SC1942

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 67 OF 2015

BETWEEN:
DOUGLAS YAMAN for himself and on behalf of the Yamangikumban family members of Yak Clan from Kandingei who are Traditional Landowners of the Barava Forest and Togingi &Vigiri Lagoons in the Gawi Local Level Government Area, East Sepik Province
Appellant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Mogish J, Yagi J & Bona J
2019: 02nd May
2020: 21st April

PRACTICE AND PROCEDURE – appeal against a National Court decision refusing to grant default judgment and instead dismissed the proceedings for being statute barred.

FRAUDS AND LIMITATION ACT – whether the claim for environmental damage caused by construction of water canal in 1974 is statute barred.

PRINCIPLES OF NATURAL JUSTICE – right to be heard –rules of natural justice - whether a failure by the primary Judge to adjourn the hearing constitute a breach of natural justice.

Cases Cited:
Papua New Guinea Cases

Jack Pinder v Sam Inguba and The Independent State of Papua New Guinea (2012) SC1181
Habolo Building & Maintenance Limited v Hela Provincial Government & Anor (2016) SC1549 
Public Curator v Konze Kara as Administrator of the Estate of Kibikang Kara (2014) SC1420
Konze Kara v Public Curator (2010) N4055
Michael Kuman v Digicel (PNG) Ltd (2019) SC1851
PNGBC v Jeff Tole (2002) SC694 
Geno & Nama v ONeill& Speaker of Parliament (2017) SC1617
Telikom (PNG) Ltd v Bora Wamara (2019) SC1762
Philip Takori v Simon Yagari (2008) SC904
Yawari v Agiru (2008) N3983
Andrew Nagari v Rural Development Bank; Rural Development Bank v Andrew Nagari (2007) N3295
Mao Zemin v Justice Timothy Hinchliffe (2006) N2998
Brian Curran v Independent State of PNG &Ors (1997) SC531

Overseas Cases 

Crumbie v Wallsend Local Board [1891] 1 QB 503
Hayton v Liverpool Corporation [1929] 1 KB 146

Legislations & Rules

Wrongs (Miscellaneous Provisions) Act, Chapter 297
Claims By and Against the State Act 1996
Frauds and Limitations Act 1988
Supreme Court Act, Chapter 37
National Court Rules 1983 (as amended)

Counsel:

Mr P. H. Pato, for the Appellants
Ms M. Elisha, for the Respondent

DECISION
21st April, 2020

1.	MOGISH & BONAJJ:	 This is an appeal by Douglas Yaman and others (the Appellants) against a decision of the National Court (per Kariko J) whereby His Honour refused to enter default judgment for the Appellants and dismissed the proceedings in its entirety. The Appellants claimed damages against the State for torts (negligence), outstanding compensation for use of their land as a canal, exemplary damages and general damages for nuisance allegedly committed against them by the former Australian Colonial Administration. The principal reasons for dismissal was for failure by the Appellants to sufficiently plead the nexus (relationship) between the State and the Australian Colonial Administration and Wosera Gawi LLG.

Background

2.	The claim arose from unlawful destruction of a forest and lakes owned by the Appellant and destruction of flora and fauna found in the forest and the lakes, their habitats, ecosystems and livelihood of the Appellant and his family who depend on those lakes and forests for fishing, drinking, washing and hunting. The destruction occurred as a result of a canal that was dug in 1974 by the colonial administration in the Wosera Gawi LLG, East Sepik Province diverting part of the Sepik River into the main Kamagawi Lake which feeds into other lakes owned by the Appellant and his clan members and family called the Togingi &Vigiri Lagoons. The canal was constructed right through the Appellant’s forest land. These lakes then empty into the Chambri lakes in the middle Sepik region.

3.	The canal was constructed to cut down on travelling time for people travelling in and out of the Chambri Lakes. However, sediment and silt from the Sepik River have continuously, since 1974, been deposited into the Togingi &Vigiri Lagoons and erosion during many rains have destroyed the forest and lagoons, and subsequently resulting in the loss of marine life comprised of various rare species of fish, birds, reptile and crocodiles etc. The Appellant, clan members and people living in and around the lakes and forests have suffered from the loss of these species of flora and fauna and animals and birds from the forest. It was the Appellant’s claim that these huge destruction affecting people’s lives for all these years since 1974 has occurred as a result of negligence of the colonial administration, which failed to foresee the environmental damages and consequences that would follow. People continue to suffer damages arising from the diversion of the course of the Sepik River since the canal was dug in 1974. The damages done to the forest and lakes have not eased because the canal is still existing in time.

Grounds of Appeal

4.	The grounds of appeal are stated at pp 2-3 of the Appeal Book. The Appellant has abandoned grounds 3(i) & (iv). In this appeal the Appellants only pursue grounds 3(ii) and (iii) of the Appeal Book.

“3. GROUNDS
(i)…(Abandoned)
(ii) The trial judge erred in law and in fact in dismissing the entire proceedings by holding that the proceedings WS No. 936 of 2014 was statute barred when it was clear that:-

a.	the effects of the cause of action on the Appellant’s forests and lagoons affecting his people’s lives were current and have been ongoing since 1974;

b.	most of the claim was for outstanding compensation, damages for deprivation of property and resources and damages for nuisances, and not entirely founded on negligence.

(iii)…(abandoned)

(iv) The trial judge wrongly exercised his discretion to dismiss the proceedings WS No. 936 of 2014 by taking into account irrelevant considerations as to protect the interests of the State.” 

5.	The grounds of appeals arise out of several objections taken by the Appellant against the Respondent during the trial. The Appellant contends the primary judge wrongly exercised his discretion in overruling his objections and subsequently dismissing the entire proceedings. The grounds specially relate to the issue of Section 5 Notice of the Claims By and Against the State Act, Section 16 of the Frauds and Limitations Act, for failure to file Notice of Intention to Defend and failure to file a Defence.

The National Court decision

6.	The principle reason why the proceedings was dismissed was for failure by the Appellants to sufficiently plead the nexus (relationship) between the State and the Australian Colonial Administration and Wosera Gawi LLG. In dismissing the proceedings, the trial judge said at page of the AB.

“It is clear from the statement of claim that it was a colonial administration that constructed the canal. The colonial power was of course the Government of Australia who at that time administered the territories of Papua and New Guinea.

In the pleadings, the plaintiff claims negligence, not only against the colonial administrations but also the Wosera Gawi Local Level Government for, amongst other things, failing to conduct a feasibility study before the construction of the canal, failing to consider the future impact on the environment that might result from the construction, failing to obtain the consent of land owners for the canal and failing to properly acquire the land.

In paragraph 21 of the statement of claim, the following is pleaded, “ the colonial administration and for that matter the Wosera Gawi LLG are arms, agents or instrumentalities of the State. And as such, the State is vicariously liable for their actions or omissions pursuant to section 1 of the Wrongs Miscellaneous Provisions Act and section of the Claims By and Against the State Act.

It is not pleaded how Wosera Gawi LL is liable for the alleged negligence. In paragraph 13 of the statement of claim, it is pleaded that royalty payment of K2, 000.00 per month was promised after the canal was completed. It is not pleaded that the Wosera Gawi LLG in existence back in 1974. It is also not pleaded how the State assumed liability of the colonial administration nor indeed how the colonial administration is regarded as an arm, agent or instrumentality of the Independent State of Papua New Guinea. That administration ceased jurisdiction over the territories of Papua and New Guinea when the territories became united or when the territories became one independent sovereign nation on 16 September 1975. The Independent State of Papua New Guinea. The nexus between the Wosera Gawi LLG and the State and the colonial administration and the State has not been clearly pleaded to show the legal basis for alleging that the State is vicariously liable for the actions of the Wosera Gawi LLG and the colonial administration.

In those circumstances, I am of the view that the plaintiff’s claim cannot be sustained and I will therefore exercise my discretion against the application”

7.	The Appellants claim that the dismissal of their claim was erroneous because their pleadings did disclose a reasonable cause of action although they may not have done so with sufficient particulars, which can be cured by an amendment of the pleadings.

8.	The Respondent contended the primary judge did not err in exercising its discretion to dismiss the proceeding on its own volition

9.	The ground of appeal raises the issue of vicarious liability. Whether the Respondent is vicariously liable for the tort of the Australian Colonial administration. A clear statement on the a cause of action based on the tort of negligence is set out by the Supreme Court in Jack Pinder v Sam Inguba and  The Independent State of Papua New Guinea (2012) SC1181(Yagi,  J., Makail, J.& Kawi, J.), particularly paragraphs 10. In that case the Supreme said that (i) it is not sufficient to state that the “Policeman as servant and agents of the Respondent committed the tort of negligence during the course and within the scope of their employment; section 1 (1) (a) of the Wrongs (Miscellaneous Provisions) Act, Ch 297”. The pleading must allege “the policemen as officers of the second respondent committed the tort of negligence while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law: section 1 (4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297.”

10.	In that case the Appellant failed to establish the connection or relationship between the tortfeasors and the Respondent. The Court concluded:

“This is a fundamental omission because its omission means that there is no nexus or connection between the policemen and the first respondent and ultimately the second respondent (State) to hold it vicariously liable in damages.”

11.	In the present case, the nexus or relationship between the Wosera Gawi LLG and the State and the colonial administration and the State has not been clearly pleaded to show the legal basis for alleging that the State is vicariously liable for the actions of the Wosera Gawi LLG and the colonial administration. It is a fundamental omission and cannot be cured by an amendment to the pleading, as suggested by Mr. Pato. The error is fundamental and goes to the crux of the proceedings. 

12.	In our view the primary judge properly exercised his discretion based on law and fact to dismiss the entire proceedings on this basis alone. We do not consider it necessary to consider the others grounds of appeal raised by the Appellants.

13.	We accordingly dismiss the appeal. We make no orders as to costs.

14.	YAGI J:	I have read the joint judgment of my brothers Justices Mogish and Bona. I agree with their Honours’ conclusion in having the appeal dismissed. However, I wish to express my own views and opinion as regards to this appeal.

15.	The appellants appeal from a judgment of the National Court delivered in Waigani on 18 May 2015 in which the proceedings in WS No 936 of 2014 instituted by them was dismissed.

16.	The decision arose from an application by the appellants for the entry of default judgment against the respondent.

Allegation of Facts per Statement of Claim (SoC)

17.	The appellants commenced proceedings against the respondent in August 2014. A writ of summons was filed on 12 August 2014 with a SoC endorsed thereon. In general, the appellants claim was for both liquidated and unliquidated amounts of damages. The liquidated claim alone is of sizeable amount – over K73 million.

18.	The pleadings in the SoC asserts that the appellants are traditional landowners of a tropical lowlands rainforest area in the middle Sepik River region within the Wosara-Gawi Local Level Government (LLG) area in the East Sepik Province. The forest area is of significance to the biodiversity, culture and heritage to the people and environment.

19.	In 1974 an officer of the Colonial Administration by the name of Mr William Turi, constructed a canal connecting the main Sepik River and the Chambri Lakes passing through the appellants’ forest area for reasons of administrative convenience and cost-effective means of transportation.

20.	The construction of the canal was undertaken by the Colonial Administration without -

•	consent of the plaintiffs as traditional landowners before.
•	proper land acquisition agreement entered into between the parties 
•	compensation being paid to the plaintiffs. 

21.	Since the construction of the canal, and over the ensuing years, many people have been using the canal by different water transportation means including powered and non-powered systems. As a result, there is erosion to the bank of the canal causing damages and losses to the appellants. The damages and losses as a result of the canal usage include vandalizing of properties, extensive damage to the habitats, impact on the wildlife, massive disturbances to the lagoons and invasion of foreign fish species into the lakes.

22.	It is also alleged that following the completion of the canal construction the canal diggers were paid K45.00 with a promise of further monthly payment of K2,000.00 as royalty to landowners, which promise remained unfulfilled. 

23.	Moreover, it is alleged the Colonial Administration was negligent in its conduct in terms of failure to -

•	conduct proper feasibility studies
•	foresee or likely to foresee its consequences
•	consider and assess long terms effects
•	know or ought to have known the severe impacts on the lakes and natural habitats and ecosystems
•	devise contingency plans to abort the negative consequences
•	obtain consent of the appellants
•	institute proper acquisition process of the forest land
•	pay compensation 

24.	The damages and losses as a result of the alleged negligence include reduction in sizes of the lakes by 50-60%, drastic reduction of fish, prawns and shells in the lakes, significant change in water temperature, acetones, water turbidity, non-payment of royalty monies, loss of earnings from fisheries products, land occupancy fees, loss of biodiversity, nuisance and deprivation of property rights.

25.	It is further alleged that the Colonial Administration and Wosara-Gawi LLG are arms, agents or instrumentalities of the State and as such the State is vicariously liable for their actions and omissions pursuant to s. 1 of the Wrongs (Miscellaneous Provisions) Act, Chapter 297(Wrongs Act) and s. 2 of the Claims By and Against the State Act 1996 (Claims Act).

National Court Proceeding

26.	The appellants duly served the court process with the SoC on the respondent, however, the respondent failed to take steps in accordance with the prescribed requirements under the law to defend the claim by the appellants. In particular, the respondent failed to file a notice of intention to defend the claim as required by Order 7of theNational Court Rules 1983 (as emended)(NCR)and failed also to file a defence to the claim as required under Order 8, Rule 4 of the NCR and s. 9 of the CBASA.

27.	Consequently, the appellants filed an application for default judgment on 12 March 2015 and had it served on the respondent. 

28.	The application was heard on 12 May and a decision was delivered on 18 May 2015.

29.	The respondent appeared with leave and was heard during the hearing. 

30.	Although the primary Judge found that the application had satisfied all requirements for a default judgment, the primary Judge nevertheless refused to exercise his discretion in granting the application on the basis that the interest of justice require the claim to be properly tried given the complexity and the magnitude of the claim. Moreover, the primary Judge went further in dismissing the entire proceeding finding that the action was statute barred pursuant to s.16(1)(a) of the Frauds and Limitations Act 1988 (Limitations Act).

Grounds of appeal 

31.	The appellants rely on the following grounds in their appeal -

i.	The trial judge erred in law and in fact in refusing default judgment against the Respondent when it was clear that the Appellant had met all the requirements of a default judgment application warranting exercise of His Honor’s discretion in favour of entry of default judgment. 

ii.	The trial judge erred in law and in fact in dismissing the entire proceedings by holding that the proceedings WS No. 936 of 2014 was statute barred when it was clear that: -

(a)	the effects of the cause of action on the Appellant’s forests and lagoons affecting his people’s and his lives were current and have been ongoing since 1974;

(b)	most of the claim was for outstanding compensation, damages for deprivation of property and resources and damages for nuisance, and not entirely founded on negligence.

iii.	The trial judge wrongly exercised his discretion to dismiss the proceedings based on the Respondent’s submission when the Respondent had not filed a formal application to dismiss the proceedings WS No. 936 of 2014.

iv.	The trial judge wrongly exercised his discretion to dismiss the proceedings WS No. 936 of 2014 by taking into account irrelevant considerations as to protect the interests of the State.

32.	However, grounds i and iv were abandoned. Only grounds ii and iii were pursued during the hearing.

33.	I deal now with the remaining grounds.

Ground ii –claim statute barred

34.	The appellants submit the claim is not statute barred because the pleadings clearly show that the effects or damage caused as a result of the canal construction and its subsequent usage is ongoing - on a daily occurrence basis. It is argued the canal is currently in existence and the damage and loss suffered by the appellants is ongoing to the present time since 1974. The appellants rely on two decisions of the Supreme Court in support of their argument: Habolo Building & Maintenance Limited v Hela Provincial Government & Anor (2016) SC1549 and Public Curator v Konze Kara as Administrator of the Estate of Kibikang Kara (2014) SC1420.

35.	The appellants contend that in the present case, although the cause of action occurred in 1974, the damage caused to the environment is continuing on a daily basis; the writ of summons was filed during the series of occurrences and therefore to say that the cut-off time for the cause of action to survive the limitation period is 1974 is wrong, hence the primary Judge committed an error.

36.	It was submitted for the respondent that the appellants sat on their rights to pursue their claim for 40 years and thus render their claim unenforceable in any court of law.

37.	The question of whether a claim or cause of action has a recurring effect and when the time for the purpose of the Limitation Act to commence to run was considered by Hartshorn J in Konze Kara v Public Curator (2010) N4055. In that case the plaintiff instituted proceedings against the defendants for alleged maladministration of a deceased’s estate by the Public Curator.  The claim was based on the tort of negligence. By operation of law the Public Curator was appointed to manage and administer the estate in 1994. The plaintiff took over the responsibility from the Public Curator in December 2006. In 2009 the plaintiff instituted proceedings against the Public Curator for mismanagement and maladministration of the estate. The claim was based on a common law principle in estate management known as “devastavit”. 

38.	The Public Curator applied for a dismissal of proceedings, arguing among others, that the cause of action was statute barred under ss. 16 and 19 of the Limitations Act because the action is for negligence in management of the estate and having arose in 1994, it was 15 years past the time limit allowed under the respective provisions of the statute. The Court rejected the argument by the Public Curator after finding that the cause of action in negligence accrued up until the time when the duty of care was transferred to the plaintiff in December 2006. The Court relied on a number of English common law case authorities including Crumbie v Wallsend Local Board [1891] 1 QB 503 and Hayton v Liverpool Corporation [1929] 1 KB 146. The Public Curator appealed to the Supreme Court. 

39.	 Among other grounds of appeal, the Public Curator, raised the issue of the cause of action being time barred. The same argument was rekindled before the Supreme Court; that in an action for negligence there is one single act of negligence and this was committed in 1994, and therefore the cause of action based on the tort of negligence was clearly time barred. The Supreme Court rejected that argument and endorsed and approved of the principle adopted from the English case authorities cited by the primary Judge in the National Court: Public Curator (supra).

40.	In Habolo Building (supra), the appellant sued the respondents for damages for the tort of trespass alleging that the respondents unlawfully entered its land and building in 2012 and remained in the premises up to and including the date of giving the Section 5 notice under the Claims By and Against the State Act 1996 on 17 November 2015, and filing of the writ on 30 November 2015. The respondents applied to have the proceeding dismissed on the basis that the appellant failed to give the Section 5 notice within 6 months after the cause of action arose in 2012. The primary Judge agreed and dismissed the proceedings holding that Section 5 notice is a condition precedent which had to be given within 6 months following the trespass, being a single occurrence, which was committed in 2012. The appellant appealed against the dismissal. The Supreme Court upheld the appeal endorsing the principle and followed the reasoning in Public Curator (supra). The Court stated:

“We uphold the submission of Mr Apo, for the appellant, that in ruling that the appellant’s claim arose out of a single event, the learned primary Judge erred in law. In the case of a cause of action such as tort of trespass, where the elements of the cause of action include proof of damage, and where the damage recurs continuously, “the occurrence” out of which the claim arises is properly regarded as, in fact and law, a series of occurrences. This means that the six-month period within which notice has to be given under Section 5 does not commence to run until the occurrences cease.

In taking this approach, we rely on the reasoning of the Supreme Court (David J, Yagi J & Murray J) in Public Curator v Konze Kara as Administrator of the estate of Kibikang Kara (2014) SC 1420. …………”

41.	In this case, the cause of action is not clearly pleaded in the SoC. The pleadings are convoluted, misconceived and poorly drafted. It is difficult to clearly discern from the pleadings what cause of action in law is being pleaded. It is not expressly pleaded that the claim lies in an action for tort of trespass, nuisance, conversion or negligence. However, from reading the SoC as a wholethe appellants’ claim,in general,is that,they are traditional landowners of Barava Forest and affected lagoons within the Chambri Lakes. In 1974 a Mr.Turi on behalf of the Colonial Administration engaged certain people to construct a canal connecting the main Sepik River to the Chambri Lakes. As a result of constant usage of the canal over the years since 1974 the appellants have suffered loss and damage to their environment. They claim that the State is vicariously liable for the acts and omissions of the Colonial Administration and Wosara-Gawi Local Level Government. I note there is no specific allegation at all whatsoever that Mr. Turi and or the Colonial Administration were negligent in construction of the canal.

42.	Paragraph 19 of the SoC purported to allege tort of negligence. However, the pleading fell far short of setting out a statement as to the nature, conditions or circumstances of duty of care between the tortfeasors and the appellants. The duty of care is a fundamental element in a claim for negligence. Without a statement setting out the nature of the duty of care the pleading is bad for uncertainty and is untenable in law and is bound to fail. 

43.	Negligence is a common law principle which we have adopted that is based on the notion of conduct that is injurious to a neighbour. It revolves around what a reasonable person should or should not do that might result in harm or injury suffered by his neighbour. For a claim in negligence to constitute an actionable wrongfour (4) essential elements must be pleaded in the SoC;that the defendants owed a duty of care to the plaintiff, the defendants breached that duty of care, the breach of duty had caused injury or harm to the plaintiff and the plaintiff suffered harm or loss. 

44.	In Michael Kuman v Digicel (PNG) Ltd (2019) SC1851 the Supreme Court in discussing the constituent elements of the tort of negligence explained: 

63.	The tort of negligence is an English common law claim founded on the principle of duty of care. This principle has long been adopted and applied in our jurisdiction. It has its genesis in the much-celebrated English Court of Appeal case Donoghue v Stevenson [ 1932] AC 562.

64.	To establish a cause of action based on negligence, a plaintiff is required to prove four elements –
1.	duty of care;
2.	breach of the duty;
3.	causation of the injury or harm;
4.	damages or loss suffered.

65.	Generally speaking, when a person is injured as a result of the careless or negligent act of another, the careless or negligent person will be legally liable for any resulting harm or injury sustained by the other person. 

66. 	To succeed in a claim of negligence, the plaintiff must prove that the defendant acted carelessly or negligently by adducing credible evidence showing that –

1.	the defendant owed a legal duty of care to the plaintiff in the circumstances of the case;
2.	the defendant breached that legal duty by acting or failing to act in a certain way;
3.	it was the defendant’s action, inaction or omission to act that in fact caused the plaintiff’s injury; and 
4.	the plaintiff was harmed or injured as a result of the defendant’s action.

45.	Counsel for the appellants in his written extract of arguments filed on 16April 2019 make the following submissions as regards the cause of action: 

“In this case, the cause of action has continued to occur since 1974, which is a daily occurrence because the damage to the environment has not ceased but continued to this day. The writ in the National Court proceedings was filed during the course of the series of occurrences of the cause of action. Hence, the trial Judge erred in law and in fact when he dismissed the entire proceedings WS No. 936 of 2014 for the reason that the claim arose in 1974 therefore being statue (statute) barred.

Furthermore, the trial Judge erred in law and in fact in dismissing the entire claim because most of the claim was for unpaid compensation, damages for deprivation of property and resources and damages for nuisance.”

46.	The principle of “continuous occurrence” espoused in the Public Curator and Habolo Building cases apply to causes of actionfounded on tort of negligence and trespass. The primary Judge treated the pleading as a cause of action in negligence. His Honour stated:

In the pleadings, the plaintiff claims damages, not only against the colonial administration but also Wosera Gawi Local Level Government for, amongst other things, failing to conduct feasibility study before the construction of the canal, failing to consider the future impact on the environment that might result from the construction, failing to obtain the consent of the landowners for the canal and failing to properly acquire the land. 

47.	The primary Judge further went on to state:

There is yet another reason why I should decline this application for default judgment. The claim for negligence, particulars of which are found in paragraphs 19(1) to (8) is alleged to have occurred in 1974, some 40 years before the court action was filed. Section 16(1)(a) of the Frauds and Limitations Act 1988 provides that an action founded on tort which includes a claim of negligence shall be commenced within 6 years of the date the cause of action accrued. I am not persuaded by the arguments from the plaintiff on this point. In my opinion, this action is statute barred as those acts and omissions upon which negligence is claimed arose in 1974.

48.	In this case, there is no pleading in the SoC that the Colonial Administration owed a duty of care to the plaintiffs. It is also not pleaded that the Colonial Administration had breached that duty of care. There is ample authority in this jurisdiction that says that if there is no pleading the plaintiff will generally be not permitted to lead evidence on a claim.

49.	It was held by the Supreme Courtin PNGBC v Jeff Tole (2002) SC694that pleadings drive the evidence:see also Geno & Nama v O’Neill & Speaker of Parliament (2017) SC1617 and Telikom (PNG) Ltd v Bora Wamara (2019) SC1762. In my respectful view, if the plaintiffs do not plead the constituent elements of the tort of negligence; there is no foundation in a claim for negligence and therefore the plaintiffs cannot lead evidence on negligence at trial; this necessarily includes evidence on duty of care, breach of that duty, etc.

50.	In Philip Takori v Simon Yagari(2008) SC904 the Supreme Court stated that a failure to plead a reasonable cause of action in law tantamount to a frivolous and vexatious claim and is liable for a dismissal. The Court in identifying the relevant principles built around Order 12 Rule 40 of the NCRalso stated –

“A statement of claim or a defence (as the case may be) must therefore, clearly plead the form of action by pleading the necessary legal elements or ingredients of the action and the relevant and necessary facts (not the evidence) giving rise to the form of action. It follows therefore that, where a statement of claim or a defence is so ambiguousor lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, and instead leaves it to guess work, it should be struck out.” [My emphasis]

51.	It is therefore my considered opinion that there is serious defect or deficiency in the pleading in terms of a valid claim for negligence, one of which has already been discussed in the joint judgment by Justices Mogish and Bona. It relates to the nexus or relationship between the alleged tortfeasor and the Independent State of Papua New Guinea (State). The pleading does not show how the State can be held legally liable for the negligence of the Colonial Administration. Paragraph 21 of the SoC pleads that the State is liable pursuant to s. 1of the Wrongs Act and s. 2 of the Claims Act.

52.	Section 1of the Wrongs Act state:

1.	General liability of the State in tort.
(1)	Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject—
(a)	in respect of torts committed by its servants and agents; and
(b)	in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and
(c)	in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.
(2)	Proceedings do not lie against the State by virtue of Subsection (1)(a) in respect of an act or omission of a servant or agent of the State unless the act or omission would, apart from this Division, have given rise to a cause of action in tort against the servant or agent or his estate.
(3)	Where the State is bound by a statutory duty that is binding also on persons other than the State and its officers, then, subject to this Division, the State is, in respect of a failure to comply with that duty, subject to all liabilities in tort (if any) to which it would be subject if it were a private person of full age and capacity.
(4)	Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.
(5)	An Act or subordinate enactment that negatives or limits the amount of the liability of a Department of the Government or officer of the State in respect of a tort committed by the Department or officer applies, in the case of proceedings against the State under this section in respect of a tort committed by the Department or officer, in relation to the State as it would have applied in relation to the Department or officer if the proceedings against the State had been proceedings against the Department or officer.
(6) 	Proceedings do not lie against the State by virtue of this section in respect of anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature vested in him, or responsibilities that he has in connexion with the execution of judicial process.

53.	Section 2 of the Claims Act states:

2.	Suits against the State.
(1)	A person making a claim against the State in contract or in tort may bring a suit against the State, in respect of the claim, in any court in which such a suit may be brought as between other persons.
(2)	The provisions of this Act apply to applications for the enforcement against the State of a right or freedom under Section 57 (Enforcement of guaranteed rights and freedoms) of the Constitution and for damages for infringement of a right or freedom under Section 58 (Compensation) of the Constitution.

54.	The provision of s. 1 of the Wrongs Act applies in situations where a tort or breach of statutory duty is committed by servants and agents of the State. Section 2 of the Claims Act is relevant where a claim in contract or tort is made against the State. It is brought into effect, when s. 1 of the Wrongs Act is sought to be enforced.

55.	In this case, there is no pleading that Mr. Turi is a servant and agent of the State.

56.	It significant to note the dates involved in so far as the pleading is concerned. Judicial notice must be taken as to the fact that the State took its legal status and identity upon proclamation and declaration of independence on 16 September 1975 when the Constitution of the Independent State of Papua New Guinea came into effect. That was when the nation and the Independent State of Papua New Guinea came into existence through the Constitution in 1975.

57.	The SoC pleads that the construction of the canal happened in 1974, which is prior to the existence of the State. There is no pleading showing how the State is legally bound by the actions of the Colonial Administration. In the same vein judicial notice must be taken of the fact that Wosara-Gawi Local Level Government was non-existent in 1974. The provisions referenced in the pleading under the Wrongs Act and the Claims Act clearly do not provide any assistance at all. It is evident that the pleading is fundamentally flawed and grossly defective in terms of attaching liability against the State.

58.	Assuming for argument sake; and accepting the primary Judge’s finding was correct as regards the claim for negligence in terms of pleading, the principle of “continuous occurrence” will apply as discussed in Habolo Building(supra) and Public Curator(supra). However, based on the flawed and grossly defective pleading of material facts and law, in my considered opinion, such claim cannot succeed in a court of law and is bound to fail. Under s. 16(c) of the Supreme Court Act, on a hearing of the appeal the appellate court has power to give such judgment as it ought to be given in the first instance. In this case, as I said, the pleading being fundamentally flawed and grossly defective and deficient in both fact and law to the extent that there is no reasonable cause of action being disclosed against the State. In that regard the claimis also frivolous, vexatious and tantamount to an abuse of process pursuant to Order 12 Rule 40 of the NCR and should be dismissed.

59.	There is also a claim for unpaid royaltymonies. This is pleaded in paragraph 13 of the SoC. This claim is pleaded generally as follows:

“Promise of K2,000.00 royalty for Canal

13.	After the completion of the canal, all individuals canal diggers were paid K45.00 each with a promise of a further K2,000.00 to be paid every month to the owners of the forest as royalty. This has never happened since.”

60.	In my view this is a claim for a debt or money due and owing under an oral agreement which falls under s. 16(1) of the Limitation Act and therefore the time limit of 6 years apply. This claim arose in 1974 and the proceedings was filed in 2014. It is 34 years past its survival date. The principle of “continuous occurrence” does not apply for such a claim to survive. Clearly this claim is well beyond the time limitprescribed by law. This claim is legally unsustainable, incompetent and is bound to fail. It should be dismissed on that basis.

61.	The net result is that although I accept that the primary Judge erred in not applying the correct principle of “continuous occurrence” in determining the issue of negligence;in the end, theresult is no differentnor is it of any consequence. In my opinion the proceedings ought to be dismissed for the reasons I alluded to earlier including Order 12 Rule 40 of the NCR and in the exercise of its inherent power by the court of first instance.

Ground iii – breach of natural justice

62.	As regards this ground, the appellants submit there was no formal application filed by the respondent which would put the appellants on notice that the proceedings would be dismissed for being statute barred. The respondent made verbal application over the bar table which was part of the reason why the primary Judge dismissed the proceedings. It is submitted the primary Judge should not have allowed counsel for the respondent to make the submission at the bar table and because he did, the primary Judge erred.

63.	It was argued the proper course for the primary Judge to take is to either adjourn the matter to allow the appellants to prepare and respond at the next returnable date or direct the respondent to file a formal application to dismiss the proceedings. The appellants rely on the case Yawari v Agiru (2008) N3983. On that basis counsel submits the appellants were denied their right to natural justice because they were not given ample time to prepare and respond to the issue as to whether the proceedings should be dismissed for being time-barred.

64.	The respondent submits the primary Judge is not without power. The power is both inherent and Rule based. Order 12 Rule 40 of the NCR gives power to a Court to stop cases which are obviously frivolous, vexatious or unsustainable. The Court also has inherent power to dismiss proceedings summarily for abuse of process. The respondent relies on the case Andrew Nagari v Rural Development Bank; Rural Development Bank v Andrew Nagari (2007) N3295.

65.	The principles of natural justice have a significant place under our Constitution. It is provided under s. 59 and is in these terms:

“59.	Principles of natural justice.

(1)	Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2)	The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.”

66.	The natural justice principle under the Constitution has been considered in many cases. In Mao Zemin v Justice Timothy Hinchliffe (2006) N2998 the Court (per Injia DCJ (as he then was)) said this:

“The principles of natural justice are those found at common law, which are adopted under s 59 of the Constitution, the minimum of which is the duty to act fairly and in principle, to be seen to act fairly.  One of two fundamental principles of natural justice is the principle that a man accused of wrongdoing and brought before a court or tribunal of law must be afforded an opportunity to be heard in his own defence.  This means he must be afforded reasonable opportunity to contest the prosecution evidence or material sought to be placed before the tribunal against him, by either resorting to use of rules of admissibility of evidence or once the evidence is admitted, to contest the prosecution evidence by cross-examination of witnesses or by calling his own witnesses.  Proceedings conducted by the tribunal in breach of principles of natural justice stand liable to be quashed upon review by this Court.  These principles are well settled.”

67.	And in Brian Curran v Independent State of PNG &Ors (1997) SC531 Kapi DCJ (as he then was) stated this:

“The principles of natural justice are part of the underlying law pursuant to s 59 of the Constitution. This Court has applied these principles in numerous cases since Independence and it is not necessary to refer to any authority.”

68.	The appellants’counsel in his submission referred to the Yawari case (supra) as authority for the contention that the primary Judge ought to have adjourned the hearing and allow the appellants the opportunity to prepare. I have read the case and find it of little assistance to the appellants’ case. 

69.	In this case, I find there is no breach of rules of natural justice as alleged by the appellants. The court record or transcript of proceedings portray a contrary position to what is alleged in this appeal. The appellants were not denied the opportunity to prepare.The contention by the appellants is misconceived and therefore has no substance and merit. To the contrary the appellants, through counsel, decided to press on with hearing of the application, despite being offered the opportunity by the primary Judge to have the hearing adjourned. At pages 58 – 59 of the Appeal Bookthe following exchanges appears in the transcript of proceedings on 12 May 2015 on the issue between the primary Judge and counsel for the appellant, whichshowed quite clearlythat opportunity was in fact given but not taken by the appellants:

“HIS HONOUR:	This is a significant and substantial claim being made against the State. So, should I exercise my discretion since you have served the notice of motion and I take your point? Should I exercise my discretion allow the State to file its notice of appearance and defend the motion because in answer to the motion, it has a – I actually see and you are correct as I said you are correct I accept your argument, is file a response to the motion by way of affidavit. And then you get your costs of today because the State should have done the right thing to file the notice of appearance. That is the other way so that we can come back and argue it properly.

MR PATO:	Thank you, Your Honour, even if we adjourn, it will not really serve any purpose. They have an affidavit. We have a copy of the affidavit so we can proceed. Everything is in order.

HIS HONOUR:	Well, hold on, you have taken issue with the appearance that is why – if you take that issue, still maintain that issue then it should be fair to the State since they have been made aware of this application, they file a motion. And as I have said, another matter is the significant claim, a substantial claim being made against the State. To my mind, in the interest of justice on both sides, I adjourn, you get your costs for today and the parties come back. In the meantime, the State file a notice of appearance and then we argue the matter unless you do not press the appearance by the Solicitor General today and you are willing to proceed on the basis that the Solicitor General undertakes to file as soon as practicable after today, the notice of appearance. 

MR PATO:	Your Honour, we will not press the issue since the court has given its indication. This motion has been adjourned two time already. This will be the third adjournment. Really, they have filed an affidavit and we have had a look at it and we are ready to proceed.

MR PATO:	And secondly, because it came on last and being adjourned to today. So your Honour, we do not really take objection to my friend appearing in this application and we proceed to move our motion.

HIS HONOUR:	Yes, all right, thank you. Well first things first, I will grant leave for Ms Elisha to appear today. And Ms Elisha, you have an undertaking that Solicitor General will file its notice of appearance.”
[Emphasis supplied]

70.	In this case, I am of the opinion that this is a case of missed opportunity and waiver of right rather than that of opportunity or right being actually denied. I find this ground has no merit and is dismissed accordingly.

Conclusion 

71.	I have determined that the two remaining grounds in the appeal lacked bothsubstance and merit. It follows that the appeal must fail and must be dismissed. 

Order

72.	I would make the following orders:

1.	The appeal be dismissed.

2.	The appellants shall pay the respondent’s costs in the appeal on party-party basis, to be taxed, if not agreed.

Orders of the Court

73.	The orders of the Court are therefore as follows:

1.	The appeal is dismissed.

2.	There shall be no orders as to cost.
__________________________________________________________________
PARKER Legal:  Lawyer for the Appellant			
Solicitor General: Lawyer for the Respondent