Badastal Ltd v Temu [2011] PGSC 2; SC1092 (11 March 2011)

SC1092

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA N0. 107 0F 2008

Between:

BADASTAL LIMITED
Appellant

And:

DR PUKA TEMU, Minister for Lands & Physical Planning
First Respondent

And:

MR PEPI KIMAS, Secretary for Lands & Physical Planning
Second Respondent

And:

MR FRANCIS TENGE, Chairman of the Land Board
Third Respondent

MR CLEMENT KUBARAM, Surveyor General
Fourth Respondent

And:

MR RAGA KAVANA, Registrar of Titles
Fifth Respondent

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

Waigani: Batari, Kariko & Sawong JJ
2011: 2nd & 11th March

APPEAL – appeal against dismissal of claim - dismissal for want of proper notice under section 5 Claims By & Against the State Act – form of notice under section 5 – date when claim arose crucial in the notice.

APPEAL – PRACTICE AND PROCEDURE – interlocutory application in National Court must be by way of notice of motion.

Facts:

The appellant filed proceeding in the National Court seeking declaratory orders in respect of a piece of land. The Sixth Defendant filed a motion to dismiss the proceedings which was upheld by the National Court on the basis that there was no proper notice as required by section 5 of the Claims By and Against the State Act 1996.This appeal is against that decision of the National Court.

Held:

(1) A notice under section 5 of the Claims By and Against the State Act 1996 must provide the date of the alleged occurrence giving rise to claim or the alleged breach of contract.

(2) A person intending to make a claim against the State has obligation to provide the particulars of the intending claim.

(3) A defendant who has filed an appearance and a notice of intention to defend is entitled to make an interlocutory application.

(4) Interlocutory applications in the National Court shall be by way of motions and that the appropriate notice of motion must be properly filed and served.

(5) There being no errors by the trial judge, the appeal is dismissed.

Cases cited:

Chefs Secret Limited v. National Capital District Commission (2011) N4217
David Coyle v Loani Henao [2000] PNGLR 17
Hewali v Police Force & The State (2002) N2233
Minato v Kumo & The State (1998) N1768
Tohian & The State v. Tau Liu (1998) SC566
William Trnka v. The State N1957

Counsel:

Mr K Imako & A Token, for the appellant
Mr J Geita, for the respondents

11th March, 2011

1. BY THE COURT: On 13 November 2006, the Appellant filed proceedings WS 1639 of 2006 ("the Proceedings") seeking declaratory orders in respect of a property described as Allotment 14 Section 2231 Hohola (Gordon 5). The sixth defendant filed a motion to dismiss the proceedings which was heard by His Honour Kandakasi J on 20 August 2008. His Honour upheld the application and ordered as follows:
   
   • (1) The Plaintiff's purported Notice pursuant to Section 5 of the Claims By and Against the State Act, 1996 is no Notice.
     
   • (2) Entire proceeding is dismissed.
     
   • (3) Cost of the proceedings to the Sixth Defendant.
     
2. This appeal challenges the decision of the learned trial judge.
   

Grounds of appeal

3. The grounds set out in the Notice of Appeal are:
   
   • (1) The National Court erred in law and fact by holding that the Appellant's Notice to the Solicitor General, dated 30 May 2006, failed to point out the date as to when the cause of action arose, and therefore, did not constitute Notice under the Claims By and Against the State Act, despite the Appellant's evidence that the Appellant had sent a similar letter to the Second and Fifth Respondents, respectively and the Fifth Respondent succinctly responded to that letter. Therefore, regardless of the fact that the Notice failed to state the date as to when the cause of action arose, the other Respondents, who are servants, and or agents of the Sixth Respondent were aware of the facts relating to this matter, thus, the Sixth Respondent would have been able to conduct its investigation to defend the claim if it had obtained instructions particularly from the Fifth Respondent.
     
   • (2) The National Court erred in law by holding that the Appellant's notice to the Solicitor General, dated 30 May 2006 did not constitute notice under the Claims By and Against the State Act, because the Appellant failed to give further particulars as requested by the Solicitor General, despite the appellants evidence that he Appellant sent to the Solicitor General copies of letters that it had sent to the Second and Fifth Respondent's response, therefore, the appellant did comply with the Solicitor General's request for further particulars.
     
   • (3) The National Court erred in law and fact by holding that the appellant's land was forfeited because the appellants failed to comply with the improvement covenant, when this was a matter or issue for the trial judge to deal with at the trial and upon presentation of evidence.
     
   • (4) The National Court erred in law and fact by failing to consider and give credible weight to the evidence of the appellant in particular affidavit of Lionel Manua dated 14 February 2008 and the Annexure marked "B" and "C" in the Affidavit of Sandy Tiakin Lau, the lawyer for the sixth Respondent, in the Court below.
     
   • (5) The National Court erred in law by failing to take into account the fact that the Sixth Respondent Defendant filed its defence out of time without the leave of the Court, and therefore its Notice of Motion, filed on 18 June 2008, seeking to dismiss the proceeding for want of notice pursuant to Section 5 of the Claims By and Against the State Act, was an abuse of the process of the Courts.
     
4. Of these grounds of appeal, we would have had no hesitation in rejecting ground (4) as not constituting a proper ground of appeal as it is vague and in general terms and does not disclose the relevant particulars of the alleged error. This ground does not comply with the duty of an appellant to plead with particularity and precision the manner in which it is alleged that the court below erred in fact and/or law; David Coyle v Loani Henao [2000] PNGLR 17.However the appellant abandoned this ground.
   
5. In relation to ground (3), it is clear from the transcript that His Honour's ruling was not based on the issue of whether the land in question had been properly forfeited and indeed His Honour made no finding on this aspect. The appellant also abandoned this ground.
   
6. We will therefore only discuss the remaining grounds of appeal which are summarised as follows:
   
   • (a) That the trial judge erred in law and fact in finding that the Appellant had failed to give proper notice to the State under section 5 of the Claims By and Against the State Act ("the Act"). (Grounds (1) and (2))
     
   • (b) That the trial judge erred in law in permitting the State to argue its motion to dismiss the proceeding when the State had filed its Defence out of time without leave of the court. (Ground (5))
     

Section 5 Notice

7. In relation to the section 5 notice, the trial judge firstly observed that the rationale behind the requirement to give notice "is to give the State early notice within the six months so that the State can carry out its investigations whilst the trail is fresh, so to speak, whilst evidence may still be intact." His Honour went on to emphasise the view that the date and time when a cause of action is alleged to have occurred are critical particulars for the notice, so that time may be calculated to determine if the notice has been given within the stipulated period under section 5(2) of the Act, and secondly whether or not the claim is statute-barred.
   
8. The purported notice was in the form of a letter dated 30 May 2006 sent by the lawyers for the appellant to the Solicitor-General. The main body of the letter reads:
   

"re: Notice of Intention to make a claim against the State

We act for Badastal Limited.

We are instructed to give notice of our client's intention to make claim aginst the State in accordance with section 5 of the Claims By and Against the State Act 1996.

Our client is the owner of Consolidated Allotments 13 and 14 Section 221, at Gordon 5, National Capital District contained in the State Residence Lease Volume 4 Folio 118.

We are instructed that our client engaged Arman Larmer Surveyors, who went to do a detail survey of the subject consolidated allotments for a K2. Million residential development project and they were chased by settlers occupying portion 2522.

Our client then found out that Allotment 14, Section 221, Gordon 5 had been altered to cater for a road easement to Portion 2522 without prior approval given to the Lands Department by our client.

On or about 23rd May 2006, our client gave notice to the Department of Lands to rectify the problem. To date, the Department of Lands has failed, refused or neglected to rectify the problem and our client has suffered damage and will continue to do so as long as the problem continues to remain unresolved or unrectified.

Kindly acknowledge service of this letter by completing the Acknowledgement of Service as stated at the bottom of the duplicate of this letter and thereafter by returning it to the bearer upon completion." (Our underlining)

9. The relevant statutory provisions to refer to in relation to the issue are sections 5 (1) and (2) of the Act which read:
   

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. (Our underlining)

10. It is clear these two subsections provide that:
    
    • it is necessary to give notice to the State of an intention to make a claim against it (section 5(1)); and
      
    • the claim must be made within six months after the claim arose, and in a claim for breach of contract, within six months of becoming aware of the breach (section 5(2)).
      
11. In our view it necessarily follows that in giving the notice the date when the alleged occurrence giving rise to claim or the alleged breach of contract must be provided in the notice. Otherwise, how else can time be computed to determine if the claim is within the stipulated time-limit?
    
12. There is a growing volume of case law that highlights the importance of compliance with section 5 of the Act. Principles that emerge from the cases include:
    
    • a notice of an intention to make a claim against the State is a condition precedent to the issuing of a writ of summons; Tohian and the State v. Tau Liu (1998) SC566.
      
    • The rationale behind the provision is to notify the State early of an intending claim against it so that it can carry out its own investigations while evidence is still fresh and then properly consider whether or not to settle the claim; Minato v Kumo and The State (1998) N1768
      
    • The notice must be in writing and contain sufficient details of the intended claim, including date, time and place of occurrence. If insufficient details may amount to non-compliance with section 5; Hewali v Police Force and The State (2002) N2233
      
    • The notice must be given within the prescribed time frames or within such extended time frame under s.5 (2) of the Act. Paul Tohian & The State v. Tau Liu (1998) SC566; William Trnka v. The State N1957 & Chefs Secret Limited v. National Capital District & Ors (2011) N4217.
      
13. His Honour the trial judge clearly had these principles in mind in addressing the issue before him and correctly reached his decision when he found that no date had been given as to when the claim arose. His Honour also rightfully rejected the submissions by the Appellant that it had subsequently provided copies of correspondence which would have allowed the State to follow up and obtain the necessary particulars including the date. We stress that the obligation is upon a claimant to provide the particulars of the intending claim and it is not sufficient to say to the State "I give notice of my intention to make a claim. This department or that officer knows more about it. Talk to them or check their records to obtain the details".
    
14. It is unclear from the Appellant's letter what the claim is or the date when the claim arose – it refers to a problem which could either mean the settlers on Portion 552 or the alteration of Allotment 14 Section 221 Gordon 5.
    
15. Accordingly, we dismiss grounds (1) and (2) of the appeal.
    

Propriety of State's application for dismissal of proceedings

16. The argument for the Appellant is that the State should not have been permitted to apply for dismissal of proceedings because it had failed to file its defence in time and had not been granted leave to file it out of time.
    
17. We see no merit in this argument for the simple reason that the State as a party is entitled to make an interlocutory application for dismissal. Counsels confirmed that the Solicitor-General had filed an appearance for the State and a notice of intention to defend had been filed.
    
18. We also agree with the view taken by the trial judge not to hear the Appellant's late submission for the court not to entertain the State's application. The Appellant had not filed a proper motion, that is, the Appellant had failed to comply with the National Court Rules and in particular Order 4 rules 37 and 38 which require interlocutory applications to be by way of motions and that appropriate notice of motion be properly filed and served.
    
19. We also dismiss this ground (5) of appeal.
    

Orders

20. For the foregoing reasons, we dismiss the appeal and order as follows:
    
    • (a) The appeal is dismissed.
      
    • (b) The Appellant shall pay the Respondents costs of this appeal, to be taxed if not agreed.
      

_____________________________________________

Rageau, Kikira & Manua: Lawyer for the Appellant
Solicitor- General: Lawyer for the Respondent