Koi Antonius v Fantson Yaninen Administrator of East Sepik Province and Chairman of Liquor Licensing Board and East Sepik Provincial Government (2004) N2774

• Jurisdiction: Papua New Guinea
• Judge: David AJ
• Judgment Date: 26 November 2004
• Court: National Court
• Citation: (2004) N2774
• Docket Number: WS No 943 of 2003
• Year: 2004
• Judgement Number: N2774

Full Title: WS No 943 of 2003; Koi Antonius v Fantson Yaninen Administrator of East Sepik Province and Chairman of Liquor Licensing Board and East Sepik Provincial Government (2004) N2774

National Court: David, AJ

Judgment Delivered: 26 November 2004

N2774

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

WS NO. 943 OF 2003

BETWEEN:

KOI ANTONIUS

Plaintiff

AND:

FANTSON YANINEN

ADMINISTRATOR OF EAST SEPIK PROVINCE AND

CHAIRMAN OF LIQUOR LICENSING BOARD

First Defendant

AND:

EAST SEPIK PROVINCIAL GOVERNMENT

Second Defendant

WEWAK: DAVID, AJ

2004: 24th, 26th November

PRACTICE AND PROCEDURE – application for default judgment for failure to give discovery – cross-application to dismiss writ of summons – no notice under Section 5 of the Claims by and Against the State Act 1996 – notice is condition precedent to proceedings against the State – Supreme Court enunciation that “State” includes provincial governments and its arms and agencies delivered after cause of action arose – conduct of the defendants to defend proceedings does not amount to waiver of their right to raise objection for lack of notice - enunciation has retrospective effect– entire proceedings dismissed – costs a discretionary matter – conduct of defendants considered – parties bear own costs.

Cases cited:

The State v. Bisket Uranguae Pokia (1980) PNGLR 97

The Ship “Federal Huron” v. Ok Tedi Mining Ltd (1986) PNGLR 5

Reservation pursuant to Section 15 Supreme Courts Act, SCR 1 of 1998 (2001) SC.672

Pato v. Enga Provincial Government (1995) PNGLR 469

Pupune v. Makarai (1997) PNGLR 622

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Paul Tohian, Minister for Police and the State v. Tau Liu (1998) SC.566

Milne Bay Provincial Government v. Roy Evara and the State (1981) PNGLR 63.

Karl Paul v. Aruai Kispe & PNG Forest Authority (2001) N2085

Paul & Mary Bal v. State (2003) N2481

Treid Pacific (PNG) Limited v. Eastern Highlands Provincial Government, WS No. 1052 of 2000, Unreported, 24th June 2004

Sarakuma Investment Limited trading as Wabusa Mini Tavern v. East Sepik Provincial Government & Ors (2004) N2621

Counsels:

J Apo for the Plaintiff

J Alman for the Defendants

RULING

INTRODUCTION

The Plaintiff filed an application by way of Notice of Motion filed on 10th November 2004 seeking orders pursuant to Order 9 Rule 15 of the National Court Rules (“the NCR”) that the Defendants’ defence and notice of intention to defend be struck out and that default judgment be entered against the Second Defendant and further that the matter be set down for trial for damages to be assessed plus costs against the Second Defendant. The Defendants filed a cross-application by way of their Notice of Motion filed on 18th November 2004 seeking orders that the Writ of Summons be dismissed on the basis that the Plaintiff did not give notice under Section 5 of the Claims by and Against the State Act 1996 (“the Claims Act”) or in the alternative the matter be set down for trial.

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BACKGROUND

On 7th July 2003, the Plaintiff issued a Writ of Summons against the Defendants. The Plaintiff’s claim against the First Defendant is in the latter’s capacity as the Provincial Administrator of the East Sepik Province who is also the Chairman of the East Sepik Liquor Licensing Board (“the Board”).

The Plaintiff alleges that from 1992 to 1998, he was carrying on a business known as Sachondai Tavern in Wewak. On or about 18th September 1998, the Plaintiff applied to the Board for the renewal of his liquor trading licence for that business and paid the appropriate fee. His application was refused on 16th November 1998 on the basis that the tavern was too close to the road and that road users had experienced alcohol related incidents near the tavern in the past. The application fee was refunded on 18th August 1999. The Plaintiff further alleges that the refusal to re-issue a liquor licence had no basis and was in breach of the East Sepik Provincial Liquor Licensing Act 1980 (“the Liquor Licensing Act”). Because the liquor licence was not re-issued, the Plaintiff claims that he was not able to operate his business and has thereby suffered substantial financial loss and damage. The Plaintiff alleges that the Defendants are vicariously liable for the actions of the Board and claims against them the sum of K500,000.00, damages, interest and costs.

The Plaintiff served the Writ of Summons upon the First Defendant by delivering a copy of the same to the First Defendant’s Secretary at the First Defendant’s Office on 10th July 2003. The Plaintiff served the Writ of Summons upon the Second Defendant by delivering a copy of the same to John Alman, Provincial Legal Officer for the East Sepik Provincial Government on 10th July 2003.

On 11th July 2003, John Alman filed a Notice of Intention to Defend and a Notice of Appearance on behalf of the Defendants

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The Defendants filed their Defence on 1st August 2003 stating in essence that the refusal to re-issue the licence was subject to the Plaintiff relocating the tavern and the loss he alleges to have suffered was his own making and they deny any liability at all. The Defendants also state that the Plaintiff commenced relocating the tavern to another location in January 2002 and after two (2) inspections, the Board finally re-issued a licence to the Plaintiff on 22nd November 2002 to commence trading from 1st October 2002 and expiring on 30th October 2003.

On 12th August 2004, the Plaintiff filed a Notice of Discovery requiring the Second Defendant to give discovery of documents with verification within fifteen (15) days of service. That notice was served upon the Second Defendant on 18th August 2004 and the Second Defendant has failed to give discovery as requested.

There is no dispute that the Plaintiff did not serve a notice under Section 5 of the Claims Act.

ISSUES

I consider the pertinent issues to be:-

1. Whether the conduct of the Defendants is such that they have waived their right to raise the objection of lack of notice under Section 5 of the Claims Act at this stage of the proceedings?;

2. Whether the decision of the Supreme Court enunciating that the term “State” in the Claims Act includes provincial governments and its arms and agencies has a retrospective operation which would require claimants to give notice under Section 5 of the Claims Act where a cause of action arose prior to the date of the decision?;

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3. Whether default judgment be entered against the Second Defendant having defaulted to give discovery?.

LAW

I will firstly deal with Issues 1 and 2 together and then the last issue which will be determined by my ruling on the first two (2) issues.

The term “State” in the Claims Act applies and extends to Provincial Governments and its arms and agencies: Reservation pursuant to S.15 Supreme Court Act, SCR No.1 of 1998 (2001) SC672. This decision was delivered by the Supreme Court on 8th November 2001. By this decision, the view expressed by His Honour Injia, J (as he then was) in Pupune v. Makarai (1997) PNGLR 622 that the term “State” included Provincial Governments and Local Level Governments was approved. His Hounour Kapi, DCJ, as he then was, had previously expressed the opposite view in Pato

v. Enga Provincial Government (1995) PNGLR 469 that the term “State” only included the National Government, or an arm, department, agency or an instrumentality of the National Government which did not include Provincial Governments.

All claims by and against the State are governed by the Claims Act. Section 5 of the Claims Act provides as follows:-

“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:-

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

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

(c) within such 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 an officer referred to in Subsection (1); or;

(a) 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 7:45am and 12 noon, or

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(a) 1.00pm and 4.06pm, 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, or any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).”

For a claim against the State to stand, notice under Section 5 of the Claims Act which must be in writing and containing sufficient details of an intended claim must be served on the officers specified in Subsections (1)(a) and (b) of that section in accordance with the mandatory method of service under Subsection 3 of that section...