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Elipa v Labi [2013] PGNC 132; N5291 (20 June 2013)

N5291

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 490 OF 2000

BETWEEN:

JOHN ELIPA
Plaintiff

AND:

GIOSI LABI,
ASSISTANT HIGHLANDS REGIONAL COMMANDER
First Defendant

AND:

SIBU YARO
OFFICER IN CHARGE, TASK FORCE
Second Defendant

AND:

THE INDEPENDENT STATE OF PNG
Third Defendant

Mount Hagen: Poole, J
2013: 20 June

PRACTICE – Section 5 Notice – Claims Act – Evidence of service and notice, evidence and no record of receipt of Notice – Court's discretion – Section 158(2) of Constitution - Application for Default Judgement – No evidence of proposed defence –Application refused (Order 8 rule 14 National Court Rules – Requires specific pleading – Court must not speculate as to terms of defence.

Cases cited:

Guatal v PNG [1981] PNGLR 230
Kora Gene v MVIL [1995] PNGLR 346
Counsel:

Mr. Dowa, for Plaintiff
Ms. Agusave, for Defendant

20 June, 2013

1. POOLE, J: Background: On 3rd of May 2000 the Plaintiff filed a Writ and Statement of Claim seeking damages from senior Police Officers and the State for assault, theft or loss or destruction of property and damage to his motor vehicle and workshop.

2. The Statement of Claim pleads particulars of assault by members of the Police under the command of the First and Second Defendants and of the injuries he sustained. It also gives particulars of personal property lost and damage to the motor vehicle and workshop, and places value on those items.

3. On 4th August 2000 the State filed a Notice of Intention to Defend, but neglected to enter a Defence within the generous time allowed by the Claims Act, but sought, by the lawyers then on record for the State, to dismiss the action because no affidavit of service had been filed deposing to the Plaintiff having given Notice of Intention to institute a Claim, in compliance with section 5 of the Claims Act.

4. After the State filed it's Motion to dismiss, the Plaintiff filed an affidavit deposing to having served Notice under section 5 of the Claims Act on Kisolel Kiapin, the personal secretary to the Solicitor General, on 20th March 2000, but the Solicitor General then, by affidavit, claimed that no record could be found in the department records of having received the Plaintiff's letter.

5. The Plaintiff brought an application for Default Judgement and this was heard along with the Defendant's Application to strike the matter out for want of Notice of Intention to make a claim against the State. The Plaintiff and the Defendant filed extensive submissions and the Court reserved its decision.

6. The facts in this matter are confined to the question of whether the Notice provisions under section 5 of the Claims Act have been complied with. Although the lawyers then acting for the State applied for Leave to file a Defence out of time, no draft of a proposed defence was filed, so the Court has no information of what defence the State proposed to enter to the Statement of Claim.

7. There is evidence from a senior lawyer in the Solicitor General's Office that she could find no entry in the State Solicitor's records of having received from the Plaintiff any section 5 Notice.

8. There is evidence by affidavit from the Plaintiff that he personally served a written notice under section 5 of the Claims Act on the personal secretary of the Solicitor General in accordance with the provisions of the Claims Act. There is corroboration of the Plaintiff's affidavit in the form of an affidavit from Mr Peri, a lawyer in Mt. Hagen, who states that, on the 20th March 2000, he faxed a letter to the office of the Solicitor General for the purpose of giving notice of the Plaintiff's intention to make a claim. While this letter was not effective notice, because it was not personally served as required by the Claims Act, it corroborates the statements in the Plaintiff's Affidavit that the letter was faxed, posted and personally served, and the identical document is annexed both to Mr Peri's affidavit and the Plaintiff's affidavit.

9. The Law Applicable to these facts, is seen first, in Order 8 rule 14 of the National Court rules which requires a party to specifically plead any matter "which he alleges makes any claim, defence on other case of the opposite party not maintainable".

10. The Defendants have failed to put any evidence before the Court that there is any defence to this Claim. If the State wishes to raise a defence under the Claims Act, it should show that by placing a proposed Defence before the Court – for example by annexing it to an affidavit filed in support of the Motion. This was not done.

11. The Court cannot speculate what Defence the State may have and failure to provide evidence precluded the State from raising a matter of illegality (i.e. failure to comply with the Claims Act) in a Motion (because pleadings are not evidence) in the absence of an Affidavit from a Defendant/or a lawyer for a Defendant deposing to the existence of a proposed defence (see Guatal v PNG [1981] PNGLR 230 & Kora Gene v MVIL [1995] PNGLR 346).

12. Further, even if the State had deposed to a proposed defence of lack of Statutory Notice, that would not be the end of the matter. There is a clear conflict of evidence.

13. On the one hand the State has deposed that a search of its records fails to show any entry of notification by the Plaintiff of his intention to make a Claim. This is probative only of an absence of an entry in the Departmental records. It is, in a manner of speaking, "negative evidence".

14. On the other hand there is the positive assertion by the Plaintiff that he personally delivered the letter to the named person who was the proper person to receive the Notice.

15. In situations such as this the Court must exercise its discretion on what evidence it accepts, or does not accept. In so doing, I bear in mind the injunction in section 158(2) of the Constitution to give paramount consideration to the dispensation of justice.

16. In applying the law to these facts I note that the purpose of the legislature in passing the Claims by and Against the State Act, principally, was to ensure the State had adequate Notice of the Claim to ensure it had proper opportunity to obtain instructions, enter a timely defence and compile evidence.

17. The State, clearly, knew of the Claim – it filed a Notice of Intention to Defend well within the time allowed it to do so.

18. In these circumstances I exercise my discretion in favour of the Plaintiff's positive assertion that he gave Notice of Intention to make a Claim. This assertion is not contradicted by the State – which merely says that there was no record of any entry being made. I allow the Plaintiff's Application.

19. The Formal Orders of the Court are:

1. The Plaintiff shall have judgement for liability pursuant to Order 12 rule 25 of the National Court Rules,

2. The Plaintiff's costs of and incidental to this Application shall be paid by the Defendants, such costs to be taxed if not agreed.

3. The Parties shall file any further material on which they intend to rely at trial within 60 days of the date of this Order.

4. The parties shall file a statement of agreed and disputed facts and issues for determination prior to 15th August 2013.

5. The matter is to return to court on 19th August 2013 for any further directions and allocation of a possible trial date.

6. The parties have liberty to apply on 7 days notice.

______________________________________
P. M. Dowa Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyers for the Defendant