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Sedema Technology Ltd v Paul [2018] PGNC 557; N7720 (10 July 2018)

N7720

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 259 OF 2018(CC1)

BETWEEN
SEDEMA TECHNOLOGY LIMITED
Plaintiff

AND
RAY PAUL as Commissioner of Customs, Papua New Guinea Customs Services
First Defendant

AND
PAPUA NEW GUINEA CUSTOMS SERVICES
Second Defendant

AND
PHILIP ELUDEME as Chairman, Central Supply & Tenders Board
Third Defendant

AND
CENTRAL SUPPLY & TENDERS BOARD
Fourth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Dingake J
2018: 17^th May, 21^st June, & 10^th July

PRACTICE AND PROCEDURE – Leave to give Notice in terms of Section 5 of the Claims By and Against the State Act – Requirements not met – Application refused.

Cases Cited

The State v Downer Construction (PNG) Limited (2009) SC 979

Counsel

Mr. Livingstone Baida, for the Plaintiff
Mr. William Maino, for the First & Second Defendants
Ms. Tiangin, for the Third & Fourth Defendants

10^th July, 2018

1. DINGAKE J: This is an application made pursuant to Order 4 Rule 32 of the National Court Rules and Section 155(4) of the Constitution for leave to be granted to give a Section 5 Notice to the State in accordance with Section 5(2) (c) of the Claims By and Against the State Act.
2. The applicant relies for the relief sought on the affidavit of Mr. John Pung filed of record.
3. I must mention, before dealing with the merits of the application that, on the day the matter was scheduled to be heard, Mr. William Maino counsel for the first and second respondents came more than thirty (30) minutes late. He apologised and informed the Court that he was late on account of traffic. He did not elaborate. The Court found the explanation insufficient and barred him from appearing. Lawyers are obliged to attend Court punctually, as scheduled, unless there are compelling reasons for coming late. Failure to attend Court on time as scheduled amounts to contempt in the face of the Court. It assails the dignity and authority of the Court and may be summarily punishable.

Background

4. The background to this matter is that on the 30^th of October, 2014, the plaintiff (applicant) filed a writ of summons against the defendants, in WS No. 1369 of 2014, for alleged breach of contract
5. In the said proceedings the applicant seeks, inter alia, damages for breach and payment, being a balance pursuant to the Contract Agreement made on the 26^th of March, 2012.
6. On the 15^th of May, 2015, the proceedings were dismissed for want of Section 5 Notice.
7. On the 24^th June, 2015, the applicant being unhappy with the decision of the National Court dismissing the proceedings for want of Section 5 Notice appealed to the Supreme Court. The said appeal was subsequently withdrawn with leave of the Court, on the 14^th of December, 2017.
8. On the 7^th of February, 2018, the applicant wrote to the Attorney General seeking an extension of time to give a Section 5 Notice to the State as required by the Claims By and Against the State Act.
9. On the 19^th of February, 2018, the Office of the Department of Justice and Attorney General wrote to the plaintiff refusing the request to grant an extension of time to give the required notice.
10. On the 26^th of April, 2018, the applicant filed this Motion seeking leave to be granted extension of time to give the required notice.

The Evidence

11. In its supporting affidavit, the applicant avers that the delay in issuing the Section 5 Notice is attributable to negotiations between the parties as indicated in the supporting affidavit of Mr. John Pung.
12. The applicant avers that between 29^th January, 2013 and 29^th August, 2013, it inadvertently failed to serve a Section 5 Notice on the State.
13. The applicant also avers that the delay was occassioned by the first defendant’s failure to respond to the plaintiff’s letter of the 17^th August, 2013 and the non-provision of the remaining retention funds by the second defendant to complete 30% of the project.
14. In order to succeed to obtain the extension of time sought, the applicant is required to:
    • (a) Give a reasonable explanation for not coming within the six (6) months period and any delays thereafter in making an application for extension of time;
    • (b) Disclose a reasonable cause of action to pursue against the State; and
    • (c) Demonstrate no prejudice likely to occur to the State by any late notice (see The State v Downer Construction (PNG) Limited (2009) SC 979).
15. The affidavit evidence of the applicant must be subjected to the above test.
16. It is common cause that the applicant failed to give notice within six (6) months as required by the Claims By and Against State Act.
17. I am aware that the parties do not agree as to when the cause of action accrued, but nothing much turns on that, having regard to the common cause fact that the applicant concedes it is late in giving the Section 5 Notice. I am prepared to assume, as I hereby do, in favour of the applicant, without deciding, that the cause of action accrued on the 29^th of August, 2013.
18. Assuming in the applicant’s favour as I hereby do, that the cause of action accrued on the 29^th of August, 2013, there is no reasonable explanation given for failing to give the Section 5 Notice within the time required.
19. The affidavit of Mr. Pung, at paragraph 23, simply says:
    • 23. As per the contents of the correspondences from the period between 29 January, 2013 and 29 August 2013, the plaintiff concurs to have had inadertedly failed to serve a section five(5) notice on the State based on the following grounds:
      • i) Negotiations were still ongoing and there was no formal response from the First Defendant when after being served the letter dated 17 August 2013, b the Plaintiff;
      • ii) Due to the non-provision of the remaining retention funds by the Second Defendant to complete thirty (30%) of the project, the Plaintiff was unable to complete thirty (30) percent of the construction phase within thirty (30) days as per the letter specified in Annexure “JP3” contained herein.
20. It is clear from the above that the affidavit explains what happened between 29^th January, 2013 and 29^th August, 2013, and not the period thereafter.
21. The above explanation is not a reasonable explanation for not coming within the six (6) months period required by the Claims By and Against the State Act.
22. The applicant in its supporting affidavit does not give a reasonable explanation for the delays after the expiry of six (6) months. For instance, while the Supreme Court in SCA No. 79 of 2015, granted leave on the 14^th of December, 2017, to withdraw the appeal, the applicant doesn’t account for the delay of more than six (6) weeks to seek an extension of time reckoned from the 14^th of December, 2017. Such request for an extension was only sought on the 7^th of February, 2018.
23. Furthermore, after the Attorney General refused to grant the extension sought on the 19^th of February, 2018, the applicant delayed for a period of more than two (2) months to file the current application with this Court. There is no explanation on record for the delay between the 19^th of February, 2018, when the Attorney General refused the extension, and the 26^th of April, 2018, when this application was filed.
24. The applicant does not demonstrate that no prejudice is likely to occur to the State by late notice.
25. In the result, the application is without merit, and it is refused with costs to the defendants, (save that the first and second defendants shall not be entitled to recover the costs for the hearing of the 10^th of July, 2018).

___________________________________________________________
Nelson Lawyers: Lawyers for the Plaintiff
PNG Customs Legal Services: Lawyers for the First & Second Defendants
Office of the Solicitor General: Lawyers for the Third & Fourth Defendants