N9998
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 251 OF 2022

BETWEEN:
PACIFIC HELICOPTERS LIMITED
Plaintiff

AND:
DEPARTMENT OF PRIME MINISTER & NATIONAL EXECUTIVE COUNCIL
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Goroka: Mugugia, AJ  
2022: 25th &27th October

PRACTICE AND PROCEDURE – Issuance of a Section 5 Notice to the State is a condition precedent to making a claim against the State - Where a claimant fails to issue a Section 5 Notice to the State, application for extension of time to give Section 5 Notice has to be made first – Plaintiff’s court action naming the State filed - Application for extension of time to give Section 5 Notice to the State now made – Proceedings rendered incompetent – Application for extension of time refused.   

Counsel:

N. Amoiha, for the Plaintiff 
No appearance for the Defendants

RULING 

27th October, 2022 	

1. MUGUGIA, AJ: The Plaintiff’s lawyer Mr Nolan Amoiha applied for extension of time to give a Section 5 Notice to the State on behalf of his client on 25th October 2022. The Court documents filed on 17th October 2022 included the Originating Summons, Notice of Motion and the Affidavit of Joe Pokarup.  

2. These substantive relief were sought in the Originating Summons:

“1. Leave be granted to the Plaintiff to give the pre-requisite Notice under Section 5 of the Claims By and Against the State Act 1995 out of time pursuant to Section 5(2)(c)(ii) of the Claims By and Against the State Act 1995.  

2. The Plaintiff is given an extension of fourteen (14) days within which to give the pre-requisite Notice to make a claim against the State under Section 5 of the Claims By and Against the State Act 1995 which time will run effective from the date of granting of these Orders.

3. The time of entry of these Orders is abridged to the time and settlement by the Registrar which shall take place forthwith.

4. Costs in the cause.  

5. Such further Orders as this Honorable Court deems fit.” 

3. Mr Amoiha moved on his client’s motion filed on 17th October 2022. He provided written submissions to assist the Court. Reliance was placed on the case of Koyasi Printing Ltd. v. Independent State of Papua New Guinea (2014) SC1369. He highlighted the principles set out in this case and applied them to his client’s case. 

4. The orders sought in the motion were the same as the substantive relief sought in the Originating Summons. The Plaintiff sought as its first order an order for dispensation of the requirement of service of all the documents filed in the proceedings. 

5. I noted at the outset that the wrong law was stated in the Originating Summons and the motion. The Claims By and Against the State Act 1996 is the relevant Act.  

6. I also noted that the State is named as the Second Defendant in this proceedings. I am now faced with the Plaintiff’s application for extension of time to give Section 5 Notice to the State. The question I ask myself is this: “Should I grant the Plaintiff extension of time when this proceedings has already been filed against the State?”

7. The provisions of the Claims By and Against the State Act 1996 (Act) which is the relevant Act read: 

“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)… 

(c) within such further period as–

(i) … 

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

on sufficient cause being shown, allows.”

8. Where a claimant wants to bring an action to enforce any claim against the State, he has to first give notice in writing of his intention to make his claim. This is the pre-requisite Section 5 Notice to the State. Issuance of a Section 5 Notice to the State is a condition precedent to making a claim against the State. Where the claimant fails to give Section 5 Notice to the State within the time frame stipulated by the Act, he has to seek extension of time to give Section 5 Notice. The options are set out under Section 5(2)(c)(i) and (ii) of the Act.  

9. What has happened in this case is that the Plaintiff’s lawyers have already commenced their client’s court action against the State by naming it as a Defendant (Second Defendant). An action has been brought against the State. The Plaintiff is now before this Court with its application for extension of time to give its Section 5 Notice to the State. 

10. The law is clear. The Section 5 Notice must precede the claim. I find that the approach taken by the Plaintiff’s lawyers is not in accordance with the established law. The current proceedings are incompetent. 

11. The Plaintiff’s lawyer should have filed a separate application for extension of time without naming the State. If the application is made in Court, and the Court grants the application, then, he can serve his client’s Section 5 Notice to the State. This has to be done before commencing his client’s court action against the State. 

12. There is obviously a default in the pleadings. However, the Plaintiff appears to have a good cause of action against the First Defendant. The Plaintiff is in the business of leasing out its fleet of helicopters to the general public. The First Defendant requested and engaged the Plaintiff’s services from 27th July 2017 to 4th August 2017 to transport personnel and cargo to various locations within the Eastern Highlands Province, Chimbu Province and Morobe Province. Invoices were rendered to the First Defendant for settlement. A part payment of K37,197.60 was made by the First Defendant on 9th October 2017. The sum of K53,936.52 remains outstanding. The Plaintiff’s claim is for this outstanding amount. 

13. I remind myself to consider the overall requirement to do justice in this case. Considering the circumstances, and in the exercise of my discretion, I order that the Originating Summons filed on 17th October 2022 be struck out. I refuse the Plaintiff’s application for extension of time. 

COURT ORDERS

14. I make these Orders:

1. The Plaintiff’s Originating Summons filed on 17th October 2022 is struck out for being incompetent. 

2. The Plaintiff’s application for extension of time to give Section 5 Notice to the State is refused.

	3. No order as to costs.

4. Time for entry of these orders is abridged to the date and time of settlement of these orders by the Registrar which shall take place forthwith. 

Ruling and Orders Accordingly. 
________________________________________________________________
Nolan Amoiha: Lawyer for the Plaintiff