N3880
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 16 OF 2004

BETWEEN

CHRIS WAIM KAROGOL acting on his own behalf and as representative of members of Konoma Clan, Dinga No. 1, Simbu Province
Plaintiffs

AND

SIMBU PROVINCIAL GOVERNMENT
First Defendant

Waigani: Kandakasi, J.
2006:	17th March, 20th December

CAUSES OF ACTION – Claims against the State and provincial government – Provincial government agreed to settle claim for damages – Part payment of damages – Balance not paid – Proceedings issued to enforce – Different cause of action from original claim for damages – Separate notice of intention to make a claim against the State or the provincial government required – Notice condition precedent – No notice given - No cause of action – Claim dismissed – Section 5 Claims By and Against the State Act – Section 4 Claims by and Against Simbu Provincial Government.

Cases Cited:

SCR No. 1 of 1998: Reservation Pursuant to Section 15 of the Supreme Court Act (2001) SC672.
Mision Asiki v. Manasupe Zurenuoc, Provincial Administrator, Morobe Provincial Administration and The Independent State of Papua New Guinea (2005) SC797.

Counsel:

D.T. Mamu, for the Defendant/Applicants 
D. Kombagle, for the Plaintiffs/Respondents

20th December, 2006

1.	KANDAKASI J:	 By notice of motion filed on 29th December 2005, the defendants sought two orders, firstly, to add the State as a defendant to these proceedings and secondly, a dismissal of the proceedings for failure to meet the notice requirements under the Claims By and Against the State Act 1986 and s. 4 of the Claims By and Against the Simbu Provincial Government Act. Subsequently however, on 14th March 2006, the defendant abandoned the first order it sought in its notice of motion.

2.	On 17th March 2006, this matter came before me for a hearing of the balance of the defendant's application. By consent of the parties, the Court directed them to file and serve their respective submission in respect of the application. Then once the submissions were filed, the Court would consider the submissions and come to a decision when it is ready. Submissions have been thus filed and I have carefully considered them along with the supporting affidavit materials on file and I have now come to a decision on the application. 

3.	The defendant's application is based on s. 5 of the Claims By and Against the State Act and s. 4 of the Claims by and Against the Simbu Provincial Government Act. These provisions are in identical terms. They effectively provide that unless notice of one's intention to make a claim against the State and or the Simbu Provincial Government has been first given within 6 months from the date when a cause of action accrued or within such further time as may be extended administratively or by the Court, no cause of action lies as against them. 

4.	In this case, there is no dispute that the plaintiffs did not give any notice in accordance with the requirements of the relevant legislation under consideration. However, the plaintiffs argue that, they were not required to give any notice because they are suing on the failure of the Simbu Provincial Government to pay the balance of a compensation that government agreed to pay following a compensation claim by them. In other words, they claim that, they are suing on a compensation which has been part paid and not on a new and or separate claim for which notice may be required.

5.	The background to the claim is this. The plaintiffs claim that, they made a claim for compensation for alleged negligence of the defendant's servants when carrying out road works which covered a cemetery belonging to the plaintiffs. They also claim that, representatives of the defendant visited the plaintiffs and agreed to pay a sum of K25, 900.00 to the plaintiffs in compensation. In accordance with that alleged agreement, the defendants paid a sum of K6,000.00 on or about 27th October 1998 and made a further payment of K2,000.00 in May 2002. Further, the plaintiffs claim that, despite numerous demands, the defendant has not paid up the balance. These proceedings were therefore issued seeking a recovery of the balance. Hence, it is clear that the plaintiffs are suing for an alleged breach of contract and to recover an alleged debt which arises out of the original claim for compensation.

6.	The provisions of s.5 of the Claims by and against the State state in clear terms that "no action to enforce any claim against" the State "lies … unless notice in writing of intention to make a claim is given in accordance with" this provision. Many decisions of both this and the Supreme Court make it clear that, the requirement for notice is a condition precedent to an action against the State. They also make it clear that, where this condition precedent is not met no cause of action accrues to a plaintiff and any proceedings issue to pursue a claim should be dismissed. 

Also, a number of decisions of this and the Supreme Court seem to agree following on from the decision of the Supreme Court in SCR No. 1 of 1998: Reservation Pursuant to Section 15 of the Supreme Court Act that the same legal position applies to provincial governments which are for the purposes of the Claims By and Against the State Act, covered and are part of the term "State". This is strengthened and reinforced by s. 4 of the Claims By and Against the Simbu Provincial Government Act, in the case of claims against the Simbu Provincial Government.

7.	The plaintiffs have not drawn my attention to any provision in the Claims By and Against the State Act or the Claims By and Against the Simbu Provincial Government that exempts them from giving the required notice as is argued for by them. The only known cases in which the requirements for notice do not apply is as confirmed by the Supreme Court in Mision Asiki v. Manasupe Zurenuoc, Provincial Administrator, Morobe Provincial Administration and The Independent State of Papua New Guinea. There, the Court held that, the requirement for notice does not apply to actions seeking orders in the nature of prerogative writs commenced under Order 16 of the National Court Rules, as Order 16 provides a comprehensive and exclusive procedure for judicial review. 

8.	In this case, the alleged original claim for compensation was concluded and ceased when the defendants allegedly agreed to meet that claim and made payments in accordance with that alleged agreement. Then if the defendants defaulted as is alleged by the plaintiffs, in my view, a new cause of action accrued on the bases of the alleged agreement. Accordingly, it was incumbent on the plaintiffs to give notice of their intention to make a claim against the defendant before issuing the proceedings. However, the plaintiffs failed to give notice as were required of them under the Claims By and Against the State Act as well as the Claims By and Against the Simbu Provincial Government Act. Consequently, they failed to comply with a condition precedent to their action. Hence, going by the wording in the legislation as elaborated and applied by both this and the Supreme Courts, I find that, there is no cause of action for the plaintiffs to pursue against the defendant. Accordingly, I order a dismissal of the claim with costs against the plaintiffs to be agreed within 14 days and failing that, taxation to follow.
___________________________________________________________
Paul Paraka Lawyers: Lawyers for the Defendant/ Applicant
Parua Lawyers: Lawyers for the Plaintiff/Respondent