Laki v Secretary, Department of Lands [2005] PGNC 143; N2818 (13 April 2005)

N2818

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

WS 1196 OF 2001

BETWEEN:

ELIAKIM LAKI, GABRIEL AGUBA, PAPAPARA YANAM, TOPI WAUWE, SIMON TOLAI AND 167 OTHER FORMER BLOCK HOLDERS OF KAVUGARA OIL PALM BLOCK, WEST NEW BRITAIN (WHOSE NAMES ARE LISTED ON THE SCHEDULE TO THIS Writ)
Plaintiffs

AND:

GUA K. ZURENOUC,
SECRETARY DEPARTMENT OF LANDS
First Defendant

AND:

UTULA SAMANA, SECRETARY DEPARTMENT OF AGRICULTURE AND LIVESTOCK
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Waigani: Davani, .J
2005: 21, 23 March
13 April

PRACTICE AND PROCEDURE – Notice of Intention to Make a Claim against the State – Notice given in earlier proceedings – earlier proceedings struck out – Notice went with proceedings – Claims By and Against the State Act s. 5.

PRACTICE AND PROCEDURE – Fresh proceedings filed – plaintiff did not give notice – relies on notice issued in earlier proceedings – Notice issued in earlier proceedings not a valid notice for present proceedings – effect, no notice given

PRACTICE AND PROCEDURE – No notice issued – no cause of action – action stands dismissed.

Counsel:
P. Parkop for the Plaintiffs/Respondents
S. Jephson for the Defendants/applicants

DECISION

(application to dismiss proceedings)

13th April 2005

DAVANI .J: I heard this application and reserved for ruling on the issue of whether s. 5 Notice under the Claims By and Against the State Act 1996 (‘Claims Act’) issued in earlier proceedings, is still a valid notice. This is my decision.

Background

I have heard that earlier proceedings WS 801 of 1998 filed by the plaintiffs was struck out by his Honour Justice Sevua on 10th November, 2000. The proceedings were struck out because amongst others, the court found that the 168 plaintiffs had not properly pleaded their cause of action against each of the defendants. The decision is numbered N2001 dated 10th November, 2000. The plaintiff has not appealed this decision.

The present Writ of Summons and Statement of Claim now before me are proceedings involving the same parties and plead the same cause of action and which proceedings were filed on 23rd August, 2001. At paragraph 13 of the Statement of Claim, the plaintiffs plead what appears to be their cause of action, which is action by the defendants to have the plaintiffs, who are settlers, leave State land on which they had settled and that this had occurred about October 1996. They claimed damages suffered as a result of this departure.

The Notice of Motion filed by Paraka Lawyers on 7th October, 2004 for and on behalf of the defendants seeks orders that the proceedings be dismissed for abuse of courts process; for failure to give the s. 5 Notice under the Claims Act, for lack of the plaintiffs representative capacity; for disclosing no cause of action and other orders where appropriate. On hearing both counsel, the court ruled that counsel make submissions only on the issue of whether the s. 5 Notice issued in earlier proceedings (WS 801 of 1998) and relied on in those proceedings, is sufficient, valid notice. This ruling was made because the ruling on the issue of the s. 5 Notice would determine whether the court should then hear submissions on the other orders sought in the Notice of Motion.

S. 5 (1) (2) of the Claims Act 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

...

(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.

..."

Mr Jephson for the defendants/applicants (‘applicants’) submits that when the earlier proceedings were struck out, that the s. 5 Notice issued under those proceedings, went with it. He submits that the plaintiff cannot rely on a notice that was or had been struck out with the entire proceedings and that the plaintiff should have issued or given fresh notice.

The applicant relied on a case decided in Lae, Kasper Wek, 10 others and their families v. the State and others, unnumbered judgment handed down on 21st February, 2005. In that case, the plaintiff relied on notice issued in proceedings instituted in Mount Hagen John Bokin v the State N2111, which proceedings were dismissed in their entirety for the plaintiff’s failure to comply with the s. 5 of the Claims Act. In the Kasper Wek (supra) case, the plaintiffs relied on the same letter of notice issued in the John Bokin (supra) case, letter dated 15th September, 1997, to say that they had given proper notice under s. 5 of the Claims Act. His Honour Kirriwom .J held in the Kasper Wek (supra) proceedings and with reference to the 15th September, 1997 letter, that "it was an abuse of process to reinvent or reintroduce evidence that has been previously rejected in a related proceeding...".

In this case, Mr Parkop for the plaintiffs relies on notice given in the earlier proceedings that were struck out. However, copy of that notice letter was not put before me. In his submissions, Mr Parkop relies on the affidavit of Peter Nime, the plaintiffs authorized representative, whose affidavit sworn on 22nd September, 2004, deposes that because the claim now before me is not a new claim, that there is no requirement by the plaintiffs to give fresh notice under s. 5 of the Claims Act because he relies on Sevua .Js ruling that the s. 5 Notice issued in the earlier proceedings is a valid notice.

The court should now ask itself whether on the striking out of the earlier proceedings, that the notice issued in those earlier proceedings remains a valid notice, notwithstanding. It means therefore that the court must consider the effect of the striking out of proceedings.

An applicant invokes the courts power to strike out proceedings on many grounds, based on the courts power to summarily end litigation. The court also has an inherent jurisdiction to control proceedings before it and is one that should not be exercised too readily, particularly if the exercise of it effectively puts on an end to the action. (see William Maki Michael Pundia v PNG Motors [1993] PNGLR 337). In many cases, the courts have opted to amend pleadings or stay proceedings pending action by lawyers to rectify ambiguity. As long ago as 1887 in the case Republic of Peru v Peruvian Guano Company, Chitty .J said;

"If, notwithstanding defects in the pleading...the court is of the view that a substantial case is presented, the court should, I think decline to strike out that pleading but when the pleading discloses a case which the court is satisfied will not succeed, then it should strike out and put a summary end to the litigation".

In this case, the court struck out earlier proceedings because, amongst others, the pleadings were ambiguous. When the proceedings were struck out, they came to an end. It meant the parties could not proceed on the Writ that was before that court. The plaintiff refiled proceedings. The regularity of these proceedings is another issue which has not been addressed by both counsel considering Sevua .J did not make any further orders as to the refiling of fresh proceedings. However, it is worth noting that in his reasons his Honour Justice Sevua had said that he was inclined to accept that the proceedings be struck out "so that fresh proceedings be instituted, and hopefully the pleadings would be done properly." He said that relying on his earlier reasons that "it has been said many times in many cases that the purpose of pleadings is to give the defendant and the court a precise nature of the plaintiffs claim. In this case, the plaintiffs Statement of Claim does not do that... It is quite unfair and improper for this type of pleadings to be permitted by the court to proceed this far." He went to further to say that the court had a duty to protect its process so that it is not abused by litigants. He said "the Statement of Claim in this writ is an abuse of the process, which warrants an order pursuant to O. 12 R. 40 (1)....the defendants application for the proceedings to be struck out is granted." If his Honour had in mind to order that the Statement of Claim be amended, he would have made those orders. The appropriate orders would have been for a stay of those proceedings and an order to amend Statement of Claim would then have been made. But his Honour did not do that, he found that the Statement of Claim did not disclose a reasonable cause of action, and that the proceedings were frivolous and vexatious and so exercised his powers under O. 12 R. 40 (1) of the National Court Rules to strike out the proceedings. Justice Sevua’s orders to strike out the proceedings brought an end to those proceedings.

On the striking out of the earlier proceedings, the s. 5 notice went with it. I say this because the issue of the s. 5 notice is a condition precedent to issuing a Writ of Summons and Statement of Claim.

By way of analogy, I have been referred to the case Joy Kawai an infant by her next friend Kawai Takame v. Motor Vehicles Insurance (PNG) Trust (1998) SC588. In that case, the Supreme Court deliberated on the issue of whether a letter giving notice of claim to the trust outside the period extended by the Commissioner, was valid. In that case, the Insurance Commissioner had granted an extension of 28 days to the plaintiff, within which to give notice of claim under s. 54 (6) of the Motor Vehicles (Third Party Insurance) Act Chapter 295. Prior to that, the plaintiffs sent a letter dated 25th February, 1993, to the MVIT, purporting to give notice. The trust never received that letter and so did not respond to it. The Supreme Court held that the MVIT was under no obligation to reply to that letter, which was also well outside the six month period within which to give notice. However, instead of giving notice within the extended period, the plaintiffs lawyer only sent the approval letter from the Insurance Commissioner to the Trust. The Supreme Court held that he should have attached a copy of his earlier letter giving notice to the letter granting him that extension of time, because then that would have been sufficient notice. The Supreme Court held further that there was no valid notice within the meaning of s. 54 (6) of the MVIT Act. This was because the position at law is that unless notice of intention to make a claim is given within a period of six months after the occurrence of death or injury, no claim lies against the Trust. S. 5 (1) of the Claims Act is clear in that 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.

The plaintiffs, should have exercised their right to seek an extension of time knowing that on the striking out of proceedings, the proceedings are no longer on foot. They could have under those circumstances, written a letter giving notice or if they were out of time, to write seeking an extension of time, to which they would appropriately have attached his Honour Justice Sevua’s decision in relation to the validity of that earlier notice and also enclosing a copy of the earlier letter giving notice. This would have been the appropriate thing to do. But they did not do so.

This is not a case where the court can adjourn to allow the plaintiff time to rectify an anomaly. This is a case where the plaintiffs do not have a basis on which to continue to pursue their claim.

I say this because if parties, claimants or plaintiffs, do not give appropriate notice, that there is deemed to be no cause of action on foot, on which to proceed. As the Supreme Court said in Paul Tohian v Tau Liu SC566; "...it is clear to us that the Notice of Intention to make a Claim is a condition precedent to issuing a Writ of Summons in all the circumstances." (see also Yawasoro Poultry Farm v the PNG Defence Force and the State [2004] N2736; Daniel Hewali v PNG Police Force and the State N2233).

Therefore I find that the plaintiff has not issued the mandatory Notice under s. 5 of the Claims Act and that as such the proceedings are incompetent because there is no cause of action on foot. The plaintiffs clearly are in breach of s. 5 (2) (a) of the Claims Act.

Having ruled on that issue, it is now not necessary to deal with the other applications by the defendants in relation to the form of the pleadings.

The courts formal orders are that;

1. These proceedings are dismissed in their entirety;

2. The plaintiffs shall pay the defendants costs of the proceedings to be taxed if not agreed.

__________________________________________________________________
Lawyer for the Plaintiffs/Respondents : Parkop Lawyers
Lawyer for the Defendants/applicants : Paraka Lawyers