Papua New Guinea University Of Techonology v Plumtrade Ltd [2012] PGSC 49; SC1209 (14 November 2012)

SC1209

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 55 of 2011

BETWEEN

PAPUA NEW GUINEA UNIVERSITY OF TECHNOLOGY
Appellant

AND

PLUMTRADE LTD
Respondent

Waigani: Gavara-Nanu J; Kariko J; Collier J

2012: 30 October
2012: 14 November

STATUTORY AUTHORITY – Section 5 of Claims By and Against the State Act 1996 - whether Papua New Guinea University of Technology is part of "the State" – relevant principles in considering Section 5

PRACTICE AND PROCEDURE – failure of respondent to appear in appeal – approach of Court to hearing appellant's submissions

Facts

A university appealed against the decision at first instance where the Court found that the university was not "the State" for the purposes of Section 5 of the Claims By and Against the State Act 1996.

Held:

1. The appellant was not "the State" for the purposes of Section 5 of the Claims By and Against the State Act 1996.
   
2. Being a governmental body within the meaning of Schedule 1.2.2(d) of the Constitution does not automatically mean that the entity is part of "the State".
   
3. Whether a governmental body within the meaning of Schedule 1.2.2(d) of the Constitution is part of "the State" depends, in every case, on the construction of its governing legislation.
   
4. Remarks: as to the discretion of the Court to hear an appeal on its merits notwithstanding the absence of the respondent.
   

Cases cited:
Papua New Guinea Case

Kulunga v International Education Agency of Papua New Guinea (2011) SC1106
Maps Tuna Limited v Manus Provincial Government (2007) SC857
Mineral Resources Developments Company Limited v Mathew Sisimolu (2010) SC1090
Naomi Vicky John v National Housing Corporation (2005) N2770
National Capital District Commission v Jim Reima (2009) SC993
Paul Tohian v Tau Liu (1998) SC566
Plumtrade Limited v The Papua New Guinea University of Technology, (unreported, Sawong J, National Court of Justice, WS No. 363 of 2009, 19 April 2011)
SCR No. 1 of 1998, Reservation Pursuant to Section 15 of the Supreme Court Act (2001) SC672
Sengus Investment Limited v National Broadcasting Corporation (2010) N4129
Tobbo Yakale v Allan Sako as the Registrar of Papua New Guinea University of Technology (unreported, Yagi J, National Court of Justice, WS No. 1114 of 2008, 22 February 2010)
Wagambie and Kupo v Brigadier General Rockus Lockinap [1991] PNGLR 145

Overseas Cases
Riverpath Ltd v Brammall [2000] All ER (D) 99

Counsel:
Mr A Manase, for the Appellant
No appearance for the Respondent

Reasons for Judgment

1. BY THE COURT: This appeal raises an important question of law concerning the interpretation of Section 5 of the Claims By and Against the State Act 1996 ("Claims Act"). The appellant, Papua New Guinea University of Technology ("the University"), appeals against an interlocutory decision of Sawong J of 19 April 2011 in National Court proceeding WS No 363 of 2009. In that decision his Honour found that whilst the University was a "governmental body", for the purposes of Section 5 of the Claims Act it was not included in the term "the State" as used in the Claims Act.

2. The Notice of Appeal filed by the University lists eleven grounds of appeal, however at the hearing before the Full Bench of the Supreme Court Mr Manase for the University conceded that there was, in effect, only one ground of appeal: namely that his Honour below erred in finding that the University was not protected by Section 5 of the Claims Act from an action to enforce a claim against it. It is appropriate to consider the appeal before the Court on this basis.

Where the respondent does not enter an appearance

3. At the hearing of the appeal in this case there was no appearance on behalf of the respondent Plumtrade Ltd, and no explanation for that lack of appearance. The Court granted leave to Mr Manase for the University to tender copies of letters of service of the notice of hearing upon the lawyers for the respondents. The Court then permitted Mr Manase to make submissions in support of the appeal.

4. The absence of the respondent at the hearing of an appeal deprives the appellate Court of the benefit of the submissions of a contradictor in circumstances where the question to be determined by the Court is whether a standing judgment of the Court below should be overturned. There is no provision in either the Supreme Court Act 1975 or the Supreme Court Rules 1984 dealing with this situation. However in a case where the respondent neither appears nor makes submissions to oppose the appeal, information is before the Court that the respondent is (or should be) fully aware of the hearing date, and the Court is unaware of the reasons for the apparent lack of interest of the respondent, the Court has a discretion to either hear submissions of the appellant in support of the appeal, or to adjourn the matter. Clearly, the appellant needs to substantiate its case – the absence of the respondent from the hearing of the appeal does not entitle the appellant to automatic default judgment. The appellant is required to demonstrate that the primary Judge made errors of law or fact warranting the judgment below being set aside (see, for example, Kulunga v International Education Agency of Papua New Guinea (2011) SC1106). In deciding to hear submissions from the appellant, the appellate Court is required to carefully consider the merits of the appeal before reaching a decision. A respondent against whom judgment is entered in these circumstances may be at liberty to apply for the decision to be set aside, however it would be a rare case where the Court exercised jurisdiction to set aside an order that it had made, if it was satisfied that there was no real prospect of any new order being different from that which it originally made: Neuberger J in Riverpath Ltd v Brammall [2000] All ER (D) 99.

Background

5. The background facts to this appeal are as follows.

6. The University is a State-owned university, established under the Papua New Guinea University of Technology Act 1986 ("Unitech Act"). The respondent is a supplier of building materials.

7. Between October 2007 and 2008 the respondent supplied materials to the University for general repair and maintenance work on student accommodation units. The respondent claimed that the cost of materials sold and delivered by it on credit to the University at the University's request was in the sum of K110,763.89.

8. A dispute arose between the parties. The University claimed that, in fact, the respondent supplied some materials which were not included in the Official University Purchase Order, and further that not all materials allegedly supplied by the respondent were in fact delivered. The University claimed that it was only liable to the respondent in the sum of K11,145.75.

9. On 17 July 2009, the respondent obtained judgment by default in the sum of K110,763.89 plus interest at 12.5% per annum and costs of K263 for the failure of the University to file a defence within time.

10. On 21 April 2009, the National Court set aside the default judgment and allowed the University 14 days to file a defence. In its defence, the University generally denied the claim, but also asserted that because it was an institution of the Government a notice of the respondent's claim should have been given to the State under Section 5 of the Claims Act ("Section 5 notice").

11. It is not in dispute that the respondent had not given the University, or anyone else, a Section 5 notice. Subsequently, the University by Notice of Motion moved the Court to dismiss the entire proceedings on that basis.

Decision of the primary judge

12. In considering the Motion before the Court, his Honour considered principles emerging from recent cases in which Section 5 had been considered, and discussed in some detail the decisions including SCR No. 1 of 1998, Reservation Pursuant to Section 15 of the Supreme Court Act (2001) SC672; Naomi Vicky John v National Housing Corporation (2005) N2770; Sengus Investment Limited v National Broadcasting Corporation (2010) N4129 and Tobbo Yakale v Allan Sako as the Registrar of Papua New Guinea University of Technology (unreported, Yagi J, National Court of Justice, WS No. 1114 of 2008, 22 February 2010) as well as the submissions of the parties. The primary Judge noted that in Tobbo Yakale, Yagi J had found that the University was part of the "State" for the purposes of Section 5 of the Claims Act however his Honour respectfully disagreed with that conclusion and dismissed the appellant's motion (Plumtrade Limited v The Papua New Guinea University of Technology, unreported, Sawong J, National Court of Justice, WS No. 363 of 2009, 19 April 2011). Further, his Honour distinguished his earlier decision in Sengus Investment Limited on the basis that that decision involved the application of Section 13 of the Claims Act, whereas these proceedings concerned Section 5.

13. His Honour reached his conclusions for two reasons, in summary as follows:

(1) While his Honour accepted the six criteria set out in SCR No. 1 of 1998, on the facts of this case criteria (d), (e) and (f) were inapplicable. The University was not established by the Constitution, is not part of the three tier structure of government established in the Constitution and is not constituted by elected representatives. However as the National Government has some control or exercise over it, in that the appellant's finances come from the National Government Budget, the appellant falls within the definition of a "governmental body" (at [38]).

(2) Section 2 of the Unitech Act makes it clear that the University is a body corporate, with power to sue and be sued, purchase and hold property, buy and sell property and do all matters and things incidental and pertaining to a body corporate. While the University is a governmental institution or body set up by statute for public purpose, receives its funds from government, and falls under the definition of "governmental body" as defined in Schedule 1.2 of the Constitution, nevertheless its statute specifically provides that it is a body corporate that can sue or be sued. Accordingly, it has a corporate status which is a separate and distinct legal entity and it is subject to the ordinary laws as a corporate citizen.

General principles of State immunity, and the Claims Act

14. The immunity of the Crown to suit in contract or tort has an established presence in the common law world, dating back to medieval times (see, for example, the detailed discussion in PW Hogg, PJ Monahan and WK Wright, Liability of the Crown, 4th edition, Carswell 2011, pages 1-11). In many jurisdictions – including Papua New Guinea – statutory reform has, in more recent times, permitted citizens to seek contractual or tortious relief from government, in some cases requiring litigation to be commenced against the appropriate government department or official or the Attorney-General (Liability of the Crown, page 8). This reform has occurred in this jurisdiction in the form of the Claims Act, which creates a scheme for orderly institution of claims against the State in contract or tort.

15. Section 2(1) of the Claims Act permits a person making a claim against the State in contract or tort to bring a suit against the State, in respect of the claim, in any contract in which such a suit may be brought as between other persons. However Section 5 of the Claims Act requires a Section 5 notice to be served in accordance with that Section prior to commencement of an action in the Courts. Specifically, the Section provides as follows:

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–
  
  1. the Principal Legal Adviser; or
     
  2. 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....
  

16. It is clear that the issue of a Section 5 notice is a condition precedent to the commencement of litigation where the prospective defendant is the State: Paul Tohian v Tau Liu (1998) SC566; Maps Tuna Limited v Manus Provincial Government (2007) SC857 at [33].

Section 5 of the Claims Act – relevant case law

17. Section 5 of the Claims Act has been the subject of scrutiny in numerous judgments of the National Court, as well as a number of decisions of the Supreme Court, in particular:

• SCR No. 1 of 1998;
  
• Mineral Resources Developments Company Limited v Mathew Sisimolu (2010) SC1090;
  
• Maps Tuna Limited; and
  
• National Capital District Commission v Jim Reima (2009) SC993.
  

18. It is useful to examine principles emerging from previous decisions of the Supreme Court in relation to the issues before the Court in these proceedings.

19. In SCR No. 1 of 1998 the Court held that the term "the State" in Section 13(1) of the Claims Act includes a Provincial Government. The Full Bench noted that:

The Constitution does not define "the State", but it defines the name "Papua New Guinea" to mean "the Independent State of Papua New Guinea". The Constitution also defines "governmental body" to mean –

(a) the National Government; or

(b) a provincial government body; or

(c) an arm, department, agency or instrumentality of the National Government or a provincial body; or

(d) a body set up by statute or administrative act for governmental or official purposes

The Claims By and Against the State Act 1996 does not define "the State". The Interpretation Act defines "the State" as "the Independent State of Papua New Guinea." A provincial government is thus at least a "governmental body". Is it part of "the State"? Is it a part of the governmental body making up the "Independent State of Papua New Guinea"? We believe it is and therefore its assets and finances must be protected from execution in the same way as the assets and finances of the National Government. The State therefore must also include a provincial government.

20. In so deciding, the Court continued:

We believe these principles apply equally to a provincial government because it is a part of the governmental body that makes up the government of the Independent State of Papua New Guinea. We agree generally with Injia J's opinion that the total governmental system includes the National, Provincial and Local-Level Governments. In our opinion, there are in fact three levels of political governments intended; the National, Provincial and the Local-Level. All three are established by the Constitution. Each is constituted by elected representatives.

21. Their Honours noted that:

• whilst an elaborate political and administrative system was established for the Provinces, there was a high degree of National Government control through the Minister for Provincial and Local-Level Government, Minister for Finance and Treasury, the National Executive Council and the National Parliament;
  
• the Governor of a province was constitutionally responsible to the national Minister responsible for provincial and local-level government matters;
  
• the National Government controlled the Provincial and Local-Level Governments through a very elaborate system of suspension of those governments under Part VI A of the Constitution and Division 9 of the Organic Law;
  
• the National Government had the power to appoint Provincial Administrators and District Administrators;
  
• Provincial Governments had limited financial autonomy, with the principal source of funds being funds provided by the National Government, subject to the Public Finances (Management) Act 1995;
  
• the National Government had extensive powers in respect of the withdrawal of powers of Provincial Governments and their finances under Section 51 of the Organic Law; and
  
• the Provincial Government budget was subject to the approval of the National Treasurer before implementation.
  

22. Importantly, their Honours concluded:

It is to be remembered that this protection [under Section 13 of the Claims Act] does not apply to assets and finances of developmental enterprises of provincial governments that have independent corporate statuses and operate commercially. They are subject to the ordinary laws as corporate citizens. However any profits these developmental enterprises contribute to the provincial budgets become assets belonging to the people and they are also protected from execution processes. In like manner, any tax revenue generated under delegated legislative authority becomes state finances and is protected.

23. In Mineral Resources Developments Company Limited v Mathew Sisimolu the Supreme Court considered whether the Mineral Resources Development Company ("MRDC") was an entity of the State for the purposes of the Claims Act.

24. At the hearing the respondent's Counsel had invited the Court to take the approach adopted by the National Court in Naomi Vicky John v National Housing Corporation where Lay J had set out six criteria as a guide to determining whether the National Housing Corporation was subject to the requirements of Section 5 of the Claims Act. The Court noted (at [23]) those criteria as being:

1. Such bodies are established by the Constitution.
   
2. That they form the three tier system of government enshrined in the Constitution.
   
3. As with the other tiers of government, they are constituted by elected representatives.
   
4. The National Government exercises some form of control over them in political, administrative and financial matters.
   
5. They fall within the definition of "governmental body" as defined in the Constitution.
   
6. Judgment debts are recoverable from monies allocated in their budgetary process.
   

25. Their Honours considered, however, that:

[24] The criteria set in the Naomi Vicky case is not criteria that is properly tested as against the characteristics of every statutory authority or entity that called or calls for recognition as a State entity. In our view, the factors to be taken into account when determining whether an entity is a statutory organization or a State entity, is to revert to the governing legislation which would demonstrate the functions of that organization, whether it is accountable to the State and whether it is a public body. This was the attitude taken by several trial Courts. ...

26. The Court noted that:

• The MRDC was an entity created under the Mineral Resources Development Company Limited (Privatization) Act 1996 and a corporate entity under the Companies Act 1997.
  
• Pursuant to its Constitution which sets out its objects and functions, MRDC was set up for governmental or official purposes and carries out decisions or directions of the National Executive Council.
  
• The MRDC's Constitution included detailed provisions demonstrating the involvement of the State's related agencies and departments, including in relation to transfer of shares, appointment and removal of directors and conduct of meetings.
  

27. It followed that, in the Court's view, the MRDC was a State entity.

28. In Maps Tuna Limited the Court confirmed the principle decided in SCR No.1 of 1998 that Provincial Governments are "the State" for the purposes of Section 5 of the Claims Act.

29. Finally in National Capital District Commission v Jim Reima the Supreme Court found that the National Capital District Commission ("NCDC") was an entity of "the State" within the meaning of Section 5 of the Claims Act. In so doing, the Court noted:

• The NCDC was a corporation with perpetual succession under the National Capital District Commission Act 1990 ("NCDC Act").
  
• Pursuant to Section 4 of the NCDC Act, the NCDC was capable of (inter alia) acquiring, holding and disposing of land, suing and being sued in its corporate name, entering into contracts and – subject to the prior written approval of the Minister – conducting business enterprises.
  
• The NCDC Act was established to govern the National Capital District as required by Section 4 of the Constitution. The preamble to the NCDC Act recognises that the NCDC is in the same tier of government as a Provincial Government because, pursuant to Section 4(5) of the Constitution, it is taken into account as a provincial electorate in accordance with Section 125 of the Constitution (at [10]).
  
• At [11]:
  

The NCDC is an entity established to govern as part of a 3 tier structure of a constitutional government. Amongst others, according to s.51 of the NCDC Act, its purposes are public purposes, it has power to legislate as provided in Part VII of the NCDC Act (s.16(1)) and its finances are derived from its own taxation laws and regulations and from grants from the National Government (s.24 of NCDC Act). The NCDC also has the power to legislate to impose taxation (s.42 of NCDC Act) and which laws can only come into operation after the Minister has given his written consent (s.43 of NCDC Act). The terms and conditions of the staff are subject to the Salaries Conditions and Monitoring Act 1988. (s.20 of NCDC Act). The Governor or in his absence, the Deputy Governor is politically responsible to the NCDC and the National Parliament for governing NCD and is constitutionally responsible to the Minister (s.6D of NCDC Act). The members of the NCDC are subject to the Leadership Code (s.7 of NCDC Act). The accounts and records of the NCDC are subject to inspection and auditing by the Auditor-General (s.34 of NCDC Act).

• Section 23 of the NCDC Act provided that the Public Finances (Management) Act applied to the NCDC.
  
• The NCDC was, "in a sense, the executive arm of government for the National Capital District" (at [18]).
  

30. Their Honours concluded that this combination of characteristics demonstrated that the NCDC was a public body and an entity of the State for the purposes of Section 5 of the Claims Act. Their Honours noted, in particular, that statutory corporations are those over which the government continues to exercise some control, in particular where a Minister has a right to give directions to the entity or to veto its actions, appoint the governing body of the entity, or exercise financial control (at [20]). The NCDC exhibited these characteristics.

Submissions of the appellant

31. Detailed written submissions were handed up by Mr Manase at the hearing of the appeal. Pertinently, the case of the appellant may be summarised as follows:

• Three criteria could be gleaned from the decision of the Supreme Court in SCR No. 1 of 1998 in relation to whether an entity constitutes "the State" for the purposes of Section 5 of the Claims Act, namely:
  
  1. The entity must be a governmental body such as an arm, department, agency or instrumentality of the National Government or Provincial body or a body set up by Statute or an administrative act for governmental or official purposes.
     
  2. The principal source of funding is grants or appropriation from the National Budget annually.
     
  3. They must not be developmental enterprises of the State or governmental bodies that have independent corporate status and operate commercially for a profit.
     
     • All three criteria were satisfied here.
       
     • The six criteria articulated by Lay J in Naomi Vicky John v National Housing Corporation were more relevant to constitutionally-established offices than statutory bodies.
       
     • There are many cases where, in dealing with similar issues, the Courts have found that entities are governmental bodies and therefore part of or an entity of the State.
       
     • It would be appropriate for this Court to lay down guidelines or principles with a view to resolving some of the inconsistencies in National Court decisions.
       
     • The University is a State-owned university established under the Unitech Act, reliant on the National Budget for its funding. It is not a development enterprise or profit-making organisation. It is subject to the Public Finances (Management) Act and is therefore a governmental body subject to Section 5 of the Claims Act.
       
     • Although the University is an entity of its own, it is still funded and managed by the State.
       
     • The primary Judge was wrong to find that his Honour's earlier decision in Sengus Investment Limited could be distinguished on the basis that that case involved the application of Section 13 rather than Section 5 of the Claims Act.
       
     • This case involves similar issues to those considered by the Supreme Court in National Capital District Commission v Jim Reima and this appeal ought be allowed on the authority of that decision.
       

Consideration

Preliminary points

32. Two preliminary points should be made.

33. First, as has already been noted, there was no appearance by the respondent to this appeal, and no submissions made to answer the submissions put to this Court by Mr Manase on behalf of the appellant. The Court has not received the benefit of a hearing where comprehensive arguments are made by both parties. The issues before the Court will be considered on their merits, however this is not the appropriate context for the Court to prescribe comprehensive guidelines in relation to the application of Section 5 of the Claims Act, as the appellant has suggested.

33. Second, the observation of the primary Judge at [18] that different considerations arise in relation to Section 5 and Section 13 of the Claims Act is difficult to follow. As Sheehan J observed in Wagambie and Kupo v Brigadier General Rockus Lockinap [1991] PNGLR 145, the Claims Act recognises that:

the dignity of a sovereign nation does not permit or require that it be subject to examination in the courts as to its means or ability to pay judgment debts.

34. Section 13 appears to embody this philosophy, in that it proscribes an action against the State for the attachment of property or revenue to satisfy a debt. This is in no way incompatible with the process prescribed by Section 5, which requires that a claimant against the State act promptly to notify a responsible government officer (whether it be the relevant Departmental Head or the Solicitor-General) of the claim prior to commencing litigation. This issue is peripheral to the matters for decision in this appeal, however it seems illogical to us that an entity would constitute part of "the State" for the purposes of one section of the Claims Act but not the other.

35. We now turn to the key question in this appeal, namely whether the University is "the State" or part of "the State".

Is the University "the State"?

36. Interestingly, as a general proposition, it appears that academic writers perceive universities as being outside the ambit of "the State" or "the Crown" for the purposes of litigation. So, for example, the learned authors of Liability of the Crown comment at page 13:

The Crown includes the departments of government that are headed by a minister. It is the control of the minister that provides the link to the Crown. Municipal bodies, school boards, universities, hospitals, regulatory agencies, administrative tribunals and public corporations, even if they are performing "governmental functions", are not agents of the Crown, unless they are controlled by a minister or expressly declared by statute to be an agent of the Crown. (emphasis added)

37. Clearly each case requires consideration on its own facts, however the inclusion of universities in a list of bodies considered outside the parameters of "the government" is itself illuminating. We note however that this commentary is incompatible with the decision of Yagi J in Tobbo Yakale, where his Honour found that a claim by a former employee against the University in respect of monies in lieu of unpaid entitlements should stand dismissed in light of the failure of the plaintiff to serve the University with a Section 5 notice prior to commencing proceedings. Nonetheless it is also clear from the reasons of Yagi J, in particular paragraphs [15]-[20], that his Honour simply assumed that the University was "the State" for the purposes of Section 5 of the Claims Act without analysing the issue or providing any explanation for that assumption. To that extent Tobbo Yakale is of little (if any) assistance in determining this appeal and the question of the nature of the University for the purposes of the Claims Act.

38. Of considerably greater assistance is the Unitech Act, which outlines, in effect, the constitution of the University, and sets out in detail provisions relevant to the objects, powers, authorities and processes within the University structure. Clearly, in order to determine the nature of the University in this case it is important, as a first step, to consider its constituting legislation.

39. Importantly, Section 3 provides as follows:

CONTINUATION OF ESTABLISHMENT OF THE UNIVERSITY

(1) The Papua New Guinea University of Technology established by the Papua New Guinea University of Technology Act (Chapter 170) is, on the repeal of that Act, deemed to be established under this Act and shall continue its legal entity without interruption and shall be governed by the provisions of this Act.

(2) The University–

• (a) is a body corporate by the name of "The Papua New Guinea University of Technology"; and
  
• (b) has perpetual succession; and
  
• (c) shall have a common seal; and
  
• (d) is capable by that name of–
  
  1. suing and being sued; and
     
  2. taking, purchasing and holding property (including property devised, bequeathed or given to the University); and
     
  3. granting, selling, alienating, assigning and demising property; and
     
  4. doing all other matters and things incidental or appertaining to a body corporate.
     

40. The powers of the -University are conferred by Section 6 of the Unitech Act, which provides:

POWERS OF THE UNIVERSITY

The University shall have the power–

(a) to grant or confer such degrees as are authorized by the Statutes and such diplomas, certificates or other academic awards as it determines; and

(b) to provide instruction and facilities for study, education and research to persons registered as preparing for degrees, diplomas, certificates or other awards of the University; and

(c) to provide facilities for extra-mural study and continuing education in such fields and in such manner as the University may from time to time determine; and

(d) to co-operate, in pursuance of any of the objects of the University, with any other bodies or persons and to enter into agreements authorized by Statutes with institutions for their association with or incorporation into the University; and

(e) subject to the Salaries and Conditions Monitoring Committee Act 1988, to appoint academic, administrative and other staff on such terms and conditions of service as the University may determine; and

(f) to provide for promoting the health and general welfare of the students of the University; and

(g) to regulate and enforce discipline among the employees and students of the University by such measures as the University may determine; and

(h) to cancel, annul or revoke any act done in the exercise of these powers; and

(i) to do all other acts or things as may be done under the provisions of this Act or as may be conducive to the exercise of these powers or to the attainment of any of the objects of the University.

41. "Statute" for the purposes of the Unitech Act means a Statute of the University in force under Part V of the Unitech Act.

42. Part III provides for the administration of the University, including the authorities of the institution, their functions, membership of authorities generally, meetings of authorities, and delegation.

43. Part IV deals with officers of the University, including prescriptions of relevant offices and functions and powers of officers.

44. Part V provides for the University Council making Statutes in respect of matters defined by Section 32 of the Unitech Act. Approval and publication of Statutes is subject to Section 33 of the Unitech Act, which provides:

APPROVAL AND PUBLICATION

(1) Every Statute shall be–

• (a) sealed with the common seal of the University; and
  
• (b) transmitted by the Chancellor to the Minister for approval by the Head of State, acting on advice,
  

and when so approved shall be notified in the National Gazette.

(2) The notification of a Statute in the National Gazette shall specify the place at which copies of the Statute may be purchased.

(3) A Statute shall not be expressed to take effect from a date before the date of notification in a case where, if it so took effect–

• (a) the rights of a person (other than the University) existing at the date of notification would be affected in a manner prejudicial to him; or
  
• (b) liabilities would be imposed on a person (other than the University) in respect of anything done or omitted to be done before the date of notification.
  

(4) A copy of each Statute shall be laid before the Parliament within six sitting days of the Parliament after notification of the Statute in the National Gazette.

(5) The production of–

• (a) a copy of a Statute under the common seal of the University; or
  
• (b) a document purporting to be a copy of a Statute and to have been printed by the Government Printer or on behalf of the University,
  

is, in all proceedings, sufficient evidence of the Statute.

(6) The Statutes made in each secular year shall be numbered in regular arithmetical series, beginning with the number 1, in the order in which they are notified in the National Gazette.

45. Part VI deals with "Finance, Property, etc". Section 34 provides, in summary, that the Public Finances (Management) Act (other than Sections 53, 51 and 61) applies to and in relation to the University, subject to the exceptions, limitations, conditions, additions and modifications set out in Schedule 2. Materially, Section 35 provides:

BASIC FINANCE

(1) The State shall each year pay to the University a sum of money, which sum shall be determined by the National Executive Council on the advice and recommendation of the Commission for Higher Education.

(2) The amounts payable to the University under this section shall be paid out of the Consolidated Revenue Fund.

Findings

46. In replicating sections of the Unitech Act for the purposes of this judgment we have emphasised provisions which appear to reflect some level of control of the University by government authorities in order to measure the extent of that control and consider that control in light of principles articulated in earlier Supreme Court decisions. Having done so however, we are in no way persuaded that the primary Judge in these proceedings erred in his decision such that the judgment below ought be set aside. We form this view for the following reasons.

47. First, as is clear from the Supreme Court decisions to which reference has already been made, the level of autonomy and the nature of the functions of the relevant governmental entity are critical factors in considering whether the entity constitutes "the State" for the purposes of Section 5 of the Claims Act. Helpful criteria are set out in SR No. 1 of 1998, and we respectfully adopt those criteria. In each of the Supreme Court decisions considered earlier in this judgment, the Court found that an entity was part of "the State" only where it was subject to government control both in management and conduct of its affairs, where it was financially integrated with government in the sense of being principally funded from consolidated revenue, and where its functions were those of the State rather than an autonomous body. So, for example, as is clear from these cases, facts supporting a finding of an entity being "the State" include:

• that the entity is a level of government, constituted by elected representatives;
  
• that members of the entity are subject to appointment or dismissal by the government, or the entity itself subject to suspension by the government;
  
• that the entity is principally funded by the State, with budgetary constraints referable to political approval;
  
• that the entity carries out decisions or directions of the government;
  
• that the entity is empowered by its enabling legislation with functions of a government nature, such as imposing taxes; and
  
• that the enabling legislation pursuant to which the entity functions specifically provides that the entity is accountable to government.
  

48. The fact that the entity may be a body corporate, legislatively capable of acquiring, holding or disposing of land, suing and being sued in its corporate name or entering into contracts is not conclusive in determining the nature of the entity and whether it is "the State".

49. Second, the University appears to be a "governmental body" within the meaning of Schedule 1.2.2(d) of the Constitution, in that it is "a body set up by statute or administrative act for governmental or official purposes". The relevant "official purposes" are found in Section 5 of the Unitech Act, and include the advancement and dissemination of knowledge, and the provision of liberal and professional education responsive to the needs of Papua New Guinea.

50. However while the University may be a governmental body and while it exhibits some characteristics of an entity which is part of "the State" – for example, it is funded from consolidated revenue (Section 35 Unitech Act), its staff are subject to the Salaries and Conditions Monitoring Committee Act 1988, it is subject to the Public Finances (Management) Act with a few exceptions, and its Statutes require Parliamentary approval – there are many other factors indicating that the University functions on a daily basis as an independent body free from government direction or control of any kind. So, for example:

• It is a body corporate with concomitant features including perpetual succession and the capacity to sue and be sued (Section 3).
  
• The seal of the University is kept in such custody and used as the Council of the University directs or as otherwise authorised by University Statutes (Section 4).
  
• The powers of the University as found in Section 6 are extensive and overall exercisable without reference to government control.
  
• Whilst the engagement of staff is subject to the Salaries and Conditions Monitoring Committee Act, otherwise the University can appoint staff on such terms and conditions of service as it may determine (Section 6).
  
• An inference may be drawn that the University is not a "public authority" within the meaning of the Salaries and Conditions Monitoring Committee Act because:
  
• The Salaries and Conditions Monitoring Committee Act specifically controls variation of salaries and entitlements by public authorities, however
  
• the Unitech Act includes specific provision that engagement of University staff is subject to the Salaries and Conditions Monitoring Committee Act.
  
• While the Minister is entitled to appoint eight members of the University Council which is the governing body of the University, this is a minority (Section 9).
  
• The Academic Board, which is the principal academic body of the University, is not constituted by government appointment (Section 11).
  
• The only reference to "Parliament" in the Unitech Act is a reference to the Parliament elected by the University (for example, Section 9(g)).
  
• Detailed corporate governance provisions concerning vacation of office, meetings, committees, delegations, the identity of officers of the University and their functions contain no reference to government control or direction (Sections 10-33).
  
• Sections 51, 53 and 61 of the Public Finances (Management) Act specifically do not apply to the University (Section 34 Unitech Act). Sections 51, 53 and 61 of the Public Finances (Management) Act contemplate fiscal controls in the form of:
  
• submission of estimates of receipts and expenditure for the following financial year and details of proposed works programmes;
  
• payment of conditional grants – normally to "public bodies"; and
  
• importantly – limitations on the value of contracts which an entity can execute without the approval of the Minister.
  
• The powers of approval vested in the Minister pursuant to Section 61 of the Public Finances (Management) Act are, in the case of the University, vested in the University Council pursuant to Schedule 2 of the Unitech Act.
  
• The University Council has extensive powers to, for example, establish investment funds and borrow money.
  

51. The University is a body independent of the State in key respects. To characterise the University as part of "the State" would be a misdescription of its nature, functions, purpose and governance. It is clear that whether an entity (being a governmental body within the meaning of Schedule 1.2.2(d) of the Constitution) constitutes part of "the State" must, in every case, depend upon the construction of the relevant governing legislation (in this case the Unitech Act). The fact that an entity is a governmental body within the meaning of Schedule 1.2.2(d) of the Constitution does not automatically render that entity part of "the State" for the purposes of the Claims Act.

Conclusion

52. In circumstances where an entity is created by statute and is subject in a number of ways to State approval, determining whether that entity is part of "the State" can be a complex exercise. In the circumstances of this case, however, it is clear that the decision of the primary Judge was correct. The University is not part of "the State" for the purposes of Section 5 of the Claims Act. It follows that the grounds of appeal in the University's notice of appeal are not substantiated, and the appeal should be dismissed.

53. As there was no appearance by the respondent in these proceedings there is no reason to make any order concerning the respondent's costs. The appellant will, naturally, bear its own costs in the appeal.

Order

54. The appeal is dismissed.

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Manase & Co Lawyers: Lawyers for the Appellant
No representation for the Respondents