Wasa v Anda [2010] PGNC 116; N3985 (14 April 2010)

N3985

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS N O. 248 OF 2008

BETWEEN:

ROKA WASA (Deceased) by his next of kin KENNY ROKA
Plaintiff

AND:

THOMAS ANDA – DIRECTOR, HEALTH SERVICES, DEPARTMENT OF SOUTHERN HIGHLANDS PROVINCE
First Defendant

AND:

JOHN MONDALME HUMAN RESOURCES MANAGER, DEPARTMENT OF SOUTHERN HGIHLANDS
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Mt. Hagen: David, J.
2009: 24 July
2010: 14 April

PRACTICE & PROCEDURE – application to dismiss proceedings for non-compliance with condition precedent – s. 5 Claims By And Against the State Act 1996 – application granted.

Cases Cited:
Graham Rundle v. Motor Vehicles Insurance (PNG) Trust No.1 [1988] PNGLR 20
Paul Tohian, Minister for Police and The State v. Tau Liu (1998) SC566
William Trnka v. The State [2000] PNGLR 294
John Bokin v. The Independent State of Papua New Guinea (2001) N2111
Daniel Hewali v. Papua New Guinea Police Force and The Independent State of Papua New Guinea (2002) N2233

Counsel:
R. Otto, for the Plaintiff
J.Y. Doa, for the Third Defendant

BRIEF REASONS FOR RULING ON MOTION

14 April, 2010

1. DAVID, J: INTRODUCTION: By a Notice of Motion filed on 11 December 2008, the Third Defendant sought, inter alia, an order that it be granted leave to file its defence out of time pursuant to O.1 r. 15 and O.7 r.6(2) of the National Court Rules or alternatively, that the entire proceedings be dismissed on the ground that the Plaintiff failed to give notice pursuant to s.5 of the Claims By and Against the State Act (the Claims Act).

2. The Third Defendant relies on the Affidavit in Support of Ms. Jacinta Yosidha Doa, a lawyer in the employ of the Office of the Solicitor General, Mt. Hagen, sworn on 20 November 2008 and filed on 11 December 2008 to support its application.
3. The Plaintiff contests the application. He relies on his own Affidavits; the first one was sworn on 12 June 2008 and filed on 13 June 2008 (the Plaintiff's First Affidavit) and the other one was sworn and filed on 9 July 2009 (the Plaintiff's Second Affidavit).

BRIEF BACKGROUND

4. On 10 March 2008, the Plaintiff filed his writ of summons endorsed with a statement of claim. He claims that he is the eldest son of Roka Wasa, deceased (the deceased) who had been in the employ of the Division of Health, Department of Southern Highlands Province from 1 July 1978 until his death on 20 August 2002. He claims that he has been pursuing the defendants for five years since 2003 for the payment of the deceased's final entitlements, but the defendants have been negligent in not paying him even after having obtained an order for the payment of K10,000.00 to him in proceedings he commenced in the District Court at Mendi by Complaint No. 384 of 2007. He claims to have suffered loss and damage in the course and will continue to do so until the deceased's final entitlements are settled.

5. The Plaintiff therefore claims against the defendants, general damages, exemplary damages, special damages, interest at 8% and costs of the proceedings.

ISSUES

6. The issues for determination are:-

1. whether the Third Defendant has a defence on the merits;

2. whether the Third Defendant has provided a reasonable explanation for not filing a defence within the prescribed time limit;

3. whether the Third Defendant has a valid reason for the delay in bringing the application for leave;

4. whether the Plaintiff served a notice of intention to make a claim against the Third Defendant before commencing these proceedings.

7. Whiles the order to dismiss the proceedings for want of compliance with s.5 of the Claims Act is sought as an alternative relief, I propose to deal with the matter first as its determination in favour of the Third Defendant will be fatal to the continuation of these proceedings. To find otherwise will warrant the discussion of the other issues.

DISCUSSION OF ISSUES

Whether the Plaintiff served a notice of intention to make a claim against the Third Defendant before commencing these proceedings?

8. Ms. Doa of counsel for the Third Defendant contended that since receiving the relevant file on the matter from the Acting Solicitor – General on 19 November 2008, she had discovered that although no notice of intention to make a claim against the State was given in accordance with s.5 of the Claims Act prior to filing these proceedings, the writ was served on the State via the Office of the Solicitor – General. Counsel argued that if the notice were served as claimed by the Plaintiff, a stamp should have been affixed to the notice bearing details of service including the signature of the person apparently occupying the position of personal secretary to the Solicitor-General. She therefore submitted that the failure to comply with the mandatory requirement warranted dismissal of the entire proceedings.

9. To the contrary, Mr. Otto argued that the Plaintiff did give his notice of intention to claim against the State as required by s.5 of the Claims Act. The affidavit produced on behalf of the Plaintiff is that he purportedly personally served the notice dated 10 January 2003 at the Office of the Solicitor – General located at 7th floor, Sir Buri Kidu Haus: paragraph 3 of the Plaintiff's Second Affidavit and paragraph 6 and annexure "A" of the Plaintiff's First Affidavit.

10. Mr. Otto further contended that in the absence of any affidavit evidence to the contrary from the data entry clerk or records clerk employed at the Office of the Solicitor General, Waigani as to the Plaintiff's claim that he did in fact serve his notice, the Affidavit evidence produced by Ms. Doa as counsel for the Third Defendant should be disregarded as hearsay or unsatisfactory and a finding of fact that the Plaintiff did give his notice should be made.

Reasons for ruling

11. A notice of intention to make a claim against the State is a condition precedent to issuing a writ of summons: s. 5 (1) of the Claims Act and Paul Tohian, Minister for Police and The State v. Tau Liu (1998) SC 566. The notice must precede the claim.

12. The notice in writing and giving sufficient details of the intended claim such as time, date, names of people and place of occurrence, copies of any correspondence or such other information that could enable the State to carry out its own investigations must be given within six months after the date of the occurrence out of which the claim arose unless extended by the Principal Legal Adviser or the court which the action is instituted on sufficient cause being shown: see s.5 (2) of the Claims Act; Daniel Hewali v. Papua New Guinea Police Force and The Independent State of Papua New Guinea (2002) N 2233 and William Trnka v. The State [2000] PNGLR 294. A claimant has no cause of action against the State unless the notice of claim is given: Graham Rundle v. Motor Vehicles Insurance (PNG) Trust No. 1 [1988] PNGLR 20; Paul Tohian; Daniel Hewali.

13. The issuing and serving of a writ of summons on the State is not a notice of intention to make a claim for the purposes of s.5 of the Claims Act because it is the claim itself: Graham Rundle.

14. The requirement to give notice to the appropriate person and the method of serving the notice is mandatory: John Bokin v. The Independent State of Papua New Guinea (2001) N2111. The notice must be personally served on the Departmental Head of the Department responsible for justice matters or the Solicitor-General or by leaving the notice with the personal secretary of either of those designated persons during the prescribed working hours.

15. The affidavit evidence produced by the Plaintiff lacks full details of service of the purported notice on the Solicitor Genral. For instance, if the Plaintiff claims that he personally effected service at the Office of the Solicitor General located at 7th Floor, Sir Buri Kidu Haus, details of the date, time and the person served with the notice are necessary to give credence to his claim. I note at paragraph 4 of the Plaintiff's Affidavit sworn and filed on 9 July 2009 that the Plaintiff says 'I was acting on my own so never knew that I could do an Affidavit of service to confirm the personal delivery of the letter'. I think it is very easy to say that in hindsight. There must be evidence that the mandatory requirement to give notice on appropriate persons as was observed in John Bokin were complied with. Once that is established, it is then incumbent upon the Third Defendant to produce evidence in rebuttal if not satisfied with service.

16. The pleadings indicate that the Plaintiff took out a Complaint No. 384 of 2007 in the District Court at Mendi where judgment for K10, 000.00 was entered in his favour. According to the order of the District Court dated 9 August 2007 a copy of which is annexed to the Plaintiff's First Affidavit as annexure "B", judgment was entered by consent. Can it be inferred that the letter dated 10 January 2003 addressed to the Solicitor-General was notice in respect of the District Court proceedings if I accept that it was actually served as claimed by the Plaintiff? It is possible. The chronology of events suggest that if the notice had been served in accordance with s.5 of the Claims Act, then the condition precedent to issuing one of the proceedings would have been met. The District Court proceedings were the first action filed in time. My view, going by the tenor of s.5 (1) of the Claims Act, is that the same notice cannot be relied on the file a multiplicity of proceedings where notice is required to be filed prior to commencing an action.

17. I agree with the submission by counsel for the Third Defendant that no notice has been given in this case.

18. If these proceedings were allowed to continue assuming the Plaintiff had complied with the requirements under s.5 of the Claims Act, (which I have found to the contrary) issues of duplicity of proceedings and abuse of process will still arise.

19. I therefore find that these proceedings have not been properly instituted.

ORDER

20. Consequently, I order the dismissal of the entire proceedings with costs following the event.

Mawa Lawyers: Lawyer for the Plaintiffs
Solicitor-General: Lawyer for the Third Defendant