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
• 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

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, Paul Tohian, Minister for Police and The Independent State of Papua New Guinea v Tau Liu (1998) SC566, Kamapu Minato v Philip Kumo (1998) N1768, John Bokin v The Independent State of Papua New Guinea (2001) N2111 referred to

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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 23 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 s5 of the Claims By and Against the State Act 1996 ("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 s5 of the Claims By and Against the State Act 1996. 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 s5(2), (c)(i) of the Claims By and Against the State Act 1996 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...