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
• Court: National Court
• Date: 10 April 2008
• Citation: (2008) N3304
• Docket Number: WS. NO. 1715 OF 2003
• Year: 2008

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

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) SC777; 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.

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...