Nicholas Namba & David Maip v Michael Mondo and Western Highlands Provincial Government and the Secretary, Department of Agriculture & Livestock and The Independent State of Papua New Guinea (2008) N3288

• Jurisdiction: Papua New Guinea
• Judge: Makail AJ
• Judgment Date: 18 March 2008
• Court: National Court
• Citation: (2008) N3288
• Docket Number: WS NO 505 OF 2004
• Year: 2008
• Judgement Number: N3288

Full Title: WS NO 505 OF 2004; Nicholas Namba & David Maip v Michael Mondo and Western Highlands Provincial Government and the Secretary, Department of Agriculture & Livestock and The Independent State of Papua New Guinea (2008) N3288

National Court: Makail AJ

Judgment Delivered: 18 March 2008

N3288

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 505 OF 2004

NICHOLAS NAMBA & DAVID MAIP

Plaintiffs

AND

MICHAEL MONDO

First Defendant

AND

WESTERN HIGHLANDS PROVINCIAL GOVERNMENT

Second Defendant

AND

THE SECRETARY, DEPARTMENT OF AGRICULTURE & LIVESTOCK

Third Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Mount Hagen: Makail AJ

2008: 15 February

18 March

INTERLOCUTORY RULING

PRACTICE AND PROCEDURE - application to dismiss court proceeding - action based on alleged breach of contract - non payment of salaries or fees for security and care taker services provided to defendants - want of compliance of Claims By & Against the State Act 1996 - section 5(3)(a)&(b) - notice of intention to make a claim against the State - mode of service of notice on intention to make a claim against the State - no personal service of notice on Attorney General or Solicitor General - notice given by facsimile transmission - Solicitor General acknowledged receipt of notice - whether notice by facsimile transmission proper notice to State - literal interpretation rule applied - notice must be personally served on either Attorney General or Solicitor General or persons occupying positions of personal secretary to either of these two officers - mandatory for personal service of notice - no personal service of notice.

PRACTICE AND PROCEDURE - Claims By & Against the State Act 1996 - section 5(3)(a) & (b) purposive interpretation rule also applied - rational of personal service of notice on either Attorney General or Solicitor General - to ensure notice is received by either Attorney General or Solicitor General - also to avoid notices going missing either by facsimile transmission or by post - purpose of personal service of notice - serves as a forewarning of new law suits or court proceeding against the State - notice to enable State lawyers to conduct preliminary investigation or inquiry to allegations raised in notice - preliminary investigation or inquiry with State departments or agencies - to properly and adequately prepare for State’s defence against any law suits or court proceedings - State being a large institution - no personal service of notice - does not necessarily amount to defective notice or no notice to State if State received notice and acted on it - notice proper.

PRACTICE AND PROCEDURE - also notice given to State outside six (6) months - date of cause of action - action based on alleged breach of contract - non payment of fees for security and care taker services provided to defendants - amounts to defective notice or no notice to State - cross application for leave sought to extend time to give notice outside six (6) months - cross application for leave also sought to personally serve notice on Attorney General or Solicitor General - Claims By & Against the State Act 1996 - section 5(1) (a) & (b) and (2)(a),(b) & (c)(i) & (ii) - both applications are an abuse of process of court - plaintiffs should withdraw court proceeding - plaintiffs should also file separate court proceeding to seek leave to extend time to give notice - commence court proceeding by originating summons to seek leave to extend time - both cross applications refused - whether the entire writ of summons should be struck out - any discretion in Court to allow court proceeding to proceed to trial - no discretion - court proceeding amounts to abuse of process - application to dismiss granted - entire court proceeding dismissed.

Cases cited:

Paul Tohian, Minister for Police & The State -v- Tau Liu (1998) SC 566

William Trnka -v- The State (2000) N1957

John Bokin & Others -v- Sergeant Paul Dana & the State (2001) N211

Daniel Hewali -v- Papua New Guinea Police Force & The State (2002) N2233

Eliakim Laki & 167 Others -v- Secretary for Department of Lands & The State (2005) N2818

Motor Vehicles Insurance Limited -v- Sanage Kuri (2006) SC 825

Maps Tuna Limited -v- Manus Provincial Government (2007) SC857

Naomi Vicky John -v- National Housing Corporation N2770

Counsel:

Plaintiffs in person

No appearance for the First Defendant.

Mr R Otto, for the Second Defendant.

Mr B Kome, for the Third & Fourth Defendants.

18 March, 2008

1. MAKAIL AJ: INTRODUCTION: This is an application by the Third & Fourth Defendants by Notice of Motion filed on 6 December 2007 to dismiss the entire court proceeding for want of compliance with the requirement to give notice of intention to sue the State under section 5 of the Claims By & Against the State Act 1996. The application was support by the Second Defendant.

2. I must state here that the Plaintiffs have represented themselves in this court proceeding since its commencement on 7 May 2004. The Plaintiffs also filed a cross application by Cross Notice of Motion on 3 January 2008 to seek leave of the Court for them to serve the notice of claim against the State in person and for leave to extend time to give the said notice to the State under section 5 of the Claims By & Against the State 1996.

EVIDENCE

3. In support of the application, the Third & Fourth Defendants rely on the Affidavit in Support of Ruth Kokiva Gelu sworn on 21 October 2007 and filed on 3 December 2007.

4. The Plaintiffs have responded to the Defendants’ Affidavits by relying on the Affidavit in Support of Nichlais Namba sworn and filed on 3 January 2008.

BRIEF BACKGROUND

5. In this court proceeding, by a Writ of Summons filed on 7 May 2004 the Plaintiffs seek damages of unpaid salaries or fees from the Defendants for security and care taker services rendered to the Defendants between 23 September 1992 and 24 February 2002.

6. The Plaintiffs alleged that they were engaged by the First Defendant who was then the Principal Advisor in the Third Defendant to provide the security and care taker services over the property of the Third Defendant located at Kuk DPI Research Station outside the town of Mt Hagen of the Western Highlands Province.

7. Despite providing these services to the Defendants and despite numerous requests for payment of their salaries or fees, the Defendants failed to pay them. As a result, on 7 May 2004, the Plaintiffs commenced this court proceeding to recover their unpaid salaries or fees from the Defendants.

8. On 21 June 2004, the Plaintiffs duly served a sealed copy of the Writ of Summons on the Second Defendant at Kapal Haus in Mt Hagen by leaving it with the Executive Officer to the Governor by the name of Mr William Wandaki.

9. In response to the Writ of Summons, on 17 August 2004, the Second Defendant filed a Notice of Intention to Defend and on 27 October 2004, the Second Defendant filed its Defence.

10. On 10 January 2005, the Plaintiffs duly served a sealed copy of the Writ of Summons on the Fourth Defendant at the office of the Solicitor General by leaving it with the Personal Secretary to the Solicitor General by the name of Ms Mary Bulina.

11. On 27 April 2006, the Fourth Defendant filed a Notice of Intention to Defend but had not filed a Defence. Instead, the Fourth Defendant took issue with the giving of notice of the Plaintiffs’ intention to make a claim against the State on 4 June 2004 when it replied by letter to the Plaintiffs’ letter of notice dated 29 January 2004. The Plaintiffs’ letter of notice to make a claim against the State dated 29 January 2004 was received by the Solicitor General by facsimile transmission on 11 February 2004.

12. The Fourth Defendant also took issue with the notice to make a claim against the State on the basis that the said notice was given to the State well after the six (6) months of the occurrence of the cause of action, hence the Plaintiffs were required to seek leave of the Attorney General or the Court to extend time to give the said notice.

13. Despite taking issue with the Plaintiffs’ letter of notice, the Solicitor General proceeded to register the claim in its computer record system on 11 February 2004 and wrote another letter to the Plaintiffs dated 30 June 2005 to maintain their objection to the Plaintiffs’ notice on the grounds that the said notice was not properly served and also for being served outside the six (6) months time period.

14. At this point, it is not known if the Defendants and in particular, the Solicitor General had sought and obtained any instructions and documentation from the Third Defendant to prepare their Defence in anticipation of any court proceeding the Plaintiffs may commence against the Defendants. Further, it is not known if the Third and Fourth Defendants filed any Defence in this court proceeding as I note there is none in the Court file.

15. As noted above, only the Second Defendant instructed its lawyers and its lawyers were able to file a Defence on 27 October 2004.

ISSUES

16. I do not agree with Mr. Kome of counsel for the Third and Fourth Defendants in his written submissions that one of the issues to be determined in the application of the Third and Fourth Defendants is whether or not a notice of intention to make a claim against the State under section 5 of the Claims By & Against the State Act 1996 is a condition precedent or mandatory requirement? I say this because it is not an issue here. The Plaintiffs have accepted that it is a mandatory requirement...