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Tiapa v Lingnoge [2005] PGDC 95; DC295 (18 July 2005)

DC295

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 1493 OF 2002

BETWEEN

Paliako Tiapa
Complainant

V

Daniel Lingnoge
First Defendant

Commissioner of Police
Second Defendant

Port Moresby: Bidar, Pm
2005: 15th & 18th July

Claims By and Against the State Act - Requirement to Give Notice – Section5.
Notice is Condition precedent to filing proceedings - Non Compliance Renders Proceedings nullity.

RULING

BIDAR, PM: This proceedings was filed in 2002 by complainant against the defendants and had been going on until it came before me on 29th March 2005. The proceedings were dismissed basically for two reasons, the matter was Statute barred and that there was non compliance of s.5 of the Claims By and Against the State Act.

Complainant through his counsel says a notice under s.5 was given on 3rd June 2002 to the then Acting Solicitor General, Mr. Kumura. I note on file, Mr. Kumura responded to the purported notice on 13th June 2002 and requested provision of further details, including the state agency that employed the complainant, date of employment and termination wages received and due and owing. Mr. Kumura’s letter to complainant concluded with the following statement "until you provide on the above, I will not treat your letter of 3rd June 2002 as notice, because it is my view, totally inadequate".

5 of the Claims By and Against The State Act (No. 52 of 1996) is in these terms:

"(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:

(i) The Departmental Head of the Department responsible for justice matters; or

(ii) The Solicitor General

(2) A notice under this section shall be given;

(i) Within a period of six months after occurrence out of which the claim arose; or.

(ii) Where the claim is for breach of a contract, within a period of six months after the claimant becomes aware of the alleged breach or;

(iii) Within such further period as:

(a) The principal legal adviser or

(b) The Court before which the action is instituted, sufficient cause being shown, allows."

This provision (s.5) is very similar to s.54 of the Motor Vehicles (Third Party Insurance) Act (Ch. 295). The Supreme Court has considered that provision and concluded that service of notice of intention to make a claim under the MVITA is a mandatory condition precedent to the validity of writ of summons filed against the Trust, see Rundle -v- MVIT [1988] PNGLR 20.

In Paul Tohian and Others -v- Tau Liu SCA No. 67 of 1997, the Supreme Court comprising Kapi, DCJ (as he then was) Sakora and Jalina, held that Notice under s.5 of the Claims By and Against the State Act is a condition precedent to issuing of proceedings and therefore allowed the appeal and quashed the decision of the trial judge.

Based on the foregoing reasons the motion by complainant to set aside Order for dismissal of proceedings made on 29th March 2005 is refused, as the proceedings filed by complainant ab initio is a nullity.

Motion is therefore dismissed.

Rules accordingly.

Mr. T. Rima: Complainant
Mr. K. Isari: Defendant