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Banning Hire Cars Ltd v Independent State of Papua New Guinea [2015] PGNC 234; N6138 (28 August 2015)

N6138

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 304 OF 2015

BETWEEN:

BANNING HIRE CARS LIMITED
Plaintiff

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Mt. Hagen: Frank, J
2015:21st &28th August

CLAIMS BY AND AGAINST THE STATE ACT S5- Notice of Claim Against the State- application extension of to give notice of claim- sufficient cause to be shown-evidence in support of application.

Case Cite:
Ivia v MVIT [1995] PNGLR 183
Rundle v MVIT [1988] PNGLR 20
MVIT v Viel Kampu [1999] SC587
Paul Tohian Minister for Police and The Independent State of Papua New Guinea v Tau Lui (1998) SC 566.

Counsel:
Mr. K. Sino, for the plaintiff/ Applicant
28th August, 2015

RULING ON APPLICATION

1. This is the application by the plaintiff for an extension of time within which to give notice of intention to make and pursue a claim against the defendant over a debt arising from the hire of a vehicle from the plaintiff in November and December of 2012.
   
2. The Plaintiff applied by way of an Originating Summons and a Notice of Motion, both filed on 5th June 2015 seeking that relief.
   
3. The application is supported by the affidavit of Kumoro Sino, the plaintiff's lawyer, sworn on 8th May 2015 and filed on 5th June 2015 ("affidavit").
   
4. Such an application is allowed under section 5 (2) (c) (ii) of the Claims By and Against The State Act 1996. ("Act").
   
5. Mr. Sino, counsel for the Plaintiff informed the court that Ms. Bamin of the office of the Solicitor General had advised him that the application is not opposed.
   
6. In an application for extension of time under section 5 (2) (c) (ii), the considerations, whether or not to grant the extension sought are similar to those under section 54 of the Motor Vehicles (Third Party Insurance ) Act (Ch: 295): Paul Tohian, Minister for Police and The Independent State of Papua New Guinea v. Tau Liu ( 1998) SC 566.
   
7. Sufficient cause must be shown for the grant of the relief sought. Sufficient cause is widely interpreted as dealing with the justice of the case within the context of the circumstance of each case: Rundle v MVIT [1988] PNGLR 20: Ivia v MNIT [1995} PNGLR 183.
   
8. The issue for my determinations are:
   
   1. Whether there has been reasonable explanation for failure to give notice of intention to make the claim within the six month period, and for any delay subsequent to it?;
      
   2. Whether there is an indication of cause of action?
      
   100. Whether the State should be prejudiced by the grant of extension of time; and
        
   4. Having regard to (a) (b) (c), whether the justice of the case favour the grant of the application.
      
9. In 2012, 29th November and 11th December, one Mr. Luke Siminzi of the office of Public Solicitor hired the plaintiff's vehicle. The total cost of the hire claimed is K76, 069.30. Mr. Siminzi was on a trip to Mt. Hagen when he hired the vehicle.
   
10. The plaintiff forwarded the invoice 'after the hire period lapsed' but the Public Solicitors did not responded positively, Mr. Glen Kundin of the plaintiff then forwarded the various follow up correspondence, made telephone calls and visits to no avail.
    
11. On 22nd October 2013, the plaintiff engaged the service of a lawyer, his lawyer in this application, who wrote to the Public Solicitor by letter of.....that date a copy of which comprised Annexure 'A' to the affidavit. This letter said 'officers from the Public Solicitor's office hired the plaintiff's vehicles and the bills for the hire comprised of invoice N0. 301 dated 29/11/12 for K47, 000.00, invoice N0: 72 dated 9/12/12 for K14, 271.30, invoice N0. 73 dated 9/12/12 for K6, 248.10 and Invoice N0. 74 dated 11/12/12 for K2, 550.00, all totalling K76, 069.30 ("Dept"). According to the instruction received by the plaintiff's Lawyers, there had been various correspondences forwarded for settlement of the claim earlier.' It concluded that if it did not receive any response within 21 days than it will commence proceedings to recover the Debt. According to the plaintiff's lawyer, the plaintiff delivered this letter and followed up with the Public Solicitor's Office.
    
12. On 21st May 2014, the plaintiff's lawyer wrote to Attorney General by letter dated 21st May 2014 seeking leave to give notice of the plaintiff's intention to sue the Public Solicitor and the State out of time. The reasons given in it, why notice of intention to make a claim was not given in the 6 months period, was that because the hire was one of the very important law office of the State, payment will be made promptly within a reasonable time, and that the plaintiff engaged its lawyers after the period of 8 months had lapsed, and that it had written to the Public Solicitor requesting settlement of the bills but the Public Solicitor had not responded to its request.
    
13. I deal first with the request under section 5 (2) (c) of the Act, under this provision, a person who wishes to make a claim must either the Principle Legal Advisor or this court an extension of time within which to give notice of intention to make its claim against the State. The Plaintiff's letter Lawyer' letter of 21st May 2014 had sought. '...leave to give notice'. It should have sought extension of time within which to give notice of its intention to make its claim against the State. That letter is ineffective for the purpose of this provision.
    
14. With respect to the need for the plaintiff to provide a reasonable explanation, I note that there is no evidence of the particular vehicles hired. Assuming that the Debt does not include charges on account of items such as mileage, insurance and tax was at a fix rate, the Debt was incurred at the hire charge rate of K5, 851. 48 per day.
    
15. There is no explanation whether Mr. Siminzi was on official duties. While the plaintiff claim that Mr. Siminzi hire the vehicle, the letter to the Attorney General, says that the vehicle was hired for the use by the officers of the plaintiff. No document in respect of the hire was produced. The plaintiff does not say when and how the invoice was sent over to the Public Solicitors. Although, the plaintiff says he took follow up actions, copies of the correspondence it says issued were not produced nor did it provide particulars of the date, persons involve in the part of the plaintiff and on the part of the Public Solicitor, and the outcome of its attendance by telephone and in person. According to the plaintiff's lawyer, the Public Solicitor did not response favourably. This implies that there might have been at least a response of some sort. If this was the case, there is no evidence of it. If there was no response from the Public Solicitor, one would have expected that the plaintiff and the its lawyer would have contacted Mr. Siminzi directly to seek his assistance to response from the Public Solicitor to its claim to the debt and provide an explanation in support of this application. There is no evidence that the plaintiff either directly or through its lawyers had pursued that course. Given the nature of the evidence, I am not satisfied that the plaintiff in fact took the steps it claimed it did.
    
16. Whist the plaintiff says it did not give the required notice of intention to make a claim because it believe payment of the Debt will be made promptly within reasonable time, when payments were not forthcoming within 5 months, it did not take any step to give the require notice or otherwise pursue the Dept.
    
17. There is another point in respect of the evidence concerning matter prior to 22nd October 2013. Neither, Mr. Kundin nor any authorised officer of the plaintiff gave evidence of such matters. It is therefore hearsay, having come from its lawyers, and does not assist in providing any explanation in support of the application: MVIT v Viel Kampu [1999] SC587.
    
18. With respect to the step by the plaintiff's lawyers, it does not say where and how its letter of 22 October 2013, was sent to the Public Solicitor. Whilst it threatened that it would commence proceedings after 21 days, it did not take any step to find out whether the Public Solicitor had received the letter after that period had lapsed. It took no steps until 21st May 2014, a period of about 7 month, when it wrote to the Attorney General. Then between 21st May 2014 and 8th May 2015, when it settled its documents filed in this proceeding, a period of 12 month it does not explain the steps, if any, taken to pursue the Attorney General for a purpose.
    
19. In these circumstances, no reasonable explanation has been provided for the 27 month delay.
    
20. With respect to the identification of the cause of action, whilst the non payment of the hire charges in respect of a vehicle hired raises a debt of claim, particulars of the vehicle alleged to have been hired, the invoices and the hire agreement have not been produced. These should be readily available, however, the explanation does not show that they are. If the plaintiff was not able to produce the copies of this documents because they are no longer available. How could the claim for the Debt be supported?
    
21. As to whether defendant would be prejudice, should the plaintiff be allowed to give notice of its claim for the Dept, the plaintiff has not provided any explanation to suggest that no prejudice is likely to be suffered by the defendant. For this reasons and in view of the circumstances discussed above. I consider that the delay would cause prejudice to the State in properly defending such claim.
    
22. Taking all of these matters into account, I find the plaintiff has not shown sufficient cause for the Court to exercise its discretion to grant it an extension of time to give notice of intension to make a claim against the State.
    
23. The plaintiff's application is therefore refused. I make on orders as to cost.
    

____________________________________________________________
Sino Lawyers: Lawyer for the Plaintiff/ Applicant.