N7724
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 753 OF 2017

BETWEEN
KEVIN HECO & JOHN HAK PAENAM for and on behalf of themselves in their capacity as Chairman and President or Representatives of 550 former retrenched NCDC Employees
Plaintiffs

AND
NATIONAL CAPITAL DISTRICT COMMISSION
Defendant

Waigani:  Dingake J
2018:   7 & 9 Mar, 13 Apr, 15 May, 14 Jun, 5 Jul & 3 Sept

Cases Cited:

Kiee Toap v The State (2004) N2766

Counsel:

Mr. G Kaore, for the Plaintiffs
Mr. N Kopunge, for the Defendant

3rd September, 2018
1. 	DINGAKE J:	This is an application, brought in terms of Order 12 Rule 40, to dismiss the proceedings herein for being an abuse of Court process and for being frivolous and vexatious on the grounds that:
a)	The claim is barred by Sections 16 (1) (a) and (1) (c) of the Frauds and Limitations Act 1988 as the claim is based on contract and or seeks to enforce an award which arose from a cause of action that accrued in October 1997;
b)	The claim is barred by the principles of Res Judicata as the claim was determined substantively by Justice Kandakasi in proceedings WS No. 507 of 2000.
c)	The plaintiff have failed to comply with Section 5 of the Claims By and Against the State Act 1996, in not giving notice within six (6) months of the date of the cause of action accruing and not obtaining an extension to give such notice from the Attorney General or this Court after the expiry of six (6) months.
2. 	This matter has a tortuous history. The plaintiff commenced these proceedings before the National Court in proceedings WS No. 507 of 2000 seeking substantively the same relief as in the present application.
3. 	On the 12th of January, 2012, proceedings WS No. 507 of 2000, was dismissed by the National Court per, Kandakasi J, on several grounds, including that the plaintiffs had failed to give notice under the Claims By and Against the State Act 1996.
4. 	About two (2) years after Kandakasi J dismissed proceedings WS No. 507 of 2000 with costs, on or about the 3rd of November, 2014, the plaintiffs, now through their Association (NCDC Retrenched Worker’s Association Inc.) commenced proceedings WS No. 1373 of 2014 against the defendant and the State, which proceedings were dismissed for want of Section 5 Notice by the National Court, per the late Ipang J.
5. 	The plaintiff filed an appeal against the National Court decision per, the late Ipang J, which they subsequently withdrew, so that they may commence proceedings under the names of the correct plaintiffs.
6. 	The respondents contend the issue of Section 5 Notice raised by the applicant as earlier indicated is without merit because; apparently the matter was allowed to progress after commencement in the year 2000 resulting in a Consent Order being entered in 2001. The respondents contend that where a case has been allowed to progress without raising the Section 5 Notice, such requirement can be deemed to have been waived.
7. 	I have considered the affidavit material filed by the parties and their submissions. I am persuaded that this proceedings amount to an abuse of Court process on one or all of the grounds hereunder stated.
8. 	Firstly, this same matter was dismissed twice, for want of compliance with Section 5 Notice. The plaintiff did not file any appeal against the decision of the National Court dismissing proceedings for want of Section 5 Notice required by the Claims By and Against the State Act 1996. No attempt was made by the plaintiff to obtain an extension of time, after failing to give Notice within six (6) months of the date of the cause of action. Such an action could have been sought from the Attorney General or from this Court.
9. 	The issuance of Section 5 Notice is a condition precedent to any valid litigation against the State. Failure to give such Notice is fatal. I have not been persuaded that there are any circumstances in this case that require such Notice to be waived or not complied with.
10. 	In my considered opinion this proceedings are an abuse of Court process and are indeed frivolous and vexatious as contemplated by Order 12 Rule 40 of the National Court Rules and are liable to be dismissed as I hereby do (Kiee Toap v The State (2004) N2766).
11. 	In the event I am wrong in holding as I do that failure to issue a Section 5 Notice is fatal to this proceedings, I would still dismiss this proceedings as an abuse of Court process and or as being frivolous or vexatious on the basis, that on the evidence filed of record, it seems from the plaintiffs statement of claim, that this claim is time barred, the cause of action having accrued at the latest in 1997 and also that this claim has been determined in proceedings WS No. 507 of 2000, per Kandakasi J.
12. 	In the result the defendant’s application is upheld and the proceedings herein are dismissed with costs.
_______ ____________________________________________________
Koare Lawyers: Lawyers for the Plaintiffs	
Kopunye Lawyers: Lawyers for the Respondent/Defendant