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Timil v Kopilyo [1998] PGNC 101; N1769 (23 October 1998)

Unreported National Court Decisions

N1769

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 905 OF 1997 (H)
BETWEEN:
JOHN TIMIL
PLAINTIFF –
AND:
AMU KOPILYO
1ST DEFENDANT –
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
2ND DEFENDANT –

Mount Hagen

Akuram J
16 October 1998
23 October 1998

WRONGS BY THE STATE – Police assault – eye injury with laceration and swollen face – damages.

WRONG BY THE STATE – Police assault – notice pursuant to sections 5 & 21, Claims By and Against the State Act no. 53 of 1996 given out of time.

PRACTICE AND PROCEDURE – procedure under sections 5 & 21 of Claims by and Against the State Act not followed – Application refused.

Counsel

M C Thoke for Plaintiff/Applicant.

J. Kumura – Amicus Curiae

AKURAM J: This is an application by way of Notice of Motion seeking default judgment and for damages to be assessed at a later date and for costs.

The brief facts of the case is that on or about 25^th September 1996, the first defendant, under the command of Enga Provincial Commander and some other policemen, fully armed and went to the Plaintiff’s village and conducted a mass arrest of people attending a funeral service. During the arrest, the first defendant assaulted by kicking the Plaintiff onto the ground thereby injuring his right eye and causing lacerations to his face.

The plaintiff instructed his lawyer on or about 27^th January 1997, a period of 4 months and one day after the occurrence of the incident, which is well within the 6 months time stipulated in the claims By and Against the State Act of 1996, No. 53.

The Plaintiff’s lawyer then filed the Writ of Summons on the 25^th September 1997, which is a period of eight (8) months after obtaining instruction but one year after the incident. There are no reasons given by the lawyers in their affidavit in support of the motion as to why there was a delay of 8 months to file the Writ after obtaining instructions. During the submissions in Court in support of Motion, Plaintiff’s lawyer tendered copy, a letter by way of “Notice of Intention to Make a Claim” against the State pursuant to Section 5 of the Claims By and Against the State Act, dated 18^th April 1997 which was eight (8) months after the incident of 25/9/96.

The Second Defendant was served the Writ on the 10^th December 1997 and the First Defendant was served on the 10^th September 1998 at Wabag town which is less than a month after this motion was filed on 14/8/98. State filed a Notice of Intention to Defend on the 10^th September 1998, one month after the motion was filed but on the same day the first defendant was served the summons. As this is a vicarious liability situation, the State will only be liable if the first defendant is liable. In this regard, I am of the view that this Notice of Motion is premature and as the First Defendant was never give the usual time to file his Notice of Intention to Defend and Defence.

I therefore refuse the application for default judgment. However, I will give the First Defendant to file his Notice of Intention to Defend and Defence within two months from today and the Second Defendant 30 days from today to file its defence. I further allow normal pleadings to proceed before setting the matter down for trial.

I order no costs.

Lawyer for the Plaintiff: M C Thoke Lawyers

John Kumura – Amicus Curiae