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Ogom v Southern Highlands Provincial Government [2015] PGNC 205; N6113 (24 September 2015)

N6113

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 470 OF 2015

BETWEEN:

KOPEAP OGOM
Plaintiff

AND:

SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT
Defendant

Mendi: Nablu, AJ
2015: 23rd & 24th September

CIVIL LAW – Claims by and against the Southern Highlands Provincial Claims Act 2000 – Section 4(2)(c)(ii) – Principles to extend time to file notice of claim – Principles for grant of extension of time similar to applications under Section 5 of the Claims By and Against the State Act – application granted.

Cases cited:
Koyasi Printing Ltd v. Independent State of Papua New Guinea (2014) SC 1369.
Rawson Construction Limited v. Department of Works (2005) SC 777
Counsel:
T. Berem, for the Plaintiff
No appearance, for the Defendant

RULING

24th September, 2015

1. NABLU, AJ: By way of an Originating Summons filed on 10th July 2015, the plaintiff seeks an order to extend the time to give a notice of intention to make a claim against the Southern Highlands Provincial Government and it's instrumentalities pursuant to Section 4 (2)(c)(ii) of the Claims By and Against the Southern Highlands Provincial Government Act 2000.

2. The application is supported by the Affidavit in Support of Kopeap Ogom.

3. The principles applicable in an application for extension of time to comply with Section 5 of the Claims by and against the State Act have been settled in the Supreme Court case of Rawson Construction Limited v. Department of Works (2005) SC777. The Supreme Court held that an applicant must show sufficient cause for meeting the requirements under the Claims by and against the State Act (CBASA). The demonstration of sufficient cause requires the applicant to:

1. provide by appropriate evidence a reasonable explanation for not giving notice within the period stipulated under section 5 of the CBASA and if there is a delay in applying for an extension of time the applicant must provide a reasonable explanation for the delay;
   
2. demonstrate a reasonable cause of action to be pursued on the merits; and
   
3. show by appropriate evidence that the delay in giving notice is not and or would not result in any prejudice to the State.
   

4. These principles have been reinforced in the recent case of Koyasi Printing Ltd v. Independent State of Papua New Guinea (2014) SC 1369.

5. Upon reading of the relevant authorities, it would appear that all those principles will have to be answered in the affirmative before the Court can exercise its discretion to extend the time.

6. I am of the view that those principles are applicable in an application for an extension of time to file a notice pursuant to Section 4(2)(c)(ii) of the Claims By and Against the Southern Highlands Provincial Government Act 2000.

7. In his Affidavit of Support, the applicant states that he was not aware of the requirement to give notice under the Claims by and against the Southern Highlands Provincial Claims Act 2000.

8. In the evidence before me, I find that the plaintiff did file a s. 5 notice pursuant to the Claims by and against the State Act within time.

9. Therefore, in regard to the first requirement, I am satisfied that reasonable explanation has been provided.

10. The second requirement is that the plaintiff has a reasonable cause of action on the merits. I am not entirely convinced that the plaintiff has a reasonable claim which date back to 1996. Some part of that claim should be reviewed by Counsel it may be statute barred under the Fraud and Limitation Act, but rather that is for Counsel to advise his client on. As it is, it would appear that the applicant has a reasonable action on the merits.

11. In relation to the final requirement, there is no evidence to say how the Southern Highlands Provincial Government (SHPG) would not be prejudiced. However, I find that the plaintiff has in fact filed a Section 5 notice under the CBASA within time, however, in order to bring an action against the SHPG he is required to file a notice under the SHP Claims Act. A further period can be ordered by the Court where sufficient cause is shown pursuant to section 4(2)(c)(ii) of the SHP Claims Act.

12. I am satisfied that the plaintiff has shown sufficient cause, having filed a s.5 notice when in fact he was supposed to file a notice under the SHP Claims Act.

13. For the foregoing reasons, I exercise my discretion to grant an order of extension of time to the plaintiff to give notice pursuant to Section 4(2)(c)(ii) of the Claims by and Against the Southern Highlands Provincial Government Act 2000.

14. The plaintiff is to file his notice of intention to make a claim within 7 days of this Order.

15. No order as to costs.

16. Time for entry of these orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

______________________________________________________________
Lawyer for the Plaintiff : Public Solicitor
Lawyer for the Defendant : No appearance