Koi Antonius v Fantson Yaninen Administrator of East Sepik Province and Chairman of Liquor Licensing Board and East Sepik Provincial Government (2004) N2774

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 26 November 2004
• Citation: (2004) N2774
• Docket Number: WS No 943 of 2003
• Year: 2004

Full Title: WS No 943 of 2003; Koi Antonius v Fantson Yaninen Administrator of East Sepik Province and Chairman of Liquor Licensing Board and East Sepik Provincial Government (2004) N2774

National Court: David AJ

Judgment Delivered: 26 November 2004

1 PRACTICE AND PROCEDURE—application for default judgment for failure to give discovery—cross–application to dismiss writ of summons—no notice under s5 of the Claims by and Against the State Act 1996—notice is condition precedent to proceedings against the State—Supreme Court enunciation that "State" includes provincial governments and its arms and agencies delivered after cause of action arose—conduct of the defendants to defend proceedings does not amount to waiver of their right to raise objection for lack of notice—enunciation has retrospective effect—entire proceedings dismissed—costs a discretionary matter—conduct of defendants considered—parties bear own costs.

2 The State v Bisket Uranguae Pokia [1980] PNGLR 97, The Ship "Federal Huron" v Ok Tedi Mining Ltd [1986] PNGLR 5, SCR No 1 of 1998; Reservation Pursuant to s15 of the Supreme Court Act (2001) SC672, Pato v Enga Provincial Government [1995] PNGLR 469, Steven Pupune v Ubum Makarai [1997] PNGLR 622, Paul Tohian, Minister for Police and The Independent State of Papua New Guinea v Tau Liu (1998) SC566, Milne Bay Provincial Government v Roy Evara [1981] PNGLR 63, Karl Paul v Aruai Kispe, The Regional Manager, PNG Forest Authority—Lae (2001) N2085, Paul and Mary Bal v Kenny Taiya (2003) N2481, Treid Pacific (PNG) Ltd v Eastern Highlands Provincial Government (2004) WS 1052 of 2000, Sarakuma Investment Ltd v Peter Merkendi (2004) N2629, Daniel Hewali v PNG Police Force [2002] PNGLR 146, John Bokin v The Independent State of Papua New Guinea (2001) N2111 referred to.

RULING

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INTRODUCTION

The Plaintiff filed an application by way of Notice of Motion filed on 10 November 2004 seeking orders pursuant to O9 r15 of the National Court Rules ("the NCR") that the Defendants' defence and notice of intention to defend be struck out and that default judgment be entered against the Second Defendant and further that the matter be set down for trial for damages to be assessed plus costs against the Second Defendant. The Defendants filed a cross–application by way of their Notice of Motion filed on 18 November 2004 seeking orders that the Writ of Summons be dismissed on the basis that the Plaintiff did not give notice under s5 of the Claims by and Against the State Act 1996 ("the Claims by and Against the State Act 1996") or in the alternative the matter be set down for trial.

BACKGROUND

On 7th July 2003, the Plaintiff issued a Writ of Summons against the Defendants. The Plaintiff's claim against the First Defendant is in the latter's capacity as the Provincial Administrator of the East Sepik Province who is also the Chairman of the East Sepik Liquor Licensing Board ("the Board").

The Plaintiff alleges that from 1992 to 1998, he was carrying on a business known as Sachondai Tavern in Wewak. On or about 18 September 1998, the Plaintiff applied to the Board for the renewal of his liquor trading licence for that business and paid the appropriate fee. His application was refused on 16 November 1998 on the basis that the tavern was too close to the road and that road users had experienced alcohol related incidents near the tavern in the past. The application fee was refunded on 18 August 1999. The Plaintiff further alleges that the refusal to re–issue a liquor licence had no basis and was in breach of the East Sepik Provincial Liquor Licensing Act 1980 ("the Liquor Licensing Act"). Because the liquor licence was not re–issued, the Plaintiff claims that he was not able to operate his business and has thereby suffered substantial financial loss and damage. The Plaintiff alleges that the Defendants are vicariously liable for the actions of the Board and claims against them the sum of...