Wialu v Andreas [2020] PGSC 60; SC1970 (7 July 2020)

SC1970

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 88 OF 2018

AUGUS WIALU FOR HIMSELF AND ON BEHALF OF
FIVE OTHERS WHOSE NAMES APPEAR
ON THE SCHEDULE TO THE WRIT
Appellant

V

JOHN ANDREAS, SECRETARY,
DEPARTMENT OF TRADE, COMMERCE AND INDUSTRY
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J, Shepherd J, Tamate J
2020: 16^th June, 7^th July

PRACTICE AND PROCEDURE – Claims By and Against the State Act, s 5 – notice of intention to make claim against the State to be given within six months after “occurrence out of which the claim arises” – determination of date of occurrence – whether date of occurrence is when the occurrence was first committed – whether date of occurrence continues from day to day, as a continuing occurrence.

PRACTICE AND PROCEDURE – Frauds and Limitations Act, s 16 – an action founded on simple contract shall not be brought after the expiration of six years commencing on “the date on which the cause of action accrued” – determination of date of accrual of cause of action in the case of a continuing breach of contract– whether the relevant date is when the cause of action first accrued – whether cause of action continues from day to day, as a recurring cause of action.

The appellant was the plaintiff in National Court proceedings against a Departmental Head and the State, claiming unpaid overseas living allowances allegedly due to him in respect of the period (from 2005 to 2010) of his employment as an overseas trade attaché and continuing after his return to Papua New Guinea in 2010 until the date of commencement of the proceedings on 12 July 2017. He gave notice to the State of his intention to make a claim on 22 November 2016. His notice was acknowledged by the Solicitor-General on 7 February 2017 to be in accordance with s 5 of the Claims By and Against the State Act. However, the defendants later applied by notice of motion for dismissal of the proceedings on two grounds: (a) failure to comply with the notice requirements of s 5 of the Claims By and Against the State Act and (b) the proceedings were time-barred under s 16(1) of the Frauds and Limitations Act. The primary Judge upheld the motion on both grounds and dismissed the proceedings. The plaintiff appealed to the Supreme Court.

Held:

(1) It is a condition precedent to commencement of proceedings against the State that the plaintiff give notice, prior to commencement of the proceedings, “within a period of six months after the occurrence out of which the claim arose”, of the intention to make a claim in accordance with s 5 of the Claims By and Against the State Act.

(2) “The occurrence” might be a single occurrence or a series of occurrences, depending on the nature of the cause of action and the facts pleaded in the originating process.

(3) Section 16(1) of the Frauds and Limitations Act provides that an action that is founded on simple contract “shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued”.

(4) The cause of action can accrue on a specific date and not recur, or accrue on a specific date and recur on subsequent dates.

(5) Here, “the occurrence”, for the purposes of s 5 of the Claims By and Against the State Act, commenced in 2005 and recurred until filing of the writ in 2017. The appellant, by giving notice on 22 November 2016, gave notice within the six-month period after “the occurrence” out of which the claim arose. The notice given was compliant with s5.

(6) The cause of action first accrued in 2005 and continued to accrue in the period from 2005 to the date of filing the writ.

(7) The primary Judge erred by disregarding the continuing occurrences and continuing accrual of the cause of action. The appeal was allowed and the proceedings were remitted to the National Court.

Case Cited

The following case is cited in the judgment:

Habolo Building & Maintenance Ltd v Hela Provincial Government (2016) SC1549

APPEAL

This was an appeal against an order of the National Court which dismissed the entire National Court proceedings.

Counsel

P H Pato, for the Appellant
R Kebaya, for the Respondents

7^th July, 2020

1. BY THE COURT: Augus Wialu appeals against the dismissal by the National Court of proceedings he commenced against the Secretary of the Department of Trade, Commerce and Industry and the State.

2. In WS No 645 of 2017, filed on 12 July 2017, he claimed unpaid overseas living allowances allegedly due to him in respect of the period (from 2005 to 2010) of his employment as an overseas trade attaché in Japan and continuing after his return to Papua New Guinea in 2010 until the date of commencement of the proceedings in 2017.

3. He gave notice to the State of his intention to make a claim on 22 November 2016. His notice was acknowledged by the Solicitor-General on 7 February 2017 to be in accordance with s 5 of the Claims By and Against the State Act. However, the defendants later applied by notice of motion for dismissal of the proceedings on two grounds:

(a) failure to comply with the notice requirements of s 5 of the Claims By and Against the State Act; and

(b) the proceedings were time-barred under s 16(1) of the Frauds and Limitations Act.

4. The primary Judge upheld the motion on both grounds and dismissed the proceedings. Her Honour ruled that the occurrence out of which the claim arose occurred on 5 December 2005, when the appellant commenced his posting in Japan, and that was also the date on which his cause of action accrued. The primary Judge ruled that the s 5 notice given on 22 November 2016 was too late and that the commencement of the proceedings on 12 July 2017 was after the six-year time limit set by s 16(1) of the Frauds and Limitations Act.

5. The plaintiff appealed to the Supreme Court, arguing that the primary Judge erred in law by determining that his case was based on a single occurrence that took place in 2005 and on a single cause of action that accrued on that date.

ISSUES

6. This case raises two similar but distinct issues:

(a) What was the date of the occurrence for the purposes of s5 of the Claims By and Against the State Act?

(b) What was the date on which the cause of action accrued for the purposes of the Frauds and Limitations Act?

(a) WHAT WAS THE DATE OF THE OCCURRENCE FOR THE PURPOSES OF SECTION 5 OF THE CLAIMS BY AND AGAINST THE STATE ACT?

7. Section 5 (notice of claims against the State) states:

(1) No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this Section by the claimant to —

(a) the Departmental Head of the Department responsible for justice matters; or

(b) the Solicitor-General.

(2) A notice under this Section shall be given —

(a) within a period of six months after the occurrence out of which the claim arose; or

(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or

(c) within such further period as —

(i) the Principal Legal Adviser; or

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

on sufficient cause being shown, allows.

(3) A notice under Subsection (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 745 am and 12 noon, or 100 pm and 406 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 service 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) [underlining added]

8. The appellant argues that the primary judge erred in regarding “the occurrence” as a single event, occurring in 2005, as the claim arose out of a series of continuing occurrences from 2005 to the date of filing of the writ.

9. We uphold the submissions of Mr Pato, for the appellant, that in ruling that the appellant’s claim arose out of a single event, the learned primary Judge erred in law.

10. We follow the reasoning of the Supreme Court in Habolo Building & Maintenance Ltd v Hela Provincial Government (2016) SC1549: “The occurrence” might be a single occurrence or a series of occurrences, depending on the nature of the cause of action and the facts pleaded in the originating process by which legal proceedings are commenced.

11. According to the cause of action pleaded in the present case, which we apprehend to be breach of conditions of employment set under the foreign service handbook, the alleged breaches were of a recurring nature. The appellant pleaded that there was a recurring breach of the conditions of employment, which entitles an overseas-based officer to continue to receive an overseas living allowance after he returns to PNG until such time as he is permanently re-engaged in the Public Service.

12. It is, frankly, a novel claim, which might reasonably be assessed as having little prospect of succeeding at trial. However, that was not the issue at the hearing of the motion. The issue was whether the proceedings should be dismissed due to failure to give a s 5 notice within the six-month period.

13. We uphold the appellant’s argument that “the occurrence” was, for the purposes of s 5 of the Claims By and Against the State Act, having regard to the cause of action and the facts pleaded in the statement of claim, a series of occurrences, commencing in 2005 and recurring until filing of the writ in 2017. The appellant, by giving notice on 22 November 2016, gave notice within the six-month period after “the occurrence” out of which the claim arose. The notice given was compliant with s 5.

(b) WHAT WAS THE DATE ON WHICH THE CAUSE OF ACTION ACCRUED FOR THE PURPOSES OF THE FRAUDS AND LIMITATIONS ACT?

14. Section 16 (1) (limitation of actions in contract, tort, etc) states:

Subject to Sections 17 and 18, an action—

(a) that is founded on simple contract or on tort; or

(b) to enforce a recognisance; or

(c) to enforce an award, where the submission is not by an instrument under seal; or

(d) to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued. [underlining added]

15. The appellant argues that even if his cause of action is regarded as breach of contract (which, we note, is not pleaded expressly in the statement of claim) the primary judge erred in regarding it as accruing on a specific date, 5 December 2005, and disregarding the fact that the cause of action continued to accrue on each day following that date, until the date of filing the writ.

16. We uphold the submissions of Mr Pato that in ruling that the appellant’s cause of action accrued on a specific date and did not accrue thereafter, the learned primary Judge erred in law.

17. We adopt the discussion of a similar issue in Habolo Building & Maintenance Ltd v Hela Provincial Government (2016) SC1549, in which the Court stated:

... we rely on the reasoning of the Supreme Court (David J, Yagi J & Murray J) in Public Curator v Konze Kara as Administrator of the estate of Kibikang Kara (2014) SC1420. Konze Kara, administrator of a deceased estate, sued the Public Curator, the previous administrator of the estate, in negligence, claiming that the Public Curator had negligently administered the estate over a continuous period from the date of the Public Curator’s appointment as administrator, in 1992, to the date of Mr Kara’s appointment as replacement administrator, in 2006.

Mr Kara commenced proceedings against the Public Curator in 2009. The Public Curator applied for dismissal of the proceedings on the ground that it was time-barred under the Frauds and Limitations Act, as the proceedings had not been commenced within six years after the date on which the cause of action accrued, which he claimed was in 1992. The issue was whether the cause of action accrued in 1992, when the tort of negligence was allegedly first committed, or whether it continued to accrue until 2006, during which time it was alleged that the tort of negligence continued to be committed by the Public Curator.

The Court held that the cause of action continued to accrue in the period from 1992 to 2006, and that the writ was filed within six years of the last date of accrual of the cause of action. In taking that approach the Supreme Court endorsed the reasoning of the primary judge, that in the case of a tort that is actionable only on proof of damage, such as negligence, the cause of action accrues when the damage occurs. Such torts are continuous and a fresh cause of action arises daily as the tort continues (Konze Kara v Public Curator (2010) N4055). A long line of persuasive British authority in support of that approach was cited by the Supreme Court, including Crumbie v Wallsend Local Board [1891] UKLawRpKQB 17; [1891] 1 QB 503, Huyton v Liverpool Corporation [1926] 1 KB 146, Konskier v B Goodman Ltd [1928] 1 KB 421, Clarkson v Modern Foundries [1957] 1 WLR 1210, Cartledge v E Jopling & Sons Ltd [1963] AC 758, Forster v Outred [1982] 1 WLR 86 and UBAF Ltd v European American Banking Corporation [1984] QB 713.

We note that the same approach has been taken in a number of other National Court cases, including Otto Benal Magiten v William Moses (2006) N5008, John Wasis v Southern Highlands Provincial Government (2008) N4515 and Stanis Leda v Stettin Bay Lumber Company Limited (2011) N4542.

18. We find, as we did in determining the date of the “occurrence” out of which the appellant’s claim arose, that even if this case is regarded (despite not being pleaded) as a breach of contract action, it is a case of a recurring cause of action, which commenced to accrue in 2005 (when the appellant took up his posting in Japan, when he first claims to have been under-paid) and continued to accrue through to when he was recalled to PNG on 31 July 2010 (when he pleads that he should have continued to receive overseas living allowance) and beyond that date to when he commenced the proceedings. He pleads that throughout the period from 2005 to 2017 his cause of action continued to accrue. He has, on this interpretation of the statement of claim, pleaded a cause of action that recurred on a daily basis until and including on the day before he filed the writ.

19. We uphold the appellant’s argument that that is a proper interpretation of the statement of claim. We find with respect that the primary Judge erred in law in identifying the date on which the cause of action accrued as being one date only, 5 December 2005, and not appreciating the true nature of the appellant’s case.

CONCLUSION

20. The appeal will be allowed. The proceedings will be reinstated in the National Court. Costs will follow the event.

ORDER

(1) The appeal is allowed.

(2) The order of the National Court of 7 June 2018 in WS No 645 of 2017 is quashed.

(3) The proceedings WS No 645 of 2017 are reinstated and remitted to the National Court for directions.

(4) Costs of the appeal shall be paid by the respondents to the appellant on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly.

_____________________________________________________________
Parker Legal: Lawyers for the Appellant
Solicitor-General: Lawyer for the Respondents