been actually decided between the parties."

The last sentence of that passage is of particular importance. What it means is that there must be a decision on the merits of the cause of action. There must be "a final judgement by a competent court on the merits of a claim"3. Res judicata has no application if, though the same facts have been litigated in other proceedings, the cause of action is a different one4 but it does apply where the same facts are litigated on the same claim and judgement recovered in the first action5. It is settled law that once a court of competent jurisdiction has determined an issue as between two parties, neither of the parties is at any liberty to issue fresh proceedings raising the same issue again. However, in order to succeed in a claim for res judicata there must be evidence or proof of the decision finally disposing of the matter in dispute as between the parties on its merits.6 There must be finality; consequently the principle does not apply to interim orders7.

The Supreme Court considered s5 of the Claims by and Against the State Act in Paul Tohian v Tau Liu8:

"The provision under consideration is very similar to s 54 of the Motor Vehicles (Third Party Insurance) Act (Cap 295) (hereinafter referred to as the MVITA). The Supreme Court has considered that provision and concluded that service of notice of intention to make a claim under the MVITA is a mandatory condition precedent to the validity of any writ of summons filed against the Trust (see Rundle v MVIT [1988] PNGLR 20)…(then in respect of s5 of the Claims by and Against the State Act the Court said)… 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."

The notice of intention to make a claim is not part of the cause of action; it is a condition precedent to issue of the writ. The order in the earlier proceedings WS No 1486 of 2003 did not involve any decision on the merits of the claim between the parties. It only involved a decision on the condition precedent to bringing the action. The res judicata doctrine has no application to these proceedings because there has been no finding on the merits of the claim.

The First Defendant also moved the Court to strike out the proceedings pursuant to O8 r27 and O12 r40. That application was based on the submission that "the cause of action was dismissed in its entirety on 19th December 2003". It is true that the proceedings were dismissed; it is not true that there was any ruling on the merits of the cause of action. That the Plaintiff has cured the defect in the first proceedings and has commenced again is not an abuse of the process of the court.

ORDERS:

1. The First Defendant’s application is refused.
2. The First Defendant shall pay the Plaintiffs costs of the application.

_________

Lawyers for the Applicant First Defendant: in person
Lawyers for the Respondent Plaintiff: Yagi Lawyers