N7976
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 250 OF 2017

BETWEEN
SAKI J IPATA
Plaintiff

AND
UNIVERSITY OF GOROKA
Defendant

Waigani:  Dingake J
2018: 11 March, 22 June, 12 & 19 October
2019: 8 March

CLAIMS AGAINST THE STATE – whether universities in PNG come within the meaning of “State” for the purposes of S5 Notice of the Claims Act – test as to whether an entity is included as “State”- consideration of –whether entity is established by the Constitution  - whether entity is part of three tier structure of government enshrined in the Constitution – whether entity is constituted by elected representatives like the other tiers in political, administrative and financial matters – whether state has some control exercised over it by the National Government in political, administrative and financial matters – none of the conditions exist to justify defendant as state entity – defendant is not state entity – application by defendant is dismissed
Cases Cited:

PNG University of Technology v Plumtrade Ltd (2012) SC1209
Tobbo Yakale v Allan Sako as the Registrar of Papua New Guinea University of Technology, Reservation Pursuant to s15 of the Supreme Court Act (2001) SC672.

Counsel:

Mr. Mokawau Mukwesipu, for the Plaintiff
Mr. Tony Waisi, for the Defendant

2 September, 2019

1.	DINGAKE J:	In this case, the issue that falls for determination is whether the University of Goroka (defendant) is a State entity requiring that a Section 5 Notice of the Claims By and Against the State Act 1996, should be issued prior to any litigation against it.
2.	The relevant background facts within which the above question must be assessed and answered are that the plaintiff successfully sued the defendant for unpaid rentals and damages.
3.	The defendant paid for other invoices presented to it for payment but declined to pay damages sought by the plaintiff.
4.	The defendant having been found liable, a trial for assessment of damages was set down.
5.	On the date set down for assessment of damages the defendant for the first time raised the issue of failure to issue a Section 5 Notice as the defendant was in its view, a State entity, requiring that such notice be given.
6.	The question of whether a University is a State entity, in Papua New Guinea, has been decided in the case of PNG University of Technology v Plumtrade Ltd 2012 SC1209. 
7.	In the above case, the Supreme Court held that notwithstanding limited government involvement in the affairs of PNG University of Technology, the University was not a State entity.
8.	It is not in dispute that whether or not a University is a State Entity would depend, to a large extent, on the governing legislation and other relevant circumstances.
9.	I have carefully perused the scheme of legislation governing the PNG University of Technology and the University of Goroka and found that the governing legislation is similar in material respects and in large part use same words. For instance, Sections 4 and 6 of the PNG University of Technology Act 1986 and the University of Goroka Act 1997, dealing with the legal personality of the Universities, their seal, powers and engagement of Staff are similar or identical.
10.	Learned Counsel for the defendant Mr. Tony Waisi contended that I must depart from the Plumtrade case because it was decided before the Higher Education General Provisions Act of 2014 that subjected the University to more control by government.
11.	In particular learned Counsel for the defendant Mr. Tony Waisi drew my attention to Section 103(a) and Section 152(1) to (3) of the Higher Education Act 2014, as introducing the kind of government control that was not there when the Plumtrade case was decided.
12.	Essentially, Section 103(1) provides that the governing body of a PNG University, in addition to functions and responsibilities prescribed in the enabling legislation, statute, charter or bye-law shall comply with Governance Manual approved for Universities by the Minister, and work within the framework of plans, policies and financial provisions that are consistent with the provisions of the Act and any other relevant and applicable laws.
13.	Section 153 provides, generally and subject to conditions therein, that where the Minister decides to suspend the powers of the existing governing body, the suspension would operate to deprive members of the government body of the suspended powers or functions during the period of suspension.
14.	I do not think that the above provisions have fundamentally altered the general scheme and intent of the basic and foundational legislation governing the Universities, more particularly the PNG University of Technology Act 1997, so as to effectively amend, the ratio, in the case of Plumtrade case.
15.	The test as to whether an entity is included in the term ‘State’ remains the one formulated in SCR No 1 of 1998; Tobbo Yakale v Allan Sako as the Registrar of Papua New Guinea University of Technology, Reservation Pursuant to s15 of the Supreme Court Act (2001) SC672.
16.	The criteria set out in the above case are whether the subject entity:
i)	Is established by the Constitution.
ii)	Is part of three tier structure of government enshrined in the Constitution.
iii)	Is constituted by elected representatives like the other tiers in political, administrative and financial matters.
iv)	Has some control exercised over it by the National Government in political, administrative and financial matters.
v)	Falls within the definition of the governmental body contained in the Constitution and has its judgment debts recoverable from monies allocated in the budgetary process.
17.	Applying the above test, it is clear that the defendant:
i)	Is not established by the Constitution.
ii)	Is not constituted by elected representatives like the other tiers of government.
iii)	Has very limited control exercised over it by the National Government in political, administration and financial matters.
iv)	Does not strictly fall within the definition of the government. 
18.	In considering whether the defendant is a State entity, I have also had regard to the instructive observations of the Supreme Court in Plumtrade case when it remarked that:
i)	As a general preposition universities are treated as being outside the ambit of “the State” or the Crown” for the purposes of litigation. 
ii)	The level of autonomy and the nature of the functions of the relevant government entity are the critical factors in considering whether the entity constitutes the State for purposes of Section 5 of the Claims Act.
iii)	An entity is part of “the State” only where it was subject to government control both in management and conduct of its affairs, where it was financially integrated with government in the sense of being principally funded from consolidated revenue, and where its functions were those of the State rather than an autonomous body.
19.	However while the University may be a government body and while it exhibits some characteristics of an entity which is part of “the State” – for example, it is funded from consolidated revenue its staff are subject to the Salaries and Conditions Monitoring Committee Act 1988, it is subject to the Public Finances (Management) Act with a few exceptions, and its Statutes require Parliamentary approval – there are many other factors indicating that the University functions on a daily basis as an independent body free from government direction or control of any kind. 
20.	In the result, the application that the proceedings issued against the defendant be invalidated for failure to issue Section 5 Notice of the Claims By and Against the State, is liable to be dismissed, as the defendant is not a State entity.
21.	In the result:

21.1	The application that the proceedings issued against the defendant be invalidated for failure to issue Section 5 Notice of the Claims By and Against the State is dismissed with costs.
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Mukwesipu Lawyers:  Lawyers for the Plaintiff
Waisi Lawyers: Lawyers for the Defendant