Thomas v Emad [2021] PGSC 115; SC2171 (15 November 2021)

SC2171

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 118 OF 2019

BETWEEN:
PETRUS THOMAS,
Immigration Minister
Appellant

AND:
MORADI EMAD,
First Respondent

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Kandakasi DCJ, Hartshorn J, Yagi J
2021: 25^th October, 15^th November

SUPREME COURT APPEAL – appeal on decision of primary court that refused to dismiss proceedings for failing to give section 5 Notice under the Claims Act – specific details required for a valid s. 5 notice – discussion of – first respondent failed to give notice under the Claims Act – appeal upheld – costs to be paid by the first respondent -

Cases Cited:

Daniel Hewali v. Papua New Guinea Police Force (2002) N2233
Maps Tuna Ltd v. Manus Provincial Government (2007) SC857
Habolo Builders & Maintenance Ltd v. Hela Provincial Government (2016) SC1549
Paga Hill Development Co (PNG) Ltd v. Parkop (2019) SC1877
Bluewater International Ltd v. Mumu (2019) SC1798
Nikint Investment Ltd v. Niganu (2020) SC1919

Counsel:

Mr. R. Bradshaw, for the Appellant
Mr. J. Napu, for the First Respondent
Mr. G. Akia, for the Second Respondent

15^th November, 2021

1. BY THE COURT: This is a decision on an appeal of a National Court decision which refused an application to dismiss a proceeding for failure to comply with s. 5 Claims By and Against the State Act (Claims Act).

Background

2. On 25^th March 2019 the first respondent filed proceeding WS (HR) No. 31 of 2019 at the National Court seeking damages for alleged breaches of his Constitutional rights after being placed in detention at the Manus Island Regional Processing Centre.

3. The appellant and second respondent, the State, filed notices of motion seeking orders that the proceeding be dismissed for the failure of the first respondent to comply with s.5 Claims Act. On 19^th August 2019 the National Court dismissed both applications (decision appealed). The appellant appeals the decision appealed.

Preliminary

4. The first respondent submits that as the State has not appealed, the orders made by the primary judge against the State cannot be reversed or set aside. Further, the appellant cannot apply to set aside the orders made against the State as s. 4 Claims Act only permits the Attorney General to bring a proceeding on behalf of the State.

5. As to the first point, in the National Court, the appellant in addition to the State, applied to have the proceeding dismissed and against both defendants on the grounds amongst others, of a failure to comply with s.5 Claims Act and abuse of process. After hearing both applications together, the primary judge refused both applications to dismiss. The appellant is appealing that decision. If this appeal is successful it will result in the National Court proceeding being dismissed against both the appellant and the State. It would be a nonsense for the proceeding to be dismissed against one party and not the other as the National Court proceeding against the appellant and the State is intertwined: Nikint Investment Ltd v. Niganu (2020) SC1919 at [19]. Further, apart from as to costs, the relief sought against the appellant and the State is the same.

6. As to the second point, s. 4 Claims Act is concerned with “suits” on behalf of the State. Here, the appellant is appealing in the name of the Minister and not on behalf of the State. These two preliminary points are rejected.

Consideration

7. The appeal grounds are not interdependent and do not require a consideration in any order. We consider ground of appeal e) first. If this ground is found to be successful it will determine the appeal.

8. Ground e) is that the primary judge fell into error in not finding that the s. 5 Claims Act notice given on 4^th November 2016 was specific to proceeding SC App 17 of 2016 and could not be relied on in respect of WS (HR) No 31 of 2019, for various certain reasons.

9. In this instance the letter dated 4^th November 2016 purportedly being a notice pursuant to s. 5 Claims Act is written by Lomai & Lomai. By the letter they informed that they had been instructed to represent the Asylum Seekers in Manus whose names and signatures “appears on this addendum attached to this application”. In the letter it is stated amongst others that certain documents are enclosed for “purpose of s. 5 Notice as per Claims By and Against the State Act”. Those documents include a draft application to enforce constitutional rights. The draft application is by Behrouz Boochani on behalf of himself and 730 others. The purported s. 5 notice is therefore given by Lomai & Lomai on behalf of Behrouz Boochani who is to make application for himself and 730 others including Moradi Emad, the first respondent herein.

10. Section 5(1) Claims Act requires that the notice given pursuant to that section is given by the claimant. “Claimant” has been interpreted to mean “plaintiff”. In Habolo Builders & Maintenance Ltd v. Hela Provincial Government (2016) SC1549 (Cannings, Kassman, Poole JJ), it was held that it is a condition precedent to the commencement of proceedings against the State that the plaintiff give notice, prior to commencement of the proceedings, of the intention to make a claim in accordance with s. 5 Claims Act.

11. In this instance as the purported s. 5 notice was not given by the claimant or plaintiff Moradi Emad and was given by Lomai & Lomai on behalf of Behrouz Boochani, s. 5 Claims Act has not been enlivened in respect of WS (HR) No. 31 of 2019. Consequently, the primary judge fell into error in that he should have found that the purported s. 5 notice could not be relied upon in respect of WS (HR) No. 31 of 2019 pursuant to ground of appeal e) i) and ii).

12. Further, sufficient details must be included in a s. 5 notice for it to be considered that notice of the intended claim has been validly given to the State. In Daniel Hewali v. Papua New Guinea Police Force (2002) N2233, Kandakasi J (as he then was), as to a notice given pursuant to s. 5 Claims Act stated:

“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. Only when notice is given with such details or information, can one safely say that notice of his or her intended claim has been given to the State.”

13. The comments of Kandakasi J (as he then was) concerning the details required for a valid s. 5 notice have been followed in Supreme Court cases including Maps Tuna Ltd v. Manus Provincial Government (2007) SC857 at [35]; Paga Hill Development Co (PNG) Ltd v. Parkop (2019) SC1877 at [7] and Bluewater International Ltd v. Mumu (2019) SC1798 at [44].

14. In this instance, the requisite details of the first respondent’s claim which are peculiar to him have not been included in the purported s. 5 notice and those details cannot be gleaned from the documents enclosed with the purported s. 5 notice. For instance, the purported s. 5 notice and the said documents do not give specific dates of when the first respondent arrived in Papua New Guinea and when he arrived at Manus Island. There are also no details of how the first respondent travelled to Papua New Guinea and where he arrived from. There are also no details of the first respondent’s intention to make a claim for damages under the Wrongs (Miscellaneous Provisions) Act.

15. We are not satisfied that sufficient details of the first respondent’s impending claim against the State had been provided in the purported s. 5 notice and the said documents such that it may safely be said that notice of the first respondent’s intended claim was given to the State.

16. In determining that the purported s. 5 notice gives, “sufficient detail of the occurrence out of which the claims arise”, the primary judge in our view has not followed the Supreme Court cases to which reference has been made and by which he is bound. The primary judge has fallen into error in this regard.

17. As we have determined that the primary judge fell into error in the two respects to which we have referred, it is not necessary to consider the other submissions of counsel. The appeal should be upheld.

Orders

18. The Court orders that:

a) The appeal herein is upheld.

b) The judgment of the National Court of 19^th August 2019 is quashed.

c) Proceedings WS (HR) No. 31 of 2019 at the National Court is dismissed.

d) The first respondent shall pay the appellant’s costs of this appeal herein and the costs of the National Court proceedings WS (HR) No. 31 of 2019.

__________________________________________________________________
Bradshaw Lawyers: Lawyers for the Appellant
Lomai & Lomai Attorneys: Lawyers for the First Respondent
Akia & Associates Lawyers: Lawyers for the Second Respondent