Yopo v Electoral Commission of Papua New Guinea [2014] PGNC 302; N5883 (13 August 2014)

N5883

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

W.S. NO. 318 OF 2014

BETWEEN:

RICHARD YOPO trading as RICKS CAR HIRES
Plaintiff

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Defendant

Waigani: Kariko, J
2014: 4^th & 13^th August

CONTRACT – practice and procedure - alleged breach of contract by defendant – plaintiff applies to include electoral commissioner and State as defendants – plaintiffs failure to issue section 5 Notice to State under the Claims Act – plaintiff also applies for extension of time to give section 5 notice to State – the law on claims against State is that section 5 notice must be issued to the State as condition precedent to making a claim against State – a claim against State cannot be filed first before seeking extension of time to give section 5 notice - proceeding is incompetent for want of a section 5 Notice under the Claims Act - extension of time sought refused.

Cases cited:
Bernard Uriap v Simon Tokivung (2008) N3444
Kamopu Minatou v Phillip Kumo (1998) N1768
Paul Tohian and The State v Tau Liu (1998) SC566
The State v Downer Construction (PNG) Ltd (2009) SC979

Counsel:
Mr T Manjin, for the Plaintiff
Mr K Kepo, for the Defendant

RULING

13^th August, 2014

1. KARIKO, J: The plaintiff alleges in this proceeding that the Electoral Commission of Papua New Guinea owes him K372, 680 for motor vehicle hire. The following applications have been argued by the plaintiff seeking:
   
   • (1) Leave to amend the writ of summons;
   • (2) Leave to add the Electoral Commissioner and the State as defendants; and
   • (3) Extension of time to give notice of intention to make a claim against the State pursuant to the Claims By and Against the State Act 1996 (the Claims Act).
     
2. The first two applications become relevant only if the last application is granted, so I will deal with that application first.
   
3. On 9^th July 2014 I refused an application by the plaintiff for default judgement. In my ruling, I held that amongst others:
   
   • (1) The Electoral Commission is a part of “the State” for purposes of the Claims Act;
   • (2) The claim by the plaintiff is for breach of contract;
   • (3) The plaintiff is required under the Claims Act to first give notice of his claim before taking court action.
     

Issues

4. The main issue to address is whether this Court can grant an extension of time for notice to be given under the Claims Act when the proceedings have already been filed.
   

The law

5. Relevant provisions of section 5 of the Claims Act reads:

“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.”

(My emphasis)

6. Pursuant to this section a claimant against the State for breach of contract must give written notice of the claim within 6 months of becoming aware of the breach before commencing litigation; (s.5(2)(b)). The notice may be given outside the prescribed 6 months upon approval by the Court “before which the action is instituted”; (s.5 (2) (c) (ii)).
   
7. What then is meant by the expression the Court “before which the action is instituted”? Mr Manjin for the plaintiff argues that the expression must be given its plain reading and therefore it refers to the Court before which the court proceeding has been instituted. Mr Manjin therefore submits that the provision allows for a claimant against the State who has commenced court proceeding against the State to be given an extension of time by the Court dealing with the proceeding to give notice to the State.
   
8. The Claims Act is intended to provide a process for claimants against the State to give the State early notification of their claims so that the State can make due inquiries as to the circumstances of the claims; Kamopu Minatou v Phillip Kumo (1998) N1768.
   
9. The giving of a section 5 Notice is a condition precedent to the commencement of litigation where the prospective defendant is the State. In the leading case of Paul Tohian and The State v Tau Liu (1998) SC566, the Supreme Court (Kapi, DCJ, Sheehan, J and Jalina, J) stated:
   

“The purpose of the requirement to give notice remains the same whether or not the notice is required to be given within six (6) or within such period as may be granted by the Principal Legal Advisor or the Court. It is clear to us that the Notice of Intention to make a Claim is a condition precedent to issuing a Writ of Summons in all circumstances.”

10. There have been many cases since that have approved the principle stressing that a section 5 Notice must be given first before the writ is issued, even if the writ is issued within six months after the date of the occurrence out of which the claim arises.
    
11. One such case is Bernard Uriap v Simon Tokivung (2008) N3444 where Lenalia, J observed after discussing the relevant principles concerning the section 5 notice, that:
    

“It is now law that 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.”

12. Kandakasi, J in his judgement in the case of The State v Downer Construction (PNG) Ltd (2009) SC979 considered s.5(2)(c)(ii) of the Claims Act and held that:
    

“Clearly, the phrase in question does not say that the requirement for notice applies only to cases in which there is to be a court action so as to exclude cases in which there is to be no court action. Instead, it is clear that a person, who is caught out by the 6 months time limit to give notice of one’s intention to make a claim, can apply to the Attorney General or the Court before which he or she will issue proceedings for extension of time to give notice of his or her intention to make a claim.

In my view the words used in s.5 (2) (c) (ii) to describe the court is merely to identify the Court or the forum to which a party may go to with his application for extension of time and nothing more.”

13. I am in agreement with the view expressed by Kandakasi, J. To accept the argument by Mr Manjin would contradict the purpose of the Claims Act and go against the principle established by Paul Tohian and The State v Tau Liu (supra) in that it would allow for claimants to file court action (their claims) and then give notice to the State. If a claimant is not permitted to file a court action within the prescribed 6 months time period without first giving notice to the State, then how could a court action filed outside the 6 months time limit be allowed to stand by the extension of time to give a section 5 Notice? A separate application must be made for the extension of time and if granted, the required notice is given to the State before the court action is commenced.
    

Orders

14. Accordingly I hold that the extension of time sought must be refused. I also find that the proceeding is incompetent for want of a section 5 Notice under the Claims Act. I therefore dismiss the entire proceeding with costs ordered in favour of the defendant.
    

_________________________________________________________________________
Manjin Lawyers: Lawyer for the Plaintiff
Niugini Legal Practice: Lawyer for Defendant