Rawson Construction Limited on Behalf of Itself and 238 Others v Department of Works and The Independent State of Papua New Guinea (2005) SC777

• Jurisdiction: Papua New Guinea
• Judge: Sawong J, Kirriwom J, Kandakasi J
• Judgment Date: 04 March 2005
• Court: Supreme Court
• Citation: (2005) SC777
• Docket Number: SCA No 118 of 2004
• Year: 2005
• Judgement Number: SC777

Full Title: SCA No 118 of 2004; Rawson Construction Limited on Behalf of Itself and 238 Others v Department of Works and The Independent State of Papua New Guinea (2005) SC777

Supreme Court: Sawong J, Kirriwom J, Kandakasi J

Judgment Delivered: 4 March 2005

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA No. 118 of 2004

BETWEEN:

RAWSON CONSTRUCTION LIMITED on behalf of itself and 238 OTHERS

-Appellant-

AND:

DEPARTMENT OF WORKS

- First Respondent-

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

- Second Respondent-

WAIGANI: SAWONG, KIRRIWOM , KANDAKASI, JJ.

2004: 03rd December

2005: 04th March

APPEALS – No serious challenge against trial judge’s decision – Success or fall of appeal dependent on admission and effect of “fresh evidence” – No identifiable error against trial judge’s decision – Court ought to exercise extreme caution to interfere with decision of the trial judge – Fresh evidence if admitted would not have affected decision – Appeal dismissed.

APPEALS – Fresh evidence – Application to adduce – Relevant tests for fresh evidence - Evidence available at time of trial and could have been ascertained with the exercise of reasonable care – No explanation provided for failure - Purported fresh evidence showing allowance of other illegal claims to proceed against the State – Effect of – Evidence of illegal claims failing to service justice of the case – Application dismissed.

Facts

The Appellants claim that the State contracted them to carry out certain public works, which they part performed but terminated forcefully by the State during Easter weekend of 1999. Since then, they claimed and negotiated with the State for damages to them of part performance and breach of contract. The State did not show any immediate interest in prompt settlement but the Appellants continued to negotiate and or wait upon the State. On 20th September 2002, the Appellants wrote and asked for a conference with State to discuss the claims and a possible settlement and purported to give notice under s. 5 of the Claims By and Against the State Act 1996. Following no response, the Appellants demanded on 29th May 2003 a payment of their claims then put at K18, 379, 200.00. They also, gave notice of their intention to issue proceedings to recover those amounts if not settled and also purported to again give notice of their intention to make a claim against the State under s. 5 of the Claims By and Against the State Act 1996. On 21st July 2003, the Solicitor General refused to entertain the claim, saying the claims were out of time and that they did not properly and sufficiently particularized their claims. The Appellants did nothing until they filed an application by an originating summons for an extension of time for them to give notice of their intention to make their claims against the State on 12th February 2004. The National Court heard that application and dismissed it on 21st July 2004, because of the substantial delay which was not explained and that the they did not demonstrate that the State would not be prejudiced.

The Appellants appealed against that decision and applied for leave to adduce “fresh evidence” of successful claims by other people coming from the same group or community as the Appellants for the same kind of work and outside the s.5 notice requirements. The intent was to demonstrate a discriminate application of the law by the Solicitor General and that the evidence would diminish the prejudice the learned trial judge found against them. The Appellant otherwise did not seriously challenge the trial judge’s decision and reasons for decision.

Held

1. An applicant for an extension of time to give notice of his intention to make a claim against the State under s. 5 of the Claims By and Against the State Act 1996 must show “sufficient cause” for not meeting the requirements under the Act.

2. “Sufficient Cause” would be shown if the applicant is able to:

(a) provide by appropriate evidence a reasonable explanation for not giving notice within the period stipulated under s. 5 of the Claims By and Against the State Act 1996 and where there is a delay in applying for an extension of time, provide a reasonable explanation for that delay;

(b) Demonstrate a reasonable cause of action to be pursued on the merits; and

(c) Show by appropriate evidence that the delay in giving notice has not and or would not result in any prejudice to the State.

Vivisio Seravo v. Jack Bahafo (21/03/01) N2078: Cited with approval

1. The learned trial judge did not err in his finding that the Appellants failed to show “sufficient cause” in that, they failed to give notice and or provide a reasonable and or satisfactory explanation for their failure to give notice and or to promptly, apply for an extension of time to comply with the notice requirements and that the delay has not and or will not result in prejudice to the State.

2. An applicant in an application to adduce “fresh evidence” must show that:

(a) The evidence in question was not available at the time of the trial and that it could not with the exercise of reasonable care and attention be ascertained, secured and adduced in evidence before the trial judge; and

(b) The justice of the case warrants an admission of the evidence in question.

James Pari & Anor v. The State [1993] PNGLR 173 followed.

3. In this case, the applicant did not meet the required tests and the evidence sought to adduce are therefore not “fresh evidence” because:

(a) The evidence was available and could have been ascertained, secured and adduced before the trial judge with the exercise of reasonable care and attention but the Appellants failed to do that.

(b) The justice of the case does not warrant an admission of the evidence in question because the evidence relates to an illegal claim by reason of not coming within the provisions of s. 5 of the Claims By and Against the State Act 1996.

Papua New Guinea Cases Cited:

Paul Tohian, Minister for Police and the State v. Tau Liu (27/08/98) SC566.

Daniel Hewali v. Papua New Guinea Police Force & The State (27/03/02) N2233.

The Independent State of Papua New Guinea v. Barclay Bros (PNG) Ltd (2001) N2090.

Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC705.

Vivisio Seravo v. Jack Bahafo (21/03/01) N2078.

James Pari & Anor v. The State [1993] PNGLR 173.

Peng v. The State [1982] PNGLR 331.

Abiari v. The State [1990] PNGLR 250.

Bipa Akopa v. Motor Vehicles Insurance (PNG) Trust (08/08/97) N1603.

Koe Fuanka v. Motor Vehicles Insurance (PNG) Trust (04/12/98) N1825.

Dick Nauka v. Motor Vehicles Insurance (PNG) Trust (05/12/97) N1680.

Cathy Robert Kolum as next friend of Salome Robert, Jamila Robert and Peter Kolum v. The Motor Vehicles Insurance (PNG) Trust (27/10/00)N1998.

Counsels:

Mr. F. Griffin for the Appellants

Mr. L. Makap for the Respondent

04th March 2005

BY THE COURT: The Appellants are appealing against a decision of the National Court delivered on 21st July 2004, dismissing an application by them for extension of time to give notice of their intention to make a claim against the State under s. 5 of the Claims By and Against the State Act 1996. For the purpose of that appeal, the appellants are also applying for leave to adduce “fresh evidence”. The purported fresh evidence is about some other people within the Appellants’ own community or group, also having the same kinds of contracts with the State as the Appellants and terminated in the same way but allowed to proceed against the State without meeting s. 5 notice requirements. We heard the application for fresh evidence and then the appeal, subject to a decision on the application for fresh evidence and reserved a decision on both the application and the appeal. This is now the decision of the Court.

Although the notice of appeal pleads some errors on the part of the trial judge, the Appellants did not take that up at the hearing. Their main argument was on the application for fresh evidence and subject to a decision on that, a revisit of the learned trial judge’s findings on the question of prejudice. They argued that at the time of the trial, the evidence was not available and that they could not ascertain, secure and adduce them before the learned trial judge. This was despite their admitted knowledge of the existence of the evidence in question, which knowledge they did not communicate to their lawyers. They further argued that, the justice of the case warranted an admission of the fresh evidence because that would demonstrate that, the Solicitor General applied double standards and that it diminishes significantly any prejudice to the State.

The State’s response was, the learned trial judge did not commit any error, which was conceded to by the Appellants. Hence, it argued for a dismissal of the appeal. In relation to the fresh evidence, it argued that, the evidence...