Wrondimi v Vokene [2007] PGNC 36; N3148 (7 February 2007)

N3148

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1345 OF 2001

IN THE MATTER OF THE CLAIMS BY AND AGAINST THE STATE ACT 1996

AND:

IN THE MATTER OF AN APPLICATION BY WILLIAM WRONDIMI FOR AND ON BEHALF OF WAMBA VILLAGERS
Plaintiff

AND:

ALPHONSE VOKENE
First Defendant

AND:

WILLIE KANGARA
Second Defendant

AND:

THOMAS KURSA
Third Defendant

AND:

JOSHUA KAUKUDI
Fourth Defendant

AND:

WILLIE KAUSENA
Fifth Defendant

AND:

JAMES WARI
Sixth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

Lae: Gabi, J
2007: 7 February

PRACTICE AND PROCEDURE – Section 5 of the Claims By and Against the State Act – Application to dismiss proceedings – Writ of Summons issued prior to notice of intention to make a claim given – Originating process not a notice of intention to make a claim under section 5.

Cases Cited:

Casper Kondi v Provincial Administrator, Department of Western Highlands Province (2004) N2755

Daniel Hewali v The State (2002) N2233

Graham Rundle v Motor Vehicle Insurance (PNG) Trust No. 1 [1988] PNGLR 20
Mickey Kaip Wassey v Felix Rangit Aigilo & Ors (2005) N2876
Paul Tohian, Minister for Police and the State v Tau Liu SC 566

Counsel:

R Ankarch, for the plaintiff
D Poka, for the defendants

DECISION

7 February, 2007

Introduction

1. GABI, J: This is an application on notice by the defendants to dismiss the entire proceedings for non – compliance with s.5 of the Claims By and Against the State Act 1996 (hereinafter the "Claims Act").

2. The defendants filed two affidavits: the affidavit of Francis Kuvi sworn on 20 September 2005; and filed on 3 February 2006 and the affidavit of Richard Yombon sworn on 6 March and filed on 7 March 2006. The plaintiff opposes the application and filed the affidavit of David Poka sworn on 1 March and filed on 3 March 2006.

Facts

3. The plaintiff is a representative for and on behalf of himself and forty-four (44) claimants from Wamba village in the East Sepik Province. The plaintiff alleges that on 9 July 1999, the police conducted a raid at Wamba village in which the claimants were assaulted and their houses and personal items damaged. On 11 July 2000, the plaintiff gave instructions to his lawyer to commence proceedings against the State and the policemen alleged to be involved in the raid. On 14 August 2000, the plaintiff’s lawyer sent a letter by facsimile to the Attorney General advising of the nature of the claim and seeking an extension of time within which to make a claim against the State. As no response was forthcoming from the Attorney-General’s Office, the plaintiff’s lawyer sent two further letters on 20 September and 24 October 2000 respectively. On 30 October 2000, the Attorney-General refused extension of time. This letter was received by the plaintiff’s lawyer on 16 February 2001. On 1 May 2001, the Solicitor General wrote to the plaintiff’s lawyer advising that the raid conducted at Wamba village was not unlawful as alleged and denied the claim. On 15 June 2001, the plaintiff filed an application in Court seeking an order for extension of time within which to make a claim against the State. On 23 August 2001, the plaintiff obtained an order for extension of time. The plaintiff was given 28 days from 23 August 2001 to give notice of the claim to the State. On 19 September 2001, the plaintiff filed the Writ of Summons in the National Court Registry in Lae. On the next day, 20 September 2001, the plaintiff gave notice of the claim to the State and sent by registered mail a sealed copy of the Writ of Summons to Solicitor General’s Office. On 18 September 2002, a sealed copy of the Writ of Summons was served on the Office of the Solicitor General. On 27 May 2004, the plaintiff amended the Writ of Summons and served a copy on the Office of the Solicitor General. On 16 July 2004, Paul Paraka Lawyers filed a defence on behalf of the State. On 23 September 2005, an amended defence was filed. On 3 February 2006, the State filed this application on notice to dismiss the entire proceedings for non – compliance with section 5 of the Claims Act.

Submissions

4. Mr Gene of Counsel for the defendants submitted that there was no notice of the claim and therefore the plaintiff has no cause of action against the defendants. He argued in the alternative that if the letter of 20 September 2001 were considered sufficient notice, the service was defective in that it was not served personally and as a result the claim is invalid (See Daniel Hewali v The State (2002) N2233).

5. Mr Poka conceded that the mode of service under s.5 (3) of the Claims Act is personal service and the service of the letter of 20 September 2001 did not comply with the statutory requirement for service. However, he argued that the letter was received by the Solicitor General within 28 days and the Court should treat it as sufficient notice. He urged the Court to use its inherent powers and do justice in the circumstances pursuant to s.155 and s.158 of the Constitution on the basis that the proceedings have been on foot since 19 September 2001, the matter is ready to proceed to trial and the defendants have only recently challenged the action (See Mickey Kaip Wassey v Felix Rangit Aigilo & Ors (2005) N2876). He argued that making the application now is unreasonable and unfair to the plaintiff and urged the Court to dismiss the application (Casper Kondi v Provincial Administrator, Department of Western Highlands Province (2004) N2755).

The Law

6. Section 5 of the Claims Act provides:

"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
• (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
• (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 shown, allows.

(3) A notice under Subsection (1) shall be given by-

• (a) personal service on an officer referred to in Subsection (1); 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 am and 12 noon, or 1.00 pm and 4.06 pm, 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)." (Emphasis mine)
  

7. In Paul Tohian, Minister for Police and the State v Tau Liu SC 566, the Supreme Court held that a notice of intention to make a claim is a condition precedent to a claim against the State. The notice under s.5 must precede the claim. A claimant has no cause of action against the State unless the notice of claim is given. The service of an originating process on the State is not a notice of intention to make a claim under s.5 of the Claim Act. The originating process is the claim itself. (See Graham Rundle v Motor Vehicle Insurance (PNG) Trust No. 1 [1988] PNGLR 20).

8. In this case, the evidence is clear. This action was filed on 19 September 2001. The purported notice was sent by facsimile to the Office of the Solicitor General on 20 September 2001. No notice was given prior to commencement of the proceedings. As the condition precedent for issuing a Writ of Summons had not been complied with, I am of the view that the claim is invalid. I, therefore, dismiss the proceedings with costs.

_________________________________

Paul Paraka Lawyers: Lawyers for the Plaintiff
Pryke & Jansen Lawyers: Lawyers for the Defendants