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Kami v Department of Works [2010] PGNC 106; N4144 (1 October 2010)

N4144


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO. 497 OF 1998


BETWEEN:


JOHN KAMI
Plaintiff


V


AND:


DEPARTMENT OF WORKS
First Defendant


AND:


THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant


Wewak: Davani .J
2010: 22nd September
1st October


PRACTISE AND PROCEDURE – What are the requirements of a s.5 Notice, discussed – s.5 Claims By and Against the State Act 1996


BUSINESS NAME – Who can sue – the proper plaintiff test, discussed – ss.2, 3, 4, 25 of Business Names Act 1963


BUSINESS NAME – Individual suing for losses suffered by business – Business should be suing, not the person or individual


Facts


Plaintiff filed a Writ of Summons and Statement of Claim on or about 2nd June, 1998. On 9th December, 1998, the plaintiff then filed a purported Notice under s.5 of the Claims By and Against the State Act.


The plaintiff is also suing as an individual when the claim is for losses suffered by a business.


Issues


  1. Was proper notice under s.5 of the Claims By and Against the State Act given within the mandatory 6 months period from when the cause of action arose?
  2. Is the plaintiff the proper plaintiff to sue considering the losses were suffered by a business rather than an individual?

Reasoning


  1. Notice was not issued within the 6 months period from when the cause of action arose. The Notice that was issued, was filed after the Writ of Summons and Statement of Claim was filed, therefore is defective and irregular.
  2. The named plaintiff is not the proper plaintiff to sue because it is the business name that should be suing as the losses were allegedly suffered by it.

Orders


  1. The claim is dismissed in its entirety.
  2. Each party to pay their own costs of the proceedings.

Case Cited:


Papua New Guinea cases
Ruth Kaurigova v Dr Russo Perone & ors [2008] PGNC 45; SC964;
Dennis McEnroe v Felix Mou [1981] PNGLR 222;
Graham Rundle v Motor Vehicle Insurance (PNG) Trust No 1 [1988] PNGLR 20;
MVIT v Dixon Popo (1992) N1048;
A.G.C (Pacific) Limited v. Woo Textile International Ltd [1992] PNGLR 100; N1061;
Joy Kawai, an infant by her next friend Kawai Takame v Motor Vehicles Insurance (PNG) Trust (1998) SC588;
MVIT v Insurance Commissioner (1998) PGNC 33; N1725;
Kamapu Minato v Philip Kumo & The State [1998] PGNC 102; N1768;
Paul Tohian & ors v Tau Liu (1998) PNSC 25; SC566;
William Trnka v The State (2000) PGNC10 N1957;
John Bokin v Sergeant Paul Dana & 2 Ors (2001) N2111;
Olympic Stationery Limited trading as PNG Stationery and Office Supplies v The State [2001] PGNC 24; N2194;
Daniel Hewali v Papua New Guinea Police Force [2002] PGNC 95; N2233;
Dickson Muniakali v Motor Vehicles Insurance Ltd [2004] PGSC 10; SC764;
Philip Benjamin v. Department of Works & The Independent State of Papua New Guinea (2005) N2874;
State & 3 Ors v Brian Josiah & 80 Ors [2005] PGSC 18; SC792;
Getrude Genaboro & Sina Genaboro v Andrew Wawia & The State [2006] PGNC 23; N3046;
William Wrondimi & Ors v Alphones Vokene (2007) N3148;
JA Construction Ltd v Ipisa Wanega & 2 Ors ( 2007) PGNC 73; N3243;
Nicholas Namba and Daniel Maip v. Mondo & 3 ors [2008] PGNC 15; N3288;
Bernard Uriap v Simon Tokivung & & 3 Ors [2008] PGNC 119; N3444;
Jerry Kusa v Stephen Raphael, Acting Secretary Department of Defence & 2 Ors [2008] PGNC 34; N3304;
Nicholas Regglie v Director General National Narcotics Bureau & 2 Ors [2009] PGNC 187; N3805;
Leo Sangundi and 523 Others –v- Sakwar Kasieng, Gari Baki and the State, WS. No. 99 of 2009, Batari J, (2009);
John Sil Kama & 302 others –v- Timothy Mataro & State: WS No. 432 of 2005 (Unreported, 9th & 16th October, 2009).


Overseas Cases
Foss v. Harbottle [1843] EngR 478; [1843] 2 Hare 461 ch 12 LJ 319;
Hansard Spruce Mills Ltd (1954) 4 D.L.P. 590;


Counsel:
Mr D. Wa'au, for the plaintiff
Mr. S. Koim, for the first and second defendants


DECISION


1st October, 2010


1. DAVANI .J: Before me for trial on both liability and quantum is the plaintiff's claim based on a Writ of Summons and Statement of Claim filed in the National Court, Wewak on or about 2nd June, 1998. A supplementary file was created on 12th August, 2009 based on documentation in the plaintiff's possession because the original Court file was apparently destroyed when the Wewak Court House was burnt down a few years ago.


Background


2. The Writ of Summons and Statement of Claim pleads a claim for loss of business including general damages, interest and costs which arose as a result of the Department of Works moving the plaintiff's shop or tradestore to enable the extension and sealing of the Kaindi/Wariman Road, Wewak.


Issues


3. The issues for determination before me are the following;


(i) Whether the plaintiff properly issued s.5 Notice under the Claims By and Against the State Act 1996 ('CBASA'), prior to filing the action in Court?

(ii) Whether the plaintiff named as "John Kami" is the proper plaintiff to sue in these proceedings?

Analysis of evidence and the law


4. The issues raised above are threshold or preliminary issues that must be determined before the Court proceeds to assessing the aspects of both liability and quantum. In the event the Court finds that s.5 Notice was not issued or was not properly issued, the claim will fail. Also, if the Court finds that the named plaintiff is not the proper plaintiff to sue, the Court can make certain orders, one of which is also to dismiss the proceedings.


5. Having said that, I will proceed to deal firstly with the first issue.


(i) First Issue - Whether the plaintiff properly issued s.5 Notice under the Claims By and Against the State Act 1996 ('CBASA'), prior to filing the action in Court?

6. Section 5 of the CBASA reads;


"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 –

(2) A notice under this section shall be given –

on sufficient cause being shown, allows.


(3) A notice under Subsection (1) shall be given by –

7. The Supreme Court has held that a s. 5 Notice is a condition precedent to the commencement of proceedings: Paul Tohian & Ors v Tau Liu (1998) SC566, adopted and applied in William Wrondimi & ors v Alphons Vokene (7th February, 2007) N3148.


8. A notice which complies with the requirements of s.5 gives the State early notice of a proposed claim, thus enabling preliminary inquiries to be made and instructions to be obtained in order to either defend the proceedings or settle the matter.


9. The originating process is the claim: Graham Rundle v Motor Vehicle Insurance (PNG) Trust No 1 [1988] PNGLR 20. It follows that the s.5 Notice must precede the commencement of proceedings. Uriap v Tokivung [2008] PGNC 119; N3444 (11th July, 2008) and JA Construction Ltd v Wanega [2007] PGNC 73; N3243 (29th November, 2007) per Davani. J, are cases where proceedings were dismissed because the Writ of Summons was issued prior to the issuance of a s.5 Notice. Further, a notice given on the same day as the filing of the Originating Process is improper notice (see Olympic Stationery Limited trading as PNG Stationery and Office Supplies v The State [2001] PGNC 24; N2194 (15th August, 2001) where the Court dismissed the proceedings when the Notice and the Originating Summons were served on the State on the same day).


10. The requirements of a s.5 Notice are that;


11. The notice must be written; S.5(1) provides that notice must be in written form. The CBASA does not state the type or form of the document, only that the notice must be in writing. Sometimes the notice is set out in the form of a court document. Often, it is usually in the form of a letter.


12. The notice must contain sufficient particulars; The CBASA does not specify or state the particulars to be included in a s.5 Notice. However, the purpose of a s.5 Notice is clear and that is to put the State on notice of a proposed claim so that inquiries may be undertaken and instructions obtained. Fortunately, it is well settled that a purposive interpretation will be given to s.5. The leading case on this point is Hewali v. Papua New Guinea Police Force [2002] N2233. The commonly cited passage in that judgment;


"It follows therefore, that notice must be given within the extended period. Such notice must give sufficient details about the impending claim so that the State can carry out its investigations and gather its evidence to properly address the claim once lodged against it. Such details should include dates, time, name of people and places, copies of any correspondence or such other information that could enable the State to carry out its own investigations. Only when notice is given with such details or information, can one safely say that notice of his or her intended claim has been given to the State. "(emphasis added)


13. The underlined sentence suggests that a purported notice which does not provide sufficient particulars is not good notice under s.5 of the CBASA.


14. The notice must be personally served; Section 5(1) provides two alternative forms of service. The first, "personal service on an officer referred to in Subsection (1)" (i.e. the Secretary for Justice or the Solicitor General), makes it clear that the notice must be personally served. The second, "leaving the document at the office" of the Secretary for Justice or at the office of the Solicitor General "with the person apparently occupying the position of personal secretary to" either of those persons, certainly suggests personal service because it speaks of leaving a document with one of the specified persons.


15. The decision in John Bokin v The State (2001) N2111 stands for the proposition that personal service is required and that the underlying reason for personal service is to prevent queries being raised regarding receipt of the notice because a letter, if properly served, will prevent a lot of uncertainty. However there have been cases where the National Court has held that a faxed notice is sufficient for the purpose of s.5. (see Namba v. Mondo [2008] PNNC 15, N3288 (18th March, 2008).


16. With respect, it is the Supreme Court that can determine otherwise. Not only that, when different judges of the same court come to different conclusions on the law, the result is that it can only cause confusion to litigants and their legal advisers alike: Re Hansard Spruce Mills Ltd (1954) 4 D.L.P. 590 at p. 592 applied in Dennis McEnroe v Felix Mou [1981] PNGLR 222.


17. With due respect to the view that his honour took in the Namba case, one can see that his Honour departed from the legislative intention, which intended for all s.5 notices to be personally served. In no uncertain terms, the then Minister for Justice said the following in his Second Reading Speech that;


"Service on the State cannot be done by mail. It must be personally served on the Attorney-General or the Solicitor-General or left personally at his office. However, lawyers operating outside Port Moresby can still accomplish personal service through their city agents. ..."


18. Of course, the Minister then noted also the possibility of accomplishing personal service by the use of agents, or, as is common in Papua New Guinea, wantoks.


19. The legal requirements for a notice of claim to be personally served were further fortified in the recent unreported case of John Sil Kama & 302 others –v- Timothy Mataro & State: WS No. 432 of 2005 (Unreported, 9th & 16th October, 2009). In that case, Yalo AJ held, inter alia, that notice of intention to sue the State must be effected in person and in the manner prescribed by s.5 of the CBASA.


20. The case of Ruth Kaurigova v Dr Russo Perone & Ors SC964, confirms the position that it was sufficient to leave a s.5 Notice with the Executive Assistant to the Solicitor-General.


21. An affidavit must be filed and served upon the lawyers for the State before the matter next returns. Again, this will allow the State to properly conduct its investigations as to the veracity and authenticity of the s.5 Notice; Regglie v Director General National Narcotics Bureau [2009] PGNC 187; N3805 (28th July, 2009).


22. The notice must be served on one of the specified persons; In order to be valid, a s.5 Notice can only be served on four people: the Secretary for Justice, his/her secretary, the Solicitor-General or his/her secretary.


23. It is unfortunate that s.5 uses the words "the Departmental Head of the Department responsible for justice matters" because many take those words to denote the Attorney-General. However, it is now settled that the Attorney-General is not the authority empowered to receive notice of claim under s.5 (1)(a) of the CBASA, but the Secretary for Justice. Hence, any Writ of Summons filed outside that requirement stands to be dismissed: Leo Sangundi and 523 Others –v- Sakwar Kasieng, Gari Baki and the State, WS. No. 99 of 2009, Batari J, (7th, 14th August, 2009).


24. If the Minister for justice is not a lawyer and the Secretary for Justice is also the Attorney-General pursuant to s.4 of the Attorney Generals Act 1989, it does not change the position in so far as s.5(1) (a) is concerned. The Secretary receives the notice in his/her capacity as the Departmental Head.


25. The option of leaving a s.5 Notice with the Secretary to the Secretary for Justice or with the Secretary to the Solicitor-General is, as the Supreme Court held in Kauri Ova's case, because these secretaries would, in the normal course of their duties, deliver such notices to the Secretary for Justice or the Solicitor-General as the case may be. Of course, in the absence of the option of leaving a s.5 Notice with either of those secretaries, the work of the Secretary for Justice or Solicitor-General would be interrupted every time notice of a proposed claim was given.


26. What is the position in relation to a letter addressed to someone else, such as a government department, but copied to the Secretary for Justice or Solicitor-General? William Trnka v The State (4th May, 2000) N1957 is authority for the proposition that service of a s. 5 Notice on the Police Commissioner, Police Minister and Prime Minister does not constitute a valid notice under s.5.


27. The notice must be given within 6 months; Section 5(2) of the CBASA provides that notice must be given either "within a period of six months after the occurrence out of which the claim arose" or "where the claim is for breach of a contract, within a period of six months after the claimant became aware of the breach" and goes on to provide two avenues for obtaining an extension of time which are – either the Attorney-General or the Court in which the intended proceedings would be instituted.


28. The reason why s.5 requires that notice be given within six months is that the State should be given early warning while the evidence is fresh so as to enable the State to conduct its own investigations, to consider what evidence is available and to decide whether to settle or dispute the intended claim: Minato v The State N1768 (23rd October, 1998). In that case, which involved a police raid, the Court noted that early notification would enable the State to make inquiries into "the raid itself, the policemen involved, the properties damaged or destroyed, their value, the witnesses and whether the action is time-barred ..."


29. Support can also be obtained from Rundle v Motor Vehicles Insurance (PNG) Trust [1988] PGNC93 in which the Court said:


"The purpose of s.54(6) is to give the Trust early notification of the claim so that it can make its own inquiries. Obviously, inquiries as to the driver, the owner, and the insurance details of a vehicle become more difficult as time passes. Drivers change addresses and sometime in Papua New Guinea their names disappear, expatriates leave Papua New Guinea and police accident reports and insurance certificates get lost."


30. There are only two tests which need to be considered and applied. First, for a claim based on an alleged breach of contract, when did the claimant become aware of the breach? Secondly, in other cases, what is the date of the occurrence out of which the claim arose or when the cause of action arose?


31. For claims in contract, s.5(2) directs attention to the date when the claimant became aware of the breach. That must be distinguished from the date of entry into the contract and from the date when the cause of action accrued.


32. It is convenient to here consider the status of a s.5 Notice given within an extended period. Firstly, a s.5 Notice must be given within the extended period. If the notice is given outside of the extended period, it is improper notice. Secondly, where the claimant does not give a notice within the extended period, but simply annexes or attaches a previous invalid notice, ie, a notice which was given outside the 6 months time limit stipulated by s.5 of the CBASA, and requests the State to treat the invalid notice as the relevant notice, or requests the State to validate that invalid notice, is not a valid notice under s.5: Joy Kawai, an infant by her next friend Kawai Takame v Motor Vehicles Insurance (PNG) Trust S588 (April, 1998); Muniakali v Motor Vehicles Insurance Ltd [2004] PGSC 10; SC764 (1st October, 2004) and Hewali v Papua New Guinea Police Force [2002] PGNC 95; N2233 (27th March, 2002). Further, an extension of time neither revives any earlier purported notice nor retrospectively approves any such purported notice (Rundle v MVIT [1988] PNGLR 618).


33. Further, the CBASA came into effect on 20th February 1997. If a cause of action arose prior to this date and proceedings had not been instituted yet, then notice must be issued pursuant to section 5 within six months after the 20th of February 1997, or an extension of time should be obtained from either the Court or the Attorney General: (Section 21 of CBASA and settled in Kusa v Raphael, Acting Secretary Department of Defence [2008] PGNC 34; N3304).


34. The claim to which the notice relates should not be statute-barred; A S.5 Notice which relates to a claim which is statute-barred cannot be cured even by the grant of an extension of time: State v Josiah [2005] PGSC 18; SC792 (1st March, 2005); Genaboro v Wawia [2006] PGNC 23; N3046 (5th April, 2006); MVIT v Dixon Popo (1992) N1048, National Court, Brown J, and MVIT v Insurance Commissioner (1998) N1725, National Court, Sevua .J.


35. Even if the claimant had actively pursued the matter outside of the Court, it does not halt the computation of time insofar as statutes of limitations are concerned.


36. A relevant principle of law can be found in the Halsburys Laws of England 4th Edn., Vol. 28 at par.608 which states;


"The mere fact that negotiations have taken place between a claimant and a person against whom a claim is made does not debar the defendant from pleading a statute of limitation, even though the negotiations may have led to delay and caused the claimant not to bring his action until the statutory period has passed."


37. In this case, the Notice of Claim was filed in the National court Registry, Wewak, on 9th December, 1998. This is a document entitled "Notice of Claim Against the State". There is no evidence on the Court file on when the Notice was issued upon the Office of the Secretary for Justice and/or Attorney-General or Solicitor-General or their respective secretaries, done in accordance with s.5 of the CBASA, and based on the above discussions. There is also a serious anomaly in the process employed by the plaintiff in relation to the s.5 Notice. It appears the s.5 Notice was filed (9th December, 1998) after the Writ of Summons and Statement of Claim was filed on 2nd June 1998. This demonstrates that proceedings were filed before the s.5 Notice was given which the Court has held to be improper because s.5 Notices must proceed before the commencement of the proceedings (See Uriap v. Tokivung (supra); J.A. Construction Ltd v. Wanega (supra)). Therefore, this claim was clearly filed before the issuing of the s.5 Notice. Therefore, the Notice is defective and irregular. One may say that the State has failed in its obligations to defend this claim by raising this issue earlier. That is always the argument raised by plaintiffs, especially where the matter has proceeded to trial without the State having taken any steps and only raising the issue on the eve of trial. In this particular case, the claim is lodged outside of Waigani, in Wewak. It has been some years since the National Court sat to hear civil cases in Wewak. As a result, the Office of the Solicitor-General has rarely attended a circuit in Wewak. If they did on those rare occasions, as in 2007 when a Ms Mai attended, that the Court is usually hearing criminal cases only. I take this opportunity to re-emphasise here that the Office of the Solicitor-General must always ensure that when a Judge circuits to non-Judge based provinces, that a lawyer from the Office of the Solicitor-General must always attend because there will be matters raised involving the State where the Court will require assistance from the Office of the Solicitor-General and his lawyers.


38. As the s.5 Notice is a condition precedent (see Paul Tohian & Ors v. Tau Lahui (supra) and all other processes in relation to proper compliance with issue and service of s.5 have not been complied with, that I find that the claim before this Court is non-existent.


39. I will dismiss this claim on that basis alone.


(ii) Second Issue - Whether the plaintiff named as "John Kami" is the proper plaintiff to sue in these proceedings?


40. Even though I have already decided that this claim is dismissed, I find it necessary to address this second issue because it is also important.


41. The plaintiff John Kami is suing for losses suffered by
"G & S Kami Enterprises" (par.4 of Statement of Claim). However, the plaintiff is "John Kami", an individual. In the supplementary file, are several documents which are not attached to an affidavit but which form part of the supplementary file. Strictly speaking, they are inadmissible. However, for the purposes of reasoning, I will refer to them. Also in the supplementary file, is an affidavit sworn by John Kami on 3rd July, 1998, which affidavit deposes at par.4 that he was the owner of a store retail business namely "G & S Kami Enterprises" situated at Kaindi, Wewak, East Sepik Province. Also in the supplementary file, are the following;


- Licence to trade issued by the Wewak Local Government Council to "G & S Kami Trading" dated 6th April, 1992;

- Certificate of Registration of Business Name issued to "G & S Kami Trading" dated 19th February, 1991.

42. The Certificate of Registration of Business Name, more particularly is confirmation that G & S Kami Trading is the entity created after registration under the Business Names Act 1963 ('BNA'). "Business Name" defined under the BNA means "a name, style, title or designation under which a business is carried on". Section 2 of the BNA provides for who should not carry on business. Section 3 provides for "certain business names to be registered". It reads;


"3. Certain Business names to be registered.


A person who, alone or in association with other persons, carries on business in the country under a business name is guilty of an offence, unless –


(a) the business name consists of the name of that person and the name of each other person (if any) in association with whom that person is carrying on business, without any addition; or

(b) the business name is registered under this Act in relation to that person and each other person (if any) in association with whom that person is carrying on business,

and where the business name is registered, the provisions of Section 13 that are applicable have been complied with or on behalf of the person or persons in relation to whom the name is registered.


Penalty: A fine not exceeding K200.00


Default penalty: A fine not exceeding K20.00."


43. Mr Koim submits that the plaintiff should have sought leave under s.143 of the Companies Act to bring this action under his own name as the Director of G & S Kami Enterprise. This is because John Kami is not the proper plaintiff to sue (see A.G.C (Pacific) Limited v. Woo Textile International Ltd [1992] PNGLR 100; Foss v. Harbottle [1843] EngR 478; [1843] 2 Hare 461 ch 12 LJ 319).


44. However, Mr Wa'au submits that s.4 of the BNA applies because the plaintiff had registered his business under his own name. Section 4 of the BNA reads;


"4. Personal names, etc.


(2) For the purposes of Sections 2 and 3, the name of a person consists of

(a) in the case of an individual –

(ii) his surname together with –


(A) his given name or names; or

(B) the initial or initials of his given name or names; or

(C) a combination of one or more of his given names and the initial or initials of his remaining given name or names; or

(D) the given name or names by which he is commonly known or the initial or initials by which he is commonly known, or any combination of one or more of those names and initials; or

(b) in the case of a corporation – its corporate name.

(3) For the purposes of Sections 2(1) and 3, the addition to a business name of words indicating that the business is carried on in succession to a former owner of the business shall not be deemed to be an addition to the business name."

45. In my view, s.4 only states what should be in a business name for the purposes of ss.2 and 3 of the BNA. Mr Wa'au is correct when he says that the business can be registered under a personal name (s.4(1)(a)(i)(ii)(A)(B)). However, the business must be registered in compliance with s.3 of the BNA. In this case, the registered entity is "G & S Kami Enterprises", not "John Kami". There is no evidence of the business name having been changed (s.13 of BNA). The Certificate of Registration that I refer to is evidence of registration in accordance with s.25 of the BNA. The BNA states in no uncertain terms that it is "prima facie evidence of any matter contained or set out in the Certificate".


46. Reference is made by Mr Koim to s.28 of the BNA. Section 28 refers to proceedings being taken or prosecuted against a person or persons in the business name under which the person is or the persons are carrying on business if the business name is not registered under the BNA. I find this provision is not relevant because the proceedings were filed when "G & S Kami Enterprises" was a properly registered entity no. C-18803. I should also point out that on 7th February, 1996, the Registrar of Companies issued a Certificate of Incorporation of Proprietary Company to "G & S Kami Enterprises Ltd".


47. The case of Philip Benjamin v. Department of Works & The Independent State of Papua New Guinea (2005) N2874 is on point. That case was a claim by the plaintiff as an individual in relation to losses suffered by a company registered as "Ben Trading Limited" bearing registration no. 1-2159. The Court held that the individual plaintiff could not make a claim for losses suffered by the company because the company is a separate legal entity and should be sued. The claim was dismissed in its entirety.


48. If the proceedings were in their early stage, the Court has the power to order that the Writ of Summons and Statement of Claim be amended. However, it is not. Not only that, there is no basis on which these proceedings can remain because s.5 Notice was not issued.


Conclusion


49. Before concluding, the plaintiff also submitted that because the State had paid him some monies, i.e a sum of K9,630.00 in 2 installments (see par.10 of Statement of Claim), that the State has admitted the claim. However, that is not the case because there is a letter from the Department of Works to the Assistant Secretary, Department of East Sepik, Division of Land Mobilization and copy to the plaintiff, letter dated 30th April, 1996 which acknowledges payment of K9,630.00 which "was the figure assessed and valued by the Valuer-General's Office and as far as the Department of Works is concerned, this payment is legitimate and final." The letter states further that the Independent Valuation Report which places the additional value of losses at K39,000.00 are "all the costs incurred or estimated, are the anticipated costs of business transactions by the client.... such costs are far beyond our responsibility and the Department of Works is "not liable" to meet them. Legal advice has restrained us from paying the claim and further legal representation is considered appropriate... It is therefore advised that the Department of Works will not pay the additional K39,000.00 as this is not our responsibility but the client themselves."


50. Therefore, that places on record the defendant's stand in all these. They have denied liability outright, from the beginning.


51. Based on the above reasoning, I find there is no claim before the Court because the s.5 Notice was not properly issued. Alternatively, the plaintiff is not the proper plaintiff to sue and therefore this claim must fail.


Costs


52. In relation to costs, I will order that each party pay their own costs because it was only through intervention by the Court that the State now appears. It is only fair that each party pay their own costs.


Formal Orders


53. These are the final orders of the Court;


(4) The plaintiff's claim is dismissed in its entirety;

(5) All parties shall pay their own costs of the proceedings.

__________________________________
Public Solicitors Office: Lawyer for the plaintiff
Solicitor-General's Office: Lawyer for the defendant

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