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Apai v Ling [2014] PGNC 378; N7567 (24 October 2014)

N7567

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1650 of 2011 (Comm)

BETWEEN:
JACK APAI, VINCENT LIPI and AMBROSE YANIMA
on behalf of themselves and 114 others whose names are attached to the Schedule “A” to this Writ
Plaintiffs

AND:
DAVID LING
in his capacity as the General Manager of Vanimo Forest Products Limited
First Defendant

AND:
VANIMO FOREST PRODUCTS LIMITED
Second Defendant/Cross Claimant

AND:
KANAWI POURU
in his capacity as the Managing Director of Papua New Guinea Forest Authority
Third Defendant

AND:
PAPUA NEW GUINEA FOREST AUTHORITY
Fourth Defendant

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Cross Defendant

Waigani: Hartshorn, J
2014: 6^th May,
: 24^th October

Section 5 Claims By and Against the State Act

Cases Cited:

Bernard Uriap v. Simon Tokivung (2008) N3444
CMSS (PNG) Ltd v. State (2014) N5717
Don Polye v. Jimson Papaki & Ors (2000) SC637
Mendepo v. National Housing Corporation (2011) SC1169
Paul Eddie v. Bill Kirokim (2012) N4932
Paul Tohian v. Tau Liu (1998) SC566
PNG Forest Products Pty Ltd v. State [1992] PNGLR 85
MRDC v. Sisimolu (2010) SC1090
Rimbao v. Pandan (2011) SC1098
Ronny Wabia v. BP Petroleum Development Ltd (2009) N4337
Timbers (PNG) Ltd v. Valentine Kambori & Ors (2010) N4282

Counsel:

Mr. B. S. Lai, for the Plaintiffs
Mr. N. Kopunye, for the Second Defendant/Cross Claimant
Mr. I. Shepherd, for the Third and Fourth Defendants

24^th October, 2014

1. HARTSHORN J: This is an application to amongst others, dismiss the proceeding. The application is brought by the second defendant/cross claimant Vanimo Forest Products Limited and is supported by the third and fourth defendants, the Papua New Guinea Forest Authority and its Managing Director. The application is opposed by the plaintiffs.

2. In the course of the submission of counsel for the third and fourth defendants in support of the dismissal application, the submission was made that the proceeding should be dismissed because of a failure by the plaintiffs to comply with s. 5 Claims By and Against the State Act (Claims Act) and (s. 5 Claims Act issue).

3. I will consider this submission first as if it is successful it will be determinative.

4. Counsel for the plaintiffs submitted that this submission should not be made on behalf of the third and fourth defendants as they have not filed a notice of motion seeking dismissal and on this basis, and counsel for the second defendant in his submission had not raised the s. 5 Claims Act issue.

5. On this point, it is settled law that this court has the inherent power to dismiss proceedings which are an abuse of process: PNG Forest Products Pty Ltd v. State [1992] PNGLR 85, Ronny Wabia v. BP Petroleum Development Ltd (2009) N4337, Timbers (PNG) Ltd v. Valentine Kambori & Ors (2010) N4282 and can do so of its own motion similar to the Supreme Court: Don Polye v. Jimson Papaki & Ors (2000) SC637, Rimbao v. Pandan (2011) SC1098, Mendepo v. National Housing Corporation (2011) SC1169. I consider the s. 5 Claims Act issue on the above basis.

6. Counsel for the third and fourth defendants submitted that it is clear from documentation filed on behalf of the plaintiffs that the plaintiffs have not complied with s. 5 Claims Act. In the plaintiffs statement in answer to interrogatories filed on 5^th December 2013, in answer to the question 8A, “When did the Plaintiffs give notice pursuant to section 5 Claims By and Against the State Act 1996?”, the plaintiffs reply is that, “No notice was given.”

7. Then in a letter written by the lawyers for the plaintiffs dated 23^rd December 2013 to the lawyers for the second defendant, at paragraph numbered 3, it is conceded that the plaintiffs did not issue a formal notice pursuant to s. 5 Claims Act.

8. Section 5 Claims Act was required to be complied with in this instance, it is submitted by counsel for the third and fourth defendants, as the Papua New Guinea Forest Authority comes within the definition of “State” as defined under s. 5 Claims Act. The decision of Lenalia J in Bernard Uriap v. Simon Tokivung (2008) N3444 is relied upon as is the Supreme Court decision of MRDC v. Sisimolu (2010) SC1090. In Uriap’s case (supra), it was held that the Papua New Guinea Forest Authority does come within the definition of “State” in s. 5 Claims Act. In Sisimolu’s case (supra), it was held amongst others that MRDC, a statutory authority, through its enabling legislation and its constitution, demonstrates that it is answerable to the State in all its functions. Uriap’s case (supra) was cited in Sisimolu’s case (supra) and the approach taken in Uriap’s case (supra) was commented upon favourably by the Supreme Court in Sisimolu’s case (supra).

9. Given the above and that the Papua New Guinea Forest Authority is a body similar to that of MRDC, I am satisfied that the Papua New Guinea Forest Authority comes within the definition of “State” in s. 5 Claims Act. Consequently s. 5 Claims Act must be complied with.

10. As to whether the relief sought in this proceeding is the type of relief that requires a notice pursuant to s. 5 to be given, the relief sought in the statement of claim includes damages for negligence, trespass, fraud and breach of statute. These are tortious claims and thus a notice pursuant to s. 5 Claims Act is required to be given: s. 2(1), s. 5(1) Claims Act.

11. As such a notice has not been given, the proceeding is an abuse of process as to the claims against the Papua New Guinea Forest Authority and its Managing Director, as a condition precedent to the commencement of the proceeding has not been complied with: Paul Tohian v. Tau Liu (1998) SC566.

12. As to whether the claims against the second defendant are similarly affected, a defendant to an incompetent proceeding is entitled to question the competency of a proceeding against it on the ground that it is affected by the bringing of an incompetent proceeding in which it is named as a defendant and is obliged to defend: Paul Eddie v. Bill Kirokim (2012) N4932, CMSS (PNG) Ltd v. State (2014) N5717.

13. Further, from a perusal of the claims against the second defendant in the statement of claim, it is apparent that they are intertwined and not readily or easily severable from the claims against the third and fourth defendants. Consequently, the claims against the second defendant are similarly affected by the incompetent proceeding. The whole proceeding should be dismissed as an abuse of process for the reasons given. Given this it is not necessary to consider the other submissions of counsel

Orders

14. The Orders of the Court are:

a) This proceeding is dismissed,

b) The plaintiffs shall pay the costs of the defendants of and incidental to this proceeding,

c) Time is abridged.

__________________________________________________________
B. S. Lai Lawyers: Lawyers for the Plaintiff
Bradshaw Lawyers: Lawyers for the Second Defendant/Cross Claimant
Ashurst Lawyers: Lawyers for the Third and Fourth Defendants