John Bokin, Philip Kua, Anton Kua, Kime Hanbruk, Leo Ongane, Pastor Pius, Philip Wena, Peter Gende, Anton Paran, Petrus Awad and other Residents of Tamanda Village, Bulolo, Morobe Province v Sergeant Paul Dana, Wakon John, Police Commissioner and The Independent State of Papua New Guinea (2001) N2111

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 13 June 2001
• Court: National Court
• Citation: (2001) N2111
• Year: 2001
• Judgement Number: N2111

Full Title: John Bokin, Philip Kua, Anton Kua, Kime Hanbruk, Leo Ongane, Pastor Pius, Philip Wena, Peter Gende, Anton Paran, Petrus Awad and other Residents of Tamanda Village, Bulolo, Morobe Province v Sergeant Paul Dana, Wakon John, Police Commissioner and The Independent State of Papua New Guinea (2001) N2111

National Court: Davani J

Judgment Delivered: 13 June 2001

N2111

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1505 OF 2000

BETWEEN:

JOHN BOKIN, PHILIP KUA, ANTON KUA, KIME HANBRUK, LEO ONGANE, PASTOR PIUS, PHILIP WENA, PETER GENDE, ANTON PARAN, PETRUS AWAD AND OTHER RESIDENTS OF TAMANDA VILLAGE, BULOLO, MOROBE PROVINCE.

Plaintiff

AND:

SERGEANT PAUL DANA

First Defendant

AND:

WAKON JOHN, POLICE COMMISSIONER

Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Mt. Hagen: Davani, J

2001: 24 May

: 13 June

PRACTICE AND PROCEDURE — Plaintiffs application for Default Judgment, Defendants application to dismiss proceedings or alternatively, for leave to file Notice of Intention to Defend and Defence — Letter giving notice of intention to make a claim against the State shall be personally served … — Affidavit of Service must state that Notice was personally served on appropriate persons referred to in Claims By and Against State Act within a period of six months after the occurrence out of which the claim arose. Claims By and Against the State Act 1996 s.5(1)(a)(b)(2)(a)(b)(c)(3)(a)(b), Motor Vehicle (Third Party Insurance) Act Chapter 295 s.54(6).

Cases Cited:

Paul Marinda v The State N1026;

Paul Tohian, Minister for Police and The State v Tau Liu SC 566 27 August 1998;

Kamapu Minator Philip Komo and The State N1768 23 October 1998.

M. Zimike, for the Plaintiff

J.Ovia, for the Defendants

DECISION

(Interlocutory Application)

13 June 2001

DAVANI, J: There are two applications before me. An Application for Default Judgement filed by the Plaintiffs and the Defendants application to either dismiss the proceedings or alternatively, for leave to file Notice of Intention to Defend and Defence.

The Plaintiffs also requested, in court, an amendment to the Statement of Claim to include the correct date of the alleged raid, being "27 April 1997".

The Plaintiffs Notice of Motion seeking those orders was filed on 21 March 2001.

In support of that application, the Plaintiffs filed the following documents;

· Affidavit of Service sworn by Joe Yal Maroons, dated 5 February, 2001 and filed on 12 February, 2001;

· Affidavit of Service sworn by Sakias Poning on 23 November 2000 and filed on the same day.

· Affidavits sworn by Maike Zimike on 21 March 2001, filed on 6 April 2001 and sworn and filed on 17 May 2001.

· Writ of Summons dated 25 October 2000 and filed on 27 October, 2000;

The Defendants motion was filed on 16 May 2001 and is supported by the Affidavit of by John M Kimura sworn on 7 May 2001 to which a draft Defence is attached.

Application for Default Judgment

Should this court enter Default Judgement against the Third Defendants? If not, should the Defendants be given leave to file their Notice of Intention to Defend and Defence.

The Writ of Summons issued by the Plaintiff against the State claims that on 23 October 1996 the First Defendant and several other policeman without good cause, proceeded upon the Plaintiffs village and destroyed properties to a value in excess of K7 million.

The Affidavit of Service of Sakias Poning states that:

1. Service was effected on the office of the Solicitor General located on the 7th Floor of the old Australian High Commission on Kisolel Kiapun, Secretary to the Solicitor General, on 21st November, 2000 at 9.11 am.

2. Service was effected on the office of the Police Commissioner at Konedobu on Joe Augustine, a Legal Clerk on 20th November 2000.

Joe Yal Maroon's affidavit of service confirms personal service on the First Defendant on 24 November 2000.

For the Defendants Mr. Kumura does not raise any objections in relation to the manner of service but states that neither the Plaintiffs nor other Lawyers had given the mandatory notice under s.5 of the Claims By and Against the State Act of 1996. (the "Claims Act').

The Plaintiffs argue that they have given the mandatory notice, which is a letter from Warner Shand Lawyers addressed to the Solicitor General's Office, dated 15 September 1997. This letter is in evidence before me.

Section 5 of the Claims Act and Against the State Act...