Maps Tuna Ltd v Manus Provincial Government [2005] PGNC 90; N2867 (18 July 2005)

N2867

PAPUA NEW GUINEA

[IN THE NATION COURT OF JUSTICE AT LAE]

OS NO. 425 of 2003

BETWEEN:

MAPS TUNA LIMITED

-Plaintiff/Respondent-

AND:

MANUS PROVINCIAL GOVERNMENT
-Defendant/Applicant-

Lae: Davani, J
2005: 11, 18 July

PRACTISE AND PROCEDURE – proceedings filed before giving s.5 notice under Claims by and Against State Act – issue arose midway through proceedings – court to exercise inherent powers to put a stop to ‘irregular’ proceedings

Cases cited:

Tau Liu v. The State SC566

Karl Paul v. Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085
Paul & Mary Bal v. Kenny Taia & 2 ors.& the Independent State of Papua New Guinea N2481

Counsel:

J. Kais for Plaintiff/Respondent
P. Kuman for Defendant/Applicant

DECISION

18th July 2005

DAVANI, J: I have before me Notice of Motion filed by Posman Kua Aisi Lawyers on 22nd June, 2005, which motion seeks orders that pursuant to order 10 rule 21 of the National Court Rules (‘NCR’) that the following questions be tried as a stated case:

1. "Whether section 5 notice under The Claims By and Against the State Act 1998 must be given prior to suing a Provincial Government;
   
2. If so, whether the failure by the plaintiff to give such a notice makes these proceedings a nullity."
   

Posman Kua Aisi Lawyers, for the Defendant/Applicant (‘applicant’), also relies on the courts inherent powers under s.155(4) of the Constitution, to bring these proceedings to an end because of the plaintiffs acceptance as demonstrated on the pleadings, that s.5 Notice under the Claims By and Against the State Act (‘CBASA’), was not given.

I should state at the outset, that Mr Kais for the defendant/respondent (‘respondent’) although accepting that s.5 notice was not given, submits that it would not serve any purpose if the proceedings were dismissed because the respondent could always give notice and reinstitute proceedings. He submits that both parties would save a lot in costs and time if the proceedings were allowed to continue and brought to a finality.

Before I discuss the law, I note that the respondent originally commenced these proceedings on 5th August, 2003, seeking various declaratory orders. The orders sought were in relation to the existence of a valid Ship Management Agreement (‘the agreement’) between the parties and that the applicant under the agreement, had no right to remove two fishing vessels it owned, from the respondents possession and management.

However, on 23rd May, 2005 and with the consent of both parties, the court ordered that the proceedings commence by pleadings and that the respondent file and serve a statement of claim within fourteen (14) days. Various other orders were made as to the filing of other pleadings.

On 27th May, 2005, the respondent filed the Statement of Claim. On 3rd June, 2005, the applicant filed Request For Further and Better Particulars. On 8th June, 2005, the respondent filed an amended Statement of Claim. On 7th June, 2005, the respondent filed its Further and Better Particulars. On 22nd June 2005, the applicant filed the motion that is now before me. On 30th June, 2005, the applicant filed its Defence to the Amended Statement of Claim and its Cross-Claim.

It appears the applicant’s motion was filed after it received the respondents Further and Better Particulars. I say this because Mr Kuman for the applicant in its Request for Further and Better Particulars, had requistioned whether the s.5 Notice under the CBASA had been issued. In paragraph 1 of its Further and Better Particulars, the respondent, through its lawyers, stated:

"Notice of Intention to sue has not been given pursuant to section 5 of The Claims By and Against the State Act, prior to institution of these proceedings"

So the issue before me now is, noting admission by the Respondent of the lack of notice, whether I should and can put an end to these proceedings, considering the motion before me seeks that the issue of the lack of the s.5 notice be considered and tried as a stated case.

I do not think it necessary that this issue be tried as a stated case because the respondent has already admitted that s.5 notice was not given to the State. The issue of the s.5 Notice in proceedings against the State or an entity of the State, in this case a Provincial Government, is mandatory. If s.5 Notice has not issued, then there is no cause of action on foot because notice of intention to make a claim is a condition precedent to issuing a writ of summons in all circumstances. (see Tau Liu v. The State SC 566). This is not a case where the respondent has given notice but is out of time. Nor is it a case where notice was given, but was not acknowledged by the State.

This is a clear case where the plaintiff/respondent did not give the mandatory s.5 Notice and it admits and accepts that fact. The court must, where there is a clear irregularity in process, exercise its inherent powers in ensuring that these proceedings are brought to an end. The court has a duty to control and conduct proceedings before it to ensure that the conduct of proceedings before it is subject to jurisdictional limits set by the court. Injia. J discussed this issue in Karl Paul v. Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085 delivered in Lae on 17 April, 2001. His Honour said:

"The court has wide powers to control the conduct of proceedings before it, subject of course to jurisdictional limitations fixed by statute. It is in the inherent jurisdiction of the court to take firm control of the proceedings to ensure that the business of the court is conducted in an orderly and fair and timely manner and to ensure that justice is done in the particular case."

His Honour went further to discuss the courts discretion when acting on its own initiative to screen and weed out claims. He said:

"There is a wide discretion vested in the court by the National Court Rules to screen and weed out claims which do not disclose a reasonable cause of action, are frivolous and vexatious or an abuse of process of the court (O. 12 R. 40) or the documents filed in court is scandalous, irrelevant or otherwise oppressive (O.2 R.29) or on the ground of irregularity. It is open to the court to raise and determine questions concerning the regularity (O.1 R.1 – R.9) or competency of proceedings at any stage of the proceedings with or without application by an interested party". (my emphasis).

I also discussed this issue in the case Paul and Mary Bal v. Kenny Taia and 2 ors. and the State N2481 dated 29th October, 2003, where after a trial, I found that the plaintiffs had not issued the s.5 notice. Exercising powers available to me under O.1 R.1 to R.9 of the National Court Rules, I dismissed the proceedings in their entirety for there being no cause of action. In this case, the plaintiff had since the filing of the summons in 2003, the opportunity to withdraw the summons and to give the mandatory notice in writing. But it did not do that.

It should also be borne in mind that regardless of the mode of commencement of proceedings, whether it be by writ of summons or originating summons, that if the action is against an entity of the State, including Provincial Governments, that notice under s.5 of the CBASA must be given. (see Morobe Provincial Government v. Independent State of Papua New Guinea WS 1534 of 2003; WS 85 of 2003; WS 1415 of 2004 dated 12th April 2005 unpublished judgments of Davani. J). However, the situation may be different in a judicial review where two different views are raised by the National Court in relation to the issue of the s.5 notice. But that issue is not before me now. In this case, no such notice was given, either before filing the originating summons in 2003 or before filing the Statement of Claim after 23rd May, 2005.

Relying on Tau Liu (supra) Paul and Mary Bal (supra), and Morobe Provincial Government (supra), I find that the plaintiffs action must not be allowed to remain on foot. Until such time this irregularity is corrected, the proceedings must stand dismissed.

As to costs, I have not heard submissions from either counsel as to whether the issue of the lack of notice was raised after the proceedings were filed in 2003. I only have before me a letter from Mr Kuman of the applicant to the respondents lawyers dated 30th May 2005, which is attached as annexure ‘PK1’ to Mr Kuman’s affidavit sworn on 18 June, 2005. In that letter, Mr Kuman requested the respondents lawyers to consent to a discontinuation of these proceedings if the respondent had not issued the s.5 notice. I have heard that Mr Kuman did not receive a response from the respondents until 9th July 2005, when Pryke and Bray Lawyers faxed him a letter dated 8th July 2005, requesting that the applicant reconsider moving the application because it would not serve any purpose. Mr Kais for the respondents presented two alternatives to the applicants lawyer, either to abandon its Defence pleading the lack of notice under s.5 of CBASA or that parties agree to discontinue the claim.

In response and in submissions before me, Mr Kuman pointed out that he only sighted Mr Kais’s letter in court and that the respondents lawyers had never responded to his letter of 30th May 2005. He submitted that it had been a month since he sent that letter, only to be presented a response in court. I find that Pryke and Bray lawyers did not have the courtesy to respond to Mr Kuman’s letter, hence his filing the application now before me and also incurring the extra unnecessary costs and expenses of travel to Lae. It is obvious that this matter or issue could have been resolved earlier, if the respondents lawyers had given a response.

On that basis, I will order that the respondents pay the applicants costs of the proceedings on a Solicitor-Client basis, and to be assessed from 30th May 2005, when, based on the materials before me, the issue was first raised by Mr Kuman.

The Court’s formal orders are;

1. The proceedings are dismissed in their entirety;
   
2. The respondent/plaintiff shall pay the applicant/defendants costs of the proceedings on a solicitor/client basis, to be assessed on and from 30th May 2005.
   

Lawyer for Plaintiff/Respondent: Pryke & Bray Lawyers
Lawyer for Defendant/Applicant: Posman Kua Aisi Lawyers