Tohian, Minister For Police and The State v Tau Liu [1998] PGSC 25; SC566 (27 August 1998)

Unreported Supreme Court Decisions

SC566

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA NO 67 OF 1997
BETWEEN
PAUL TOHIAN, MINISTER FOR POLICE AND THE STATE - APPELLANTS
AND
TAU LIU - RESPONDENT

Kapi DCJ Sheehan Jalina JJ
27 August 1998

PRACTICE - Notice of Action - whether mandatory under Claims By and Against The State Act, s. 5.

Counsel

Kumura with C Makail for the Appellants

Banyamai for the Respondent

27 August 1998

KAPI DCJ SHEEHAN JALINA JJ: It is not disputed that the respondent filed an action for defamation against the appellants in the National Court on 15th July 1997. It is also not disputed that a letter purporting to be a notice of intention to make a claim against the State was received by the Solicitor General on the 20th August 1997 in accordance with s. 5 of the Claims By and Against The State Act (No 52 of 1996) (hereinafter referred to as the Act) which is in the following terms:

“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:

(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 the 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 became 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.”

The appellants filed a motion in the National Court to strike out the writ of summons for failure to comply with s 5 of the Act. The argument was advanced that the notice required is a condition precedent to the cause of action and the writ filed before the notice was given is a nullity. Woods J heard the application and on the 26th September 1997 dismissed the motion. He concluded that the writ of summons in the present matter was filed and served within 6 months of the occurrence of the incident out of which the claim has arisen and therefore there was no requirement to give any notice to the State.

The appellants have appealed against this decision. As this is an interlocutory judgement, leave is required to appeal under s 14 (3) (b) of the Supreme Court Act (Cap. 37). We would grant leave to appeal on the basis that this is the first time the point of law under s. 5 of the Act has been considered in this Court and therefore there is need to clarify the law.

The respondent has conceded the appeal and has undertaken to file a new writ of summons.

The provision under consideration is very similar to s. 54 of the Motor Vehicles (Third Party Insurance) Act (Cap 295) (hereinafter referred to as the MVITA). 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 any writ of summons filed against the Trust (see Rundle v MVIT [1988] PNGLR 20). The trial judge acknowledged this case in his decision but chose not to apply the same reasoning on the basis:

“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 Claim By and Against The State 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.”

In our view the trial judge was correct in holding that the provision under consideration is similar to s. 54 of MVITA. However, he fell into error when he did not follow the reasoning in Rundle v MVIT (supra). The purpose of the requirement to give notice remains the same whether or not the notice is required to be given within the 6 months or within such further period as may be granted by the Principal Legal Adviser or the Court. It is clear to us that the notice of intention to make a claim is a condition precedent to issuing a writ of summons in all circumstances.

We allow the appeal, quash the decision of the trial judge and strike out the writ of summons.

Lawyer for the Appellants: Acting Solicitor-General

Lawyers for the Respondent: Paraka Lawyers