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Sion v Headmaster - Tavui Primary School [2011] PGNC 177; N4587 (22 July 2011)

N4587

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1224 OF 2004

BETWEEN:

SHARLINE SION by her mother and appointed
next friend MECTILD SION
Plaintiff

AND:

HEADMASTER of TAVUI PRIMARY SCHOOL
First Defendant

AND:

THE BOARD OF MANAGEMENT OF TAVUI
PRIMARY SCHOOL, Rabaul
Second Defendant

AND:

DIVISION OF EDUCATION within the Department
of East New Britain Province
Third Defendant

AND:

DEPARTMENT OF EAST NEW BRITAIN
PROVINCIAL ADMINISTRATION
Fourth Defendant

Kokopo: Hartshorn J.
2011: 21st & 22nd July

Application for further time to file notice of intention to make a claim – s. 5 (2)(c)(ii) Claims By and Against the State Act

Facts:

The plaintiff applies for a further period of time in which a notice of intention to make a claim under s. 5 Claims By and Against the State Act (Claims Act) can be given. Application is made under s. 5 (2) (c) (ii) Claims Act. The claim in respect of which notice is sought to be given is for personal injury and occurred in April 1998. It is not in issue that notice under s. 5 Claims Act should have been given and within the period of 6 months after the occurrence out of which the claim arose: s. 5 (2) (a) Claims Act. This application for further time to file notice of claim is opposed by the defendants.

Held:

1. The factors to be considered in an application such as this are:
   

a) has there been an adequate explanation for the failure to give notice within the 6 month period,

b) has there been an adequate explanation for the delay subsequent to the 6 month period,

c) has the plaintiff provided sufficient particulars of the case to enable the Departmental Head or the Solicitor General to properly investigate it,

d) would the defendants be prejudiced by granting an extension of time now,

e) considering (a) – (d) above and all the evidence, has sufficient cause been shown.

2. There is no explanation given for the failure to give notice within the 6 month period.
   
3. The plaintiff's mother did not pursue matters further until some 4 years later when this proceeding was called for summary determination.
   
4. There is no explanation for this application filed in September 2010 not being moved until now. The submission from the bar by counsel for the plaintiff that this court was at fault in not hearing civil matters during that time, is rejected as having no basis in fact.
   
5. There were sufficient particulars provided to enable the Departmental Head or Solicitor General to investigate the claim.
   
6. The Defendants are likely to be prejudiced in obtaining reliable or any witnesses in order to be able to properly defend the claim because the alleged incident occurred over 13 years ago.
   

Cases cited:

Peter Dixon Donigi v. Base Resources Ltd [1992] PNGLR 110
Rawson Construction Ltd v. The Independent State of Papua New Guinea (2004) N2604
Thomas Rangip v. Peter Loko (2009) N3714

Counsel:

Mr. N. M. Motuwe, for the Plaintiff
Ms. J. M. Anui and Mr. A. Edo, for the Defendants

22nd July, 2011

1. HARTSHORN J: The plaintiff applies for a further period of time in which a notice of intention to make a claim under s. 5 Claims By and Against the State Act (Claims Act) can be given. Application is made under s. 5 (2) (c) (ii) Claims Act. The application is opposed by the defendants.

2. The claim in respect of which notice is sought to be given is for personal injury and occurred in April 1998. It is not in issue that notice under s. 5 Claims Act should have been given and within the period of 6 months after the occurrence out of which the claim arose: s. 5 (2) (a) Claims Act.

3. It is deposed on behalf of the plaintiff that between May 2000 and January 2006 the services of 3 lawyers were sought to assist with the plaintiff's claim but they all failed to properly advise, represent and prosecute the plaintiff's claim. About 4 years later, this proceeding was listed for summary determination. Sawong J at that time allowed the proceeding to remain for a further lawyer to be instructed on behalf of the plaintiff. This application was filed in September 2010 but has not been moved until now.

4. Counsel for the plaintiff was unable to cite any case specifically on point. The case of Rawson Construction Ltd v. The Independent State of Papua New Guinea (2004) N2604, is specifically on point. The factors to be considered in an application such as this are:

a) has there been an adequate explanation for the failure to give notice within the 6 month period,

b) has there been an adequate explanation for the delay subsequent to the 6 month period,

c) has the plaintiff provided sufficient particulars of the case to enable the Departmental Head or the Solicitor General to properly investigate it,

d) would the defendants be prejudiced by granting an extension of time now,

e) considering 1-4 above and all the evidence, has sufficient cause been shown.

Failure to give notice within 6 month period

5. There is no explanation given for the failure to give notice within the 6 month period. Although the plaintiff's mother does not specifically depose as such, I assume that she was not aware that a notice of intention to make a claim under s. 5 Claims Act had to be given.

Failure to give notice subsequent to the 6 month period

6. The plaintiff's mother deposes that she sought the services of 3 lawyers between May 2000 and January 2006 and that they all failed to properly advise, represent and prosecute the plaintiff's claim. It has been held on numerous occasions in this jurisdiction that the negligence of a lawyer is not a good reason for an extension of time to be granted: Peter Dixon Donigi v. Base Resources Ltd [1992] PNGLR 110 referred to in Thomas Rangip v. Peter Loko (2009) N3714. The plaintiff in such circumstances may have recourse against his lawyer. In this instance, it may be that the plaintiff has recourse against any or all of the lawyers that it is alleged she retained, for negligence in not pursuing the case or in acting incorrectly.

7. I note also that in 2006 after instructing a Mr. Konido, it is clear that the plaintiff's mother became aware that notice under s. 5 Claims Act should have been given. Notwithstanding this, the plaintiff's mother did not pursue matters further until some 4 years later when this proceeding was called for summary determination.

8. I further note that there is no explanation for this application filed in September 2010 not being moved until now. The submission from the bar by counsel for the plaintiff that this court was at fault in not hearing civil matters during that time, is rejected as having no basis in fact.

Sufficient particulars provided

9. From a perusal of the proceeding, I am satisfied that there are sufficient particulars provided to enable the Departmental Head or Solicitor General to investigate the claim.

Prejudice to the defendants

10. As to any prejudice to the defendants that would be caused if an extension of time was granted, as the alleged incident occurred over 13 years ago, the defendants are likely to be prejudiced in obtaining reliable or any witnesses in order to be able to properly defend the claim.

Sufficient cause

11. After considering all of the evidence and the submissions, I am not satisfied that reasonable explanations have been given for the failure to give notice within and after the 6 month period. Further, given my finding that the defendants would likely be prejudiced in properly defending a case the occurrence out of which the claim allegedly arose being over 13 years ago, I am not minded to grant the relief sought.

Orders

a) the relief sought in the notice of motion of the plaintiff filed 9th September 2010 is refused,

b) the plaintiff shall pay the defendants' costs of and incidental to the said notice of motion.

________________________________________________

Motuwe Lawyers: Lawyers for the Plaintiff
East New Britain Provincial Government Legal Office: Lawyers for the Defendants