N7799

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA No. 239 OF 2017

BETWEEN:
THOMAS KARO
Plaintiff

AND:
COMMISSIONER OF CORRECTIONAL SERVICE
First Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Tamate, J
2018: 06th June & 09th August

HUMAN RIGHTS -  Application for enforcement of human rights pursuant to Section 57 of the Constitution – regarding calculation of correct due date of release (DDR) from prison pursuant to Section 109 of Correctional Service Act.
PRACTICE AND PROCEDURE-  Whether Section 5 Notice pursuant to Claims By and Against the State Act is required in an application to correct a due date of release from prison or similar applications or actions which are not claims founded on contract, tort or for damages in monetary nature – Whether failure to serve Section 5 Notice an abuse of Court process to warrant dismissal of proceedings under Order 12 Rule 40(1)(c) of the National Court Rules.
Plaintiff has filed his Human Rights Application seeking Court’s determination of his correct due date of release pursuant to Sections 37(1) of the Constitution and Section 109 of the Correctional Service Act. He is applying to this Court because he believes the Correctional Service has miscalculated his DDR and inflated it to 19th November, 2020.

Held
1. Section 5 Notice is not required for an application or action seeking the Court’s determination of a correct due date of release from prison as this is not a claim in monetary terms for the purpose of CBASA.
2. Application to dismiss the proceedings by Defendants pursuant to Order 12 Rule 40(1)(c) of the National Court Rules as being an abuse of Court process is refused.	

Cases Cited

Frederick Martins Punangi v Sinai Brown [2004] PGNC 120; N2661
Asiki v Zurenuoc, Provincial Administrator [2005] PGSC27, SC797
Paul Tohian v Tau Liu (1998) SC566
State v Downer Construction (PNG) Ltd [2009] PGSC51; SC979
Ruth Kaurigova v Dr. Russo Perone [2008] PGSC45; SC964
Papua New Guinea Police Force & Independent State of Papua New Guinea (1999) N2233
Mal v Beon Correctional Institution Commander & State [2017] PGNC 87
Awabdy v German [1971] PNGLR 668
Graham Rundall v Motor Vehicles Insurance (PNG) Trust (No. 1) 1988 [PNGLR] 20
Kamapu Minato & another v The Independent State of Papua New Guinea N1768
Stanley Tendi v Motor Vehicles Insurance (PNG) Trust [1996] PNGLR 379

Counsel

Ms J. Kambao, for the Plaintiff
Ms C. Kuson, for the Defendants

09th August, 2018 

1.	TAMATE J:  The Plaintiff is a prisoner serving a prison term of 11 years in hard labour for the crime of “receiving stolen property”, at Bomana Correctional Service in Port Moresby. He was convicted on 20 July 2016 and sentenced on the 01 February 2017.
2.	Plaintiff has filed his Human Rights Application pursuant to Section 57 of the Constitution seeking orders of this Court to correct the due date of release (DDR) from prison so that he is not detained unnecessarily for a longer period as a result of a miscalculation.
3.	From his sentence of 11 years in hard labour, the Court deducted 3 years 3 months 2 days (pre-trial custody). Another 2 years was suspended and he was ordered to serve 5 years, 8 months, 2 weeks and 5 days in hard labour.
Defence Application
4.	The Defendants have filed their notice of motion on 25 May 2018 which is supported by affidavit of one Charity Kuson filed on 25 May 2018 seeking orders to dismiss the proceedings for being an abuse of court process as a result of non-compliance with Section 5 notice pursuant to Claims By and Against the State Act 1996 (CBASA).
5.	They are seeking orders to dismiss the proceedings in its entirety pursuant to Order 12 Rule 40(1)(c) of the National Court Rules. They claim that all actions against the State requires an applicant or claimant to serve on the State Section 5 Notice as a prerequisite as failure to serve such notice is an abuse of the court process and may warrant of dismissal of the matter.
Issues
6.	The following issues to be determined in this application are :
(1)	Whether Section 5 Notice under Claims By and Against Act, 1996 is necessary for such an application for enforcement of Constitutional rights under Section 57 of the Constitution?
(2)	Is the failure to serve Section 5 Notice for such an application an abuse of the Court process and would therefore result in dismissal of this proceedings in its entirety?
Background of Case
7.	Plaintiff is merely seeking the Court’s direction or assistance to consider the correct due date for his release. He is a prisoner currently serving sentence at Bomana Correctional Service Institute and is entitled to know the right date for his release.
Evidence
8.	The Defendants state in their evidence per affidavit of Ms. Kuson that:
(i)	On 22 May 2018, Ms. Kuson conducted a physical search and review of the court file and noted the following:
(a)	Plaintiff/Applicant filed his Human Rights Application (HRA) No. 239 of 2017 proceedings on 15 December 2017.
(b)	Application was served on the State on 07 May 2018.
(c)	On 18 May 2018, Direction order of 7 May 2018 was served on the State.
(ii)	A search conducted by Ms. Kuson on the Electronic Management System (CMS) within the Office of the Solicitor General revealed that there was no Section 5 Notice served on the State.
9.	The Defendants have relied on the cases of the State v Downer Construction (PNG) Ltd [2009] PGSC51; SC979, Asiki v Zurenouc, Provincial Administrator [2005] PGSC27, SC797, Ruth Kaurigova v Dr. Russo Perone [2008] PGSC45; SC964 in support of their application.
10.	They submit that all actions against the State must require Section 5 Notice of Claims By and Against the State as a prerequisite. Failure of such notice been served is an abuse of Court process, thus such actions or claims should be dismissed.
11.	They further submit that the approach taken by Cannings, J in Mal v Beon Correctional Service Institution Commander & State is not correct as the definition of the word “Claim” given by Cannings, J is contrary to the definition given in the Supreme Court Cases stated above.
Plaintiff’s Response
12.	The Plaintiff has submitted that his application is for Correctional Service to properly consider and calculate his correct date of release (DDR) from prison.
13.	This is not a claim against the State in monetary terms that would require him to serve Section 5 Notice. This is an application for enforcement of his right under law to know of his correct date of his release so that he is not detained unnecessarily which would result in breach of his rights under the Constitution.
14.	He relies on the case of Paul Tohian v Tau Liu (1998) SC566 and submits that the Supreme Court cases referred to above do not give a clear distinction on the types of claims or actions that would require Section 5 Notice.
15.	He submits that the definition of the word ‘claims’  in Mal v Beon Correctional Institution Commander & State case is the correct one to follow for this type of application.
Law and Case Laws
16.	In considering these issues it is necessary to consider the appropriate sections in the CBASA and the case law that have discussed the issue of Section 5 Notice regarding claims by and against the State and the intention of Parliament regarding this Act and the types of claims that require such notice.
17.	Relevant sections for consideration are Sections 1, 2, and 5 of CBASA.
Section 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.”
Section 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 other 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.”
Section 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 been shown, allows…”
18.	These provisions have been discussed in National Court and Supreme Court cases which have been referred to above. It appears that the issue of Section 5 Notice has been looked at and discussed from various contexts.
19.	In the case of Punangi v Brown, Minister for Public Service [2004] PGNC 120, N2661 (8 October 2004), Injia, DCJ (as he then was) considered the issue in an application for leave for judicial review of a decision of the National Executive Council made on 17 December 2003 to suspend Applicant as Secretary for the Department of Defence for disciplinary reasons.
20.	Applicant stated that Second Respondent failed to comply with the procedure in Sections 1 and 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 in the Third Respondent (State).
21.	Respondent contested the application citing that there was lack of notice of claim under Section 5 of the Claims By and Against the State Act 1996 and that application was premature in that the disciplinary process under relevant statutes had not been exhausted. Respondent argued that Applicant was required to give Section 5 Notice under Order 16 of the National Court Rules when seeking leave for Judicial Review.
22.	Court held that Section 5 Notice is not required to applications for judicial review or orders in the nature of prerogative writs under Order 16 of the National Court Rules. Section 5 Notice is required for claims brought under contract, tort or breach of Constitutional Rights under Section 57 and 58 of the Constitution for damages. (my emphasis).
23.	DCJ, Injia as he then was held that:
	“In ordinary usage, the word “Claim” generally is a right that somebody believes they have something especially property, land, etc…”: Oxford Advance Learner’s Dictionary (2000 edition)… The word “Claim” has a wide meaning in law. It means the assertion of a right”: Osborne’s Concise Law Dictionary (1976 edition). Therefore, assertion of a right is the gist of a “Claim” in law.
24.	In his discussion His Honour stated that Section 2 of the Claims By and Against State Act defines the ambit of a “Claim” against the State for which the State may be sued under the Act. Subsection (1) defines “claim” to mean “claims” in ‘contract or in tort,’ which are usually all personal actions in law for damages in contract or tort in common law and equity as modified by statute. Such claims include debt in money, goods, or compensatory damages for breach of a statutory duty: Awabdy v German [1971] PNGLR 668. Claims against the State in tort is also governed by Statute by virtue of Section 1 of the Wrongs (Miscellaneous Provisions) Act (Chapter No. 279) while the procedures for enforcement of claims in tort or contract is set out in the National Court Rules.
25.	The entire National Court Rules except Order 16 (Judicial Review) sets out the 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.”
26.	The Supreme Court in the case of Asiki v Zurenouc, Provincial Administrator [2005] PNSC 27; SC797 (28 October, 2005):  in considering the issue of Section 5 Notice CBASA in the proceedings commenced under Order 16 of the National Court Rules for judicial review, followed and accepted the ruling in Punangi v Brown, Minister for Public Service [2004] PGNC 120, N2661 (8 October 2004), Injia, DCJ (as he then was). This was an appeal to the Supreme Court by Applicant challenging the decision of the National Court in refusing him judicial review of the Public Service Commission decision recommending his re-instatement.
27.	The National Court Judge refused judicial review on the grounds that Applicant had failed to give Section 5 Notice prior to commencement of the judicial review proceedings in the National Court.
28.	The Supreme Court in allowing the appeal held that:	
(i)	The notice requirements of CBASA apply only to actions that are founded on contract or tort or breach of Constitutional Rights.

(ii)	Section 5 does not apply to actions seeking in the nature of prerogative writs commenced under Order 16 of the National Court Rules as Order 16 provides a comprehensive and exclusive procedure for judicial review. (The Supreme Court approved the ruling in the case of Frederick Martins Punangi v Sinai Brown [2004] N2661.
29.	In this Supreme Court case the Court also considered few other similar cases dealing with this issue in judicial review cases and concluded that: 
“… Each case must be considered on its merits and subject to the overriding constitutional principle that in interpreting Section 5 the Courts must give paramount consideration to the dispensation of justice.”
30.	In the case of Tohian v Tau Liu (1998) SC566, the Supreme Court held that Section 5 Notice is a pre-condition to commencement of an action against the State for defamation, which is a tort.
31.	In Hewali v The State (1999) N2233, the Court when determining the case involving an action for damages in tort, held that the claim was monetary in nature thus it required the Section 5 Notice pursuant to Claims By and Against the State Act 1996. 
32.	In the Supreme Court case of State v Downer Construction (PNG) Ltd [2009] PGSC 51; SC979, the Court also considered the issue of Section 5 Notice pursuant to Claims By and Against the State Act 1996.
33.	This was a case involving an appeal from the National Court whereby the National Court (Hinchcliffe, J) refused an application by State to prevent an arbitration panel in Brisbane from considering the claim by Applicant for enforcement of their contract for payment for extra cost of K48 million on the road construction along Ramu Highway.
34.	The Court in that case considered the issue “whether the Respondent was required to serve Section 5 Notice on the State when enforcing the Contract through the arbitration process for extra payment for the cost of construction on parts of the Ramu Highway.
35.	In upholding the appeal Court held that:
(1)	Section 5 Notice under CBASA are not required as the arbitration process is not a Court proceedings within the context of Section 2(1) of CBASA.

(2)	Arbitration proceedings are not legal proceedings that are commenced in a Court proceeding. Section 4 of the Arbitration Act, Chapter 46 clarifies or spells out the difference in the proceedings.
36.	This case also discusses the definitions of the terms: “Court”, “Suit”, “Action” and “Claims”. In the above case it was held that the words:
•	“action” as used in Section 5 of the CBASA does not import or include the meaning of arbitration proceedings.
•	“suit” in Section 2 of CBASA imports the same meaning as the word “action” viz, action taken to court.
•	“court” should read in the context of the CBASA, including ss. 1 and 2(1), a court of law in which a claim made by a claimant against the State is or may be enforced.
•	“claim” as used in the context of the CBASA in relation to Section 5 relates to a claim made in a court proceedings. It must be given its restrictive meaning, although it is a word of wide connotation. The word must find its colour and meaning from the context of the whole of the Act.
37.	The Supreme Court when considering the meaning of the words used in the Act, stated that the word must be given its restrictive meaning as per the intention of Parliament when passing the legislation on CBASA. It stated that:
“The intention of the legislature appears equally clear that the word “claim” should not be construed broadly to mean any and every claim made against the State, including claims against the State in arbitration proceedings.”   
38.	Interestingly, the case of Asiki v Zurenuoc which discussed the issue on Section 5 Notice about 5 years earlier was not cited nor discussed in the State v Downer case. 
39.	That case discussed the purpose of the CBASA and the intention of Parliament behind its passing. The Court considered the explanation by the then Minister for Justice, Hon Arnold Marsipal during the debate in Parliament on 20 November, 1996 on the Bill where he stated:
“ Mr Speaker, I take great pleasure in introducing this Bill which will safeguard the interests and the finances of the State.
In recent years, a large number of civil claims and other claims for compensation on infringement of human rights have been made against the State in respect of alleged unlawful actions by public servants. These claims often included compensation claims of police brutality against the people. (my emphasis)
There are set procedures laid down by the law governing and regulating the bringing of such claims to court. Under the present circumstances, it is difficult for the State lawyers to comply with time limits and other court restrictions. The numbers of claims are increasing alarmingly.
At the same time, lawyers for claimants seem determined to try every possible avenues to press their clients’ cases, using every loophole they can find. This frequently results in unwarranted payouts, thereby putting increased unnecessary pressure on the State resources.
In order to overcome the problems being encountered and to ensure that the law deals fairly with both the State and its citizens, various measures will be put in place by this Bill. This include a scheme of prior notice of making a claim against the State. It will be similar to the scheme of notifying the Motor Vehicle Insurance Trust of proposed claims. Service on the State cannot be done by mail. It must be personally served on the Attorney-General or the Solicitor-General or left personally at his office. However, lawyers operating outside Port Moresby can still accomplish personal service through their city agents. ...
The Bill ... will go a long way towards remedying the impossible situation the Government lawyers find themselves in when trying to protect the interests of the State.”
40.	It is very clear that the purpose of the Bill and the subsequent passing of Claims By and Against the State Act of 1996 is for claims that are monetary in nature for actions or suit in court for damages or compensation in contract, tort or for breach of human rights under Sections 57 and 58 of the Constitution.
41.	This speech by the minister also stated that in order to deal fairly with both State and its citizens, various measures will be put in place by this Bill which would include a scheme of prior notice of making a claim against the State similar to the notice requirement to Motor Vehicles Insurance Trust (MVIT) under Section 54(6) of the Motor Vehicles (Third Party Insurance) Act 1974.
42.	Motor Vehicles Insurance Trust deals with insurance claims which are monetary in nature for persons or owners of vehicles involved in motor vehicle accidents resulting in injuries, deaths and for costs and claims for damages to vehicles.
43.	The notice under Section 5 of CBASA is similar to Section 54(6) of the Motor Vehicle (TPI) Act regarding Claim for Damages which reads:
“No action to enforce any claim under this section lies against the successor company unless notice of intention to make a claim is given by the claimant to the successor company within a period of six months after the occurrence out of which the claim arose, or within such further period as –
		(a)  the Commissioner; or
		(b)  the Court before which the action is instituted,
on sufficient cause been shown, allows.”
44.	Many National Court and Supreme Court cases have discussed this issue on similarity of the notice requirements in these two legislations and purpose of such a notice. In the case of Ruth Kaurigova v Dr. Ruso Perone & Ors SC964 the Supreme Court in considering the issue said that the scheme and purpose of the Section 5 Notice is akin to that of Section 54(6) of the Motor Vehicle (TPI) Act. 
45.	The purpose of a Notice under Section 54(6) of MV(TPI) Act was first discussed in the case of Graham Rundall v Motor Vehicles Insurance (PNG) Trust (No. 1) 1988 [PNGLR] 20 at 23 where Bredmeyer, J said:
"The purpose of Section 54(6) is to give the Trust early notice of the claim so that it can make its inquiries. Obviously inquiries as to the driver, the owner and the insurance details of the vehicle become more difficult as time passes. Drivers change addresses and sometimes in Papua New Guinea their names, witnesses disappear, expatriates leave Papua New Guinea and police accident reports and insurance certificates get lost." 
46.	All the cases on point discussed and affirmed the above principle when considering the purpose of the notice and the legislative intent behind the CBASA: Kamapu Minato & another v The Independent State of Papua New Guinea N1768, Akuram, J; Stanley Tendi v Motor Vehicles Insurance (PNG) Trust [1996] PNGLR 379, Daniel Hewali v Papua New Guinea Police Force & Independent State of Papua New Guinea.
Observations
47.	After discussing the issue and purpose of Section 5 Notice under Claims By and Against the State Act and the legislative intent of Parliament in passing this legislation through the various cases referred to above, I make the following observations:
•	That Section 5 Notice is required for court actions or suit against the State on contract or tort in any court (Section 2(1) CBASA):  Paul Tohian v Tau Liu (1998) SC566.
•	Section 5 Notice is not required in actions seeking orders in the nature of prerogative writs commenced under Order 16 of the National Court Rules: Asiki v Zurenouc, Provincial Administrator [2005] PGSC27, SC797; Frederick Punangi v Sinai Brown (2004) N2661.
•	Section 5 Notice is not required in proceedings commenced by arbitration as it is not a court proceedings. It is an action based on terms of the contract: The State v Downer Construction (PNG) Ltd [2009] PGSC 51, SC979.
•	Intention of Parliament was to regulate all claims on contract, tort or for enforcement of human rights under Section 57 and 58 of the Constitution in relation to damages or compensation for breach of such rights. Asiki v Zurenouc, Provincial Administrator (supra) Paul Tohian v Tau Liu (1998) SC566.
•	Section 5 Notice in CBASA and Section 54(6) in MV (TPI) Act 1974, deal with claims for damages or compensation where six (6) months’ notice is given to the State or MVIT respectively of the intention to sue or make a claim which is monetary in nature. 
Is it necessary for Section 5 Notice in court actions or application for enforcement of human rights which are not claims in damages or in monetary nature as per the CBASA and not founded on Contract or tort?   
48.	In determining this question one has to look at some of the rights that require enforcement which are not monetary in nature so as to require Section 5 Notice. State continues to raise the objection or seek dismissal to such applications or actions when Section 5 Notice has not been served by an applicant or Plaintiff. These are applications such as (but not limited to):
•	Application for parole
•	Application for leave of absence (LOA)
•	Application for transfer to prison close to relatives who can visit
•	Application to correct a due date of release (DDR) from prison
•	Application for medical treatment and attention
•	Application for release from unlawful detention
•	Application for early release on medical grounds
•	Applications for protection of the law
49.	These are not court actions for monetary claims against the State but applications for enforcement of human rights. Obviously, such application cannot be caught under Section 5 of the Claims By and Against the State Act as per the purpose and the legislative intent of its passing in Parliament.
50.	In the interest of justice I would apply common sense when dealing with this issue. The Supreme Court cases discussed above did not consider the issue from this context where enforcement of human rights such as those referred to above in paragraph 48 are concerned. These are not claims based on contract, tort or for damages or compensation, where rights of persons have been breached as a result of allegations of Police brutality or similar types of violations by Public servants or agents of the State.
51.	I would agree with the approach taken by Cannings, J in Mal’s case where the court dealt with an application for early release from prison on health grounds. There was an objection by the Respondent on the application for non-compliance with notice under CBASA. The Court in considering the application held that the applicant was not making a claim against the State for the purpose of CBASA therefore it was not necessary to give notice under Section 5 of the Act of her intention to make a claim against the State. The Court defined the term “claim” under Section 5 to mean ‘a monetary claim or a claim for an order such as an injunction that would involve direct cost or prejudice to the State.”
52.	The Constitution gives power to the Court to enforce human rights pursuant to Sections 57 and 58. The exercise of this power in my view cannot be restricted by operation of Section 5 when the court action or application is not a monetary claim for the purpose of the CBASA.  
53.	This provision should not be strictly applied to such actions by the State to get rid of a matter that is genuinely before the Court. Is so doing, I adopt the comments made by the Supreme Court in Asiki v Zurenuoc (supra) where the Court stated:
“We query, however, whether such a strict approach- though it might be a consistent one – is always necessary or desirable. Each case must be considered on its merits and subject to the overriding constitutional principle that in interpreting Section 5 the Courts must give paramount consideration to the dispensation of justice.”
“When a person’s case is dismissed in that way it is the antithesis of justice. It means that the State and its various arms and agencies are allowed to escape accountability for their decisions and actions. It cuts back the power and responsibility of the courts to review administrative acts by the executive arm of government. It allows the State to avoid responsibility on a technicality. It interprets Section 5 in a way that does not seem to have been intended and promotes injustice.”
54.	Before I conclude with my decision on this matter it is my view that the Supreme Court needs to determine the issue of “Whether Section 5 Notice is strictly required for actions or applications in court for enforcement of human rights under Section 57 which are not founded on contract or tort or for damages for breach of human rights.”
Conclusion
55.	In conclusion I would like to answer the questions raised in the beginning of this judgment.
(1)	Whether it is necessary for Section 5 Notice to be served on the State in this and similar applications which are not monetary claims for the purpose of CBASA?
As discussed above, I am of the view that Section 5 Notice is not required in such an application to Court for enforcement of human rights which is not monetary in nature.
(2)	Can this application be dismissed pursuant to Order 12 Rule 40 of the National Court Rules for been an abuse of Court process as a result of non-compliance with Notice under CBASA? 
The application is a genuine application and is only seeking for the Court’s direction in considering the correct date of release (DDR) after remission done by Correctional Service, thus cannot be dismissed for being an abuse of Court process as Section 5 notice is not required.
Orders of the Court
56.	    As a result of the discussions and the decision given above, I make the following orders:
(1)	The Notice of motion by the Defendants to dismiss these proceedings in its entirety pursuant to Order 8 Rule (1)(c) of National Court Rules is refused.
	(2)	This matter shall progress to trial with the following directions:
(a)	That the parties are to file and serve any additional affidavits (if any) upon each other including any notices under Section 35 of the Evidence Act within the next 14 days.
(b)	This matter shall return for Pre-trial and Status Conference on 20th of August, 2018.
(3)	Time for entry of this order is abridged to the date of settlement by the Registrar which shall take place forthwith.
Orders accordingly.
_______________________________________________________________
Public Solicitor:	Lawyers for the Plaintiff
Solicitor General:	Lawyers for the First Respondent