Application of Rickobert Petau [2004] PGNC 80; N2687 (12 October 2004)

N2687

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE AT LAE]

OS NO. 709 of 2003

APPLICATION FOR LEAVE FOR
JUDICIAL REVIEW PURSUANT TO SECTION 155(3)(a)4
OF THE CONSTITUTION

THE APPLICATION OF RICKOBERT PETAU
(Plaintiff)

vs

TOM KULUNGA
ACTING COMMISSIONER OF POLICE
(First Defendant)

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
(Second Defendant)

Lae : Gabi, AJ
2004 : 8th, 9th & 24th September & 12th October

PRACTICE AND PROCEDURE: s.2 & 5 of the Claims By and Against the State Act – A claimant employed by the State has a claim against the State in contract – Failure to give notice under s.5 is a ground to refuse leave for judicial review – Notice must be personally served – Acknowledgement of notice sent by post or facsimile does not constitute service under s.5 of the Claims Act.

Cases Cited:
Rundle v MVIT [1988-89] PNGLR 20
Tohian and The State v Tau Liu (1998) SC566
Minato v Kumo and the State (1998) N1768
Bokin v The Independent State of Papua New Guinea (2001) N2110

COUNSEL:
S. Daniels, for the Plaintiff
P. Ifina appearing with K. Isari, for the Defendants

DECISION

12th October, 2004

GABI, AJ:

Introduction

This is an application for judicial review of the decision of the First Defendant made on 27 May, 2003, to dismiss the Plaintiff from the Police Force.

Facts

1. The Plaintiff, a policeman, was charged for a serious disciplinary offence under the Police Act that on 23rd November, 2000, at Lae, he discharged a firearm causing injuries to another person.
   
2. On 27th May, 2003, the First Defendant found the Plaintiff guilty and dismissed him from the Police Force.
   

3. On 2nd July 2003, the Plaintiff wrote to the Solicitor General advising him of the notice of claim.

4. On 25th July 2003, the acting Solicitor General acknowledged receipt of the Plaintiffs letter and requested a copy of the notice of termination for purposes of obtaining instructions.

5. On 2nd December, 2003, the originating process, Originating Summons No. 709 of 2003 was issued out of the National Court of Justice at Lae.

6. On 10th December, 2003, service was effected on the First Defendant.

7. On 12th December, 2003, Paula Ivarami Yayabu Lawyers filed a Notice of Appearance in these proceedings.

8. On 29th February, 2004, a notice of action under Section 5 of the Claims By and Against the State Act ("the Claims Act") was sent by fax to the Attorney General.

9. On 22nd July, 2004, the Plaintiff was granted leave to apply for judicial review.
   

After hearing submissions on the application from Counsel for both parties, I raised the issue of notice of action under s 5 of the Claims Act. Counsel for the Plaintiff produced to the Court a copy of their letter dated 29 February, 2004, to the Attorney General. The relevant parts of the letter read:

"We write pursuant to Section 5(2), (c)(i) of the Claim By and Against the State and advise that our client was not represented by a lawyer, prior to our engagement on the 8th of December, 2003, and that service of the originating process was filed on the 2nd of December, 2003, and served on the Defendants on the 10th of December, 2003. From 27th of May, 2003, (the date our client was served his penalty) to the date of filing of the originating process is six months and 7 days, which render his claim seven days out of time.

Given the above reasons we seek your favourable consideration to allow and accept service of the originating process as sufficient Notice of Intention to make a claim against the State."

I called for submissions on the matter. Counsel for the Plaintiff made the following submissions: (1) that the issue and service of the originating process on the Defendants is a sufficient notice of the claim against the State; (2) that there has been no response to the letter of 29 February, 2004, from the Attorney General. In the circumstances, the silence must be construed as an acceptance or approval to extend time; and (3) that the Claims Act is limited to claims in contract or in tort and that judicial review does not fall within the ambit of the Claims Act.

After hearing on 8 and 9 September 2004 I reserved my decision. On 14 September, 2004 the Plaintiff filed a Notice of Motion seeking to re-open the case to admit "fresh evidence" of notice of action under s 5 of the Claims Act. On 24 September, 2004 I heard the application and allowed the evidence to be admitted. The fresh evidence is in the form of two (2) letters from the Plaintiff and the Solicitor General. These letters are set out in full below:

"Robert Petau

C/- Augustine Kulaia

PO Box 313

LAE

2nd July 2003

The Solicitor General

Solicitor General’s office

PO Box 591

WAIGANI

Attention: Mr. John Kumura

Dear Sir

RE: NOTICE OF INTENTION TO BRING A COURT CLAIM AGAINST THE POLICE COMMISSIONER AND STATE FOR JUDICIAL REVIEW

I will file court proceedings against the state to review the Police Commissioner’s decision to terminate me from the police force.

I held the rank of constable–12311, File no.-769550 and was attached to Mobile squad unit No.13, based in Lae.

I was served Notice of Termination on 27th May 2003, which was also the dismissal notice.

This serves as my Notice under the Claims By And Against the State Act 1996 (as amended).

Yours Faithfully

Robert Petau

Const. – 12311

F/No. – 769550

MS13 – Lae"

________________

"25th July 2003

SG840/03

F.Kuvi/jk

DSG (Anti Corruption

& Prosecution)

Robert Petau

C/- Augustine Kulaia

PO Box 313

LAE

Morobe Province

Dear Sir

RE: NOTICE TO SUE COMMISSIONER OF POLICE & THE STATE UNLAWFUL TERMINATION

I acknowledge receipt of your letter dated the 2nd of July 2002 in relation to the above.

You said that you were served with a Notice of Termination on the 27th of May 2003. Could you please send us your notice of termination and a copy of the charge, so that we may be able to obtain proper instructions.

Thank you.

Yours faithfully

JOHN M. KUMURA

Acting Solicitor General"

The issues before me are:

1. Whether the Plaintiff’s claim falls within the ambit of the Claims Act?

2. Whether the receipt and acknowledgement of the Plaintiff’s letter of 2 July 2003 by the acting Solicitor General on 25th July, 2003 constitute service of notice under the Claims Act.

The Law

Sections 2 and 5 of the Claims Act provide:

"2. Suits against the State

(1) A person making a claim against the State in contract or in tort may bring a suit against the State, in respect of the claim, in any court in which such a suit may be brought as between other persons.

(2) The provisions of this Act apply to applications for the enforcement against the State of a right or freedom under Section 57 (Enforcement of guaranteed rights and freedoms) of the Constitution and for damages for infringement of a right or freedom under Section 58 (Compensation) of the Constitution.

........................

5. Notice of Claims against the State

(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.
  

(2) A notice under this Section shall be given:

• (a) within a period of six months after the occurrence out of which the claim arose; or
  
• (b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or
  
• (c) within such further period as:
  
  • (i) the Principal Legal Adviser; or
  • (ii) the Court before which the action is instituted,
    

on sufficient cause being shown, allows.

(3) A notice under Subsection (1) shall be given by:

• (a) personal service on an officer referred to in Subsection (1); or
  
• (b) leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7:45 am and 12 noon, or 1:00 pm and 4:06 pm, or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday, or a public holiday declared by or under the Public Holidays Act (Chapter 321)."(Emphasis mine)
  

The Plaintiff’s Claim

In respect of the first issue, s.2 of the Claims Act makes it clear that a claim may be brought against the State in contract or in tort. In this case, the Plaintiff was charged with a serious disciplinary offence. He was terminated from the Police Force by the First Defendant. He claims that the First Defendant was wrong in dismissing him under the Police Act.

The Plaintiff is employed by the State. He is a servant of the State and is paid for by the State for services rendered to it. His appointment and termination is governed by the provisions of the Police Act. He has a contractual arrangement with the State. His claim is based on contract. Judicial review is a process under the law to review the conduct of a decision-maker. It is not a cause of action. I am of the view that the Plaintiff’s claim comes within the ambit of the Act.

The Notice and Its Service

The law in respect of s.5 notice is settled in this jurisdiction. In Tohian and The State v Tau Liu (1998) SC 566, the Supreme Court held that a notice of intention to make a claim is a condition precedent to issuing a Writ of Summons in all circumstances. Notice under s.5 must be given first before a Writ of Summons is issued. The notice must be given within six months after the occurrence which gives rise to the claim.

There is a good reason for giving notice. It is to give the State early notification so as to enable it to conduct its own investigations while the trail of evidence is still fresh (see Minato v Kumo and the State (1998) N1768). This is particularly so because the State is a large and complex entity. Its servants and agents, whose actions it may be liable for, are spread across the country. The occurrence which gives rise to the intended claim may take place in a remote area or the persons responsible may have moved to other parts of the country. In such a case, communication and receipt of information in a timely manner may be difficult. Early notification would assist the State in the assessment or the preparation of its case or settlement of the intended claim. It is therefore mandatory that a notice of intention to claim under s.5 must precede the claim.

Where a notice of intention to make a claim is not given within six (6) months, the claimant must first seek extension of time from the Principal Legal Adviser. If extension of time is refused by the Principal Legal Adviser, the claimant must apply to the Court. In the event the National Court refuses to extend time, the claimant may appeal to the Supreme Court (see Rundle v MVIT (1988) PNGLR 20). The service of an originating process on the State is not a notice of intention to make a claim under s.5 of the Claims Act. The originating process is the claim itself. Failure to give notice of action under s.5 of the Claims Act is a ground to refuse leave for judicial review.

The requirement to give notice to the appropriate person and the method of serving the notice are mandatory: Bokin v The Independent State of Papua New Guinea (2001) N2110. In that case, the lawyers for the Plaintiffs sent a letter to the Solicitor General giving notice of an intended claim. The letter was sent within the six months period. There was no evidence of service of the notice on the Solicitor General or the Departmental Head. Davani J. said at pages 4-5:

"Although the letter bears a date that falls within the six month period, did the plaintiffs comply with s.5(3)(a) and (b) when serving the notice. There is no evidence before me from the Plaintiffs confirming that;

- notice was personally served on an officer referred to in s.5(1)(a) and (b) who are the Department Head responsible for justice matters or the Solicitor General or

- that the notice was left at the office of the officer occupying the office. Position of Personal Secretary to the Department Head responsible for justice matters or the Solicitor General between the hours specified of 7.45 am and 12.00 noon or 1.00 pm and 4.06 pm.

Section 5(3) is a mandatory provision in that it states "notice shall be given by ...", similar to s.54(6) of the Motor Vehicle (Third Party Insurance) Act Chapter 295 (‘MVIT ACT’). The MVIT Act however does not specify how notice is to be delivered. The Claims Act is very specific in that it states "notice shall be personally served". This was probably done to avoid a situation where these letters may get lost in the mail or may be received by the Solicitor Generals Office, well after six months notice period. I believe this is what may have occurred here. The Plaintiff posted the letter which may have been received some "5 months after the expiration of the six month period", a fact deposed to by John Kumura for the Defendants."

The method for service is mandatory under s. 5(3) of the Claims Act. There must be personal service on the Departmental Head or the Solicitor General or by "leaving" the notice with the personal secretary at the office of either the Departmental Head or the Solicitor General. It is clear to me that the notice must be personally served on the respective officers. The claimant or his/her agent must attend at the respective offices and serve the notice personally or "leave" the notice at the respective offices with the personal secretaries of the officers named under the Claims Act. It is not to be "sent" to such officers by mail or facsimile.

In this case, the evidence is clear. The decision to terminate was made on 27 May, 2003. The notice was sent by mail to the Solicitor General on 2 July 2003. The notice was given within six (6) months but not served in the manner prescribed. There is no Affidavit of Service showing that the notice was personally served nor is there acknowledgement of service by the respective officers. The acknowledgement of receipt of the letter dated 25 July is not effective service of the notice under s.5 of the Claims Act. The Plaintiff has not given notice of the claim made in the Originating Summons.

For the above reasons, I dismiss the entire proceedings.

Lawyer for the Plaintiff : Paula Ivarami Yayabu Lawyers
Lawyer for the Defendants : Solicitor General