ACP Building Services Ltd v High Commission of India [2000] PGDC 1; DC66 (12 January 2000)

Unreported District Court Decisions

[2000] PNGDC 1 - ACP BUILDING SERVICES LTD V HIGH COMMISSION OF INDIA

[2000] PNGDC 1

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

DCC. 2965/99

BETWEEN

A.C.P. BUILDING SERVICES LTD

COMPLAINANT

AND

HIGH COMMISSION OF INDIA

DEFENDANT

Port Moresby

Geita M

12 January 2000

PRACTICE AND PROCEDURE – Notice of special defence to claim Immunity from Criminal and Civil Jurisdiction.

PRACTICE AND PROCEDURE – Article 31 of Vienna Convention on Diplomatic Relations and Section 4 (1) the Diplomatic and Consular Privileges Act, Chapter No. 83.

Counsel

Bonny Ninai for the Complainant

Joseph Kais for the Defendant

JUDGMENT

GEITA M:  The defendant applies for leave in accordance with section 4 (1) of the Diplomatic and Consular Privileges and Immunities Act Chapter No. 83 for an order of the Sending State’s claim of Immunity against the complainant. The sending State in this case is India.

The brief facts of the case are set out hereunder. By way of a complaint the complainant is alleging that the defendant is indebted to the complainant in the sum of K7379.62 being for goods and services rendered by the complainant to the defendant at the defendant’s request. The matter was filed on 5 November 1999. On 8 December 1999 the defendant filed notice of special defence claiming Immunity from criminal and civil jurisdiction pursuant to Article 31 of Vienna Convention on Diplomatic Relations and section 4 (1) of the Diplomatic and Consular Privileges and Immunities Act Chapter No. 83.

Prior to that, lawyers for the complainant and defendant attempted an out of court settlement without success. The Solicitor General’s Office represents the Independent State of Papua New Guinea through the Department of Foreign Affairs in their capacity of Receiving State for the defendants and the complainant by Patterson Lawyers.

On 12 January counsel for the defendant appeared in court however counsel for the complainant was not present. No explanation was given for his non-appearance. At that stage concerns were raised by the defendant as to the speedy resolution of the complaint as important engagements were fast approaching and any further delays may jeopardise these important engagements. Also at the directions of the Consumer Affairs Council the defendant’s generator was returned minus the starter motor and alternator without which the generator cannot work.

Mr Joseph Kais informed court that he had communicated with the complainant’s lawyer ten days ago with the possibility of an out of court settlement. In his own words I quote, “ Mr. Ninai has yet to get back to me and my attempts have proven futile.”  A copy of his letter written to the complainant’s lawyer dated 8 December 1999 pointed out likely consequences of non- appearance and reply. Counsel for the defendant than applied to this court for leave for his client to exercise its right to Diplomatic Immunity.

I note first the defendant’s willingness to resolve any issues for possible out of court settlement well before immunity is claimed. However the complainant has not responded positively to this offer. The effect of claiming immunity is that once claimed, all action against the party claiming immunity is barred, thus a claimant cannot come afterwards including out of court settlement, thus a claimant cannot come afterwards and seek to negotiate settlement. Claiming of Immunity effectively puts an end to all current and including claims arising out of the principal act.

It seems to me that the spirit and the intent of Legislators in writing the Diplomatic and Consular Privileges and Immunities Act Chapter No. 83 was to protect “Sending States” with exceptions of course. The complainants by their inaction to co-operate have waived their rights to reasonable compensation for goods and services rendered to the defendant.

I therefore conclude that this court has jurisdiction to arbitrate in this case and I must therefore grant the orders sought for by the defendant in the following terms.

N2>(1)      The Defendant’s application for Immunity to Civil and Criminal Jurisdiction granted.

N2>(2)      Complaint is struck out.

N2>(3)      The Complainant is ordered to return the Defendant’s starter motor and alternator forthwith.

N2>(4)      Failing that, members of the Police Force be empowered to take possession and give to the Defendant forthwith before 22 January 2000.

N2>(5)      No orders as to costs.