Paul and Mary Bal v Kenny Taiya, Francis Arumba, Philip Dege and The Independent State of Papua New Guinea (2003) N2481

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 29 October 2003
• Court: National Court
• Citation: (2003) N2481
• Year: 2003
• Judgement Number: N2481

Full Title: Paul and Mary Bal v Kenny Taiya, Francis Arumba, Philip Dege and The Independent State of Papua New Guinea (2003) N2481

National Court: Davani J

Judgment Delivered: 29 October 2003

N2481

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 727 OF 1999

BETWEEN:

PAUL & MARY BAL

Plaintiffs

AND:

KENNY TAIYA

First Defendant

AND:

FRANCIS ARUMBA

Second Defendant

AND:

PHILIP DEGE

Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

GOROKA: DAVANI .J

2003: 9, 29 OCTOBER

PRACTISE AND PROCEDURE – Claim for damages for breach of Constitutional rights – notice under s. 5 of Claims By and Against the State Act (‘s. 5 notice’) not given – Although Writ of Summons filed, no cause of action.

PRACTISE AND PROCEDURE – trial – non-compliance with s. 5 notice not raised by both counsel – no application to dismiss before the court – court to exercise discretion on its own initiative to raise and determine questions concerning the regularity or competency of proceedings at any stage of the proceeding, with or without application by an interested party.

Cases Cited:

• Siaman Piri & Anor v Simon Nusen & Ors N1375 (1995)

• John Bokin and others v Sergeant Paul Dana and 2 others ,WS 1505 of 2000

• Paul Tohian, Minister for Police and the State v Tau Lui SC 566

• Karl Paul and Aruai Kispe and the Regional Manager – PNG Forest Authority, Lae and PNG Forest Authority N2085

• William Trnka v The Independent State of Papua New Guinea N1957

Counsel:

D. Umba for the Plaintiffs

No appearance for the Defendants

DECISION

(Substantive hearing)

29 October 2003

DAVANI J: On 14.7.99, the Plaintiffs filed writ of summons and statement of claim seeking damages for breach of their Constitutional rights for being unlawfully arrested then detained in the Baragawi jail for 5 days.

The Defendants filed a Defence on 4.11.99 but I should state at the outset that this is not recorded in the court file. In fact it was not until completion of the Plaintiff’s evidence, and upon the court’s enquiries that the Plaintiffs lawyer then handed up a sealed copy of the Defence. I will discuss this procedural irregularity in the latter part of this judgment.

Preliminary matters

There are a few procedural matters that I will deal with first and that will ascertain whether I should proceed to reviewing the materials before me in the determination of liability.

1. Ex-parte Hearing:

This matter was set down for trial on 9 and 10.10.03.

In relation to representation for all defendants, on 6.10.03, Mr Umba for the Plaintiffs and Mr Kuri of the Solicitor-General’s Office appeared before me for the pre-trial of this matter. Mr Kuvi informed the court that he did not have instructions on the matter. I confirmed the trial dates because Mr Umba informed the court that he had posted the “Notice of Appointment of Hearing Date” to the Solicitor-General’s Office under cover of his letter dated 27.7.03. On directions from the court, Mr Umba produced a copy of this letter attached to his affidavit sworn on 7.10.03. I will elaborate further on this.

On the morning of trial on 9.10.03, Mr Umba applied to the court for the trial to proceed exparte because the Defendants had not shown interest by making appearance at the trial. Nor had they informed the Plaintiffs lawyer of their non-attendance.

On reviewing the court file, I noted the following;

(a) On 14.7.99, the Plaintiff filed these proceedings. Then followed a series of correspondence exchanged between the parties and appearances in Court on motions filed by either parties. At this time, it is not necessary for me to refer to them.

(b) On 6.2.01, the matter was listed before Batari .J for a 2 day trial on 12.9.01 and 13.9.01.

(b) On 12.9.01, there was appearance by Mr D Umba for the plaintiffs. The endorsement on the Court file indicated there was no appearance by the Defendants but the associates note read “Counsel for Defendants did appear for trial to begin today but indicated in writing they have a motion on foot that needs to be dealt with before trial can proceed. Matter S/O to 13.9.01 for mention.”

(b) On 13.9.01, Counsel for Plaintiff appeared and there was no appearance by the State. The trial dates were vacated. The endorsement on the Court file read Plaintiffs counsel was to confer with Defendants counsel and that the matter would be mentioned on 14.9.01 at 9.30.

(b) On 14.9.01, the matter was stood over to 12.10.01 for mention and that both counsel had agreed to this course. The Plaintiffs’ lawyer was in attendance. There was no appearance by the Defendants’ lawyers.

(b) On 12.10.01, Plaintiffs’ lawyer applied to the Court to dismiss the Defendants’ motion filed on 26.9.01. These orders were granted with costs to the plaintiffs. There was no appearance by the Defendants’ lawyers.

(b) On 12.11.01, there was no appearance by either party and the matter was stood over generally.

(b) On 16.11.01 and 11.02.02, the matter was mentioned and stood over.

(b) On 12.2.02, the matter was set down for trial on 8 July 2002. The Plaintiffs’ lawyer was in appearance.

(b) On 1.7.02, Plaintiffs’ lawyer informed the Court that the Defendants’ counsel could not attend the trial so the trial dates were vacated and the matter stood over to the call-over list.

(b) On 28.10.02, the matter was set down for trial on 10 and 11 June 2003. Only the Plaintiffs’ lawyer was in attendance.

(b) On 4.6.03, the endorsement on the court file read that on 7.7.03 the matter would be given a trial date. There was no appearance by either parties.

(b) On 8.7.03, Mr Umba appeared for the Plaintiffs. Mr Kuvi of the Solicitor-General’s Office informed the Court that he had no instructions on this matter.

On quick perusal of the file, I noted the history set out above and was of the view that the State had been informed of the trial dates and so confirmed the trial dates. I also directed that on 9.10.03, the date of trial, Mr Umba should produce to the Court in affidavit form, his advice to the Defendants lawyers of the trial date. I also directed Mr Kuvi to obtain instructions from the Solicitor-General as to representation by the State on this matter.

On 9.10.03, Mr Umba produced on affidavit sworn on 7.10.03 to which was attached an unsigned letter on Acanufa & Associates lawyers letterhead to the Solicitor-General’s Office dated 25.7.03. The letter advised that it had enclosed to it a sealed copy of the ‘Notice of Appointment of Hearing’. I asked Mr Kuvi if he had received any instructions from the Solicitor-General’s Office. He informed the Court that his attempts since the 6.10.03 were unsuccessful.

On reviewing all the material before me, including the endorsements I set out above, I then made a brief ruling that the State had been aware of these proceedings for some time and that they had been advised of the dates of trial. I ruled that the matter would proceed ex-parte.

In relation to reliance by the court on the several affidavit materials filed by the Defendants, the Plaintiffs submitted that the Defendants had not given notice to them under s.35(1) of the Evidence Act that they would be relying on the affidavit material they had filed, and on that basis, the court should not have recourse to them. I accepted those submissions and ruled accordingly.

2. S.5 of Claims By and Against the State Act Chapter (‘Claims Act’)

As stated earlier at the commencement of trial, I still had not sighted the Defendants’ Defence because the Court file did not have a copy, nor was it noted on the filing index of the Court file as having been filed.

But I did not suspect that there was an issue in relation to the giving of notice under s. 5 of the Claims Act because this was not raised by counsel for the Plaintiffs until after the completion of the Plaintiffs’ evidence, and before he commenced submissions on the evidence. I asked Plaintiffs counsel if the Notice of Motion filed by the Plaintiffs on 7.9.01 related to an Application to Dismiss. He said it was such an application but that it was dismissed by the court on 12.10.01 at the Plaintiffs application. I heard that the application was not heard on the merits and dismissed because of the non-appearance by the Defendants lawyers. I informed counsel for Plaintiff then that I would...