Jerry Kusa for and on behalf of himself and 6 current and former members of the Papua New Guinea Defence Force v Steven Raphael Acting Secretary Department of Defence and Commodore Peter Ilau, Commander of The Papua New Guinea Defence Force and The Independent State of Papua New Guinea (2008) N3304

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 10 April 2008
• Court: National Court
• Citation: (2008) N3304
• Docket Number: WS. NO. 1715 OF 2003
• Year: 2008
• Judgement Number: N3304

Full Title: WS. NO. 1715 OF 2003 ; Jerry Kusa for and on behalf of himself and 6 current and former members of the Papua New Guinea Defence Force v Steven Raphael Acting Secretary Department of Defence and Commodore Peter Ilau, Commander of The Papua New Guinea Defence Force and The Independent State of Papua New Guinea (2008) N3304

National Court: Kandakasi, J

Judgment Delivered: 10 April 2008

N3304

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 1715 OF 2003

BETWEEN

JERRY KUSA for and on behalf of himself and 6 current and former members of the Papua New Guinea Defence Force.

Plaintiff

AND

STEVEN RAPHAEL ACTING SECRETARY DEPARTMENT OF DEFENCE

First Defendant

AND:

COMMODORE PETER ILAU, COMMANDER OF THE PAPUA NEW GUINEA DEFENCE FORCE

Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Kandakasi, J.

2006: 16 March and 16 May

2008: 10 April

CAUSES OF ACTION – Statutory limitations – Accrual of causes of action – When a cause of action known to law comes into existence, cause of action accrues – Proceedings not commenced within statutory limits – Defendant not engaging in any conduct amounting to estoppel by conduct to prevent it from raising time bar issue - Claim statutory time barred – Frauds and Limitations Act ss.16(1).

CAUSES OF ACTION – Claim against the State – Notice of intention to make a claim against the State condition precedent – Claim pre-existing legislation – Notice must be given with 6 months from date when legislation going into operation - No notice given within prescribed time limits – Proceedings issued without complying with condition precedent – State not engaged in conduct giving rise to possible estoppel by conduct – Defence properly raised – No cause of action lies against the State.

Cases Cited:

Papua New Guinean Cases:

Rawson Construction Ltd & Ors v. Department of Works (04/03/05) SC 777.

Tau Gumu v. Papua New Guinea Banking Corporation (07/12/01) N2288.

Philip Takori & Ors v. The State (28/02/08) SC905.

Overseas Cases Cited:

Eddis & Anor v. Chichester Constable & Ors [1969] 2 All ER 912.

Sheldon & Ors v. RHM Outhwaite & Ors [1995] 2 All ER 558.

Kitchen v. Royal Air Forces Association & Ors [1985] 2 All ER 241.

Counsel:

D.Dataona, for the Plaintiffs.

F.D. Yapao, for the Defendants.

10 April, 2008

1. KANDAKASI J: Jerry Kusa and his friends (the plaintiffs) are suing the State for a number of allowances they say the State should have paid them as it did for other officers whilst they underwent training overseas as Papua New Guinea Defence Force (PNGDF) officers. The State amongst others, claims that, the claims against it are statutory time barred under s. 16 (1) of the Frauds and Limitations Act 1988 as well as s. 5 of the Claims By and Against the State Act 1996 for not giving notice of the plaintiffs intention to make their claims against the State.

2. Clearly therefore, the issue for the Court to determine is, whether the plaintiffs’ claims are statutory time barred under s. 16 (1) Frauds and Limitations Act 1988 and for failure to meet the requirements under s. 5 of the Claims By and Against the State Act 1996?

Relevant Facts

3. The facts giving rise to the issue before me are set out in their statement of claim in these terms. The plaintiffs were employed by the State with the PNGDF as radio and electronic technicians. Between 1990 and 1992, the PNGDF sent them to Australia under the Defence Co-operation Program for training at various times. The plaintiffs claim that, they were entitled to receive various allowances ranging from living to travel and other incidental allowances, which are usually paid to officers undergoing such trainings. They go on to claim that, they did receive the most important of these allowances namely, living, clothing and establishment allowances but not other incidental allowances. This caused them to suffer hardships whilst undergoing their respective trainings. They further claim that, by reason of the State paying the allowances to other officers, it is estopped from denying their claims.

4. The State says the entitlement to allowances and incidentals for PNGDF officers attending overseas training did not exist until after 1996 when the PNGDF introduced it following the Public Service standing orders. In any event, it says the allowances that were payable at the relevant time were paid for by the Australian government with compliments coming from the PNG government. Further, the State says that the payment of allowances does not necessarily mean that the plaintiffs are entitled to similar payment unless the legal basis for the plaintiffs’ entitlement and the State’s obligation is first established. Based on this, the State says that the plaintiffs have no cause of action to pursue against it.

5. Following a continuous refusal by the State to meet their claim, the plaintiff decided to take the matter to Court. Before doing that, by letter dated 27 October 2003, they gave notice of their intention to make their claims against the State. Soon thereafter on 1 December 2003, they issued these proceedings. On 31 December, the State filed its defence raising amongst others the time bar issues per s. 16(1) of the Frauds and Limitations Act 1988 and the issue of s. 5 of the Claims By and Against the State Act 1996

Frauds and Limitations Act

6. Unless otherwise provided for by any other legislation, the Frauds and Limitations Act 1988 provides limitations for all causes of action. In so far as is relevant, s. 16 (1) of the Act stipulates as follows:

“(1) Subject to Sections 17 and 18, an action—

(a) that is founded on simple contract or on tort; or

(b) to enforce a recognisance; or

(c) to enforce an award, where the submission is not by an instrument under seal; or

(d) to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture, shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.”

7. As can be seen, this provision applies to actions founded on simple contracts or tort. Employment and terms and conditions of employment are matters of contract. Given that, there is correctly no issue between the parties that, this provision covers the present case. The plaintiffs argue that, because the State has paid some other officers of the PNGDF allowances of the type they are claiming, the State is precluded from denying their claim and raise this provision against them.

8. There are two problems with the plaintiff’s argument. First, the argument ignores the State’s argument that, just because some other people were paid does not make their claim legal and payable. The Supreme Court made this point abundantly clear in its decision in the case of Rawson Construction Ltd & Ors v. Department of Works,

1 (04/03/05) SC 777.

1 where the Supreme Court said in respect of an application for fresh evidence:

“It therefore follows in our view that, if indeed the Solicitor General allowed those other claims without meeting the condition precedent in s. 5 of the Claims By and Against the State 1996, they would be nothing short of illegal claims. Thus, if we admitted the evidence in question, they will not advance the Appellants’ claim in any respect. The law cannot simply permit one illegal claim to proceed merely because another illegal claim proceeded. After all, one wrong or illegal act does not justify or correct another.”

9. Secondly, the plaintiffs’ argument goes into the merits of the claim as opposed to demonstrating why their claim is not caught by the six years limit under s. 16 (1) of the Frauds and Limitations Act 1988. The plaintiffs were obliged to draw to the Court’s attention to cases in which claims were allowed to stand beyond the six years limitation under consideration.

10. My own research and recollection took me to my decision in Tau Gumu v. Papua New Guinea Banking Corporation,

2 (07/12/01) N2288.

2 a case I drew to both counsel’s attention but they did not refer to in their respective submissions. There, Tau Gumu sued the bank for the bank’s failure to properly lodge his claim for workers compensation by giving the required notice under the relevant legislation. That failure resulted in Mr. Gumu missing out on workers compensation for a medical condition he developed and eventually suffered from whilst in the cause of his employment. The bank raised the issue of statutory time bar under s.16(1) of the Frauds and Limitations Act 1988. I resolved the issue against the bank. In so doing, I found that:

“… the bank’s failure to give the required notice under the WCA [Workers Compensation Act] and notify the plaintiff of that failure, led the plaintiff to believe that the necessary requirements were being taken care of and that he need not do anything in relation...