Null v Sheekiot [2024] PGNC 125; N10764 (30 April 2024)

N10764

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 182 OF 2007

BETWEEN:
PETER STERLO NULL & 313 OTHERS, Settlers of part of Portion 681, Milinch Granville, Fourmill Moresby, persons whose names are listed in Schedule “A” annexed to the Statement of Claim
Plaintiff

AND:
FRED SHEEKIOT as ACTING POLICE COMMISSIONER
First Defendant

AND:
NATIONAL CAPITAL DISCTRICT COMMISSION
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Bre, AJ
2023: 23rd November
2024: 30th April

CLAIMS BY AND AGAINST THE STATE ACT – application to dismiss proceedings for non-compliance with Section 5 notice - notice addressed to Attorney General – incumbent Acting Attorney General and Secretary –details of tortfeasors alleged insufficient - 16 year case – issue raised at trial – trial vacated – purposive interpretation applied – dispensation of justice paramount – preliminary issues raised at very late stage of proceedings – abuse of process - application refused.

Cases Cited
Essy v Bomal (2021) SC2085
Kaurigova v Perone (2008) SC964
Wassey v Aigilo (2005) N2876
Yal v Mission of the Holy Ghost (New Guinea) Property Trust (2017) N6530

Legislation
Attorney General Act 1989, s4 & 5.
Claims By and Against the State Act 1996, s5.
National Court Rules, O10 r21(1).
The Constitution of the Independent State of Papua New Guinea, s158.

Counsel
Ms P Ohuma, for the First, Second, Third and Fifth Defendants/Applicants
Ms M Worinu, for the Fourth Defendant.
Mr J Amnol, for the Plaintiffs/Respondent

RULING

30th April 2024

1. BRE, AJ: INTRODUCTION: The State applied to summarily dismiss the proceedings for want of compliance with Section 5 of the Claims By and Against the State Act 1996 ("CBASA"). The relevant notice is contained in a letter dated 01 Dec 2006 addressed to the Attorney General. Mr Fred Tomo was the acting Attorney General at that time. He responded on 27 December 2006 acknowledging the letter and indicated he would respond later on whether service is valid or not.

APPLICATION
2. This matter was fixed for trial on liability on 06 October 2023. That day State counsel informed the Court that a preliminary issue on the competency of the notice issued by the plaintiffs under Section 5 CBASA should be heard before the trial proceeded. Counsel for the plaintiffs indicated he was not aware of this issue and was not ready to address it.

The trial was vacated, and the Section 5 issue listed for submissions on 23 November 2023. The State relied on previously filed submissions of 01 December 2021 and oral submissions. The plaintiffs relied on counsel's filed submissions of 22 November 2023. NCDC's counsel was in attendance and made submissions supporting the State.

EVIDENCE

3. The State relied on the affidavit of Ruth Kokiva Gelu sworn on 31 August 2010 and filed on 03 September 2010.

SUBMISSIONS

Applicant's submission

4. The State disputes the form and substance of the Section 5 CBASA Notice of 01 December 2006 for the following reasons:

1. The notice was not addressed to the correct office as specified in Section 5 CBASA, being the head of Department or Secretary of Justice Department, or the Solicitor General. The Letter was addressed instead to the Attorney General.
2. The letter provides no details of the tortfeasors. It only refers to 48 persons in the subject of the letter, no schedule attaching a list of persons affected nor details of their losses was produced.
3. Even if Peter Sterlo Null can be said to give adequate notice, the notice is still defective because it was served on the wrong person (re point 1).

Fourt Defendant's submission

5. The fourth defendant agreed with the State and urged the Court to consider the number and nature of the tortfeasors from an initial 48 to 313 and that the names of the persons in the list of 48 were mostly of minors.

Respondent's submission

6. The Respondent/Plaintiffs opposes the application on the following grounds:-

1. At the time the notice was served, Fred Tomo was the Acting Secretary and Departmental head and the Acting Attorney General as the Minister for Justice, at that time Bire Kimisopa was not a lawyer and could not be the Attorney General hence, Fred Tomo was acting as Attorney General and Secretary. Counsel submitted that the Court take judicial notice of this.
2. The defendants do not rely on any caselaw to support their submission that a list of tortfeasors should be provided and that relevant caselaw the defendants rely on should be prior to 01 December 2006 because of the age of the proceeding.
3. The Court should apply Section 158 of the Constitution to interpret the law to dispense justice as the State's objections have been raised too late in the proceedings. That though the State pleaded want of section 5 notice in their Defence they failed to raise it earlier, it is only when Ms Ohuma took carriage of the matter that they raise the issue at this late stage. That the plaintiffs are greatly prejudiced by a lengthy litigation as a result.
   

LAW

7. The relevant law relied on by counsel are Section 5 CBASA and Section 158 of the Constitution which are reproduced below: -

Section 5 CBASA as it then was in 2006.

"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 1953."

Section 158 Constitution:-

"158. Exercise Of The Judicial Power.

(1) Subject to this Constitution, the judicial authority of the People is vested in the National Judicial System.

(2) In interpreting the law the courts shall give paramount consideration to the dispensation of justice."

ISSUE

8. The issues for deliberation are:-

1) Whether service of the Section 5 notice on the Attorney General was improper, and if not,

2) Whether the notice lacked required details of tortfeasors.

ANALYSIS

9. Order 10 rule 21 (1) of the National Court Rules allows the Court to determine a preliminary issue that may substantially affect the outcome of the plaintiff's claim before proceeding to trial. This is a procedural matter done through a stated case process. No stated case has been filed however, the issue here is a straightforward issue which I fixed especially to hear arguments on and to which counsel have presented arguments to which I now hand down my ruling that I reserved earlier. I will address both issues in my analysis.

10. The plaintiff gave notice through their then lawyers, Parua Lawyers, to the State by letter dated 01 December 2006 addressed to the Attorney General of their intention to sue the State because of alleged unlawful raid and destruction by the Police and NCDC officials to their dwellings and properties on 30 November 2006 at Pruth Street, Two Mile Hill, NCDC. The letter discloses the registration numbers of five police vehicles and alleges a defective demolition notice was issued by the NCDC Building Board.

11. Counsel for the State urges a literal construction of the CBASA to rule that the section 5 notice is incompetent for lack of service and details. Counsel submits that the Attorney General is not an office lawfully recognised to receive a Section 5 notice. The plaintiff's notice is legally defective for non-compliance of Section 5(1) and (3) CBASA. Ms Ohuma submits that there are established caselaw that Section 5 notice is a condition precedent to any suit against the State and because of their non-compliance and that of failure to provide a list of tortfeasors, the proceeding should be summarily dismissed in its entirety.

12. The Supreme Court applied a purposive interpretation to Section 5 CBASA in Kaurigova v Perone (2008) SC964 to hold service of a Section 5 notice on a staff of the Justice Department other than on the personal Secretary as prescribed in the CBASA, was sufficient notice because the purpose of the Act is to give prior notice of a suit which it found on evidence that the Solicitor General did receive the notice.

13. Section 158 of the Constitution places a duty on the Court to "give paramount consideration to the dispensation of justice" when interpreting laws. This requires the Court to apply a purposive approach to deciding whether service was proper.

14. The purpose of the CBASA has been discussed by the Supreme Court in the case of Essy v Bomal (2021) SC2085 which cited the text of the Minister of Justice's explanations as contained in the Parliamentary Hansards when introducing the CBASA in explaining the intent of the CBASA. That it included a scheme of prior notice to provide sufficient time to the State to defend itself in the face of increasing lawsuits against the State putting much pressure on the State's budget.

15. That scheme of prior notice is provided in Section 5 CBASA which to my mind prescribes certain offices authorised to receive notices of intention to sue the State. This would entail a literal interpretation to the provision as submitted by Ms Ohuma, however, I am binded by the purposive approach taken by the Supreme Court in Kaurigova v Perone . I also note the case of Wassey v Aigilo (2005) N2876 which also applied a purposive approach to interpreting Section 5 CBASA that receipt of a Section 5 notice by a staff of the Solicitor General office other than his personal secretary as required under s5(b) CBASA was sufficient service as there was evidence that the Solicitor General eventually received the notice.

16. In this case, the Attorney General is not a stranger to the prior notice process under Section 5. The Attorney General is authorised under Section 5 (2) (c)(i) CBASA to approve extensions of time for service on the State. The State has not been able to disprove the respondents submission that the Secretary for the Justice Department was also the Attorney General so I will go with Mr Amnol's submission on this point.

17. I turn to the Attorney General Act 1989 ('AGA') to provide some clarity on who the office holder is. Section 4 AGA states that the Minister for Justice is the Attorney General where he is a Lawyer. Section 5 provides that where the Minister is not a Lawyer, the departmental head of the Department of Justice becomes the Attorney General. The Attorney General is the Principal Legal Advisor to the National Executive Council^[1].

18. Section 5(1)(a) CBASA provides that the recipient of the Section 5 notice is "the Departmental Head of the Department responsible for justice matters". I accept the respondent's submission that the Attorney General was also the departmental head of the Department of Justice. When Sections 4 and 5 AGA and Section 5 CBASA are read together, a meaning that the departmental head can also be the Attorney General must be arrived at. If Parliament required a strict demarcation of responsibilities of Section 5 CBASA amongst the three offices being the departmental head, Solicitor General or the Attorney General, it would have made provisions to clarify what occurs when Section 5 AGA is operational, or where there is an extension of time request made to the Attorney General under Section 5(2)(c)(i) CBASA and where (s) he is also the departmental head.

19. The purpose of Section 5 is to give prior notice to the State of a claim against it. That purpose to my mind has been achieved by the plaintiff when the letter was addressed to the Attorney General who at that time was also the departmental head. The notice in the Affidavit of Ruth Kokiva Gelu who attached the electronic record of this case is relevant as it confirms registration of the claim by the Solicitor General’s office. The response of Fred Tomo as the acting Attorney General, in my view, confirms receipt of the notice. There is no evidence produced by the State nor the plaintiff that he ever responded to the plaintiff to indicate whether he accepted or rejected the notice. The plaintiff filed this proceeding two months later on 28 February 2007. This was ample time for the Acting Attorney General to respond to the plaintiff’s Lawyer, following his initial response of 27 December 2006.

20. Further, the longevity of this proceedings and the fact of the proceedings being trialled earlier on 12 November 2014 and its continuation to a further trial following the mistrial of the 12 November 2014 trial, renders the State's application unjust and an abuse of process. The application is made very late in the stage of the case. The proceeding has been on foot for nearly 17 years. The State had agreed to the trial date been set on 06 October 2023 by Ganaii AJ. The State did not also file earlier a stated case instead relied on submissions filed earlier on 01 December 2021 and affidavit filed on 03 September 2010 to move the application. There was no sufficient explanation by the State on why the application was not moved earlier in 2010 or 2021. In Yal v Mission of the Holy Ghost (New Guinea) Property Trust (2017) N6530 at [48] the Court held:-

“The defendants have not proven that the plaintiffs did not give notice. Besides that, this is a threshold argument that should have been advanced by notice of motion before the start of the trial. It is tantamount to an abuse of process for the State to not raise such an argument at the earliest opportunity and to acquiesce in having the case set for trial and then to raise it without notice as a preliminary issue (Gawi & Kari v The State (2012) N4814, Lomot Chauka v Elthy Biang (2012) N4854)."

(Emphasis added)

21. Further in Wassey v Aigilo (2005) N2876 where proceedings were on foot for three years, the Court held at [3] that:-

"Section 5 must be interpreted and applied in a way that promotes the dispensation of justice. Where proceedings against the State have been on foot for a considerable time, the benefit of any reasonable doubt as to compliance with the Claims By and Against the State Act should be given to the plaintiff."

(Emphasis added)

22. The Court must guard against abuse of its process and refuse the application as unjust. On that basis, the arguments by the applicants on lack of details are refused too because the current practise of providing details about the tortfeasors is a recent practise following law changes to the CBASA in 2022^[2] .The applicants could have earlier availed of the process of discovery for further and better particulars. The respondents arguments are that the 313 litigants are derived from the initial 48 families. The State has filed a Defence, it is assumed to have had sufficient details to enable it to file its defence. The intent of detailing tortfeasors is to provide adequate information to the State to enable it to cause inquiries to its departments to mount a valid defence. Both defence counsel did not raise any submissions about their defence and trial preparations being jeopardised from a lack of information. In fact when the matter came before me on 06^th October 2023, the NCDC's counsel indicated she was ready to proceed to trial. I am therefore not convinced by both applicants submissions on the lack of particulars of the plaintiff tortfeasors.

CONCLUSION

23. To conclude, my ruling is that I am satisfied that sufficient Section 5 notice has been effected on the departmental head who was also the Attorney General. It is unjust and an abuse of process for the defendants to raise this preliminary issue of Section 5 notice at the very late stage of proceedings. Issues about details of the tortfeasors should have also been raised earlier. The defendant's application is refused in its entirety.

COSTS

24. Costs are discretionary and usually follow the event. The trial was vacated because of the State's application which is now unsuccessful. Costs of the application are awarded to the plaintiff on a party/party basis to be paid by the State, to be taxed if not agreed.

ORDER

25. The formal ruling of the Court are as follows:

(1) The application by the State on the issue of competency pursuant to section 5 of the Claims By And Against the State Act 1996 ("CBASA") is refused in its entirety.
(2) The proceeding is referred to the Registrar to list for Directions Hearing in the May 2024 listings for further directions to be issued concerning the setting down of the matter for trial on liability.
(3) Reasonable costs of this application are awarded to the plaintiff on a party/party basis to be paid by the Defendants, to be taxed, if not agreed.
(4) Time for entry of the orders is abridged to the date of settlement by the Registrar of the National Court which shall take place, forthwith

Orders accordingly,.

Dirua Lawyers: Lawyers for the Plaintiffs
Solicitor General: Lawyers for the First, Second, Third and Fifth Defendants
NCDC in-house legal counsel: Lawyers for the Fourth Defendant

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^[1] Section 3 of the Attorney General Act 1989.
^[2] Section 5A ‘ details of tortfeasor and breach of contract etc; Added by CBASA (Amendment) No 9 of 2022, s5.