N6005

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.1369 OF 2014

BETWEEN

SEDEMA TECHNOLOGY LIMITED
Plaintiff

AND

RAY PAUL as Commissioner of Customs, PAPUA NEW GUINEA
First Defendant

AND

PAPUA NEW GUINEA CUSTOMS SERVICES
Second Defendant

AND

PHILIP ELUDEME as Chairman, CENTRAL SUPPLY AND TENDERS BOARD
Third Defendant

AND

THE CENTRAL SUPPLY AND TENDERS BOARD
Fourth Defendant

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Ipang, J
2015: 16th April & 15th May

CIVIL – MOTION – Claims By And Against The State Act, 1996 – Section 5 (1) (2) (b) – compliance of 

Cases Cited 

Minato v Kumo [1998] PGNC 102; N1768
Hewali v Papua New Guinea Police Force [2002] PGNC 95; N 2233
Tohian, Minister for Police and The State v Tau Liu [1998] PGSC 25; SC 566
Badastal Ltd v Temu [2011] PGSC 2; SC 1092
Steamship Ltd v Sabadi [2013] PGNC 259; N5501

Counsel 

Mr. Nelson Saroa, for the Plaintiff
Mr. Maino, for the First & Second Defendants 
Mr. E. Isaac, for the Third, Fourth & Fifth Defendants 

15 May, 2015

1. IPANG AJ: By the amended motion filled on the 13th April, 2015, the Third, Fourth and Fifth Defendants seek to have the entire proceedings dismissed for non-compliance with Section 5 (1)(2)(b) of the Claims By And Against The State Act 1996 and the costs of this application. 

2.	In support of the application, is the affidavit of Joseph Wanne sworn and filed on the 31st of March, 2015. Defendants have also filed a Written Submission. 

3.	In paragraph 3 of his affidavit Joseph Wanne stated that the Plaintiff's Lawyers through a letter dated 29th April, 2014 gave a purported notice to the State pursuant to Section 5 of the Claims By And Against The State Act 1996. The letter was received by the Office of the Secretary for the Department of Justice and Attorney General on the 1st of May, 2014 and by the Office of the Solicitor General on the 5th of May, 2014. 

4.	The Acting Solicitor General Ms. Tindiwi wrote to Plaintiff's Lawyers and advised them that the purported notice was time barred. They declined to accept the purported letter as constituting notice under s.5 of the Claims By And Against The State Act 1996. The reply by Ms. T. Tindiwi stated and I quote: 

"Secondly, your instant letter, which purports to be Notice against the State pursuant to Section 5 Claims By And Against The State Act is considered statute barred accordingly. Your Clients cause of action against PNG Customs occurred on 5th August, 2013 and the six (6) months statutory time limitation permitting the lodgment of such notice against the state expired on the 5th February, 2014 with no such notice lodged with the State. 

I therefore, declined instant letter of Nelson Lawyers as constituting due notice against the State pursuant to Section 5 (2) (b) Claims By And Against The State Act, 1996." 

5.	On the 05th of August, 2013 Mr. Ray Paul the Commissioner of Customs wrote to the Plaintiff issued a notice to stop on Lae CEF Constitution which the Defendants claim the Plaintiff's cause of action occurred on that date. The letter of 5th August, 2013stated: 

"Your Company Sedema Tech Limited is hereby given notice to immediately stop work on the Lae CEF Construction at the old Lae Airport upon receipt of this notice. This is in compliance with the direction given to your company through a letter from the Commissioner of Customs dated 12th June, 2013.

In the above letter, you were given from 1st July to 31st July to complete 30% of the construction of the CEF. You have failed to comply with the directions contained in that letter of 12th June to complete 30% of the construction with 30 calendar days, which expired on the 31st of july, 2013. Our information indicates that there was nothing done towards the completion of 30% of the construction within the given time period. 

You are therefore instructed to immediately stop work on the construction of the CEF Project upon receipt of this notice. Any expenses incurred by you after the receipt of this notice will not be honored by Papua New Guinea Customs Services or the Government of PNG. 

I trust the notice is clear for your immediate compliance. 

Yours Sincerely, 

Ray Paul
Commissioner of Customs 
Chairman CEF Project Steering Committee 

Response to Third, Fourth and Fifth Defendants Application

6.	The Plaintiff relied on the affidavit of Marilyn Saroa sworn and filed on the 15 April, 2015 and also the affidavit of Simon Sanagke filed on the 15th April, 2015. 

7.	The Plaintiff through its lawyers forwarded a letter dated 3rd March, 2014 to the First and Second Defendants to provide its position on the matter. The First and Second Defendants did not response. The plaintiff then instructed its lawyers to give notice to the State of its intention to make a claim against the State. 

8.	On the 29th April, 2014 the plaintiff through its Lawyers Nelson Lawyers gave notice under Section 5 of the Claims By And Against The State Act, 1996 to make a claim against the State. The plaintiff did not receive any response from the Office of the Solicitor General. Plaintiff filed its Writ of Summons on the 31st of October, 2014. Plaintiff say between the date the Section 5 Notice was given to the State and the Writ of Summons (WS) was filed on the 31st of October, 2014, a period of six (6) months had lapsed. Plaintiff's Lawyers nor the plaintiff did not receive the response nor the purported letter of 29th May, 2014 from the Office of the Solicitor General. The plaintiff said they were aware of the letter after copy of the Affidavit of Joseph Waine was served upon them. 

9.	The Section 5 of the Claims By And Against The State 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; 

c)	…."

10.	The purpose of giving Section 5 Notice within six (6) months to the State regarding any purported Claim (s) against the State is so that the State can defend itself against the Claim or if possible negotiate for an out of Court settlement to save time and costs if the State is of the opinion, the (purported) Claim is genuine. See Minato v Kumo [1998] PGNC 102; N1768 also Hewali v Papua New Guinea Police Force [2002] PGNC 95; N2233.

11.	The issue (s) dealing with Section 5 Notice under Claims By And Against The State 1996 has been dealt with by the Courts and is well settled in this jurisdiction. In Supreme Court Case of Tohian, Minister for Police and The State v Tau Liu [1998] PGSC 25; SC 566 held that Section 5 Notice is both mandatory and a conduction precedent to any Claim against the State. Again in another Supreme Court case of Badastal Ltd v Temu [2011] PGSC 2; SC 1092 stated that the Section 5 Notice must provide or clearly State the date of the incident giving rise to the Claim against the State. 

12.	By the letter of 5th August, 2013 the Commissioner of Customs Mr. Ray Paul has clearly rescinded whatever contractual relationship they had with the plaintiff. It is through this letter of 5th August, 2013 that the plaintiff's cause of action arose. The plaintiff's time computation commenced on the 5th of August, 2015 and not when the Acting Solicitor General refused the plaintiff's Section 5 Notice. It is very clear that the plaintiff's Section 5 Notice issued to the Acting Solicitor General was given outside of six 96) months period as required under the CBAAS Act.

13.	In such situation faced by the plaintiff it would have been appropriate and necessary for the plaintiff to have sought extension of time to file its Section 5 Notice which the plaintiff has not done. In Steamship Ltd v Sabadi [2013] PGNC 259; N5501 it was held the Court must not allow the proceedings to proceed if it is found that the purported notice was given outside of the required period of time which is the six (6) from the time cause of action arose. 

14.	I therefore uphold the motion filed by Third, Fourth & Fifth Defendants and dismiss the entire proceedings and award the costs of this application to be borne by the plaintiff. 

_____________________________________________________________
Nelson Lawyers: Lawyer for the Plaintiff
Wantok Legal Group: Lawyer for the Defendants