Engnui v Post PNG Ltd [2004] PGDC 19; DC201 (6 May 2004)

DC201

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 26 OF 2004

K. Engnui
Complainant

V

Post PNG Limited
Defendant

Mt. Hagen: M.M. Pupaka
2004: 6th May

Damages claim for loss of registered Courier mail sent by Express Mail Service – Loss occurred 5 years ago on 16th June 1999

Claims against Post PNG (Defendant) regulated by statute – Postal Services Act 1996 – Sections 23, 24, & 25 – Requirement for notification of intended action – Limitations of actions to within 6 months – Apparent conflict with Frauds and Limitations Act 1988 referred to & discussed – Complainant’s cause of action statute barred nevertheless.

Counsel
Mr. Kent Pato For The Applicant /Defendant
The Complainant /Respondent In Person

27th May 2004

M. M. PUPAKA: On 12th April 2004, this matter was adjourned to 28th April 2004 for trial. It seems that trial did not eventuate and there is no records, by way of file notations, as to what transpired on 28th April and which future date it was further adjourned to and for what purpose. However the Defendant has since filed a motion upon notice to have this entire proceeding summarily dismissed on the basis that the cause of action against it is statute barred by virtue of the Postal Services Act 1999, (herein after referred to as the Act).

The notice of motion was scheduled for hearing on 6th May 2004 and the parties duly came before me in Chambers for Mr. Pato of council for the Applicant /Defendant to move it. Mr. Pato consequently advised in Chambers that the Defendant /Applicant were relying on his own (Mr. Pato’s) affidavit, dated 4th May 2004, for the purposes of the application. He also advised that he had filed his written submission in advance, which is dated the 5th of May. Mr. Pato then invited the Court to consider the application and have the case dismissed summarily.

In the circumstances I said I would take time to peruse the affidavit and submission properly. The Respondent /Complainant did not say much at all in Chambers. In fact he could not say anything, especially given the nature and bases of the application. However I advised him to nevertheless file any evidence that he may want the Court to consider, in opposition to this application, by way of affidavits or submission by 13th May 2004. I then informed both parties that I would try to have a decision on the application available at the Registry around the 2nd last week of May 2004 and further advised them to inform themselves of any such decision through the Clerk of Court at around that time.

Whilst I have perused the affidavit and submission of the Applicant, unfortunately I cannot likewise inform myself as to the relative stance of the Respondent /Complainant on the issue of statutory limitation. He has not taken up on the direction to file evidence. The Respondent /Complainant was to file evidence by 13th May 2004, however on that day he sought an extended time by way of a letter on the grounds that lawyer who would assist him file submissions was busy. He did not inform the Court the length of extension sought. More than a week has passed and still he has not indicated as to when he might file submissions if any. One thing is certain. This Court cannot wait indefinitely for him. In the circumstances I must proceed to decide the application without the Complainant /Respondent’s input. In any case I cannot possibly imagine how the Defendant /Applicant’s contentions could be negated by the Complainant /Respondent, regardless of whatever the latter’s arguments may turn out to be in the end. As it would no doubt become much clearer after full discussions further on herein, the outcome of this application can only be strictly as a matter of law. The following then is the Court’s ruling on the application.

First of all, in order to fully appreciate and understand the nature of this application for summary dismissal, it is necessary to state briefly the Complainant /Respondent’s claim.

In a nutshell the Complainant’s case is that he was, at the relevant times, a Prison Officer. He was based then at the Tari CIS. But due to tribal conflicts among the locals in the area the Tari CIS was burnt down so he moved to Baisu CIS and was stationed temporarily there. At around that time the Complainant’s employer owed him backdated money, for reasons, which are not necessary to be stated here. Consequently a cheque for K2, 626.32 was made out to the complainant and sent by Courier mail. The Courier mail was addressed to the Commanding Officer of HAWA C.I.S., P. O. Box 32, Tari, SHP, and it was posted on 16th June 1999 at the Boroko Post Office. The Complainant says the Courier mail was sent as EMS No. 61004. He also says and I quote; "The serial No. was 16 and listed as No. 1, line No. 2. This mail with other consignment of mail was scheduled to be flown out of Port Moresby in a flight described as flight PX No. 154 to Tari from Port Moresby" (sic). Presumably these details are particulars of the consignment.

The Complainant further says he duly checked at the Tari Post Office but he was told there was nothing for him there. He also checked at the Mendi and Mt. Hagen Post Offices but he was told they had nothing for him at these Post Offices as well. After many weeks of fruitless search and enquiries the Complainant decided the mail was never received at any of the three Post Offices. He therefore wrote to the Defendant querying matters with it but the Defendant firmly denied any knowledge of the mail or the cheque. I note however that the Complainant does not say what role the Commanding Officer of HAWA C.I.S, to whom the EMS was addressed, played. Was the Complainant himself the Commanding Officer? It is not clear.

Therefore on March 11th 2004 the Complainant, alleging negligence against the Defendant and its employees and servants, finally sued for recovery of the value of the cheque together with interests and related costs through this proceeding. Thereafter, upon service, the Defendant filed a Notice of its intention to defend the claim. Meanwhile, as alluded to above, the Defendant has also filed the current application by motion upon notice to have the proceeding summarily dismissed on the bases that the Complainant has failed to meet the requirements of Section 23 of the Act.

Section 23 is under Part V of the Act, which seems to be generic to suits or claims against the Defendant. Sections 23, 24 & 25, all of which come under Part V, are worth restating to fully appreciate this legislation’s peculiar requirements, which seem to have been included purposely to act as ‘firewalls’, as it were, against claims upon the Defendant.

"PART V. —NOTICE AND LIMITATIONS OF ACTIONS.

23. Notice and limitations of action.

(1) Subject to Sections 24 and 25, any action against Post PNG, the Board, the Managing Director or any officer of Post PNG for anything done or omitted to be done under this Act shall be commenced within six months after the act is done or omitted to be done.

(2) An action under Subsection (1) shall not be commenced until one month after notice of, and the cause of, the action has been duly served on the defendant.

(3) On the back of the notice under Subsection (1) shall be endorsed the name and place of abode or business of the plaintiff and his lawyer or agent if the notice is served by a lawyer or agent.

24. Immunity from actions.

An action or other proceeding shall not be maintainable against Post PNG, the Board, the Managing Director or any officer of Post PNG, in relation to any loss or damage suffered, or that may be suffered, by a person by reason of any act, default, delay, error, omission or loss (whether negligent or otherwise) by or on behalf of Post PNG in the carriage or delivery of, or otherwise in relation to, a postal article by means of the letter service.

25. Actions in relation to money orders or postal orders.

An action or other proceeding shall not be maintainable against Post PNG, the Board, the Managing Director or any officer of Post PNG —

(a) by reason of the payment of the amount of a money order or postal order being refused or delayed; or

(b) on account of any accidental neglect, omission or mistake or for any other cause,

and no action or other proceeding shall be maintainable in respect of a money order or postal order after its payment to whomsoever presented it if it was paid without fraud or willful misbehavior by the person sought to be made liable."

As it can be seen, Section 23 (2) is in mandatory terms. It says actions against the Defendant shall not be instituted until after a month had lapsed from the date a formal notice of the cause of action and or claim was served on the Defendant. To my mind this provision is saying two things:

1. The prospective claimant must first serve notice of the occurrence of the cause of action and also his intended suit on the Defendant; and
   
2. From the day he gave such notice, the claimant must wait for a month to pass and then commence proceedings if he wishes to do so.
   

Section 23 (1) says suits against Post PNG Limited (the Defendant) must be commenced within six months after the commission or occurrence of the cause or causes of action.

One perceives the imperative of Section 23 to be that a claimant really must commence litigation after a month had lapsed from the date of giving notice, which may also be the same length of time after the occurrence of the event. It necessarily means he can institute litigation only within the last five months of the six month in which he may do so.

It is clear on the evidence available in the case before me that the Complainant did not comply with any of the requirements of Section 23 of the Act. He has not only failed to give the requite notice; he has also instituted this action much too late. Needless to say he has come to court outside the stipulated six months.

This application is grounded solely upon the lack of compliance with the requirements of Section 23 of the Act. Nevertheless I made some general reference to the nature of the claim previously, which I thought were only fair and proper at the time. Though I do not intend to repeat those remarks I made to the parties in Chambers on 6th May 2004, I must say the Complainant really had very little chance of success with this suit from the outset. For instance it may yet be arguable as to whether sending a cheque by way of Courier mail through the so-called Express Mail Service (EMS) is tantamount to "... carriage or delivery ..." of "... a postal article by means of the letter service" as defined in Section 24 of the Act, but it does seem whether or not the Defendant is immune from this suit under that provision (s. 24) is also well and truly at issue here. Further, Section 25 of the Act may not have any immediate application here but it does give an indication of the kind of protection and immunity from suit against the defendant, in relation to most of the latter’s business activities.

I must as a matter of course mention in passing one other issue that begs to be addressed in this proceeding. One may very well ask; what about the application of the Frauds and Limitations Act 1988, and more particularly what of the right of claimants by necessary implication, to institute proceedings at any time as long as it is still within six years, under Section 16 thereof. The applicable part of Section 16 of the Frauds and Limitations Act 1988 is Subsection (1) but the whole of that section is quoted so that the applicable portion may be understood in its proper perspective.

PART III. LIMITATION PERIODS FOR ACTIONS IN CONTRACT, TORT, ETC.

16. Limitation of actions in contract, tort, etc.

(1) Subject to Sections 17 and 18, an action —

(a) that is founded on simple contract or on tort; or

(b) to enforce a recognizance; or

(c) to enforce an award, where the submission is not by an instrument under seal; or

(c) to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued. (Underlining added)

(2) An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action.

(3) Subject to Subsection (4), an action upon a specialty shall not be brought after the expiration of 12 years commencing on the date when the cause of action accrued.

(4) Nothing contained in Subsection (3) shall be construed as affecting any action for which a period of limitation is specified by any other Act, and that subsection shall be read and construed accordingly.

(5) An action shall not be brought upon any judgment after the expiration of 12 years commencing on the date when the judgment became enforceable.

(6) No arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years commencing on the date when the interest became due.

(7) Subject to Subsection (8), an action to recover any penalty or forfeiture, or sum by way of penalty or forfeiture, recoverable by virtue of any enactment shall not be brought after the expiration of two years commencing on the date when the cause of action accrued.

(8) For the purpose of Subsection (7) the word "penalty" does not include a fine to which any person is liable on conviction of a criminal offence.

The only provision in Section 16 of the Frauds and Limitations Act 1988, whose operation is made subject to the application of another Act, is Subsection (3) which deals with actions upon a specialty. All other provisions of that section are in mandatory terms and sufficient unto themselves; apparently leaving no scope for exceptions or the application of provisions in other Acts.

I am of the firm view that neither the Act nor the Frauds and Limitations Act 1988 make any qualifications as to their application. Therefore I would think both statutes apply notwithstanding each other or notwithstanding similar provisions in other statutes.

Were it not for the relevant provisions of the Act the Complainant would otherwise be within time to institute this proceeding by virtue of the Frauds and Limitations Act 1988. However, be that as it may, it is not the concern of this Court to ponder over seemingly conflicting statutory provisions and laws. I am mindful, for the current purposes, that the Defendant is a creature of statute, namely the Postal Services Act 1996. This Act, which is its enabling law, has spelled out its existence as well as its practices and privileges. Those who do business with it must do so within the ambit of its lawful powers and constraints. The Defendant cannot be liable where, by law, it never can be. Its immunity and protection from suit is a matter of law, again namely the Act. Further still, in matters of any transaction or dispute or other relationship where the Post PNG Limited is a party, the Act applies in the first instance, to the exclusion, I might add, of other Statutes.

To my mind this Complainant is estopped from suing the Defendant after he failed to comply with Section 23 of the Act. Secondly, though it may yet be a matter of argument, he is also prevented, in my view, from taking the Defendant to court by reason of the statutory immunity found under Section 24 of the Act.

For all the reasons referred to above, I would grant the relief sought, which is that this proceeding is summarily dismissed. I would however, in the exercise of my discretion, order that each party pay their own costs.

In Person: Complainant
Mr. K. Pato: Defendant