N3046

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO.754 OF 1999

BETWEEN:

KAY GENABORO
First Plaintiff

AND:

GETRUDE GENABORO an infant by her Next Friend KAY GENABORO
Second Plaintiff

AND:

SINA GENABORO an infant by her Next Friend KAY GENABORO
Third Plaintiff

AND:

ANDREW WAWIA
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Davani, .J
2005: 25 November
2006: 5 April

PRACTICE AND PROCEDURE – Dependency claim – proceedings statute-barred – extension of time for notice period only – Time period within which to file an action, mandatory – s. 31 Wrongs (Miscellaneous) Provisions Act Chap. 297.

PRACTICE AND PROCEDURE– Action against the State – extension of time to give notice – Notice must be given within extended period – proceedings to be filed, thereafter – s. 5 Claim By and Against the State.

Cases cited:
Paul Tohian, Minister for Police and the Independent State of Papua New Guinea v Tau Liu (1998) SC566;

Counsel:
K. Pilisa, for the plaintiffs
P. Palme, for the defendants/Applicants

5 April, 2006

RULING

1. DAVANI J: Before me is an amended Notice of Motion filed on 21 November, 2005, by Paraka Lawyers, for the defendants. The motion seeks orders that the proceedings be dismissed because the action by the plaintiffs is 'time barred', application made pursuant to s.31 of the Wrongs (Miscellaneous) Provisions Act Chap. 297 ('Wrongs Act'). The motion also seeks orders that the proceedings be dismissed for the plaintiffs' failure to issue s. 5 Notice under the Claims By and Against the State Act ('Claims Act').

Background and facts

2. The first, second and third plaintiffs are the widow and two (2) children, respectively, of Isaac Genaboro ('Deceased') who died after he was allegedly shot by policemen under the command of the first and second defendant. This incident occurred on 14 December, 1995, at the Asaro Valley, Watabung in the Eastern Highlands Province. The plaintiffs' claim is for damages and losses they suffered as a result of the deceased's death, and which death was as a result of the defendants' alleged negligence.

Application

3. This matter came before me on several occasions because Mr Pilisa had told the court on the first occasion he appeared, that the National Court, Waigani, had extended time for the plaintiffs to file their action. He said that was why he filed the Writ of Summons and Statement of Claim. On 26 August, 2005, I then ordered that Mr Pilisa produce to the court the application that was filed in Waigani seeking the extension of time. This he did, attached to his affidavit sworn on 24 November, 2005. The proceedings are described as OS 277 of 1999. Together with the Originating Summons is the supporting affidavit of Emily Dirua, lawyer, sworn on 3 June, 1999 and filed on 9 June, 1999.

4. In that application, which was filed on 3 June, 1999, at the National Court Waigani, the plaintiffs' former lawyer applied ex parte before Justice Los seeking the following orders, as pleaded in the Originating Summons, "Leave of court for extension of time to make a claim against the "third respondent" who in those proceedings was the Independent State of Papua New Guinea. 

5. Without the benefit of that court file, I am unable to ascertain if the application was served on the defendants or not. Mr Pilisa is also unable to assist the court. However on perusal of Los .J's written ruling of 15 July 1999, I note the appearances of Mr Iwai's for the respondents and Ms E. Dirua for the plaintiffs.

6. Los' .J's ruling is very important for the purposes of determining whether the extension of time was for the issuing of the s. 5 notice (CBASA) or to issue proceedings i.e. to file Writ of Summons and Statement of Claim.

7. It is important for this court to ascertain the basis on which Los .J ordered the extension of twenty-eight (28) days because this would then determine whether the 28 days extension was to give notice under the CBASA or to file Writ of Summons and Statement of Claim. His Honour Los .J states in his ruling;

"The applicants in both matters apply for an order extending time to issue proceedings against the respondents. The time limit is imposed by Claims By and Against the State section 5 (1) (2) ……

The State has objected to the application on the ground of lapse of time. That is to say the alleged events have happened a long time ago and it would be difficult for the State to investigate and collect evidence to defend these claims. It was explained on behalf of the applicants that it was an oversight by a junior lawyer that proceedings were not issued while the senior lawyer was out on election business.…

Further, great injustice may be caused for technical reasons the applicants are prevented from seeking redress before the court. I therefore order that an extension of 28 days be given to issue the proceedings".

8. The Writ of Summons and Statement of Claim in these proceedings was filed on 16 July, 1999, a day after the ruling. The issue then is, was notice given under s. 5 of the CBASA, before proceedings were issued? In my view, it is clear that Los .J's ruling is in relation to issue of the s. 5 notice because he makes specific reference to that section in his ruling.

9. So obviously, the plaintiffs' lawyers should firstly have given notice within the extended period. But he did not do that.

10. Are there any materials before me that would assist in determining this issue? Mr Pilisa referred me to his affidavit sworn and filed on 26 August, 2005, where he states at par. 4 and par. 5;

4. 	"The ruling specifically states that leave is granted to the plaintiffs to issue proceedings within 28 days and the plaintiff commenced this action within the 28 days ordered by the court.

5. 	In addition to above his Honour Justice Batari has made a ruling accepting substantive compliance with section 5 Notice under the Claims By and Against the State Act in the proceedings relating to the plaintiff Peter Mombulo".

11. Despite repeated questioning by the court on the production of an order or decision from Batari .J's court in relation to the s. 5 notice, Mr Pilisa was unable to assist the court. But the obvious fact is that if s. 5 notice was issued concerning the incident of 12 December, 1995, then that letter must be attached to an affidavit and put before the court to show that the mandatory preliminary procedures in relation to claims against the State have been complied with, in this case, service of the s. 5 Notice. This is referred to in s. 5 (3) (a) (b) of the CBASA where service of the notice must be by personal service. So because there is an issue now in relation to non-compliance with issuance of that notice, the onus is upon the plaintiff to produce that notice. The court cannot rely on a statement in an affidavit which does not even prove compliance with s. 5 of the CBASA.

12. I note also that in its Defence filed on 28 September, 1999, the third defendant through the Office of Solicitor-General specifically pleaded lack of notice under s. 5 and s. 21 of the CBASA and s. 31 of the Wrongs Act, that the claim is statute-barred. So the plaintiffs and their lawyers have known for sometime that this issue would definitely rise as a preliminary issue either at trial or on a motion hearing, and should have then ensured that this letter was sent to the State and a copy filed in the court file. But they did not do that.

13. Furthermore, it appears the plaintiffs' former lawyer was under the misapprehension that they could file proceedings without first giving notice but after reading Ms Emily Dirua's affidavit which was filed in support of the application for extension of time, I find that not to be the case. Her affidavit sworn on 3 June, 1999 and filed on 9 June, 1999 in proceedings OS 277 of 1999 states; 

10. "I then obtained instructions from his relatives and wife to issue proceedings which I did but which was struck out due to no notice given to the State to claim;

11. I have written to the Principal Legal Adviser of the third respondent to grant an extension of time but he has refused;

12. Although the proceedings are difficult it all occurred as a result of one act by the Police. If anything it was an oversight by the Lawyers and I pray that this Honourable court grant extension of time for the villagers to claim."

14. The affidavit demonstrates that Ms Dirua was applying for an extension of time to give notice. And this, the court granted – a twenty –eight (28) day extension.

15. There is affidavit before me sworn on 21 November, 2005, by Tau Tau, Professional Legal Assistant with the Solicitor-General's office, who deposes to not having sighted and registered letter giving notice (from the plaintiffs) under s. 5 of the CBASA. This only re-affirms my earlier observation that although having been given a 28 day extension to proceed with the claim, the plaintiffs' lawyers did not give notice but proceeded to issue Writ of Summons and Statement of Claim. And that is procedurally incorrect because as held by the Supreme Court in Paul Tohian, Minister for Police and the Independent State of Papua New Guinea v Tau Liu (1998) SC566;

"…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 the circumstances".

16. It is a condition precedent that Notice under s. 5 must be issued first before the filing of court proceedings.

17. And as to whether the claim is statute-barred (re s. 31 of the Wrongs Act), proceedings should never have been issued, without first giving notice. The plaintiff had twenty-eight (28) days within which to give notice under s. 5 of the CBASA, but did not do that. Los .J's ruling was not to extend time under s. 31 of the Wrongs Act. If that was the case, his Honour would have stated that in his ruling. But in any event, s. 31 of the Wrongs Act is mandatory. It states;

"31. Limitation of action under Part IV.

Only one action under this part lies for an in respect of the same subject matter of complaint and every such action must be commenced with three years after the death of the deceased person". (my emphasis)

18. The deceased died on 12 December, 1993. Extension of time was given on 15 July, 1999. The action was filed on 16 July, 1999. The plaintiffs are clearly out of time by approximately seven (7) months. Even if they had filed proceedings after giving notice under s. 5 of CBASA, their action would still have been statute-barred considering an action should have been filed three (3) years after the deceased's death i.e. on or before 12 December, 1996. With respect, Los .J's court should not have granted the extension of time then (on 15 July, 1999), because the matter was already statute-barred.

19. Additionally, I am of the view that Los .J would not have extended time under s. 31 of the Wrongs Act because that provision is mandatory in that all claims "must be" commenced with three years after the deceased's death. 

Conclusion

20. The obvious fact is that it is clearly the lawyer's negligence and carelessness that has resulted in this state of affairs for the plaintiff. The court cannot and should not under any circumstances be seen to be accepting lawyer negligence by making exceptions to the rule. We will only be setting precedents that will, in no time, become the norm and will only, in my view, encourage lawyers to become more lax and careless.

21. I find that notice under s. 5 of the CBASA was not given, despite the fact that the court had given the plaintiffs a 28 day extension. I also find that the claim is statute-barred because the action should have been filed on or before 12 December, 1996. Again, I reiterate that even if notice was given, the claim was already statute-barred.

22. I will not order costs of the proceedings because the plaintiffs' former lawyer no longer practices law. It would have been proper under the present circumstances to order that the plaintiffs' (former) lawyer pay the costs of the proceedings on an indemnity basis. I am unable to do that now but the order I issue in relation to costs is a reflection of the courts consideration of the plaintiffs' total reliance on their former lawyers ability to properly represent and advise them which they clearly failed to do. The plaintiffs will only pay the costs of the application.

These are the courts formal orders;

1.	The plaintiffs claim is dismissed in its entirety;

2.	The plaintiff shall pay the costs of the application.
_____________________________________________________________________
Pilisa Lawyers: Lawyer for the plaintiffs
Paraka Lawyers: Lawyer for the defendants/Applicants