Kore v State [2011] PGSC 46; SC1136 (28 October 2011)

SC1136

PAPUA NEW GUINEA [IN THE SUPREME COURT OF JUSTICE]

SCA NO. 93 OF 2006

BETWEEN

ANIS KORE
Appellant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA Respondent

Waigani: Batari, Manuhu & Gabi, JJ.
2011: 25th & 28th October

CLAIMS BY AND AGAINST THE STATE ACT 1996, S. 5 – Notice of intention to make a claim – Application for extension of time – "Sufficient cause" – Relevant considerations – Reasonable cause of action – Immobility – Lack of due diligence – Lack of sophistication – Time limitations.

Cases cited:
Alina Sarah Bean v Ian Maxwell Bean [1980] PNGLR 307, Rawson Construction Ltd v Department of Works (2005) SC 777, Ovoa Rawa v Motor Vehicles Insurance (PNG) Trust (1994) N1276.

Counsel:
J. Umbu, for the Appellant. T. Tanuvasa, for the Respondent.

28 October, 2011

1. BY THE COURT: This is an appeal against a discretionary decision of Kandakasi J refusing the Appellant's application for extension of time to give notice of intention to make a claim against the State under section 5 of the Claims By and Against the State Act.

2. The Appellant's claim would have proceeded under the Wrongs (Miscellaneous Provisions) Act. He claimed he was injured in the course of his employment as Peace Officer on 24 September 2002. He had been ordered to collect and provide information to Kupibaut Village Court in relation to a complaint of stealing of a pig. The Appellant visited the scene of the pig slaughter and returned to present his findings to the Village Court. As he was addressing the Village Court, the "alleged culprit" threw a huge stone that landed on his left eye causing serious injury and total disability eventually.

3. A claim against the State under the Wrongs (Miscellaneous Provisions) Act is unsustainable without notice in writing of intention to make a claim. Such notice must be made within six months or within such further period as the Principal Legal Advisor or the National Court, on sufficient cause being shown allows. See section 5 (Claims By and Against the State Act).

4. The required six months expired on 24 March 2003. The Appellant wrote, through his lawyers, to the Attorney General on 9 May 2005 and sought extension of time. The request was declined on 27 July 2005. The Appellant filed an application in the National Court for extension of time on 27 February 2006. The application was heard and dismissed by Kandakasi J on 10 August 2006. This appeal is against that decision.

5. The principles on an appeal against exercise of discretion are settled. This was explained by Kapi J in the Supreme Court case of Alina Sarah Bean v Ian Maxwell Bean [1980] PNGLR 307, thus:

"On matters of judicial discretion the High Court of Australia in House v. The King 55 C.L.R. 499 at pp. 504-5.20 said:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

"These principles have been recently approved in the case of Gronow v. Gronow (1979) 54 A.L.J.R. 243.21. The recent decision of the High Court of Australia is also referred to in the judgment of Mr. Justice Miles in Brian John Lewis v. The Independent State of Papua New Guinea Unreported judgment No. SC178, 29th August, 1980.22. All these principles have been adopted in numerous cases in this jurisdiction after Independence and they can be properly regarded as part of the underlying law of Papua New Guinea."

6. We shall be guided by these principles in our consideration of the appeal.

7. The substantive appeal involves interpretation and application of section 5 (Claims By and Against the State Act). That section provides:

"(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."

8. The issue of extension of time under section 5, and what is "sufficient cause", has already been discussed in Rawson Construction Ltd v Department of Works (2005) SC 777 where Sawong, Kirriwom and Kandakasi JJ laid down the following guidelines:

"1. An applicant for an extension of time to give notice of his intention to make a claim against the State under s. 5 of the Claims By and Against the State Act 1996 must show "sufficient cause" for not meeting the requirements under the Act.

"2. "Sufficient Cause" would be shown if the applicant is able to:

(a) provide by appropriate evidence a reasonable explanation for not giving notice within the period stipulated under s. 5 of the Claims By and Against the State Act 1996 and where there is a delay in applying for an extension of time, provide a reasonable explanation for that delay;

(b) demonstrate a reasonable cause of action to be pursued on the merits; and

(c) show by appropriate evidence that the delay in giving notice has not and or would not result in any prejudice to the State."

9. We consider the enunciations by their Honours to be sensible, proper and sound. We adopt and apply them in our consideration of the present appeal.

10. There are four grounds of appeal. The first and third grounds are related and we deal with them together. His Honour had made references to lack of evidence on customary compensation and availability of State witnesses. It is claimed that his Honour erred in that these matters were based on assumptions unsupported by evidence and that they were, in any case, irrelevant.

11. We are of the contrary view, however. Firstly, the requirement to give notice is to enable the State to make appropriate enquiries on the intended claim. The State stands to be prejudiced if there is delay and witnesses could not be found for the State to launch an investigation into the claim. Witnesses die or relocate. Four years had lapsed when the request for extension of time was made before his Honour who quite rightly queried whether the State witnesses were available. This is consistent with the applicable principles in the Rawson Constructions Ltd case. Accordingly, we see no error when his Honour remarked on availability of State witnesses.

12. Secondly, it is not a legal or procedural requirement to produce evidence of customary compensation claim to establish sufficient cause. However, we think that his Honour was surprised that, as this case originated from Western Highlands Province where compensation claims are nearly a matter of course if someone is attacked and suffers serious injury, the Appellant did not state whether he claimed any customary compensation from his attacker. When viewed in that context, his Honour's remarks were clearly in relation to the legitimacy or merits of the cause of action, which is consistent with the principles in Rawson Construction Ltd v Department of Works. Accordingly, there is no error warranting our intervention.

13. While on the subject of reasonable cause of action, while the Appellant was able to produce evidence of his injury, he did not name his attacker, he did not explain how the attacker was involved in the stealing of the pig, he did not have any employment record to show that he was indeed a Peace Officer, and he did not provide any evidence that he was performing his duties as directed by a lawfully constituted Village Court. In addition, the Appellant did not state the nature of the duty of care that his employer, if any, and, eventually, the State, owed to him which was breached giving him the right to sue the State for damages, as he sought to do. These are matters that ought to be shown before vicarious liability can be imputed against the State.

14. Furthermore, vicarious liability would be imputed if the attacker was a servant of the State. Vicarious liability of the State under section 1 of the Wrongs (Miscellaneous Provisions) Act is dependent on whether the tort in question was committed "by its servants and agents." The Appellant has not shown that the attacker was a servant of the State. The attacker was unnamed and had no relationship with the State. Therefore, there was no reasonable cause of action against the State.

15. It is our view that the Appellant's claim is more suited as a claim under the Workers Compensation Act. The Act provides "for compensation to workers and their dependants in respect of injuries suffered by workers arising out of or in the course of their employment, and for related purposes." The Act has its own provisions on notice and extension of time. The Act has a twelve months period for giving notice of injury: section 41(2) but, under section 41(7), the Registrar of Workers Compensation may receive, and the Workers Compensation Tribunal may determine an application for compensation even where the required notice was not given; or given out of time, provided that the Registrar or tribunal, as the case may be, is satisfied that there was "reasonable cause for the failure" to give notice.

16. The Act defines "employer" as including the State, a provincial government, and an authority or instrumentality constituted under law: section 1. If the Appellant was employed by the Village Court Secretariat or the Western Highlands Provincial Administration then he would have had a legitimate claim under the Act but he did not explore that avenue.

17. The second ground of appeal is that his Honour erred in law and in fact in finding that the Appellant failed to show cause as to the delay in giving notice. The Appellant's first argument related to the medical reports on the injury. The first medical report is dated 2 October 2002. It shows that the Appellant "will remain blind in his left eye" and will "suffer some difficulty with behavior and memory in the future". The second medical report was done two years later on 16 November 2004 confirming, among other things, that the Appellant was 100 percent blind in the left eye.

18. The Appellant took issue with his Honour's remarks that a further medical report was not necessary. The Appellant submitted that "there is indeed a need for an up to date medical report for obvious reasons to confirm and verify the extent of the injuries and any disabilities incurred or the general health status of the Appellant". Therefore, the Appellant had a good explanation for the delay.

19. We are of the view that the Appellant, with respect, does not understand the reasons for his Honour's remarks. His Honour was essentially stating that the first medical report of 2 October 2002 was adequate, and a follow up medical was not necessary, for the purpose of giving notice of intention to make a claim against the State. We have perused the first medical report and we are in agreement with his Honour that that report was adequate to give notice. Indeed, the first report was also adequate for the purpose of determining liability. The second medical report would then be useful in relation to assessment of damages. The Appellant's argument that he had to wait for the second medical report was unreasonable.

20. The Appellant argued secondly that he did not solely cause the delay. Other factors were also the causes of delay. Road blocks and death threats to the people of Baiyer River District prevented him from obtaining the second medical report and from seeking legal assistance sooner. We have expressed our view on the medical report. We reiterate that the second medical report was not necessary for the purpose of giving notice.

21. On the question of access to legal assistance, the cause of action arose on 24 September 2002. The Appellant secured the services of Harvey Nii Lawyers in February or March 2005 – two and a half years later. This was a considerable delay. It is incredible and unbelievable that no one from Baiyer River was able to travel to Mount Hagen for two and a half years.

22. The Appellant did not demonstrate to his Honour if he had attempted to travel to Mount Hagen and failed. The Appellant did not demonstrate if he tried other means of contact and communication to obtain legal assistance and failed. The Appellant's explanations did not convince his Honour. We too are not convinced.

23. The Appellant further argued that he was immobile because of his injury. However, a report dated 29 November 2004 suggests that he was still performing his duty as Peace Officer with his partial blindness. Secondly, the second medical report was obtained on 2 October 2002 from Tinsley District Hospital. This means that contrary to what he claims the Appellant was able to travel from his village to the hospital. It appears that he was not immobile as claimed.

24. The Appellant also argued that he was illiterate and did not know the requirement to give notice of claim within six months. Lack of sophistication is a relevant factor: Ovoa Rawa v Motor Vehicles Insurance (PNG) Trust (1994) N1276. We accept that the Appellant was not expected to be aware of the requirement to give notice of claim to the State within a certain period.

25. However, we note firstly that after the refusal by the Attorney General to extend time on 27 July 2005, the Appellant and his lawyers took no further action until 27 February 2006, another six months, when they filed proceedings in the National Court for extension of time. This further delay was not explained by the Appellant. The matter was eventually heard on 10 October 2006. By then, the delay had accumulated to four years. We are of the view that the Appellant and his lawyers were complacent and did not act with due diligence to file the proceeding for extension of time.

26. We note secondly that the appeal has been pending since 6 September 2006. A further five years have passed since the appeal was lodged in relation to a cause of action that arose nine years ago in 2002. This further delay has not been explained. The Appellant quite clearly slept on his responsibility to expedite the appeal with due diligence.

27. There is however a tougher hurdle for the Appellant to overcome. The Appellant's cause of action is surely outside the six years requirement permitted by the Frauds and Limitations Act. Section 16 of that Act provides that an action founded on tort "shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued." When confronted, the Appellant suggested without reference to any case authority that six years should run from date of filing of proceeding for extension of time.

28. We disagree, with respect. To do so would be contrary to section 16. Section 16 computes six years from "the date on which the cause of action accrued". Secondly, section 5 (Claims By and Against the State Act) on its own or when read together with the principles in Rawson Construction Ltd case clearly envisages existence of a cause of action before notice of intention to make a claim can be given. A notice of claim is necessitated by existence of a cause of action. It is not and cannot be the other way.

29. Indeed, in our view, the authority to grant extension of time under section 5 is always subject to section 16 (Frauds and Limitations Act). The Attorney General and the National Court may not entertain and grant extension of time outside of the six years limitation. We too are constrained by the same limitation. There is no utility in granting extension of time if the action is already time barred. The operation of section 16 was not relevant before his Honour but it is now relevant and it cannot be ignored.

30. The final ground of appeal is that the application to extend time was not contested. Even then, the burden rested upon the Appellant to explain the delay and convince his Honour to extend time but he failed to do so.

31. In summation, the Appellant has managed to persuade us only in relation to his argument on lack of sophistication but this success is defeated by his own lack of due diligence on a number of occasions, and his failure to demonstrate reasonable cause of action against the State. Therefore, the Appellant has failed to demonstrate that his Honour erred in the exercise of his discretion to dismiss the application for extension of time to give notice of claim. To make matters worse, the Appellant's intended cause of action, if it is legitimate, is time barred. The appeal is accordingly dismissed with cost which if not agreed shall be taxed.
______________________________________________________________

Harvey Nii Lawyer: Lawyer for the Appellant
Neville Devete, Solicitor-General: Lawyer for the Respondent