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Regglie v Director General National Narcotics Bureau [2009] PGNC 187; N3805 (28 July 2009)

N3805

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1293 OF 2008

BETWEEN:

NICHOLAS REGGLIE
Plaintiff

AND:

THE DIRECTOR GENERAL
NATIONAL NARCOTICS BUREAU
First Defendant

AND:

GABRIEL YER, SECRETARY
DEPARTMENT OF FINANCE & TREASURY
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Davani .J
2009: 24th, 27th, 28th July

PRACTISE AND PROCEDURE – Application for summary judgment – affidavit verifying service of s.5 notice – must be filed and served together with other documents in support of application – s5(3)(a)(b) of Claims By and Against the State Act

Facts

Plaintiff is the applicant in an application for summary judgment. The claim is for unpaid leave entitlements. Although, the applicant claimed to have served s.5 Notice, he did not file an affidavit of service deposing to service of the s.5 Notice. He also did not attach a copy of the s.5 Notice to the affidavit in support of his application.

Issue

What should an applicant for judgment do to prove that personal service of the S.5 Notice of the Claims By and Against the State Act has been complied with?

Reasons

1. S.5(3)(a)(b) of the Claims By and Against the State Act specifically provides for the manner in which s.5 Notice must be served;

2. Once a s.5 Notice is properly served, the affidavit of service must be filed immediately, deposing to the circumstances of service;

3. When an application for default or summary judgment is filed and served, the affidavit of service of the s.5 Notice must also be filed and served, together with all court documentation in support of the application, upon the named respondents or the lawyers for the State. This is because an affidavit annexing s.5 Notice or a s.5 Notice, if properly served, will allow the State to properly conduct its investigations as to the veracity and authenticity of the claim;

4. In circumstances where the Court requests copy of S.5 Notice, which counsel claims, has already been served, this S.5 Notice must be attached to an affidavit deposing to when and where it was served. The affidavit must also be served upon the lawyers for the State or the Respondents before the matter next returns. Again, this will allow the State to properly conduct its investigations as to the veracity and authenticity of the claim.

Cases Cited:

Papua New Guinea Cases

PNG Forest Products Pty Ltd v. The Independent State of Papua New Guinea N1058
Kumul Builders Pty Ltd v. Post & Telecommunications Corporation [1991] PNGLR 299
Bruce Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112
Curtain Bros (Qld) Pty Ltd & Kinhil Kramer Pty Ltd v. The State [1993] PNGLR 285

Overseas Cases

Dyson v. AG [1910] UKLawRpKQB 203; 1911 1 KB 410
Lonrho PLC v. Fayed (1991) 3 All ER 303

Counsel:

G. Kaore, for the plaintiff/applicant
No appearance for the first, second and third defendants

RULING

28th July, 2009

1. DAVANI .J: Before me is Notice of Motion filed on 17th April, 2009 by Kaore Lawyers seeking summary judgment in the amount of K63,831.06. The plaintiff/applicant (‘applicant’) also asked that the defendants’ Defence be struck out for want of verification. The application for summary judgment is filed pursuant to O.12 r.38(1)(a)(b). The application for Defence to be struck out, is filed pursuant to O.8 r.24 of the National Court Rules (‘NCR’).

2. In support of that application is the applicant’s affidavit sworn on 19th March, 2009.

3. I should point out also that the applicant’s affidavit is in support of an application for default judgment as it states on the title to the affidavit. Together with that affidavit, is a further affidavit attaching s.5 Notice sworn on 17th July, 2009, done at the Court’s direction.

The law on summary judgment

4. The law in relation to summary judgment has been settled by the Supreme Court in Bruce Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112 and followed in Curtain Bros (Qld) Pty Ltd & Kinhil Kramer Pty Ltd v. The State [1993] PNGLR 285.

5. In both decisions, the Supreme Court said at 117 and 288 respectively;

"There are two elements involved in this rule;

(a) evidence of the facts proving the essential elements of the claim;

(b) that the plaintiff or some responsible person gives evidence that in his belief, there is no defence.

As to the second element, the plaintiff must show in absence of any defence or evidence from the defendant that in his belief, the defendant has no defence. If a defence is filed or evidence is given by the defendant, as in this case, the plaintiff must show that, upon the facts and/or the law, the defendant has no defence. The plaintiff will not be entitled to summary judgment if there is a serious conflict on questions of facts or law. Whether a case should go to trial on these issues, will be determined on the facts of each case." (See also Kumul Builders Pty Ltd v. Post & Telecommunications Corporation [1991] PNGLR 299)

6. In relation to claims against the State, the plaintiff must have properly given the s.5 Notice, to be done in accordance with s.5 of the Claims By and Against the State Act (‘Claims Act’).

Analysis of evidence and the law

(i) Section 5 Notice – On 24th July, 2009, I directed that Mr Kaore for the applicant, file copy of the s.5 Notice, attached to his affidavit. I directed that this affidavit must be firstly served on Mr Kuelinad, lawyer, of the Solicitor-General’s Office, which affidavit must depose to when the s.5 Notice was served. I specifically directed that the affidavit of service of the s.5 Notice must be served on Mr Kuelinad on or before close of business on 24th July, 2009, then made the matter returnable on 27th July, 2009 for submissions on the s.5 Notice.

7. On 27th July, 2009, only Mr Kaore appeared in Court. He handed up an affidavit which he swore which deposed that on 24th July, 2009 at 15:20pm, he served a sealed copy of the s.5 Notice which was attached to the affidavit of Nicholas Regglie, the applicant. He served this on the "lawyer acting for the defendants at the 6th Floor, Sir Buri Kidu Haus, Waigani." (par. 2 of George Kaore’s affidavit). The affidavit of the applicant which was sworn on 17th July, 2009 deposes that on 23rd January, 2008 at 11:43am, he served a s.5 Notice by effecting service of the original on the secretary of the Solicitor-General, namely Betty Makis on the 7th Floor, Sir Buri Kidu Haus, Waigani. A copy of this Notice is attached dated 21st January, 2008. That Notice is in relation to the applicant’s claim for recreation leave warrants for the period 1999, 2001 and 2003. He claims in that Notice a sum of K47,210.44.

8. I had issued the above directions because at the hearing of the application on 8th July, 2009, Mr Kaore did not have the affidavit attaching the s.5 Notice. I note that even when the application for default judgment was filed, this affidavit was also not before the Court. It was only upon my enquiries that it became clear that Mr Kaore had not filed such a Notice.

9. I should point out that the Court must be slow to request lawyers who move applications for default judgment or summary judgment against the State, to produce these notices after they have filed the applications. These affidavits must be filed together with the applications because when served upon the defendant State, the defendants would then be in a position to conduct enquiries as to whether they have properly received these notices. A lot of issues will be raised as to the propriety of service of these notices. If copies of notices are filed after requests or enquiries by the Court, done at the direction of the judge, the Court must also direct that an affidavit to which the notice is attached, must be served on the lawyer for the State with carriage of the matter or the lawyer in charge of the Litigation Section which would then enable them to conduct their enquiries as to the veracity and authenticity of this notice. (my emphasis).

10. In this case, I issued similar directions. The affidavit of Mr Kaore sworn on 27th July, 2009 only states that he served it on the lawyer acting for the defendants. That clearly is not in compliance with the Court’s directions.

11. The applicant’s affidavit sworn on 17th July, 2009, deposes to having served the s.5 Notice on 23rd January, 2008 on the Solicitor-General’s secretary. First, the issue as to when the cause of action arose, arises here for the Court to then determine whether s.5 Notice was given within time. I note the applicant’s claim is in relation to unpaid recreation leave due and owing from 1999 to 2007. Clearly, the 1999 claim is statute barred under s.16(1)(a) of the Frauds and Limitations Act because any claim from that period should have been lodged before 2002. This is pleaded in the defendants’ Defence (par.9). So that leaves only the claim for 2002 to 2007. The s.5 Notice which was received by the Solicitor-General’s Office on 23rd January, 2008 would only apply to actions or unpaid leave entitlements six (6) months before 23rd January, 2008 that is, from July 2007. Therefore, the only claims the applicant can lawfully claim are those from the period July 2007 upwards.

12. I note in the particulars to the Writ of Summons and Statement of Claim that the applicant claims an amount of K16,620.00 for the period 2007. He can only claim that.

(ii) Defences – The defendants filed their Notice of Intention to Defend and Defence through the Office of the Solicitor-General on 17th March, 2009. In its Defence, the defendants plead that if an application for recreation leave is approved by the first defendant, then travel is approved and requisitions are raised for payment of airline tickets (par.4).

13. The defendants also deny receipt of any letters written by the applicant. As for the accusations of delay on the part of the first and second defendants, the defendants plead that this issue is for the applicant to prove on the balance of probabilities (par.7).

14. The defendants also plead that the applicant’s claim for entitlements between 1999 to 2002 is statute barred (par.9) and that therefore he is not entitled to the full amount claimed.

15. The defendants also deny that the applicant is entitled to any other damages.

(iii) Should summary judgment be awarded? – First, the applicant claims for a liquidated amount. He has not put before the Court any evidence to substantiate this amount. His affidavit material is only his opinion and is not evidence of the outstanding amount, if any.

16. It is settled law that the Court will not lightly dismiss a pleading. In PNG Forest Products Pty Ltd v. The Independent State of Papua New Guinea, N1058, Sheehan .J considered the similar provision pursuant to O.12 r40 and summarized the history of English cases where one party sought to strike out the proceedings of an opponent. His Honour quoted from the case Lonrho PLC v. Fayed (1991) 3 All ER 303, a House of Lords decision which reaffirm the principles stated in Dyson v. AG [1910] UKLawRpKQB 203; (1911) 1 KB 410 that the procedures should be confined to cases where the cause of action was "obviously and almost incontestably bad". His Honour went on to say that the Court had to be sure that it is "plain and obvious" that the defence is unarguable before the defence will be dismissed.

17. In this case, I find that the Defence is not unarguable but is one that must be taken to trial, because the issues raised by the defendants are arguable. The plaintiff must properly prove his claim in a trial.

18. I find that the application for summary judgment has not been made out and dismiss the application. I also order that the applicant will pay all defendants’ costs of the application.

19. As for the application to dismiss the Defence for want of verification, I need not consider that application because I have found the Defence to be meritorious and arguable.

Formal Orders

20. The formal orders are;

(1) The application for summary judgment is dismissed;

(2) That the plaintiffs claim for the period 1999 to 2002 is statute barred;

(3) The plaintiff shall pay all defendants’ costs of the application to be taxed if not agreed.

____________________

Kaore Lawyers: Lawyer for the Plaintiff
Solicitor-General’s Office: Lawyer for the first, second and third Defendants