Notice of Intention to Make a Claim Against the State of Papua New Guinea

Professor Lawrence Kalinoe

Background and Context.

Prior to 1996, there was no legal requirement for a plaintiff in a civil matter against the State, to give a notice of his intention to sue the State. Since the new Claims by and Against the State Act 1996 came into effect, it is now a legal requirement – rather in the words of the Supreme Court in Paul Tohian v Tau Liu SC 566 (Unreported Supreme Court judgment dated 27 April 1998), a "condition precedent" before a plaintiff issues a writ of summons against the State. In the recent past, there has been a steady flow of case law which has gone to address this requirement to give notice, and even venturing onto stipulating the form and content of the notice of intention to make the claim. 

This note reviews the cases that focus on (1) the "conditions precedent" for bringing an action against the State, (2) the nature of a 'proper notice', and (3) service of the notice of intention to make a claim. 

Section 5 of the Claims By and Against the State Act 1996 provides as follows:

"5. Notice of Claim 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 a breach of 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 12noon, 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)."

Conditions precedent

Viewed in its totality, section 5 of the Act, addresses four distinct requirements, which are now known as "condition precedents", before a litigant can lawfully institute legal proceedings against the State:

(a) that a notice of intention to make a claim must be in writing as required under the first limb of s 5(1) of the Act;

(b) that the notice must be addressed to either the Attorney General and the Secretary for Justice or the Solicitor General (and not any other government official such as Police Commissioner or the Prime Minister!): s 5(1)(a) and(b);

(c) that the notice must be given within a period of six months of the occurrence of the act or omission giving rise to the claim, or knowledge of the breach of contract or such other period, as authorized by the Attorney General in his capacity as Principal Legal Adviser (not the Solicitor General!) or a court: s 5(2);

(d) that the notice must be served personally on either the Attorney General and Secretary for Justice or the Solicitor General. But if personal service is not practicable, then service is by leaving the letter containing the notice of intention with the respective secretary of either the Attorney General or the Solicitor General, during official public service hours of duty: s 5(3).

In Paul Tohian and others v Tau Liu, the Supreme Court held that s 5 of the Claims By and Against the State Act 1996, is similar to s 54 of the Motor Vehicles (Third Party Insurance) Act which requires persons intending to make a claim against the then Motor Vehicles Insurance Trust, now Motor Vehicles Insurance Limited, to give notice of intention to make a claim within six months of the occurrence of the motor vehicle's accident out of which the claimant suffered personal injuries or loss. The Supreme Court then adopted an earlier Supreme Court decision in Rundle v Motor Vehicles Insurance Trust which is a long standing authority on the mandatory requirement of notice of intention to claim under s 54 (6) of the Motor Vehicles (Third Party Insurance) Act and held, thus:

"In our view the trial judge was correct in holding that the provision under consideration is similar to s 54 of the MVIT Act. However, he fell into error when he did not follow the reasoning in Rundle v MVIT. The purpose of the requirement to give notice remains the same whether or not the notice is required to be given within 6 months or within such period as may be granted by the Principal Legal Advisor or the Court. It is clear to us that the notice of intention to make a claim is a condition precedent to issuing a writ of summons in all circumstances." 

Since the Supreme Court Decision in Paul Tohian and others v Tau Liu (supra), it is now settled that the four requirements under s 5 of the Claims By and Against The State Act, as set out above, are "conditions precedent"; hence, all four of these requirements must be complied with. Failure to comply with one, will bar any law suit against the State. The case law that will be reviewed hereunder, addressed these "conditions precedent." Non compliance with one or more of them is a fatal blow to the plaintiff's action which would be time-barred. 

Notice of intention – Rationale & Content of Notice

In Kamapu Minato v Philip Kumo and the State, Akuram J explained that the rationale behind the legal requirement under s 5(1) of the Act, to serve written notice of intention to make a claim against the State, is to give the State early notification of the claim so that it can make the necessary inquiries as to its veracity and, therefore, have adequate time to consider its defences, if any, given the varied and vast responsibility that the State has for any illegal actions or other tortuous liabilities committed by its servant and agents. Kandakasi J in Daniel Hewali v The PNG Police Force and the State amplifies the reasoning at p.13 of his judgment. He stated: "This I consider is very important, because the State being a large institution, it would be hard placed to take any meaningful step to assess a claim early…. This would serve both ways. It gives the State an early opportunity to investigate and assess a possible claim and facilitate early settlement in cases where the State is clearly liable to the claimant. This would minimize costs and interest to both parties. It would also help reduce the number of matters entering the court system for resolution."

The rationale aside, Kandakasi J in Daniel Hewali v The PNG Police and the State (supra), was required to decide whether the following letter before him, constituted notice of intention to make a claim against the State, as required under s 5(1) of the Act:

"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 f time lodged on behalf of my client I have sought the same from the Court on the 10th of 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".

In coming to his decision, His Honour first found that whilst s 5(1) of the Act required a written notice of intention to make a claim against the State, the Act was silent on the form and requisite particulars of the notice, to satisfactorily capture the requirement of s 5. His Honour then referred to the case law dealing with the requirement of notice of intention to make a claim against the Motor Vehicles Insurance Limited, previously known as the Motor Vehicles Insurance Trust (MVIT), under Section 54 (6) of the Motor Vehicles (Third Party Insurance) Act. He made particular reference to Sawong J's decision in Paraka Nui v MVIT and Injia J's (as he then was) decision in Stanley Tande v MVIT for assistance. From the Paraka Nui case, Kandakasi J adopted the following statement from Sawong J: 

"Where a claimant is complying with his obligations to give notice of intention to make a claim to the Trust, then the claimant must provide full and accurate details of the owner, driver, registration number of the vehicle, the date and full circumstances giving rise to the accident, which gives rise to the claim." 

From the Stanley Tande case, Kandakasi J adopted the following dicta from Injia J (at p.383): 

"In my view, a notice under Section 54(6) should be accorded its ordinary meaning. It means to inform or to make the Trust aware of the claimant's intention to make a claim against it … the nature of the injuries received and medical treatment received, if any and the claimant's desire and intention to make a claim." 

Kandakasi J also made reference to the strong and forceful differing judgment on the meaning and form of "notice" of intention to make a claim, by Sevua J in Cathy Robert Kolum as Next Friend of Salome Robert, Jamila Robert and Peter Kolum v Motor Vehicles Insurance (PNG) Trust, where Sevua J made reference to Sawong J in Paraka Nui and Injia J in Stanley Tande, and said:

"With respect to my brethren, I do not agree with their views although, I consider that what they have adverted to are relevant in a claim against the Trust. In fact, I share the first part of Injia J's views, but not the rest of the paragraph quoted. To agree with their views, would mean sanctioning the definition of the word, 'notice', which is neither defined in s 54(6) of the Act nor by the Supreme Court in Rundle's case. I consider that, those views have given a very wide meaning to the word 'notice' than intended by the Parliament. In my view, 'notice' given its ordinary meaning, means writing to the Trust and notifying it of one's intention to make a claim against the Trust. Of course it is important to provide the date of accident and registration numbers of vehicles involved in an accident. However, to say that a claimant who gives notice within the 6 months notice limit as required by law, has not given notice because details of vehicles, how the accident occurred, etc. etc. were not included in the notice is quite absurd and ridiculous. It defeats the very purpose that the law intended."

Kandakasi J at p. 11 of his judgment in Daniel Hewali, rejected this reasoning by Sevua J, and instead adopted the approach taken by Sawong J and Injia J in their respective dicta as set out above, and for purposes of the requirements of notice of intention to make a claim against the State under s5(1) of the Claims By and Against the State Act 1996, Kandakasi J articulated the following ratio (at p.13):

"Such notice must give sufficient details about the impending claim so that the State can carry out its investigations and gather its evidence to properly address the claim once lodged against it. Such details should include dates, time, names of people and places, copies of any correspondence or such other information that could enable the State to carry out its own investigations. Only when notice is given with such details or information, can one safely say that notice of his or her intended claim has been given to the State."

His Honour then reasoned that it was necessary for the details of the pending claim to be set out and given in the notice as required under s 5(1) so that the State can make initial assessment on the pending claim and act accordingly and perhaps effect early settlement if it forms the view that there may be no defence available to it, thereby minimizing the additional costs of litigation. Kandakasi J then continued:

"In my view therefore, unless notice in the terms described is given in the manner prescribed, there could be no notice in fact or in law against the State for reasons already given. It is therefore, incumbent upon claimants and their lawyers to ensure that notice in these terms are given to the State in the manner prescribed in order to meet the condition precedent to ones claim against the State."

Having said so, His Honour then found the letter presented above, from the Public Solicitor, purporting to give notice of intention to make a claim against the State pursuant to s 5(1), to be wanting and hence inadequate, for it "failed to provide sufficient details to amount to a notice for purposes of s 5 of the Act." Under these circumstances, Kandakasi J then found that the plaintiff has failed to give notice of his intention to make his claim against the State, and dismissed the proceedings with costs awarded against the plaintiff. No doubt, this decision has now 'filled in the form' for a void that was left unattended by the Act. Although it is not a Supreme Court ruling, until and unless it is overturned, it now states the law concerning the requirements of the first limb of s 5(1) of the Act for the notice of intention to make a claim to be adequately given, and in writing. The question, albeit academic, is whether Kandakasi J's importation of the 'substance and form' of a notice of intention to make a claim is within the ambit of, what I refer to as the first limb of s 5(1) that reads: "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…" 

On reflection, I prefer Sevua J's construction of the ordinary meaning of a 'notice of intention to make a claim' in the Cathy Robert Kolum case as cited above – that to give notice, in its ordinary meaning, means writing and notifying, either the MVIL or the State, as the case may be, of one's intention to file a law suit and that whilst it is important to provide the necessary details as much as possible, failure to provide such details should not defeat a notice, particularly one that has been given within the statutory time period. This is because, either the MVIL or the State, still has the opportunity to follow up on the notice when either acknowledging or responding to the notice, and require from the claimant, additional details should they seriously require them. Clearly under s 5(1), there is no legal requirement to give details of the claim in the terms imposed by Kandakasi J in Daniel Hewali. With respect, Kandakasi J's importation of the 'form and content' of a notice of intention to make a claim under s 5(1) is clearly venturing outside of the clear language of s 5(1). Kandakasi J's importation of the "form' and "content" of a notice of intention to make a claim, however can only be supported by placing reliance on s 5(2)(a) and (b), the respective phrases being: "within a period of six months after the occurrence out of which the claim arose" or "within a period of six months after the claimant became aware of the alleged breach" – and by placing particular emphasis on the words "occurrence" and "alleged breach", and then to require the claimant to then provide sufficient details of the "occurrence" or the "alleged breach" when giving the notice of intention to make the claim. 

Nevertheless, I concur with Kandakasi J in Daniel Hewali (at p.14) that: "Simply stating that 'I give you notice that I will make a claim against you", may still be insufficient notice, and that there should be, at the very least, some descriptive account of the act or omission, giving rise to the pending claim. Returning back to the letter by the Public Solicitor, purporting to give notice, in the Daniel Hewali case as cited above: was that letter sufficient notice? Clearly not, according to Kandakasi J. For our purposes, rather than dwelling on the answer to the question and particularly so, the legal correctness of the answer to the question, this letter must serve as a useful reference point, for lawyers giving notice under s5(1) – not as a precedent, but rather as a red beacon from a light house, transmitting signals of danger, as opposed to safe passage. 

Timing of Notice

Given that the requirement to give notice under s 5(1) is a "condition precedent", it is imperative that the notice of intention to make the claim is given prior to the issuance and service of the necessary court process on the State. Even if the court process is issued and served within the statutory period (of six months), the notice under s 5(1) must be given prior to the issuance and service of either the writ or originating summons on the State, not after or simultaneously. This is clear from Olympic Stationary Limited trading as PNG Stationery and Office Supplies v The State. In this case, Sevua J dismissed the proceedings commenced by the plaintiff against the State with costs, when it was established that the originating summons, dated 27 January 2001, preceded the Section 5 notice which was dated 8 February 2001 and served on the State together with the originating summons. In handing down judgment, Sevua J was explicit (at p.6):

"… it is trite law that s 5 notice, being a condition precedent to the issuance of proceedings, must be given first before the actual filing of the originating process. While I accept that notice must be given within 6 months from the date of occurrence of the act giving rise to the court proceedings, it is now settled that the s 5 notice must be given before a writ is issued. In the present case, the originating summons was issued on 21 January 2001, while the notice was dated 8 February 2001. It is obvious that the plaintiff has not strictly complied with the requirements of s.5 of the Claims By and Against the State Act." 

Extension of time

The statutory period is one of six months or such other period allowed, either by the Attorney General as the Principal Legal Adviser (s 5(2)(c)(i)) or the Court. When a claimant realizes that the statutory period has run out, the next option is to approach the Attorney General as the Principal Legal Adviser, and then obtain an extension of time. The granting or refusal of any extension of time to give notice is a purely discretionary matter for the Attorney General. Experience in the recent past has been that if the notice period has lapsed by a couple of days or weeks etc, or that if sufficient difficulty on the part of the claimant can be demonstrated, resulting in the lapse of the statutory period, the Attorney General would normally grant the extension sought. If the Attorney General refuses the extension of time, then the claimant has the option to apply to the National Court to obtain an extension. In William Trnka v The State (supra), Sevua J held that in an application seeking an extension of time for purposes of giving notice under s 5, the "plaintiff must show sufficient cause in order to obtain an extension of time to give notice of his intention to make a claim against the State." After making passing reference to his earlier decisions on this point, His Honour continued (at p.6): "The test is that he must show sufficient cause in order to obtain an extension of time to give notice to the defendant." Without being definitive as to what may constitute "sufficient cause", following his earlier decision in Motor Vehicles Insurance Trust v Insurance Commissioner, His Honour reiterated that "access to legal service" is a strong consideration. That if a person was late in giving notice under s 5 due to the fact that he did not have access to legal services, then that could be a strong consideration in the plaintiff's favour. Conversely, if the plaintiff has easy and readily available access to legal services, he might be denied an extension of time. In William Trnka – the facts were that the Plaintiff was living in Port Moresby, with easy access to legal services. He unnecessarily delayed serving the notice for about 2 years, and there was a further delay by their lawyers for one year, the learned Judge refused to grant the extension of time sought by the plaintiff. 

Proper Service

The section provides for the notice of intention to make a claim to be addressed to (a) the Departmental Head of the Department responsible for justice matters; or (b) the Solicitor-General.

This is a rather clear and elementary condition precedent. Yet, there have been instances where the claimants have written to other government officials, such as the Commissioner of Police, over matters involving alleged police brutalities, and purported to give notice via the complaint letter or to ask the court to recognize such a letter as notice for purposes of the s.5 notice. William Trnka v The State is one such case where the plaintiff and his father have written various complaint letters, initially to the Commissioner of Police, alleging police brutality, and widely copied the letters to, amongst others, the Prime Minister and the Minister for Police. When it occurred to them that the statutory period ran out, in fact exceeded by more than 2 years, they applied to the court seeking extension of the notice period, and further invited the court to accept the letters referred to earlier, as notice for purposes of s 5 of the Claims By and Against the State Act 1996. In dismissing the plaintiff's application, Sevua J was emphatic (at pp. 7 – 8):

"The plaintiff said in his affidavit sworn on 28 September, 1999 that he believed that he had given notice to the State through the Prime Minister, the Police Minister and the Police Commissioner, thus the defendant should have been aware of his claim. That is a misconception. The law is very clear. Section 5(1) of the Claims By and Against the State Act specifically requires that written notice be given to 'the Departmental Head of the Department responsible for Justice matters', in which case, it is the Attorney General, otherwise the Solicitor General. I hold that a written complaint to the Police Commissioner, the Police Minister and the Prime Minister of the country does not constitute notice as stipulated in s 5 of Claims By and Against the State Act." 

In John Bokin and others v Sergeant Paul Dana, Police Commissioner and the State, the State objected to a letter from the plaintiff's lawyers, Warner Shand Lawyers, purporting to give notice under s 5 and addressed to: "The Solicitor, Solicitor Generals Office, Department of Attorney General P O Box 591, Waigani, National Capital District", and was posted through the mail. Davani J rejected this purported notice, ultimately on the basis of defective service and we shall discuss that aspect of Her Honour's ruling later, under the next heading, when we look at service. But for now, it is important to point out that the letter purporting to give notice, is itself defective because it is incorrectly and inappropriately addressed to a "Solicitor" in the Office of Solicitor General, rather than the Solicitor General. The language of s 5(1) (a) and (b) of the Claims By and Against the State Act is clear: that the notice of intention to make a claim must be given either to the Attorney General or the Solicitor General. Particularly given the situation now that the requirements of the s 5 notice are "condition precedents," lack of strict compliance will render the purported notice defective.

The Requirement of Personal Service 

Section 5(3) of the Act which requires personal service of the notice of intention to make a claim, to be made, either to the Attorney General or the Solicitor General. Where personal service is not practical, the claimant is required to leave the document containing the s.5 notice with the respective law officer's secretaries, during official public service duty hours. This must be one of the most misunderstood and misapplied provision, despite its unambiguousness and clarity. It is fair to say that this requirement of personal service of the s 5 notice was in the initial stages, overlooked by many lawyers and claimants for a while, instead, settling for the transmission of the s 5 notice to the relevant law officer via a business letter sent through the post or by facsimile. In the recent past, the courts have now been strict in enforcing this aspect of the s 5 "condition precedent". Davani J's decision in John Bokin and others v Sergeant Paul Dana, Police Commissioner and The State (supra) is a case on point. In this case, and as briefly mentioned earlier, the plaintiff through their lawyer, purported to give the s 5 notice of intention to make their claim through the post, y a letter addressed not to the Attorney General or the Solicitor General, but to a solicitor, in the Solicitor General's Office. 

The letter was dated 15 September 1997 and going by this date, it was within the six month's statutory period. The letter however took five months to arrive in the Solicitor General's Office, and was therefore received late and outside of the six month's statutory period. The State argued that the plaintiff has failed to give the required s 5 mandatory notice. Davani J found that the plaintiffs failed to effect personal service of their notice of intention as is required by s 5(3) of the Claims By and Against the State Act and that since the requirement for personal service is mandatory, lack of compliance on the part of the plaintiff was fatal to the action. Her Honour then proceeded to dismiss the entire proceedings, emphasizing (at p.7) that: "… the plaintiff has not complied with the initial mandatory step, being the failure to properly serve the notice of claim. I grant the State's application in its entirety", and made further orders for the plaintiff to pay the State's costs.

Conclusion.

It is important for lawyers and their clients to realize the purpose and intention of Section 5 of the Claims By and Against the State Act as stated by Akuram J in Kamapu Minato v Philip Kumo and The State (supra) and Kandakasi J in Daniel Hewali v The PNG Defence Force and The State (supra). These are that – 

•	The State being a very large and complex institution, service of notice to sue must be early in order to give the State the opportunity to ascertain the veracity or genuineness or otherwise of the claim;

•	Compliance with the notice gives the State an early opportunity to investigate and assess a possible claim and facilitate early settlement in an appropriate case where the State after considering the evidentiary and legal issues, decides that it has no defence to the claim; and

•	By so doing, protect the interest of the State.

It is for these reasons that Kandakasi J in the Daniel Hewali case insisted that a notice of intention to make a claim against the State must include sufficient details such as dates, time, names of parties, names of people and places, and copies of correspondence relating to the claim if there are any.

The mandatory language of Section 5 of the Claims By and Against the State Act must also be taken note of. It commences in Section 5 (1) by declaring that no action to enforce any claim against the State shall lie unless a notice of intention to make a claim has been made in writing and served on the State either on the Attorney General or on the Solicitor General. It is for this reason that the Supreme Court has in the Paul Tohian case declared that the service of a notice of intention to make a claim against the State is a "condition precedent" to making any claim against the State.

Finally, it is important to take note of the specific limbs of Section 5 of the Claims By and Against The State Act as discussed above. Those specific limbs are in themselves condition precedents because failure to comply with one will be fatal as the case law discussed above demonstrates.