N8245

PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 803, 804 & 805 OF 2019

BETWEEN
MILNE BAY SUSTAINABLE DEVELOPMENT CORPORATION LIMITED
First Plaintiff

AND
MUYUW LIMITED
Second Plaintiff

AND
MILNE BAY SEA FOOD EXPORTER LTD
Third Plaintiff

AND
RUBEN KAUTU, IN HIS CAPACITY AS CHAIRMAN AND ALL MEMBERS OF THE BOARD OF THE NATIONAL FISHERIES AUTHORITY
First Defendant

AND
JOHN KASU, MANAGING DIRECTOR, NATIONAL FISHERIES AUTHORITY
Second Defendant

AND
NATIONAL FISHERIES AUTHORITY
Third Defendant

AND
ASHAN NUMA, IN HIS CAPACITY AS PROVINCIAL ADMINISTRATOR AND CHAIRMAN AND ALL MEMBERS OF MILNE BAY PROVINCIAL MANAGEMENT COMMITTEE
Fourth Defendant

AND
HON. SIR JOHN LUKE CRITTIN KBE, CBE, MP, MP IN HIS PERSONALCAPAACITY AS THE GOVERNOR OF MILNE BAY PROVINCE
Fifth Defendant

AND
HON. DR. LINO TOM, MP, IN HIS CAPACITY AS MINISTER FOR FISHERIES & MARINE RESOURCES
Sixth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

Alotau: Toliken J
2019: 5th December

PRACTICE AND PROCEDURE – Application to dismiss proceedings – Non-compliance with Claims By and Against the State Act – Date of filing suits against the State.

Licensing Process under Fisheries Management Act– Beeche de mer fishery – Refusal to renew licences - Appeals against refusal – Closure of season - Minister fails to convene Licencing Appeals Committee before close of season –Time within which to sue the State - Whether accrues from date of refusal to renew licence – Time accrues from date of closure of season not date of refusal – Application to dismiss suits for non-compliance with requirement of Claims By and Against the State Act misconceived – Claims By and Against the State Act, s 5;  Fisheries Management Act, s44.

PLEADINGS – Vicarious liability – Whether failure to plead Section 1 of Wrongs (Miscellaneous) Provisions Act to establish nexus between other defendants and the State fatal to suits against State – Though not pleaded specifically, pleadings sufficient to establish nexus – Motion misconceived – Motions dismissed with costs – Wrongs (Miscellaneous  Provisions) Act, s 1.   

Cases Cited: 

Kuli v The State (2004) N2592

Counsel:

S Alberic, for the Plaintiffs
T Elemi, for First, Second, Third and Sixth Defendants
K Baloiloi, for Fourth and Fifth Defendants
C Tolou’be, for Seventh Defendant

RULING

05th December, 2019

1.	TOLIKEN J : By Notices of Motion filed on 22nd and 28th October 2019, the Seventh Defendant (the State), sought to have the separate proceedings against it by the Plaintiffs (which are here consolidated as they raise the same arguments and argued together), dismissed pursuant to Order 12 Rule 40(1)(c) of the National Court Rules(the Rules) for non-compliance with the requirements of Section 5 (2)(a) of the Claims By and Against the State Act 1996 (the CBASA), or alternatively that the proceedings against it be dismissed for not disclosing reasonable causes of action against it pursuant to Order 12 Rule 40 (1) (a) of the rules and the Wrongs ( Miscellaneous) Provisions Act (the Wrongs Act). 

2.	I heard the applications on 05th November 2019 and reserved. This is my ruling.

3.	Section 5 of the CBASA provides that no action shall be taken against the State unless written notice is given to the Secretary for the Department of Justice or the Solicitor General within six months from the date the claim arose or within such further period the Principal Legal Adviser, the court before which the action is instituted on sufficient cause being shown.

4.	The brief background to these proceedings isthat the Plaintiffs were each granted beche de mer Licences for the 2017 beche-de-mer season by the National Fisheries Authority (NFA) for a period of 5 years, subject to annual renewals. The Plaintiffs each had applied for renewals for the 2018 season believing, based on communications from the NFA that they had met the requirements for renewal. On 05th July 2018 they were, however, advised by the NFA Board that their applications were refused. 

5.	On 1st August 2018, they appealed to the Minister for Fisheries and Marine Resources pursuant to Section 44 of the Fisheries Management Act (the FMA) which stipulates that the Minister shall convene a meeting of the License Appeals Committee to hear the appeal and make a decision. The decision shall be presented to the Minister who shall then decide whether to allow or refuse the appeal. The Minister did not convene a meeting of the Licence Appeals Committee and the Plaintiffs’ appeal remained unheard until the 2018 beche de mer season for Milne Bay closed on 24th October 2018. 

6.	On 27th February 2019 Muyuw Ltd and Milne bay Exporters Ltd jointly gave notice to the Solicitor General of their intention to sue the State pursuant to Section 5 of the CBASA. Milne Bay Sustainable Corporation Ltd served its notice on 08th March 2019. The Plaintiffs then subsequently mounted these proceedings soon thereafter.

7.	It is the State’s contention that the Plaintiffs’ causes of action arose on 05th July 2018, the date on which the Plaintiffs’ applications for renewal of their BDM licences were refused. The Plaintiffs therefore had until 11th February 2019 to its notice of intention to sue the State. However, they served their notices on 08th March 2019, which was well outside the stipulated period of six months. 

8.	The plaintiffs contend otherwise, saying that the six months did not run from the date their applications for renewal was refused by the First Defendant (Board of NFA) because there was an administrative appeal process which the Plaintiffs had availed themselves to which the Sixth Defendant failed to initiate by convening a meeting of the Licence Appeals Committee. Thus, the cause of action started to run from 24thOctober 2018 when the beche de mer season closed. Hence the Plaintiffs were well within the stipulated time when they gave their notices to the State.

9.	I agree with Mr. Alberic of Counsel for the Plaintiffs that the cause of action did not accrue from the date of refusal to renew the Plaintiffs’ licences. Section 44 of the FMA provides that a person aggrieved by the decision of the Board to refuse an application for licence may appeal to the Minister for Fisheries within 30 days. Upon receipt of the appeal the Minister is required to convene the Licence Appeals Committee which is constituted by a Grade 5 Magistrate, the Secretary for the Department of Transport and the Secretary for the Department of Provincial Affairs or their nominees.  The Licence Appeals Committee shall determine the appeal and make a decision and thereafter shall present their decision to the Minister who is then directed in mandatory terms to thereafter make a decision whether to accept or reject the appeal. For a fuller appreciation of the procedure involved I quote Section 44 of the FMA below.

44.	APPEAL.
(1) A person whose application for a license has been refused by the Board may appeal to the Minister.
(2) An appeal under this section shall be made in writing within 30 days of the date of refusal of the application.
(3) In the exercise of his power to determine an appeal, the Minister shall convene a meeting of the Licence Appeals Committee.
(4) The Licence Appeals Committee shall comprise a Magistrate at Grade 5 level, the Departmental Head of the Department responsible for transport matters and the Departmental Head of the Department responsible for provincial affairs matters or their nominees.
(5) The Licence Appeals Committee shall receive a status report of the appeal from the Executive Director, and shall consider the appeal, with the view to arriving at a decision on the appeal.
(6) A decision of the Licence Appeals Committee shall be presented to the Minister for his consideration and the Minister shall thereafter make a decision as to whether the appeal be accepted or rejected.
(7) The decision of the Minister under Subsection (6) is final.
(8) The Managing Director shall give effect to the decision of the Minister.
10.	In the present case the Plaintiffs lodged their appeals to the Minister (then Hon. Patrick Basa MP) on 01st August 2018. The Minister did not convene a meeting of the Licence Appeals Committee as stipulated by Section 44 (3) of the FMA and of course he did not come around to making a decision on the Plaintiffs’ appeals before the closure of 2018 BDM season for Milne Bay on 24th October 2018.

11.	As we have seen, the Minister is directed in mandatory terms by Section 44 of the FMA that upon receiving an appeal he shall convene a meeting of the Licence Appeals Committee, consider the decision of the Committee when presented to him and decide whether to allow or refuse the appeal. The provision does not give the Minister any discretion as to whether he can choose to consider the appeal or not. He must consider the appeal by taking the first step in the process – the convening of a meeting of the Licence Appeals Committee. The provision, however, does not provide a time limit within which the appeal can be determined. Be that as it may, the Minister must act with due haste and diligence when an appeal involves the BDM fishery given the fact that the harvesting season is set for a specific period, and for provinces whether or not it remains open for the entire season also depends on their allocated Total Allowable Catches (TACs). 

12.	What is clear from all this is that the BDM season in Milne Bay closed on 24th October 2018, by which time the Minister had not convened a meeting of the Licence Appeals Committee to deliberate on the Plaintiffs’ appeals.  In the absence of any decision by the Committee, the Minister of course could not have made a decision at all, lesser still unilaterally.

13.	The Appeals process having not run its course to finality before the close of the 2018 BDM season for Milne Bay, the Plaintiffs’ causes of action, must necessarily run from the 24th October 2018 and not 05th July 2018 as contended by the State. That being the case, the Plaintiffs had until the 24th April 2019 to give their Section 5 notices to the State. The Plaintiffs served their notices on 27th February 2019 and 08th March 2019 respectively which was well within the stipulated period. The State’s objection on this ground must therefore be dismissed.

14.	The State then contends in the alternative that the Plaintiffs had not disclosed reasonable causes of action by not pleading the provisions of the Wrongs Act nor did they plead that the rejection of their application to renew their licences was done by servants or agents of the State while acting in the course of their employment. 

15.	I accept that it is trite law that where the State is sued vicariously, then a plaintiff must plead the provisions of the Wrongs Act, particularly Section 1.  I also accept that it is important to establish a nexus between the other Defendants and the State because liability will have to be attached somehow to one or all of the defendants as one will have to ultimately bear the burden of meeting an adverse judgment. Indeed, in a normal employment relationship involving the State and its employees and servants, a nexus must be established.  In Kuli v The State (2004) N2592, a  case involving a claim against the State arising from a police  raid which resulted in destruction of property where the State  was sued without  naming the principal tort feasor, Manuhu AJ (as he then was) made the following helpful statement:

“In a statement of claim, therefore, sufficient particulars of the cause of action must be pleaded. The duty imposed upon a defendant must be sufficiently particularised. The nature of breach must be sufficiently particularised. The nature of injury suffered by the injured party must be sufficiently particularised. The nature of relief sought must also be specified. Where liability is based on the principle of vicarious liability, it will be necessary to establish, first, a cause of action against the principle defendant; second, the relationship between the principle defendant and the party vicariously liable; and, third, that the tort in question was committed in the course of employment of the principle defendant.” (Underlining supplied)

16.	Now the case at hand is quite dissimilar to the facts of the above case. This is a case where all defendants, in their various capacities were - by the very nature of their statutory powers and functions under the FMA and the Beeche de mer Management Plan each was exercising - servants of the State, barring perhaps the Fifth Defendant who is sued in his personal capacity as well. 

17.	While it is true that a perusal of the Statement of claim does not show any reference to the Wrongs Act, it is quite clear to me that the pleadings in their totality does show a very clear nexus between the various defendants, including the Sixth Defendant, who is the Minister for Fisheries and Marine Resources. The State is therefore a proper and necessary party because the Sixth Defendant was not only the responsible Minister but also one whose action or inaction may have had a direct impact on the alleged loss by the Plaintiff. To remove the State as a Defendant at this stage for non-disclosure of a cause of action against it, as the State contends, is therefore misconceived. This ground should also be dismissed.

18.	The Seventh Defendant’s motions are therefore dismissed with costs.

Ordered accordingly.

________________________________________________________________
Alberic Lawyers:	 	Lawyers for the Plaintiffs
Solicitor General: 		Lawyers for the State