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
• Court: National Court
• Citation: (2003) N2481
• Date: 29 October 2003
• Year: 2003

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

1 PRACTICE AND PROCEDURE—Claim for damages for breach of Constitutional rights—notice under s5 of Claims By and Against the State Act 1996 ('s5 notice') not given—Although Writ of Summons filed, no cause of action.

2 PRACTICE AND PROCEDURE—trial—non–compliance with s5 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.

3 Siaman Riri v Simion Nusai (1995) N1375, John Bokin v The Independent State of Papua New Guinea (2001) N2111, Paul Tohian v Tau Liu (1998) SC566, Karl Paul v Aruai Kispe, The Regional Manager, PNG Forest Authority—Lae (2001) N2085 and William Trnka v The State [2000] PNGLR 294 referred to

Decision. Substantive hearing.

___________________________

Davani J: On 14 July 1999, 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 November 1999 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 ex parte 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.

(c) 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."

(d) 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.

(e) On 14.9.01, the matter was stood over to 12.10.01 for...