N2936

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1154 of 2002

BETWEEN:

MARK RONARA & 171 OTHERS
(Plaintiffs)

AND:

MANASUPE ZURENUOC & 7 OTHERS
(Defendants)

LAE	 : 	Gabi, J
2005	 :	20th May & 16th November

PRACTICE AND PROCEDURE – Pleadings – Statement of Claim – Multiple plaintiffs – Failure to plead necessary facts to constitute a complete cause of action – Leave granted to amend statement of claim but defects not cured – proceedings must be dismissed not stayed under O 12 r 40 of the National Court Rules.

CASES CITED:
Tohian and The State v Tau Liu SC566
Graham Rundle vs Motor Vehicle Insurance (PNG) Trust No. (1) [1988] PNGLR 20
Eliakim Laki & Others vs Maurice Alaluku, Utula Samana and the State (2000) N2001
Read vs Brown (1888) 22 QBD 128
Patterson Lowa v Akipe & Ors [1992] PNGLR 399
Wenlock vs Moloney [1965] 2 All ER 871
PNG Forest Products and Another vs The State and Another [1992] PNGLR 85
Garo Kei vs Motor Vehicle Insurance (PNG) Trust [1992] PNGLR 195
William Maki vs Michael Pamba and PNG Motors [1993] PNGLR 337

COUNSEL:
R. Uware, for the plaintiffs
G. Pipike, for the defendants (except the fourth defendant)

16th November, 2005

DECISION

GABI, J: By a notice of motion filed on 5th March, 2004, the defendants applied for dismissal of the entire proceedings for failure to give notice of the claim pursuant to s.5 of the Claims By and Against the State Act (hereinafter "the Claims Act") and/or for not disclosing a cause of action pursuant to O 12 r 40 of the National Court Rules.

The defendants rely on the following affidavits: the affidavit of Jimmy Bokomi sworn on 11th December, 2002 and filed on 8th January, 2003; the affidavit of Gordon Pipike sworn on 4th and filed on 5th March, 2004; the affidavit of Tau Tau sworn on 20th February and filed on 5th March, 2004; the affidavit of Gordon Pipike sworn on 11th and filed on 12th May, 2004; and the affidavit of Robert Mugarenang sworn and filed on 11th November, 2004. The plaintiffs opposed the application and rely on the two (2) affidavits of Isar Watta sworn on 15th November, 2002, and 24th November, 2004 respectively.

Background

On or about 26th January, 2002, the defendants conducted an eviction exercise to evict settlers at 2 Mile, 3 Mile and 4 Mile settlements in Lae. It is alleged that the exercise was code-named "Klinim Ples". On 4th February, 2002, the plaintiffs, without the assistance of lawyers, instituted the proceedings OS No. 56 of 2002. On 14th February, 2002, the Public Solicitor acting for the plaintiffs gave notice of claim under s.5 of the Claims Act. On 27th February, 2002, the Solicitor General wrote to the Public Solicitor acknowledging receipt of the notice of claim. On 12th November, 2002, the National Court dismissed the proceedings OS No. 56 of 2002. The order dismissing the proceedings is not before me to ascertain the grounds for dismissal. On 15th November, 2002, the plaintiffs filed the current proceedings WS No. 1154 of 2002. At the same time, the plaintiffs filed a notice of motion seeking interim injunctive orders. Interim orders were granted restraining the defendants from conducting further eviction exercises until the determination of the substantive matter.

The Writ of Summons was duly served on the defendants. On 22nd November, 2002, the third defendant filed its notice of intention to defend. On 5th December, 2002, the third defendant’s defence was filed. On 9th December, 2002, the Solicitor General filed a notice of intention to defend on behalf of all the defendants. On 8th January, 2003, the Solicitor General filed a second notice of intention to defend and a verified defence on behalf of all the defendants except the fourth defendant. The Solicitor General also filed a notice of motion to dismiss the proceedings on the basis that the names of the plaintiffs were not disclosed and that the proceedings disclose no cause of action. On 19th February, 2003, the Public Solicitor filed an affidavit disclosing the names of the one hundred and seventy-one (171) claimants. On 21st January, 2004, Paul Paraka Lawyers filed a notice of change of lawyers. On 5th March, 2004, Paul Paraka Lawyers filed this application on notice seeking to dismiss the entire proceedings. On 13th April, 2004, the Public Solicitor filed a notice of motion seeking leave to amend the writ to name proper and additional parties. Leave was granted. On 3rd September, 2004, a document titled "amendment" was filed by the Public Solicitor.

Notice of Claim

The defendants argue that the notice given on 14th February, 2002, relates to the earlier action OS No. 56 of 2002, which had been dismissed. It does not apply to this proceedings WS No. 1154 of 2002. As such, no notice has been given for the current proceedings.

Section 5 of the Claims Act provides:

"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 Subsection (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)."

The law in respect of s.5 notice is settled in this jurisdiction. In Tohian and The State v Tau Liu SC566, the Supreme Court held that a notice of intention to make a claim is a condition precedent to issuing a Writ of Summons in all circumstances. Notice under s.5 must precede the claim. The notice must be given within six months after the occurrence which gives rise to the claim. A claimant has no cause of action against the State unless the notice of claim is given. The service of an originating process on the State is not a notice of intention to make a claim under s.5 of the Claims Act. The originating process is the claim itself (see also Graham Rundle vs Motor Vehicle Insurance (PNG) Trust No. (1) [1988] PNGLR 20).

In this case, the plaintiffs fearing further eviction exercises by the defendants filed the action OS No. 56 of 2002 on 4th February, 2002. On 14th February, 2002, notice of claim was given. OS No. 56 of 2002 was dismissed on 12th November, 2002. On 15th November, 2002, the plaintiffs instituted this proceedings WS No. 1154 of 2002. It is clear that the notice was given within six (6) months. It is equally clear that OS No. 56 of 2002 was instituted without notice being given to the State. The notice of 14th February, 2002, was given prior to the commencement of the current proceedings on 15th November, 2002. I am satisfied that the plaintiffs have given notice of the claim.

Cause of Action

Counsel for the defendants submitted that under O 8 r 33(1), it is mandatory for each of the plaintiffs to plead particulars of the injuries they sustained and the losses and damages they are seeking against the defendants. He argued that the pleading in this case is too general in that each of the plaintiffs have not pleaded their claim sufficiently against each of the defendants and referred me to Eliakim Laki & Others vs Maurice Alaluku, Utula Samana and the State (2000) N2001. In that case, His Honour, Sevua J dismissed the proceedings for disclosing no cause of action on the grounds that what was alleged against each of the defendants was unclear thereby denying them the opportunity to adequately respond.

In Kiee Toap vs The State & Others (2004) N2731, His Honour Cannings, J set out the principles that emerge from PNG Forest Products Pty Ltd & Another vs The State & Another [1992] PNGLR 85; Gabriel Apio Irafawe vs Yauwe Riyong (1999) N1915; and Eliakim Laki and 167 Others vs Maurice Alakuku & Others (supra). He said a proceedings disclosed no cause of action if the cause of action is obviously and almost incontestably bad, or the statement of claim is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleading, or the statement of claim leaves a defendant guessing as to what the plaintiff’s allegations are. These principles are particularly relevant to this action.

What is a cause of action? In Read vs Brown (1888) 22 QBD 128, the Court of Appeal considered the meaning of the phrase "cause of action". Lord Esher MR, with whom Fry LJ and Lopes LJ agreed, said at p.131 thus:

"It has been defined in Cooke v Gill to be this: every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved. It has been suggested today in argument that this definition is too broad, but I cannot assent to this, and I think that the definition is right."

The phrase is also the subject of judicial consideration in this jurisdiction. In Patterson Lowa vs Akipe & Ors [1992] PNGLR 399, The Supreme Court said at page 429 thus: 

"The phrase ‘cause of action’ has two components. First, there must be a right which is given by a law, such as, entitlement to reasonable damages for breach of human rights under s.58 of the Constitution. This is what is referred to as the ‘form of action.’ Secondly, the pleadings must disclose all the necessary facts which give rise to the form of action."

It is obvious that a cause of action consists of a right given by a law and a disclosure of all the relevant and necessary facts. (See also Gia Kewa Piel v Eric Ranpi [1996] PNGLR 396).

In the proceedings OS No. 56 of 2002, which was dismissed, each of the plaintiffs filed affidavits. At the commencement of the current proceedings WS No. 1154 of 2002 on 15th November, 2002, the plaintiffs filed a notice of motion seeking an order to adopt into this proceedings the affidavits of the plaintiffs filed in OS No. 56 of 2002. That application has not been made and is still pending.

The plaintiffs are claiming damages for breaches of various provisions of the Constitution (ss. 36, 37, 39, 53 and 197). It is clear to me that the right to compensation for breach of human rights is created by section 58 of the Constitution. However, the relevant facts needed to bring the cause of action within the section must be sufficiently pleaded. In other words, the plaintiffs must state the facts on which they will rely to bring the action within the terms of the law (see Garo Kei vs Motor Vehicle Insurance (PNG) Trust [1992] PNGLR 195).

The plaintiff’s cause of action appears to be that on or about 26th January, 2002, the defendants conducted raids and an eviction exercise at Yango, 2 Mile, 3 Mile and 4 Mile settlements at Lae and forcefully evicted them from the land (Statement of Claim, para. 13). As a result they suffered damages and losses (paras 17, 18, 19, 21, & 22). The plaintiffs made allegations of assault, inhuman treatment and loss against all the defendants. The details or particulars are not pleaded. They claimed that the details will be disclosed by each of the plaintiffs at the trial. I agree with Counsel for the defendants that the pleading in this case is too general. The particulars of losses and damages suffered by each of the plaintiffs have not been pleaded nor have they pleaded the particulars of the acts of each of the defendants which was alleged to have been committed against them. In addition, there is no evidence that the principal plaintiff, Mark Ronara, has been authorized by each of the plaintiffs to institute this proceedings. Initially the plaintiffs were not named in the Writ. On 3rd September, 2004, a document titled "amendment" was filed which contained a schedule of names annexed to the Writ. The "amendment" increased the number of defendants from eight (8) to seventeen (17) and reduced the number of plaintiffs from one hundred and seventy two (172) to one hundred and sixty eight (168). There is no evidence that the additional nine (9) defendants have been served the Writ of Summons. Even if they were served, it is not known what is alleged against each of them.

I am of the view that in this case, the plaintiffs have not sufficiently pleaded the facts. I agree that the pleading is too general. Is this a sufficient reason for me to dismiss the proceedings?

Counsel for the plaintiffs argued that the cause of action is established by the Constitution. He submitted that if the proceedings discloses some cause of action, the fact that the claim is weak or unlikely to succeed is not a sufficient ground for dismissing it and referred me to Wenlock vs Moloney [1965] 2 All ER 871. In that case, the proceedings disclosed a cause of action. Although the claim seemed unlikely to succeed, the case was not a plain and obvious one. The defendants applied to dismiss the proceedings on the grounds that the pleadings disclosed no reasonable cause of action and were vexatious and an abuse of process. Ten (10) affidavits were filed on this application. The Master heard and tried the case on affidavit evidence. There was no oral evidence or cross-examination. The action was dismissed. The Court of Appeal allowed the appeal because the course taken by the Master amounted to a trial in chambers, without discovery, oral evidence or cross examination, and so was neither authorized by the rules nor a proper exercise of the inherent jurisdiction of the Court.

The Courts have tended to order amendment of pleadings or stay proceedings pending action by a party to the proceedings to cure a defect or an anomaly. In William Maki vs Michael Pamba and PNG Motors [1993] PNGLR 337, His Honour Woods, J struck out the statement of claim and the document "particulars of fraud" on the grounds that the particulars of fraud were never pleaded to satisfy the requirements of O 8 r 30. The proceeding was stayed to allow the plaintiff to "repair the situation." His Honour said at page 339:

"Whilst this Court has an inherent jurisdiction to control proceedings before it and prevent any abuse of process before it and strike out any proceedings that are an abuse or frivolous and vexatious, and this inherent jurisdiction is a jurisdiction quite apart from the rules of court, such inherent jurisdiction is one that should not be exercised too readily, particularly if the exercise of it effectively puts an end to the action."

In PNG Forest Products and Another vs The State and Another (supra), His Honour Sheehan, J briefly reviewed the history of decided cases where parties have attempted to strike out proceedings. He said at page 88:

"There is a long and very full history of decided cases where one party or another has sought to strike out the proceedings of an opponent to obviate the need for trial. As long ago as 1887 in Republic of Peru vs Peruvian Guano Company (1887) 36 Ch D 489, Chitty, J said:

if, notwithstanding defects in the pleading, … the Court is of the view that a substantial case is presented the Court should, I think, decline to strike out that pleading: but when the pleading discloses a case which the Court is satisfied will not succeed, then it should strike it out and put a summary end to the litigation."

His Honour went on to say that a party has a right to have his case heard, as guaranteed by the Constitution and the laws of this country. Such a right cannot be lightly set aside. Hence, the National Court Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. An action should only be struck out in cases where "the cause of action is obviously and almost incontestably bad." In other words, an action should be dismissed if it is "plain and obvious" that the plaintiff cannot succeed.

The evidence before me is that the lawyers for the plaintiffs had prepared affidavits showing the losses suffered by each of the plaintiffs in OS No. 56 of 2002. They are aware of the case for each of the plaintiffs. They have been allowed to amend the Writ of Summons and the Statement of Claim. However, the defects or the deficiencies in the pleading have not been addressed. I am of the view that where the plaintiffs have been given an opportunity to "repair the situation" or cure the defects but have not availed themselves of such opportunity, the proceedings must be dismissed, not stayed under O 12 r 40 of the National Court Rules. I, therefore, dismiss the proceedings with costs.
__________________________________________________________________
Lawyer for the Plaintiffs		:	Public Solicitor’s Office
Lawyer for the Defendants		:	Paul Paraka Lawyers