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Maliso v Independent State of Papua New Guinea [2019] PGNC 154; N7856 (9 May 2019)

N7856

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1118 OF 2018(CC1)

BETWEEN
HOWARD MALISO as Acting
Ombudsman Commission at all relevant times.
Plaintiff

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Waigani: Dingake J
2019: 14 March

PRACTICE AND PROCEDURE – application to dismiss proceedings for being an abuse of process of court – plaintiff failed to issue Notice to make a claim against the state pursuant to s5 Claims by and Against the State Act – Notice under s5 of Claims Act is condition precedent to issuing Writ of Summons for claims against the State – no notice under s5 was issued to state by plaintiff – entire proceedings dismissed for abuse of process

Cases Cited:

Paul Tohian, Minister for Police and The State v Tau Liu [1998] PGSC 25

Counsel:

Mr. Howard Maliso as Plaintiff in Person
Ms. Irene Mugugia, for Defendant

9^th May, 2019

1. DINGAKE J: This is an application by the defendant, pursuant to Order 12, Rule 1 and Order 12, Rule 40(1) (c) of the National Court Rules 1983, for the dismissal of the proceedings for being an abuse of Court process, in that the plaintiff failed to comply with Section 5 of the Claims By and Against State Act 1996 before instituting the proceedings.
2. The proceedings referred to are WS No. 1118 of 2018.
3. The above proceedings were filed by the plaintiff on the 20^th September, 2018. In those proceedings the plaintiff claims wide ranging relief that includes special and general damages following his complaint that his appointment as Acting Ombudsman in 2014 was unlawfully terminated by the defendant resulting in the damages claimed.
4. The question that falls for determination is whether the plaintiff has complied with Section 5 of the Claims By and Against the Sate Act 1996, by issuing the requisite notice before issuing the Writ of Summons in this proceeding.
5. It is trite learning that a notice of intention to make a claim against the State is a condition precedent to issuing a Writ of Summons against the State (Tohian, Minister for Police and The State v Tau Liu [1998] PGSC 25).
6. The defendant through the affidavit of Irene Mugugia avers and establishes that its case management system does not record that the plaintiff served the required Section 5 Notice with respect to WS No. 1118 of 2018. In fact it shows that such notice was not given.
7. It would seem from the affidavit of Irene Mugugia that the applicant has several matters pending with the defendant, a fact which requires any Section 5 Notice issued to be clear as to which matter it relates to.
8. The plaintiff on the other hand contends that he has complied with Section 5 of the Claims By and Against the State Act and referred this Court to Annexure “HM2” attached to his affidavit in response, filed on the 27^th of March, 2019.
9. Annexure “HM2” appears to have been served on the Department of Justice & Attorney General on the 23^rd of February, 2015 – more than three (3) years before the current proceedings were filed.
10. The aforesaid Annexure “HM2” bears little resemblance to the Statement of Claim in WS No. 1118 of 2018, and there is nothing in the said notice that makes it clear that the proceedings contemplated by that notice are WS No. 1118 of 2018.
11. Having read the aforesaid notice, I am not clear when the cause of action that triggered WS No. 1118 of 2018 accrued as same is not stated in explicit terms. A Section 5 Notice that does not explicitly indicate when the cause of action accrued is defective and invalid.
12. It is also significant that the plaintiff failed to plead the issuance of Section 5 Notice in its Statement of Claim endorsed to the Writ of Summons filed on 20^th of September, 2018.
13. It is my considered opinion that filing proceedings against the State without first complying with Section 5 as indicated above is an abuse of Court process.
14. In all the circumstances of this case, this application ought to succeed.
15. In the result it is ordered that:
    1. Pursuant to Order 12, Rule 1, and Order 12, Rule 40(1)(c) of the National Court Rules 1983, the entire proceedings be dismissed for being an abuse of the process of the Court, in that, the Plaintiff failed to comply with Section 5 of the Claims By and Against the State Act 1996 before instituting the proceeding.
    2. The Plaintiff is to pay the Defendant’s costs.

___________________________________________________________
Howard Maliso the Plaintiff in Person
Office of the Solicitor General: Lawyers for the Defendant