Yendi v Attorney General of Papua New Guinea [2016] PGNC 69; N6256 (20 April 2016)

N6256

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 590 of 2015

BETWEEN

AUGUSTINE YENDI
Plaintiff

AND:

ANO PALA as
ATTORNERY GENERAL OF PAPUA NEW GUINEA
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Wewak: Geita J
2016: 24th March & 20th April

PRACTICE AND PROCEDURE– Claims by and against the State Act 1996, s 5 – A former music teacher employed by a State Agency has a claim against the State in tort – Application for additional time to give notice –
PRACTICE AND PROCEDURE - Failure to show "sufficient cause" is a ground to refuse extension of time – Application refused.
PRACTICE AND PROCEDURE – Amendments called for – Need for clarity on – mode - of return service to applicants - Claims By and Against the State Act 1996.

Cases Cited:

William Trnka v The Independent State of Papua New Guinea N.1957

Legislations Cited:

Claims by and Against The State Act 1996
Motor Vehicle Insurance (PNG) Trust Act
Public Holidays Act (Chapter 321)
Public Services (Management) Act 1995

Counsel:

Francis Fingu, for the Plaintiff
George Akia and Francis Zulu, for the Defendants

DECISION

20th April 2016

GEITA J: This is an application by the Plaintiff that the time for giving notice of his intention to make a claim against the State be given extended time made pursuant to Section 5 (2) ( c) (ii) of the Claims By and Against the State. The first grant had expired by sixty days.

Facts

2. The Plaintiff is a music teacher by profession and asserts that in 2012 he was offered a teaching position at Papitalai Secondary School in Manus Province. His only proof appears to be a copy of a list with his name under that secondary school from Education Office and radio announcements during that same year. For some unknown reasons he says, he was not allowed to take up that position at the high school and sought redress from Manus Provincial Education Board for loss of earnings, career and damages.

3. On 13th August 2012, he wrote to the First & Second Defendants through Public Solicitors Office giving notice to file suit.

4. On 25th April 2013, the acting Solicitor General acknowledged receipt of the Plaintiffs letters of 13th February 2012 and declined acceptance of his notice citing mandatory service breaches and being out of time.

5. On 24th July 2013, the Plaintiff protested to the Public Solicitors Office in Wewak and Port Moresby in the manner his claim was handled and demanded answers. By now his request to give notice was well past the mandatory six months period.

6. On 26th July 2013, the Plaintiff again pursued the matter in person for an extension of time to sue out of time.

7. On 26th Sept 2013, the then Attorney General Hon. Karenga Kua accepted his pleas as genuine and granted a further 30 days from the date of his letter. The Plaintiff's return address given for service was via a Sixtus Suemeri of Ela Motors Service Department Wewak including Port Moresby and Wewak Public Solicitor's Offices.

8. Upon making enquiries with CMS-Department of Justice & Attorney General on 25th November 2013 he was given a faxed copy of Attorney General's with the grant of 30 days extension. By then the 30 days had expired, yet again.

9. On 28th November 2013 the Plaintiff again wrote back and requested for another 30 days extension which was refused by Attorney General Hon. Ano Pala in a letter sent to the Plaintiff on 15th July 2014. The grant of a further 30 days over and above the first 30 days, now lapsed, were reasons given for the refusal. The Plaintiff was advised to seek other legal redress if he so wished.

10. The Law – S.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 am and 12 noon, or 1:00 pm and 4:06 pm, 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).

Issue

11. The only issue for me to consider is whether the Plaintiff has shown sufficient cause for the notice under the Section to be granted by the Court. Bearing in mind that off the three (3) requests for extensions of time, two have been granted with thirty (30) days extension with one finally rejected when the Plaintiff failed to comply with stipulations granted by the Attorney General Hon Karenga Kua. It is for those reasons that the Plaintiff has come to court seeking further extension of time.

Has the Plaintiff shown sufficient cause?

12. As I understand from the Plaintiff's affidavit, one of two causes relied upon was that the Attorney General's first grant notice of 26th September 2013 failed to reach him in time. In his own words and I quote:

"The letter of extension by the Attorney General was not sent to me via post. The letter may have been docked and not sent to me within that time frame of thirty (30) days."

13. He asserts that had the letter reached him on time he would have acted upon it. I have no reason to doubt the Plaintiff's earnestness from the many letters so far written, now in evidence. For the moment there is no further evidence from the Plaintiff that the Attorney General's Department failed to communicate the contents of their ministerial letter to him via the two return addresses given by him.

14. Section 5 (3) of the Act gives mandatory provisions on service of notice to the State however it remains silent on the mode of service of its reply to concerned applicants. I believe this is what may have happened in the Plaintiff's case. The Attorney General's grant letter of 30 days may have been lost in the mail system or may never have been sent to him at all. They remain speculations in the absence of affidavit evidence in support from the Plaintiff.

15. It was open to the Plaintiff to cause discovery on the outgoing mail register at the Attorney General's Department during the period in question. That evidence may shed some light surrounding the mailing mystery within the department. The Plaintiff has not done that. In short no hard evidence forthcoming. In the absence of any affidavit evidence to the contrary it is unsafe for me to make finding that the Plaintiff has shown sufficient cause.

16. Might I add here in passing that, although there is a mandatory service provision in the Act, put in there for a specific purpose, there is no reciprocal provision for mandatory return service provision or mode of service to applicants, a sense of unfairness and injustice to applicants in my view.

17. Notwithstanding this lack, the Attorney Generals Department has to its credit made good this inadequacy, hence the onus now placed on the Plaintiff to diligently pursue his cause.

18. As to the second cause asserted by the Plaintiff: shifting blame worthiness of the delay to others save himself, I say they remain unfounded as there is no evidence in support. In my view the onus still remains with the Plaintiff. He is the aggrieved party seeking redress therefore it is incumbent upon him to diligently follow up his request from start to finish. To rely solely on the Public Solicitor's Office to follow up your case through and through from start to finish is not only asking for too much but is taxing on its limited resources and manpower. The same cannot be said for a paid private lawyer.

19. It follows that the Plaintiff must accept some responsibility for not diligently pursuing his calls for an extension of time from the Attorney General's Office. As I understand from his affidavit it took him more than 120 days or 4 months from the time he wrote to the Attorney General's Office (27/7/2013) and the day he enquired about any responses, (25/11/2013), only to be shown or told that he had a written response from Attorney General Hon. Karenga Kua, which was 60 days out of time, yet again. Under these circumstances I cannot safely rule that the Plaintiff has sufficiently shown cause.

20. Over time Courts have drawn parallels and continue to do so between Section 5 Claims by and Against The State and Section 54 (6) Motor Vehicle Insurance (PNG) Trust Act due to its similarity in nature. (See case of William Trnka v The Independent State of Papua New Guinea (N.1957.) Extension of time have been allowed in cases of delays over three up to five years where sufficient causes shown.

22. Courts have said that there should not be any hard and fast rule in determining what amounts to or does not amount to the phrase "sufficient cause" (William Trnka supra per Sevua J). With respect I also agree with His Honour's views.

23. Now turning to the matter before me, there are no strong facts in favour of finding "sufficient cause". The question of the Defendant being prejudiced by the grant of an extension is easily disposed of as no foundational sufficient cause shown.

24. Due to the foregoing reasons I am unable to find that "sufficient cause" has been shown for me to exercise my discretion under powers given to me to grant an extension of time to give notice to the State. The Plaintiff's application is refused.

25. Costs follow the event.

________________________________________________________________

Public Solicitors : Lawyer for the Plaintiff
Solicitor General : Lawyer for the Defendants