Brian Josiah on behalf of himself and 81 other members of the Air Transport Wing Papua New Guinea Defence Force whose names are as inscribed hereto v Steven Raphael - Acting Secretary for the Department of Defence and Col Joe Kewa - Chief of Personnel, Papua New Guinea Defence Force and Commodore Peter Ilau – Commander, Papua New Guinea Defence Force and the Independent State of Papua New Guinea (2018) SC1665

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J, Yagi J & Geita J
• Judgment Date: 30 April 2018
• Court: Supreme Court
• Citation: (2018) SC1665
• Docket Number: SCA No 59 of 2016
• Year: 2018
• Judgement Number: SC1665

Full Title: SCA No 59 of 2016; Brian Josiah on behalf of himself and 81 other members of the Air Transport Wing Papua New Guinea Defence Force whose names are as inscribed hereto v Steven Raphael - Acting Secretary for the Department of Defence and Col Joe Kewa - Chief of Personnel, Papua New Guinea Defence Force and Commodore Peter Ilau – Commander, Papua New Guinea Defence Force and the Independent State of Papua New Guinea (2018) SC1665

Supreme Court: Kirriwom J, Yagi J & Geita J

Judgment Delivered: 30 April 2018

SC1665

PAPUA NEW GUINEA

[ IN THE SUPREME COURT OF JUSTICE ]

SCA NO. 59 OF 2016

BETWEEN:

BRIAN JOSIAH on behalf of himself and 81 Other members of the AIR TRANSPORT WING PAPUA NEW GUINEA DEFENCE FORCE whose names are as inscribed hereto

Appellants

AND:

STEVEN RAPHAEL - ACTING SECRETARY FOR THE DEPARTMENT OF DEFENCE

First Respondent

AND:

COL JOE KEWA - CHIEF OF PERSONNEL, PAPUA NEW GUINEA DEFENCE FORCE

Second Respondent

AND:

COMMODORE PETER ILAU – COMMANDER, PAPUA NEW GUINEA DEFENCE FORCE

Third Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Respondent

Waigani: Kirriwom J, Yagi J & Geita J

2017: 28th & 31st August

2018: 30th April

APPEALS – appeal against final judgment resulting in dismissal of proceedings – class action against the State by serving members of the PNG Defence Force – claim for unpaid overseas training incidental allowance due between period 1977 and 1994 – proceedings filed in June 2003.

APPEALS – whether the claims are time barred under s. 16(1) of the Frauds and Limitation Act 1988 – whether the notice of claim under s. 5 of the Claims By and Against the State Act 1996 was given by the appellants – whether the doctrine of equitable estoppel should be invoked – whether the claim by the appellants are vexatious and an abuse of process – no identifiable error of law, fact or both evident in the decision of the National Court – appeal dismissed.

Cases Cited:

Papua New Guinea Cases

Daniel Hewali v. Papua New Guinea Police Force & The State (2002) N2233

Joe Kerowa v Motor Vehicles Insurance Limited (2010) SC1100

Kiee Toap v The Independent State of Papua New Guinea (2004) N2731

Paul Kumba v. Motor Vehicles Insurance (PNG) Trust (2001) N2132

PNG Forest Products Pty Ltd and Another v The State and Genia [1992] PNGLR 85

Paul Tohian, Minister for Police and the State v. Tau Liu (1998) SC566

Rawson Construction Ltd & Ors v The State (2004) SC777

Sao Gabi & State v Kasup Nate & Others (2006) N4020

Overseas Cases

Wylie v Wake [2000] EWCA Civ 349

Legislations:

Claims By and Against the State Act 1996

Frauds & Limitations Act 1988

Counsel:

L. Kari, for the Appellants

R. Raka & S. Sirigoi, for the Respondents

DECISION

30th April, 2018

1. BY THE COURT: On 12 June 2003 the appellants filed in the National Court a class action claiming damages amounting to K4,673,420.73 for alleged unpaid overseas training incidental allowances. On application by the respondents the National Court dismissed the claim for two reasons; firstly for non compliance with s. 5 of the Claims By and Against the State Act 1996 (Claims Act), and secondly, for being statute barred under s. 16 of the Frauds & Limitations Act 1988 (Limitations Act). The dismissal of the proceedings was ordered by the primary Judge in Waigani on 7 April 2016.

2. The appellants appeal against the whole judgment and orders of the National Court.

Background Facts

3. The appellants totaling 82 are or were serving members of the Papua New Guinea Defence Force (PNGDF) attached to the Air Transport Wing. Each of them held different ranks and attended various training overseas at different times, length of periods, locations and institutions. They claim that, at all material times, they are entitled to be paid incidental allowances whilst undertaking their training overseas. They therefore claim varying amounts as unpaid allowances, the aggregate total being over K4.6 million. The claims arose between the periods 1977 – 1994.

4. In October 2003 the appellants obtained judgment against the respondents in default of filing a defence to the claims. The judgment was set aside by the Supreme Court on appeal by the respondents. In allowing the appeal the Supreme Court remitted the matter back to the National Court and further granted leave to the respondents to file their defence within 7 days. The orders of the Supreme Court were made on 01 March 2005. On 08 March 2005 the State filed in the National Court a defence to the claims by the appellants. In the defence the State pleaded, amongst others, that the appellants’ claims are statute barred under s. 16 of the Limitations Act and also that the appellants failed to comply with s. 5 of the Claims Act in giving requisite notice of their claims to the State.

5. In or about July 2015 the respondents filed an application by way of notice of motion seeking orders, amongst others, to dismiss the proceedings instituted by the appellants.

6. The application was heard by the primary Judge in October 2015 and a decision dismissing the entire proceedings including the claims by the appellants was made on 07 April 2016.

7. The proceedings was dismissed for 2 principal reasons:

(1) The appellants failed to give to the State a notice of their claims prior to filing their claims in the proceedings as required by s. 5 of the Claims Act; and

(2) The claims by the appellants are time barred pursuant to s. 16(1)(a) of the Limitations Act.

Grounds of Appeal

8. The appellants’ grounds of appeal are as follows:

(a) The Learned Trial Judge erred in law and in fact in holding that the Proceedings were statute barred when in fact the Proceedings were not statute barred because the Plaintiffs’ cause of action accrued in 2001 when payments were made for similar claims and the Department of Defence revisited the claims and acknowledged the indebtedness wherein requested the Finance Department to settle the claim(s).

(b) The Learned Trial Judge erred in law and in fact in relying on the strict requirements of strict statutory condition precedent hence disregarding equity, justice and fairness, when Defendants admitted the liability by their conducts by making part-payments of the claims.

(c) The Learned Trial Judge erred in law and in fact in holding that the Section 5 Notice under Claims By and Against the State Act was not served on the State when Plaintiffs had served it on 30th April 2003 and the State had not conclusively proved that the notice was not given as the records of transactions on correspondence received covered period after the 30th April 2003.

(d) The trial judge erred in law and in fact in not holding that with the instructing Department admitting liability and were willing to pay the Solicitor General had no instructions from the Department to act otherwise.

(e) His Honour erred in law and in fact in holding that the conduct of the Solicitor General and the State amounted to the State waiving its legal rights.

(f) The learned trial judge erred in law in holding that the claim was vexatious and an abuse of process as this was a claim pursued on behalf of Plaintiffs who were serving members and had gone through the process of payment but for the Court case.”

9. At the hearing the appellants’ counsel withdrew ground (e) after failing to secure leave to amend that particular ground in the notice of appeal. That left only grounds (a), (b), (c), (d) and (f) for the appellants to argue in the appeal. Ground (a) relate to the issue of time bar under s. 16(1) (a) of the Limitations Act. Grounds (b) and (d) pertain to the principles of equity and fairness. Ground (c) touches on the issue of notice of claim under s. 5 of the Claims Act. Ground (f) relate to whether the claims are vexatious and tantamount to an abuse of court process.

Issues

10. It is therefore clear, in our view, that the remaining grounds of appeal present the following 4 issues for consideration:

(a) Whether the claims by the appellants are time barred under s. 16(1) of the Limitations Act.

(b) Whether the appellants failed to give notice of their claims pursuant to s. 5 of the Claims Act.

(c) Whether the learned primary Judge erred in law in failing to give due recognition of the principles of equity and fairness.

(d) Whether the claims are vexatious and an abuse of court process

Issue 1 - Whether the claims by the appellants are time barred

11. Counsel for the appellants whilst conceding that the claims arose more than 6 years prior to the commencement of the action in the National Court, nevertheless, submitted that the employing agency (Department of Defence) through its commanding officers revisited the claims and agreed that the claims be paid. Counsel argued that the agreement to pay is evidenced in writing by various senior Defence Force officers and the Secretary for Defence which include a letter dated 28 June 2001 by Major Ron Hosea (AB, page 31), letter dated 2 January 2002 by Major Warokoi (AB, page 45), letter dated 15 April 2002 by Secretary for Defence Mr. Fredrick Punangi (AB,...