N2661

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

OS NO. 457 OF 2004

BETWEEN:

FREDERICK MARTINS PUNANGI
-Applicant-

AND:

HON. SINAI BROWN – MINISTER FOR PUBLIC SERVICE
-First Respondent-

AND:

THE RIGHT HON. SIR MICHAEL THOMAS SOMARE –
PRIME MINISTER AND IN HIS CAPACITY AS CHAIRMAN
OF THE NATIONAL EXECUTIVE COUNCIL
-Second Respondent-

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Third Respondent-

WAIGANI : Injia, DCJ
2004 : September 23rd
October 8th

Judicial Review – Application for leave – Notice of claim under s.5 of the Claims By and Against the State Act 1996, is not required in application for judicial review under Order 16 of the National Court Rule – Meaning of "claim" under S.5 of the Act discussed.

Cases cited:
Daniel Hawali v Police Force & The State N2233 (1999).
Jim Kas v Saura & Ors N2010 (2000).
Paul Tohian v Tau Liu SC566 dated 27th August (1998).

Counsel:
Mr Thomas or the Applicant
Mr Gilyan for the Respondent

8th October 2004

INJIA, DCJ: This is an application for leave to apply for judicial review made under O 16 r 3 of the National Court Rules. By Amended Statement filed under O 16 r 3, the Applicant seeks to apply for leave to apply for review of the decision of the National Executive Council ("NEC") made on 17th December 2003 to suspend him as Secretary for the Department of Defence, for disciplinary reasons. The Applicant says the Second Respondent failed to comply with the procedure set out in s.1 & 2 of the Public Service Management (Criteria and Procedure for suspension and Revocation of Appointment of Departmental Heads and Provincial Administrations Regulation 2003 and Clause 27 of the Applicant’s Contract of Employment with the Third Respondent. He also says the Second Respondent failed to comply with Part IV, s.28(1) and s.41(3) of the Public Service Management Act 1995.

The application is contested by the Respondents. Mr Gilyan who appeared on instructions from the Solicitor General for the Respondents contested the application citing lack of notice of claim under s.5 the Claims By and Against the State Act 1996 ("Act") and that the application was pre-mature given that the disciplinary process under relevant statutes had not yet been exhausted.

There is no issue taken of two of the requirements for leave for judicial review. The Applicant has sufficient interest and he has come to the court to seek redress without delay.

The arguable nature of the proposed grounds of review is somewhat in dispute. I have no difficulty in finding that the Applicant has an arguable case and that the application is not pre-mature. The verified facts shows that the Applicant’s previous suspension by the NEC pending investigations into allegations of improper conduct, was lifted by the NEC on 5th December 2003 and he was re-instated to his position. Subsequently, on 17th December 2003, he was suspended again over allegations some of which were similar to previous allegations made which were not pursued. He is seeking to restore the decision of the NEC made on 5th December 2003, quashing the decision of 17th December 2003. I am satisfied that the final nature of the NEC decision made on 5th December 2003 and the close proximity of two NEC decisions raise arguable issues on the propriety of the latter decision and these issues should be tried in a substantive review.

Mr Gilyan’s next submission is an important one and it needs careful consideration. He submits that the Applicant was required by s.5 of the Claims By and Against the State Act 1996, to give notice of his "claim" under O 16 of the National Court Rules, to the Defendants, in particular the Third Defendant. Section 5 requires a person to give notice of his "claim" to the State within six (6) months after the occurrence of the event giving rise to the claim. He submits the notice though given, was given late by letter dated 3rd August 2004. He submits the requirement to give notice of claim is a condition precedent to any claim against the State as stated by the Supreme Court in Paul Tohian v Tau Liu SC 566 (1998). He also refers to a similar decision of Kandaksi J, the National Court, per in Daniel Hawali v Police Force & The State N2233 (1999). Because the State was named as a party to the proceedings, this is conclusive of the fact that a claim is being made against the State for which a notice under s.5 should have been given within time. He submits the application should be dismissed for this reason.

Mr Thomas for the applicant submits the purpose of a s.5 notice under the Act is to provide the State with an opportunity to be informed in advance of the intended claim and to enable it to conduct its own investigation in order to defend the claim. An application for judicial review under O 16 of the National Court Rules is not a "claim" within the meaning of that word in s.5 and therefore, no notice under the Act is required. Under O 16 r 3(3) the State is served with the application for leave through the Secretary for Justice and if it wishes to be heard under s.8, it may appear in Court. He relied on Justice Sakora’s decision in Jim Kas v Saura & Ors N2010 (2000).

The issue is whether an application for judicial review in the nature of prerogative writs under O 16 of the National Court Rules is "a claim" within the meaning of s.5 of the Act. It is necessary to construe the meaning of a "claim" under this section. For purpose of construction, it is necessary to refer to Sections 1, 2, and 8 of the Act. Section 2 is particularly significant but this section was not referred to by both counsels. I set out ss.1,2,5 and 8 in full:

"1.	Interpretation

In this Act, unless the contrary intention appears, "suit" includes any action or original proceeding between parties in any court of competent jurisdiction.

2.	Suits against the State

(1)	A person making a claim against the State in contract or in tort may bring a suit against the State, in respect of the claim, in any court in which such a suit may be brought as between others persons.
(2)	The provisions of this Act apply to applications for the enforcement against the State of a right or freedom under Section 57 (Enforcement of guaranteed rights and freedoms) of the Constitution and for damages for infringement of a right or freedom under Section 58 (Compensation) of the Constitution.

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 he 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 7.45a.n. and 12 noon, or 1.00p.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).

8.	Leave for judicial review

Notwithstanding anything in any other law, a court hearing an application for leave to apply for judicial review in a matter in which the State is a defendant shall not grant leave unless the State has been afforded an opportunity to be heard."

In ordinary usage, the word claim generally is "a right that somebody believes they have to something especially property, land, etc.": Oxford Advanced Learner’s Dictionary (2000 ed.). The word "claim" has wide meaning in law. It means the "assertion of a right": Osborne’s Concise Law Dictionary (1976 ed). Therefore, assertion of "a right" is the gist of a "claim" in law.

Section 2 of the Act actually defines the ambit of a "claim" against the State for which the State may be sued under the Act. Subsection (1) defines "claims" to mean "claims" "in contract or in tort". These are usually all personal actions in law for damages in tort or contract under principles of common law and equity as modified by statute, such as claims for debt in money, goods or property; or compensatory damages for breach of statutory duty: Awabdy v German [1971] PNGLR 668. Claims against the State in tort is also governed by statute: see the definition of "tort" in s.1 of the Wrongs (Miscellaneous Provisions) Act (Ch. No. 279). The procedure for enforcing a claim in contract or tort is set out in the National Court Rules. The entire National Court Rules except O 16, (Judicial Review) sets out rules of procedure for commencing actions for damages in tort or contract or for breach of statutory duty. This procedure also applies to proceedings commenced against the State.

Subsection (2) then adds applications for enforcement of constitutional rights made under s.57 and claim for damages under s.58 of the Constitution, to the list of "claims" under Subsection (1). The procedure for application for enforcement of Constitutional rights is separate from the procedure for instituting actions in tort or contract. Currently, the procedure under s.57 and s.58 of the Constitution is still in its development stages. Many persons are in fact using the same procedure under the National Court Rules because of the breaches of Constitutional rights sometimes also constitute to torts. 

Reading subsection (1) and (2) together, all claims against the State in contract or tort or an application under s.57 and s. 58 of the Constitution for which a suit may be brought against the State in "any court" of law of competent jurisdiction (s.1), are covered by the Act. Conversely, an application in the nature of a prerogative writ under Order 16 is not included in s.2. Therefore by implication, application for Orders in the nature of prerogative writs are excluded from the definition section in s.2., hence the notice provisions in the Act does not apply to such application. 

Under s.5(1) of the Act "no action to enforce any claim" must be by necessary implication, refer to bringing a suit against the State as defined in s.1, in "any claim" on contract or tort and enforcement of constitutional rights under s.57 and s. 58 of the Constitution, as defined in s.2. A notice of claim must be given for such claim.

Order 16 of the National Court Rules provides a comprehensive and exclusive procedure for judicial review: Michael Gene & Attorney General & Others v Dr. Piorovz Hamidad-Rad SC630 (1999). There is reference in s.8 to an application for leave for judicial review, in which the State is a defendant or respondent. The Act does not provide a procedure for persons to apply for leave for judicial review. By implication, it must refer to an application for leave to apply for judicial review under O 16 of the National Court Rules. Under O 16 r 3(2), an application for leave is made ex parte. Section 8 however grants the State a right to be heard in any such application, where the State is a respondent or defendant. Under O 16 r 3(3), the State is notified of the application for leave by service of the application on the Secretary for Justice. The same purpose intended to be achieved by s.5 and 8 of the Act is achieved by service on the Secretary for Justice under O 16 r 3(2).

In my view, it is clear from the Scheme of the Act as evident in the provisions I have quoted above, that an application for judicial review under Order 16 of the National Court Rules, is not intended to be covered under the Act. This is because the procedure for bringing an application is exclusively set out in O 16 of the National Court Rules, subject only to s.8 in relation to leave applications. The mere fact that the State is named as a party to the proceedings in a judicial review application does not render the provisions of the Act applicable. In any event, an application for leave for judicial review is made strictly ex parte and the decision-making authority, the decision - maker or the State as the nominal defendant should not be included as a party at this stage.

Upon the grant of leave, the decision-making tribunal or authority as an interested party will be served the Notice of Motion under O 16 r 5(2). The State as the nominal defendant may also be served the Notice of Motion. Once again, the notice provision under s.5 of the Act is also not applicable, for purposes of making the substantive application.

This interpretation is consistent with the special nature of application for judicial review. It is settled law that a person who seeks to challenge a decision of a public authority or tribunal by way of an application for orders in the nature of prerogative writs under the judicial review procedure in O 16, has no right to claim the prerogative writs. He has no right to make such claim or seek such relief. He can only do so by leave of the Court: Michael Gene Attorney General v Dr Pirovz Hamidad Raz (supra). Francis Kawage v The Solicitor General N 1875 (1999), Aiten Maniko v Luther Wenge N1870 (1999). Conversely, a person whose rights under a contract or personal rights have been denied or infringed are entitled, as of right, to seek enforcement of their rights in Court. They do not require leave of the Court to institute their actions in Court.

Mr Gilyan submits that the fact that the Applicant is claiming declaratory orders and also damages in the proceedings make the application a "claim" within the meaning of S.5 of the Act. In my view, these orders, are consequential orders upon the grant of primary relief of prerogative writ (certiorari) and the applicant has no right to claim those consequential on their own.

In Paul Tohian v Tau Liu (supra), the Supreme Court held that a notice of claim is a pre-condition to the commencement of an action against the State for defamation which is a tort. The Court was not invited to and did not consider the issue before me. The National Court decision in Hewali v The State is also an action in tort for damages. The interpretation of s.5 of the Act given in those two cases are consistent with the interpretation of s.5 I have given in the present case.

It follows from the foregoing discussions that s.5 of the Claims By and Against the State Act 1996 has no applications to application for judicial review or orders in the nature of prerogative orders under O 16 of the National Court Rules.

For these reasons, I grant the application for leave.
___________________________________________________________
Lawyer for the Plaintiff		:	Warner Shand
Lawyer for the Respondents		:	Solicitor General