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Las Peles Shipping &amp Plantation Management Services Ltd v Talele [2021] PGNC 589; N9408 (29 June 2021)

N9408

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 221 OF 2020

BETWEEN:
LAS PELES SHIPPING & PLANTATION MANAGEMENT SERVICES LTD
Plaintiff

AND:
JOHN TALELE, as Chief Executive Officer of Kokopo District Development Authority
First Defendant

AND:
KOKOPO DISTRICT DEVELOPMENT AUTHORITY
Second Defendant

AND:
EAST NEW BRITAIN PROVINCIAL GOVERNMENT
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Kokopo: Suelip AJ
2021: 18^th & 29^th June

CIVIL – Practice and Procedure – application for extension of time to give section 5 notice to the State – initial action filed in 2017 in separate proceeding – last order on 7 February 2019 for plaintiff to amend its statement of claim to include compliance with section 5 notice – this OS filed 20 July 2020 – applicant to show sufficient cause – applicant to explain delay – power to grant leave discretionary – unexplained long period – leave refused with costs

Cases Cited

Las Peles Shipping & Plantation Management Services Ltd v. John Talele Chief Executive Officer, Kokopo District Development Authority & 2 ors (2019) N7676
Paul Tohian, Minister for Police and the State v Tau Liu SC566
Graham Rundle v Motor Vehicles Insurance (PNG) Trust N0.1 [1988] PNGLR 20

Counsel

P Kendy, lawyer for the Plaintiff
J Marubu, agent for Warner Shand Lawyers, Lawyers for the First, Second &Third Defendants
E Takoboy, for the State

DECISION

29^th June, 2021

1. SUELIP AJ: This is my decision on the substantive hearing of the plaintiff’s Originating Summons (OS). In the OS, the plaintiff is seeking an extension of time pursuant to section 5(2)(c)(iii) of the Claims By & Against the State Act (CBASA) to give notice of its intention to sue the State.

2. This application is contested.

3. The facts on which this application is made are these. The plaintiff was awarded the contract for the widening and coronus upgrade of the nine (9) kilometers from Tokua to Malakuna No. 5 Road. A Memorandum of Agreement was signed between the plaintiff and the defendants on 15 May 2017 for an amount of K4.8 million (Contract Price). The plaintiff was required to complete the work within three months which the plaintiff say it did and completed the work within the required time.

4. The plaintiff made several attempts through the first and second defendants to pay contract price, but no positive response was received. The plaintiff then caused a letter to the first defendant on 3 October 2017 advising them of its intention to sue should they fail to pay the plaintiff.

5. The plaintiff then instituted court proceedings WS No. 141 of 2018 – Las Peles Shipping & Plantation Management Services Ltd v. John Talele Chief Executive Officer, Kokopo District Development Authority & 2 ors for breach of contract and claimed damages. When the defendants did not file their defence, default judgement was entered and for damages to be assessed. Damages was assessed on 16 August 2018 ex parte. Thereafter, the defendants filed an application to set aside the ex parte orders. The Court granted that application and made specific orders on 7 February 2019 for the plaintiff to amend the pleadings to include how notice was given to the Provincial Government, an entity of the State. That decision is published in Las Peles Shipping & Plantation Management Services Ltd v. John Talele Chief Executive Officer, Kokopo District Development Authority & 2 ors (2019) N7676.

6. The plaintiff caused its letter dated 11 February 2020 to the Minister for Justice and Attorney General seeking an extension of time to give section 5 notice to the State pursuant to section 5(2)(c)(i) of the CBASA. However, since the delivery of the letter, no response was received from the State. It then filed this proceeding on 20 July 2020.

7. The issue is whether the plaintiff should be granted an extension of time to give Section 5 notice to the State?

8. Section 5 of the CBASA provide:

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 month

(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; or
(c) within such further period as–

(i) the Principal Legal Adviser; or

(ii) the court before which the action is instituted,

on sufficient cause being shown, allows.

(3) A notice under Subsection (1) shall be given by–
(a) personal service on an officer referred to in Subsection (1); or

(b) leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act 1953.

9. For an applicant to be successful in its application, it must show sufficient cause. In the judgment in Paul Tohian, Minister for Police and the State v Tau Liu (1998) SC566, the Supreme Court reaffirmed the position per Graham Rundle v Motor Vehicles Insurance (PNG) Trust N0.1 [1988] PNGLR 20, that the requirement for notice of an intention to make a claim is a condition precedent to a claim against the MVIT and in the context of Section 5 of the CBASA, for a claim against the State.

10. In the Rundle case, the plaintiff is required to show 2 principles:

(i) sufficient cause in order to obtain an extension of time to give notice of intention to make a claim against the State, and

(ii) if there is delay in giving of such notice, the plaintiff has the onus of establishing the cause of delay to the satisfaction of the court.

11. The Court’s power in granting the application is discretionary and the applicant must show sufficient cause and explain delay for that discretion to be exercised.

12. In its supporting affidavit, the plaintiff says that the cause of action arose in July 2017 when road works were completed, and the defendants failed to settle the fees. The plaintiff filed WS No. 141 of 2018 on 1 March 2018. By order of 7 February 2019, the Court, set aside default judgment and the order for assessment of damages. Further, the plaintiff was ordered to file and serve an amended statement of claim within 21 days from the date of the orders, and the defendants have leave to file and serve their defence within 21 days thereafter. Hence, 21 days from 7 February 2019, would fall on 28 February 2019. The current proceeding was filed on 20 July 2020. The explanation given is that the delay was due to another proceeding, OS 187 of 2019 which took much of the plaintiff’s time and finance. In addition, the plaintiff says much time and money was exhausted from travelling between here and the New Ireland Province for business meetings.

13. It is in evidence that the letter giving Section 5 notice to the State is dated 11 February 2020. The plaintiff also says that there was further delay because of the Covid 19 pandemic.

14. In response to this application, the first three (3) defendants submit that there is a long delay in making this application. They say much time was spent in pursuing WS No. 141 of 2018 and no care was accorded to rectify the anomaly. Therefore, they say that the plaintiff’s application should be dismissed with costs as it has failed to show sufficient cause to warrant leave to give a Section 5 to the State.

15. In the State’s response, it says that the plaintiff’s letter of 11 February 2020 was late and there was no explanation for the delay in asking this Court for an extension. Hence, the State submits that the plaintiff has failed to show sufficient cause for an extension of time to be granted in its favor.

Consideration

16. The current proceeding was filed on 20 July 2020. The explanation given by the plaintiff is that the delay was due to another proceeding, OS 187 of 2019 which took much of the plaintiff’s time and finance. In addition, the applicant says much time and money was exhausted from travelling between here and the New Ireland Province for business meetings.

17. The letter giving Section 5 notice to the State is dated 11 February 2020. This is a year after the Court ruled in WS No. 141 of 2018 on 7 February 2019. The plaintiff also says that there was further delay because of the Covid 19 pandemic.

18. I find from the evidence that the period from July 2017 to 28 February 2019 is accounted for. The period immediately thereafter until 20 July 2020 when this proceeding was filed has not been accounted for except for the first six (6) months of 2020 when the pandemic broke out globally. Also, the period from the filing of this proceeding on 20 July 2020 to hearing on 18 June 2021 remains unexplained.

19. As it is, the plaintiff has not shown sufficient cause to warrant an extension of time to give Section 5 notice to the State. There is an unexplained period of about 2 years after it was ordered to amend its statement of claim.

20. Therefore, the applicant’s application for extension of time to give Section 5 to the State is refused with costs to be paid on a party/party basis to be taxed if not agreed.
________________________________________________________________
Edward Wamp Lawyers: Lawyers for the Plaintiff
Warner Shand Lawyers: Lawyers for the First, Second and Third Defendants
Office of the Solicitor General: Lawyers for the State