Maps Tuna Limited v Manus Provincial Government (2005) N2867

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 18 July 2005
• Citation: (2005) N2867
• Docket Number: OS No 425 of 2003
• Court: National Court
• Year: 2005
• Judgement Number: N2867

Full Title: OS No 425 of 2003; Maps Tuna Limited v Manus Provincial Government (2005) N2867

National Court: Davani, J

Judgment Delivered: 18 July 2005

N2867

[IN THE NATION COURT

OF JUSTICE AT LAE

PAPUA NEW GUINEA]

OS NO. 425 of 2003

BETWEEN:

MAPS TUNA LIMITED

-Plaintiff/Respondent-

AND:

MANUS PROVINCIAL GOVERNMENT

-Defendant/Applicant-

Lae: Davani, J

2005: 11, 18 July

Practise and procedure – proceedings filed before giving s.5 notice under Claims by and Against State Act – issue arose midway through proceedings – court to exercise inherent powers to put a stop to ‘irregular’ proceedings

Cases cited:

Tau Liu v. The State SC566

Karl Paul v. Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085

Paul & Mary Bal v. Kenny Taia & 2 ors.& the Independent State of Papua New Guinea N2481

Counsel:

J. Kais for Plaintiff/Respondent

P. Kuman for Defendant/Applicant

DECISION

18th July 2005

DAVANI, J: I have before me Notice of Motion filed by Posman Kua Aisi Lawyers on 22nd June, 2005, which motion seeks orders that pursuant to order 10 rule 21 of the National Court Rules (‘NCR’) that the following questions be tried as a stated case;

1 “Whether section 5 notice under The Claims By and Against the State Act 1998 must be given prior to suing a Provincial Government;

2 If so, whether the failure by the plaintiff to give such a notice makes these proceedings a nullity.”

Posman Kua Aisi Lawyers, for the Defendant/Applicant (‘applicant’), also relies on the courts inherent powers under s.155(4) of the Constitution, to bring these proceedings to an end because of the plaintiffs acceptance as demonstrated on the pleadings, that s.5 Notice under the Claims By and Against the State Act (‘CBASA’), was not given.

I should state at the outset, that Mr Kais for the defendant/respondent (‘respondent’) although accepting that s.5 notice was not given, submits that it would not serve any purpose if the proceedings were dismissed because the respondent could always give notice and reinstitute proceedings. He submits that both parties would save a lot in costs and time if the proceedings were allowed to continue and brought to a finality.

Before I discuss the law, I note that the respondent originally commenced these proceedings on 5th August, 2003, seeking various declaratory orders. The orders sought were in relation to the existence of a valid Ship Management Agreement (‘the agreement’) between the parties and that the applicant under the agreement, had no right to remove two fishing vessels it owned, from the respondents possession and management.

However, on 23rd May, 2005 and with the consent of both parties, the court ordered that the proceedings commence by pleadings and that the respondent file and serve a statement of claim within fourteen (14) days. Various other orders were made as to the filing of other pleadings.

On 27th May, 2005, the respondent filed the Statement of Claim. On 3rd June, 2005, the applicant filed Request For Further and Better Particulars. On 8th June, 2005, the respondent filed an amended Statement of Claim. On 7th June, 2005, the respondent filed its Further and Better Particulars. On 22nd June 2005, the applicant filed the motion that is now before me. On 30th June, 2005, the applicant filed its Defence to the Amended Statement of Claim and its Cross-Claim.

It appears the applicant’s motion was filed after it received the respondents Further and Better Particulars. I say this because Mr Kuman for the applicant in its Request for Further and Better Particulars, had requistioned whether the s.5 Notice under the CBASA had been issued. In paragraph 1 of its Further and Better Particulars, the respondent, through its lawyers, stated;

“Notice of Intention to sue has not been given pursuant to section 5 of The Claims By and Against the State Act, prior to institution of these proceedings”

So the issue before me now is, noting admission by the Respondent of the lack of notice, whether I should and can put an end to these proceedings, considering the motion before me seeks that the issue of the lack of the s.5 notice be considered and tried as a stated case.

I do not think it necessary that this issue be tried as a stated case because the respondent has already admitted that s.5 notice was not given to the State. The issue of the s.5 Notice in proceedings against the State or an entity of the State, in this case a Provincial Government, is mandatory. If s.5 Notice has not issued, then there is no cause of action on foot because notice of intention to make a claim is a condition precedent to issuing a writ of summons in all circumstances. (see Tau Liu v. The State SC 566). This is not a case where the respondent has given notice but is out of time. Nor is it a case where notice was given, but was not acknowledged by the State.

This is a clear case where the plaintiff/respondent did not give the mandatory s.5 Notice and it admits and accepts that fact. The court must, where there is a clear irregularity in process, exercise its inherent powers in ensuring that these proceedings are brought to an end. The court has a duty to control and conduct proceedings before it to ensure that the conduct of proceedings before it is subject to jurisdictional limits set by the court. Injia. J discussed this issue in Karl Paul v. Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085 delivered in Lae on 17 April, 2001. His Honour said;

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