Public Curator of Papua New Guinea and The Independent State of Papua New Guinea v Konze Kara as Administrator of the estate of Kibikang Kara (2014) SC1420

• Jurisdiction: Papua New Guinea
• Judge: David J, Yagi J & Murray J
• Judgment Date: 15 December 2014
• Court: Supreme Court
• Citation: (2014) SC1420
• Docket Number: SCA No 54 of 2010
• Year: 2014
• Judgement Number: SC1420

Full Title: SCA No 54 of 2010; Public Curator of Papua New Guinea and The Independent State of Papua New Guinea v Konze Kara as Administrator of the estate of Kibikang Kara (2014) SC1420

Supreme Court: David J, Yagi J & Murray J

Judgment Delivered: 15 December 2014

SC1420

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA No.54 OF 2010

BETWEEN:

PUBLIC CURATOR OF PAPUA NEW GUINEA

First Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Appellant

AND:

KONZE KARA as Administrator of the estate of KIBIKANG KARA

Respondent

Waigani: David J, Yagi J & Murray J

2011: 29th April

2014: 15th December

CIVIL LAW – appeal – estate claim – claim against administrator - breach of duty – statutory duty – common law duty in devastavit

APPEALS – claim against a statutory body – whether notice of claim is required to be served – Claims By & Against the State Act, Section 5 -

APPEALS – survival of cause of action – characterization of cause of action - whether cause of action in negligence or interest in deceased’s estate – Frauds & Limitation Act, Sections 16 & 19

APPEAL – joinder of parties - National Court Rules, Order 5 Rule 8.

Cases cited:

Papua New Guinea Cases

Re Moresby North East Parliamentary Election (No.1): Goasa Damena v. Patterson Lowa [1977] PNGLR 424

SCR No. 1 of 1982: Re Philip Bouraga [1982] PNGLR 178

Bougainville Copper Foundation v Galeva Kwarara [1988-89] PNGLR 110

SCR No. 1 of 1998; Reservation pursuant to s. 15 of the Supreme Court Act (2001) SC672

Curtain Bros (PNG) Ltd v UPNG (2005) SC788

Philip Num v National Housing Corporation (2006), OS No. 115 of 2003, Unreported & Unnumbered Judgment delivered by David, J in Mt. Hagen on 25 August 2006

Jeffrey Turia v Gabriel Nelson (2008) SC949

Mineral Resources Development Company Ltd v Mathew Sisimolu (2010) SC1090

Haiveta v Wingti (No.2) [1994] PNGLR 189

Henao v Coyle (2000) SC655

NCDC Water and Sewerage Ltd v Tasion (2002) SC696

Ipili Porgera Investments Ltd v Bank of South Pacific Ltd & RIFL (2007) SCA No.15 of 2006, Unreported & Unnumbered Judgment of Injia DCJ (as he then was) and Cannings J delivered on 27 June 2007

Overseas cases cited:

Crumbie v Wallsend Local Board [1891] 1 QB 503

Huyton v Liverpool Corporation [1926] 1 KB 146

Legislation cited:

Claims By and Against the State Act 1996

Frauds and Limitations Act 1988

Public Curator Act 1951

Wills, Probate and Administration Act, Chapter 291, Revised Laws of Papua New Guinea

Supreme Court Rules

National Court Rules

Treatises cited:

Halsbury’s Laws of England, 4th Edition Reissue, Vol.17(2)

Counsel:

Ralph Saulep, for the Appellants

Jeffery L. Shepherd, for the Respondent

DECISION

15 December, 2014

1. BY THE COURT: This is an appeal against the whole of two interlocutory judgments of the National Court both made on 13th of April 2010 in proceedings WS No.69 of 2009 where that court dismissed two applications moved by the First Appellant seeking, amongst others, orders to dismiss the proceedings before that court on the basis, it was contended that; the Respondent failed to comply with Section 5 of the Claims By and Against the State Act (the CBASA) by not giving any notice or proper notice of intention to make a claim against the defendants within the statutory time limitation period; pursuant to Order 12 Rule 40 of the National Court Rules, they disclosed no reasonable cause of action or were frivolous or vexatious or were an abuse of the process of the court as they were statute barred; pursuant to Order 14 Rules 25 and 29 of the National Court Rules, orders for security for costs; and pursuant to Order 5 Rule 8 of the National Court Rules, an order for the joinder of the Registrar of Companies was necessary.

Background

2. The Respondent is the younger brother of the late Kibikang Yakka Kara (the deceased) who died intestate in Port Moresby on the 16th of September 1991.

3. It is alleged that the deceased left behind several valuable assets including shares in a company and real estate properties.

4. Upon his death, the whole of the deceased’s estate including the assets was automatically vested under the administration and management of the First Appellant by operation of law: Section 44 of the Wills, Probate and Administration Act, Chapter 291, Revised Laws of Papua New Guinea (the WPAA).

5. The administration and management of the deceased’s estate was subsequently transferred to the Respondent by consent of the First Appellant on the 13th of December 2006 in proceedings OS No.764 of 2006 commenced by the Respondent against the First Appellant to revoke the First Appellant’s administration of the deceased’s estate. When the Respondent assumed the responsibility, he formed the opinion that there was gross maladministration and mismanagement of the estate by the First Appellant.

6. The Respondent therefore commenced proceedings in the National Court on the 28th of January 2009 against the First Appellant and the State claiming damages for maladministration and mismanagement alleging negligence and breach of statutory duty. As against the Appellant, it is alleged that as administrator of the deceased’s estate he failed to properly manage the estate which included plantations and real estate properties resulting in the estate incurring substantial losses. As against the State, the Respondent asserts the principle of vicarious liability on the basis that the First Appellant was performing statutory duties as an officer and agent of the State.

7. The First Appellant then filed two applications which he moved on the 7th of August 2009 and the 21st of October 2009 respectively.

8. The first was by way of an Amended Notice of Motion filed on the 23rd of March 2009 seeking, amongst others, an order to dismiss the proceedings under Order 12 Rule 40 of the National Court Rules on the basis that; they disclosed no reasonable cause of action, or were otherwise frivolous or vexatious, or were an abuse of the process of the court as they were statute barred. The Appellants relied on Sections 16 and 19 of the Frauds and Limitations Act 1988 (the Frauds Act) as the basis for claiming that the proceedings were frivolous and vexatious. Non-compliance with Section 5 of the CBASA was also relied upon as a further ground in the application upon which the proceedings were sought to be dismissed. In this application, the First Appellant also sought orders for security for costs pursuant to Order 14 Rules 25 and 29 of the National Court Rules.

9. The other application was moved by way of a Notice of Motion filed on the 25th of March 2009 seeking, amongst others, an order to join certain persons as parties to the proceedings one of whom was the Registrar of Companies.

10. The only affidavit relied on by the First Appellant to support his applications was that of Paul Wagun sworn and filed on the 17th of April 2009.

11. The State which is named as the Second Appellant in this appeal supported the First Appellant’s applications.

12. The Respondent contested the applications and relied on the affidavit of Konze Kara sworn on the 17th of March 2009 and filed on the 18th of March 2009.

13. The applications concerning the issues of Section 5 notice under the CBASA and the joinder of parties were heard on the 7th of August 2009. The applications concerning the issues of; whether the proceedings should be dismissed because they disclosed no reasonable cause of action or were frivolous or vexatious or were an abuse of the process of the court because they were statute-barred under Sections 16(1) and 19 of the Frauds Act; and security for costs were heard on the 21st of October 2009. Two separate decisions on these issues and others were then delivered by the National Court on the same day on the 13th of April 2010. The first decision relates to the issue of Section 5 notice under the CBASA and the joinder of parties. The second decision relates to the issue of Sections 16(1) and 19 of the Frauds Act and security for costs.

14. With respect to the first decision, the Court found that Section 5 notice requirement under the CBASA does not apply and therefore refused the application. The Court also refused to grant orders for joinder of other parties.

15. As regards the second decision, the Court was of the opinion that time did not commence to run with respect to the claims made in the proceedings until at least 13th of December 2006 when the First Appellant’s administration of the estate ceased and accordingly ruled that the action was brought within time. Consequently the Court also refused the orders sought. The Court also refused orders sought for security for costs.

Grounds of Appeal

16. The First Appellant’s appeal is...