SC1877

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 10 OF 2019

BETWEEN
PAGA HILL DEVELOPMENT COMPANY (PNG) LIMITED
Appellant

AND
POWES PARKOP
First Respondent

AND
LESLY ALU, CITY MANAGER
Second Respondent

AND
NATIONAL CAPITAL DISTRICT COMMISSION
Third Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Kirriwom,J, Manuhu, J &Polume-Kiele, J.
2019: 28th October, 8th November

PRACTICE AND PROCEDURE – Appeal against dismissal of proceedings for want of proper notice under s 5 – Claims By and Against the State Act 1996 – form of service – given by personal service - s 5 (3) of the Claims By and Against the State Act 1996.

Facts

On the 26 March 2013, the appellant filed proceedings in the National Court OS No. 153 of 2013, Paga Hill Development Company (PNG) Ltd v Powes Parkop, Lesly Alu, NCDC, The State and 2 Ors) seeking a declaration that it had properly executed a valid Agreement referred to as a “Section 81 Agreement” with National Capital District Commission (NCDC) dated 3 October 2012; an agreement which it says that the NCDC breached for which it seeks damages. 

On 30 January 2019, the proceedings were dismissed in its entirety for failing to comply with the requisite Section 5 Notice of intention to make a claim against the State pursuant to Section 5 of the Claims By and Against the State Act 1996 (Claims Act).  This appeal is against the decision of 30 January 2019. 

Held:

(1)	A notice under s 5 of the Claims By and Against the State Act 1996, must provide details of the date of the occurrence giving rise to the claim or the alleged breach of contract;

(2)	Section 5 (3) of the Claims Act is very specific as to the manner of service of the s. 5 notice, more particularly s. 5(3) which states in no uncertain terms that notice should be given by personal service on the Departmental Head responsible for justice matters, in this case, the Secretary for Justice and Attorney-General and the Solicitor-General or their respective personal secretaries.

(3)	The onus lies on the appellant to provide particulars of service and substantial compliance of the manner and form of service of the letter giving s 5 Notice under the Claims Act. 

(4)	The affidavit of Mr. Stanley Liria sworn on 23 March 2013 and filed on 25 March 2013 did not depose to nor any other affidavit material filed by the appellant and held in the court file confirmed service of giving s 5 notice of intending claim against the State. 

(5)	The appeal is incompetent and without basis.

Cases Cited

Paul Tohian v Tau Liu [1998] SC566
Minato v Kumo and the State (1998) N1768
Daniel Hewali v. Papua New Guinea Police Force & The State (2002) N2233)
William Trnka v The State (2000) N1957
Chefs Secret Limited v National Capital District & Ors (2011) N4217
Brian Josiah v Steven Raphael (2018) SC1665
National Capital District Commission v Jim Reima (2009) SC993)
Yamanka Multi Services Ltd v National Capital District Commission (2016) N6556)

Counsel

Mr. S. Liria, for the Appellant
Mr. M. Mukwesipu, for the First, Second and Third Respondents
No appearance for the Fourth Respondent

JUDGMENT
8 November, 2019 

1.	BY THE COURT: On the 30th of January 2019, the National Court dismissed the proceedings OS No. 153 of 2013, Paga Hill Development Company (PNG) Ltd v Powes Parkop, Lesly Alu, NCDC, The State and 2 Ors) in its entirety for failing to comply with the requisite Section 5 Notice of intention to make a claim against the State pursuant to Section 5 of the Claims By and Against the State Act 1996 (Claims Act).
	
Grounds of appeal

2.	The grounds of appeal raised were as follows:

(i)	The learned Judge erred in law when his Honour dismissed the proceedings stating that the Appellant has failed to give notice of claim against the State as required under Section 5 of the Claims By and Against the State Act, 1996 when sufficient notice of claim was given and evidence of this notice was filed and available on Court file before the Court through:

(a)	Affidavit of Edwin Gesi sworn on 29th March 2013 and filed on 30 April 2013;

(b)	Affidavit of Stanley Liria sworn on 23 March and filed on 26 March 2013; and
(c)	The defendants, especially the State has not filed an affidavit denying the appellant’s notice of claim by letter dated 22nd March 2013.

(ii)	The learned Judge erred in law when his Honour failed to consider the relevant affidavit of service sworn by Edwin Gesi on 29 March 2013 and filed on 30 April 2013 together with the affidavit of Stanley Liria sworn on 23 March 2013 and filed on 26 March 2013 proving service of notice of claim under Section 5 of the Claims By and Against the State Act and therefore, the dismissal of the proceedings was null and void.

3.	On hearing of the appeal on the 28 of October 2019, it became apparent that the only issue for determination relates to whether the affidavit of Edwin Gesi sworn on the 29 of March 2013 and filed on 30April 2013 formed part or was part of the evidence presented by the appellant before the trial Court on the 19of October 2017.

4.	Upon making enquiries with Counsels, the Court notes that during trial, the appellants relied on six affidavits. These affidavits are referred to and identified in the Notice to Rely on Affidavit filed on 11 July 2017 (Document No. 59 in the National Court file) and referenced in page 287 of the Appeal Book). The notice to rely on affidavit listed only six affidavits that the appellant wished to rely during trial and these are identified on (pages 288-291 of Appeal Book) and these were the affidavits of:

(i)	Affidavits of Stanley Liria sworn on 23 March 2013 and filed on 25 March 2013 (Exhibit A); 

(ii)	Affidavit of Jerry Kama sworn on 9 April 2013 and filed on 10 April 2013 (Exhibit B); 

(iii)	Affidavit of Johannis Poya sworn on 25 April 2013 and filed on 30 April 2013 (Exhibit C); 

(iv)	Affidavit of Gudmundur Fridricksson, Volumes 1, 2 & 3 sworn on 29 October 2015 and filed on 30 September 2016 (Exhibit D);

(v)	Affidavit of Gudmundur Fridricksson sworn on 29 October 2015 and filed on 30 September 2016 (Exhibit E); and 

(vi)	two Affidavits of Barry Cheshire sworn on 5 November 2015 and filed on 6 May 2015 marked and referred to as Exhibit F and G). 

5.	Given these matters, we accept that this Appeal proceeds on the basis that the affidavit of Mr. Edwin Gesi, sworn on 29 March 2013 and filed on 30 April 2013 which purports to be an affidavit of service of s 5 notice does not form part of the evidence before the trial judge at the National Court.

6.	The law on the requirements of s 5 notice is not disputed. The dispute is in relation to compliance with service under s 5 (3) of the Claims Act. We note the importance of compliance of the requisite requirements of Section 5 Notice under the Claims Act. Section 5 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 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 show, allows.

(3)	A notice under Sub-section (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 the officer between the hours of 7.45 am and 12 noon, or 1.00 pm and 4.06 pm, 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 services hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).”

7.	There is a growing list of case law which highlights the importance of compliance with s 5 notice of intention to make a claim against the State under s 5 of the Claims Act. The law on Section 5 Notice of claim against the State is quite clear. No claim lies against the State where this requirement is not complied with prior to filing of any claim against the State (Paul Tohian v Tau Liu [1998] SC566). The rationale behind the provision, (s 5 notice) is to notify the State early of an intending claim against it so that it can carry out its own investigations while evidence is still fresh and then properly consider whether or not to settle the claim (see Minato v Kumo and the State (1998) N1768). The notice must be in writing and contain sufficient details of the intended claim, including date, time and place of occurrence. If details are insufficient, this may amount to non-compliance with section 5 notice (Daniel Hewali v. Papua New Guinea Police Force & The State (2002) N2233). Further; the notice must be given within the prescribed time frames or within such extended time frame under s 5 (2) of the Claims Act” (see Paul Tohian v Tau Liu (supra), William Trnka v The State (2000) N1957, Chefs Secret Limited v National Capital District & Ors (2011) N4217. 

8.	In Brian Josiah v Steven Raphael (2018) SC1665, the Court re-enforces the prerequisite requirements of compliance with s 5 notice under the Claims Act in which the Court said that: 

“Section 5 of the Claims Act makes it a mandatory legal obligation or condition precedent on a plaintiff commencing a claim against the State to give notice of his intention to make a claim against the State and a failure to comply with that obligation is fatal: Paul Tohian, Minister for Police and the State v. Tau Liu (1998) SC566 and therefore, it follows that commencement of court proceedings against the State pre-supposes that due compliance with s. 5 was achieved”. 

9.	Where the State as in this case, NCDC, an entity of the State (National Capital District Commission v Jim Reima (2009) SC993) is involved, then that notice pursuant to s. 5 of the Claims Act must be given before proceedings are commenced. Here, NCDC disputes that the requisite s 5 notice was given (see Yamanka Multi Services Ltd v National Capital District Commission (2016) N6556) and has provided some evidence in support of its assertion.

10.	Furthermore, the onus lies on the appellant to establish proof of service in compliance with s 5 (3) of the Claims Act. It is therefore incumbent on the appellant to provide some evidence to satisfy the Court on the balance of probabilities. The appellants failed to provide any evidence at all. In any event the learned trial Judge further observed that even if the appellant relied on the affidavit of Mr. Stanley Liria, the lawyer for the appellant who gave some evidence of a s 5 notice, such affidavit did not depose to Mr. Liria himself giving the s 5 notice personally by serving the subject letter or that such letter was served personally or was served at all; or that any service was acknowledged in compliance with s 5 (3) of the Claims Act. Essentially, Section 5 (3) of the Claims Act states that:

“(3)	A notice under Subsection 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, or nay day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).

11.	In this case, the purported letter dated 22 March 2013 giving s 5 notice which was alleged by the appellants to have been given was addressed to the Acting Solicitor General. There is no evidence of  or any proof of the letter of 22 March 2013 being given by personal service on any officer referred to in Subsection (1); that is the Solicitor General or the Departmental Head responsible for justice matters) or even being served at the office of the person apparently occupying the position of personal secretary to that officer (Solicitor General or Departmental Head responsible for justice matters) between the hours of 7.45 a.m. and 12 noon and 1.00 p.m. and 4.06 p.m. or such other hour as may from time to time be declared by or under the Public Services (Management) Act 1995.

12.	Furthermore, according to the transcripts (page 288 to 291 of Appeal Book) we note only six affidavits were identified in the Notice to Rely on Affidavits filed on 11 July 2017 (Court Document No. 59) on the Court file by the appellant in regard to their application. The six affidavits included the affidavit of Stanley Liria sworn on 23 March 2013 and filed on 26 March 2013 in which he deposed to a letter dated 22 March 2013 giving s 5 notice. However, he did not depose to him personally giving the s 5 notice by personal service in compliance with s 5 (3) of the Claims Act. Aside from this, no other affidavits were referred to or called into evidence confirming compliance with the requisite requirement of s 5 notice of intention to make a claim against the State under s 5 of the Claims Act.

13.	Any documents not adduced and tendered into evidence during trial of the matter are essentially matters not before the trial court and therefore, this Court will not allow such material to be introduced before it. Even if the appellant now wishes to introduce this new evidence, there are proper procedural processes available which the appellant has not invoked. There is no proper application filed by the appellant to introduce fresh evidence.

14.	More relevant to this appeal is the material document (affidavit of Mr. Edwin Gesi of service of s 5 notice sworn on 29 March 2013 and filed on 30 April 2013), which the appellant relied upon as a ground of appeal. This document we find was not introduced during trial. It also did not form part of the evidence during trial.  Given these matters, we find the grounds of appeal incompetent and an abuse of the process of the Court.

15.	We are satisfied with the reasons given by the learned primary Judge and find no error in his Honour’s judgment on this issue.

Orders

(1)	The appeal is incompetent and without basis.

(2)	The appeal is dismissed.

(3)	Costs is awarded to the first, second and third respondents. 

(4)	Costs to be taxed if not otherwise agreed upon.
___________________________________________________________________
Liria Lawyers: Lawyers for the Appellant					
Mukwesipu Lawyers: Lawyers for First, Second & Third Respondents