Lui v Tohian, Minister for Police [1997] PGNC 117; N1615 (26 September 1997)

Unreported National Court Decisions

N1615

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 637 OF 1997
TAU LUI - Plaintiff
v
PAUL TOHIAN, MINISTER FOR POLICE - First Defendant
THE STATE - Second Defendant

Waigani

Woods J
15 September 1997
26 September 1997

Counsel:

A Baniyamai for the Plaintiff

C Mikail for the Defendants

Interlocutory Ruling

PRACTICE - Notice of Action - Whether Mandatory under Claims by and Against The State Act.

26 September 1997

WOODS J: The Plaintiff has filed and served a writ of summons in an action against the State for defamation.

The State has moved the Court to strike out the writ for failure to comply with the provisions of the Claims By and Against The State Act No 52 of 1996. In particular it is submitted that the plaintiff has failed to comply with Section 5 of the said Act in that he has failed to give notice to the State of his intention to make such a claim.

Section 5. (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:

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

(b) the Solicitor-General.

Subsection (2) of the Section provides that such a notice must be given within a period of 6 months after the occurrence out of which the claim arose.

It is not disputed that the cause of action arose out of a letter published by the First Defendant on the 28th May 1997. It is not disputed that the writ of summons was filed on the 15th July 1997 and served on the 17th July 1997. It is also not disputed that a letter purporting to be a notice of intention to make a claim was received by the Solicitor-General on the 20th August 1997 one month after the writ was filed and served.

There is no doubt that both the writ and the letter were therefore served on the State within 6 months from when the occurrence out of which the claim arises, namely within approximately 2 months and 3 months.

The State is submitting that under the terms of the legislation no action to enforce any claim can be pursued unless a notice of intention to make a claim has been served in accordance with the Act as the terms of the legislation makes the service of such a notice a mandatory condition precedent to any cause of action, namely a condition precedent to the effectiveness of any writ of summons. He submits that the writ of summons here is void and cannot be proceeded with. The State is relying on certain principles enunciated in the case Rundle v MVIT [1988] PNGLR 20 where similar provisions providing for notice of intention to make a claim were considered. In the Motor Vehicles (Third Party Insurance) Act Chapter 295 per section 54 there are similar provisions for the giving of notice before a claim can be enforced. In the circumstances of Rundle’s case and considering the intention and purpose of the relevant Act there was a requirement to give notice of intention before a valid writ could issue and be proceeded with. In the circumstances of that case and considering the intention and purpose of the relevant Act there was a requirement to give notice of intention before a valid writ could issue and be proceeded with.

Whilst the provisions of the two separate pieces of legislation are similar I think that one must look at the whole of each Act and consider what is the object of the legislation.

The Motor Vehicle (Third Party Insurance) Act enables people who have suffered injuries or have a cause of action for personal injuries or death following a motor vehicle accident to issue proceedings against the Motor Vehicles Insurance (PNG) Trust and not against the driver or owner of the vehicle alleged to have been at fault. Such a right to sue the Insurance Trust is therefore contrary to the normal principles of common law and the Wrongs Act. Therefore the right to sue the Trust is a specific right granted by statute and by statute alone. Therefore the parameters of that right and the conditions and procedures for the availment of that right must be found within the statute and nowhere else.

However the right to proceed against the State for any wrong is a right at Common Law and protected in the Constitution and covered in the Wrongs Act. The right to sue the State is not a special privilege granted by statute, it is a right that has always existed. The purpose of the Claims By and Against The State Act is to regulate and facilitate and present some conditions to a right that has always existed. Therefore the writ that has issued in July must be a valid writ. The purpose of the time provision in Section 5 of the Act is to require claimants to take action within a certain time to enable the State to properly research the basis of such a claim before the facts that gave rise to the claim get forgotten or fade in people’s memory. Bearing in mind that the State is in a different position than the usual defendant in that the State is responsible for the actions of so many people over the whole nation.

In this case before me now the writ was filed and served well within a period of 6 months of the occurrence of the incident out of which the claim has arisen. In the circumstances therefore I am satisfied that the writ itself can be seen as notice and therefore there was no requirement to give any further notice. Of course the position would be different if no writ had been issued within that 6 months period. However that is not a question for me to consider here.

I find that in the circumstances of this claim under this Act where a writ has been filed and served within the 6 months that a separate notice is not required as the purpose of the provision has been satisfied by the issuing and service of the writ, namely the giving of notice or warning to the State that a claim is to be made.

Lawyer for the Plaintiff: Paraka Lawyers

Lawyers for the Defendants: Solicitors General’s Office