Kamapu Minato v Philip Kumo and The Independent State of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Judge: Akuram J
• Judgment Date: 23 October 1998
• Court: National Court
• Citation: (1998) N1768
• Year: 1998
• Judgement Number: N1768

National Court: Akuram J

Judgment Delivered: 23 October 1998

N1768

PAPUA NEW GUINEA

[In the National Court of Justice]

WS 823 of 1997 (H)

BETWEEN:

KAMAPU MINATO

- Plaintiff –

AND:

PHILIP KUMO

- 1st Defendant –

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

- 2nd Defendant –

MT HAGEN: AKURAM J

1998: 16th & 23rd October

Wrongs by the State – Police raid on a village – General Damages – Special Damages – exemplary damages – Interest and costs.

Wrong by the State – Police raid on a village – Notice pursuant to Sections 5 and 21 of Claims By and Against the State Act 1996 not given for claims out of time – Application for default judgment refused and claim dismissed.

Cases cited in Judgment.

Graham Rundle v. MVIT (No. 1) [1988] PNGLR 20

M. C. Thoke for Plaintiff.

J. Kumura - Amicus Curiae

AKURAM J: This is an application by way of Notice of Motion seeking default judgment and for assessment of damages at a later date and costs.

The brief facts of the case is that on the 8th of June 1992, whilst the Applicant was away at Mt Hagen, the First Defendant in company of other policemen entered the Plaintiff’s premises at Akom village in Wabag and conducted a raid and destroyed his premises and properties by setting fire to them.

The Plaintiff then instructed his lawyer on the 30th September 1996, 4 years and 3 months later to sue the State for destruction of his properties. His lawyer then filed this Writ on 3rd of September 1997 which is 11 months and 27 days later. There are no reasons given as to why Plaintiff and his lawyer took that long to make the claim. This Writ was served on the Solicitor-General on behalf of the State on the 2nd October 1997 and on 1st Defendant on 10th September, 1998. The defendants did not file their Notice of Intention to Defend nor their defence pursuant to Section 9(1) of the Claims By and Against the State Act 1996 and Order 8 Rule 4 of the National Court Rules. That is why this application is made for a default judgment. However, before I can entertain this application, I must be satisfied that Sections 5(1) and 21(2) of the Claims By and Against the State Act 1996 has been complied with Section 5 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

(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 am and 12 noon, or 1.00 pm and 4.06 pm, 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 (Chapter 321).

(emphasis added).

This Section is in similar terms as Section 54(6) of the Motor Vehicles (Third Party Insurance) Act, Chapter 295 and was discussed and decided by the Supreme Court in Graham Rundle v. Motor Vehicle Insurance (PNG) Trust (No. 1) [1988] PNGLR 20. Section 54(6) reads:-

“No action to enforce any claim under this section lies against the Trust unless Notice of Intention to Make a Claim is given by the Claimant to the Trust within a period of six months after the occurrence out of which the claim arose, or within such period as:-

(a) the Commissioner; or

(b) the Court before which the action is instituted,

on sufficient cause being shown, allows.”

This section is exactly in the same terms as the wording in Section 5(1) & (2). The only major difference I notice in these two sections of the respective Acts is that in Section 54(6), it does not say that the “notice” should be in writing. Whereas in Section 5(1) of Claims By and Against the State Act, the “notice” must be in writing, which is an improvement to the situation in Section 54(6) provisions. The purpose of Section 54(6) was explained in Rundle’s case by Bredmeyer J at p. 23 is to give the Trust early notification of the Claim so that it can make its own enquiries as to the driver, owner, witnesses, police accident reports and insurance certificates. Section 54(6) is designed to give the Trust prior notice of the claim within six months.

I would apply the same reasoning here and say that the purpose of Section 5(1) & (2) of Claims By and Against the State Act, 1996, is to give the State early notification of the claim so that it can make enquiries. Obviously enquiries as to, as in this case, the raid itself, the policemen involved, the properties damaged or destroyed their value, the witnesses and whether the action is time barred. Section 5(1) & (2) is therefore designed to give the State and its agents or servants sufficient prior notice of the claim within six months. I also make similar observations as those made by Bredmeyer J in Rundle’s case that, first Section 5(2) Notice of Intention to make a claim is mandatory by saying:

“(2) A notice under this section shall be given –

(a) within the period of six months after the occurrence out of which the claim arose; or

(b) ………..

(c) within such further period as –

(i) the Principal Legal Advisor; or

(ii) the Court before which the action is instituted,

on sufficient cause being shown, allows.”

In the same case, Amet J (as he then was) then discussed the proper application and meaning of Section 54(6) (a) & (b) which are in similar terms to Section 5(2)(b)(I) & (ii) and said at page 29 that:

“One of the purposes for giving early notice must be to enable parties to make enquiries before any further action or proceedings are considered. If subs. (b) is construed as it is drafted, to require the action to have been instituted before any application for extension of time to give notice can be made, than it can defeat the whole purpose of the need to give notice.

In my opinion, to render para (b) consistent with the plain meaning of the body of subs. (b) as I have interpreted it, the words “to be” should be read in after “the action is” and before instituted to read:

(b) the Court before which the action is to be instituted. This surely makes a whole lot more sense, that no Court action or proceedings can be instituted to enforce any claim unless notice of intention to make a claim has first been given to the Trust.”

I therefore adopt and apply the same reasoning and meaning given bay their Honours by interpreting Section 5(1) and (2) (a) & (c) of the Claims By and Against the State Act, 1996.

In doing so, I find the present Claimant/Plaintiff has not given the mandatory prerequisite notice to the State. Therefore no action will lie against the State.

The second point I wish to make is that a notice under Section 5(1) and (2) is different from Writ of Summons. The notice to the State under Section 5(1) & (2) is a notice to the State of an intention to make a claim; the Writ of Summons is the claim itself. The two are not the same although they provide the State with the same information but their purposes are different. That is because without the notice the State would not be in a position to make enquiries to either confirm or deny the claim or allegations.

The plaintiff may say, but he is not time barred. Section 21(2) of the Claims By and Against the State Act, 1996 says:

“(2) Where upon the coming into operation of this Act no action to enforce a claim against the State has been commenced in respect of an occurrence which took place before that coming not operation, notice shall be given in accordance with Section 5(1) within a period of six months after that coming into operation, or within such further period as –

(a) the Principal Legal Adviser; or

(b) the Court before which the action is instituted,

on sufficient cause being shown, allows.

This Act came into operation on 6th February 1996. The Plaintiff gave instructions to his lawyer on the 30th September 1996 but the raid occurred on or about 8th June 1992. So from the date of coming into operation of the Act, the Plaintiff’s right to give notice of his intention to make a claim to the State would have expired on the 6th of August 1996. Plaintiff was therefore out of time from 6th August 1996 to 30th September 1996 when he gave his instructions, a period of 3 weeks and 3 days. His lawyer filed this Writ on 3rd September, 1997, which is a total...