N11190

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 58 OF 2024 (IECMS COMM)

IN THE MATTER OF THE CLAIMS BY AND AGAINST THE STATE ACT 1996

IN THE MATTER OF AN APPLICATION BY CC PACIFIC LIMITED

WAIGANI: ANIS, J
9 DECEMBER 2024; 18 MARCH 2025

SEEKING EXTENSION OF TIME – Intention to make a claim against the State – application for extension of time to give notice of intention to make a claim against the State – s.5(2)(c)(ii) of the Claims By and Against the State Act 1996 – applicant out of time to give notice under s.5(1)(a) of the Claims By and Against the State Act – delay of more than 6 months - consideration – whether sufficient cause established - whether Court should exercise discretion - ruling

Cases cited

Akopa v. Motor Vehicles Insurance (PNG) Trust (1997) N1603
Rundle v Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 20
Rawson Construction v. Department of Works and Ors (2005) SC777
Nakua v. Motor Vehicles Insurance (PNG) Trust (1997) N1680
William Trnka v. Independent State of Papua New Guinea (2000) N1957
Motor Vehicles Insurance (PNG) Trust v. Insurance Commissioner (1988) N1725

Counsel

T Injia for the applicant
D Gama for the State

DECISION

1.	ANIS J: This was a hearing of an originating summons filed by the applicant seeking extension of time to give notice of intention to make a claim against the State.

2.	The hearing took place on 9 December 2024.  The State appeared and contested the matter.  I reserved my ruling thereafter to a date to be advised.

3.	This is my ruling.

BACKGROUND

4.	The applicant appears as a recruitment company.  Its business includes or involves providing services of recruitment/placement of qualified persons domestically and internationally into the workforce in the country.

5.	It is aggrieved and intends to sue the State of a dealing it claims it had had with a state entity called Independent Commission Against Corruption (ICAC).  It appears not disputed that there was an arrangement had between ICAC and the applicant on or about 1 March 2022, whereby the applicant was engaged to provide suitable candidates for the positions - Commissioner and 2 Deputy Commissioners of ICAC.

6.	The applicant intends to assert, in its intended claim against the State, that it rendered services to ICAC, however, that a portion of its invoices/service fees, which it says totaled K749,718.28, remains outstanding to date.  It intends to recover this sum against the State.

ORIGINATING SUMMONS

7.	In the Originating Summons filed 11 October 2024 (OS), the applicant seeks this main relief:

Pursuant to Section 5(2)(c)(ii) of the Claims By and Against the State Act and Section 155(4) of the Constitution, the Court order a further period of 14 days or such further period of time the Court thinks just for the Plaintiff to give Notice of Claim against the State in accordance to Section 5(1)(a) and (b) and (3)(b) of the Claims By and Against the State Act

EVIDENCE

8.	The applicant filed 1 affidavit in support of the OS on 11 October 2024, which is the affidavit of one George Griffin.  Mr. Griffin is the Managing Director of the applicant.  The affidavit was tendered and marked as Exhibit P1. 

9.	The State did not tender any evidence to oppose the matter.  It’s intended evidence, an affidavit of one Nerol Ilarupa, was objected to by the applicant.  During the objection hearing, counsel for the State sought leave of the Court and withdrew the affidavit.

LAW

10.	Section 5(2)(c)(ii) of the Claims By and Against the State Act 1996 (CBASA) reads:

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; 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.  [Underlining mine]

11.	This Court has the power under s.5(2)(c)(ii) to grant or refuse extension of time to a party to give a notice under s.5 (section 5 notice).  Its exercise of power or discretion is limited or confined to sufficient cause being shown.

ISSUE

12.	In my view, the main issue is whether the applicant has shown or established sufficient cause.

13.	In Akopa v. Motor Vehicles Insurance (PNG) Trust (1997) N1603, Sawong J, in accepting the submission of Ms Thompson on the meaning of sufficient cause and also in reliance on the case Rundle v Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 20, dismissed the proceeding which had sought extension of time to make a claim against the defendant.  On the definition of sufficient cause, Ms Thompson stated, and I quote, sufficient cause means that the applicant must give reasonable explanation for the delay, the application for extension for time must be made promptly and the Trust must not be unduly prejudiced.

14.	Although the present case has nothing to do with personal injury or insurance claim, the definition is relevant for this purpose.

15.	The Supreme Court in Rawson Construction v. Department of Works and Ors (2005) SC777 also held as follows:

2.  "Sufficient Cause" would be shown if the applicant is able to:
(a)	provide by appropriate evidence a reasonable explanation for not giving notice within the period stipulated under s. 5 of the Claims By and Against the State Act 1996 and where there is a delay in applying for an extension of time, provide a reasonable explanation for that delay;
(b)	Demonstrate a reasonable cause of action to be pursued on the merits; and
(c)	Show by appropriate evidence that the delay in giving notice has not and or would not result in any prejudice to the State.

16.	The Court’s power to grant or refuse an application of this nature is of course discretionary.  What is sufficient cause is not defined by legislation, and I will therefore caution myself of my role as a Court which is limited to interpreting laws as opposed to legislating laws.  Sawong AJ, stated which I adopt herein, in Nakua v. Motor Vehicles Insurance (PNG) Trust (1997) N1680:

The plaintiff bears the onus of establishing “sufficient cause”. What is “sufficient cause” will depend on the reasons and explanation put forward by the plaintiff as to why he did not lodge his claim within the prescribed period, and why he allowed time to lapse. What is sufficient cause, would mean that each application must be considered on its own fact and merit. Thus the expression must be interpreted widely rather than narrowly. Of course one has to consider the justice of the case and would include a consideration of any prejudice that may or might be caused to the defendant by the delay. 

[Underlining mine]

17.	This is a case where the applicant is out of time to give a section 5 notice.  And the applicant is asking the Court to grant extension of time to give the said notice.  In my view, the relevant considerations for this case would be, (i), whether the applicant applied promptly, (ii), if not, the extent of the delay and whether the applicant has provided reasonable explanation(s) for that, and (iii), whether the State would suffer any real prejudice if the extension is granted.

CONSIDERATION

18.	So, I ask myself these questions: Did the applicant apply promptly? Did the applicant provide reasonable explanations for the delay?  And has the delay caused or will cause prejudice to the State, thus an extension of time should be refused? 

19.	I note the submissions made by the parties on these matters.  I have also considered the evidence filed by the applicant.  In my view, the applicant, despite the lack of evidence filed by the State, must satisfy this Court or produce evidence to the satisfaction of the Court, for the burden of proof to shift to the State.  If the plaintiff discharges its burden of proof, it may very well mean that orders may be granted in its favour given that the State has not filed any opposing evidence.

20.	To assist me answer these 3 questions, I make the following observations:

•	It is not disputed that the invoices (3rd milestone invoices) were issued together in a letter by the applicant dated 22 February 2023;
•	It is also not disputed that ICAC had responded by its letter dated 28 July 2023;
•	The final part of the para. in the letter by ICAC reads:

According, CC Pacific Limited will be paid an amount of PGK117,000.57 in full and final settlement under the engagement contract.  This is calculated as shown in the attached schedule and includes invoices 4083 and 4479.

•	ICAC made the ‘final’ payment, as it indicated in its letter of 28 July 2023, by direct deposit into the account of the applicant on 2 August 2023;
•	The said payment, according to the applicant and which is not contested, was not discovered until on or about 19 July 2024;
•	On 24 August 2024, the applicant’s lawyers wrote to the Minister for Justice and Attorney General to request extension of time for the applicant to give a section 5 notice;
•	In the said letter, the applicant puts down 2 February 2024 as the date when the 6 months’ notice period lapsed;
•	The applicant received no response from the office of the Minister for Justice and Attorney General;
•	On 11 October 2024, the applicant filed this proceeding;
•	The applicant did not state in its evidence whether it was aware of the law or of the requirement to give a section 5 notice under the CBASA;
•	When I asked counsel in Court, counsel submitted that the applicant was not aware of the said requirement; however, I note that the applicant did not expressly state that in its evidence;
•	The applicant appears to be a reputable company; and I note that it would have had access to legal advice or lawyers at the material times, whether it be before, during or after the 6 months limitation period for giving a section 5 notice;  See cases: William Trnka v. Independent State of Papua New Guinea (2000) N1957 and Motor Vehicles Insurance (PNG) Trust v. Insurance Commissioner (1988) N1725;
•	The only real explanation for the delay it seems, based on Exhibit P1 and as submitted by counsel for the applicant, is that the applicant had been sending correspondences to various departments and had tried to resolve the matter; counsel also submitted that the applicant had taken this measure or approach because it had wanted to maintain a good standing relationship with the State;
•	There is no evidence given by the State to say whether it would be prejudiced if extension of time is given.

21.	In regard to the first question, it is not disputed that the applicant did not apply promptly.  I find in favour of the State on this question.  

22.	As to the second question, I find that there was delay generally by the applicant.  However, I must determine the date when the cause of action (for this intended claim by the applicant) may have accrued to determine the extent of the delay period.  Did it accrue at the time when the applicant discovered the payment? Or did it accrue on the date of the letter by ICAC on 28 July 2023?  I am minded to consider 28 July 2023 as the relevant date to consider and make an assessment of the delay period.  In the letter by ICAC, ICAC had made it expressly known to the applicant that it owed no more payments under the terms agreed between the parties.  It also expressly stated that it will make one final payment which would be for the sum of K117,000.57, and it made the said payment a month later in August 2023.  If the applicant intends to sue for breach of contract, it would have become aware of the purported breach of contract premised on the letter by ICAC of 28 July 2023.  Discovery of the payment made by the applicant about a year after, in my view, is inconsequential.  As a side matter, it could also reflect negatively on the applicant’s bookkeeping or records.

23.	When I compute time from 28 July 2023, the 6 months period would expire on or about 29 January 2024.  The applicant applied for extension of time to the Minister for Justice and Attorney General on 21 August 2024.  What this means is this.  After the expiry date within which the applicant could give its section 5 notice to the State, there was a delay of about 7 months.  On the 7th month of the delay period, the applicant had an option under s.5(2)(c) of the CBASA to either apply to the Attorney General or to the Court, to seek extension of time.  The applicant opted to seek the former option which was within its right to do so.  It applied on 21 August 2024.  It did not receive any response from the Attorney General’s Office.  On 11 October 2024, it filed this proceeding.  

24.	With that, I make the following observations:

(i)	the applicant did not apply promptly, whether it be to the Attorney General or to the Court, after it lost its right to give a section 5 notice to the State;
(ii)	there was delay by the applicant in exercising its rights under s.5(2)(c) of the CBASA;
(iii)	the applicant did not provide reasonable explanations why it was not able to give a section 5 notice within the 6 months period allowed by the CBASA;
(iv)	the applicant did not provide reasonable explanations for the delay period of 7 months;
(v)	the applicant had access to lawyers and legal representatives at the material times;
(vi)	the applicant did not state whether it had sought legal advice and if not, why?

25.	The delay period for this purpose was 7 months.  A delay of 7 months appears excessive in my view.  I therefore find the answer to the second question in favour of the State.

26.	In regard to prejudice, the State did not file any evidence to support this assertion.  I therefore cannot make any real findings either for or against on this question.  But I may assume, premised on the lack of evidence by the State, that the State would suffer no prejudice on the matter. 

SUMMARY

27.	In summary, I answer 2 out of the 3 questions in favour of the State.  And in so doing, I find that the applicant has not discharged its burden of proof on the two matters.  Under the circumstances, I am not satisfied that the applicant has shown sufficient cause that may permit me to exercise my power under s.5(2)(c)(ii) of the CBASA and grant extension of time to the applicant to give a section 5 notice to the State.

28.	The application’s OS will therefore fail.

COST

29.	An order for cost is discretionary.  I will order cost to follow the event on a party/party basis to be taxed if not agreed.

ORDERS

30.	I make the following orders:

1.	I dismiss the proceeding.

2.	The applicant shall pay the State’s costs of the proceeding on a party/party basis to be taxed if not agreed.

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

The Court orders accordingly

________________________________________________________________
Lawyers for the applicant:    Ashurst PNG
Lawyer for the State:           Solicitor General