Kaurigova v Perone [2008] PGSC 45; SC964 (3 April 2008)

SC964

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 34 OF 2007

BETWEEN:

RUTH KAURIGOVA
Appellant

AND:

DR RUSSO PERONE
Second Respondent

AND:

SR SANDRA WAWAEIA
Third Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Forth Respondent

WAIGANI: Gavara-Nanu and Kandakasi, JJ
2007: 7th August
2008: 3rd April

PRACTICE & PROCEDURE – Notice of Intention to make a claim against the State – Claim By and Against the State Act, 1996 – s.5 – Mode and purpose of s.5 notice – Giving notice – "Give" – Meaning of – Whether leaving of notice with the Executive Assistant to the Solicitor General constitute "giving" of notice.

PRACTICE & PROCEDURE – Application to dismiss for want of prosecution- Plaintiff taking all necessary steps to have the matter listed and set down for trial – Failure by the defendant to prove delay – No evidence of inordinate delay – Proceedings wrongly dismissed for want of prosecution.

Cases cited:

Daniel Hewali v. Papua New Guinea Police Force and The Independent State of Papua New Guinea N2233
Graham Rundall v. Motor Vehicles Insurance (PNG) Trust (No.1) [1988] PNGLR 20
Kamapu Minuto & Anor v. The Independent State of Papua New Guinea N1768
Philip Takori & Ors v. Simion Yagri & Ors SC405
Stanley Tendi v. Motor Vehicles Insurance (PNG) Trust [1996] PNGLR 379

Counsel:

R. Uware for the appellant
R. Chirake for the respondent

1. BY THE COURT: The appellant appeals against whole of the judgment given by Sakora, J on 21st March, 2007 at Popondetta in proceedings WS 315/2002 in which his Honour ordered the proceedings to be dismissed for failure by the appellant to give notice of her intention to make a claim against State pursuant to s. 5 of the Claims By and Against the State Act, 1996, (‘CBAS Act’) and for want of prosecution pursuant to O 4 r 36 of the National Court Rules. The appeal lies without leave as the judgment appealed from raises both questions of law and mixed fact and law. The proceedings in WS 315/2002 was for claim for damages by the appellant for negligence by the doctors and personnel at the Popondetta General Hospital by leaving a foreign object namely a vaginal pack in the appellant’s body after a caesarean was performed on the appellant to deliver her baby.

2. When the respondents made an application before his Honour for an order dismissing WS 315/2002 proceedings in its entirety for the failure by the appellant to give s. 5 notice and for want of prosecution, the appellant also filed a cross motion seeking orders for a default judgment.

3. The grounds of appeal are:-

(i) Learned trial judge erred in law in holding that appellant failed to give notice as required by s. 5 of the Claims By and Against the State Act, 1996 when in fact the requirement was complied with by giving notice to the State through the Attorney General’s Office.

(ii) The leaned trial judge held against the weight of the evidence that there was no notice given to the State when there was in existence of notice, a letter dated 29th April, 2000, that constituted notice as required by law, duly served on the State on the same date.

(iii) The leaned trial judge erred in dismissing the appellant’s claim on the basis of not prosecuting the claim with due diligence in accordance with O 4 r 36 of the National Court Rules when there was evidence that appellant through her lawyer took sufficient or reasonable steps to have the matter progressed towards trial.

4. The relief sought are:-

1. Order of 21st March, 2007 to dismiss proceedings in WS 315/2002 be set aside.

2. Appellant’s default judgment application to be granted, or alternatively:

3. Proceedings in WS 315/2002 be progressed towards trial.

4. Any or further orders the Court deems fit.

5. Cost of the appeal to be met by the State (4th Respondent).

Background

5. An Affidavit of Search sworn by Mr. Uware on 13th May, 2003, shows that the writ was issued on 15th March, 2003. The Notice of Intention to Defend was filed on 9th April, 2002 and on 9th October, 2002, an amended writ of summons was filed.

6. According to Mr. Uware’s affidavit, by 15th October, 2002 no other documents were filed by the respondents including a defence. According to the transcript of proceedings shown at page 14 of the Appeal Book, the fourth respondent filed its defence on or about 1st April, 2004, which was out of time and without leave of court. The Notice to set down for trial was subsequently filed on 29th July, 2004.

7. An affidavit sworn by Mr. Francis Kuvi, (then Acting Solicitor General) shows that on 5th July, 2005, the case was briefed out to Paraka Lawyers on 11th May, 2005. On 20th May, 2005, Paraka Lawyers wrote and asked Mr. Kuvi if notice under s. 5 of the CBAS Act, had been given by the appellant. Mr. Kuvi did a search in his Office but could not find such notice being served on his Office by the appellant. On 24th May, 2005, Paraka Lawyers filed a notice of motion seeking orders that entire proceedings be dismissed for failure by the appellant to give s. 5 notice or alternatively, that the whole proceedings be dismissed for want of prosecution pursuant to O 4 r 36 and O 10 r 5 of the National Court Rules. In support of that application, a supporting affidavit was sworn by a Mr. Tau Tau a Professional Assistant to the Solicitor General on 25th May, 2005. In his affidavit Mr. Tau deposed that he was responsible for recording all s. 5 notices given or served on the Solicitor General by claimants intending to make claims against the State. Mr Tau deposed in his affidavit that he did not find any s. 5 notice been given by the appellant to the State. He said he did a manual and computer search of all s. 5 notices given and served on the Solicitor General’s Office but found no records of a notice being given and served by the appellant on the Solicitor General.

8. On 21st June, 2005, the appellant filed a notice of motion seeking orders that a default judgement be entered pursuant to O 12, r 25 and 27 of the National Court Rules or alternatively that the fourth respondent’s defence be struck out and damages be assessed. In that same notice of motion, the appellant sought orders that her costs be paid either by Paraka Lawyers or the State. In support of that motion, Mr. Uware in his affidavit sworn on 21st June, 2005, deposed that on 29th April, 2000, he personally gave s. 5 notice by way of a letter dated 29th April, 2000 to the State. He said he personally hand delivered the letter to the Solicitor General’s Office. In that letter, the appellant gave notice to the Solicitor General of her intention to make a claim against the State. The letter was served on a Ms Ephraim at the Attorney General’s Office on the 7th Floor of Sir Buri Kidu Building. Then on 22nd March, 2002, Mr Uware served a sealed copy of the writ of summons on the State by giving it to a Ms. Kiap of the Solicitor General’s Office.

9. On 6th August, 2003, Mr. Uware met Mr. Tau and told him that a s. 5 notice and the writ of summons were already served on the Solicitor General’s Office. Mr. Tau told Mr. Uware that no such notice or any other court documents were received by the Solicitor General. On 6th August, 2003, Mr. Uware then served copies of the amended writ of summons together with all the other documents on the Solicitor General. On 8th January, 2004, the appellant asked the State to provide a copy of its defence. On 2nd June, 2004, a sealed copy of the defence was served on the appellant’s lawyers. On 24th June, 2004, appellant’s lawyers informed the Solicitor General that the respondent’s defence was filed out of time. On 20th May, 2005, Paraka Lawyers gave notice to the appellant’s lawyers that they would apply for the entire proceedings to be dismissed for the appellant’s failure to give s. 5 notice. The appellant’s lawyers in a letter dated 6th June, 2005, informed Paraka Lawyers that s. 5 notice had been given and served on the Solicitor General and informed that respondents’ defence having been filed out of time an application would be made to have it struck out. On 30th June, 2005, Paraka Lawyers filed and served a request for further and better particulars of the matters pleaded in the amended statement of claim. On 1st August, 2005, the appellant’s lawyers filed and served further and better particulars. It is noted that on 2nd August, 2005, Paraka Lawyers, by way of a notice of motion applied for the appellant to provide a response to their request for further and better particulars to the amended statement of claim.

10. On 29th July, 2004, both parties through their respective lawyers filed a notice to set down the matter for trial. Paraka Lawyers then filed an affidavit sworn by Mr. Yapao in which it was deposed that the appellant’s lawyers had not filed further and better particulars in response to their request despite being given seven days to do so. On 9th August, 2005, Paraka Lawyers filed a notice to withdraw the notice of motion filed on 2nd August, 2005, in which they sought further and better particulars from the appellant. On 22nd of August, 2005, Mr. Yapao swore an affidavit in which he deposed that he had searched the documents on court file and noted that the appellant did give s. 5 notice but it was served on Ms. Ari Ephraim, the Acting Senior Executive Assistant to the Solicitor General who was not a person authorized to receive a s. 5 notice as she was not a personal secretary to the Solicitor General as required under s. 5 of the CBAS Act. That affidavit was used in support of the notice of motion filed by the respondents seeking orders to dismiss the proceedings for failure by the appellant to give s. 5 notice. Annexed to that affidavit was the Acknowledgement Form which was signed by Ms. Ephraim, indicating that a s. 5 notice was received by her. In the Acknowledgement Form, the description of the document received by Ms. Ephraim read: "Notice - section 5, Claims By and Against the State Act"; the date received was "29th April, 2000" and the time received was "2.00 pm". All these particulars confirmed what Mr. Uware had deposed in his affidavit. The Acknowledgement Form also confirmed that Mr. Uware served a s. 5 notice given by the appellant on the Solicitor General’s Office.

11. On 24th August, 2005, there were two notices of motion before Sakora, J. One of the motions was filed by the appellant seeking orders that the respondents’ defence be struck out for being filed out of time and a default judgement be entered with damages to be assessed. The other motion was by the respondents seeking orders that entire proceedings be dismissed for failure by the appellant to comply with the requirements of s. 5 of the CBAS Act, alternatively the proceedings be dismissed for want of prosecution under O 4 r 36 and O 10 r 5 of the National Court Rules. By consent the respondents’ motion was moved first. His Honour granted the orders sought, thus dismissing the proceedings in its entirety.

Submissions before the trial judge

(a) Respondents’/Applicants’ submissions

12. Mr. Yapao in moving the motion for the respondents informed his Honour that there were two issues; firstly whether the requirements under s. 5 of CBAS Act, as to service were complied with by the appellant and secondly, whether the proceedings should be dismissed for want of prosecution pursuant to O 4 r 36 of the National Court Rules. Mr. Yapao informed his Honour that s. 5 notice was served on Ms Ephraim by the appellant but because she was the Acting Senior Executive Assistant to the Solicitor General at the time and not the personal secretary for the Solicitor General, she was not a person authorised under s. 5 (3) of CBAS Act to receive the notice. Thus it was argued that, in law there was no s. 5 notice given by the appellant.

13. Mr. Yapao then brought to his Honour’s attention the Acknowledgement Form signed by Ms. Ephraim, which showed that Ms. Ephraim had received a notice from the appellant. He then referred to Mr. Tau and Mr. Kuvi’s affidavits in which they deposed that, there was no s. 5 notice served at all on the Solicitor General. Mr. Yapao submitted that the law was clear that s. 5 notice had to be served on the Attorney General or Solicitor General personally or on their respective personal secretaries and none other. He submitted that service of s. 5 notice could only be effected on those authorized persons. Mr. Yapao went on to submit that, for a default judgement to be entered for the appellant, the appellant had to show that s. 5 notice had been duly served on an authorized officer of the Solicitor General’s Office, not on Ms. Ephraim who he argued was not an authorized and proper person to receive the notice. Mr. Yapao submitted that according to strict interpretation of s.5 of CBAS Act, no notice was given by the appellant. He also submitted that because Ms. Ephraim was not the proper person to receive the s. 5 notice, she may have misplaced the letter constituting the s. 5 notice by the appellant. This he submitted may have been the reason why Mr. Tau and Mr. Kuvi deposed in their affidavits that they could not find any record of that letter. His Honour however noted that Solicitor General should still have records of the appellant’s letter constituting s. 5 notice even if it was served on the wrong person.

14. Mr. Yapao then made his second and alternative application under O 4 r 36 for the proceedings to be dismissed for want of prosecution. He submitted that there had been a delay in prosecuting the proceedings and drew Court’s attention to the appellant’s last document on file which was the notice to set down for trial filed on 29th July, 2004.

15. It was submitted that from 29th July, 2004 to 24th August, 2005, latter being the date on which the respondents applied to have the proceedings dismissed for want of prosecution, it was approximately eleven months one week, during which the appellant made no attempt to prosecute the matter and there was no indication that she was going to do so. It was therefore submitted that there was an inordinate delay by the appellant to prosecute the proceedings, thus the proceedings should be dismiss for want of prosecution.

(b) Appellant/Respondent’s submissions

16. Mr. Uware submitted that there was service of s. 5 notice on the State through the Solicitor General, as acknowledged by the Solicitor General through Ms. Ephraim. He therefore argued that there was a valid service of s. 5 notice on the State. It was further argued that the fact that service of s. 5 notice was acknowledged by the Solicitor General’s Office confirmed that there was a valid service of s. 5 notice by the appellant on the State.

17. Mr. Uware submitted that the aim of s. 5 of CBAS Act is that the notice of intention to make a against the State is given by service of the notice on either the Attorney General or the Solicitor General as the case may be as provided under sub-section (3). It was therefore submitted that, the fact that s. 5 notice was served on the Solicitor General through Ms. Ephraim was sufficient compliance with the requirements under s. 5 of CBAS Act. He submitted that, the fact that it was not or may not have been recorded should not be the basis to penalize the appellant.

18. Mr. Uware also submitted that by their conduct, the respondents accepted and acknowledged service of s. 5 notice as valid and therefore the respondents cannot now turn around and take issue. Furthermore, had Paraka Lawyers not been involved at the later stage of the proceedings, the respondents would not have taken issue on s. 5 notice. Mr. Uware argued that, the fact that the matter had been set down for trial proved that there was no issue on s. 5 notice.

19. As to the submission by the respondents for the proceedings to be dismissed for want of prosecution, Mr. Uware submitted that there was no delay let alone an inordinate delay by the appellant. He argued that the appellant took every reasonable step to have the matter progressed to trial and said that, if there was any delay, the blame could not be put on the appellant.

20. In reply, Mr. Yapao submitted that, although the respondents’ defence was filed out of time it was done at the invitation of the appellant, therefore the appellant cannot now turn around and ask for it to be struck out.

21. There were two issues before his Honour. Firstly, whether service of the letter giving notice to claim against the State by the appellant on Ms Ephraim complied with the requirements of s. 5 of the CBAS Act and secondly, whether there was undue or inordinate delay by the appellant in prosecuting her claim to justify the National Court to dismiss the entire proceedings under O 4 r 36 of the National Court Rules.

22. His Honour in his judgement found that the appellant had failed to comply with the requirements under s. 5 of the CBAS Act and that there was delay by the appellant in prosecuting the proceedings, on these basis, the entire proceedings were dismissed. The relevant extracts of the judgement are found at pages 93 to 96 of the Appeal Book. We consider these extracts relevant for purposes of determining the issues at hand, thus we reproduce them hereunder:

"...the threshold issue of giving notice under section 5 of the Claims By and Against the State Act has not been complied with. I have perused the file over and over again and there is no notice given. It has to be given. It is a mandatory requirement under section 5. Various courts have emphasized that. I should pause to note here as I would have another opportunity perhaps this week to emphasise that notice does not have to be formally served. It has to be served, it has to be given. In section 5 of the Claims By and Against the State Act the word "served" is not used. It says given, given. And as I have said in other cases in relation to section 5 the claimant merely has to, it can be a couple of pages, a letter, not a legal document, just a letter, to the State institution or to the solicitor general or the attorney general giving notice, giving notice of an intention. It is not a claim. It is an intention to claim. I will have, I hope, the opportunity to re-emphasise this because there is a misunderstanding about section 5.

I have said in other contexts that it is like section 54 (6) of the Motor Vehicles Third Party Insurance Trust Act where an intending claimant following a motor vehicle accident has to give notice to the insurance commissioner within six months of an intention to claim. It is an intention to claim. ...People, with respect, have been saying that you have to serve it on the solicitor general and the attorney general and if not the attorney general and solicitor general, their personal secretaries and ordinary people are looking around for them. What, they are going to go chasing after them in Port Moresby at lunch places and dance places and discos and whatever?...

We make it difficult for ordinary people. How many attorneys general and solicitors general are in the provinces? They are only two and they have only got two secretaries. They are not in the provinces. But, with respect, some of our professional colleagues are getting there and make things hard for ordinary people in remote areas.

Notice was not given because I did not see a letter, not because I did not see a proof of service because there is no requirement for service, you just send a letter, two paragraph letter expressing an intention to claim and the other paragraph you just give the details, the bare details.

...Under those circumstances I am not favourably disposed to expecting people to serve the notice under section 5 when the legislation itself does not say serve it says give. And you can give it by letter.

...But the point here, I am sorry Mr. Mesa, is that I am satisfied no notice was given and so the proceedings can be dismissed on the basis of non compliance with the mandatory requirement which is a threshold issue. If there is no notice you cannot claim.

Anyway, so on that basis these proceedings can be dismissed. I should note also that these proceedings can be dismissed on another basis and that is Order 4 r 36 of the National Court Rules for want of prosecution. And I am satisfied from the perusal of the document and the lack of pleadings in this matter that the claimant herself through her lawyers, the office of public solicitors have not prosecuted this action with due diligence. Rule 36 of order 4 of the National Court Rules says, "Where a plaintiff makes default in complying with the order of the court or order or direction as to the conduct of the proceeding or does not prosecute the proceedings with due dispatch – " is the same as due diligence" - the court may stay or dismiss the proceedings. So, on two counts these proceedings can be dismissed and I do so and I will have brief reasons to those effects for your file and for Mr. Uware’s interest. (Our underlining).

23. The issue of whether a notice to claim by the appellant was given in accordance with the requirements under s. 5 of the CBAS Act turns on the interpretation and application of that Section, which is in these terms:

"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 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 show, allows.

(3) A notice under Sub-section (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 the 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 services 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)."

24. Subsection (1) provides that the notice of intention to claim by a claimant is to be in writing and is to be given in accordance with the Section by the claimant. Thus, under Subsection (1), a claimant intending to make a claim against the State must satisfy two requirements, first the claimant must put his notice of intention to make a claim against the State in writing and secondly, the claimant must give that notice in accordance with the Section. Subsection (1) (a) and (b) provide that the notice has to be given either to the Departmental Head of the Department responsible for justice matters viz. the Attorney General (the Secretary for Justice) or the Solicitor-General. Subsection (2) provides that the notice under the Section shall be given within six months from when the claim arose or within such further period allowed either by the Principal Legal Adviser or the court upon sufficient cause being shown.

25. Subsection (3) is critical because in our view, it defines what would constitute ‘give’ or ‘given’ in respect of the notice. Subsection (3) (a) provides that a notice under Subsection (1) "shall be given by – personal service" on an officer referred to in Sub-Section (1) or (b) "leaving the document (notice)" at the office of the officer "with the person apparently occupying the position of personal secretary to that officer" during normal working hours. So Subsection (3) states clearly how the (written) notice is to be "given" viz. either by "personal service" on either of the two officers mentioned in Subsection (1) or by "leaving" the notice in the office of the officer with his or her personal secretary.

26. In this case, there is evidence that, the notice of intention to make a claim against the State by the appellant was put in writing as required under s. 5 (1) and was left with Ms. Ephraim who was the Acting Senior Executive Assistant to the Solicitor General. So the requirements as to the notice being in writing (Subsection (1) and being left at the office of the Solicitor General (Subsection (3) were both complied with by the appellant. The only issue before his Honour was whether Ms. Ephraim was a proper person for the appellant to leave the notice of her intention to make a claim against the State for purposes of s. 5(3) when she was not a personal secretary to the Solicitor General. This point was argued fully by counsel before his Honour. But his Honour did not with respect, decide the issue. His Honour simply ruled that, there was no s. 5 notice given by the appellant.

27. With respect to the question of whether Ms. Ephraim was a proper person to receive the notice by the appellant under s. 5 (3), we consider that the question needs to be determined in the context of the legislative intent behind s.5 by taking a purposive approach to the Section. The scheme and purpose of s. 5 in our view is akin to that of s. 54 (6) of the MVIT Act, thus the purpose of a s. 5 notice is to ensure that the notice of intention to make a claim by a claimant against the State gets to the notice of the State through the officers mentioned in Subsection (1) viz. Attorney General the (Secretary for Justice) or the Solicitor General as the case may be within the time stipulated under Subsection (2) so that, the State is put on early notice and is made aware of an impending claim against it. The purpose of a notice under s. 54 (6) of the MVIT Act, was first discussed in in Graham Rundall v. Motor Vehicles Insurance (PNG) Trust (No.1) [1988] PNGLR 20 at 23 where Bremeyer J, said:

"The purpose of s.54 (6) is to give the Trust early notice of the claim so that it can make its inquiries. Obviously inquiries as to the driver, the owner and the insurance details of the vehicle become more difficult as time passes. Drivers change addresses and sometimes in Papua New Guinea their names, witnesses disappear, expatriates leave Papua New Guinea and police accident reports and insurance certificates get lost."

28. In Stanley Tendi v. Motor Vehicles Insurance (PNG) Trust [1996] PNGLR 379, at 383, Injia J (as he then was) in stating the same principle said:

"In my view, a notice under s. 54(6) should be awarded its ordinary meaning. It means to inform or to make the Trust aware of the claimant’s intention to make a claim against it...Whatever form the notice takes, should sufficiently set out the relevant particulars of the vehicle, accident, the nature of the injuries received and medical treatment received, if any, and the claimant’s desire or intention to make a claim..."

29. Then in Daniel Hewali v. Papua New Guinea Police Force and The Independent State of Papua New Guinea N2233, Kandakasi J, considered the issue of sufficiency of a notice of intention to make a claim against the State by a claimant under s. 5 of the CBAS Act. This his Honour did by reference to s. 54 (6) of the Motor Vehicle Insurance (PNG) Trust Act, and said:

"The wording in this section (s.5 of CBAS Act) is identical to section 54(6) of the MVIT Act. There are two differences between the two sections. First, there is no guidance has (sic.) to what form a notice under section 54 (6) of the MVIT Act, should take, whereas under the CBASA (CBAS Act), it provides that the notice must be in writing. Akuram J (as he then was) spoke of this difference in Kamapu Minato & Anor v. The State (unreported judgement) N1768. Secondly, it prescribes the manner in which the notice must be served.

All the cases on point, such as Kamapu Minato & Anor v. The State (supra), agree that, the purpose or intend (sic.) of Parliament behind s. 5 of the CBASA, is the same as that under the MVIT Act, as held by the Supreme Court in the Rundle case (supra).

...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 decide 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 judgements are disclosed or given.

...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..."

30. In Kamapu Minato & Anor v. The Independent State of Papua New Guinea N1768, Akuram J, compared s. 5 of the CBAS Act, to s. 45 (6) of the MVIT Act, and said:

"..The purpose of Section 54(6) was explained in Rundle’s case by Bredmeyer J at p. 23 is to give the Trust early notification of the claim so that it can make its own enquiries as to the driver, owner, witnesses, police accident reports and insurance certificates. Section 54 (6) is designed to give the Trust prior notice of the claim within six months.

I would apply the same reasoning here and say that the purpose of Section 5(1) & (2) of the Claim By and Against the State Act, 1996, is to give the State early notification of the claim so that it can make enquiries. Obviously enquiries as to, as in this case, the raid itself, the policemen involved, the properties damaged or destroyed, their value, the witnesses and whether the action is time barred. Section 5 (1) & (2) is therefore designed to give the State and its agents or servants sufficient prior notice of the claim within six months..."

31. All these cases affirm that the purpose of a notice of an intention to make a claim under s. 5 of the CBAS Act, is the same as a notice of an intention to make a claim under s. 54(6) of the MVIT Act. However, the two Sections are different in respect of the form in which notices under them should be given. This difference is clearly seen from the language of s. 54 (6), which provides:

(6) No action to enforce any claim under this section lies against the successor company unless notice of intention to make a claim is given by the claimant to the successor company within a period of six months after the occurrence out of which the claim arose, or within such further period as –

(a) the Commissioner; or

(b) the court before which the action is instituted,

On sufficient cause being shown, allows.

32. Thus, it is not in dispute that s.54 (6) is silent on whether the notice should be given in writing.

33. There is another significant difference between the two Sections. Section 54 (6) of the MVIT Act, does not state as to how the notice is to be given, it only provides for the notice to be "given". Whereas s. 5 (3) of the CBAS Act, provides that the notice "shall be given by personal service".

34. Subsection (3) is in these terms:

(3) A notice under sub-section (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 7.45am and 12 noon, or 1.00pm and 4.06pm...

35. Subsection (3) therefore expressly provides that a notice of an intention to make claim by a claimant "shall be given", by "personal service" either on the Departmental head of the Department responsible for justice matters Attorney General (Secretary for Justice) or the Solicitor General; or by "leaving" the notice with the personal secretary for either of these two officers during working hours. Thus by virtue of Subsection (3), a s. 5 notice would be "given" when it is served personally on either the Attorney General or the Solicitor General or by "leaving" it with the personal secretary for either of the two officers during working hours.

36. In this case, the learned trial judge said, s. 5 of the CBAS Act, only says "given" and the Section does not use the word "service". With respect, this view is directly contrary to the express language in Subsection (3). It appears that when expressing that view, his Honour was addressing his mind to the terms of s. 54 (6) of the MVIT Act, which only uses the word "given" in respect of a notice of an intention to make a claim by a claimant against the Motor Vehicle Insurance Trust. Section 54 (6) of the MVIT Act is silent on the word "service", Section 5(3) of CBAS Act, on the other hand uses the word "service". Thus, with respect this is where his Honour clearly fell into error when he held that the word "service" is not used at all in s. 5 of the CBAS Act.

37. We also find that his Honour erred in law, when he held that s. 5 notice does not require "formal service." This view is also directly contrary to the requirements stated under s. 5 (3).

38. As we alluded to earlier, the issue of whether Ms. Ephraim who was the Executive Assistant to the Solicitor General was a proper person to receive the s. 5 notice by the appellant was raised and argued fully by counsel before his Honour but his Honour did not rule on the issue. We find his Honour with respect, also fell into error in failing to address the issue that was before him for determination. The issue being fully before the Court, it ought to have been considered and determined. His Honour’s failure to consider and determine the issue appears to be as a result of his Honour considering irrelevant issues. See Joseph Lemael Raz v. Paulus Matene [1986] PNGLR 38 and Re Llett [1974] PNGLR 49.

39. Thus having regard to the purpose of s. 5 notice, as we discussed above, it is clear to us that, the requirements for the notice to be left with a personal secretary with any of the two officers referred to in s. 5(3) is to ensure that, the two officers who are responsible for legal affairs of the State be notified of the notice within the time allowed under s. 5 (2). Thus service of a s. 5 notice by a claimant of an intention to make a claim against the State through personal secretaries of the Solicitor General or the Attorney General is deemed sufficient service on the State because the personal secretaries of the two officers in the normal course of their duties would deliver the notice to the Solicitor General or the Attorney General as the case may be. In this regard, we see no difference between Ms. Ephraim and the personal secretary of the Solicitor General for purposes of s.5 (3) because Ms. Ephraim who at the relevant time being the Acting Senior Executive Assistant (a personal staff) to/of the Solicitor General, upon receipt of the notice which was addressed to the Solicitor General, would have in the normal course of her duties delivered or given the notice to the Solicitor General. Thus the issue is not whether the notice was given to the Solicitor General, but whether in the normal course of her duties, Ms. Ephraim would have passed on the notice to the Solicitor General. If however, she failed to do that, that is a matter within the control of the Socilitor General’s Office. The same goes for the absence of the relevant letter after its acknowledgement. The appellant had no control over what happened to the notice once she delivered it to Ms. Ephraim.

40. In the circumstances, we find that, service of the notice by the appellant of her intention to make a claim against the State on Ms. Ephraim did constitute service of s. 5 notice on the Solicitor General for purposes of the requirements under Subsection (3)(b).

41. As to his Honour dismissing the proceedings for want of prosecution because of undue delay by the appellant to prosecute the proceedings, we find that the decision was against the evidence and the weight of the evidence. The appellant has taken all the appropriate steps required of him to progress the case to trial, including the notice to set down for trial. The trial was delayed because Paraka Lawyers, who after being instructed belatedly, raised the issue of s. 5 notice. Furthermore, the trial judge failed to state how and why he found that there was delay by the appellant in prosecuting the proceedings. We find this to be an error of law.

42. With regard to the appellant’s application for default judgement, we note that the respondents did not obtain leave of the Court before filing their defence. This Court has held in Philip Takori & Ors v. Simon Yagri & Ors SC905 that, a defence filed out of time without the defendant first obtaining leave of Court is an abuse of process of the Court and is bound to be struck out. The respondent in this case has not provided any reason for us to depart from that approach. It is also relevant to note that his Honour did observe that, had the appellant given s. 5 notice to the State, he would have had no difficulty in entering default judgement against the State.

43. For the foregoing reasons, we are respectfully of the firm view that the Defence filed by the defendant should be struck out and a default judgement should be entered against the respondents with damages to be assessed.

44. Accordingly, we make the following Orders:-

(1) Appeal be allowed

(2) Order given on 21 March, 2007, dismissing proceedings in WS No. 315 of 2002 be set aside.

(3) The defendant’s Defence filed on 5 April, 2004, be struck out

(4) Default Judgement be entered against the respondents with damages to be assessed.

(5) Appellant’s cost of the appeal to be paid by the respondents.

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Lawyers for the appellant: Public Solicitor
Lawyers for the respondent: Yapao Lawyers