N2111

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1505 OF 2000

BETWEEN:

JOHN BOKIN, PHILIP KUA, ANTON KUA, KIME HANBRUK, LEO ONGANE, PASTOR PIUS, PHILIP WENA, PETER GENDE, ANTON PARAN, PETRUS AWAD AND OTHER RESIDENTS OF TAMANDA VILLAGE, BULOLO, MOROBE PROVINCE.
Plaintiff

AND:

SERGEANT PAUL DANA
First Defendant

AND:

WAKON JOHN, POLICE COMMISSIONER
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Mt. Hagen: Davani, J
2001: 24 May
: 13 June

PRACTICE AND PROCEDURE – Plaintiffs application for Default Judgment, Defendants application to dismiss proceedings or alternatively, for leave to file Notice of Intention to Defend and Defence – Letter giving notice of intention to make a claim against the State shall be personally served … - Affidavit of Service must state that Notice was personally served on appropriate persons referred to in Claims By and Against State Act within a period of six months after the occurrence out of which the claim arose. Claims By and Against the State Act 1996 s.5(1)(a)(b)(2)(a)(b)(c)(3)(a)(b), Motor Vehicle (Third Party Insurance) Act Chapter 295 s.54(6).

Cases Cited:
Paul Marinda v The State N1026;
Paul Tohian, Minister for Police and The State v Tau Liu SC566 27 August 1998;
Kamapu Minator Philip Komo and The State N1768 23 October 1998.

Counsel:
M. Zimike, for the Plaintiff
J. Ovia, for the Defendants

13 June 2001

DECISION
(Interlocutory Application)

DAVANI, J:	There are two applications before me. An Application for Default Judgement filed by the Plaintiffs and the Defendants application to either dismiss the proceedings or alternatively, for leave to file Notice of Intention to Defend and Defence.

The Plaintiffs also requested, in court, an amendment to the Statement of Claim to include the correct date of the alleged raid, being "27 April 1997".

The Plaintiffs Notice of Motion seeking those orders was filed on 21 March 2001. 

In support of that application, the Plaintiffs filed the following documents;
•	Affidavit of Service sworn by Joe Yal Maroons, dated 5 February, 2001 and filed on 12 February, 2001;

•	Affidavit of Service sworn by Sakias Poning on 23 November 2000 and filed on the same day.

•	Affidavits sworn by Maike Zimike on 21 March 2001, filed on 6 April 2001 and sworn and filed on 17 May 2001.

•	Writ of Summons dated 25 October 2000 and filed on 27 October, 2000;

The Defendants motion was filed on 16 May 2001 and is supported by the Affidavit of by John M Kimura sworn on 7 May 2001 to which a draft Defence is attached.

Application for Default Judgment

Should this court enter Default Judgement against the Third Defendants? If not, should the Defendants be given leave to file their Notice of Intention to Defend and Defence.

The Writ of Summons issued by the Plaintiff against the State claims that on 23 October 1996 the First Defendant and several other policeman without good cause, proceeded upon the Plaintiffs village and destroyed properties to a value in excess of K7 million.

The Affidavit of Service of Sakias Poning states that:

1.	Service was effected on the office of the Solicitor General located on the 7th Floor of the old Australian High Commission on Kisolel Kiapun, Secretary to the Solicitor General, on 21st November, 2000 at 9.11 am.

2.	Service was effected on the office of the Police Commissioner at Konedobu on Joe Augustine, a Legal Clerk on 20th November 2000.

Joe Yal Maroon’s affidavit of service confirms personal service on the First Defendant on 24 November 2000. 

For the Defendants Mr. Kumura does not raise any objections in relation to the manner of service but states that neither the Plaintiffs nor other Lawyers had given the mandatory notice under s.5 of the Claims By and Against the State Act of 1996. (the "Claims Act’).

The Plaintiffs argue that they have given the mandatory notice, which is a letter from Warner Shand Lawyers addressed to the Solicitor General’s Office, dated 15 September 1997. This letter is in evidence before me.

Section 5 of the Claims Act and Against the State Act reads:-

"5.	NOTICE OF CLAIMS AGAINST THE STATE

(1)	No action to enforce any claim against the State lies against the Sate unless notice in writing of intention to make a claim is given in accordance with this section by the claimant to –

(a)	the Department 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 of 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 shown, allows.

(3)	A notice under subsection (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 personal secretary to that officer between the house of 7.45am and 12 noon, or 1.00pm and 4.06pm 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 service hours of duty, on any day which is not Saturday, Sunday or a Public Holiday declared by or under the Public Holidays Act (Chapter 321)

The letter purportedly giving notice is addressed to "the Solicitor, Solicitor Generals Office, Department of Attorney General, P.O. Box 591, WAIGANI, National Capital District".

It gives notice, naming 11 individuals one of whom is Kaspar Wek, whom I am told, has filed separate court proceedings. The Notice is in effect, for ten people only, excluding Kaspar Wek, and advises of a police raid occurring "on or about 27 April, 1997" at Tamanda village, Bulolo, Morobe Province.

Although the letter bears a date that falls within the six month period, did the plaintiffs comply with s.5(3)(a) and (b) when serving the notice. There is no evidence before me from the Plaintiffs confirming that;

-	notice was personally served on an officer referred to in s.5(1)(a) and (b) who are the Department Head responsible for justice matters or the Solicitor General or

-	that notice was left at the office of the officer occupying the office. Position of Personal Secretary to the Departmental Head responsible for justice matters or the Solicitor General between the hours specified of 7.45 am and 12.00 noon or 1.00 pm and 4.06 pm.

Section 5(3) is a mandatory provision in that it states "notice shall be given by…", similar to s.54(6) of the Motor Vehicle (Third Party Insurance) Act Chapter 295 (‘MVIT ACT’). The MVIT Act however does not specify how notice is to be delivered. The Claims Act is very specific in that it states "notice shall be personally served". This was probably done to avoid a situation where these letters may get lost in the mail or may be received by the Solicitor Generals Office, well after the six months notice period. I believe this is what may have occurred here. The Plaintiff posted the letter which may have been received some "5 months after the expiration of the six month period", a fact deposed to by John Kumura for the Defendants.

The requirement to give notice has been discussed in many cases, one of which is Paul Marinda v The State, N1026 where Woods, J discussed the requirement to comply with the notice procedure are under the Claims Act more particularly where the State had failed to file its Notice of Intention to Defend and Defence. 

His Honour said;

"Judgement by Default is a rather draconian procedure being as it is in the absence of the other party. In effect it arises because of the failure of the other party to show any interest in the proceedings. However it presupposes that everything has been done properly thus that the other party has been served properly with the proceedings and has been given proper notice.

If a default judgement has been entered irregularly, namely not strictly in accordance with the rules of court, a defendant may have it set aside as of right. Further, default procedure is permissive only it is not mandatory. It short cuts the need to got to a proper trial".

In this case I am asked to enter Default Judgement so I must assume and be satisfied that the plaintiff has proceeded strictly in accordance with the rules or the law. In this case the Plaintiff has not complied with the initial step and that is the service of the mandatory notice. I am inclined to dismiss the Plaintiffs application for Default Judgment.

This then bring me to the Defendants application to dismiss or alternatively, leave to file a Defence and Cross-Claim.

Application for leave to file Defence and Cross-claim or to Dismiss

The Defendants argument in the alternative is that if the court finds that the mandatory notice was not given, then the Plaintiffs claim should be dismissed, in its entirety. This aspect of the law was raised and discussed in the Supreme Court case of Paul Tohian Minister for Police and The State v Tau Liu SC 566 (27 August 1998). There, Kapi DCJ, Sheehan, J and Jalina, J upheld an appeal which arose out of the National Court, Mt. Hagen where the presiding judge dismissed the States application to have the proceedings dismissed for lack of notice under s.5 of the Claims Act where the Trial judge held that because the Writ of Summons was filed within 6 months of the occurrence of the incident out of which the claim had arisen, that there was no requirement to give any notice to the state.

In this case, the writ was filed well outside the 6 months period, on 27 October 2000 (expired on or about April 1998). However that is not in issue here. What is in issue is whether the claim can be dismissed, considering the Plaintiffs had not served the mandatory notice.

The Supreme Court in the Tau Liu’s case upheld the appeal, quashed the trial judges decision and dismissed the writ of summons and held in their reasons that;

"The provision under consideration is very similar to s.54 of the MVIT Act. The Supreme Court has considered that provision and concluded that service of notice of intention to make a claim under the MVIT Act is a mandatory condition precedent to the validity of any writ of summons filed against the Trust (see Rundle v MVIT [1988] PNGLR 20)…"

The Court held further;

"The purpose of the requirement to give notice remains the same whether or not the notice is required to be given within the 6 months or within such further period as may be granted by the Principal Legal Adviser or the Court. It is clear to us that the notice of intention to make a claim is a condition precedent to issuing a writ of summons in all circumstances".

By the same taken, it is a condition precedent that the notice of claim must be served in accordance with the provisions of s.5(3)(a) or (b) of the Claims Act. As was held by Akuram, J in Kamapu Minato v Philip Kumo and The State N1768 (23 October 1998);

"the purpose of s.5(1) and (2) of the Claims By and Against the State Act 1996, is to give the State early notification of the claim so that it can make inquiries as to, as in this case, the raid itself, the policemen involved, the properties damaged or destroyed, their value, the witnesses and whether the action is time-barred…"

That was why the legislators specifically inserted s.5(3)(a)(b) of the Claims Act to prevent or avoid queries being raised regarding receipt of the notice, as the State is responsible for the actions of so many people over the whole nation. One letter, if properly served, will prevent a lot of uncertainty. 

Therefore, I find that it will not serve any purpose if I give leave to amend the Statement of Claim or for the State to file the Defence to the Cross Claim as the Plaintiff has not complied with the initial mandatory step, being the failure to properly serve the Notice of Claim. I will grant the States application to dismiss the Plaintiffs claim in its entirety. I order also that the Plaintiffs pay the Defendants party/party costs of the proceedings, to be taxed if not agreed.
______________________________________________________________________
Lawyer for the Plaintiff	:	Paulus Dowa Lawyers
Lawyer for the Defendants	:	Solicitor General’s Office