Daniel Hewali v Papua New Guinea Police Force and The Independent State of Papua New Guinea (2002) N2233

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Kandakasi J
• Judgment Date: 27 March 2002
• Citation: [2002] PNGLR 146
• Judgment Number: N2233
• Year: 2002

Full Title: Daniel Hewali v Papua New Guinea Police Force and The Independent State of Papua New Guinea (2002) N2233

National Court: Kandakasi J

Judgment Delivered: 27 March 2002

N2233

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO: 1706 of 2001

BETWEEN:

DANIEL HEWALI

Plaintiff

AND:

PAPUA NEW GUINEA POLICE FORCE

First Defendant

AND:

THE STATE

Second Defendant

Waigani: Kandakasi J

2002 : 6th, 13th, and 27th March

PRACTICE & PROCEDURE – Giving notice of intention to make a claim against the State – Nature and form of giving notice – What is important is the giving of notice of an intended claim against the State – The instrument seeking to give notice must disclose cause of action and sufficient details about the possible claim so as to enable the State to conduct its own inquiries while the trail of evidence is still fresh – Reference to early correspondence seeking extension of time to give notice out of time not sufficient notice under extended time – Proper notice must be given within extended time.

CAUSE OF ACTION – Claims against the State – Notice of intention to make a claim against the State under section 5 of the Claims by and Against the State condition precedent to a claim against the State – Unless proper notice of an intention to make a claim is given with the time prescribed or extended by the Attorney General or a Court, no cause of action exists against the State – Claims by and Against the State Act s.5.

TIME BAR – Notice of intention to make a claim against the State – Such notice must be given within the period prescribed or within the period extended by the Attorney General or a Court – Failure to give notice within such period amounts to the action being time bared – Claims by and Against the State Act s. 5 – Motor Vehicles (Third Party Insurance) Act Chp. 295 s. 54(6).

Cases Cited:

Graham Rundle v. Motor Vehicles Insurance (PNG) Trust N0.1 [1988] PNGLR 20.

Paul Tohian, Minister for Police and the State v. Tau Liu SC566.

Kamapu Minato & Anor v. State (unreported judgement) N1768.

Tau Lui v. Paul Tohian & The State N1615.

Carol Laime v. MVIT [1995] PNGLR 224.

Wane Ume v. MVIT N1684.

Paraka Nui v. MVIT ( unnumbered and unreported).

Stanley Tende v. MVIT [1996] PNGLR 379.

Cathy Robert Kolum as next friend of Salome Robert, Jamila Robert and Peter Kolum v. The Motor Vehicles Insurance (PNG) Trust N1998.

Joy Kawai an infant by her next friend Kawai Takame v. Motor Vehicles Insurance (PNG) Trust S588.

Counsels:

Mr. R. Uware for the Plainttiff

Mr. C. Apundamatiet for the Defendant

27th March 2002

KANDAKASI J: By notice of motion filed on 19th February 2002, Mr. Hewali sought to enter judgement against the State in default of the State’s notice of intention to defend and defence. The State opposed the application on the basis that Mr. Hewali did not give notice of his intention to make a claim against the State in accordance with s. 5 of the Claims by and Against the State Act 1996 (“CBASA”). I refused the application for default judgement. Then by consent of the parties, I heard the arguments on, whether or not the proceedings could be maintained following lack of notice under s. 5 of the CBASA. I then reserved a ruling and this is the ruling on that argument.

The relevant facts are not in issue. Mr. Hewali claims that he was a soldier with the PNG Defence Force after having enlisted in 1982. He was discharged from the Force in 1996. He claims that the Force failed to facilitate an attainment of a motor mechanic tradesman certificate. Consequently, after being discharged from the Force he is not able obtain any gainful employment as a motor mechanic. He did not bring a claim against the State or the Force within the first 6 months within the meaning of s. 5 of the CBASA.

By letter dated 1st June 2000, he sought an extension of time from the Attorney General. That was declined. So Mr. Hewali applied to the National Court for an extension of time to give the State notice of his intention to make a claim against the State. The National Court granted him his application on the 10th of September 2001. The orders do not specify it, but going by his counsel’s submission, Mr. Hewali was given 14 days to give notice of his intention to make a claim against the State.

Under cover of letter dated 11th September 2001, Mr. Hewali forwarded a copy of the National Court order to the Attorney General. That letter is the critical letter has Mr. Hewali says, that is his letter of notice under s.5 of the CBASA within the 14 days extended by the National Court. The letter in the main part reads:

“RE: DANIEL HEWALI

I refer to my letter of 1st June 200(sic)(copy enclosed).

As a result of non response to application for extension of time lodged on behalf of my client I have sought the same from the Court on the 10th September and the Court granted the orders sought.

This letter serves as requisite notice pursuant to Section 5 of Claims By an (sic) Against the State Act.

Please me (sic) let have your response at once.

Yours faithfully

FRAZER S. PITPIT

Public Solicitor”

Before hearing counsel, I asked counsel to consider cases under the Motor Vehicles (Third Party Insurance) Act Chp.295 (“MVIT Act”), in similar settings, in the absence of any particular case under the CBASA. Both counsel referred me to Graham Rundle v. Motor Vehicles Insurance (PNG) Trust N0.1 [1988] PNGLR 20 and the Supreme Court decision in Paul Tohian, Minister for Police and the State v. Tau Liu SC566 (judgement delivered on the 27th of August 1998).

Mr. Uware for Mr. Hewali, argue that the letter dated 11th September 2001, is sufficient notice for the purpose of s. 5 of the CBASA, when taken together with the earlier letter of the 1st of June 2000. At the same time he concedes that the earlier letter was one which was seeking an extension of time and not giving notice of an intention to make a claim against the State. He was not able to provide any authority to support his submission.

Similarly, Mr. Apundamatiet, argued without the support of any authority that the letter of the 11th of September 2001 was not notice within the meaning of s. 5 of the CBASA, even when taken together with the earlier letter of 1st June 2001.

All claims by and against the State are governed by the CBASA. Section 5 of that Act provides that:

“5. 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 Principal Legal Adviser; or

(ii) the court before which the action is instituted,

on sufficient cause being shown, allows.

(3) A notice under Subsection (1) shall be given by—

(a) personal service on an officer referred to in Subsection (1); or

(b) leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).”

The wording in this section is identical to section 54(6) of the MVIT Act. There are two significant differences between the two sections. First, there is no guidance has to what form a notice under section 54(6) of the MVIT Act should take, whereas under the CBASA, it provides that the notice must be in writing. Akuram J (as he then was spoke of this difference in Kamapu Minato & Anor v. State (unreported judgement) N1768. Secondly, it prescribes the manner in which the notice must be served.

All the cases on point, such as Kamapu Minato & Anor v. State (Supra), agree that, the purpose or intend of Parliament behind s.5 of the CBASA, is the same as...