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Trnka v Independent State of Papua New Guinea [2000] PGNC 120; [2000] PNGLR 294 (4 May 2000)

[2000] PNGLR 294

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WILLIAM TRNKA

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

WAIGANI: SEVUA J
22 March; 04 May 2000

Facts

The plaintiff claims that he was severely beaten up by policemen on the night of 5 June 1996 at his residence in Gerehu Stage 6. He further alleges that the policemen also stole from him personal items. Four days after the alleged assault, he wrote a letter of complaint to the National Capital District and Central Province Police Commander, Mr Taku. Five days after the alleged assault, the plaintiff’s father also wrote complaining of the incident to the Prime Minister and the Police Commissioner. Several other letters were then written concerning this matter by Young and Williams, Lawyers, on their behalf on 25 January 1997, and January 8 1998 and by the plaintiff’s father. On 19 May 1999, Nonggorr and Associates Lawyers wrote to the Attorney General seeking extension of time to make a claim against the State. The Attorney General responded and refused to grant the extension of time.

The plaintiff then applied seeking orders for extension of time to lodge the notice to make a claim, in order to meet the requirements of s 5 of the Claims By and Against The State Act.

Held

1. A written complaint to the Police Commissioner, Police Minister and the Prime Minister does not constitute notice under s 5 of Claims By and Against The State Act. By law, notice must be given to the Attorney General or Solicitor General.
   
2. The plaintiff applicant must show sufficient cause in order to obtain an extension of time to give notice of intention to make a claim against the State: Rundle v Motor Vehicle Insurance (PNG) Trust [1988] PNGLR 20 applied.
   
3. If there is delay in the giving of such notice, the plaintiff applicant has the onus of establishing the cause of delay to the satisfaction of the court.
   
4. The granting of an extension of time involves the exercise of the court’s discretion and the plaintiff/applicant must show sufficient cause in order for that discretion to be exercised in his favour. Access to legal services is a factor in determining the exercise of the discretion in respect of an application for extension of notice period under s 5 of the Claims By and Against The State Act.
   
5. In the whole circumstances of this case, the plaintiff/applicant has not shown sufficient cause therefore, the exercise of the Court’s discretion should be refused.
   

Papua New Guinea cases cited

Rundle v Motor Vehicle Insurance (PNG) Trust [1988] PNGLR 20.
Ovoa Rawa v Motor Vehicle Insurance (PNG) Trust (1994) unreported N1276.
Sam Arthur v Motor Vehicle Insurance (PNG) Trust [1998] PNGLR 261.
Ivia v Motor Vehicle Insurance (PNG) Trust [1995] PNGLR 183.
Motor Vehicle Insurance (PNG) Trust v Insurance Commissioner (1998) unreported N1725.
Give Jowana v Motor Vehicle Insurance (PNG) Trust (1997) unreported N1681.
Korowa Pup v Motor Vehicle Insurance (PNG) Trust [1996] PNGLR 66.

Counsel

C Nidue, for plaintiff.

4 May 2000

SEVUA J. This is an application by the plaintiff seeking an order for extension of time to lodge a notice to make a claim against the defendant State.

Briefly, the plaintiff claims that he was severely beaten by members of the Police Force on the night of 5 June 1996 and personal items stolen at his residence at Gerehu Stage 6. The Attorney General has refused to grant an extension of time to make a claim against the State.

I propose to set out the actions taken by the plaintiff as I consider them relevant for the purpose of my consideration in determining this application.

The plaintiff claimed he was badly "assaulted" by members of the Police Force on 5 June 1996. On 9 June 1996, four days after the alleged assault, he forwarded a letter of complaint to the Commander of National Capital District and Central Police, Mr Philip Taku. On 10 July 1996, the plaintiff’s father wrote a letter each to the then Prime Minister, Sir Julius Chan, Police Minister and Police Commissioner. These letters contained complaints of the plaintiff’s father against the members of the Police Force.

On 23 January 1997, the plaintiff’s father wrote another letter to the Prime Minister, Sir Julius Chan, which was copied to the Police Commissioner, Mr R. Nenta. On 25 January 1997, Young & Williams Lawyers wrote to the Police Commissioner and inquired about the plaintiff’s and his father’s letters of complaint. On 8 January 1998 Young & Williams wrote another letter to the Police Commissioner.

Then on 19 May 1999, Nonggorr & Associates Lawyers eventually wrote to the Attorney General requesting an extension of time to make a claim against the State. On 2 June 1999, the Attorney General responded by refusing to grant an extension to the plaintiff to make a claim. According to the Attorney General, one of the two reasons for his refusal was, "your client’s delay in pursuing this matter seem unreasonable."

I wish to make some observations based on those facts. The plaintiff, his father and their lawyers had written a total of seven (7) letters to the then Police Commissioner, then Minister for Police and then Prime Minister. The Court notes that the plaintiff’s father’s letter of 10 July 1996, to the Police Commissioner, was widely circulated. Copies were hand delivered to the Chief Ombudsman, Mr Simon Pentanu, then Prime Minister, Sir Julius Chan, then Minister for Police, Mr Castan Maibawa MP., then Australian High Commissioner, Mr David Irvine, and copies were also forwarded to Amnesty International in London and the plaintiff’s mother in Sydney, Australia.

On 29 July 1996, the Commissioner of Police, Mr R. Nenta, acknowledged the plaintiff’s father’s letter of complaint dated 10 July 1996. The Police Commissioner advised the plaintiff’s father that "the Commander NCD/Central has been directed to investigate and report." It appears to me that no favourable response was received by the plaintiff therefore, his father wrote to the Prime Minister the second time on 27 January 1997; some six months, three weeks and one day after the alleged assault and some five months, two weeks and three days after the plaintiff’s father had complained to the Police Commissioner and widely circulated copies of that complaint.

There is no evidence as to the date the plaintiff engaged the services of Young & Williams Lawyers. Whilst the Court appreciates the fact that lawyers act on instructions from their clients, there seems to be no reason for the plaintiff’s lawyers to write their letter of 25 February 1997 to the Commissioner of Police. Indeed, I see no reason at all for Young & Williams to write another letter almost twelve months after the father’s letter. In my view, these events are quite relevant to the issue of delay that the Attorney General had adverted to in his letter of 2 June 1999.

The Commissioner of Police had been aware of the plaintiff’s complaint. As I alluded, the Police Commissioner had advised the plaintiff’s father on 29 July 1996, twenty days after he received the plaintiff’s father’s complaint. The Police Commissioner advised that the Commander of NCD/Central Police would investigate this complaint and make a report. By the time the plaintiff engaged Young & Williams, in about February 1997, which was some seven months after the alleged assault, no police report had been forthcoming, or if one had been compiled, at least, the plaintiff was not advised. So why write another letter on 25 February 1997? Why write another letter on 8 January 1998? Why didn’t the plaintiff and his lawyers consider taking positive steps in pursuing a suit rather than write letters?

I find that the plaintiff and his lawyers have not explained to the satisfaction of the Court the reasons why they failed to give the necessary notice to the defendant. Of course, the plaintiff and his father can be excused for their ignorance of the legal requirement of s 5 of the Claims By and Against The State Act. I will give them that benefit of the doubt. But certainly, not Young & Williams Lawyers. They are lawyers and they know of that legal requirement. If they had no instructions to give the appropriate notice to the defendant, they were in a position to advise the plaintiff of that requirement and seek instructions on whether or not to give notice to the defendant, despite the fact that they, I presume, received instructions from the plaintiff in February 1997; a little over six months from the date of the alleged assault.

The plaintiff’s counsel has advanced a number of submissions on the law. He referred to the following cases: Rundle v Motor Vehicle Insurance (PNG) Trust [1988] PNGLR 20; Ovoa Rawa v Motor Vehicle Insurance (PNG) Trust N1276; Sam Arthur v MVIT [1998] PNGLR 261; Ivia v MVIT [1995] PNGLR 183; MVIT v Insurance Commissioner N1725; Give Jowana v MVIT N1681 and Korowa Pup v MVIT and Gabag John Walep Koglip v MVIT N1415. Basically, I agree with the plaintiff’s submissions in respect of s 5 of the Claims By and Against The State Act where he analogised that provision to s 54(6) of the Motor Vehicles (Third Party Insurance) Act, Ch 295. The latter provision is similar to the former provision as it provides for notice to be given prior to the commencement of legal proceedings.

The submissions in relation to the issue of notice based on Rundle v Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 20 are relevant to the present application. I consider that the relevant test in the present application is the same test established in Rundle’s case. I say this despite the fact that s 54(6) and s 5 are two different provisions of two different legislation. The plaintiff must show sufficient cause in order to obtain an extension of time to give notice of his intention to make a claim against the State. All the other National Court decisions referred to by the plaintiff’s counsel on the issue of notice are also relevant. I accept that the plaintiff in this case, has the onus of establishing why he should be granted an extension. The test is that he must show sufficient cause in order to obtain an extension of time to give notice to the defendant.

In Motor Vehicles Insurance Trust v Insurance Commissioner N1725, which is one of my own decisions referred to by the plaintiff’s counsel, I said then that there should not be any hard and fast rule in determining what amounts to or does not amount to the phrase, "sufficient cause". I still maintain that principle here. In at least two of my own numbered decisions, I have said that "access to legal services" is a factor in determining the exercise of discretion in a s 54(6) application. Again, I maintain that principle here in respect of a s 5 notice under the Claims By and Against the State Act.

For the purpose of this application, I consider that the plaintiff’s father was a complainant as well since he had lodged a complaint on behalf of his son, the plaintiff. In my view, both the plaintiff and his father had easy access to legal services in the National Capital District. If the alleged assaults were so serious as described by the plaintiff’s father as "nearly murdered" and "actual murderous assaults," then I am surprised that both complainants were quite contented in writing letters after letters without seriously contemplating legal proceedings, despite threatening to do so. I have no doubt at all that, the plaintiff and his father, with their combined resources, were able to engage legal assistance soon after the alleged assaults. They did not and they have not really explained why.

To my mind, the appropriate cause of action by the plaintiff would have been, to engage a lawyer immediately after the alleged assault; give notice in pursuance of s 5 of Claims By and Against the State Act; institute legal proceedings through a writ of summons, then write letters and negotiate an out of court settlement. Despite the fact that the plaintiff had easy access to legal services, he failed to pursue his complaint through positive legal means. Of course, I do not condemn him and his father for writing those letters, however, I find it quite difficult to accept that the plaintiff could wait until May 1999 to request an extension of time from the Attorney General. Why wait until almost three years after the alleged assault before the plaintiff considers the issue of notice under s 5 of Claims By and Against the State Act? In my view, the delay in giving notice to the defendant has not been satisfactory explained, and I find that the plaintiff’s delay was unacceptable in view of the readily available access to both public and private legal services. In my view, if there is delay in giving notice to the State, the plaintiff, in an application such as this, has the onus of establishing the reasons for delay to the satisfaction of the Court. The plaintiff has not done that in this case.

The granting of an extension involves an exercise of discretion by the Court. In order for an applicant to obtain that discretion in his favour, he must first show sufficient cause. In my view, the plaintiff/applicant in this case has failed to show sufficient cause.

The plaintiff said in his affidavit sworn on 28 September 1999, that he believed that he had given notice to the State through the Prime Minister, the Police Minister and the Police Commissioner, thus the defendant should have been aware of his claim. That is a misconception. The law is very clear. Section 5(1) of the Claims By and Against The State Act specifically requires that written notice be given to "the Departmental Head of the Department responsible for Justice matters", in which case, it is the Attorney General, otherwise the Solicitor General. Neither the Prime Minister, nor the Police Minister nor the Police Commissioner is the Attorney General or Solicitor General. I hold that a written complaint to the Police Commissioner, the Police Minister and the Prime Minister of the country does not constitute notice as stipulated in s 5 of Claims By and Against the State Act. The law in this respect is without any ambiguity. The notice must be given to the Attorney General or Solicitor General. The plaintiff’s evidence and submission in that respect therefore have no basis in law, and I reject the evidence and submissions.

Counsel for the plaintiff also submitted that the plaintiff had not taken steps to give notice sooner because he thought the matter would be settled out of Court since he had already complained to the Police, and the Commissioner of Police had advised that an investigation would be carried out. There can be no basis for that assumption at all. It is a mere assumption unsupported by evidence. In law, the appropriate authority to give notice to, pursuant to s 5, is the Attorney General or Solicitor General.

The Police Commissioner’s letter dated 29 July 1996, gives no undertaking at all for an out of court settlement. He simply advised that the plaintiffs’ complaint would be investigated by the Commander of NCD and Central Police. There is virtually no material in that letter assuring the plaintiff that his complaint would be settled out of court. In any event, the plaintiff did not submit a quantified claim for the Commissioner’s consideration. There is a list of goods allegedly stolen by members of the Police Force who allegedly assaulted the plaintiff, but that list is unverified. There is no evidence of a quantified claim for damages for assault. And there is no evidence that such a claim, if it existed, had been submitted to the Police Commissioner. Accordingly, I consider that the plaintiff’s assumption that the matter would be settled out of Court has no basis whatsoever. That submission is both spurious and unmeritorious.

In my view, the phrase "sufficient cause," should not be definitive or restricted in its meaning and application. However, I consider that the whole circumstances of the case ought to be considered before the Court determines whether or not its discretion should be exercised in favour of the applicant. Ignorance of his rights is certainly a factor to be considered, though it is not the only consideration, nor is it conclusive. Such ignorance ought to be considered with a lot of other factors, some of which I adverted to in Motor Vehicles Insurance Trust v Insurance Commissioner (supra).

Whilst I accept that the plaintiff was initially ignorant of his rights, I find nevertheless, that he had easy access to legal services. In view of the fact that the Police Commissioner had not favorably responded to the plaintiff’s complaint, the plaintiff should have taken a prudent man’s approach. I mean, he should have thought, well the Commissioner of Police has not advised me of the result of his investigation, I should see a lawyer to commence legal proceedings, and of course, any competent lawyer would commence by giving the required notice to the Attorney General. In my view, that approach should have been adopted, say, on the fourth or the fifth month from 5 June 1996.

As I have adverted to, there was no basis at all for the plaintiff to assume that the Police Commissioner would resolve this matter. In my view, by the end of the fifth month, when the plaintiff did not receive any favourable response from the Police Commissioner, he should have engaged a lawyer to give the required notice and then commence legal proceedings.

Taking into account all the circumstances of this case, I consider that the plaintiff has not shown sufficient cause. There is no satisfactory explanation as to why he waited until 19 May 1999 to write to the Attorney General. The fact is, apart from writing letters, he practically did nothing to seek legal advice or engage a legal representative until February, 1997. But then, his lawyers, despite alluding to the issue of notice in their letter of 8 January 1998, did not give such a notice. The whole circumstances of this case clearly indicate to me that the plaintiff has failed to show sufficient cause for an extension to be granted to him. Under the circumstances the exercise of the Court’s discretion should be refused.

For these reasons, I decline the plaintiff’s application and order that it be dismissed.

Lawyer for plaintiff: Nonggorr & Associates.