N2591

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT MOUNT HAGEN]

WS. NO 425 OF 2001

MICHAEL BUNA
Plaintiff/Respondent

V.

THE MANAGER – DEPARTMENT OF WORKS,
WESTERN HIGHLANDS PROVINCE
First Defendant
&
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant/Applicant

Mount Hagen: Manuhu, AJ
2004: June 18 & 28

RULING

Practice and procedure – application to set aside ex parte order – application to dismiss proceedings - relevant considerations.

Cases cited:
Paul Tohian & Anor v. Tau Liu, SC 566 (27th August 1988);
Mudge and Mudge v. Secretary for Lands & Ors [1985] PNGLR 387.

Counsel:
Mr. P. Kunai, for the Plaintiff/Respondent.
Mr. J. Kolkia, for the Second Defendant/Applicant.

28th June, 2004.

MANUHU, AJ: The Second Defendant/Applicant ("Second Defendant") is seeking various orders in this application. The main ones are:

1.	That the default judgment entered on the 29th April 2002 was irregular and should be set aside.

2.	That the entire proceedings be dismissed for failure to give notice within six months pursuant to s. 5 of the Claims By and Against the State Act 1996.

3.	Alternatively, that the First Defendant be removed as a party to the proceedings pursuant to Order 8, Rule 9(1) of the National Court Rules.

4.	Further and alternatively, that the entire proceedings be dismissed for disclosing no cause of action.

There are, however, only two grounds that are relied upon by the Second Defendant. The first one is that the notice of claim as required by s. 5 of the Claims By and Against the State Act 1996 ("the Act") was not given within six months from the date the cause of action arose. Secondly, that the First Defendant is an incompetent party. 

Notice of claim

The proceedings must be dismissed if the notice of claim, which is a mandatory procedural requirement, is not served within the required time: Paul Tohian & Anor v. Tau Liu. In this case, the issue of non-compliance with the notice requirement is dependent on when the cause of action arose. 

According to the statement of claim, the Plaintiff lives upstream of the Tuman River Bridge at Kindeng, Anglimp District, Western Highlands. The bridge is part of the Okuk Highway. The Plaintiff owns a portion of land with improvements such as houses, food gardens, coffee trees, pandanus trees and other economic trees along the course of the river, a distance of about 460 metres upstream from the bridge. 

On or about 2nd February 1997, the First Defendant carried out excavation work which resulted in the diversion of the course of Tuman River. At the time relevant time, the Plaintiff raised objections against the excavation and diversion of the river but the First Defendant took no notice. As a result of the excavation and diversion by the First Defendant, the river flooded the Plaintiff’s land and caused damage to the land, as well as the improvements on it. The Plaintiff filed the proceedings on 4th April 2001 alleging negligence against the defendants. 

Unfortunately, the statement of claim does not state whether the requirement of notice of claim was complied with; and; when the flooding occurred. For this reason, the Second Defendant’s application is understandable. However, in opposing this application, the Plaintiff has deposed that flooding took place on 5th and 10th January 2000. It is further deposed, and I accept, that on 24th February 2000, the Plaintiff gave notice of his claim to the State, and the State has acknowledged receipt of the notice.

Thus, when the excavation and diversion of Tuman River took place in 1997 there was no cause of action against the defendants. The Plaintiff had not suffered any loss. The reason to sue only arose when flooding occurred on 5th and 10th January 2000. The notice of claim was then given to the State within six weeks after the flooding. On 13th March 2000, the then Acting Solicitor General, Hitelai K. Polume, responded to the notice of claim, advising the Plaintiff that she would take further instructions from the Department of Works, but mentioned nothing on liability. 

In the circumstances, I am satisfied that the issues of non-compliance with the notice requirement and the date the cause of action arose are settled. I am thus satisfied that the plaintiff has complied with the notice requirements under s. 5 of the Act. 

Incompetency of First Defendant

It is further submitted by the Second Defendant that a Government Department or a Public Service position cannot be sued. That is because they are not legal entities. 

An identical issue was raised in the Supreme Court matter of Mudge and Mudge v. Secretary for Lands & Ors, which has been referred to me by counsel. In that case, where the Secretary for Land was named as such as a party, Kidu, CJ said:

"Counsel for the first and second respondents, as a preliminary point, submitted that the first respondent cannot be sued as the office has no corporate personality. There cannot be any doubt that the office is a public service one created by the Head of State on advice …. As it is not a corporate entity that can sue or be sued I agree with counsel that the first defendant was an incompetent defendant. In law, only a person (a human being of age) or a corporate person (an incorporated body) can sue or be sued in a court. In this case, the appellant should have proceeded against the occupant of the office of the Secretary for Lands."

What else can I say? The Manager is an administratively created position within the Department of Works, is not a corporate body, and cannot sue or be sued. I am satisfied therefore that the Manager, the Provincial Manager, in fact, is an incompetent party to the proceedings.

Inordinate delay

I must take into account also that His Honour Sakora, J entered judgment in this matter on 19th April 2002, some twenty-six months ago. It seems to me that this application was pursued when the Second Defendant through the Solicitor-General, briefed out its matters to Paraka Lawyers, who are, understandably, taking all necessary steps to defend numerous claims against the State. Be that as it may, the need for prompt action should never be compromised. Twenty-six months is a long time. In applications like this, failure to promptly move to set aside an order made ex parte will operate to the disadvantage of the party making the application. And in this case, change of lawyers does not alter the fact that there has been a delay of twenty-six months. 

Appropriate orders

The Second Defendant seeks firstly that because of non-compliance with the notice requirement the default judgment entered on 19th April 2002 was irregular and should be set aside. But I have found that s. 5 requirement was not breached by the Plaintiff. It was also submitted that the default judgment in question is irregular by reason of the First Defendant’s incompetency. I am, however, of the view that the incompetency of the First Defendant is not a serious error. It does not affect the liability of the Second Defendant, which is, under s. 1 of the Act, vicariously liable for the tortious acts of its servants and agents within the Department of Works who carried out the excavation work. There are sufficient pleadings to demonstrate a cause of action in tort against the employees of the Works Department, hence, the Second Defendant’s liability. 

The Second Defendant seeks secondly that the entire proceedings be dismissed also for failure to give notice within six months pursuant to s. 5 of the Act. I am of the view that to eliminate such applications arising in future, compliance with the notice of claim requirement, since it affects the competency of proceedings, must be pleaded in all proceedings against the State. In the absence of any clear practice directions, however, I will give the Plaintiff the benefit of doubt. As a result of this application, it has been clarified that the notice of claim was indeed served within six months from when the flooding occurred. 

The Second Defendant also seeks to have the First Defendant removed as a party to the proceedings pursuant to Order 8, Rule 9(1) of the National Court Rules. I have already found that the First Defendant is an incompetent party and will remove him as a party. But, as I have found, the removal does not invalidate the proceedings against the Second Defendant. Consequently, I will not dismiss the proceedings on the basis of the First Defendant’s incompetency.

It is also sought that the entire proceedings be dismissed for disclosing no cause of action. It is undisputed that excavation work was done in 1997 but the Plaintiff did not have any reason to sue then. The reason to sue only arose when flooding occurred on 5th and 10th January 2000. The Plaintiff asserts that floods destroyed his property as a consequence of diversion of the Tuman River by the First Defendant. The notice of claim was then given to the State within six weeks after the flooding. Consequently, I am unable to dismiss the proceeding on the basis of no cause of action. 
 
In the end, the only order I can make is that the First Defendant should be removed as a defendant, and the matter should proceed against the Second Defendant without any more delays for assessment of damages. The parties should bear their own costs.

Orders accordingly.
_________________________________________________________________
Lawyer for the Plaintiff 	: 	Kunai & Co. Lawyers.
Lawyer for the Defendant	: 	Paraka Lawyers.