William Trnka v The State

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 04 May 2000
• Citation: [2000] PNGLR 294
• Court: National Court
• Year: 2000
• Judgement Number: N1957

Full Title William Trnka v The Independent State of Papua New Guinea (2000) N1957

National Court: Sevua J

Judgment Delivered: 4 May 2000

N1957

PAPUA NEW GUINEA

[In the National Court of Justice]

OS 92 of 2000

BETWEEN: WILLIAM TRNKA

Plaintiff

AND: THE INDEPENDENT STATE OF

PAPUA NEW GUINEA

Defendant

Waigani: Sevua, J

2000: 22nd March

&

04th May

Practice and Procedure – Practice – Notice of action – Extension of time – Claim against the State – Notice to Attorney General or Solicitor General – Application for extension of time – Extension within discretion of Court – Whether complaint to Police Commissioner, Police Minister and Prime Minister constitutes notice – Plaintiff/applicant to show sufficient cause – Claims By and Against the State Act, s.5.

In dismissing the application for extension of time;

Held:

1. A written complaint to the Police Commissioner, Police Minister and the Prime Minister does not constitute notice under s.5 of Claims By and Against the State Act. By law, notice must be given to the Attorney General or Solicitor General.

2. The relevant test is that established in Rundle-v-Motor Vehicle Insurance (PNG) Trust,[1988] PNGLR 20, where the plaintiff applicant must show sufficient cause in order to obtain an extension of time to give notice of intention to make a claim against the State.

3. If there is delay in the giving of such notice, the plaintiff applicant has the onus of establishing the cause of delay to the satisfaction of the Court.

4. The granting of an extension of time involves the exercise of the Court’s discretion and the plaintiff/applicant must show sufficient cause in order for that discretion to be exercised in his favor.

5. In the whole circumstances of this case, the plaintiff/applicant has not shown sufficient cause therefore, the exercise of the Court’s discretion should be refused.

Cases referred to:-

Rundle -v- Motor Vehicle Insurance (PNG) Trust [1988] PNGRL 20 - adopted and applied.

Ovoa Rawa -v- Motor Vehicle Insurance (PNG) Trust, N.1276. Injia, J. 05th December, 1994.

Sam Arthur -v- Motor Vehicle Insurance (PNG) Trust, N.1811. Sawong, J. 04th September,

1998.

Ivia -v- Motor Vehicle Insurance (PNG) Trust, [1995] PNGLR 183. Kapi, DCJ. 14th July, 1995.

Motor Vehicle Insurance (PNG) Trust -v- Insurance Commissioner, N. 1725. Sevua, J. 22nd

May, 1998

Give Jowana –v- Motor Vehicle Insurance (PNG) Trust, N.1681. Sawong, J. 05th December,

1997.

Korowa Pup -v- Motor Vehicle Insurance (PNG) Trust and Gabag John Walep Koglip -v-

Motor Vehicle Insurance (PNG) Trust, N. 1415. Injia, J. 15th March, 1996.

C. Nidue for Plaintiff

4th May, 2000

SEVUA, J: This is an application by the plaintiff seeking an order for extension of time to lodge a notice to make a claim against the defendant State.

Briefly, the plaintiff claims that he was severely beaten by members of the Police Force on the night of 5th June, 1996 and personal items stolen at his residence at Gerehu Stage 6. The Attorney General has refused to grant an extension of time to make a claim against the State.

I propose to set out the actions taken by the plaintiff as I consider them relevant for the purpose of my consideration in determining this application.

The plaintiff claimed he was badly “assaulted” by members of the Police Force on 5th June, 1996. On 9th June, 1996, four days after the alleged assault, he forwarded a letter of complaint to the Commander of National Capital District and Central Police, Mr Philip Taku. On 10th July, 1996, the plaintiff’s father wrote a letter each to then Prime Minister, Sir Julius Chan, then Police Minister and then Police Commissioner. These letters were the complaint of the plaintiff’s fatter against the members of the Police Force.

On 23rd January 1997, the plaintiff’s father wrote another letter to the Prime Minister, Sir Julius Chan, which was copied to the Police Commissioner, Mr R. Nenta. On 25th January, 1997. Young & Williams Lawyers wrote to the Police Commissioner and inquired about the plaintiff’s and his father’s letters of complaint. On 8th January, 1998 Young & Williams wrote another letter to the Police Commissioner.

Then on 19th May, 1999, Nonggorr & Associates Lawyers eventually wrote to the Attorney General requesting an extension of time to make a claim against the State. On 2nd June, 1999, the Attorney General responded by refusing to grant an extension to the plaintiff to make a claim. According to the Attorney General, one of the two reasons for his refusal was, “your client’s delay in pursuing this matter seem unreasonable.”

I wish to make some observations based on those facts. The plaintiff, his father and their lawyers had written a total of seven (7) letters to then Police Commissioner, then Minister for Police and then Prime Minister. The Court notes that the plaintiff’s father’s letter of 10th July, 1996, to the Police Commissioner, was widely circulated. Copies were hand delivered to the Chief Ombudsman, Mr Simon Pentanu, then Prime Minister, Sir Julius Chan, then Minister for Police, Mr Castan Maibawa MP., then Australian High Commissioner, Mr David Irvine, and copies were also forwarded to Amnesty International in London and the plaintiff’s mother in Sydney, Australia.

On 29th July, 1996, the Commissioner of Police, Mr R. Nenta, acknowledged the plaintiff’s father’s letter of complaint dated 10th July, 1996. The Police Commissioner advised the plaintiff’s father that “the Commander NCD/Central has been directed to investigate and report.” It appears to me that no favorable response was received by the plaintiff therefore, his father wrote to the Prime Minister the second time on 27th January 1997; some six months, three weeks and one day after the alleged assault and some five months, two weeks and three days after the plaintiff’s father had complained to the Police Commissioner and widely circulated copies of that complaint.

There is no evidence as to the date the plaintiff engaged the services of Young & Williams Lawyers. Whilst the Court appreciates the fact that lawyers act on instructions from their clients, there seems to be no reason for the plaintiff’s lawyers to write their letter of 25th February, 1997 to the Commissioner of Police. Indeed, I see no reason at all for Young & Williams to write another letter almost twelve months after the father’s letter. In my view, these events are quite relevant to the issue of...