Kokopo Building and Maintenance Ltd v Department of Police [2005] PGSC 33; SC786 (26 May 2005)

SC786

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]

SCA No. 67 of 1997

BETWEEN:

KOKOPO BUILDING & MAINTENANCE LTD
Appellant

AND:

DEPARTMENT OF POLICE
Respondent

Coram: Kapi C.J.
19th & 26th May 2005

APPLICATION FOR LEAVE TO APPEAL – Section 14 (3) (b) of the Supreme Court Act.

LIMITATION OF ACTIONS – Notice to the State under Claims By and Against the State Act, s 5 considered.

PRECEDENT – National Court bound by the decisions of the Supreme Court – Constitution, Schedule 2.9.

Cases cited:
Paul Tohian, Minister for Police and the The State v Tau Liu (Unreported Judgment of the Supreme Court dated 27th August 1998, SC566)

Rundle v MVIT [1988-89] PNGLR 20

Legislations cited:

Constitution

Supreme Court Act

Claims By and Against the State Act

Counsel:
W. Donald for the Applicant
K. Kawat for the Respondent

26th May 2005.

KAPI, CJ: This is an application for leave to appeal against a decision of the National Court (Lay J) under s 14 (3) (b) of the Supreme Court Act. The application is opposed. The parties do not dispute that the appropriate test in determining the question of leave is whether there are arguable grounds of appeal.

The background to this application is that the Kokopo Building & Maintenance Ltd (Applicant) commenced proceedings against the Department of Police (Respondent) for payment of maintenance carried out on the Kokopo Police Station.

The Respondent filed motion to dismiss the proceedings on the basis that the Applicant failed to give notice to the Respondent in accordance with s 5 of the Claims By and Against the State Act (CBAS Act) which provides:

"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 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., 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)."

The law with regard to interpretation and application of s 5 of CBAS Act is now settled. In Paul Tohian, Minister for Police and the The State v Tau Liu (Tohian’s Case) (Unreported Judgment of the Supreme Court dated 27th August 1998, SC566) the Supreme Court held following the decision of Rundle v MVIT (Rundle’s Case) [1988-89] PNGLR 20, that notice of intention to make a claim against the State under s 5 of the Act is a condition precedent to issuing a writ of summons.

Counsel for the Applicant argued before the Court below that the majority view in (Rundle’s Case) which was adopted and applied by the Supreme Court in Tohian’s Case was wrong and the dissenting view should be applied as the correct view of the law. He repeated the same arguments before me.

The National Court concluded:

"Whilst the argument has been advanced in detail and with considerable logical persuasion I take the view that I am bound to enforce the law as it is pronounced by the Supreme Court and it is not the National Court to be restating the law once it has been clearly stated by the Supreme Court. It is a matter for the party who feels sufficiently aggrieved to take the Matter on appeal and to see if it can persuade the Supreme Court to review the position which it has taken. And so I do not propose to depart from the principle as it has been explained by the Supreme Court in the case of Paul Tohian Minister for Justice, The State v Tau Liu SC566"

I am not persuaded that the dissenting view expressed by Bredmeyer J in Rundle’s Case raises an arguable case. This view was not adopted in Tohian’s Case.

The National Court was correct in ruling that it was bound by the decision of the Supreme Court. This is consistent with Schedule 2.9 of the Constitution:

"Sch.2.9. Subordination of courts.

(1) All decisions of law by the Supreme Court are binding on all other courts, but not on itself..."

There can be no arguable ground of appeal against this conclusion.

Furthermore, the National Court considered the issue on an alternative basis:

"But I add that even if I was minded to do that, that is pronounce the minority decision by Bredmeyer J in Rundles Case should be the manner in which s 5 of the Claims By and Against the State Act is interpreted, there is no evidence before me that any notice has in fact been given nor is there before the Court an application to extend the time in which to give such a notice. So that I consider that even if I had been persuaded to follow the Respondent Plaintiff’s argument the end result would have been that the Plaintiff would have still failed because it has failed to establish the factual basis of a notice within the meaning of Section 5 of the Act."

The Court concluded that even if the writ of summons remained on foot on the basis of the minority view held in Rundles Case, there was no application to extend time in which to give notice to the State. Counsel for the Applicant did not give any indication to the trial judge that he would make an application to extend time in accordance with s 5 (2) (c) of the CBAS Act. I asked counsel if he intends to make such an application and he indicated that he would not. Whether or not such an application can now be made is a matter entirely up to the Applicant and I need not deal with the merits of such an application.

Unless an extension of time is granted to give notice of intention to claim, no action filed against the State can be enforced against the Applicant pursuant to s 5 of the CBAS Act.

In my view, the trial judge rightly dismissed the proceedings.

In the result, the application for leave is dismissed with costs to the Respondent.

Lawyers for the Applicant : DONALD & COMPANY
Lawyers for the Respondent : PAUL PARAKA