N6556
	  PAPUA NEW GUINEA 	
[IN THE NATIONAL COURT OF JUSTICE]

WS 768 of 2001

YAMANKA MULTI SERVICES LIMITED 
trading as Lilian Fast Food
Plaintiff

AND:

NATIONAL CAPITAL DISTRICT 
COMMISSION
Defendant

Waigani: Hartshorn J. 
              2016: 18th & 20th October 

	

Application for dismissal of proceeding

Cases cited 	
Kiee Toap v. The State (2004) N2731, N2766
Lerro v. Stagg (2006) N3050Paul Tohian v. Tau Liu (1998) SC566
National Capital District Commission v. Jim Reima (2009) SC993
Ronny Wabia v. BP Exploration Operating Co Ltd [1998] PNGLR 8
Tampion v. Anderson [1973] VR 321

Counsel:

Mr. N. Kopunye, for the Defendant

20th October 2016

1. 	HARTSHORN J:  This is a decision on an application by the defendant, the National Capital District Commission (NCDC) to dismiss this proceeding.

2.	 I allowed the application to proceed in the absence of representation on behalf of the plaintiff as I was satisfied that the lawyer for the plaintiff was made aware that the application was to be heard at 2:30pm on 18th October 2016, by way of a letter dated 22nd September 2016, that he personally acknowledged receiving on 23rd September 2016. Further, I was satisfied that the lawyer for the plaintiff had been served with a copy of the notice of motion of the defendant filed 8th September 2016 seeking dismissal, and an affidavit in support of Nelson Kopunye, under cover of a letter dated 9th September 2016, receipt of which was personally acknowledged on 12th September 2016.

3. 	The defendant seeks to dismiss the proceeding as:

a)	the plaintiff has failed to give discovery as ordered by this court on 27th July 2016;

b)	this proceeding is frivolous and vexatious as the plaintiff has failed to give the requisite notice pursuant to s. 5 Claims By and Against The State Act (Claims Act);

c)	the plaintiff failed to attend court on 7th September 2016 and has failed to take reasonable steps to prosecute this matter without undue delay.

4. 	The defendant relies upon Order 9 Rule 15 (1) (a), Order 10 Rules 5 and 9A(15) (1)(a), (b) and (c) and Order 12 Rule 40 National Court Rules.

Background

5. 	Yamanka operated a fast food bar. It is alleged that NCDC directed that Yamanka cease operating its fast food business because of unhealthy and unsanitary conditions. These conditions, it is alleged, were caused by the construction of roadworks by and on behalf of NCDC. Yamanka claims amongst others, compensation and damages.

6. 	This proceeding was commenced in 2001. Its history includes that default judgment was entered on 15th November 2004 in respect of paragraphs 14, 15, 18, 19 and 20 of the amended statement of claim filed 31st August 2004. An application to set aside that default judgment was refused on 18th February 2010. By consent order, Yamanka has since filed a further amended statement of claim and NCDC has filed an amended defence.

This application

7. The defendant submits that on 27th July 2016 this court made the following orders:

“1. Pursuant to Order 9 Rules 10, 11 and 12 and Order 12 Rule 1 of National Court Rules:

(i)	The plaintiff produce for inspection the original document/s disclosing that notice was given in accordance with section 5 of the Claims By and Against State Act 1996 and provide copy/ies of the same to this Honourable Court and the defendant.

(ii)	Such document/s must be produced and or provided within a period of 1 month from the date of this order.

(iii)	The matter to return for mention at 9:30am on 7 September 2016.

2. In the event the Plaintiff cannot comply with Order 1 above, the Plaintiff shall file and serve an affidavit deposing to its inability to comply with the orders and pursuant to Order 8 Rules 50 of the National Court Rules, the Defendant is granted leave and is at liberty to file an amended Defence to plead the Plaintiff’s failure to give notice pursuant to section 5 of the Claims By and Against the State Act 1996.”

8. 	The plaintiff’s lawyer was in court to receive the decision of this court on 27th July 2016 and so the plaintiff is aware of those orders.

9. 	As at the date of the hearing of this application, the plaintiff has not complied with the orders of 27th July 2016 by either:

a)	giving discovery or producing the original of the alleged notice given under section 5 Claims Act;

b)	filing an affidavit explaining reasons why it could not give discovery or produce the document.

10.	 It is further submitted that the plaintiff was given sufficient time to give discovery or produce the document and the conduct of the plaintiff demonstrates an intentional refusal or failure to give discovery as ordered.

Consideration

11. 	Order 10 Rule 9A (15) (1) and (2) National Court Rules is as follows:

“15.	SUMMARY DISPOSAL.

(1)	The Court may summarily determine a matter:
a.	on application by a party; or
b.	on its own initiative; or
c.	upon referral by the Registrar under (3) below.

(2)	The Court may summarily dispose of a matter in the following situations:
a.	for want of prosecution since filing the proceedings or since the last activity on the file; or
b.	for a failure to appear at any of the listing or directions hearing by a party or his lawyer; or
c.	for non-compliance of any order or directions previously made or issued by the Court at any of the listing processes.
d.	under any of the grounds set out in Order 12 Rule 40 and Order 8 Rule 27 of the National Court Rules.
e.	on any competency ground relating to non-compliance with the National Court Rules or any other relevant rules of Court.”

12. 	It is clear that the plaintiff has not produced for inspection the original document or documents disclosing that notice was given in accordance with s. 5 Claims Act and provided copies to the court and the defendant as ordered by this court on 27th July 2016. Consequently the plaintiff has not complied with an order of this court and is in breach of Order 10 Rule 9A (15) (c). Further, there is no explanation for the failure to comply with the order.

13. 	In addition, there was no appearance on behalf of the plaintiff in court when the matter was mentioned on 7th September 2016. I am satisfied that the lawyers for the plaintiff are aware of the orders of this court dated 27th July 2016 and of the hearing that was ordered for 7th September 2016 as the lawyer for the plaintiff made an appearance to receive the decision and the orders of this court on 27th July 2016. Given the circumstances, I am satisfied that this court should exercise its discretion in favour of the defendant and dismiss this proceeding.

14.	 Further, the plaintiff has failed to produce evidence of a notice that it should have given pursuant to s. 5 Claims Act. The Supreme Court case of Paul Tohian v. Tau Liu (1998) SC566 held that compliance with s. 5 Claims Act is a condition precedent to the commencement of a proceeding which relates to a claim against the State where a s. 5 Notice is required to be given, and the Supreme Court case of National Capital District Commission v. Jim Reima (2009) SC993 held that NCDC is an entity of the State and that notice pursuant to s. 5 Claims Act must be given before proceedings are commenced. 

15.	 In this instance, I am satisfied that a s. 5 notice should have been given as the plaintiff’s claim against the defendant is pleaded as being in tort (nuisance), contract and s. 58 Constitution. I note the plaintiff’s failure to give a s. 5 notice has been pleaded in the defendant’s further amended defence. Consequently, the proceeding is bound to fail as a s. 5 notice has not been given. When a proceeding is bound to fail, it has been held to be frivolous: Ronny Wabia v. BP Exploration Operating Co Ltd [1998] PNGLR 8, Kiee Toap v. The State (2004) N2731, N2766, Lerro v. Stagg (2006) N3050 and Tampion v. Anderson [1973] VR 321. 

16. 	Consequently, I am satisfied that the defendant is entitled to the relief that it seeks.

Orders

17.

a)	This proceeding is dismissed;

b)	The plaintiff shall pay the defendant’s costs of and incidental to the 	proceeding to be taxed if not otherwise agreed;

c)	Time is abridged.	

_____________________________________________________________
Begisegil Lawyers  	: Lawyers for the Plaintiff                                              
Kopunye Lawyers 		: Lawyers for the Defendant