Plumtrade Limited v The Papua New Guinea University of Technology (2011) N4798

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 19 April 2011
• Citation: (2011) N4798
• Docket Number: WS NO. 363 OF 2009
• Year: 2011

Full Title: WS NO. 363 OF 2009; Plumtrade Limited v The Papua New Guinea University of Technology (2011) N4798

National Court: Sawong J

Judgment Delivered: 19 April 2011

PRACTICE & PROCEDURES—Application to strike out action—Claims by and Against the State Act s5—Statutory interpretation—meaning of the expression “the State” in Claims by and Against the State Act—Whether University of Technology included in the term “the State”.

Held:

1. The Supreme Court in SCR No. 1 of 1998; Reservation Pursuant to s15 of the Supreme Court Act (2001) SC672 applied six criteria to determine that a provincial government was included in the term “the State” as used in the Claims by and Against the State Act.

2. The Papua New Guinea University of Technology does not meet the criterias in 1, 2, 3 and 6 and therefore whilst it is a “government body” it is not included in the term “the State” as used in the Claims by and Against the State Act. Application refused.

Cases Cited:

Kamapu Minato v Philip Kumo (1998) N1768; Paul Tohian v Tau Liu (1998) SC566; Reservation Pursuant to s15 of the Supreme Court Act (2001) SC672; Daniel Hewali v PNG Police Force [2002] PNGLR 146; Noami Vicky John v National Housing Corporation (2005) N2770; Albert Areng v Gregory Babia (2005) N2895; Dastal Limited v Dr. Puka Temu, Minister for Lands & Physical Planning & Others (11th March 2011), Batari, Kariko and Sawong JJ, SCA No. 107 of 2008; Konze Kara v Public Curator of PNG (2010) N4048; Anave Megaraka Ona v NHC (2009) N3623; William Trnka v The State [2000] PNGLR 294; Chefs Secret Limited v NCDC (2011) N4217; Sengus Investment Ltd v National Broadcasting Corporation (2010) N4129

1. SAWONG J: By a Writ of Summons (WS 363 of 2009) the Plaintiff is suing the defendant for an alleged debt of K110, 763.89 being for goods supplied and delivered to the defendant at the request of the defendant over a period between October 2007 and October 2008.

2. The defendant has filed a defense denying the alleged debt. The defendant has now by a Notice moved the Court to dismiss the entire proceedings on the basis that the Plaintiff did not give notice under s5 of the Claims By and Against the State Act (the Act).

3. Both counsel have filed written submissions and also made oral submissions. I have read and considered carefully those submissions and the affidavit materials referred to.

4. There is no dispute between the parties that the Plaintiff did not give a notice pursuant to section 5 of the Act. The issue is whether the plaintiff is required to give notice to the defendant pursuant to section 5 of the Act in this case. The issue thus raised, raise a secondary issue as to whether the defendant falls within the expression “The State”.

5. In order to determine this issue, one needs to consider the relevant provisions of the Act, Section 5 of the Act reads:

“s5—Notice of Claims Against the State.

(1) No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this section by the claimant to:

(a) The Departmental Head of the Department responsible for justice matters; or

(b) The Solicitor General.”

(2) A notice under this Section shall be given—

(a) Within a period of six months after the occurrence out of which the claim arose; or

(b) Where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or

(c) Within such further period as;

(i) The principle legal advisor; or

(ii) The Court, before whom the action is instituted, on sufficient cause being shown, allows.”

6. It is clear that these two (2) subsections provide that:

• It is necessary to give notice to the State of the intention to make a claim against it. (s5 (1)).

• And the claim must be made within six months after the claims arose and in a claim for a breach of contract, within six months of becoming aware of the breach. (Section 5 (2)).

7. There is growing volume of case law that highlights the importance of compliance with section 5 of the Act. Principles emerging from these cases include:

• Notice of an intention to lay a claim against the State is a condition precedent to the issuing of a Writ of Summons; Tohian & The State v Tau Liu (1998) SC566.

• The rational behind the provision is to notify the State early of an intending claim against it so that it can carry out its own investigations while evidence is still fresh and then probably consider whether or not to settle the claim; Minato v Kumo & The State (1998) N1768.

• The Notice must be in writing and contains sufficient details of the intended claim, including date, time and place of occurrence. If insufficient details are given it may amount to non compliance with Section 5; Hewali v Police Force & The State (2002) N2233. Badastal Limited v Dr. Puka Temu, Minister for Lands & Physical Planning & Others (11th March 2011), Batari, Kariko and Sawong JJ, SCA No. 107 of 2008.

• The Notice must be given within the prescribed time frames or within such extended time frame under Section 5 (2) of the Act. See Paul Tohian v The State & Tau Liu, (supra) William Trnka v The State (2000) N1957 and Chef Secret Limited v National Capital District & Others (2011) N4217, Sawong J.

8. The term State is not defined in the Act. The Interpretation Act defines...