Eddie v Kirokim [2012] PGNC 277; N4932 (10 December 2012)

N4932

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 595 OF 2012

BETWEEN:

PAUL EDDIE for and on behalf of CHIEF KAMBOMYAP ALLOLIM
First Plaintiff

AND:

KIMKA SEPIYAN SUB-TRIBE LAND GROUP INC.
Second Plaintiff

AND:

BILL KIROKIM
First Defendant

AND:

NIGEL PARKER – Managing Director of Ok Tedi Mining Ltd
Second Defendant

AND:

OK TEDI MINING LIMITED
Third Defendant

AND:

PHILIP SAMMAR – Managing Director – Mineral Resources Authority
Fourth Defendant

AND:

MINERAL RESOURCES AUTHORITY
Fifth Defendant

AND:

AUGUSTINE MANO – Managing Director – Mineral Resources Development Corporation
Sixth Defendant

AND:

MINERAL RESOURCES DEVELOPMENT CORPORATION
Seventh Defendant

AND:

HON. BYRON CHAN, MP – MINISTER FOR MINING
Eighth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Ninth Defendant

Waigani: Hartshorn J.
2012: 6th & 10th December

Application to Dismiss proceeding for non compliance with Claims By and Against the State Act – abuse of process – Order 12 Rule 40 national Court Rules

Facts:

This is an application to dismiss the proceeding as an abuse of process pursuant to Order 12 Rule 40 National Court Rules on the grounds that the mandatory requirements of the Claims By and Against the State Act have not been complied with.

Held:

The requisite notice pursuant to s. 5 Claims By and Against the State Act has not been given/. The proceeding is dismissed as an abuse of process pursuant to Order 12 Rule 40 National Court Rules.

Cases cited:

Paul Tohian v. Tau Liu (1998) SC566
Mision Asiki v. Zurenuoc, Provincial Administrator (2005) SC797

Counsel:

Mr. R. Koaru, for the Plaintiffs
Mr. J. Kolo, for the First Defendant
Mr. K Imako, for the Second and Third Defendants

10th December 2012

1. HARTSHORN J: This is an application to dismiss the proceeding. One of the grounds relied upon is that the mandatory requirements of the Claims By and Against the State Act (Claims Act) have not been complied with and consequently the proceeding should be dismissed as an abuse of process pursuant to Order 12 Rule 40 National Court Rules. I will consider this ground first as if it is successful it will determine the proceeding.

2. The first defendant supported by the second and third defendants, contends that the plaintiffs should have given notice of their intention to make a claim against the State pursuant to s. 5 Claims Act but they have not.

3. The plaintiffs contend that:

a) it is not necessary for the plaintiffs to give notice of their intention to make a claim as the State has recognised the claim of the second plaintiff in correspondence that is before the court.

b) the State and the other parties in this proceeding that are part of the State have remained silent on this issue and it is not for the non-State parties to raise it.

Law

4. Section 5 Claims Act provides amongst others, that no action to enforce any claim against the State lies against the State unless notice in writing of an intention to make a claim is given. A notice shall be given within a period of six months after the occurrence out of which the claim arose or where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach.

5. Pursuant to the Supreme Court case of Mision Asiki v. Zurenuoc, Provincial Administrator (2005) SC797, the notice requirements of the Claims Act apply to actions founded on contract or tort or a breach of constitutional rights but not to actions seeking orders in the nature of prerogative writs. Further, the requirement to comply with s. 5 Claims Act has been held to be a condition precedent in the Supreme Court case of Paul Tohian v. Tau Liu (1998) SC566.

6. The substantive relief claimed by the plaintiffs in their Amended Originating Summons is for amongst others, declaratory relief concerning a memorandum of agreement, a community mining continuation agreement or an MOA or other agreements to be signed in Kokopo. This relief relates to an action the plaintiffs believe they have that is founded in contract or possibly in tort. A declaration that K21 million be released, appears to support this. Consequently, I am of the view that a notice pursuant to s. 5 Claims Act should have been given.

7. As to the contention by the plaintiffs that by correspondence that is before this court, the State has recognised the claim of the second plaintiff and therefore notice under s. 5 Claims Act is not necessary, the correspondence referred to are letters from the Acting State Solicitor in August 2006 and the Acting Secretary of the Department of Mining in March 2007.

8. The requirement to give a notice under s. 5 Claims Act is mandatory. No one on behalf of the State can waive these requirements directly or by implication. The Principle Legal Adviser is only able to allow a further time within which a notice shall be given, on sufficient cause being shown. In this regard, there is no evidence that the plaintiffs applied for an extension of time or that any further time has been allowed for them to file a s. 5 Claims Act notice.

9. Consequently, regardless of whether the State has recognised the claim of the second plaintiff, and I specifically do not make comment on that issue, it was necessary for the plaintiffs to give notice of their intention to make a claim pursuant to s. 5 Claims Act.

10. As to the contention that the State is silent on this issue and it is not for the non-State parties to raise it, as I have referred to earlier, it is a condition precedent that notice pursuant to s. 5 Claims Act be given before a proceeding is issued. If a proceeding is issued without the necessary notice being given, a defendant is entitled to question the competency of a proceeding on that ground, as it is affected by the bringing of an incompetent proceeding in which it is named as a defendant and is obliged to defend. Further, Order 12 Rules 40 and 41 National Court Rules permit a party to apply for a dismissal and do not restrict a party to applying in respect of an issue that more directly concerns another party to the proceeding.

11. Given that it was conceded by counsel for the plaintiffs that the requisite notice pursuant to s. 5 Claims Act has not been given and I have found that it should have been, the proceeding should be dismissed as an abuse of process pursuant to Order 12 Rule 40 National Court Rules. Given this finding, it is not necessary to consider the other submissions of counsel.

Orders

12. The Orders of the Court are:

a) This proceeding is dismissed,

b) The plaintiffs shall pay the costs of the first, second and third defendants of and incidental to this proceeding,

c) Time is abridged.

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Warner Shand Lawyers: Lawyers for the Plaintiffs
Kolo & Associates Lawyers: Lawyers for the First Defendant
Allens Lawyers: Lawyers for the Second and Third Defendants