Paga Hill Development Company (PNG) Ltd v Powes Parkop and Lesly Alu, City Manager and National Capital District Commission and the Independent State of Papua New Guinea (2019) SC1877

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom,J, Manuhu, J &Polume-Kiele, J
• Judgment Date: 08 November 2019
• Court: Supreme Court
• Citation: (2019) SC1877
• Docket Number: SCA No 10 of 2019
• Year: 2019
• Judgement Number: SC1877

Full Title: SCA No 10 of 2019; Paga Hill Development Company (PNG) Ltd v Powes Parkop and Lesly Alu, City Manager and National Capital District Commission and the Independent State of Papua New Guinea (2019) SC1877

Supreme Court: Kirriwom,J, Manuhu, J &Polume-Kiele, J

Judgment Delivered: 8 November 2019

SC1877

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 10 OF 2019

BETWEEN

PAGA HILL DEVELOPMENT COMPANY (PNG) LIMITED

Appellant

AND

POWES PARKOP

First Respondent

AND

LESLY ALU, CITY MANAGER

Second Respondent

AND

NATIONAL CAPITAL DISTRICT COMMISSION

Third Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Kirriwom,J, Manuhu, J &Polume-Kiele, J.

2019: 28th October, 8th November

PRACTICE AND PROCEDURE – Appeal against dismissal of proceedings for want of proper notice under s 5 – Claims By and Against the State Act 1996 – form of service – given by personal service - s 5 (3) of the Claims By and Against the State Act 1996.

Facts

On the 26 March 2013, the appellant filed proceedings in the National Court OS No. 153 of 2013, Paga Hill Development Company (PNG) Ltd v Powes Parkop, Lesly Alu, NCDC, The State and 2 Ors) seeking a declaration that it had properly executed a valid Agreement referred to as a “Section 81 Agreement” with National Capital District Commission (NCDC) dated 3 October 2012; an agreement which it says that the NCDC breached for which it seeks damages.

On 30 January 2019, the proceedings were dismissed in its entirety for failing to comply with the requisite Section 5 Notice of intention to make a claim against the State pursuant to Section 5 of the Claims By and Against the State Act 1996 (Claims Act). This appeal is against the decision of 30 January 2019.

Held:

(1) A notice under s 5 of the Claims By and Against the State Act 1996, must provide details of the date of the occurrence giving rise to the claim or the alleged breach of contract;

(2) Section 5 (3) of the Claims Act is very specific as to the manner of service of the s. 5 notice, more particularly s. 5(3) which states in no uncertain terms that notice should be given by personal service on the Departmental Head responsible for justice matters, in this case, the Secretary for Justice and Attorney-General and the Solicitor-General or their respective personal secretaries.

(3) The onus lies on the appellant to provide particulars of service and substantial compliance of the manner and form of service of the letter giving s 5 Notice under the Claims Act.

(4) The affidavit of Mr. Stanley Liria sworn on 23 March 2013 and filed on 25 March 2013 did not depose to nor any other affidavit material filed by the appellant and held in the court file confirmed service of giving s 5 notice of intending claim against the State.

(5) The appeal is incompetent and without basis.

Cases Cited

Paul Tohian v Tau Liu [1998] SC566

Minato v Kumo and the State (1998) N1768

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

William Trnka v The State (2000) N1957

Chefs Secret Limited v National Capital District & Ors (2011) N4217

Brian Josiah v Steven Raphael (2018) SC1665

National Capital District Commission v Jim Reima (2009) SC993)

Yamanka Multi Services Ltd v National Capital District Commission (2016) N6556)

Counsel

Mr. S. Liria, for the Appellant

Mr. M. Mukwesipu, for the First, Second and Third Respondents

No appearance for the Fourth Respondent

JUDGMENT

8 November, 2019

1. BY THE COURT: On the 30th of January 2019, the National Court dismissed the proceedings OS No. 153 of 2013, Paga Hill Development Company (PNG) Ltd v Powes Parkop, Lesly Alu, NCDC, The State and 2 Ors) in its entirety for failing to comply with the requisite Section 5 Notice of intention to make a claim against the State pursuant to Section 5 of the Claims By and Against the State Act 1996 (Claims Act).

Grounds of appeal

2. The grounds of appeal raised were as follows:

(i) The learned Judge erred in law when his Honour dismissed the proceedings stating that the Appellant has failed to give notice of claim against the State as required under Section 5 of the Claims By and Against the State Act, 1996 when sufficient notice of claim was given and evidence of this notice was filed and available on Court file before the Court through:

(a) Affidavit of Edwin Gesi sworn on 29th March 2013 and filed on 30 April 2013;

(b) Affidavit of Stanley Liria sworn on 23 March and filed on 26 March 2013; and

(c) The defendants, especially the State has not filed an affidavit denying the appellant’s notice of claim by letter dated 22nd March 2013.

(ii) The learned Judge erred in law when his Honour failed to consider the relevant affidavit of service sworn by Edwin Gesi on 29 March 2013 and filed on 30 April 2013 together with the affidavit of Stanley Liria sworn on 23 March 2013 and filed on 26 March 2013 proving service of notice of claim under Section 5 of the Claims By and Against the State Act and therefore, the dismissal of the proceedings was null and void.

3. On hearing of the appeal on the 28 of October 2019, it became apparent that the only issue for determination relates to whether the affidavit of Edwin Gesi sworn on the 29 of March 2013 and filed on 30April 2013 formed part or was part of the evidence presented by the appellant before the trial Court on the 19of October 2017.

4. Upon making enquiries with Counsels, the Court notes that during trial, the appellants relied on six affidavits. These affidavits are referred to and identified in the Notice to Rely on Affidavit filed on 11 July 2017 (Document No. 59 in the National Court file) and referenced in page 287 of the Appeal Book). The notice to rely on affidavit listed only six affidavits that the appellant wished to rely during trial and these are identified on (pages 288-291 of Appeal Book) and these were the affidavits of:

(i) Affidavits of Stanley Liria sworn on 23 March 2013 and filed on 25 March 2013 (Exhibit A);

(ii) Affidavit of Jerry Kama sworn on 9 April 2013 and filed on 10 April 2013 (Exhibit B);

(iii) Affidavit of Johannis Poya sworn on 25 April 2013 and filed on 30 April 2013 (Exhibit C);

(iv) Affidavit of Gudmundur Fridricksson, Volumes 1, 2 & 3 sworn on 29 October 2015 and filed on 30 September 2016 (Exhibit D);

(v) Affidavit of Gudmundur Fridricksson sworn on 29 October 2015 and filed on 30 September 2016 (Exhibit E); and

(vi) two Affidavits of Barry Cheshire sworn on 5 November 2015 and filed on 6 May 2015 marked and referred to as Exhibit F and G).

5. Given these matters, we accept that this Appeal proceeds on the basis that the affidavit of Mr. Edwin Gesi, sworn on 29 March 2013 and filed on 30 April 2013 which purports to be an affidavit of service of s 5 notice does not form part of the evidence before the trial judge at the National Court.

6. The law on the requirements of s 5 notice is not disputed. The dispute is in relation to compliance with service under s 5 (3) of the Claims Act. We note the importance of compliance of the requisite requirements of Section 5 Notice under the Claims Act. Section 5 reads:

“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 –

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

(b) the Solicitor-General.

(2) A Notice under this Section shall be given –

(a) within a period of six months after the occurrence out which the claim arose; or

(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or

(c) within such further period as

(i) the Principal Legal Adviser; or

(ii) the court before which the action is instituted.

on sufficient cause being show, allows.

(3) A notice under Sub-section (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 the officer between the hours of 7.45 am and 12 noon, or 1.00 pm and 4.06 pm, 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 services hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).”

7. There is a growing list of case law which highlights the importance of compliance with s 5 notice of intention to make a claim against the State under s 5 of the Claims Act. The law on Section 5 Notice of claim against the State is quite clear. No claim lies against the State where this requirement is not complied with prior to filing of any claim against the State (Paul Tohian v Tau Liu [1998] SC566). The rationale behind the provision, (s 5 notice) is to notify the State early of an intending claim against it so that it can...