The Application of Rickobert Petau v Tom Kulunga, Acting Commissioner of Police and The Independent State of Papua New Guinea (2004) N2687

• Jurisdiction: Papua New Guinea
• Judge: Gabi AJ
• Judgment Date: 12 October 2004
• Citation: (2004) N2687
• Docket Number: Application for Leave for Judicial Review Pursuant to S155(3)(a) of the Constitution
• Court: National Court
• Year: 2004
• Judgement Number: N2687

Full Title: Application for Leave for Judicial Review Pursuant to S155(3)(a) of the Constitution; The Application of Rickobert Petau v Tom Kulunga, Acting Commissioner of Police and The Independent State of Papua New Guinea (2004) N2687

National Court: Gabi AJ

Judgment Delivered: 12 October 2004

1 PRACTICE AND PROCEDURE—Claims By and Against the State Act 1996, s2 and s5—A claimant employed by the State has a claim against the State in contract—Failure to give notice under s5 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 s5 of the Claims By and Against the State Act 1996.

2 Rundle v MVIT (1988) 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 referred to

___________________________

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) PNGLR 20

Tohian and The State v Tau Liu (1998) SC 566

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...