Wassey v Aigilo [2005] PGNC 84; N2876 (12 August 2005)

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FELIX RANGIT AIGILO, JOHN KARL,
INES STEVEN AND TIO NEASINGU
First Defendants

PRACTICE AND PROCEDURE – application to strike out proceedings – Claims By and Against the State Act, Section 5 – whether notice of intention to make claim given in accordance with statutory requirements – onus of proof.

PRACTICE AND PROCEDURE – application for leave to file amended defence – National Court Rules, Order 8, Rule 50 – relevant considerations.

The plaintiff claimed damages for being unlawfully assaulted by the first defendants, who are police officers based in Kimbe. He claims that the second defendant, who was at the time the Commissioner of Police, and the third defendant, the State, are vicariously liable for the actions of the police officers. The plaintiff gave notice of his intention to make a claim within six months after the date of the incident in which he was allegedly assaulted. However, the defendants maintain that service was not effected in accordance with the Claims By and Against the State Act. The defendants brought a motion to strike out the proceedings or, in the alternative, obtain leave to file an amended defence.

Bokin v The Independent State of Papua New Guinea (2001) N2111
Grace Lome v Allan Kundi (2004) N2776
Hewali v Police Force and The State (2002) N2233
Jack Voivoi v The State, unreported, WS No 1239 of 2004, 07.05.05
John Pias v Michael Kodi (2004) N2690
Marinda v The State (1991) N1026
Michael Kewa v Elias Mai Kombo (2004) N2688
Minato v Kumo and The State (1998) N1768
The Papua Club Inc v Nusaum Holdings Ltd and Others (2002) N2273
Theresa’s Pty Ltd and PNGBC v Rio Vista Pty Ltd [1998] PNGLR 283
Tohian and The State v Tau Liu (1998) SC566

PNG – Papua New Guinea
PNGBC – Papua New Guinea Banking Corporation
RPNGC – Royal Papua New Guinea Constabulary

This was an application on notice seeking dismissal of proceedings or, in the alternative, leave to file an amended defence.

This is an application by the defendants to strike out proceedings commenced by the plaintiff on the ground of non-compliance with Section 5 of the Claims By and Against the State Act. In the alternative they seek leave to file an amended defence.

In the substantive case the plaintiff, who claims to be an infant, is seeking damages against the defendants for injuries, pain and suffering he says he incurred as a result of being unlawfully assaulted by the first defendants, who are officers of the Police Force based in Kimbe. The alleged assault occurred in Kimbe on 2 January 2002 when the first defendants allegedly hit the plaintiff on his head with the butt of a gun and a concrete brick.

On 12 March 2002 the plaintiff’s adopted father, Tumu Andake, wrote a letter to the Office of Solicitor-General in the following terms:

RE NOTICE OF INTENTION TO MAKE A CLAIM AGAINST A STATE [SIC], MICKEY KAIP WASSEY, POLICE ASSAULT, 2 JANUARY 2002

I write to inform you of my intention to make a claim against the Police and the State for the assault on my son, Mickey Kaip Wassey, by the police in Kimbe on the 2nd January 2002.

Please let me know if you are prepared to consider the details of my claims.

Further, the details of the claims are contained in the statement of claim which I will forward to you shortly after it is sealed by the courthouse.

There is a dispute about whether, where, when and how the above letter was served. Those important issues of fact are addressed in detail later.

On 18 March 2002 the plaintiff filed a writ of summons in the Kimbe registry of the National Court, with a statement of claim endorsed on it. The plaintiff’s cause of action appears to be assault. He claims general damages and exemplary damages.

On 2 April 2002 Tumu Andake swore an affidavit of service, deposing to service of the writ that day on the second defendant (by serving a copy on Hodges Ette of the Police Legal Services Division at Police Headquarters, Konedobu) and on the third defendant (by serving a copy on Janet Kamane, an employee of the State, at the offices of the Department of Attorney-General, Waigani).

On 8 April 2002 Hodges Ette, describing himself as lawyer for the defendants, filed a notice of intention to defend for all defendants, in the name of Acting Solicitor-General, John Kumura.

On the same day, 8 April 2002, Mr Kumura wrote to Tumu Andake in the following terms:

I have your letter dated 12th March 2002 constituting notice to sue police and the State on the grounds that Police assaulted you. I also have your writ of summons filed on the 18th March 2002 concerning the same matter.

Please find enclosed a sealed copy of the notice of intention to defend pertaining to this matter.

On 17 April 2002 Tumu Andake swore an affidavit of service, deposing to service of the writ, on 18 March 2002, on the first defendants (by serving copies on Senior Constable Paul Erisai of Kimbe Police Station).

On 2 May 2002 another notice of intention to defend was filed on behalf of the defendants, this time by Acting Solicitor-General, John Kumura.

On 13 May 2002 another notice of intention to defend was filed on behalf of the defendants, this time by Provincial Police Commander, Tom Uapipi. On the same day Mr Uapipi filed a defence, pleading that the plaintiff’s next friend had no standing; that the plaintiff was injured when resisting arrest and that reasonable force was used; that the plaintiff was an adult, aged 18 years; and that he had not lost any mental capacity.

On 5 June 2002 another defence was filed on behalf of the defendants, this time by Hodges Ette, in the name of Acting Solicitor-General, John Kumura. The gist of this defence was that the plaintiff’s injuries were brought about by his own actions.

On the same day, 5 June 2002, Mr Kumura wrote to Tumu Andake, enclosing a copy of the notice of intention to defend that he had filed.

On 26 July 2002 the plaintiff filed a reply to the defence (but did not indicate which defence he was replying to). He pleaded that he had standing, as his next friend was his father; that he was an infant, aged below the age of 18 years; and that he had indeed lost 50% of his mental capabilities.

On 27 July 2002 five affidavits (by the plaintiff and three persons claiming to have witnessed the incident of 2 January 2002 and his next friend) were filed. Those affidavits and the reply to the defence were served soon afterwards and no issue has been taken about their service.

On 13 May 2003 Lupalrea Lawyers, of Kimbe, entered an appearance for the plaintiff.

On 22 October 2004 Paul Paraka Lawyers, of Kimbe, gave notice that they had been appointed as lawyers for the defendants. Since then there has been an exchange of correspondence between Paul Paraka Lawyers and Lupalrea Lawyers regarding the case.

On 23 May 2005 Paul Paraka Lawyers filed a notice of motion to dismiss the proceedings.

On 15 June 2005 an affidavit by Tumu Andake was filed. He deposes amongst other things to the circumstances in which he served the notice of intention to make a claim against the State. He states:

The service of the intention to make a claim against the State was served upon the third defendant personally by myself through the introduced secretary who was a female by the name of Janet Kamane in the presence of Karo Yap, a senior pilot with Milne Bay Aviation who showed me the offices of the second and third defendants.

The notice of claim was served to the third defendant as required by law prior to the service of the writ of summons at 10.15 am on Friday the 30th of March 2002 [sic] and it was received by Ms Janet Kamane at the office of the Attorney-General which is located in the old Australian High Commission building in Waigani.

On 20 June 2005 the defendants filed an amended notice of motion, seeking orders that:

That is the motion now before the court. It is supported by four affidavits, the contents of which are summarised in the table below.

No	Deponent	Content
1	Tio Neasingun, Constable, RPNGC, 17.02.05	States that he was one of the police officers involved in the incident – the plaintiff was suspected to have been unlawfully on premises the previous night – he resisted arrest so the police used reasonable force to effect his arrest – therefore seeks leave to file an amended defence as he believes he has a defence on the merits – annexed a draft amended defence.
2	Tau Tau, Professional Legal Assistant to the Solicitor-General, 06.04.05	States that his duties include filing, searching etc on instructions from the Solicitor-General – has not received any direction from the Solicitor-General or the Attorney-General or their personal secretaries as the Solicitor-General was not served with a notice of claim – has searched their records and ascertained that there is no record of a notice of claim – nor is there any application for extension of time to serve notice on the State – therefore verily believes that no notice of claim was lodged.
3	Ahwong Asan, lawyer, 23.05.05	Deposes to the procedural history of the case and the steps taken to search the records of the Office of Solicitor-General to ascertain compliance with Sections 5 and 7 of the Claims By and Against the State Act – also sets out the correspondence between the lawyers.
4	Francis Kuvi, Acting Solicitor-General, 13.07.05	States the procedure by which notices of claims are received – has searched the records of both his office and the Attorney-General’s office and ascertained that neither of them has received a notice of claim for this matter – Janet Kamane has never been the personal secretary to the Attorney-General or the Solicitor-General – therefore she was never one of the authorised persons to accept service.

On 15 July 2005 the motion was argued. Mr Asan, of Paul Paraka Lawyers, appeared for the defendants. Mr Lupalrea, of Lupalrea Lawyers, appeared for the plaintiff.

Mr Asan submitted that the plaintiff had not given notice of the claim on any of the persons authorised by Section 5 of the Claims By and Against the State Act. There was no proof of service. The affidavits of Francis Kuvi and Tau Tau contain evidence that notice was not given. Their evidence should be preferred to John Kumura’s letter of 8 April 2002 that purports to confirm receipt of the notice of 12 March 2002. Mr Asan referred to a recent case decided by Lenalia J: Jack Voivoi v The State, unreported, WS No 1239 of 2004, 07.05.05. Apparently the Acting Solicitor-General responded to a letter from a person purporting to be a notice of a claim. The court held that Section 5 was not complied with as an officer of the Office of Attorney-General deposed to conducting a computer search in their case management system and finding no Section 5 notice. (Mr Asan, did not, however, furnish a copy of the judgment in that case and I have been unable to obtain a copy.) In this case, Mr Asan concluded, it is clear that Section 5 was not complied with. Therefore the court should dismiss the entire proceedings.

As to the alternative order being sought – filing an amended defence – Mr Asan submitted that this is a matter for the discretion of the court. The proposed amendments are for the purpose of determining the real questions in dispute and would not cause prejudice or injustice to the plaintiff.

Mr Lupalrea submitted that there was sufficient evidence to show that notice of intention to make the claim was given within the required time and served on the right person. He referred to Tumu Andake’s letter of 12 March 2002 and John Kumuru’s reply of 8 April 2002 in support of that proposition. Mr Lupalrea submitted that if the defendants wanted to challenge compliance with this procedural requirement they should have raised it before and not left it until when the matter is being set down for trial.

SHOULD THE PLAINTIFF’S CASE BE DISMISSED DUE TO FAILURE TO COMPLY WITH SECTION 5 OF THE CLAIMS BY AND AGAINST THE STATE ACT?

(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

(a) within a period of six months after the occurrence out of 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

(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, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).

There is now a large body of case law demonstrating the importance of compliance with Section 5. Key principles to emerge from the cases include the following:

In the present case the argument about Section 5 centres on the letter of 12 March 2002 written by Tumu Andake to the Solicitor-General. The defendants concede that this letter was written and that it was acknowledged by Acting Solicitor-General, John Kumura, on 8 April 2002. The letter meets the ‘how’, ‘what’, ‘when’ and ‘who’ requirements of Section 5. The defendants assert, however, that the method of service was defective. They say it was not personally served on the Departmental Head or the Solicitor-General and it was not left with an authorised secretary, as required by Section 5(3).

At this juncture it is necessary to consider who bears the onus of proof. A person who moves the court to strike out proceedings for non-compliance with any rule of practice or procedure bears the onus of proving the circumstance of non-compliance relied on. (Theresa’s Pty Ltd and PNGBC v Rio Vista Pty Ltd [1998] PNGLR 283, National Court, Sevua J; Grace Lome v Allan Kundi (2004) N2776 National Court, Lay J.) Therefore the defendants bear the onus of proving on the balance of probabilities (this being a civil case) that the notice was not served by any of the proper methods. They must prove that the notice was:

Mr Asan asserts that there is evidence of all of the above in the affidavits of Mr Kuvi and Mr Tau. They both indicate that they have searched the records of the Department and the Solicitor-General and there is no trace of the notice. As for Janet Kamane – the person with whom the notice was allegedly left – she has never occupied the position of personal secretary to either the Departmental Head or the Solicitor-General.

Now, if that were the only evidence before the court, I might be inclined to conclude that the onus of proof had been discharged. But there is countervailing evidence. First there is the notice. It is a real document, not a concoction. Secondly there is evidence that it was left with Janet Kamane, who I conclude was an officer in the Department or the office of Solicitor-General at the relevant time. (The defendants do not deny that she was an officer and do not disavow knowledge of her identity.) Thirdly there is evidence that the notice was actually received by the Acting Solicitor-General. Mr Kumura’s letter of 8 April 2002 acknowledges receipt of the notice. So somebody gave it to Mr Kumura. Who? I infer from the evidence that it was Janet Kamane. And who was she and what position did she occupy? She was not the personal secretary to either the Departmental Head or the Solicitor-General. I infer from the evidence, however, that she was a person apparently occupying the position of personal secretary to the Departmental Head or the Solicitor-General and that the notice was given to her within the prescribed time. It is missing the point to say, as the defendants emphasise, that she was not actually holding either position. If she appeared, to a reasonable person, to be a personal secretary, that was sufficient. Those are all reasonable inferences of fact to draw from the evidence. It was incumbent on the defendants to bring better evidence to rebut those inferences, eg by bringing evidence that nobody of that name ever held a secretarial position, that the person in question was a cleaner, not a secretary, or that she refused to accept the notice. That evidence has not been presented. The defendants have not discharged the onus of proof.

I conclude that, as a matter of fact, the plaintiff served notice under Section 5 in an acceptable manner – under Section 5(3)(b). Accordingly Section 5 was complied with.

In arriving at that conclusion I am confident that I am interpreting and applying Section 5 in a way that gives paramount consideration to the dispensation of justice. I make that comment in light of Section 158 of the Constitution, which states:

(1) Subject to this Constitution, the judicial authority of the People is vested in the National Judicial System.

(2) In interpreting the law the courts shall give paramount consideration to the dispensation of justice. [Emphasis added.]

Where proceedings against the State have been on foot for a considerable time, and the State has not taken proactive steps to challenge the plaintiff’s cause of action, the benefit of any reasonable doubt as to compliance with the Claims By and Against the State Act should be given to the plaintiff. Here the plaintiff commenced proceedings in March 2002. The State responded the following month. In fact three separate notices of intention to defend were filed. Then two defences were filed. Three years have passed and, just as the plaintiff wants to bring the case to trial, the State wishes to hark back to Section 5 and get the proceedings dismissed. To my mind, interpreting and applying the law in a way that would allow a case like this to be struck out would not be dispensing justice. It would defeat justice. Individuals should be encouraged to come to the courts and agitate their grievances against the State by lawful and peaceful means. The gates of the courts should not be locked unnecessarily.

The defendants’ application is made under Order 8, Rule 50 of the National Court Rules, which states:

(1) The Court may, at any stage of any proceedings, on application by any party or of its own motion, order, on terms that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.

(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.

(3) Where there has been a mistake in the name of a party, Sub-rule (1) applies to the person intended to be made a party as if he were a party.

(4) This Rule does not apply to the amendment of a minute of a judgement or order.

The defendants wish to file an amended defence, set out in the annexure to Tio Neasingu’s affidavit. I have considered this issue in light of two recent Mt Hagen cases I decided: Michael Kewa v Elias Mai Kombo (2004) N2688 and John Pias v Michael Kodi (2004) N2690. In both cases, relying heavily on Gavara-Nanu J’s judgment in The Papua Club Inc v Nusaum Holdings Ltd and Others (2002) N2273, I set out the considerations to take into account in deciding whether a party ought to be granted leave to amend its pleadings:

All of the considerations favour the granting of the application to amend the defence. I therefore grant the application.

This motion involved two separate applications by the defendants. The first was refused. As for the second, it was granted, but as that application was necessitated by inadequacies in the defendant’s pleadings, the plaintiff must be compensated by an order for costs. I will order that costs be paid by the third defendant.

Lawyers for the plaintiff : Lupalrea Lawyers
Lawyers for the defendants : Paul Paraka Lawyers

National Court of Papua New Guinea

Wassey v Aigilo [2005] PGNC 84; N2876 (12 August 2005)