Kopoe v Attorney General of Papua New Guinea [2014] PGNC 83; N5624 (4 June 2014)

N5624

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 612 OF 2013

JOHN HENRY KOPOE
Plaintiff

AND

THE HONORABLE KERENGA KUA
ATTORNEY GENERAL OF PAPUA NEW GUINEA
First defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second defendant

Popondetta: Toliken, AJ
2014: 03rd, 04th June

PRACTICE AND PROCEDURE – Application for extension of time to give notice to sue – Claims By and Against the State Act – Need to show sufficient cause for delay – Delay in giving notice explained – Reasonable cause of action shown – No prejudice to the State, if any, State contributed by Attorney General's delay of 11 months and 24 days in responding to request for extension of time – Extension granted – Plaintiff to serve notice within 21 days – Claims by and Against the State Act 1996, s 5 (2) (b) (ii).

Cases Cited:

Rundle v Motor Vehicle Insurance (PNG) Trust Ltd [1988] PNGLR 20
Rawson Construction Ltd v Department of Works [2005] SC 777
Ovoa Rawa –v- Motor Vehicle Insurance Trust (PNG) Ltd [1994] N1276
Dick Nauka v Motor Vehicle Insurance (PNG) Trust (1997) N1680
William Trnka v The State [2000] PNGLR 294
Viviso Seravo v Jack Bahofo (2001) N2078

Counsel:

T. Ilaisa, for the Plaintiff
No Appearance, for the Defendants

JUDGEMENT

1. TOLIKEN AJ: By way of originating summons the Plaintiff seeks leave for extension of time to serve notice to sue the State pursuant to Section 5 (2) (c) (ii) of the Claims by and Against the State Act (the Act) after the 1st defendant refused to grant extension.
   
2. I am satisfied that process was served duly on the Respondents.
   

THE FACTS

3. The brief facts in support of the application are as follows. On the night of the 15th of June 2011 after the State of Origin game between Queensland and New South Wales, a relative of Constable Nindon Bungewa (a policeman attached to the Popondetta Police Station) was stabbed by a youth. The suspect fled into the direction of the Plaintiff's residence described as Section 59 Lot 25, Popondetta town.
   
4. Constable Nindon Bungewa and other policemen one said to be Constable Otto Kaboir pursued the suspect in a police vehicle to the Plaintiff's premises and parked the vehicle under a tree outside the premises. Constable Bungewa alighted from the vehicle and confronted the Plaintiff and his wife with a gun and demand that they hand over their son whom they suspected was involved in the stabbing. The Plaintiff and his wife protested saying that their son was at home with them all the time.
   
5. Constable Bungewa was not satisfied with that hence he warned them to leave the house before he returns and burn the house down and shoot them dead. They drove off but then returned some 20 minutes later with Constable Bungewa's relatives, shouting and screaming. They then proceeded to damage the Plaintiff's house by breaking the fibro walls with rocks and stones. As his relatives were doing this Constable Bungewa continued to demand the Plaintiff to hand over his son. Photographs of the damage are attached to the Plaintiff's supporting affidavit. The damage was estimated at K30,000.00. The attack and damage to their property left the Plaintiff and his family shocked and traumatized.
   
6. On 15th June 2011 the Plaintiff lodged a formal complaint with the Police Station Commander (PSC) at Popondetta followed by another letter to the Provincial Police Commander (PPC) on the 18th of June 2011. By letter dated 26/06/11 one Titus Gegera (a neighbour of the plaintiff whose property was also damaged) wrote on their behalf to the Police Commissioner.
   
7. The Plaintiff then waited for a response from the Commissioner but did not get any. A colleague advised him that the Public Solicitor can assist people like him so in early 2012 he applied to the Public Solicitor for legal aid. Legal aid was approved on 14th September 2012. He learnt, however, that he was required to give notice to the State if he wanted to sue it. He then instructed his lawyer to seek extension of time to give notice from the Attorney General.
   
8. Mr. Ilaisa of the Public Solicitor's wrote to the Attorney General on 24th October 2012 for extension of time. He did not receive a reply so he wrote again after 3 months on 18th February 2013. That still brought no response so Mr. Ilaisa wrote yet again on 10th May 2013.
   
9. Having received no response from the Attorney General Mr. Ilaisa proceeded to prepare an application to go before the National Court for extension of time. He filed these applications on the 13th November 2013 at the National Court in Popondetta.When he returned to his Head Office he came upon the Attorney General's response by letter dated 30th September 2013. It was received by post by the Public Solicitor on the 4th November 2013.
   
10. By his letter the Attorney General refused to extend time on the grounds that the Plaintiff offered no reason for the delay within 6 months and that he'd not given adequate evidence that the State will not be prejudiced.
    
11. It took a total of some 14 months from the date of the alleged incident (11th June 2011) to the date the Attorney General refused to extend time. It took 7 months for the Attorney General to response to the Plaintiff's application.
    

THE LAW

12. According to Section 5 of the Act persons intending to sue the State must first give written notice of their intention to the Solicitor General or the relevant Departmental Head within 6 months from the date the cause of action arose or in a claim for breach of contract within 6 months from the date of breach or within such period that the Principal Legal Advisor (the Attorney General) or the Court before which the action is instituted on sufficient cause being thrown, allows.
    
13. The grant of leave to extend time (by Attorney General or the relevant court) is, however, subject on one important pre-condition – the applicant must show "sufficient cause." What constitutes sufficient cause is determined by the circumstances of each case and the onus is on the Plaintiff to establish before the relevant authority the reason(s) for the delay in giving the required notice. In Dick Nauka v Motor Vehicle Insurance (PNG) Trust (1997) N1680 Sawong AJ. (as he then was) when considering an application for extension of time to give notice of an intention to make a claim under Section 54 (6)(b) of the Motor vehicles (Third Party) Insurance Act Ch. 295 which is in similar terms as Section 5 (2)(c)(ii) of the Claims by and Against the State Act, said:
    

"What is sufficient cause will depend on the reasons and explanation put forward by the Plaintiff as to why he did not lodge his claim within the stipulated period, and why he allowed time to lapse. What is sufficient cause would mean that each application must be considered on its own merit. Thus the expression must be interpreted widely rather than narrowly. Of course one would include a consideration of any prejudice that may or might be caused to the Defendant by the delay."

14. Lack of sophistication or literacy, ignorance of the legal requirement of notice or disability and immobility as a result of a motor vehicle accident can be held as "sufficient cause" (Ovoa Rawa –v- Motor Vehicle Insurance Trust (PNG) Ltd [1994] N1276 per Injia J (as he then was). Accessibility to legal services is also a relevant factor to be taken into account. Hence in a case where the plaintiff was a resident of Port Moresby where legal services are readily available and he had engaged two separate law firms to pursue his claim with the Police Commissioner for an assault on his son where he had written personally almost immediately to the Commissioner and was given an undertaking that an investigation will be conducted into his complaint, the actions of his lawyers in simply writing separately to the Commissioner instead of giving notice resulting in a delay of over a year was held to be not a "sufficient cause for the delay". (William Trnka v The State [2000] PNGLR 294 per Sevua J.)
    
15. The test is of course well settled and established that the Plaintiff's application must show "sufficient cause" for the Court (or the Attorney General for that matter) to exercise its discretion to allow an extension (Rundle v Motor Vehicle Insurance (PNG) Trust Ltd [1988] PNGLR 20).
    
16. In Rawson Construction Ltd v Department of Works [2005] SC 777 the Supreme Court, when approving the statement by Kandakasi, J. in Viviso Seravo v Jack Bahofo (2001) N2078 held that sufficient case will be shown if the applicant is able to:
    
    • (a) provide by appropriate evidence a reasonable explanation for not giving notice within the period stipulated under Section 5 of the Claims By and Against the State Act 1996 and where there is a delay on applying for an extension of time, provide a reasonable explanation for that delay
    • (b) demonstrate a reasonable cause of action to be pursued on merit; and
    • (c) show by appropriate evidence that the delay in giving notice has not and would not result in any prejudice to the State.
      

SUBMISSIONS

17. Mr. Ilaisa submitted that even though there was an obvious delay between the date the cause of action arose to the time the Plaintiff lodged his application for extension of time, the Plaintiff had shown sufficient cause and/or reasonable explanation for the delay. He is a layman and did not know the legal requirements for making a claim against the State. And even though ignorance of the law is generally not an excuse, Mr. Ilaisa submitted that the Plaintiff did not sit on his right to claim against the State. On the contrary he brought his grievances up with the relevant authorities with the view of having a resolution to it. He served two letters to the Police Hierarchy here in Popondetta and even wrote to the Police Commissioner reasonably believing that his grievance would be addressed by the Police Hierarchy. After waiting for six months he decided to take the matter to Court.
    
18. Counsel argued the time of distinguish the fact of this case with those in Seravo v Bahofo where Kandaksi J. found that the plaintiff's Parliamentary commitments were not a reasonable excuse for not instructing lawyers to take the necessary steps to give notice. The plaintiff there did practically nothing to pursue his claim.
    
19. And on the second ground – the need to demonstrate a reasonable cause of action – counsel submitted that the Plaintiff had shown that he has a valid cause of action against Constable Nindon Bungewa and the State for the unlawful damage to his property.
    
20. Lastly Counsel submitted that the State will not be prejudiced because in his letter to the 1st Defendant, the Plaintiff attached all 3 letters that were written to the Popondetta Police Station Commander, the Provincial Police Commander of Northern Province and the Police Commissioner. Those letters gave full details of the alleged incident, the Police Officers involved and the damage to his property.
    
21. The second Defendant, counsel said, had the benefit of these documents and had it acted promptly, it would have received ample instructions from the Popondetta Police Station Commander, the Provincial Police Commander of Northern Province and the Police Commissioner.
    
22. If anything the State contributed to any prejudice against itself by the first Defendant's failure to respond promptly to the Plaintiff's application for extension of time. A delay of Formalities in responding to the Plaintiff's application, urged counsel, cannot go unnoticed or be dismissed.
    

DELIBERATIONS & CONCLUSIONS

23. So has the Plaintiff shown sufficient cause and an explanation for his delay in giving the required notice to the State or in applying for an extension of time for the matter? And has he shown that the State will not be prejudiced by a grant of extension of time?
    
24. I am inclined to agree with counsel that the Plaintiff has shown "sufficient cause" for the delay in giving notice to the State. He wrote almost immediately to the Police Station Commander, the Provincial Police Commander and the Police Commissioner and waited for his grievance to be settled, reasonably believing that the Police Hierarchy will act on his concern.
    
25. Of course like most people in Papua New Guinea, be they rural dwellers or ordinary townsfolk like the Plaintiff he was unaware of the legal requirement to give notice to the State under the Act. He only became aware of this through a friend who advised him that the Public Solicitor can assist him to sue the State and the Police.
    
26. Did he sit on that information? No he did not. He immediately applied for legal aid in early 2012. His application was approved on 14th of September 2012. Of course by not time the prescribed period to give notice had lapsed. Then on advice from his lawyer he gave the necessary instructions and the lawyer wrote to the Attorney General for extension of time on 24th October 2012. There was no response from the Attorney General so Mr. Ilaisa followed up with two other letters on 18th of February 2013 and in 10th of May 2013.
    
27. Receiving no response the applicant filed these proceedings on 13th November 2013 here at Popondetta. Unbeknown to him the Attorney General finally replied his letters by letter dated 30th September 2013 but which did not reach the Public Solicitor until 4th of November. The Attorney General refused leave to extend time saying that the plaintiff offered no reason for the delay and that to grant leave would prejudice the State. It took the Attorney General 11 months and 24 days to respond to the Plaintiff's application for extension of time. This in my view is an inordinate delay. So as it stands the Attorney General's inordinate delay in responding contributed or could contribute to any perceived prejudice to the State.
    
28. Of course the Attorney General exercised his discretion to refuse the Plaintiff's request and he was entitled to decide as he did. The Court for its part is not sitting to review the Attorney General's refusal to grant leave and therefore I should not venture into questioning his reasons for doing so. Nonetheless the discretion vested by Section 5 (2) (c) (ii) of the Act must be exercised according to proper principle and taking into account all the circumstances of the case. (Rundle –v- Motor Vehicle Insurance (PNG) Trust (supra)
    
29. The Plaintiff basically relies upon the same material put to the Attorney General to support his present application. These coupled with the inordinate delay by the Attorney General to respond to the plaintiff's application, are in my opinion more than "sufficient cause" for his delay in bringing his application to the Court as to have already said.
    
30. The Plaintiff also clearly has a reasonable cause of action – trespass to property by members of the Police force and others acting in concert with them.
    
31. I agree with Mr. Ilaisa too that there would be no prejudice to the State as the members of the Police Force were positively identified in the supporting evidence before me. These officers are still attached to the Popondetta Police Station and it would be easy for the State to secure instructions from them to prepare its defence, as it were.
    
32. As I noted the Attorney General's failure to communicate his refusal to grant leave quickly to the Plaintiff was a contributing factor to the delay and this should not be held against the plaintiff. Therefore difficulties faced for instance by the State will be as much its fault and it should bear the consequences.
    
33. In conclusion, this application has met the test for grant of extension of time to give notice to the State. Hence I therefore grant the orders sought by the Plaintiff in his motion inclusive of costs which are to be taxed if not agreed upon.
    

Ordered accordingly.

___________________________

Public Solicitor: Lawyer for the Plaintiff.