Mickey Kaip Wassey, By His Next Friend Tumu Andake v Felix Rangit Aigilo, John Karl, Ines Steven, Tio Neasingu, Joseph Kupo and The Independent State of Papua New Guinea (2005) N2876

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 12 August 2005
• Court: National Court
• Citation: (2005) N2876
• Year: 2005
• Judgement Number: N2876

Full Title: Mickey Kaip Wassey, By His Next Friend Tumu Andake v Felix Rangit Aigilo, John Karl, Ines Steven, Tio Neasingu, Joseph Kupo and The Independent State of Papua New Guinea (2005) N2876

National Court: Cannings J

Judgment Delivered: 12 August 2005

N2876

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 317 OF 2002

MICKEY KAIP WASSEY, BY HIS NEXT FRIEND

TUMU ANDAKE

Plaintiff

V

FELIX RANGIT AIGILO, JOHN KARL,

INES STEVEN AND TIO NEASINGU

First Defendants

JOSEPH KUPO

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

KIMBE : CANNINGS J

15 JULY, 12 AUGUST 2005

RULING ON MOTION

Practice and procedure – application to strike out proceedings – Claims By and Against the State Act, Section 5 – whether notice of intention to make claim given in accordance with statutory requirements – onus of proof.

Practice and procedure – application for leave to file amended defence – National Court Rules, Order 8, Rule 50 – relevant considerations.

The plaintiff claimed damages for being unlawfully assaulted by the first defendants, who are police officers based in Kimbe. He claims that the second defendant, who was at the time the Commissioner of Police, and the third defendant, the State, are vicariously liable for the actions of the police officers. The plaintiff gave notice of his intention to make a claim within six months after the date of the incident in which he was allegedly assaulted. However, the defendants maintain that service was not effected in accordance with the Claims By and Against the State Act. The defendants brought a motion to strike out the proceedings or, in the alternative, obtain leave to file an amended defence.

Held:

(1) A defendant who moves the court to strike out proceedings for non-compliance with any rule of practice or procedure bears the onus of proving the circumstance of non-compliance relied on. Theresa’s Pty Ltd and PNGBC v Rio Vista Pty Ltd [1998] PNGLR 283 and Grace Lome v Allan Kundi (2004) N2776 followed.

(2) In this case that onus was not discharged. There was sufficient circumstantial evidence to show that the plaintiff had served notice of intention to make his claim against the State within the time and in the manner prescribed by Section 5 of the Claims By and Against the State Act.

(3) Section 5 must be interpreted and applied in a way that promotes the dispensation of justice. Where proceedings against the State have been on foot for a considerable time, the benefit of any reasonable doubt as to compliance with the Claims By and Against the State Act should be given to the plaintiff.

(4) The motion to dismiss the proceedings was accordingly refused.

(5) The defendants were granted leave to file an amended defence.

Cases cited

The following cases are cited in the judgment:

Bokin v The Independent State of Papua New Guinea (2001) N2111

Grace Lome v Allan Kundi (2004) N2776

Hewali v Police Force and The State (2002) N2233

Jack Voivoi v The State, unreported, WS No 1239 of 2004, 07.05.05

John Pias v Michael Kodi (2004) N2690

Marinda v The State (1991) N1026

Michael Kewa v Elias Mai Kombo (2004) N2688

Minato v Kumo and The State (1998) N1768

The Papua Club Inc v Nusaum Holdings Ltd and Others (2002) N2273

Theresa’s Pty Ltd and PNGBC v Rio Vista Pty Ltd [1998] PNGLR 283

Tohian and The State v Tau Liu (1998) SC566

Abbreviations

The following abbreviations are used in the judgement:

PNG – Papua New Guinea

PNGBC – Papua New Guinea Banking Corporation

RPNGC – Royal Papua New Guinea Constabulary

NOTICE OF MOTION

This was an application on notice seeking dismissal of proceedings or, in the alternative, leave to file an amended defence.

Counsel

A Asan for the defendants

S Lupalrea for the plaintiff

CANNINGS J:

INTRODUCTION

This is an application by the defendants to strike out proceedings commenced by the plaintiff on the ground of non-compliance with Section 5 of the Claims By and Against the State Act. In the alternative they seek leave to file an amended defence.

BACKGROUND

In the substantive case the plaintiff, who claims to be an infant, is seeking damages against the defendants for injuries, pain and suffering he says he incurred as a result of being unlawfully assaulted by the first defendants, who are officers of the Police Force based in Kimbe. The alleged assault occurred in Kimbe on 2 January 2002 when the first defendants allegedly hit the plaintiff on his head with the butt of a gun and a concrete brick.

On 12 March 2002 the plaintiff’s adopted father, Tumu Andake, wrote a letter to the Office of Solicitor-General in the following terms:

Dear Sir

RE NOTICE OF INTENTION TO MAKE A CLAIM AGAINST A STATE [SIC], MICKEY KAIP WASSEY, POLICE ASSAULT, 2 JANUARY 2002

I write to inform you of my intention to make a claim against the Police and the State for the assault on my son, Mickey Kaip Wassey, by the police in Kimbe on the 2nd January 2002.

The police officers involved are John Karl, Ines Steven and two others.

Please let me know if you are prepared to consider the details of my claims.

Further, the details of the claims are contained in the statement of claim which I will forward to you shortly after it is sealed by the courthouse.

There is a dispute about whether, where, when and how the above letter was served. Those important issues of fact are addressed in detail later.

On 18 March 2002 the plaintiff filed a writ of summons in the Kimbe registry of the National Court, with a statement of claim endorsed on it. The plaintiff’s cause of action appears to be assault. He claims general damages and exemplary damages.

On 2 April 2002 Tumu Andake swore an affidavit of service, deposing to service of the writ that day on the second defendant (by serving a copy on Hodges Ette of the Police Legal Services Division at Police Headquarters, Konedobu) and on the third defendant (by serving a copy on Janet Kamane, an employee of the State, at the offices of the Department of Attorney-General, Waigani).

On 8 April 2002 Hodges Ette, describing himself as lawyer for the defendants, filed a notice of intention to defend for all defendants, in the name of Acting Solicitor-General, John Kumura.

On the same day, 8 April 2002, Mr Kumura wrote to Tumu Andake in the following terms:

Dear Sir

RE YOUR NOTICE OF INTENTION TO CLAIM AGAINST STATE POLICE ASSAULT [SIC]

I have your letter dated 12th March 2002 constituting notice to sue police and the State on the grounds that Police assaulted you. I also have your writ of summons filed on the 18th March 2002 concerning the same matter.

Please find enclosed a sealed copy of the notice of intention to defend pertaining to this matter.

On 17 April 2002 Tumu Andake swore an affidavit of service, deposing to service of the writ, on 18 March 2002, on the first defendants (by serving copies on Senior Constable Paul Erisai of Kimbe Police Station).

On 2 May 2002 another notice of intention to defend was filed on behalf of the defendants, this time by Acting Solicitor-General, John Kumura.

On 13 May 2002 another notice of intention to defend was filed on behalf of the defendants, this time by Provincial Police Commander, Tom Uapipi. On the same day Mr Uapipi filed a defence, pleading that the plaintiff’s next friend had no standing; that the plaintiff was injured when resisting arrest and that reasonable force was used; that the plaintiff was an adult, aged 18 years; and that he had not lost any mental capacity.

On 5 June 2002 another defence was filed on behalf of the defendants, this time by Hodges Ette, in the name of Acting Solicitor-General, John Kumura. The gist of this defence was that the plaintiff’s injuries were brought about by his own actions.

On the same day, 5 June 2002, Mr Kumura wrote to Tumu Andake, enclosing a copy of the notice of intention to defend that he had filed.

On 26 July 2002 the plaintiff filed a reply to the defence (but did not indicate which defence he was replying to). He pleaded that he had standing, as his next friend was his father; that he was an infant, aged below the age of 18 years; and that he had indeed lost 50% of his mental capabilities.

On 27 July 2002 five affidavits (by the plaintiff and three persons claiming to have witnessed the incident of 2 January 2002 and his next friend) were filed. Those affidavits and the reply to the defence were served soon afterwards and no issue has been taken about their service.

On 13 May 2003 Lupalrea Lawyers, of Kimbe, entered an appearance for the plaintiff.

On 22 October 2004 Paul Paraka Lawyers, of Kimbe, gave notice that they had been appointed as lawyers for the defendants. Since then there has been an exchange of correspondence between Paul Paraka Lawyers and Lupalrea Lawyers regarding the case.

On 11 February 2005 Lupalrea Lawyers filed a notice to set down for trial.

On 23 May 2005 Paul Paraka Lawyers filed a notice of motion to dismiss the proceedings.

On 15 June 2005 an affidavit by Tumu Andake was filed. He deposes amongst other things to the circumstances in which he served the notice of intention to make a claim against the State. He states:

The service of the intention to make a claim against the State was served upon the third defendant personally by myself through the introduced secretary who was a female by the name of Janet Kamane in...