JA Construction Limited v Ipisa Wanega and Hona Javati and Eastern Highlands Provincial Government (2007) N3243

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 29 November 2007
• Court: National Court
• Citation: (2007) N3243
• Docket Number: WS 752 of 1999
• Year: 2007
• Judgement Number: N3243

Full Title: WS 752 of 1999; JA Construction Limited v Ipisa Wanega and Hona Javati and Eastern Highlands Provincial Government (2007) N3243

National Court: Davani J

Judgment Delivered: 29 November 2007

N3243

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 752 of 1999

BETWEEN

J.A. CONSTRUCTION LIMITED

Plaintiff

AND

IPISA WANEGA

First Defendant

AND

HONA JAVATI

Second Defendant

AND

EASTERN HIGHLANDS PROVINCIAL GOVERNMENT

Third Defendant

Goroka: Davani. J

2007: 9th, 29 November

PRACTICE AND PROCEDURE – breach of contract – proceedings filed before issue of s. 5 Notice under Claims By and Against State Act – proceedings void.

PRACTICE AND PROCEDURE – Supreme Court decision – always has a retrospective effect.

Facts

The plaintiff filed proceedings against the defendants for alleged breach of contract whereby the plaintiff alleges that although it did renovation work to the Goroka Demonstration School’s toilet and showers, that the third defendant did not pay monies owing to it in the sum of K37,119.93.

The plaintiff did not give notice under s. 5 of the CBASA and proceeded to file Writ of Summons and Statement of Claim. About 5 years later, the third defendant applied to dismiss proceedings for lack of s. 5 notice which application did not get heard until 2 years later. The plaintiff argues that it need not give notice under s. 5 of the Claims By and Against the State Act because it filed court proceedings prior to Supreme Court decision SCR 1 of 1998: Reservation pursuant to section 15 of the Supreme Court Act (2001) SC 672 and that therefore, that decision is not retrospective.

Held;

1. That s. 5 Notice should have been issued before court proceedings were filed;

2. Any decisions by the Supreme Court are deemed to be retrospective. In the absence of a clear indication of a contrary intention in an enactment, the substantive rights of the party to an action falls to be determined by the law as it existed when the action was commenced and this is so whether the law is changed before the hearing of the case at the first instance or while an appeal is still pending.

Cases Cited

Federal Huron v Ok Tedi Limited [1986] PNGLR 5

Rimbink Pato v Enga Provincial Government (1995) PNGLR 469;

Steven Pupune and Others v Ubum Makarai and PNGBC [1997] 22;

Kayapas Ruta v EHPG [1998] PNGLR 157;

Tohian and the State v Tau Liu (1998) SC 566;

SCR 1 of 1998: Reservation pursuant to section 15 of the Supreme Court Act

(2001) SC 672;

Treid Pacific (PNG) Ltd v EHPG (2004);

Caspar Kandi v Provincial Administrator, Department of Western Highlands Province (2004) N2755;

Koi Antonius v Fantson Yaminen & East Sepik Provincial Government

(2004) N2774;

Texts cited

Halsbury’s Laws of England (4th edition) Volume 44(1), Butterworths, London,

1995;

Counsel

N. Asimba, for the Third Defendant/Applicant

E. Hampalikie, for the Plaintiff/Respondent

29 November, 2007

1. DAVANI. J: This is an application by the Eastern Highlands Provincial Government (‘applicant’) moved by Notice of Motion filed by O’Briens Lawyers on 9 November, 2007. The Motion seeks to;

- set aside default judgment entered against the defendant on 22 August, 2000 and 11 June, 2003;

- Set aside the court order of 14 December, 2006;

- Dismiss the plaintiff’s action for failure to give Notice under s. 5 of the Claims By and Against the State Act (‘CBASA’);

- Or alternatively, to seek leave of the court to file the third defendants Defence out of time.

2. The applicant only moves the application to dismiss proceedings for lack of notice under s. 5 of the CBASA as this determines whether the action will continue or not, a threshold/preliminary issue.

3. The application is opposed by the plaintiff.

Issue of s. 5 Notice

4. First, I note that the plaintiff does not deny that it did not issue a s. 5 notice. I deal with its reasons for not doing so, later below.

5. In support of its application, the applicant relies on the affidavits of Nathaniel Asimba, Lawyer, sworn on 1 March, 2007 and filed on 13 March, 2007; Hitelai Polume-Kiele, former Acting Solicitor-General, sworn on 31 August, 2006 and filed on 13 December, 2006 and Fred Tomo, former Acting Attorney-General, sworn and filed on 31 July, 2006. The plaintiff relies on the affidavit of Engelbert Hampalekie, Lawyer, sworn on 29 October, 2007 and filed on 15 November, 2007.

6. To understand the background of this matter, I set out a brief chronology of the proceedings. These are;

(i) 21 July, 1999 - Plaintiff filed Writ of Summons and Statement of Claim. Its lawyer then, was Acanufa & Associates of Goroka.

(ii) 18 August, 2000 - Default judgment was entered for the plaintiff against the defendants in the following terms;

. The defendants shall pay the plaintiff the sum of K37,119.93 together with 8 percent interest from the date of the writ to the date of the order, a total sum of K37,681.82 (‘judgment debt’).

(iii) 9 May, 2003 - Acanufa Lawyers filed Notice of Ceasing to Act for the plaintiff.

(iv) 22 April, 2003 - Narokobi Lawyers filed Notice of Appearance for the plaintiff.

(v) 25 April, 2003 - The judgment debt was varied to include an additional claim for the entry of judgment and for the damages to be assessed together with payment of the judgment debt.

(vi) 3 June, 2003 - White Young & Williams filed Notice of Change of Lawyers for the applicant.

(vii) 20 October, 2004 - Date of third defendant Provincial Government’s letter to its then lawyers, White Young & Williams Lawyers advising on the reasons why it had not yet paid the judgment debt.

(viii) 25 October, 2004 &

18 November, 2004 - Date of O’ Briens Lawyers letters to the Attorney General and Solicitor General enquiring if the plaintiff had given the s. 5 Notice under the CBASA to the Attorney-General or the Solicitor-General.

(ix) 22 November, 2004 & - O’ Briens Lawyers filed Notice of Change of

25 November, 2004 Lawyers for the applicant and date of O’Brien’s Lawyers letter to the Attorney-General and Solicitor-General enquiring if the plaintiff had issued the s. 5 notice.

(x) 31 January, 2005 - Date of Stevens Lawyer’s letter advising that it will act as Goroka Town Agents for O’Briens Lawyers.

(xi) 18 April, 2005 - Stevens Lawyers filed an Amended Notice of Motion for and on behalf of the applicant seeking to dismiss proceedings, amongst others.

(xii) 1 September, 2005 - Date of Notice of Withdrawal of Stevens Lawyers Amended Notice of Motion.

(xiii) 27 January, 2006 - Date of Stevens Lawyer’s letter to O’ Briens Lawyers, returning O’ Briens Lawyer’s file.

(xiv) 9 May, 2006 - Date of plaintiff’s lawyer’s letter to the Acting Principal Clerk, National Court, Goroka requesting that a trial date be given for the hearing of the assessment of damages.

(xv) 25 October, 2004 - Period during which O’ Briens Lawyers sent 8

to 21 July, 2006 letters to Solicitor General and Attorney-General’s Office, requesting if Attorney General or Solicitor General had sighted letters from the plaintiff giving the s. 5 Notice and if such a letter had not been received, that the Attorney-General or Solicitor General should swear an affidavit, deposing to that.

(xvi) 25 May, 2006 - Date of O’Briens Lawyer’s letter to Narokobi Lawyers advising of its intention to refile the application to dismiss proceedings for and on behalf of the applicant Provincial Government.

(xvii) 31 July, 2006 - Date Attorney-General and A/Solicitor

& 31 August 2006 General respectively, swore their affidavits deposing that the plaintiff had not given the s. 5 notice.

(xviii) 21 September, 2006 - Date of letter from Acting Principal Clerk, National Court, Goroka to Narokobi Lawyers advising that they attend the Goroka National Court call-over.

(xix) 30th May, 2006 to - Period during which 2 letters were sent from

8th December, 2006 Narokobi Lawyers to O’Briens Lawyers advising that they wished to proceed to trial. Application to the Court to have the matter listed for trial was served upon Mr. Asimba of O’ Briens Lawyers, lawyer with carriage of the matter for and on behalf of the applicant. The affidavit of service of Mr. John Yapen sworn on 21st November 2006 and filed on 12th December 2006 deposes to service upon O’ Briens Lawyers.

(xx) 6 December, 2006 - Letter from Narokobi Lawyers to O’ Briens Lawyers advising of the date when the application to list for hearing will be heard at the National Court Goroka. The application was scheduled for 14th December, 2006.

(xxi) 14 December, 2006 - O’ Briens Lawyers did not appear at the hearing of the application. Narokobi Lawyers applied to the Court and obtained orders for the matter to go to hearing for assessment for damages. The matter was referred to the listings Court for a trial date to be allocated.

(xxii) 18 May, 2007 - Narokobi Lawyers appeared before the National Court Goroka to obtain a trial date but the matter was further adjourned to the August 2007 call-over for listings.

(xxiii) 20 May, 2007 - Narokobi Lawyers received Notice of Motion and supporting affidavits, in support of the...