Essy v Bomal [2021] PGSC 24; SC2085 (29 March 2021)

CLAIMS AGAINST STATE – THE REQUIREMENTS FOR GIVING S 5NOTICE UNDER THE CBAASA

SC2085

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 179 OF 2017

BETWEEN:
FRANCIS ESSY
Appellant

AND:
PHILIP BOMAL, GILBERT KOI and 8 OTHER POLICEMEN FROM GEREHU POLICE STATION
First Respondents

AND:
GAL GABBY, GEORGE POLONG and 2 OTHER POLICEMEN FROM GEREHU POLICE STATION

Second Respondents

AND:
BEN TURI, NATIONAL CAPITAL DISTRICT POLICE METROPOLITAN SUPERINTENDENT
Third Respondent

AND:
GARY BAKI, COMMISSIONER OF POLICE, ROYAL
PAPUA NEW GUINEA CONSTABULARY

Fourth Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Respondent

WAIGANI: Hartshorn, Collier and Logan JJ
(Heard on the papers: Last submission filed on 18^th September 2020). Delivered 2021: 29^th March

EVIDENCE - PRACTICE AND PROCEDURE – actions against the State – action commenced in 2015 (2015 proceeding) – notice compliant with s 5 (1) of the Claims By and Against the State Act 1996 (State Proceedings Act) was issued to the State prior to commencing the 2015 proceeding – 2015 proceeding discontinued – action commenced in 2017 with additional defendants but similar claim for damages as 2015 proceeding (2017 proceeding) – notice under s 5 of the State Proceedings Act was not re-issued to the State prior to commencing the 2017 proceeding – whether the 2017 proceeding was a new proceeding – whether the necessary requirement to give a s 5 (1) notice applied

Held:

A notice compliant with s 5 (1) of the State Proceedings Act was mandatory in circumstances prescribed by the legislation. The discontinuance of the 2015 proceeding brought that action to an end. In the absence of a s 5 (1) notice issued by the appellant to the State in relation to the 2017 proceeding, the 2017 proceeding was fatally flawed. Appeal dismissed.

Cases Cited:
Papua New Guinea Cases

Asiki v Zurenuoc, Provincial Administrator [2005] SC797
Gigmai v Motor Vehicle Insurance (PNG) Ltd [2004] SC750
Graham Rundall v Motor Vehicles Insurance (PNG) Trust (No.1) [1988] PNGLR 20
Habolo Building & Maintenance Ltd v Hela Provincial Government (2016) SC1549
Kaurigova v Perone [2008] PGSC 45
Laki v Secretary, Department of Lands [2005] PGNC 143
Mineral Resources Development Company Ltd v Sisimolu [2010] PGSC 50
National Capital District Commission v Reima [2009] PGSC 15
Nikint Investment Ltd v Niganu[2020] SC1919
Pickthall v Lae Plumbing Pty Ltd [1994] PNGLR 363
Rema v Yaki [2019] SC1874
Tohian,Minister For Police and The State v Tau Liu [1998] PGSC 25
Tulapi v Steamships Trading Company Ltd [2012] SC1210

Overseas Cases

The Ardandhu[1887] UKLawRpAC 7; (1887) 12 App Cas 256
ROFA Sport Management AG v DHL International (UK) Ltd [1989] 2 All ER 743
Noddle v Ontario (Ministry of Health) [2019] ONSC 7337

Legislation:

Crown Proceedings Act 1947 (UK)
Motor Vehicles (Third Party Insurance) Act 1974 s 56
Frauds and Limitations Act 1988 s 16
National Library and Archives Act 1993
Claims By and Against the State Act 1996 ss 2, 5

REASONS FOR JUDGMENT

29^th March, 2021

1. HARTSHORN and COLLIER JJ: We have read in draft the judgment of Justice Logan setting out, in detail, the facts, relevant legislation and contentions in this appeal. We are grateful to his Honour for doing so. Unfortunately, we have reached a different view to that of his Honour. In our view the appeal should be dismissed, for the following reasons.

2. Section 5 of the Claims By and Against the State Act 1996 (State Proceedings Act) provides:

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.

(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 7.45 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., 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 1953.

3. It is clear that satisfaction of the pre-action notice requirement in s 5 (1) is mandatory. Compliance is a condition precedent to the commencement of proceedings against the State, and failure to comply is fatal. In circumstances where the State disputes that s 5 has been complied with, it is incumbent on the plaintiff to satisfy the Court on the balance of probabilities that notice has been given: Rema v Yaki [2019] SC1874 at [29].

4. As the Supreme Court noted in Asiki v Zurenuoc, Provincial Administrator [2005] SC797, the purpose of s 5 (1) of the State Proceedings Act was explained by the then Minister for Justice, Hon Arnold Marsipal MP, when the Bill for the legislation was debated in the Parliament on 20 November 1996. The Minister stated:

Mr Speaker, I take great pleasure in introducing this Bill which will safeguard the interests and the finances of the State.

In recent years, a large number of civil claims and other claims for compensation on infringement of human rights have been made against the State in respect of alleged unlawful actions by public servants. These claims often included compensation claims of police brutality against the people.

There are set procedures laid down by the law governing and regulating the bringing of such claims to court. Under the present circumstances, it is difficult for the State lawyers to comply with time limits and other court restrictions. The numbers of claims are increasing alarmingly.

At the same time, lawyers for claimants seem determined to try every possible avenues to press their clients’ cases, using every loophole they can find. This frequently results in unwarranted payouts, thereby putting increased unnecessary pressure on the State resources.

In order to overcome the problems being encountered and to ensure that the law deals fairly with both the State and its citizens, various measures will be put in place by this Bill. This include a scheme of prior notice of making a claim against the State. It will be similar to the scheme of notifying the Motor Vehicle Insurance Trust of proposed claims. Service on the State cannot be done by mail. It must be personally served on the Attorney-General or the Solicitor-General or left personally at his office. However, lawyers operating outside Port Moresby can still accomplish personal service through their city agents. ...

The Bill ... will go a long way towards remedying the impossible situation the Government lawyers find themselves in when trying to protect the interests of the State.

5. From this Hansard extract it is plain that the legislation is for the benefit of the State as the defendant – not the relevant plaintiff – and that it should be so construed.

6. In the present case the key language in s 5 (1) is as follows:

(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...

(emphasis added)

7. The plain reading of s 5 (1) is that the words "a claim" in line 2 should be read to mean the same "claim" in the "action" in line 1 of the section. We consider that this interpretation must follow, otherwise a notice of intention to make a claim which is not contained in the action could be given, and an action which does not contain the claim of which notice has been given would still lie against the State. Such an outcome would defeat the assumed purpose of s 5(1).

8. In Nikint Investment Ltd v Niganu [2020] SC1919 the Supreme Court examined the respective meanings of “action” and “claim” in s 5 (1). Their Honours relevantly observed:

22. In State v Downer Construction (PNG) Ltd (2009) SC979, the Supreme Court (Gavara-Nanu, Kandakasi and Jay JJ) had the occasion to consider the meaning of the term “action” contained in s.5(1) and held that the term referred to court action or court proceedings, although Kandakasi J viewed the term extended to include other modes of dispute resolution including arbitration. We would endorse the view of the majority in that case, and we also approve the meaning given to the word “claim” expressed by Gavara-Nanu J and that is, it refers to a claim which contemplates legal action or legal proceedings.
23. A “claim” must obviously be of the type described in s.2 of the Claims Act. A court action or court proceedings is commenced by the filing of a writ or the appropriate originating process, and that would contain the claim or the cause of action alleged against a defendant. Where there are multiple defendants, there may be different claims contained in the originating process as against each of them.But that does not mean there are different court actions or proceedings – there is but one proceedings, which is brought into existence by the originating process. As has been already underscored, where s.5 Notice requirements are not met, the court action or court proceedings is regarded incompetent.

(emphasis added)

9. Their Honours in Niganu plainly considered that, for the purposes of interpretation, the “claim” in s 5 (1) is tied to the court action the subject of s 5 (1).

10. Turning now to the subject of the present appeal, it is apparent on the face of the proceedings that the action as found in WS No 953 of 2015 is not the same as the action as found in WS No 444 of 2017. The National Court proceedings are separate and distinct. It may well be that a “claim” sought to be pursued by a plaintiff in successive actions is similar, even materially similar. Indeed, as a general proposition, a “claim” may survive discontinuance of a specific action such that proceedings can be reinstated or a fresh action commenced: see Tulapi v Steamships Trading Company Ltd [2012] SC1210 at [11]-[15] and the House of Lords in The Ardandhu [1887] UKLawRpAC 7; (1887) 12 App Cas 256. However it is plain that the effect of discontinuance of an action is that it is formally at an end, and any subsequent action is a new or fresh action : Sevua J (Sakora J agreeing) in Pickthall v Lae Plumbing Pty Ltd [1994] PNGLR 363; Gigmai v Motor Vehicle Insurance (PNG) Ltd [2004] SC750; ROFA Sport Management AG v DHL International (UK) Ltd [1989] 2 All ER 743 at 749.

11. For the purposes of the State Proceedings Act, the action does not lie against the State unless notice of the written intention to make the claim the subject of the action is given to the State in accordance with s 5 (1). The “action” in s 5 (1) must be the specific action against the State, irrespective of whether the plaintiff is seeking to pursue a claim the subject of earlier, discontinued, proceedings. In this respect we also note the observations of the Supreme Court in Tohian, Minister For Police and The State v Tau Liu [1998] SC566, where their Honours found:

It is clear to us that the notice of intention to make a claim is a condition precedent to issuing a writ of summons in all circumstances.

(emphasis added)

12. In respect of the action the subject of this appeal, and before the primary Judge, the requisite notice pursuant to s 5 (1) was not given.

13. We do not accept that the preferred reading of s 5 (1) is that, contrary to its natural reading, a formal notice given pursuant to s 5 (1) in respect of an action can nonetheless “survive” discontinuance of that action, such that no new formal notice need be given to the State if a fresh writ is filed and new formal proceedings are commenced against the State. Not only does this construction, in our view, defeat the statutory purpose of the legislation, it potentially creates – unnecessarily – a requirement for the State – and the Court – in each relevant case to consider whether the “claim” the subject of an earlier notice is sufficiently replicated in a subsequent writ such that no new formal notice need be served on the State. We consider the contortions required of such an interpretation to be inconsistent with both the language and the policy of the State Proceedings Act.

14. The appeal should be dismissed, with the appellant to pay the costs of the third, fourth and fifth respondents.

15. LOGAN J: This appeal raises a short but important point of practice and procedure in relation to claims against the State, arising from the pre-action notice requirement, found in s 5 of the Claims By and Against the State Act 1996 (State Proceedings Act). That section provides:

6. NOTICE OF CLAIMS AGAINST THE STATE
   

(4) 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.

(5) 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.

(6) 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 7.45 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., 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 1953.

16. A long line of authority in this Court, which may be traced back to Tohian, Minister for Police and The State v Tau Liu [1998] PGSC 25; SC566 (Tohian), establishes that the pre-action notice requirement found in s 5(1) of the State Proceedings Act is mandatory and that an action instituted without the prior giving of a notice in accordance with s 5(2) is incompetent.

17. The appellant, Mr Francis Essy (Mr. Essy), claims to have been grievously injured by an unprovoked assault by a number of police officers, some of whom are expressly named as the first and second respondents, at the Manu Fuel Station, Port Moresby on 4 October 2014. It is common ground that Mr Essy gave the State a notice compliant with s 5 of the State Proceedings Act on 6 February 2015. That was prior to his commencing in the National Court, by a writ issued on 8 July 2015 (WS No 953 of 2015) (2015 proceeding), an action against the present fourth and fifth respondents, respectively Police Commissioner Baki and the State, in which he claimed damages for personal injuries and other loss and damage arising from the alleged assault. That proceeding was discontinued on 8 May 2017.

18. That same day, but without the prior giving of a further notice under s 5 of the State Proceedings Act, Mr Essy caused a further writ to be issued by the National Court (WS No 444 of 2017) (2017 proceeding). In that new proceeding, he again named as defendants the Police Commissioner and the State but added also as defendants the present first, second and third respondents. Save for this addition of further defendants, the claim for damages which he made was identical to that made in the 2015 proceeding.

19. The discontinuance of the 2015 proceeding did not, in itself, prevent the institution of the 2017 proceeding or render it an abuse of process.

20. Later in 2017, the Police Commissioner and the State applied for the summary dismissal of the 2017 proceeding. The basis of that application was that Mr Essy had not given notice under s 5 of the State Proceedings Act before instituting the 2017 proceeding and that it was, therefore, incompetent. The learned primary judge (Polme-Kiele J) upheld that submission and, on 5 December 2017, dismissed the 2017 proceeding. Her Honour’s reasons for so doing are, with respect, compressed but none the worse for that. Materially, her Honour stated, “This is a new proceeding and the necessary requirement to give a s 5 notice should apply, which the plaintiff has not met”.

21. The only relevant ground of appeal challenges the correctness in law of this statement. Mr Essy’s contention is that the notice which he gave in 2015 sufficed for the purposes of s 5 of the State Proceedings Act in relation to the 2017 proceeding.

22. The only active party respondents are the Police Commissioner and the State, who prosecuted the dismissal application below, and now in addition, the third respondent, the National Capital District Police Superintendent. They submit the statement made by the learned primary judge was correct in law.

23. I use the adjective “relevant” in relation to the grounds of appeal advisedly. That is because the others, each of which raises limitation of actions issues, proceed from a mistaken understanding as to the basis upon which the 2017 proceeding was dismissed by the National Court. It is not necessary to address these other grounds, because they raise false issues.

24. It is common ground between the parties that there is no prior judgment of this Court which has addressed the point.

25. The point was, however, the subject of observations by Davani J in Laki v Secretary, Department of Lands [2005] PGNC 143; N2818 (Laki). The facts of that case were not materially different to those of the present case. Her Honour’s observations and consequential dismissal of that proceeding accord with the views expressed by the learned primary judge. In Laki, Davani J stated, “On the striking out of the earlier proceedings, the s. 5 notice went with it. I say this because the issue of the s. 5 notice is a condition precedent to issuing a Writ of Summons and Statement of Claim”.

26. Laki has subsequently been cited with approval in some judgments of this Court but only as exemplifying the incontrovertible proposition that a proceeding against the State (or an emanation thereof) instituted without the prior giving of a notice in accordance with s 5 of the State Proceedings Act is incompetent: see National Capital District Commission v Reima [2009] PGSC 15; SC993 (Reima) and Mineral Resources Development Company Ltd v Sisimolu [2010] PGSC 50; SC1090.

27. The State Proceedings Act has much affinity with the Crown Proceedings Act 1947 (UK) (Crown Proceedings Act). The Crown Proceedings Act was a law reform measure which, for the first time, permitted civil actions against the Crown to be brought in the same manner as against any other party. Like provision is made, not by coincidence, by s 2(1) of the State Proceedings Act, as it is in the many equivalent statutes throughout the Commonwealth.

28. Though the State Proceedings Act has much affinity with that United Kingdom progenitor statute, one significant difference is the presence in the State Proceedings Act of the provision made by s 5 for the giving of notice to the State prior to the institution of a proceeding. There is no counterpart to s 5 in the Crown Proceedings Act. Neither are there counterparts to s 5 of the State Proceedings Act in the Australian, New Zealand or Canadian federal analogues of the Crown Proceedings Act: Hogg, Monahan and Wright, Liability of the Crown, 4^th ed. (Hogg), p 110, paragraph 4.6(c).

29. That is not to say that, within the Commonwealth, s 5 of the State Proceedings Act is a Papua New Guinean idiosyncrasy in relation to the institution of proceedings in contract or in tort against the body politic. There are analogous pre-action notice requirements in the equivalent Canadian provincial statutes of Ontario, New Brunswick, Nova Scotia and Prince Edward Island: Hogg, at p 110, paragraph 4.6(c).

30. Further, the understanding in Canadian provincial jurisprudence of the effect of non-compliance with the requirement to give such a pre-action notice is identical to that evident in Tohian and subsequent authorities in this jurisdiction. The pertinent Ontario authorities were collected and applied by Sanfilippo J of the Ontario Superior Court of Justice in Noddle v Ontario (Ministry of Health) [2019] ONSC 7337, so as to strike out an action instituted without the prior giving of a pre-action notice. All this is evident in the following passage, at [31] – [35], from his Lordship’s judgment:

100. The Plaintiff Did Not Provide the Appropriate Statutory Notice
     

[31] Section 7(1) of the PACA provides that no action for a claim shall be commenced against the Crown “unless the claimant has, at least sixty days before the commencement of the action, served on the Crown a notice of the claim containing sufficient particulars to identify the occasion out of which the claim arose...” Section 18 of the CLPA also requires that sixty days’ notice of a claim must be provided to the Crown.

[32] Proper notice is a necessary pre-condition to a claim in damages against the Crown, which cannot be waived or abridged: Beardsley v. Ontario Provincial Police (2001), 2001 CanLII 8621 (ON CA), 57 O.R. (3d) 1 (C.A.), at paras. 10-12. An action against the Crown that is commenced without providing the required statutory notice is a nullity: Miguna v. Ontario (Attorney General), 2005 CanLII 46385 (Ont. C.A.), at paras. 7-8.

[33] An examination of the procedural history of Mr. Noddle’s claim against the Crown established that he did not provide the Crown with sixty days’ notice of his claim before commencing this Action. Mr. Noddle issued the Statement of Claim in the First Action on February 12, 2016. Ontario submitted that the Crown did not become aware of this claim until March 15, 2016, but I do not need to determine whether the Crown was notified of this claim on February 12, 2016 or March 15, 2016 to decide this issue because either date is less than sixty days before the date of commencement of this Action: March 15, 2016. In either circumstance, the claim in this Action was issued in contravention of Mr. Noddle’s requirement to provide the Crown with 60 days’ notice.

[34] Mr. Noddle was notified by the Crown of this contravention of the PACAon August 12, 2016 and was invited to discontinue this Action and institute a further claim against the Crown with the requisite statutory notice, to cure the non-compliance with the PACA. He did not do so.

[35] As this Action against the Crown contravenes the 60 days’ statutory notice period for the institution of Mr. Noddle’s claim against the Crown, it is a nullity.

[In the passage quoted:

[PACA - Proceedings Against the Crown Act 1990 (Ont.)]

[CLPA - Crown Liability and Proceedings Act 2019 (Ont.)]

31. As to the impact of this view of the Canadian provincial analogues of
s5of the State Proceedings Act, it is observed in Hogg, at p 110, paragraph
4.6(c), “Sometimes, the bringing of an action without prior notice can be
remedied by serving a proper notice and bringing a new action after the
required notice period, but that will not work if the defect is only
discovered after the expiry of the limitation period when it is too late for
corrective action”.

32. Potentially, just such a problem might be present in this case if Mr.
Essy’s appeal fails. A cause of action in tort accrues upon damage. The
alleged assault is said to have occurred in October 2014. The prima facie
limitation period for an action in tort is six years from the date of accrual
of the cause of action: s 16(1)(a), Frauds and Limitations Act 1988
(although there can be cases where there are continued occurrences of
damage: Habolo Building & Maintenance Ltd v Hela Provincial
Government (2016) PGSC 67; SC1549). It is neither necessary nor
desirable to determine whether any new proceeding instituted by Mr Essy
after giving notice would face the problem described in Hogg. The
potentiality now for that problem does though highlight that there was a
less fraught alternative to the prosecution of the present appeal. That in
many cases there may be such an alternative might explain why there is no
authority directly on point in this jurisdiction or, as far as I can tell,
Canada.

33. Hogg, at p 110, paragraph 4.6(c) observes of the Canadian pre-action
notice analogues of s 5 of the State Proceedings Act that, “The purpose of
this requirement is obscure, but it is probably intended to encourage the
investigation and settlement of claims before the expense of litigation has
been incurred”.

34. Mr Essy made a like submission in the present appeal as to the purpose
of the pre-action notice requirement in s 5 of the State Proceedings Act.
This submission should be accepted.

35. This Court has previously adopted an identical view to that stated in
Hogg as to the purpose of the pre-action notice requirement. The Court has
held that the purpose of the pre-action notice requirement in s 5 of the
State Proceedings Act is akin to a like pre-action notice requirement found
in s 54(6) of the Motor Vehicles (Third Party Insurance) Act 1974 (MVIT
Act): Kaurigova v Perone [2008] PGSC 45; SC964. In that case, at [27],
the Court cited with approval, as applicable by analogy, the following
observation in Graham Rundall v Motor Vehicles Insurance (PNG) Trust
(No.1) [1988] PNGLR 20, at 23, where Bredmeyer J stated, in relation to s
54(6) of the MVIT:

The purpose of s 54 (6) is to give the Trust early notification of the claim so that it can make its inquiries. Obviously inquiries as to the driver, the owner, and the insurance details of a 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.

36. In the same way, a notice under s 5 of the State Proceedings Act serves the purpose of alerting the State to a need to investigate the circumstances of an alleged claim and to preserve records, as well as offers an opportunity, if considered appropriate, to settle a claim with the claimant without the need for litigation.

37. This statutory purpose has already been served by the notice given to the State in 2015. Further, given that, at a minimum, the applicable limitation period would not have expired until October this year, it could not possibly have been prudent for the State to have discarded (even assuming that was lawful under the National Library and Archives Act 1993) the results of such investigations as were undertaken or such records as were preserved, following the receipt of the notice in 2015.

38. The text of s 5 of the State Proceedings Act does, I respectfully acknowledge, admit of the views expressed in the National Court by the learned primary judge and, earlier, as noted, by Davani J. But that is not the only construction of which the text admits. A study of the text of s 5 discloses that there are three distinct concepts – the claim, which is an asserted cause of action, the action, which is a proceeding to enforce that cause of action and the notice, which is a notice to the State of the claim, not of the action. Discontinuance of an action brings the particular proceeding to enforce a claim to an end but it does not extinguish the claim itself. It is the claim of which the State must be given notice, not the action to enforce it. It is just that, to be competent, the action must be subsequent to the notice. In these circumstances, it is difficult to see how discontinuance of an action extinguishes the anterior notice to the State of a claim, especially as s 5 does not state as much. It does no violence at all to the text to regard the notice, once given, as sufficing even if it transpires that more than one action against the State comes subsequently to be instituted in respect of the claim notified. Further, the purpose of the giving of a notice under s 5 of the State Proceedings Act is wholly achieved once the notice is given. That purpose is in no way furthered by the subsequent institution of an action. Neither is it in any way furthered by the adoption of a construction of s 5 which requires a separate notice to be given in respect of the same claim each and every time before the expiry of the limitation period when it is desired to litigate that claim by action.

39. There is then a constructional choice to be made. Given the purpose of the provision, the choice which is to be preferred is that promoted on behalf of Mr Essy. The 2017 proceeding was instituted after a notice under s 5 of the State Proceedings Act had been given and after the requisite time period had expired after that notice had been given. The notice was that given in 2015.

40. The adoption of this construction is in no way inconsistent with the earlier authorities in this Court which hold that an action instituted without the giving of the notice is incompetent.

41. What necessarily follows is that the 2017 proceeding was not rendered incompetent for want of compliance with s 5 of the State Proceedings Act. It should not have been dismissed. The appeal must, therefore, be allowed, with costs.

ORDERS:

1. This appeal is dismissed;

2. The appellant shall pay the costs of the third, fourth and fifth respondents.
________________________________________________________________Gagma Legal Services: Lawyer for the Appellant
Solicitor General: Lawyer for the Third, Fourth and Fifth Respondents