Eliakim Laki, Gabriel Aguba, Papapara Yanam, Topi Wauwe, Simon Tolai and 167 other Former Block Holders of Kavugara Oil Palm Block, West New Britain (Whose names are listed on the Schedule to this Writ) v Gua K Zurenouc, Secretary Department of Lands and Utula Samana, Secretary Department of Agriculture and Livestock and The Independent State of Papua New Guinea (2005) N2818

• Jurisdiction: Papua New Guinea
• Judge: Davani, J
• Judgment Date: 13 April 2005
• Court: National Court
• Citation: (2005) N2818
• Docket Number: WS 1196 of 2001
• Year: 2005
• Judgement Number: N2818

Full Title: WS 1196 of 2001; Eliakim Laki, Gabriel Aguba, Papapara Yanam, Topi Wauwe, Simon Tolai and 167 other Former Block Holders of Kavugara Oil Palm Block, West New Britain (Whose names are listed on the Schedule to this Writ) v Gua K Zurenouc, Secretary Department of Lands and Utula Samana, Secretary Department of Agriculture and Livestock and The Independent State of Papua New Guinea (2005) N2818

National Court: Davani, J

Judgment Delivered: 13 April 2005

N2818

IN THE NATIONAL COURT OF

JUSTICE AT WAIGANI

PAPUA NEW GUINEA

WS 1196 OF 2001

BETWEEN:

ELIAKIM LAKI, GABRIEL AGUBA, PAPAPARA YANAM, TOPI WAUWE, SIMON TOLAI AND 167 OTHER FORMER BLOCK HOLDERS OF KAVUGARA OIL PALM BLOCK, WEST NEW BRITAIN (WHOSE NAMES ARE LISTED ON THE SCHEDULE TO THIS Writ)

Plaintiffs

AND:

GUA K. ZURENOUC,

SECRETARY DEPARTMENT OF LANDS

First Defendant

AND:

UTULA SAMANA, SECRETARY DEPARTMENT OF AGRICULTURE AND LIVESTOCK

Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

Waigani: Davani, .J

2005: 21, 23 March

13 April

Practice and Procedure – Notice of Intention to Make a Claim against the State – Notice given in earlier proceedings – earlier proceedings struck out – Notice went with proceedings – Claims By and Against the State Act s. 5.

Practice and Procedure – Fresh proceedings filed – plaintiff did not give notice – relies on notice issued in earlier proceedings – Notice issued in earlier proceedings not a valid notice for present proceedings – effect, no notice given

Practice and Procedure – No notice issued – no cause of action – action stands dismissed.

P. Parkop for the Plaintiffs/Respondents

S. Jephson for the Defendants/applicants

DECISION

(application to dismiss proceedings)

13th April 2005

Davani .J: I heard this application and reserved for ruling on the issue of whether s. 5 Notice under the Claims By and Against the State Act 1996 (‘Claims Act’) issued in earlier proceedings, is still a valid notice. This is my decision.

Background

I have heard that earlier proceedings WS 801 of 1998 filed by the plaintiffs was struck out by his Honour Justice Sevua on 10th November, 2000. The proceedings were struck out because amongst others, the court found that the 168 plaintiffs had not properly pleaded their cause of action against each of the defendants. The decision is numbered N2001 dated 10th November, 2000. The plaintiff has not appealed this decision.

The present Writ of Summons and Statement of Claim now before me are proceedings involving the same parties and plead the same cause of action and which proceedings were filed on 23rd August, 2001. At paragraph 13 of the Statement of Claim, the plaintiffs plead what appears to be their cause of action, which is action by the defendants to have the plaintiffs, who are settlers, leave State land on which they had settled and that this had occurred about October 1996. They claimed damages suffered as a result of this departure.

The Notice of Motion filed by Paraka Lawyers on 7th October, 2004 for and on behalf of the defendants seeks orders that the proceedings be dismissed for abuse of courts process; for failure to give the s. 5 Notice under the Claims Act, for lack of the plaintiffs representative capacity; for disclosing no cause of action and other orders where appropriate. On hearing both counsel, the court ruled that counsel make submissions only on the issue of whether the s. 5 Notice issued in earlier proceedings (WS 801 of 1998) and relied on in those proceedings, is sufficient, valid notice. This ruling was made because the ruling on the issue of the s. 5 Notice would determine whether the court should then hear submissions on the other orders sought in the Notice of Motion.

S. 5 (1) (2) of the Claims Act reads;

“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.

(1) 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

...

(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 show, allows.

…”

Mr Jephson for the defendants/applicants (‘applicants’) submits that when the earlier proceedings were struck out, that the s. 5 Notice issued under those proceedings, went with it. He submits that the plaintiff cannot rely on a notice that was or had been struck out with the entire proceedings and that the plaintiff should have issued or given fresh notice.

The applicant relied on a case decided in Lae, Kasper Wek, 10 others and their families v. the State and others, unnumbered judgment handed down on 21st February, 2005. In that case, the plaintiff relied on notice issued in proceedings instituted in Mount Hagen John Bokin v the State N2111, which proceedings were dismissed in their entirety for the plaintiff’s failure to comply with the s. 5 of the Claims Act. In the Kasper Wek (supra) case, the plaintiffs relied on the same letter of notice issued in the John Bokin (supra) case, letter dated 15th September, 1997, to say that they had given proper notice under s. 5 of the Claims Act. His Honour Kirriwom .J held in the Kasper Wek (supra) proceedings and with reference to the 15th September, 1997 letter, that “it was an abuse of process to reinvent or reintroduce evidence that has been previously rejected in a related proceeding…”.

In this case, Mr Parkop for the plaintiffs relies on notice given in the earlier proceedings that were struck out. However, copy of that notice letter was not put before me. In his submissions, Mr Parkop relies on the affidavit of Peter Nime, the plaintiffs authorized representative, whose affidavit sworn on 22nd September, 2004, deposes that because the claim now before me is not a new claim, that there is no requirement by the plaintiffs to give fresh notice under s. 5 of the Claims Act because he relies on Sevua .Js ruling that the s. 5 Notice issued in the earlier proceedings is a valid notice.

The court should now ask itself whether on the striking out of the earlier proceedings, that the notice issued in those earlier proceedings remains a valid notice, notwithstanding. It means therefore that the court must consider the effect of the striking out of proceedings.

An applicant invokes the courts power to strike out proceedings on many grounds, based on the courts power to summarily end litigation. The court also has an inherent jurisdiction to control proceedings before it and is one that should not be exercised too readily, particularly if the exercise of it effectively puts on an end to the action. (see William Maki Michael Pundia v PNG Motors [1993] PNGLR 337). In many cases, the courts have opted to amend pleadings or stay proceedings pending action by lawyers to rectify ambiguity. As long ago as 1887 in the case Republic of Peru v Peruvian Guano Company, Chitty .J said;

“If, notwithstanding defects in the pleading…the court is of the view that a substantial case is presented, the court should, I think decline to strike out that pleading but when the pleading discloses a case which the court is satisfied will not succeed, then it should strike out and put a summary end to the litigation”.

In this case, the court struck out earlier proceedings because, amongst others, the pleadings were ambiguous. When the proceedings were struck out, they came to an end. It meant the parties could not proceed on the Writ that was before that court. The plaintiff refiled proceedings. The regularity of these proceedings is another issue which has not been addressed by both counsel considering Sevua .J did not make any further orders as to the refiling of fresh proceedings. However, it is worth noting that in his reasons his Honour Justice Sevua had said that he was inclined to...