John Kunda v Southern Highlands Provincial Government and The Independent State of Papua New Guinea (2009) N3775

• Jurisdiction: Papua New Guinea
• Judge: Makail J
• Judgment Date: 26 June 2009
• Court: National Court
• Citation: (2009) N3775
• Docket Number: WS NO 27 OF 2006
• Year: 2009
• Judgement Number: N3775

Full Title: WS NO 27 OF 2006; John Kunda v Southern Highlands Provincial Government and The Independent State of Papua New Guinea (2009) N3775

National Court: Makail J

Judgment Delivered: 26 June 2009

N3775

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 27 OF 2006

BETWEEN

JOHN KUNDA

Plaintiff

AND

SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT

First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Mount Hagen: Makail J,

2009: 12th & 26th June

PRACTICE & PROCEDURE - Application to dismiss proceeding for want of notice of claim - Civil proceeding against a Provincial Government and the State - Two separate defendants and legal entities - Whether application to dismiss applies to the State - Application upheld for Provincial Government only - Proceeding dismissed against Provincial Government only - Organic Law on Provincial Governments and Local Level Governments - Sections 6, 7 & 10 - Constitution - Sections 1, 187A & 247 - Claims By and Against the Southern Highlands Provincial Government Act 2000 - Section 4 - Claims By and Against the State Act 1996 - Section 5.

Facts:

A former mayor of Mendi Urban Town Authority and Assembly member and Chairman of Community Services commenced proceeding against two Defendants, one a Provincial Government and the other, the State claiming unpaid salaries, allowances and other entitlements whilst serving in those various capacities. The First Defendant moved a motion to dismiss the proceeding against it on the ground that the notice requirements of the laws regulating claims by and against it had not been complied with. The Second Defendant supported the motion and sought to have the proceeding also dismissed against it on the same ground.

The First Defendant argued that no notice of claim was given to the Provincial Administrator or his personal secretary in compliance with section 4 of the Claims By and Against the Southern Highlands Provincial Government Act 2000. The Second Defendant argued that the substance of the Plaintiff’s claim is against the First Defendant and if the proceeding is dismissed against the First Defendant, there will be no claim against the Second Defendant, therefore, the proceeding be dismissed against it too.

Held:

1. The First Defendant and the Second Defendant are two different and separate legal entities because they are established or created by two different legislations, the former under sections 6 and 10 of the Organic Law on Provincial Governments and Local Level Governments and the latter, sections 1 and 247 of the Constitution.

2. Two separate notices of claim are required to be given; one to the First Defendant under section 4 of the Claims By and Against the Southern Highlands Provincial Government Act 2000 and the other, to the Second Defendant under section 5 of the Claims By and Against the State Act 1996.

3. As no notice of claim was given to the Provincial Administrator or his personal secretary, section 4 of the Claims By and Against the Southern Highlands Provincial Government Act 2000 was breached and the proceeding against the First Defendant was dismissed.

4. The Second Defendant cannot rely on the application of the First Defendant to dismiss the proceeding for want of notice of claim under section 4 of the Claims By and Against the Southern Highlands Provincial Government Act 2000.

5. As the Second Defendant had not filed and moved an application to dismiss the proceeding against it for want of notice of claim under section 5 of the Claims By and Against the State Act 1996 or for not disclosing a cause of action against it, the proceeding was not dismissed against it.

Cases cited:

Papua New Guinea Cases

Wellcos Engineering Limited -v- Southern Highlands Provincial Government & the State: WS No 959 of 2006 (Unnumbered & Unreported Judgment of 21st May 2008)

John Wasis & Ors -v- Southern Highlands Provincial Government & the State: WS No 472 of 2006 (Unnumbered & Unreported Judgment of 14th November 2008)

SCR No 1 of 1998: Reservation Pursuant to s 15 of the Supreme Court Act (2001) SC 672

Koi Antonius -v- Fanston Yaninen & East Sepik Provincial Government (2004) N2774

Sarakuma Investment Limited -v- Peter Merkendi & East Sepik Provincial Government (2004) N2629

Counsel:

No appearance for Plaintiff

Mr T. Dalid, for First Defendant/Applicant

Ms A. Doa, for Second Defendant

26th June, 2009

RULING

1. MAKAIL J: The Plaintiff is a former mayor of Mendi Urban Town Authority and also former Assembly member and Chairman of Community Services from 1995 to May 2003. He alleged that while he was serving in those various capacities, the First Defendant failed to pay him some of his salaries, allowances and other service entitlements. Even after he finished work in May 2003, the First Defendant still failed to pay him. He commenced this proceeding against the First Defendant and the Second Defendant on 23rd January 2006 to claim unpaid salaries, allowances and entitlements totaling K257,944.22.

2. The First Defendant claims that the Plaintiff did not give a notice of claim to the Administrator of the First Defendant prior to commencing this proceeding. It says that such a notice is a precondition to claim against the First Defendant under section 4 of the Claims By and Against the Southern Highlands Provincial Government Act 2000, (referred herein to as “CB&ASHPG Act”). As a result it brings this application by its Notice of Motion filed on 10th October 2008 seeking an order to dismiss the entire proceeding for want of notice of claim under section 4 of the CB&ASHPG Act. The Second Defendant supports the application of the First Defendant.

3. Section 4 of the CB&ASHPG Act states:

“4 NOTICE OF CLAIM AGAINST THE SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT.

(1) No action to enforce any claim against the Southern Highlands Provincial Government lies against the Southern Highlands Provincial Government unless notice in writing of intention to make a claim is given in accordance with this section by the claimant to the Administrator of Southern Highlands Province.

(2) A notice under this section shall be given:-

(a) within a period of six (6) 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(6) months after the claimant became aware of the alleged breach; or

(c) within such further period as -

(i) the Administrator upon advice; or

(ii) the court before which the action is to be instituted on sufficient cause being shown, allows,

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

(a) personal service on an 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 9:00 am and 12:00 noon on a Friday which is not a public Holiday declared under the Public Holiday Act (Chapter 321)”.

3. In support of the application, the First Defendant relies upon the Affidavit of William Powi sworn on 2nd October 2008 and filed on 24th October 2008. Mr Powi deposes inter alia in paragraph 4 that neither he nor his personal secretary received a notice of claim from the Plaintiff and so he believes that the Plaintiff did not give a notice of claim to the First Defendant prior to commencing this proceeding.

4. The First Defendant also relies on the Affidavit of Barclay Tenja sworn on 17th March 2009 and filed on 10th June 2009 where he deposes in paragraphs 3, 4, 5 & 6 that first, he worked for the First Defendant for more than 15 years and one of his duty is to maintain proper records of litigation matters including section 4 notices for the First Defendant and secondly, upon being instructed by the Provincial Administrator Mr Powi to conduct a search of the records to find out if the Plaintiff had given notice of claim to the First Defendant in relation to his unpaid entitlements, he did so.

5. He did so by conducting a thorough search of all the manual and electronic records of documents received by the First Defendant and found no written notice of claim in relation to the Plaintiff’s claim directed to the Provincial Administrator. As a result, he believes that the Plaintiff did not give a notice of claim to the First Defendant prior to commencing this proceeding.

6. Although the Plaintiff was served the Notice of Motion and supporting Affidavits and also verbally advised of the hearing date of the application by Mr Barclay Tenja at his Wakwak village, just outside Mendi town on 10th June 2009, he did not attend the hearing. As a result, the Court did not receive any submissions from him in respect of the application. See Affidavit of Barclay Tenja sworn and filed on 11th June 2009.

7. That being the case, there is un-controvertible evidence by the First Defendant that neither the Provincial Administrator nor his personal secretary were served with a notice of claim in respect of the claim by the Plaintiff prior to the commencement of this proceeding. I conclude therefore that, the Plaintiff did not give notice of his claim to the First Defendant before...