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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA No. 118 of 2004
BETWEEN:
RAWSON CONSTRUCTION LIMITED
on behalf of itself and 238 OTHERS
-Appellant-
AND:
DEPARTMENT OF WORKS
- First Respondent-
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
- Second Respondent-
WAIGANI: SAWONG, KIRRIWOM, KANDAKASI, JJ.
2004: 03rd December
2005: 04th March
APPEALS – No serious challenge against trial judge’s decision – Success or fall of appeal dependent on admission and effect of "fresh evidence" – No identifiable error against trial judge’s decision – Court ought to exercise extreme caution to interfere with decision of the trial judge – Fresh evidence if admitted would not have affected decision – Appeal dismissed.
APPEALS – Fresh evidence – Application to adduce – Relevant tests for fresh evidence - Evidence available at time of trial and could have been ascertained with the exercise of reasonable care – No explanation provided for failure - Purported fresh evidence showing allowance of other illegal claims to proceed against the State – Effect of – Evidence of illegal claims failing to service justice of the case – Application dismissed.
Facts:
The Appellants claim that the State contracted them to carry out certain public works, which they part performed but terminated forcefully by the State during Easter weekend of 1999. Since then, they claimed and negotiated with the State for damages to them of part performance and breach of contract. The State did not show any immediate interest in prompt settlement but the Appellants continued to negotiate and or wait upon the State. On 20th September 2002, the Appellants wrote and asked for a conference with State to discuss the claims and a possible settlement and purported to give notice under s. 5 of the Claims By and Against the State Act 1996. Following no response, the Appellants demanded on 29th May 2003 a payment of their claims then put at K18, 379, 200.00. They also, gave notice of their intention to issue proceedings to recover those amounts if not settled and also purported to again give notice of their intention to make a claim against the State under s. 5 of the Claims By and Against the State Act 1996. On 21st July 2003, the Solicitor General refused to entertain the claim, saying the claims were out of time and that they did not properly and sufficiently particularized their claims. The Appellants did nothing until they filed an application by an originating summons for an extension of time for them to give notice of their intention to make their claims against the State on 12th February 2004. The National Court heard that application and dismissed it on 21st July 2004, because of the substantial delay which was not explained and that the they did not demonstrate that the State would not be prejudiced.
The Appellants appealed against that decision and applied for leave to adduce "fresh evidence" of successful claims by other people coming from the same group or community as the Appellants for the same kind of work and outside the s.5 notice requirements. The intent was to demonstrate a discriminate application of the law by the Solicitor General and that the evidence would diminish the prejudice the learned trial judge found against them. The Appellant otherwise did not seriously challenge the trial judge’s decision and reasons for decision.
Held:
Vivisio Seravo v. Jack Bahafo (21/03/01) N2078: Cited with approval
James Pari & Anor v. The State [1993] PNGLR 173 followed.
Papua New Guinea Cases Cited:
Paul Tohian, Minister for Police and the State v. Tau Liu (27/08/98) SC566.
Daniel Hewali v. Papua New Guinea Police Force & The State (27/03/02) N2233.
The Independent State of Papua New Guinea v. Barclay Bros (PNG) Ltd (2001) N2090.
Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC705.
Vivisio Seravo v. Jack Bahafo (21/03/01) N2078.
James Pari & Anor v. The State [1993] PNGLR 173.
Peng v. The State [1982] PNGLR 331.
Abiari v. The State [1990] PNGLR 250.
Bipa Akopa v. Motor Vehicles Insurance (PNG) Trust (08/08/97) N1603.
Koe Fuanka v. Motor Vehicles Insurance (PNG) Trust (04/12/98) N1825.
Dick Nauka v. Motor Vehicles Insurance (PNG) Trust (05/12/97) N1680.
Cathy Robert Kolum as next friend of Salome Robert, Jamila Robert and Peter Kolum v. The Motor Vehicles Insurance (PNG) Trust (27/10/00)
N1998.
Counsel:
Mr. F. Griffin for the Appellants
Mr. L. Makap for the Respondent
04th March 2005
BY THE COURT: The Appellants are appealing against a decision of the National Court delivered on 21st July 2004, dismissing an application by them for extension of time to give notice of their intention to make a claim against the State under s. 5 of the Claims By and Against the State Act 1996. For the purpose of that appeal, the appellants are also applying for leave to adduce "fresh evidence". The purported fresh evidence is about some other people within the Appellants’ own community or group, also having the same kinds of contracts with the State as the Appellants and terminated in the same way but allowed to proceed against the State without meeting s. 5 notice requirements. We heard the application for fresh evidence and then the appeal, subject to a decision on the application for fresh evidence and reserved a decision on both the application and the appeal. This is now the decision of the Court.
Although the notice of appeal pleads some errors on the part of the trial judge, the Appellants did not take that up at the hearing. Their main argument was on the application for fresh evidence and subject to a decision on that, a revisit of the learned trial judge’s findings on the question of prejudice. They argued that at the time of the trial, the evidence was not available and that they could not ascertain, secure and adduce them before the learned trial judge. This was despite their admitted knowledge of the existence of the evidence in question, which knowledge they did not communicate to their lawyers. They further argued that, the justice of the case warranted an admission of the fresh evidence because that would demonstrate that, the Solicitor General applied double standards and that it diminishes significantly any prejudice to the State.
The State’s response was, the learned trial judge did not commit any error, which was conceded to by the Appellants. Hence, it argued for a dismissal of the appeal. In relation to the fresh evidence, it argued that, the evidence was available and within the knowledge of the Appellants. Therefore, it was within their reach with the exercise of reasonable care to ascertain, secure and have them admitted before the learned trial judge but they failed. Further, the State argued that, the evidence will not serve any justice because, the evidence shows an illegal claim allowed to proceed against the State, which does not necessarily mean that the Court and therefore the law should also allow the Appellants’ to proceed illegally.
From these arguments, it is clear to us that the issues are these:
Brief Background Facts
The background or facts giving rise to these issues are straightforward. In or around the years 1998 and 1999 the Appellants entered into various public works contracts with the State through the Department of Works. The contracts were for the construction of stonewalls and drains along the Magi Highway, Baruni Road, Papa/Lealea Road, Hiritano, Bomana Highway and Sogeri Road. The Appellants appropriately mobilized and part performed the contracts. However, during the Easter weekend in 1999, the State forcefully, terminated the contract with the assistance of police and backhoes refilling and covering the drainage work they had commenced. Soon after that, the Appellants made claims for a payment for the work done and for damages for breach of contract.
A prompt settlement of the Appellants claims was not in sight. Some of them, including Rawson Construction Limited engaged Kubak Lawyers, to assist in their claims. Those lawyers forwarded a letter of demand to the Department of Works on 28th June 1998. The Appellants however, terminated their lawyers and continued to negotiate directly with the Department of Works, who they claim made representations to the effect that they should not engage lawyers, as the Department would settle the claim. The learned trial judge found no direct evidence supporting this claim and refused to accept it. The Appellants do not challenge the decision of the learned trial judge. We therefore find that, the State did not make any representation to the Appellants that, it would settle their claims.
More than a year later in 2000, the Appellants did not get their claims settled. They therefore formed a committee to pursue their claims. They held meetings with the Department of Works and the relevant minister. In the process, they entered into more correspondence. These correspondences partly supported the claims, while some others addressed the issue validity of the claims. Still others indicated that the State would settle the genuine claims subject to the approval of the Secretary of the Department of Works.
Two years later, on 20th September 2002, Maladina’s lawyers wrote to the Department of Works inviting negotiations to settle the claims which they said at the time amounted to K13, 000, 000.00. There was no response to that. Eight months later on 29th May 2003, the lawyers wrote to the Departmental Head, Department of Justice and Office of the Attorney General. In that letter they purported to give, notice under s. 5 of the Claims By and Against the State Act 1996. The Acting Solicitor General responded on 21st July 2003, rejecting the letter as "... insufficient compliance with Section 5 of the Act...". After a delay of almost 7 months on 12th February 2004, the Appellants filed an application for extension of time to give notice under s. 5 of the Claims By and Against the State Act 1996. The National Court heard that application on 9th and delivered its decision on 21st July 2004, which is the subject of this appeal.
The learned trial judge before arriving at his decision dismissing the Appellants application, identified the issues for his determination. He then found that the Appellants failed to provide any reasonable explanation for not giving notice of their intention to make a claim against the State in accordance with the requirements of s. 5 of the Claims By and Against the State Act 1996, initially within the first six months from the date when the cause of action accrued. As for the period of delay subsequent to the first six months, His Honour found as follows: [1]
"Delay until end of 2001 might have been partly excused on the basis that progress appeared to be being made in the negotiations. From late 2001 on there was really nothing occurring in the negotiations with the Defendants which might encourage the Plaintiffs to believe that their claims could be successfully settled by negotiations. There has been lengthy delay in giving notice, some 4 years and 9 months after the expiry of the 6 months period, at the present time. There has been no attempt to explain why notice was not given in the 6 months period. The subsequent delay is not adequately explained."
His Honour went on to find that the Appellants had no excuse in view of the fact that they live in Port Moresby were there is easy access to legal services. Further, His Honour found that the Appellants claims were substantial. It therefore warranted some investigation. In that regard, His Honour noted that, the relevant physical evidence was to the knowledge of the Appellants, covered by earth. That meant that the Appellants would face some difficulty in producing physical evidence of work done and material provided. His Honour also noted some difficulty in the evidence in terms of reconciling the amounts claimed. Additionally, His Honour noted that, there was a large volume of documents to and from the Department of Works but there was no evidence indicating whether the authors or any person having direct knowledge and involvement was around as a material and relevant witness for either of the parties. Having regard to these factors, His Honour concluded:[2]
" ... [T]he delay will cause some prejudice to the Defendants, particularly in establishing who, if anyone, authorized the work and what was actually done, but that this is not a case where the trail is completely cold and no information at all can be obtained."
With regard to the merits of the case, the learned trial judge found that the appellants did not make out their claims, in so far as they claimed that the purported contracts were written. This was so because, there was no evidence of the State or its agent signing any of the contracts. His Honour also noted that, there was no evidence of the Appellants contracts meeting the important requirements of the Public Finance (Management) Act as elaborated and applied in the case of The Independent State of Papua New Guinea v. Barclay Bros (PNG) Ltd,[3] approved by the Supreme court in Fly River Provincial Government v. Pioneer Health Services Ltd.[4] His Honour found an internal memorandum within the Department of Works, which raised the issue of authority to enter into the contracts. Thus, His Honour found that, the foundation for the claims were questionable.
The Relevant Law
Clearly it is the law now that, the principles enunciated in the National and Supreme Court judgments in the context of the s. 54 (6) of the Motor Vehicles (Third Party) Insurance Act chp. 295 (MVIT Act) equally apply to the requirements for notice under s. 5 of Claims By and Against the State Act 1996. The Supreme Court judgment in Paul Tohian, Minister for Police and the State v. Tau Liu[5] and the National Court judgment in Daniel Hewali v. Papua New Guinea Police Force & The State[6] make this clear.
Proceeding on that clear position, we note that, in the context of applications for extension of time under the MVIT Act, the cases have made it clear that an applicant for extension of time must meet three factors in order to meet the "sufficient cause" requirement in that Act and to enable an extension of time. Kandakasi J.’s, decision in Vivisio Seravo v. Jack Bahafo[7] brings that clearly out in these terms:
"There is ... a large number or body of case law in relation to extension of time to give notice of one's intention to make a claim against the Motor Vehicles Insurance Trust from which cases the following principles emerge:
For a detailed look at this, see the Supreme Court decision in Motor Vehicles Insurance (PNG) Trust v Viel Kampu (Supreme Court decision delivered on 29th October 1998) SC587 as well as The Application of Sir Kepa Puipu (Unreported National Court judgment delivered on 19th June 1992) N1077."
In the present case, we note that the learned trial judge carefully considered each of these aspects and found in effect that the Appellants did not meet each of these requirements. We note that the Appellants do not correctly take any serious issue with the learned trial judge’s decision in relation to these aspects. However, as already noted, the only issue they take is in relation the His Honour’s decision in relation to the issue of prejudice. That argument is however, conditional on the success of the application for admission of fresh evidence. It is therefore appropriate now to turn to that application.
Application For Fresh Evidence
(i) Facts
In support of the Appellants’ application for fresh evidence, they have filed and rely on an affidavit by Mr. Rawson Baro sworn on 13th October 2004. In paragraphs 3 to 18, the deponent deposes to having knowledge about three claims under separate Writ of Summons for causes of action that are the same if not similar to that of the Appellants. Although the deponent says he had knowledge of them, he did not inform his lawyers until after the decision of the National Court, the subject of this appeal.
Those claims, the deponent continues to say, proceeded to judgment against the State in damages well after the decision on this matter. Although not specifically deposed to, during submissions, counsel for the Appellants made it clear that, those other claims were also out of time and without s. 5 of the Claims By and Against the State Act 1996 notice. Given that, the Appellants submit that the Solicitor General applied double standards in that, he allowed those other claims to proceed and rejected their claims.
(ii) Fresh Evidence – The Relevant Law
The law on "fresh evidence" is very clear. In James Pari & Anor v. The State[8] the Supreme Court spoke of two basic requirements or test for the admission of fresh evidence. These are from the head note to the judgment:
"Firstly, there must be fresh evidence within the meaning of s. 6(1) (a) of the Supreme Court Act Ch 37, which means evidence which has come to light since the hearing or trial, or evidence which as come to the knowledge of the party applying since that hearing or trial and which could not by reasonable means have come to his knowledge before that time. Secondly, the court must be satisfied that the justice of the case warrants admission of the evidence."
This was a restatement of what the Supreme Court had already stated in the earlier cases of Peng v. The State[9] and Abiari v. The State.[10]
Applying these tests to the present application, the relevant questions are:
The evidence from Mr. Rawson Baro clear is that, he was aware of the proceedings by the other claimants. On the Court’s inquiry, counsel for the Appellants made it clear that, the Appellant and the other claimants come from the same community or group of people who had the same or if not the similar kind of contracts for the same kind of work or project. Those claimants were also out of time in terms of s. 5 of the Claims By and Against the State Act 1996.
The deponent and hence the Appellants, do not provide any explanation as to why they did not inform the lawyer of the existence of that evidence. Similarly, they offer no explanation as to why or how they were not able to secure and adduce that evidence before the trial judge after having knowledge of their existence. We find that, it was possible and within reach of the Appellants to secure and adduce in evidence before the trial judge the evidence, they now wish this Court to treat as fresh evidence. If they exercise reasonable care and attention to their case they would have done that, but they have not. We note this is consistent with their failures to provide reasonable explanations for failing to give notice within the first six months and for the subsequent delays.
Further or in the alternative, the Appellants have not persuaded us that the justice of their case requires an admission of the evidence in question. The evidence the Appellants seek to admit as fresh evidence, essentially is that, the Solicitor General allowed other people within the Appellants community or group with the same or similar contracts who also did not met the requirements of s. 5 of the Claims By and Against the State Act 1996, to proceed with claims against the State. This no doubt shows that, those claims were allowed either deliberately or inadvertently to proceed illegally against the State.
The law is trite that, no claim can validly proceed against the State without meeting the notice requirements. Many judgments of both this and the National Court clearly show that, the requirement for notice is a condition precedent, without which there can be no claim: see Paul Tohian, Minister for Police and the State v. Tau Liu[11] and Daniel Hewali v. Papua New Guinea Police Force & The State.[12] The reason for this was as explained by Kandakasi J., in the later case as follows:[13]
"That reason is simply that, both the MVIT and the State are themselves not necessarily responsible for that which gives rise to a claim against them. They instead become responsible or liable by reason of the law. In the case of the MVIT it is because of the MVIT Act and in the case of the State, it based on the principles of common law in some cases and in other cases based on statute. In most cases, they do not have any personal involvement and knowledge of matters giving rise to a cause of action against them. Of course, common law does not override any statutory law. Instead, under our hierarchy of laws as set out in s.9 of the Constitution, the principles of common law are subject to any relevant Act of Parliament."
It therefore follows in our view that, if indeed the Solicitor General allowed those other claims without meeting the condition precedent in s. 5 of the Claims By and Against the State1996, they would be nothing short of illegal claims. Thus, if we admitted the evidence in question, they will not advance the Appellants’ claim in any respect. The law cannot simply permit one illegal claim to proceed merely because another illegal claim proceeded. After all, one wrong or illegal act does not justify or correct another.
In arriving at that view, we have considered the Appellants arguments that, the evidence greatly reduces the risk of any prejudice to the State as found by the learned trial judge. In doing so, we noted that, there are numerous judgments on the issue of prejudice particularly in the context of the application for extension of time to give one’s notice of intention to make a claim under the MVIT Act. We note that unexplained delays in giving notice and or applying for extension of time to comply with the notice requirements inevitably results in findings of possible prejudice. The judgments of Sawong J., a member of this Court in Bipa Akopa v. Motor Vehicles Insurance (PNG) Trust;[14] Koe Fuanka v. Motor Vehicles Insurance (PNG) Trust[15] and Dick Nauka v. Motor Vehicles Insurance (PNG) Trust[16] are on point.
In the decision the subject of this appeal, the learned trial judge reasoned as follows:
"The total of the claims is a large amount deserving of proper investigation. It was known to the Plaintiffs from Easter 1999 that the physical evidence was covered by earth which obviously would accelerate the obliteration of the physical evidence of work done. These factors in my view put an onus on the Plaintiffs to give early notice of their intention to make a claim. The lengthy delay in giving notice will make it nigh impossible to physically re-confirm claims of work done and materials provided. Photographs annexed to the affidavit of Mr. Rawson Baro show the substantial damage and obliteration done to some of the works by filling and road traffic. Those photos are attached to a report dated in the year 2000. It is reasonable to infer the position would now be worse.
Rawson Constructions Limited claims it is entitled under contracts in the amount of K120, 000 & K144,000. A letter dated 1 September to the First Defendant from its consultant Kibili Limited refers to Rawson having two contracts each of K120, 000. An annexure to the letter headed "Appendix G" refers to a contract amount being K81, 900. It is impossible to reconcile these figures. It is indicative that the document records now available are confusing and conflicting as to the quantum and value of the works. It is very likely those issues will not be able to be resolved by reference to the physical works.
Annexures to the affidavits indicate there is a body of documentation in the offices of the First Defendant which relate to the claims. I do not know whether witnesses are still available as neither party called evidence on that issue.
I conclude that the delay will cause some prejudice to the Defendants, particularly in establishing who, if anyone, authorized the work and what was actually done, but that this is not a case where the trail is completely cold and no information at all can be obtained."
We cannot find anything wrong with this. Instead, we find that his Honour was merely following the law as enunciated in a large number of cases before his decision. In the Daniel Hewali case,[17] Kandakasi J., considered the question of what amounts to sufficient notice and in so doing, he referred to three judgments including one by Sawong J., in Paraka Nui v. Motor Vehicles Insurance (PNG) Trust.[18] These cases and others make it clear that, in order to constitute sufficient notice, claimants must provide sufficient details about the claim. Such details include in the case of a claim against the MVIT, names of owners and drivers of the vehicle(s) involved in the accident, names and addresses of witnesses if possible, the details or particulars of the vehicle(s) involved, the date and the full circumstances of the accident.
Such details are necessary because:[19]
"... [V]arious judgments of both the Supreme and the National Courts starting with the Supreme Court decision in Rundle’s case, make it clear as to the purpose of giving the trust notice within the periods specified. It is to give the MVIT early notice of an impending claim against it so that, it can carry out its own investigations while the trail of evidence is still fresh to enable it to meaningfully decided whether or not to settle the intended claim. No such investigations could be carried out if no details of the kind spoken of by the other judgments are disclosed or given. Simply stating that "I give you notice that I will make a claim against you", would serve no useful purpose particularly, when MVIT or as in this case, the State is not itself responsible for that which gives rise to the possible claim against it."
In arriving at the above view, we carefully considered the judgment of Sevua J., in Cathy Robert Kolum as next friend of Salome Robert, Jamila Robert and Peter Kolum v. The Motor Vehicles Insurance (PNG) Trust.[20] There, His Honour after referring a number of earlier cases, some of which we have already referred to, and said:
"With respect to my brethren, I do not agree with their views although, I consider that what they have adverted to are relevant in a claim against the Trust. ... To agree with their views, would mean sanctioning the definition of the word, "notice", which is neither defined in s.54(6) of the Act nor by the Supreme Court in Rundle’s case. I consider that, those views have given a very wide meaning to the word "notice" than intended by the Parliament. In my view, "notice", given its ordinary meaning, means, writing to the Trust and notifying it of one’s intention to make a claim against the Trust. Of course, it is important to provide the date of accident and registration numbers of vehicles involved in an accident. However, to say that a claimant who gives notice within the 6 months limit as required by law, has not given notice because details of vehicles, how the accident occurred, etc, etc, were not included in the notice is quite absurd and ridiculous. It defeats the very purpose that the law intended."
On our part, with respect, we do not agree that, all that a claimant has to do is say "I am giving you notice" and do no more. This is particularly important, when as we already noted, the liability of the MVIT and the State are by virtue of their respective legislation and the common law as well, in the case of the State. Neither the State nor the MVIT are themselves responsible for the accident or that which gives rise to a proposed claim against them. It is therefore necessary to provide the kind of details the other judgments speak of to enable the State or the MVIT, as the case may be, to properly and meaningfully investigate and settle or defend the claim as the results of the investigations may dictate.
In the present case, the learned trial judge found that the Appellants did not provide the necessary details. He therefore concluded that, there was the risk of prejudice against the State after the lapse of more than 5 years since the cause of action may have accrued to the Appellants. The purported fresh evidence, does not improve on that lack in evidence. Hence, we find that the evidence does not support the Appellants arguments that the purported fresh evidence greatly diminishes the prejudice to the State.
For all of these reasons, we dismiss the both the application for leave to adduce fresh evidence and the appeal as having no merit.
We order costs to follow that event.
_____________________________________________________________________
Lawyers for the Appellant/Applicant: Young & Willams Lawyers.
Lawyers for the Respondent/Respondents: Paul Paraka Lawyers
[1] At page 16.
[2] At page 18.
[3] (2001) N2090, per Kapi DCJ (as he then was).
[4] (2003) SC705.
[5] (27/08/98) SC566.
[6] (27/03/02) N2233, per Kandakasi from page 6 to 9.
[7] (21/03/01) N2078.
[8] [1993] PNGLR 173.
[9] [1982] PNGLR 331.
[10] [1990] PNGLR 250.
[11] Supra note 5.
[12] Supra note 6.
[13] At page 9.
[14] (08/08/97) N1603.
[15] (04/12/98) N1825.
[16] (05/12/97) N1680.
[17] At pages 10-11.
[18] (Unreported and unnumbered).
[19]To use the words of the Kandakasi J., in the Daniel Hewali
[20] (27/10/00) N1998.
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