John Kami v Department of Works and The Independent State of Papua New Guinea (2010) N4144

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Davani J
• Judgment Date: 01 October 2010
• Citation: (2010) N4144
• Judgment Number: N4144
• Year: 2010
• Docket Number: WS NO. 497 OF 1998

Full Title: WS NO. 497 OF 1998; John Kami v Department of Works and The Independent State of Papua New Guinea (2010) N4144

National Court: Davani J

Judgment Delivered: 1 October 2010

N4144

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 497 OF 1998

BETWEEN:

JOHN KAMI

Plaintiff

V

AND:

DEPARTMENT OF WORKS

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Wewak: Davani .J

2010: 22nd September

1st October

PRACTISE AND PROCEDURE – What are the requirements of a s.5 Notice, discussed – s.5 Claims By and Against the State Act 1996

BUSINESS NAME – Who can sue – the proper plaintiff test, discussed – ss.2, 3, 4, 25 of Business Names Act 1963

BUSINESS NAME – Individual suing for losses suffered by business – Business should be suing, not the person or individual

Facts

Plaintiff filed a Writ of Summons and Statement of Claim on or about 2nd June, 1998. On 9th December, 1998, the plaintiff then filed a purported Notice under s.5 of the Claims By and Against the State Act.

The plaintiff is also suing as an individual when the claim is for losses suffered by a business.

Issues

1. Was proper notice under s.5 of the Claims By and Against the State Act given within the mandatory 6 months period from when the cause of action arose?

2. Is the plaintiff the proper plaintiff to sue considering the losses were suffered by a business rather than an individual?

Reasoning

1. Notice was not issued within the 6 months period from when the cause of action arose. The Notice that was issued, was filed after the Writ of Summons and Statement of Claim was filed, therefore is defective and irregular.

2. The named plaintiff is not the proper plaintiff to sue because it is the business name that should be suing as the losses were allegedly suffered by it.

Orders

1. The claim is dismissed in its entirety.

2. Each party to pay their own costs of the proceedings.

Case Cited:

Papua New Guinea cases

Ruth Kaurigova v Dr Russo Perone & ors [2008] PGNC 45; SC964;

Dennis McEnroe v Felix Mou [1981] PNGLR 222;

Graham Rundle v Motor Vehicle Insurance (PNG) Trust No 1 [1988] PNGLR 20;

MVIT v Dixon Popo (1992) N1048;

A.G.C (Pacific) Limited v. Woo Textile International Ltd [1992] PNGLR 100; N1061;

Joy Kawai, an infant by her next friend Kawai Takame v Motor Vehicles Insurance (PNG) Trust (1998) SC588;

MVIT v Insurance Commissioner (1998) PGNC 33; N1725;

Kamapu Minato v Philip Kumo & The State [1998] PGNC 102; N1768;

Paul Tohian & ors v Tau Liu (1998) PNSC 25; SC566;

William Trnka v The State (2000) PGNC10 N1957;

John Bokin v Sergeant Paul Dana & 2 Ors (2001) N2111;

Olympic Stationery Limited trading as PNG Stationery and Office Supplies v The State [2001] PGNC 24; N2194;

Daniel Hewali v Papua New Guinea Police Force [2002] PGNC 95; N2233;

Dickson Muniakali v Motor Vehicles Insurance Ltd [2004] PGSC 10; SC764;

Philip Benjamin v. Department of Works & The Independent State of Papua New Guinea (2005) N2874;

State & 3 Ors v Brian Josiah & 80 Ors [2005] PGSC 18; SC792;

Getrude Genaboro & Sina Genaboro v Andrew Wawia & The State [2006] PGNC 23; N3046;

William Wrondimi & Ors v Alphones Vokene (2007) N3148;

JA Construction Ltd v Ipisa Wanega & 2 Ors (2007) PGNC 73; N3243;

Nicholas Namba and Daniel Maip v. Mondo & 3 ors [2008] PGNC 15; N3288;

Bernard Uriap v Simon Tokivung & & 3 Ors [2008] PGNC 119; N3444;

Jerry Kusa v Stephen Raphael, Acting Secretary Department of Defence & 2 Ors [2008] PGNC 34; N3304;

Nicholas Regglie v Director General National Narcotics Bureau & 2 Ors [2009] PGNC 187; N3805;

Leo Sangundi and 523 Others –v- Sakwar Kasieng, Gari Baki and the State, WS. No. 99 of 2009, Batari J, (2009);

John Sil Kama & 302 others –v- Timothy Mataro & State: WS No. 432 of 2005 (Unreported, 9th & 16th October, 2009).

Overseas Cases

Foss v. Harbottle [1843] 2 Hare 461 ch 12 LJ 319;

Hansard Spruce Mills Ltd (1954) 4 D.L.P. 590;

Overseas Cases

Counsel:

Mr D. Wa’au, for the plaintiff

Mr. S. Koim, for the first and second defendants

DECISION

1st October, 2010

1. DAVANI .J: Before me for trial on both liability and quantum is the plaintiff’s claim based on a Writ of Summons and Statement of Claim filed in the National Court, Wewak on or about 2nd June, 1998. A supplementary file was created on 12th August, 2009 based on documentation in the plaintiff’s possession because the original Court file was apparently destroyed when the Wewak Court House was burnt down a few years ago.

Background

2. The Writ of Summons and Statement of Claim pleads a claim for loss of business including general damages, interest and costs which arose as a result of the Department of Works moving the plaintiff’s shop or tradestore to enable the extension and sealing of the Kaindi/Wariman Road, Wewak.

Issues

3. The issues for determination before me are the following;

(i) Whether the plaintiff properly issued s.5 Notice under the Claims By and Against the State Act 1996 (‘CBASA’), prior to filing the action in Court?

(ii) Whether the plaintiff named as “John Kami” is the proper plaintiff to sue in these proceedings?

Analysis of evidence and the law

4. The issues raised above are threshold or preliminary issues that must be determined before the Court proceeds to assessing the aspects of both liability and quantum. In the event the Court finds that s.5 Notice was not issued or was not properly issued, the claim will fail. Also, if the Court finds that the named plaintiff is not the proper plaintiff to sue, the Court can make certain orders, one of which is also to dismiss the proceedings.

5. Having said that, I will proceed to deal firstly with the first issue.

(i) First Issue - Whether the plaintiff properly issued s.5 Notice under the Claims By and Against the State Act 1996 (‘CBASA’), prior to filing the action in Court?

6. Section 5 of the CBASA reads;

“5. Notice of claims against the State

(1) No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this section by the claimant to –

(a) The Departmental Head of the Department responsible for justice matters; or

(b) The Solicitor-General.

(2) A notice under this section shall be given –

(a) within a period of six months after the occurrence out of which the claim arose; or

(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or

(c) within such further period as –

(i) the Principal Legal Adviser; or

(ii) the court before which the action is instituted,

on sufficient cause being shown, allows.

(3) A notice under Subsection (1) shall be given by –

(a) personal service on the officer referred to in Subsection (1); or

(b) leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act 1953.

7. The Supreme Court has held that a s. 5 Notice is a condition precedent to the commencement of proceedings: Paul Tohian & Ors v Tau Liu (1998) SC566, adopted and applied in William Wrondimi & ors v Alphons Vokene (7th February, 2007) N3148.

8. A notice which complies with the requirements of s.5 gives the State early notice of a proposed claim, thus enabling preliminary inquiries to be made and instructions to be obtained in order to either defend the proceedings or settle the matter.

9. The originating process is the claim: Graham Rundle v Motor Vehicle Insurance (PNG) Trust No 1 [1988] PNGLR 20. It follows that the s.5 Notice must precede the commencement of proceedings. Uriap v Tokivung [2008] PGNC 119; N3444 (11th July, 2008) and JA Construction Ltd v Wanega [2007] PGNC 73; N3243 (29th November, 2007) per Davani. J, are cases where proceedings were dismissed because the Writ of Summons was issued prior to the issuance of a s.5 Notice. Further, a notice given on the same day as the filing of the Originating Process is improper notice (see Olympic Stationery Limited trading as PNG Stationery and Office Supplies v The State [2001] PGNC 24; N2194 (15th August, 2001) where the Court dismissed the proceedings when the Notice and the Originating Summons were served on the State on the same day).

10. The requirements of a s.5 Notice are that;

· it must be written

· it must contain sufficient particulars

· it must be personally served

· it must be served on one of the specified persons

· it must be given within 6 months

· the claim to which the notice relates should not be statute-barred

11. The notice must be written; S.5(1) provides that notice must be in written form. The CBASA does not state the type or form of the document, only that the notice must be in writing. Sometimes the notice is set out in the form of a court document. Often, it is usually in the form of a letter.

12. The notice must contain sufficient particulars; The CBASA does not specify or state the particulars to be included in a s.5 Notice....