Mickey Kaip Wassey, By His Next Friend Tumu Andake v Felix Rangit Aigilo, John Karl, Ines Steven, Tio Neasingu, Joseph Kupo and The Independent State of Papua New Guinea (2005) N2876

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2005) N2876
• Date: 12 August 2005
• Year: 2005

Full Title: Mickey Kaip Wassey, By His Next Friend Tumu Andake v Felix Rangit Aigilo, John Karl, Ines Steven, Tio Neasingu, Joseph Kupo and The Independent State of Papua New Guinea (2005) N2876

National Court: Cannings J

Judgment Delivered: 12 August 2005

1 Practice and procedure—application to strike out proceedings—Claims By and Against the State Act 1996, s5—whether notice of intention to make claim given in accordance with statutory requirements—onus of proof.

2 Practice and procedure—application for leave to file amended defence—National Court Rules, O8, r50—relevant considerations.

3 John Bokin v The State (2001) N2111, Grace Lome v Allan Kundi (2004) N2776, Daniel Hewali v PNG Police Force [2002] PNGLR 146, Jack Voivoi v The State (2005) WS No 1239 of 2004 (Unnumbered and unreported judgment of the National Court (Lenalia J) dated 7 May 2005), John Pias v Michael Kodi (2004) N2690, Marinda v The State (1991) N1026, Michael Kewa v Elias Mai Kombo (2004) N2688, Minato v Kumo and The State (1998) N1768, The Papua Club Inc v Nusaum Holdings Ltd [2002] PNGLR 230, Theresa's Pty Ltd and PNGBC v Rio Vista Pty Ltd [1998] PNGLR 283, Paul Tohian v Tau Liu (1998) SC566 referred to

The plaintiff claimed damages for being unlawfully assaulted by the first defendants, who are police officers based in Kimbe. He claims that the second defendant, who was at the time the Commissioner of Police, and the third defendant, the State, are vicariously liable for the actions of the police officers. The plaintiff gave notice of his intention to make a claim within six months after the date of the incident in which he was allegedly assaulted. However, the defendants maintain that service was not effected in accordance with the Claims By and Against the State Act 1996. The defendants brought a motion to strike out the proceedings or, in the alternative, obtain leave to file an amended defence.

Held:

(1) A defendant who moves the court to strike out proceedings for non–compliance with any rule of practice or procedure bears the onus of proving the circumstance of non–compliance relied on. Theresa's Pty Ltd and PNGBC v Rio Vista Pty Ltd [1998] PNGLR 283 and Grace Lome v Allan Kundi (2004) N2776 followed.

(2) In this case that onus was not discharged. There was sufficient circumstantial evidence to show that the plaintiff had served notice of intention to make his claim against the State within the time and in the manner prescribed by s5 of the Claims By and Against the State Act 1996.

(3) S5 of the Claims By and Against the State Act 1996 must be interpreted and applied in a way that promotes the dispensation of justice. Where proceedings against the State have been on foot for a considerable time, the benefit of any reasonable doubt as to compliance with the Claims By and Against the State Act should be given to the plaintiff.

(4) The motion to dismiss the proceedings was accordingly refused.

(5) The defendants were granted leave to file an amended defence.

Abbreviations

The following abbreviations are used in the judgment:

PNG —Papua New Guinea

PNGBC—Papua New Guinea Banking Corporation

RPNGC—Royal Papua New Guinea Constabulary

NOTICE OF MOTION

This was an application on notice seeking dismissal of proceedings or, in the alternative, leave to file an amended defence.

Ruling On Motion

___________________________

Cannings J:

INTRODUCTION

This is an application by the defendants to strike out proceedings commenced by the plaintiff on the ground of non–compliance with s5 of the Claims By and Against the State Act 1996. In the alternative they seek leave to file an amended defence.

BACKGROUND

In the substantive case the plaintiff, who claims to be an infant, is seeking damages against the defendants for injuries, pain and suffering he says he incurred as a result of being unlawfully assaulted by the first defendants, who are officers of the Police Force based in Kimbe. The alleged assault occurred in Kimbe on 2 January 2002 when the first defendants allegedly hit the plaintiff on his head with the butt of a gun and a concrete brick.

On 12 March 2002 the plaintiff's adopted father, Tumu Andake, wrote a letter to the Office of Solicitor–General in the following terms:

"Dear Sir

RE NOTICE OF INTENTION TO MAKE A CLAIM AGAINST A STATE [SIC], MICKEY KAIP WASSEY, POLICE ASSAULT, 2 JANUARY 2002

I write to inform you of my intention to make a claim against the Police and the State for the assault on my son, Mickey Kaip Wassey, by the police in Kimbe on 2 January 2002.

The police officers involved are John Karl, Ines Steven and two others.

Please let me know if you are prepared to consider the details of my claims.

Further, the details of the claims are contained in the statement of claim which I will forward to you shortly after it is sealed by the courthouse."

There is a dispute about whether, where, when and how the above letter was served. Those important issues of fact are addressed in detail later.

On 18 March 2002 the plaintiff filed a writ of summons in the Kimbe registry of the National Court, with a statement of claim endorsed on it. The plaintiff's cause of action appears to be assault. He claims general damages and exemplary damages.

On 2 April 2002 Tumu Andake swore an affidavit of service, deposing to service of the writ that day on the second defendant (by serving a copy on Hodges Ette of the Police Legal Services Division at Police Headquarters, Konedobu) and on the third defendant (by serving a copy on Janet Kamane, an employee of the State, at the offices of the Department of Attorney–General, Waigani).

On 8 April 2002 Hodges Ette, describing himself as lawyer for the defendants, filed a notice of intention to defend for all defendants, in the name of Acting Solicitor–General, John Kumura.

On the same day, 8 April 2002, Mr Kumura wrote to Tumu Andake in the following terms:

"Dear Sir

RE YOUR NOTICE OF INTENTION TO CLAIM AGAINST STATE POLICE ASSAULT [SIC]

I have your letter dated 12th March 2002 constituting notice to sue police and the State on the grounds...