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 |
Judgment Date | 12 October 2004 |
Docket Number | Application for Leave for Judicial Review Pursuant to S155(3)(a) of the Constitution |
Year | 2004 |
Citation | (2004) N2687 |
Court | National Court |
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...
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