Habolo Building & Maintenance Ltd v Hela Provincial Government

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Kassman J, Poole J
• Judgment Date: 23 November 2016
• Citation: (2016) SC1549
• Court: Supreme Court
• Year: 2016
• Judgement Number: SC1549

Full : SCA No 27 of 2016; Habolo Building & Maintenance Limited v Hela Provincial Government and William Bando, Acting Provincial Administrator (2016) SC1549

Supreme Court: Cannings J, Kassman J, Poole J

Judgment Delivered: 23 November 2016

SC1551

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 27 OF 2016

HABOLO BUILDING & MAINTENANCE LIMITED

Appellant

V

HELA PROVINCIAL GOVERNMENT

First Respondent

WILLIAM BANDO, ACTING PROVINCIAL ADMINISTRATOR

Second Respondent

Waigani: Cannings J, Kassman J, Poole J

2016: 24 October, 23 November

PRACTICE AND PROCEDURE – Claims By and Against the State Act, Section 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 if a cause of action of trespass is pleaded – whether the date of occurrence is when the trespass was first committed – whether date of occurrence continues from day to day, as a continuing occurrence.

PRACTICE AND PROCEDURE – Claims By and Against the State Act, Section 5 – whether necessary to give notice under Section 5 prior to commencing legal proceedings against a Provincial Government.

The appellant appealed against the decision of the National Court to dismiss proceedings it commenced against the respondents, including a provincial government, for failure to comply with the notice requirements of Section 5 of the Claims By and Against the State Act. In its statement of claim in the National Court, the appellant pleaded a cause of action in trespass, constituted by unlawful entry by the provincial government on to the appellant’s land and erection of a building on it, which began in 2012 and continued until the date of filing of the writ, 30 November 2015. The appellant gave a Section 5 notice on 17 November 2015. Section 5of the Claims By and Against the State Act provides that “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 … within a period of six months after the occurrence out of which the claim arose”. The primary Judge held that “the occurrence” arose in March 2012 and that the appellant, being obliged to give notice within six months after that, had to give notice in 2012. It did not give notice until November 2015, which was about three years late. The primary Judge held that, as compliance with Section 5 is a condition precedent to commencement of proceedings against the State, the proceedings were an abuse of process and were therefore dismissed. The appellant’s central ground of appeal was that the primary judge erred in regarding “the occurrence” as a single event, occurring in 2012; his Honour should have found that the claim arose out of a series of continuing occurrences that occurred from 2012 to the date of filing of the writ.

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, of the intention to make a claim in accordance with Section 5 of the Claims By and Against the State Act.

(2) One of the requirements of a Section 5 notice is that it be given “within a period of six months after the occurrence out of which the claim arose”.

(3) “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.

(4) Here, “the occurrence” was, having regard to the cause of action and the facts pleaded in the statement of claim, a series of occurrences, commencing in 2012 and continuing until filing of the writ. The occurrences recurred from 2012 until at least 18 May 2015. The appellant, by giving notice on 17 November 2015, gave notice within the six-month period after “the occurrence” out of which the claim arose.

(5) The notice given was compliant with Section 5. The primary Judge erred by disregarding the continuing occurrences. The appeal was allowed and the proceedings were remitted to the National Court.

(6) Obiter dictum: Before the National Court, and also before the Supreme Court, it was presumed that the appellant was obliged to give a Section 5 notice before commencing proceedings. In fact, a Section 5 notice was not necessary as there was no claim against “the State”. If a person sues a provincial government, as distinct from the State, and does not sue the State, it is not necessary to give a Section 5 notice (MAPS Tuna Limited v Manus Provincial Government (2007) SC857 considered).

Cases cited

The following cases are cited in the judgment:

Cartledge v E Jopling & Sons Ltd [1963] AC 758

Clarkson v Modern Foundries [1957] 1 WLR 1210

Crumbie v Wallsend Local Board [1891] 1 QB 503

Forster v Outred [1982] 1 WLR 86

Huyton v Liverpool Corporation [1926] 1 KB 146

John Wasis v Southern Highlands Provincial Government (2008) N4515

Konskier v B Goodman Ltd [1928] 1 KB 421

MAPS Tuna Limited v Manus Provincial Government (2007) SC857

Otto Benal Magiten v William Moses (2006) N5008

Public Curator v Konze Kara as Administrator of the estate of Kibikang Kara (2014) SC1420

SCR No 1 of 1998; Reservation Pursuant to Section 15 of the Supreme Court Act (2001) SC672

Stanis Leda v Stettin Bay Lumber Company Ltd (2011) N4542

Steven Punagi v Pacific Plantation Timber Ltd (2011) SC1153

UBAF Ltd v European American Banking Corporation [1984] QB 713

APPEAL

This was an appeal against a decision of the National Court, dismissing proceedings commenced against a provincial government, for failure to comply with the notice requirements of Section 5 of the Claims By and Against the State Act.

Counsel:

A J Apo, for the Appellant

J Aku, for the Respondents

23 November, 2016

1. BY THE COURT: Habolo Building & Maintenance Ltd, the appellant, appeals against the decision of the National Court, constituted by Justice Hartshorn, to dismiss proceedings it commenced against the respondents, Hela Provincial Government and William Bando, for failure to comply with the notice requirements of Section 5 of the Claims By and Against the State Act. The main issue in the appeal concerns the time within which a person has to give notice of their intention to make a claim against the State.

OBJECTION TO COMPETENCY

2. Before embarking on determination of the appeal, we record the fact that there was an informal objection to the competency of the appeal raised by Mr Aku, for the respondents. We call it informal as the argument put to us was not the subject of a notice of objection to competency and was made at the start of Mr Aku’s submissions without notice to opposing counsel, Mr Apo. The argument was that the jurisdictional basis of the appeal was incorrectly stated in the notice of appeal as Section 4 of the Supreme Court Act, as the correct jurisdictional basis is Section 14(3)(b), due to this being an appeal against an “interlocutory judgment” of the National Court.

3. We find no merit in the objection. The Supreme Court decided in Steven Punagi v Pacific Plantation Timber Ltd (2011) SC1153 that any judgment of the National Court that has the effect of finally determining proceedings, including dismissal of the proceedings, is a final judgment, not an interlocutory judgment. That is so irrespective of whether such an order follows a full trial or whether it is the result of granting an interlocutory application such as an application for dismissal of the proceedings on grounds such as want of prosecution or, as in this case, failure to comply with a statutory precondition to commencement of proceedings.

4. The present appeal is not an appeal against an interlocutory judgment. Leave to appeal was not required. The jurisdictional basis of the appeal is not Section 14(3) of the Supreme Court Act. The appeal is not incompetent. We now address the merits of the appeal.

BACKGROUND

5. The appellant is the registered proprietor of a block of land at Tari, Hela Province. It was granted a 99-year business lease over the land on 14 February 2012. It alleges that in or about March 2012 the Hela Provincial Government entered the land without its consent and erected a building on it, which is being used for provincial government purposes, and has paid no rent and has resisted the appellant’s attempts to settle the matter out of court.

6. On 30 November 2015 the appellant commenced proceedings, by writ of summons, against the provincial government and the provincial administrator. In its statement of claim, the appellant pleaded a cause of action in trespass, constituted by unlawful entry by the first respondent on to the appellant’s land and erection of a building on it, which began in 2012 and continued until the date of filing of the writ, 30 November 2015. The appellant claimed mesne fees of K1, 440,000.00 and an order that the respondents give vacant possession within two weeks.

7. Prior to filing the writ, the appellant, on 17 November 2015, gave notice in writing to the Solicitor-General, purporting to be a...