Ipidari v Potape [2015] PGNC 134; N6041 (22 June 2015)

N6041

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 684 of 2011

BETWEEN:

JOHN IPIDARI, JOHNSON TIA, JIM WAKE, LUKE JULA, AMI JULAI, HENRY AKI, PATU TANGERUA, KAL PARIALA, BEN TAMBO, REBECCA LEMBO, MICHAEL ANGO, JOHN MAL TAGOBE, HENGENE LIMI, PAI WASA, ALFRED NELSON, PETER JOSEPH, for themselves and on behalf of 339 other Landowners of ANGORE PDL8 whose names are attached to this Writ of Summons as Schedule "A"
First Plaintiff

AND

HELA ARAMA PIMA ASSOCIATION INC.
Second Plaintiff

AND

HON. FRANCIS POTAPE, MINISTER FOR PETROLEUM & ENERGY
First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND

ESSO HIGHLANDS LIMITED
Third Defendant

AND
RENDLE RIMUA – SECRETARY FOR DEPARTMENT
OF PETROLEUM & ENERGY
Fourth Defendant

Waigani: Hartshorn J
2014: 1st September
2015: 22nd June

Application to dismiss proceeding for failure to comply with s. 5 Claims By and Against the State Act

Cases cited:

CMSS (PNG) Ltd v The State (2014) N5717
Counsel:

Mr. R. Manrai, for the Plaintiffs
Mr. J. Siki, for the First, Second and Fourth Defendants
Mr. K. Imako, for the Third Defendant

22nd June, 2015

1. HARTSHORN J: This is a decision on an application to dismiss the proceeding for a purported non-compliance with s. 5 Claims By and Against the State Act (Claims Act). It is brought by the first, second and fourth defendants (State defendants), supported by the third defendant, Esso Highlands Ltd and opposed by the plaintiffs. The plaintiffs represent landowning clans within the Angore Petroleum Development Licence 8 (PDL 8) Area.

Background

2. The plaintiffs seek amongst others, declaratory relief to the effect that the Kokopo Umbrella Benefit Sharing Agreement (UBSA), the Angore PDL 8 Licensed Based Benefit Sharing Agreement (LBBSA) and the grant of PDL 8 to Esso are illegal, invalid and void. Further, that there was no development forum and no development agreement between the State and landowners for PDL 8 and that Esso failed to carry out requisite landowner identification studies.

This application

3. The State defendants submit that the requisite notice in writing of an intention to make a claim against the State pursuant to s. 5 Claims Act was not given to the proper person in accordance with s. 5 (1) and (3) and was not given within six months after the occurrence out of which the claim arose.

Whether notice given to the proper person

4. In evidence is a copy of a letter dated 8th April 2010 addressed to "The Attorney General, Attorney General's Office" (s. 5 Notice). The subject matter of the s. 5 Notice is "Notice of Intention to sue the State pursuant to section 5 of the Claims by Against the State Act 1996". On the s. 5 Notice is a circular receipt acknowledged stamp of the Department of Justice & Attorney General with '09 04 10' written in the centre of the stamp. There is also a rectangular stamp which has written in it "Betty Makis, 09/04/10, 10.18am, Executive Assistant, Solicitor Generals Office".

5. The State defendants' submit first, that the s. 5 Notice is not given by the claimants as required by s. 5 Claims Act. It is given by the plaintiffs for the lawyers, Steeles.

6. Section 5 Claims Act is as follows:

"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 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., 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)."

7. As to s. 5(1), it states that notice is given by the claimant, not that the notice shall be given by the claimant. In comparison, in subsections 5(2) and (3), "shall" is used. I am satisfied therefore that a lawyer for the claimant is able to give the notice referred to in s. 5(1) on behalf of a claimant. This submission of the State defendants is rejected.

8. Secondly, the State defendants submit that as the s. 5 Notice was addressed to the Attorney General and not to the Secretary for the Department of Justice and Attorney General, or the Solicitor General, s. 5(1) has not been complied with as it provides that the notice must be given to "(a) the Departmental Head of the Department responsible for justice matters; or (b) the Solicitor General."

9. Section 5(3) provides how a notice under s. 5(1) shall be given. That is either by personal service on an officer referred to in s. 5(1) or by leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer. There is no requirement in s. 5 for the notice to be addressed to the Department Head of the Department responsible for justice matters or the Solicitor General.

10. As an aside, as to the s. 5 Notice being addressed to the Attorney General, the Attorney-General Act 1989 provides pursuant to s. 5, that there are occasions when the Department Head of the Department responsible for National Justice Administration, is the Attorney General. Consequently, if it is a requirement that a notice under s. 5 Claims Act be addressed as the State defendants submit, then I am satisfied that there has been sufficient compliance in this instance.

11. Thirdly, the State defendants submit that s. 5(3)(b) Claims Act has not been complied with as the s. 5 Notice was given to the Executive Assistant of the Solicitor General and not the personal secretary of the Departmental Head or the Solicitor General.

12. In this instance the receipt of the s. 5 Notice was acknowledged by the, "Executive Assistant, Solicitor General's Office". There is no evidence to the effect that the person who left the notice with Ms. Makis was not of the belief that it was apparent that Ms. Makis was occupying the position of personal secretary to the Solicitor General. Further, there is no evidence that Ms. Makis has been instructed not to acknowledge receipt of any purported notices given pursuant to s. 5 Claims Act, and that in this instance she did not comply with that instruction. I am satisfied that there has been sufficient compliance with the provisions of s. 5 Claims Act as to the giving of a notice in writing of an intention to make a claim.

Whether notice given within six months

13. Section 5(2)(a) Claims Act provides that a notice shall be given within a period of six months after the occurrence out of which the claim arose. It appears to be common ground, as I understand it, that in respect of the UBSA claim, the s. 5 Notice was not given within six months. Over 10 months elapsed from the signing of the UBSA on 21st May 2009, the occurrence out of which the claim arose and the s. 5 Notice being given on 9th April 2010.

14. As to the LBBSA claim, the plaintiffs claim that the s. 5 Notice was given within six months of the occurrence out of which the claim arose – the LBBSA being signed on 7th December 2009. Consequently, submit the plaintiffs, the claim in respect of the LBBSA should not be dismissed.

15. In this regard I refer to my decision of CMSS (PNG) Ltd v. The State (2014) N5717 at para 25 where I said:

"25. As s. 5 (1) Claims Act provides that:

"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......" (my underlining),

all of the causes of action in the Statement of Claim are affected by the CMSS s. 5 notice not being given within the requisite time. In this regard I refer to the Supreme Court case of Paul Tohian v. Tau Liu (1998) SC566 which held that the requirement to comply with s. 5 Claims Act is a condition precedent that must be complied with 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: Eddie v. Kirokim (supra)."

16. Consequently, I am satisfied that as the s. 5 Notice was not given in time, s. 5 Claims Act has not been complied with. This proceeding is an abuse of process and pursuant to Order 12 Rule 40 National Court Rules it should be dismissed. Given this it is not necessary to consider the other submissions of counsel.

Orders

17. The Orders of the Court are:

a) This proceeding is dismissed;

b) The plaintiffs' shall pay the costs of the defendants' of and incidental to the proceeding;

c) Time is abridged.
_____________________________________________________________
Manrai Lawyers: Lawyers for the Plaintiffs
Greg Manda Lawyers: Lawyers for the First, Second and Fourth Defendants
Allen Lawyers: Lawyers for the Third Defendant