N11091
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 983 OF 2014

McREI KEI
Plaintiff

V

FRANCIS NAGIDE
First Defendant

FOMES KARONA as Acting Commander of the Police Mobile Squad Ten (10) based in Mendi, SHP
Second Defendant

TOAMI KULUNGA as Commissioner for Police
Third Defendant

POLICE DEPARTMENT
Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani:  Kariko, J
2023: 11th September
2024: 2nd & 5th April

TORT – claims for damages arising from motor vehicle accident – claim against the State – notice of intention to claim, s 5 Claims By and Against the State Act 1996 – requirement for notice – whether proper notice given  

The plaintiff filed a claim against the State for damages and presented evidence he gave notice of his intention to make the claim pursuant to s 5 of the Claims By and Against the State Act 1996. After final submissions, the court raised the issue whether proper notice was given.   

Held:

1.	The Court may on its own motion dismiss a claim as incompetent for failing to comply with s 5(1) of the Claims By and Against the State Act 1996.

2.	The requirement to give notice under s 5 of the before filing proceedings is a condition precedent that must be complied with, failing which the proceedings are rendered incompetent. 

3.	It is essential that sufficient details of the claim are included in a s 5 notice including dates, time, names of people and places, copies of any correspondence or such other information to enable the State to carry out its own investigations.

4.	The plaintiff must plead and show by evidence in a claim against the State where a s 5 notice is required that it is s 5 compliant.

Cases Cited: 
Amet v Yama (2010) SC1064
Bluewater International Ltd v Mumu (2019) SC1798
Daniel Hewali v Papua New Guinea Police Force (2002) N2233
Kauba v Willie (2021) SC2162 
Michael Keka v Pius Yafaet (2018) SC1673
Paga Hill Development Co (PNG) Ltd v Parkop (2019) SC1877
Paul Tohian v Tau Liu (1998) SC566

Legislation:
Claims By and Against the State Act 1996
Claims By and Against the State Act (Amendment) Act 2022

Counsel:
Mr D Wapu, for the Plaintiff
Ms M Kopi, for the Defendants

5th April 2024

1.	KARIKO, J:    In the early morning of 23 August 2012, the plaintiff’s Nissan sedan used as a taxi Reg No. T1018 was involved in an accident with a Toyota Landcruiser Re. No. BCZ 567 driven by the first defendant, a policeman attached to the Mobile Squad based in Mendi but then in Port Moresby on assigned duties. As a result of the accident, the plaintiff’s vehicle sustained extensive damages. 

2.	The plaintiff filed these proceedings alleging the accident was caused by the negligent driving of the first defendant and for which the other defendants are vicariously liable. He seeks several heads of damages principally against the State.

3.	This case was finally tried after not being pursued for some nine years after its filing. In fact, it was listed for summary determination in December 2020 for apparent inactivity by the plaintiff in prosecuting his claim. He successfully argued to have the case summarily disposed, and it was then gradually progressed to trial. 

SECTION 5 NOTICE 

4.	After evidence concluded through presentation of filed affidavits, the parties spoke to filed written submissions before the case was adjourned for judgement. 

5.	During submissions, counsel for the plaintiff stated that a s 5 notice under the Claims By and Against the State Act 1996 (the Claims Act) was duly given.

5.	While deliberating on the pleadings and the evidence, I decided I should hear further submissions on whether a proper s 5 notice was in fact served, and in this regard, parties were requested to make further submissions on the point.  

6.	Mr Wapu for the plaintiff repeated that a copy of the requisite notice was produced in evidence in the trial as Annexure F to the affidavit of the plaintiff filed 14 June 2022. 

7.	This document is a copy of a typed letter dated 18 February 2014 written by the plaintiff and addressed to the Solicitor-General. There is a stamped endorsement on the letter that indicates it was received at the office of the Solicitor-General on 21 February 2013.

8.	Relevantly, the main body of the letter of 18 February 2013 reads:

RE: SECTION 5 (FIVE) NOTICE TO THE STATE 

The above refers;(sic) 
Sir, I bring to your attention that on the 7th of September 2012 I hand delivered a car accident report to the Director of Mobile Squad, McGregor Barracks to take action against the officer involved in the accident. 
Since then no favorable response was received. A further letter dated 14th February 2013 (sic) again delivered giving 14 days to respond to me as soon as possible. 
I am now giving the Police officer, The Police Department and the State by giving (sic) Section 5 Notice as per the Claims By and Against The State Act 1966.
(Emphasis added)

9.	In response to the re-calling of the case for further submissions, the plaintiff filed a further affidavit on 21 March 2024 in which he explained that the letter of 18 February 2013 had attached to it copies of these documents:

(1)	the letter of 7 September 2012 and its attachments which were quotations from three workshops, photographs of the damaged car, vehicle registration certificate and vehicle insurance certificate; and
(2)	the letter of 12 February 2013 (wrongly noted as 14 February 2013 in the s 5 notice letter).

10.	Mr Wapu submitted that a proper s 5 notice was given when all the stated documents are considered together. It was served on the Solicitor General within six months of the accident and it contained relevant details of the incident. Counsel pointed out that while the details are necessary by virtue of s 5A which was introduced by the Claims By and Against the State (Amendment) Act 2022, that was not the law in February 2013.

11.	It was also suggested that the Court not consider the issue of s 5 notice as the State failed to raise it.

12.	Counsel for the defendants referred to the case authority of Daniel Hewali v Papua New Guinea Defence Force [2002] PNGLR 146 to submit that the letter of 18 February 2013 was not a proper s 5 notice because it did not contain relevant details of the incident giving rise to the intended claim against the State. 

CONSIDERATION

13.	Does the Court have power to raise on its own motion the issue of a s 5 notice after the close of evidence in a trial? The answer is yes. As stressed by the Supreme Court in Michael Keka v Pius Yafaet (2018) SC1673, the Court may on its own motion as part of its inherent jurisdiction to control and manage the proceedings before it, dismiss a claim as incompetent for failing to comply with s 5(1) of the Claims Act.

14.	 The competency of proceedings is a challenge as to jurisdiction and may be raised at any time by a party or the court on its own motion: Amet v Yama (2010) SC1064. 

15.	 The Courts have consistently maintained since Paul Tohian v Tau Liu (1998) SC566, that the requirement to give notice under s 5 of the Claims Act before filing proceedings is a condition precedent that must be complied with, failing which the proceedings are rendered incompetent. 

16.	  Claims that require the issuing of a s 5 notice under the Claims Act includes claims in tort (such as the present); s 2(1). 

17.	  Section 5 states:

(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. (My emphasis)
 
18.	  Under s 5(1), the requisite notice must be served on either the Head of the Department responsible for justice matters (currently the Secretary for Justice) or the Solicitor-General. For a claim in tort, the notice must be served within 6 months after the occurrence out of which the claim arose; s.5(2)(a). 

19.	 It is essential that sufficient details of the claim are included in the notice. As Kandakasi J observed in Daniel Hewali v Papua New Guinea Defence Force (supra) at 157:
Such notice must give sufficient details about the impending claim so that the State can carry out its investigations and gather its evidence to properly address the claim once lodged against it. Such details should include dates, time, names of people and places, copies of any correspondence or such other information that could enable the State to carry out its own investigations. Only when notice is given with such details or information, can one safely say that notice of his or her intended claim has been given to the State. (Emphasis added)
20.	 His Honour’s remarks have been endorsed by the Supreme Court in several cases including more recently Paga Hill Development Co (PNG) Ltd v Parkop (2019) SC1877.

21.	 Undoubtedly, these repeated pronouncements led to the enactment by amendment of s 5A referred to by Mr Wapu. Relevant to this case, s 5A(1) states:

A notice under this section must contain full details of the claim including -
(a)	The name of the alleged tortfeasor; and
(b)	The date of the alleged cause of action; and
(c)	The time of the alleged cause of action; and
(d)	The nature and circumstances of the alleged cause of action; and 
(e)	Any other information relevant to the alleged cause of action that the Solicitor-General may deem necessary.

22.	 This amending provision, whilst noted, cannot be applied in this case because it is an enactment introduced ten years after the present case arose.

23.	 There is no dispute that the plaintiff was required to give s 5 notice before filing these proceedings as his claim against the State is an action in tort. The letter of 18 February 2013 was correctly served on the Solicitor General and within the stipulated 6 months, but does the letter amount to a notice under s 5? 

24.	 Clearly the letter lacks the type of details that Kandakasi J suggested as appropriate to include in a s 5 notice. Foremost, the letter does not spell out particulars of the incident that gave rise to the plaintiff’s claim, that is the motor vehicle accident, and the nature of the claim.  The letter merely complains about the lack of response to the plaintiff’s previous correspondence written to the Director of Mobile Squad, McGregor Barracks, and concludes with a statement terming the letter as a s 5 notice.

25.	 The evidence at the trial did not suggest the notice letter of 18 February 2013 had several attachments to it. The letter itself makes no reference to there being any attachments, least of all the two letters earlier written to the Police.    

26.	 I give no weight to the recent affidavit of the plaintiff filed 24 March 2024. It is not evidence in the trial which closed on 11 September 2023. The further affidavit was not requested by the court. In my view, it was a belated effort to correct a defect in the plaintiff’s case realized by the plaintiff after the court recalled the matter.

27.	 The following remarks of the Supreme Court in Kauba v Willie (2021) SC2162 at [50] are pertinent to this discussion: 

… the onus is on a plaintiff or claimant to plead his or her case according to law. Going by the strength of the judicial pronouncements on s. 5 notice requirement and the requirement of the NCR, Order 5 Rule 12, it is incumbent on the plaintiff to plead and show that the case is fully compliant with the law and in the context of claims against the State, is s. 5 compliant. (Emphasis added)

See also Bluewater International Ltd v Mumu (2019) SC1798.

28.	 The plaintiff in this case has failed to do that. Not only did he not plead compliance with s 5 but furthermore, the evidence also shows purported notice is not proper.

29.	 I accordingly dismiss the proceedings for being incompetent.

ORDERS 

30.	 I order that:

(1)	The proceedings are hereby dismissed for being incompetent.
(2)	The plaintiff shall pay the defendants’ costs of and incidental to proceedings, to be taxed if not agreed.
(3)	Time for entry of these Orders is abridged to the date of settlement by the Registrar, which shall take place forthwith.
 _______________________________________________________________
Don Wapu Lawyers: Lawyer for the Plaintiff
Solicitor General: Lawyer for the Defendants