Toap v PNG [2004] PGLawRp 57; [2004] PNGLR 624 (21 December 2004)

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LAND – Practice and Procedure – Landowner seeks compensation from State for illegal use of his land – Claim based on alleged negligence by Department of Lands and Physical Planning – Application for default judgment – Failure to file defence in time – Application to strike out proceedings – Whether plaintiff failed to comply with Claims By and Against the State Act – Whether the proceedings are time-barred – Frauds and Limitations Act – Whether statement of claim failed to disclose reasonable cause of action – Whether proceedings are frivolous or vexatious – Whether proceedings are an abuse of process – National Court Rules, Order 12, Rule 40 – Whether application to strike out proceedings should be granted – Discretion of Court.

The plaintiff claimed that he was lessee of a block of land that was unlawfully occupied by the provincial government which started to erect two buildings thereon. That the Department of Lands and Physical Planning failed to advise the provincial government that the property was already allocated. Due to the negligent conduct of the Department the plaintiff's land was illegally expropriated by the provincial government. He claimed compensation for the negligence of the Department, causing the 'illegal alienation' of his land. The defendant applied for the proceedings to be dismissed on the following grounds:

non compliance with section 5 Claims By and Against the State Act;·for being time-barred pursuant to Section 16(1)(a), Frauds and Limitations Act; for disclosing no cause of action; for being frivolous and vexatious and for being an abuse of process, pursuant to Order 12, Rule 40, National Court Rules. Alternatively, an application to file a defence out of time pursuant to Order 7, Rule 6(2), National Court Rules.

1. The plaintiff was required by section 5 of the Claims By and Against the State Act to give notice to either the Secretary for Justice or the Solicitor- General, of his intention to sue the State. Notice must be given within 6 months from the date of the occurrence out of which the claim arose. He failed to comply with the Act.

2. The action was time barred, being started more than six years from the date the cause of action arose.

3. The statement of claim failed to disclose a reasonable cause of action in negligence.

Anderson Agiru v Electoral Commission and The State reported (2002) SC687.
Application by Anderson Agiru (2002) SC686.
Application by Anderson Agiru (2003) SC704.
Central Pomio Logging Corporation Pty Ltd v The State [1990] PNGLR 195.
Eliakim Laki and 167 Others v Maurice Alaluku and Others (2002) N2001.
Gabriel Apio Irafawe v Yauwe Riyong (1996) N1915.
Gia Kewa Piel v Eric Ranpi [1996] PNGLR 396.
In the Matter of the Lawyers 1986 and In the Matter of an Application by Peter Norman Moore [1993] PNGLR 470.
Kiee Toap v The State and Electoral Commission and Another [2004] PNGLR 624.
Orogen Minerals Limited v David Sode, Commissioner General of Internal Revenue and Others (2003) N2467.
PNG Forest Products Pty Ltd and Another v The State and Genia [1992] PNGLR 85.
Ronny Wabia v BP Exploration Co Ltd and Others [1998] PNGLR 8
Siaman Riri v Simion Nurai (1995) N1375.
Supreme Court Review No 4 of 1990; Application by Wali Kili Goiya [1991] PNGLR 170.
The State v The Attorney-General and The Electoral Commissioner (2002) N2193.
Takai Kapi v Daniel Don Kapi and Electoral Commission (1998) SC570.
Tohian and The State v Tau Liu (1998) SC566.
TST Pty Ltd (Provisional Liquidator Appointed) and Tin Siew Tan v Thomas John Pelis and Pelton Investments Pty Ltd (1998) N1747.

Cannings j. This is a ruling on various motions arising out of proceedings commenced by the plaintiff, who claims to be the lessee owner of a block of land in Mendi, Southern Highlands Province. The plaintiff claims that the Southern Highlands Provincial Government illegally occupied his land, and that this was due to the negligence of the Department of Lands and Physical Planning. He seeks compensation.

The defendants are applying to have the plaintiff's case struck out summarily. The plaintiff says that his case should remain on foot and that default judgment should be entered in his favour.

This case is about a block of land in Mendi town, Allotment 11, Section 12. The plaintiff says he is the lessee of that land and that it has been unlawfully occupied by the Southern Highlands Provincial Government.

On 21 May 2003 the plaintiff hand-delivered a letter addressed to the Solicitor-General, to Mary Bulina, a legal secretary with the Office of Solicitor-General. The letter was headed:

"Illegal alienation & loss contingency of leasehold property – section 12 allotment 11 mendi town southern highlands province claim damages for distress, frustration & inconveniences for settlement at K7,228,303.30".

The letter was, three pages in length. The plaintiff stated that the provincial government had illegally occupied his land and erected two buildings. He served a stop work notice on 7 December 1995, when the building was being erected. However, his notice was ignored. He claimed that the Department of Lands and Physical Planning had negligently alienated and transferred the land to the provincial government. He claimed K7,228,303.30 compensation. He allowed 30 days to settle his claim. If it were not settled by then, he would take the matter to Court.

The statement of claim attached to the writ of summons avers to a number of matters in 12 numbered paragraphs. The grammar and syntax in almost every paragraph is poor. For example, paragraphs 6, 7 and 8, which contain the central allegations of negligence and impropriety, state:

6 The plaintiff claims that the 2nd defendant have negligent or failed to advise its clients the Southern Highlands Provincial Government that the property Allotment 11: Section 12 Mendi town was already allocated to lease holder or other alternative directive was required at the beginning of seeing the illegal development occurred at the Construction site.

7 The plaintiff claims that the 2nd defendant was a well vested organ to act promptly on the illegal occupancy on a property by co-ordinating all the legal responsibilities between the Provincial Building Board members and other legality involved that straight after the obtaining of a copy of the Stop Work Notice dated on 7 December 1995 was physically hand delivered at the Provincial Lands Office.

8 The plaintiff claims that the 2nd defendant was acting on behalf of the 1st defendant the Independent State of Papua New Guinea who refused or failed to give a legal directive to the Authorized Body of the Province the Provincial Building Board for its final Notice would have been followed to discontinue the occupation on the property at that time of the year.

The poor drafting of the document has legal consequences referred to later. It is difficult to summarise the plaintiff's claim or cause of action. However, it appears that what is pleaded to is negligence.

The plaintiff claims that the 1st defendant, the State, is liable to compensate him for the damage to his property etc. The plaintiff claims the amounts summarised below, plus interest (20%) and costs.

SUMMARY OF CLAIM
Details	Amount (K)
1st defendant to pay "for illegal alienation of leasehold property to its client to cause damage the whole dimension of the property" [sic]	1,237,500.00
1st defendant to pay "for illegally permitting its client and made it possible to blockage for business progressive participation" [sic]	782,000.00
1st defendant to pay "for illegally failed to convey the legal stop work notice that issued on 7 December 1995" [sic]	1,807,750.00
1st defendant to pay "for being illegally failed to inform the provincial building board on the issuance of stop work notice straight away" [sic]	722,900.00
Total	5,550,150.00

On 17 November 2003 the writ and statement of claim were served on the 1st and 2nd defendants.

On 3 December 2003 the Acting Solicitor-General, Mr John Kumura, filed a notice of intention to defend on behalf of both defendants.

Since July 2004 three motions have been filed. They can be summarised as follows:

SUMMARY OF MOTIONS
No	Date	Filed by	Detail
1	19.07.04	Plaintiff	Application for default judgment.
2	08.09.04	1st and 2nd defendants	Application to dismiss proceedings on three grounds: for non-compliance with Section 5, Claims By and Against the State Act; for being time-barred pursuant to Section 16(1)(a), Frauds and Limitations Act;·for disclosing no cause of action, being frivolous and vexatious and for being an abuse of process, pursuant to Order 12, Rule 40, National Court Rules. Alternatively, an application to file a defence out of time pursuant to Order 7, Rule 6(2), National Court Rules.
3	17.08.04	Plaintiff	Cross-motion re the defendants' motion of 08.09.04.*

* This motion was unnecessary. It was simply a notice that the plaintiff would oppose the defendants' motion.

On 19 November 2004 the three motions were argued. This ruling covers all of them.

3. Does the plaintiff's statement of claim fail to disclose a reasonable cause of action?

If the answer to any of the above issues is 'yes', the Court has the discretion to summarily dismiss the plaintiff's claim, ie the case will not proceed to trial. If, however, the Court refuses the application to dismiss the proceedings summarily or if the answer to all the above issues is 'no', it will be necessary to ask:

6. Should the defendants be granted leave to file a defence out of time ie after the time limits set by the National Court Rules?

7. Should default judgment be entered in favour of the plaintiff on the ground that the defendants have not filed a defence?

(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 [ie the Secretary for Justice]; or

(a) within a period of six months after the 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

(ii) the court before which the action is instituted, on sufficient cause being shown, allows.

(b) leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., 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 day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).

(1) Where, immediately before the coming into operation of this Act, an action to enforce a claim by or against the State has been commenced under the Acts repealed by Section 20 and has not been finally determined, the proceedings on the action shall be taken up and continued under and in conformity with the provisions of this Act, so far as consistently may be.

(2) Where upon the coming into operation of this Act no action to enforce a claim against the State has been commenced in respect of an occurrence which took place before that coming into operation, notice shall be given in accordance with Section 5(1) within a period of six months after that coming into operation, or within such further period as—

(b) the court before which the action is instituted, on sufficient cause being shown, allows.

The plaintiff's claim is against the State and the Department of Lands and Physical Planning. He was required by Section 5 to give notice of his claim to either the Secretary for Justice or the Solicitor-General. He gave notice in writing on 21 May 2003 by hand-delivering a letter setting out the nature of his claim to a legal secretary in the Office of Solicitor-General. Therefore he complied with Sections 5(1) and 5(3).

But did he comply with Section 5(2) or Section 21(2)? The plaintiff's claim is not for a breach of contract (see Section 5(2)(b)). No further period for giving notice of intention to make a claim has been allowed by the Principal Legal Adviser or the National Court (see Sections 5(2)(c) and 21(2)(a) and (b)). Therefore, the question is whether he gave notice of his intention to make a claim within six months after the occurrence out of which the claim arose (if the occurrence took place after the coming into operation of the Act) or within six months after the coming into operation of the Act (if the occurrence took place before the Act coming into operation).

Mr Mai, for the defendants, submitted that the occurrence was the occupation of the land and erection of buildings, and that took place in December 1995. Mr Toap, representing himself, did not squarely address this issue.

I am persuaded by Mr Mai's submissions. The statement of claim is based on the assertion that the Department of Lands and Physical Planning negligently permitted the provincial government to illegally occupy the plaintiff's land. That was the occurrence and it took place in December 1995.

The Claims By and Against the State Act commenced operation on 20 February 1997 (see Constitution, Sections 110(1) and (2), the long title to the Claims By and Against the State Act and the notice published in National Gazette No G13 of 20 February 1997). Therefore the plaintiff should have given notice of his intention to make a claim by 20 August 1997. He did not give notice until five years and nine months after that, in May 2003.

A notice of an intention to make a claim is a condition precedent to issuing a writ of summons. Notice under Section 5 must be given first – before the writ is issued – even if the writ is issued within 6 months after the date of the occurrence out of which the claim arises. (Tohian and The State v Tau Liu (1998) SC566, Supreme Court, Kapi DCJ, Sheehan J, Jalina J.)

The plaintiff therefore breached the Claims By and Against the State Act. He failed to comply with a mandatory procedural requirement.

Subject to Sections 17 and 18, [which are not relevant to the present case] an action—

(d) to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

The plaintiff's action is founded on the tort of negligence. He was therefore required by Section 16(1)(a) to commence proceedings no more than six years after the date on which the cause of action accrued. This raises the issue of:

Mr Mai, for the defendants, submitted that the cause of action accrued on the date of the allegedly illegal occupation of the land and the erection of buildings on it, in December 1995. Mr Toap, representing himself, did not squarely address this issue.

I am persuaded by Mr Mai's submissions. The statement of claim is based on the assertion that the Department of Lands and Physical Planning negligently permitted the provincial government to illegally occupy the plaintiff's land in December 1995. That is when the cause of action accrued.

The plaintiff should have commenced the proceedings by December 2001. He did not commence the proceedings until one year and eleven months after that, in November 2003.

The Frauds and Limitations Act makes no provision for the Principal Legal Adviser, the Court or any other authority to extend the six year period. These proceedings are therefore time-barred.

DOES THE PLAINTIFF'S STATEMENT OF CLAIM FAIL TO DISCLOSE A REASONABLE CAUSE OF ACTION?
The law

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(c) the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

(2) The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).

I recently reviewed the law on applications to strike out proceedings for not disclosing a reasonable cause of action, in another case involving the plaintiff, Kiee Toap v The State and Electoral Commission and Another (2004) post, 624. The following principles emerged:

I pointed out that whenever a person brings a case to court, the originating document – in the present case, the writ of summons and statement of claim – must demonstrate that the plaintiff has a 'cause of action'. The document must clearly set out:

The plaintiff does not have to say what evidence there is of the facts being alleged. In fact, the National Court Rules prohibit that. But the plaintiff must outline the claim and demonstrate that it has a clear legal basis. If the plaintiff's originating document does that, there is a reasonable cause of action. If not, it does not disclose a reasonable cause of action.

Mr Mai did not make any written submissions on this issue. But the issue was raised in the notice of motion and I will address it.

In the present case, it seems – though it is not very clear – that the plaintiff is bringing an action based on the common law of negligence. The statement of claim does not refer to any provisions of the Constitution. It is not an application to enforce constitutional rights, eg the right, under Section 53, to protection from unjust deprivation of property. To disclose a cause of action in negligence, a statement of claim must set out the elements of the tort of negligence and in a clear and logical fashion allege the facts in support of each element.

There are three basic elements to the tort of negligence: (1) that the defendants owed a duty of care to the plaintiff; (2) that the defendants acted unreasonably or negligently and in breach of its duty to the plaintiff; and (3) that as a result of that breach of duty the plaintiff suffered injury, for which the defendants must compensate him.

The plaintiff's statement of claim does not plead the elements of the tort of negligence. Nor does it state clearly the facts that are relied on to establish his claim. At the beginning of this judgment I paraphrased the allegations of negligence in the statement of claim. As indicated then, it was a difficult task as the statement of claim was poorly drafted. Very few of the 12 paragraphs make grammatical sense.

Applying the principles from the three cases referred to above, I conclude that it is plain and obvious that if the case goes to trial the plaintiff will not obtain the relief that he is seeking. The statement of claim is so ambiguous and lacking in particularity that it does not enable the real issues to be identified. It leaves the defendants guessing as to what the plaintiff's allegations are.

The plaintiff's statement of claim therefore fails to disclose a reasonable cause of action.
ARE THE PROCEEDINGS FRIVOLOUS OR VEXATIOUS?

The law
Another ground on which a case can be summarily dismissed is if the proceedings are frivolous or vexatious, in which case Order 12, Rule 40(1)(b) of the National Court Rules applies. As I pointed out in Toap v The State, Electoral Commission and Another, Sevua J clearly set out what that means in Ronny Wabia v BP Exploration Co Ltd and Others [1998] PNGLR 8.

Frivolous proceedings
If a case can be characterised in the following way, it is frivolous:

the plaintiff's claim is so obviously untenable that it cannot possibly succeed; or

the defendant is being put to the trouble and expense of defending proceedings which are either a sham or which cannot possibly succeed.

Present case
I accept Mr Mai's submissions on this issue. If this case went to trial, the plaintiff would have no chance of success. He is bound to fail. Therefore the proceedings are frivolous.

The defendants are being put to the trouble and expense of defending a case, which cannot possibly succeed. Therefore the proceedings are vexatious.

ABUSE OF PROCESS
The law
Another ground on which a case can be summarily dismissed is if the proceedings are an abuse of process, in which case Order 12, Rule 40(1)(c) of the National Court Rules applies.

Principles
The principles that are to be applied when the court is considering whether or not there has been an abuse of its processes were summarised by the Supreme Court in Anderson Agiru v Electoral Commission and The State (2002) SC687, Hinchliffe J, Jalina J, Batari J. The Court stated:

Those principles in essence are that, the court's inherent power is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity. Essential to these inherent powers is the court's duty to protect itself by ensuring that vexatious litigants do not abuse the court's process by instituting frivolous or vexatious suits. It behoves litigants therefore to carefully choose their causes of action before they commence proceedings in this Court purporting to enforce their rights. The court should summarily dismiss proceedings it considers frivolous, vexatious or are an abuse of process.

In The State v Peter Painke [1976] PNGLR 210, O'Leary AJ emphasized that: "mere motive, however reprehensible, will not be sufficient" (to constitute abuse of process) "it must be shown that, in the circumstances in which the interposition of the court is sought, the remedy would be unsuitable, and would enable the person obtaining it fraudulently to defeat the rights of others, whether legal or equitable".

The court must ensure that a multiplicity of proceedings is not commenced by unsuccessful litigants. That is that a litigant having selected one mode of proceeding and having failed to obtain a remedy, cannot generally be entitled to then institute an alternative proceeding seeking the same remedy that was denied in the earlier proceeding.

To like effect is the Supreme Court's decision in Application by Anderson Agiru (2003) SC704. The applicant, Mr Agiru, a former member of the Parliament, was dismissed from office in early 2002 after being found guilty of misconduct in office by a leadership tribunal. In early 2003 he made an application to the Supreme Court for leave to review, under section 155(2)(b) of the Constitution, the decision of the National Court (Sheehan J) in March 2002 refusing leave for judicial review of the tribunal's decision. However, leave for a section 155(2)(b) application had already been refused by the Supreme Court in May 2002 in Application by Anderson Agiru (2002) SC686, Kapi DCJ, Salika J, Sakora J, Injia J; Los J dissenting. In the meantime, in June 2002, the applicant had gone back to the Supreme Court in separate proceedings to enforce Basic Rights, which he claimed were breached by the leadership tribunal. Those proceedings resulted in the decision in Anderson Agiru v Electoral Commission and The State (2002) SC687, referred to above.

When, in April 2003, the applicant was in the Supreme Court a third time, in Application by Anderson Agiru (2003) SC704, to agitate what was, in effect, the same grievance, the Court reached the inevitable conclusion that he was again, abusing the processes of the Court.

The principle demonstrated in the Agiru cases is that if a person goes to Court and has his case determined and then goes back to the Court with the same grievance, such a multiplicity of proceedings will be – in the absence of a good explanation – an abuse of process. The doctrines of res judicata and issue estoppel may also apply.

Mr Mai submitted that the present proceedings are a duplication of other proceedings commenced by the plaintiff in relation to the same block of land at Mendi town, Allotment 11, Section 12. These proceedings are WS 1162 of 2001, Kiee Toap v Southern Highlands Provincial Government and Department of Lands and Physical Planning. The plaintiff obtained default judgment in that case, with damages to be assessed. Mr Toap did not clearly respond to that submission.

I have examined the file for WS 1162 of 2001 and am satisfied that the cause of action in that case is the same as in the current proceedings. The plaintiff is engaging in a multiplicity of proceedings.

The idiom "having a second bite at the cherry"means 'to make a second attempt, having failed the first time'. (See D M Gulland and D Hinds-Howell, The Penguin Dictionary of English Idioms, Penguin Books, 1994, page 165.) It is a phrase often used by judges to describe the conduct of parties who go to court, do not get what they want, and then come back to court and try again.

Having a second bite is frowned upon. It is demonstrative of an abuse of process. See, for example, Central Pomio Logging Corporation Pty Ltd v The State [1990] PNGLR 195, National Court, Kapi DCJ; Gia Kewa Piel v Eric Ranpi [1996] PNGLR 396, National Court, Injia J; In the Matter of the Lawyers 1986 and In the Matter of an Application by Peter Norman Moore [1993] PNGLR 470, National Court, Sevua J; Orogen Minerals Limited v David Sode, Commissioner General of Internal Revenue and Others (2003) N2467, National Court, Sakora J; Takai Kapi v Daniel Don Kapi and Electoral Commission (1998) SC570, Supreme Court, Los J, Salika J, Kirriwom J; Siaman Riri v Simion Nurai (1995) N1375, National Court, Sakora J; Supreme Court Review No 4 of 1990; Application by Wali Kili Goiya [1991] PNGLR 170, Supreme Court, Kapi DCJ, Los J, Sheehan J; The State v The Attorney-General and The Electoral Commissioner (2002) N2193, National Court, Sevua J; TST Pty Ltd (Provisional Liquidator Appointed) and Tin Siew Tan v Thomas John Pelis and Pelton Investments Pty Ltd (1998) N1747, National Court, Kapi DCJ.

In the present case, the plaintiff took his grievance about his block of land to the National Court, in WS 1162 of 2001. He was successful. He obtained a default judgment, with damages to be assessed. He is having a second bite at the cherry, when there is no need to do so. He got the cherry on the first bite.

COURT'S DISCRETION AND REMAINING ISSUES
Each of the first five issues identified at the beginning of this judgment is answered 'yes'. That is:

The Court will therefore exercise its discretion to strike out the proceedings. It is unnecessary to deal with any further issues.

Lawyers for the plaintiff: Plaintiff appearing in person.
Lawyers for the defendants: Paul Paraka Lawyers.

Papua New Guinea Law Reports

Toap v PNG [2004] PGLawRp 57; [2004] PNGLR 624 (21 December 2004)