N5260

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 912 OF 2011

BETWEEN

WENDY CATHY AKO
First Plaintiff

AND

NOEL AKO
Second Plaintiff

AND

MOUNT HAGEN GENERAL HOSPITAL BOARD
First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Davani .J
2013: 5th, 12th July

CLAIMS AGAINST THE STATE – Notice of Intention to make a claim against the State – Such notice to be given within the period prescribed or within the period extended by the Attorney General or the Court – such notice must disclose details about the claim to enable the State to conduct its enquiries.

CLAIMS AGAINST THE STATE – Medical negligence claim – Period within which to give notice extended by the Attorney General – The letter giving notice within the extended period must disclose details about the claim – The State refused to accept notice given within the extended period because the applicant did not name the alleged tortfeasor- Applicant must apply to the Court for a further extension of time to give notice – Claims By and Against the State Act S. 5 (2) (c)(ii).

Facts

The first plaintiff is the second plaintiff's wife. After five children and whilst pregnant with the sixth child, the first and second plaintiffs agreed to a tubal ligation, to stop the first plaintiff from having more children. The operation was performed by medical staff employed by the first defendant. However, the plaintiff became pregnant soon after. She claims to be traumatized by this and so, is suing the first defendant and its servants and agents for negligence. The plaintiffs were given an extension of time to give notice to the State under S. 5 of the Claims By and Against the State Act. They did so within the extended period but the State refused to accept the letter giving notice because it did not contain sufficient particulars of the claim, in this case the name of the alleged tortfeasor, i.e the person who performed the tubal ligation. The issue to be determined by the Court is whether, after the refusal, whether the earlier letter from the plaintiff's lawyers giving notice within the extended period was sufficient notice or whether the plaintiffs should have returned to Court with an application for a further extension of time to give the S. 5 notice.

Held

1.	Where an extension of time to give notice under S. 5 of the Claims by and Against the State Act is given, and if the State finds that the letter purportedly giving notice is not sufficient notice because it does not contain sufficient particulars, in this case, the alleged tortfeasor is not named and refuses to accept it for the purposes of S. 5, then the only alternative available to any plaintiff, is to return to Court to apply for an extension of time, citing and referring to the State's reasons for refusal and to seek orders for a further extension to time to give notice making submissions on the inadequacies or anomalies pointed out by the State, in this case, to name the alleged tortfeasor.

2.	The plaintiffs' lawyers should not have filed a Writ of Summons and Statement of Claim based on a Notice that was defective because unless notice is given, no cause of action exists.

3.	It is indeed pointless to seek a further extension from the State by written correspondence, because that will lead to an opening of the flood gates. An application to Court for an extension of time, after refusal, must be by Originating Summons supported by affidavits.

4.	The whole proceedings are dismissed.

Cases cited

Tau Liu v. Paul Tohian & the Independent State of Papua New Guinea (1997) N1615
Graeme Rundel v. MVIT [1988] PNGLR 20
Joy Kawai v. MVIT (1998) SC 588
William Maki v. Michael Pundia [1993] PNGLR 337
William Trnka v. the State [2000] PNGLR 294
Daniel Hewali v. the Police and the State (2002) N2233

Counsel:

Mr M. Maitang, for the plaintiffs
Ms F. Barton, for the first and second defendants

DECISION

11th July, 2013

1.	BY THE COURT: Before the Court are two Notices of Motions which are;

i.	Motion filed by Mirupasi Lawyers on 23rd April, 2013.

ii.	Motion filed by the Office of the Solicitor-General on 22nd March, 2013.

2.	Prior to the commencement of the hearing, Ms Barton from the Office of the Solicitor-General for the second defendant/applicant ('Applicant'), sought leave to withdraw amended Notice of Motion filed on 26th March, 2013 by the Office of the Solicitor-General. She informed the Court that she would in its stead, move Notice of Motion filed on 22nd March, 2013 by the Acting Solicitor-General.

3.	I asked Mr Maitang, for the plaintiffs if he would be prejudiced by this. Mr Maitang informed the Court that he had prepared his submissions based on the amended Notice of Motion. I then perused the amended Notice of Motion and noted that the plaintiff would not be prejudiced if I allowed the hearing of the State's motion because the orders sought in the amended Notice of Motion and the Notice of Motion were the same except that they were worded differently. The same orders sought were;

i.	a request to withdraw either the Notice of Motion and or the amended Notice of Motion. 

ii.	A request that the entire proceedings be dismissed for non-compliance with section 5 of the Claims by Against the State Act 1996 ('Claims Act').

iii.	That the proceedings be dismissed for disclosing no reasonable cause of action, pursuant to Order 8, Rule 27 (1) (a) and Order 12, Rule 40 (1)(a) of the National Court Rules.

4.	Effectively, the orders sought were identical, therefore it was obvious that the plaintiff's lawyers would not be prejudiced, and which was aptly demonstrated by Mr Maitang's response to the Status application.

The Application

5.	The Notice of Motion moved by Ms Barton, seeks orders in the following terms;

"1.	The Second Defendant is granted leave to withdraw the second defendant's Motion filed 30th September 2011 (Court document #4/8).

2.	And or that this entire proceeding be dismissed for non-compliance with Section 5 of the Claims By and Against the State Act, 1996.

3.	The entire proceedings be dismissed pursuant to Order 8 Rule 27 (1) (a) and Order 12 Rule 40 (1) (a) of the National Court Rules on the basis that the Plaintiff's Statement of Claim discloses no reasonable cause of action against the Defendants.

4.	Costs to the Second Defendant.

5.	Such other Orders this Honouable Court sees fit."

6.	This Motion is supported by the affidavit of Faith Barton, lawyer, sworn on 19th March, 2013 and filed on 22nd March, 2013.

7.	Mr Maitang for the plaintiffs oppose the defendant's application, submitting basically that they did give the S. 5 Notice within the extended period granted by the Attorney-General.

8.	In relation to the Motion filed by the plaintiff which is an application seeking leave to amend the Writ of Summons and Statement of Claim, to include the name of the alleged tortfeasor, I directed that I would hear that application subject to the outcome of the State's application to dismiss.

9.	The issue before me is whether, after the State rejected the letter purportedly giving notice within an extended period, dated 2nd July, 2010, whether the plaintiff should have filed the Writ of Summons and Statement of Claim or should he have applied to the Court, for an extension of time to give further notice? 

10.	I also noted that the Section 5 Notice lodged or given by the Plaintiff's lawyers dated 2nd July, 2010 to the Office of the Attorney-General, was received by that office on 5th July, 2010, as confirmed by the receipt stamp on the copy of the letter attached as annexure 'A' to Faith Burton's affidavit. By my computation of time, the letter granting extension of 14 days, dated 24th June, 2010, states that the 14 days would run from the date of the letter i.e, 24th June, 2013. The 14 days lapsed on 8th July, 2010. Therefore, the letter giving notice within the extended period was well within time.

11.	Firstly, I set out in full, Section 5 of the Claims by and Against the State Act. 

"S 5. NOTICE OF CLAIMS AGAINST THE STATE

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

(a)	the Departmental 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 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-

(a)	personal service on an officer referred to in Subsection (1); or

(b)	leaving the document at the office with the person apparently occupying the position of personal secretary to that officer between the hours 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 duty which is not a Saturday, Sunday, or a public holiday declared by or under the Public Holidays Act 1953."

12.	On 16th May, 2013, I issued directions for the filing and service of written submissions, to be filed and exchanged by parties before close of business on 28th June, 2013. Those submissions are in the Court file and which I have had the liberty of perusing.

13.	Ms Barton's affidavit deposes to the fact that the State had failed to disclose the identity of the medical officers who allegedly performed the tubul ligation operation upon the plaintiff. I see that Mr Maitang seeks to rectify that by the Application to Amend seeking to include the name of the Medical Officer who allegedly performed the operation. The State maintains the position that Mirupasi Lawyers' letter of 2nd July, 2010 supposedly giving the S. 5 notice, did not state the name of the alleged principal tortfeasor, hence failing to provide sufficient information that would enable the State to conduct its investigations etc, which contravenes well established principles of law in relation to the giving of properly detailed and specified details (Hewali v. the Police and the State (2002) N2233).

14.	I remind myself that the Court must be in control of the proceedings that come before it and can exercise its inherent powers to control and be in control of the proceedings and must not exercise the power to dismiss too readily especially where it will put an end to proceedings (William Maki v. Michael Pundia [1993] PNGLR 337).

15.	With that in mind, I reviewed Mirupasi Lawyers' letter dated 2nd July, 2010 purportedly giving notice under S. 5 of the Claims Act within the 14 days extended period. 

16.	I set out below, a chronology of correspondence exchanged between the plaintiff personally, Mirupasi Lawyers and the Office of the Solicitor-General. These are;

i.	25th March, 2010 - date of letter from the plaintiff personally, addressed to the Attorney General, Department of Justice and Attorney General, requesting an extension of time to issue the S. 5 Notice and which was received by the Department of Justice and Attorney General on 26th March, 2010.

ii.	24th June, 2010 – letter of from the Attorney General and Minister for Justice to the plaintiff acknowledging receipt of his letter of 25th March, 2010 and granting him an extension of 14 days as of the date of that letter (24th June, 2010) within which to make a claim against the State. 

iii.	2nd July, 2010 – date of letter from Mirupasi Lawyers to the Office of the Solicitor-General which was received by the Department of Justice and Attorney General on 5th July, 2010 and which letter acknowledged receipt of the Attorney General's letter of 24th June, 2010 to the plaintiff and giving notice of the plaintiff's intention to make a claim against the State.

iv.	24th June, 2010 – date of letter from the Solicitor-General to Mirupasi Lawyers which acknowledged receipt of Mirupasi Lawyers' letter of 2nd July, 2010 and pointing out that because the letter did not disclose the names and identities of the doctors or nurses of the Mount Hagen General Hospital who allegedly gave the plaintiff advice for the tubal ligation operation on 14th November, 2006 and that because of that, the Office of the Solicitor-General was unable to verify the plaintiff's alleged claim and to obtain instructions. It was for that reason, that the Office of the Solicitor-General rejected that letter as good notice for the purposes of S. 5 of the Claims Act.

v.	13th October, 2010 – date of letter from Mirupasi Lawyers to Solicitor-General received by the Office of the Solicitor-General and the Department of Justice and Attorney General on 23rd November, 2010 and which letter reads as follows;

"We refer to your letter of 24th September, 2010.

We completely disagree with your contentions. Our letter of notice met the requirements of Section 5 of Claims By and Against the State Act 1996.

Please read the cases of Daniel Hewali v. the State (2002) N2233 and Rundel v. MVIT [1988] PNGLR 20. We will proceed with our client's intention to make a claim against the State in Court."

17.	I asked Mr Maitang what he did after his last letter of 13th October, 2010. He informed the Court that he then filed the Writ of Summons and Statement of Claim now before the Court, on 4th July, 2011. In that Statement of Claim, the plaintiff seeks damages for the negligent actions of the first defendants' unidentified doctors and nurses.

18.	I asked Mr Maitang if that was the proper thing to do under the circumstances considering the Solicitor-General had refused to accept Mirupasi Lawyers' letter purportedly giving notice. I pointed out to Mr Maitang, S. 5 (2) (c) and (ii) of the Claims Act which states that notice can be given within a further period granted by the principal Legal Advisor or the Court before which the action is instituted.

19.	It is apparent that after the refusal by the Principal Legal Advisor, through the Office of the Solicitor-General, that the plaintiffs should not have proceeded by the filing of the Writ of Summons and Statement of Claim. And this is because the State had clearly refused to recognize and accept that the 2nd July, 2010 letter, purportedly giving s. 5 Notice, done within the period extended by the "Principal Legal Advisor" (S. 5(2) (c) (i) of the Claims Act). Although Mr Maitang submitted that he had already given notice within the extended period, Mr Maitang it appears, is oblivious to the fact that because the State had refused to accept his letter of 2nd July, 2010 as good notice, that the Claims Act has further reprieve for his clients, through S. 5 (2) (c) (ii). The appropriate thing to do under the circumstances is for Mr Maitang to come to Court by an Originating Summons, seeking a further extension and pointing out the basis on which the earlier notice was refused which would then be the issue for the Court to determine. However, instead of doing that, Mirupasi Lawyers filed the Writ of Summons and Statement of Claim.

20.	Again, I remind myself of the issue before me, which is whether the plaintiff should have filed the Writ of Summons and Statement of Claim or should the plaintiff have returned to Court with an application for a further extension of time within which to give notice?

21.	Section 5 of the Claims Act is in very similar terms to S. 54 (6) of the Motor Vehicles (Third Party Insurance) Act. That provision reads;

"(6) 	No action to enforce any claim under this section lies against the successor company unless notice of intention to make a claim is given by the claimant to the successor company within a period of 6 months after the occurrence out of which the claim arose, or within such further period as –

(a)	the Commissioner; or

(b)	the Court before which the action is instituted,

on sufficient cause being shown and, allows."

22.	In this case, there was a refusal by the Attorney General, through the Office of the Solicitor-General, to accept the S.5 notice letter because the plaintiff had not identified the alleged tortfeasors. Because of that refusal, it means that the plaintiff must come to Court for a further extension of time. This was done in William Trnka v. the State [2000] PNGLR 294, a decision by Sevua .J dated 4th May, 2000.

23.	In that case, the plaintiff applied for an order, seeking an extension of time to lodge Section 5 Notice to make a claim against the Defendant because the Attorney General had earlier refused to grant an extension to make a claim because of what it claimed to be an unreasonable delay in pursuing the matter.

24.	That application was made before His Honour who then considered whether there was exorbitant delay in giving that notice, meaning His Honour had to consider affidavit evidence filed by both the plaintiff and the defendants. The Court held that in order for the applicant to obtain an extension of time which would require an exercise of the Court's discretion in his favour, that he must show sufficient cause. The Court held that he failed to show that sufficient cause and in the exercise of the Court's discretion, the Court dismissed the plaintiff's application for an extension of time.

25.	The facts before me are not the same as that portrayed in William Trnka v. the State (supra); Rundel v. MVIT [1988] PNGLR 20 and Daniel Hewali v. PNG Police Force (2002) N2233. Rundel and Hewali more particularly, where, after the MVIL extended time to give notice (re Rundle) and, where the State was a party, the plaintiff did not give notice within that further extended period, (re Daniel Hewali) the court held in those cases that the mere referral to an earlier purported notice in subsequent correspondence within an extended period does not amount to notice within that extended period. Which means Mr Maitang's submissions that the plaintiff did give notice within the extended period, notwithstanding the status refusal to accept it, must fail. 

26.	Again, as in Joy Kawai v. MVIT (1998) SC 588, the Supreme Court said at page 3 of the judgment:

"after the Commissioner granted an extension of 28 days to lodge the notice, a letter of notice ought to be have been given to the trust together with the Commissioner's approval for extension of time for another 28 days. Mr O'Conner did not do that, he merely relied on the letter of 24th February, 1993 which in itself was invalid or ineffective. In any case, the Trust denied ever receiving the letter of the 25th February, 1995."

27.	I mention those cases to demonstrate the varying circumstances in which an extension of time is given and failure by the plaintiff's lawyers to specifically or properly comply.

28.	Although, the facts in this case are not the same as the above cited cases, an analogy can be drawn with those cases that where an extension of time is given and if the State, when considering the purported letter giving notice, finds that it is not sufficient notice, the only alternative available to any plaintiff is to return to Court for a further extension of time, citing and referring to the State's reasons for refusal and to seek orders for a further extension of time to pursue and correct whatever inadequacies or anomalies that were pointed out to him by the State.

29.	In this case, the plaintiff's lawyers did not do that but instead proceeded to file a Writ of Summons and Statement of Claim when there was no basis on which to file the Writ of Summons and Statement of Claim considering section 5 Notice is a condition precedent. (Tau Liu v. Paul Tohian & the Independent State of Papua New Guinea (1997) N1615). And I reiterate again the principles at law as held in Tau Liu and held in many subsequent later cases, that unless proper notice of intention to make a claim is given within the time prescribed or extended by the Attorney General or a Court, no cause of action exists against the State. (Daniel Hewali v. PNG Police Force (supra)).

30.	And as occurred in Graeme Rundel v. MVIT (supra), Kapi DCJ (as he then was) addressed a situation where after the Trust had given an extension of time, that he had power to grant another extension. It is worth pointing out his Honour Kapi DCJ's reasoning to understand why a claimant must go to Court for an extension if it is earlier refused by the Trust and in this case, the State. His Honour said this:

"it is difficult to imagine why the Commissioner should be given further power after having granted such an extension to consider a fresh application for a further extension. In my view, a person who has been an extension upon application to give notice of intention to the Trust should do so within that extended period and there is no proper injustice to enable the Commissioner to have further power to consider a further extension. Such a construction would render the time limitation intended by the Act to an indefinite period which would be determined by the number of fresh applications that maybe made."

(my emphasis)

31.	Of course, it is indeed pointless to seek a further extension from the State by written correspondence, because that will lead to an opening of the flood gates. An application to Court for an extension of time, after refusal, must be by Originating Summons supported by affidavits.

32.	The issue then arose before His Honour (in Rundell v. MVIT (supra))as to whether or not the plaintiff, having exhausted the power to extend time in which to extend the six (6) months period, could not apply to the Court under Section 54 (6) (b) to get an extension of time. His Honour did not consider that because that issue had not risen before him. He stated that this could be fully argued when and if the plaintiff wished to make a fresh application to the Court to consider an extension of time under Section 54 (6) (b) of the Act.

Conclusion

33.	As I pointed out to Mr Maitang in Court, the fact that the State had given an extension of time, which the plaintiff complied with, does not mean that the issue of the giving of proper notice is settled, especially where, as in this case, the State refused to accept that letter, as good notice. Again, as I tried to impress upon Mr Maitang, the fact that the State had refused to accept Notice within the extended period, means that the plaintiff must now come to Court to seek a further extension and to seek either the Court's leave to proceed to file a Writ of Summons and Statement of Claim without naming the tortfeasors or to seek an extension of time to file a Writ naming the alleged tortfeasors.

34.	Therefore, I find that the Writ of Summons and Statement of Claim filed on 4th July, 2011 is not properly before the Court because Section 5 Notice had not issued within a further extended period, such extended period, to be given by a Court, upon application.

35.	I will dismiss the proceedings in their entirety and will order that the plaintiffs pay the defendants' costs of the proceedings.

Formal Orders

36.	These are the formal orders of the Court:

1.	Writ of Summons and Statement of Claim filed by Mirupasi Lawyers on 4th July, 2011, is dismissed in its entirety;

2.	The plaintiff will pay the first and second defendants' costs of the proceedings, to be taxed if not agreed.

_____________________________________________________

Mirupasi Lawyers: Lawyer for the first and Second Plaintiffs
Office of the Solicitor-General: Lawyer for the Second Defendant