Kay Genaboro, Getrude Genaboro an Infant by Her Next Friend Kay Genaboro and Sina Genaboro an Infant by Her Next Friend Kay Genaboro v Andrew Wawia and The Independent State of Papua New Guinea (2006) N3046

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Davani J
• Judgment Date: 05 April 2006
• Citation: (2006) N3046
• Judgment Number: N3046
• Year: 2006
• Docket Number: WS No 754 of 1999

Full Title: WS No 754 of 1999; Kay Genaboro, Getrude Genaboro an Infant by Her Next Friend Kay Genaboro and Sina Genaboro an Infant by Her Next Friend Kay Genaboro v Andrew Wawia and The Independent State of Papua New Guinea (2006) N3046

National Court: Davani J

Judgment Delivered: 5 April 2006

N3046

IN THE NATIONAL COURT OF

JUSTICE AT GOROKA

PAPUA NEW GUINEA

WS NO. 754 of 1999

BETWEEN:

KAY GENABORO

First Plaintiff

AND:

GETRUDE GENABORO an infant by her Next Friend KAY GENABORO

Second Plaintiff

AND:

SINA GENABORO an infant by her Next Friend KAY GENABORO

Third Plaintiff

AND:

ANDREW WAWIA

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Davani, .J

2005: 25 November

2006: 5 April

Practice and Procedure – Dependency claim – proceedings statute-barred – extension of time for notice period only – Time period within which to file an action, mandatory – s. 31 Wrongs (Miscellaneous) Provisions Act Chap. 297.

Practice and Procedure – Action against the State – extension of time to give notice – Notice must be given within extended period – proceedings to be filed, thereafter – s. 5 Claim By and Against the State.

Cases cited:

?Paul Tohian, Minister for Police and the Independent State of Papua New Guinea v Tau Liu (1998) SC 566;

Counsel:

K. Pilisa for the plaintiffs

P. Palme for the defendants/Applicants

RULING

5th April, 2006

Davani .J: Before me is amended Notice of Motion filed on 21st November, 2005, by Paraka Lawyers, for the defendants. The motion seeks orders that the proceedings be dismissed because the action by the plaintiffs is ‘time barred’, application made pursuant to s. 31 of the Wrongs (Miscellaneous) Provisions Act Chap. 297 (‘Wrongs Act’). The motion also seeks orders that the proceedings be dismissed for the plaintiffs failure to issue s. 5 Notice under the Claims By and Against the State Act (‘Claims Act’).

Background and facts

The first, second and third plaintiffs are the widow and two (2) children, respectively, of Isaac Genaboro (‘Deceased’) who died after he was allegedly shot by policemen under the command of the first and second defendant. This incident occurred on 14th December, 1995, at the Asaro Valley, Watabung in the Eastern Highlands Province. The plaintiffs claim is for damages and losses they suffered as a result of the deceaseds death, and which death was as a result of the defendants alleged negligence.

Application

This matter came before me on several occasions because Mr Pilisa had told the court on the first occasion he appeared, that the National Court, Waigani, had extended time for the plaintiffs to file their action. He said that was why he filed the Writ of Summons and Statement of Claim. On 26th August, 2005, I then ordered that Mr Pilisa produce to the court the application that was filed in Waigani seeking the extension of time. This he did, attached to his affidavit sworn on 24th November, 2005. The proceedings are described as OS 277 of 1999. Together with the Originating Summons is the supporting affidavit of Emily Dirua, lawyer, sworn on 3rd June, 1999 and filed on 9th June, 1999.

In that application, which was filed on 3rd June, 1999, at the National Court Waigani, the plaintiffs former lawyer applied ex-parte before Justice Los seeking the following orders, as pleaded in the Originating Summons, “Leave of court for extension of time to make a claim against the “third respondent” who in those proceedings was the Independent State of Papua New Guinea.

Without the benefit of that court file, I am unable to ascertain if the application was served on the defendants or not. Mr Pilisa is also unable to assist the court. However on perusal of Los .J’s written ruling of 15th July 1999, I note the appearances of Mr Iwai’s for the respondents and Ms E. Dirua for the plaintiffs.

Los’ .J’s ruling is very important for the purposes of determining whether the extension of time was for the issuing of the s. 5 notice (CBASA) or to issue proceedings i.e to file Writ of Summons and Statement of Claim.

It is important for this court to ascertain the basis on which Los .J ordered the extension of 28 days because this would then determine whether the 28 days extension was to give notice under the CBASA or to file Writ of Summons and Statement of Claim. His Honour Los .J states in his ruling;

“The applicants in both matters apply for an order extending time to issue proceedings against the respondents. The time limit is imposed by Claims By and Against the State section 5 (1) (2) …

…

The State has objected to the application on the ground of lapse of time. That is to say the alleged events have happened a long time ago and it would be difficult for the State to investigate and collect evidence to defend these claims. It was explained on behalf of the applicants that it was an oversight by a junior lawyer that proceedings were not issued while the senior lawyer was out on election business.

…

Further, great injustice may be caused for technical reasons the applicants are prevented from seeking redress before the court. I therefore order that an extension of 28 days be given to issue the proceedings”.

The Writ of Summons and Statement of Claim in these proceedings was filed on 16th July, 1999, a day after the ruling. The issue then is, was notice given under s. 5 of the CBASA, before proceedings were issued? In my view, it is clear that Los .J’s ruling is in relation to issue of the s. 5 notice because he makes specific reference to that section in his ruling.

So obviously, the plaintiffs lawyers should firstly have given notice within the extended period. But he did not do that.

Are there any materials before me that would assist in determining this issue? Mr Pilisa referred me to his affidavit sworn and filed on 26th August, 2005, where he states at pars. 4 and 5;

“4. The ruling specifically states that leave is granted to the plaintiffs to issue proceedings within 28 days and the plaintiff commenced this action within the 28 days ordered by the court.

5. In addition to above his Honour Justice Batari has made a ruling accepting substantive compliance with section 5 Notice under the Claims By and Against the State Act in the proceedings relating to the plaintiff Peter Mombulo”.

Despite repeated questioning by the court on the production of an order or decision from Batari .J’s court in relation to the s. 5 notice, Mr Pilisa was unable to assist the court. But the obvious fact is that if s. 5 notice was issued concerning the incident of 12th December, 1995, then that letter must be attached to an affidavit and put before the court to show that the mandatory preliminary procedures in relation to claims against the State have been complied with, in this case, service of the s. 5 Notice. This is referred to in s. 5 (3) (a) (b) of the CBASA where service of the notice must be by personal service. So because there is an issue now in relation to non-compliance with issuance of that notice, the onus is upon the plaintiff to produce that notice. The court cannot rely on a statement in an affidavit which does not even prove compliance with s. 5 of the CBASA.

I note also that in its Defence filed on 28th September, 1999, the third defendant through the Office of Solicitor-General specifically pleaded lack of notice under ss. 5 and 21 of the CBASA and s. 31 of the Wrongs Act, that the claim is statute-barred. So the plaintiffs and their lawyers have known for sometime that this issue would definitely rise as a preliminary issue either at trial or on a motion hearing, and should have then ensured that this letter was sent to the State and a copy filed in the court file. But they did not do that.

Furthermore, it appears the plaintiffs former lawyer was under the misapprehension that they could file proceedings without first giving notice but after reading Ms Emily Dirua’s affidavit which was filed in support of the application for extension of time, I find that not to be the case. Her affidavit sworn on 3rd June, 1999 and filed on 9th June, 1999 in proceedings OS 277 of 1999 states;

“10. I then obtained instructions from his relatives and wife to issue proceedings which I did but which was struck out due to no notice given to the State to claim;

11. I have written to the Principal Legal Adviser of the third respondent to grant an extension of time but he has refused;

12. Although the proceedings are difficult it all occurred as a result of one act by the Police. If anything it was an oversight by the Lawyers and I pray that this Honourable court grant extension of time for the villagers to claim.”

The affidavit demonstrates that Ms Dirua was applying for an extension of time to give notice. And this the court granted – a 28 day extension.

There is affidavit before me sworn by Tau Tau, on 21st November, 2005, Professional Legal Assistant with the Solicitor-General’s office,...