SC2525

PAPUA NEW GUINEA
[ IN THE SUPREME COURT OF JUSTICE]

SCA NO. 20 OF 2020

BETWEEN:
MATHEW SISIMOLU
First Appellant

AND:
JAMES KAIA, FRED KITAPA and SOSO TOMU
Second Appellants

AND:
LOHILA NAUA as Acting Secretary – Department of Petroleum
First Respondent

AND:
MINERAL RESOURCES DEVELOPMENT COMPANY LIMITED
Second Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

AND:
PHILIP KENDE
Fourth Respondent

Waigani: Yagi J, Geita J & Numapo, J
2023: 26th April
2024: 18th January

PRACTICE AND PROCEDURE – application to dismiss proceeding – power of the Court – National Court Rules, Order 4 Rule 49(8) – requirement to cite concise jurisdiction of the Court – whether s. 5 of the Claims By and Against the State Act 1996 is the correct jurisdiction to grant the relief sought.

STATUTORY INTERPRETATION – Claims By and Against the State Act 1996, s. 5 – meaning of “claim” – general principles of statutory interpretation – Constitution, s. 109(4) – fair and liberal meaning to be given – whether “claim” under s. 5 of the Act means and include all other types of civil claims.

PRINCIPLES OF NATURAL JUSTICE – right to be heard – Constitution, s. 59 – minimum duty to act fairly – whether the appellants were denied the right to be heard before the order for dismissal of proceedings was made.

PRACTICE – Power to dispense with strict compliance – Effect of non-compliance with rules. Relevant considerations – Sincerity of parties – National Court Rules, O, rr7,8,9.

STATUTORY INTERPRETATION – Interpretation of ss 1, 2 of Claims by and Against the State – use of “claim”.

APPEAL – s. 5 Notice Claims By and Against the State Act (Claims Act) – whether notice is required for all claims against the State – notice is only required for those claims involving monetary considerations – s.2 (1) Claims Act specifies types of claims requiring s. 5 notice – application seeking equitable relief (injunctive relief and declaratory orders) do not require notice the Claims Act –

SUPREME COURT – PRACTICE & PROCEDURE – Discretion to deal with issues of non-compliance with the Rules – Requirement to state the concise jurisdictional basis to grant the relief sought – Order 12 Rule 40 NCR – Breaches of Order 4 Rules 40(1) and 49(8) NCR and Rule 8 of the Motion (Amendment) Rules 2005.

This was an appeal against a decision of the National Court dismissing the proceedings instituted by the appellants where they claimed declarations and injunction against the respondents including the State and its entities. The appellants were elected to hold executive offices with a landowner body or organization under a charter agreement called “The Charter of the Gobe Leadership Committee” within a resource project area. Following the election of the appellants the former chairman of the organization disputed the validity or legitimacy of the appellants election. The appellants then issued proceedings claiming declarations and an injunction to assert their rights as duly elected executives of the landowner organization. They did not give notice under s. 5 of the Claims By and Against the State Act 1996 (CBASA) before commencing the proceeding. Upon application made by the State and its entity the National Court dismissed the proceeding by the appellants on the basis that the appellants did not comply with the notice requirement under the CBASA. The appellants being aggrieved appealed against the dismissal order. The 3 main grounds in the appeal were (1) the notice of motion filed by the State and its entity was incompetent as it did not cite the correct jurisdiction of the Court to grant the relief sought; (2) the claims by the appellants being in the nature of declarations and injunction is such that the requirement to give notice under s.5 of the CBASA did not apply and (3) the appellants right to be heard on the substantive claims was denied.

Held:

Per Yagi J and Numapo J:

(1)	The requirement of Order 4 Rule 49(8) of the National Court Rules is that a notice of motion must contain a concise reference to the Court’s jurisdiction to grant the relief sought.
(2)	Section 5 of the Claims By and Against the State Act 1996 is a condition precedent which in effect is a statutory defence. It does not invest in the Court a jurisdiction or power to dismiss a proceeding.
(3)	The notice of motion filed by the State and its entity which cited s. 5 of the Claims By and Against the State Act 1996 as the jurisdictional basis to dismiss the proceeding is not correct and therefore is incompetent and should be struck out or dismissed.
(4)	The requirement to give notice of a claim under s. 5 of the Claims By and Against the State Act 1996 do not apply to declarations and injunctions which are not claims of monetary nature.
(5)	The National Court erred in law in dismissing the proceeding and hence the dismissal order should be quashed and set aside and the proceeding in the National Court be reinstated or restored forthwith.

Per Geita J (dissenting):

(6)	Section 5 of the Claims By and Against the State Act 1996 grants the power to the National Court to dismiss a proceeding for failure to give notice of a claim to the State.
(7)	The National Court did not err in relying on s. 5 of the Claims By and Against the State Act 1996 in dismissing the proceeding.
(8)	The proceedings commenced by the appellants in the National Court is an abuse of process because the appellants have already been elected into office and there is no longer a controversy in pursuing the claims or declarations and injunction.

Per Yagi J and Numapo J (Geita J dissenting):

(9)	Grounds (a), (b), (c) and (d) of appeal are upheld. The appeal be allowed and the order of the National Court is quashed and set aside and the National Court proceeding is reinstated or restored forthwith.

Cases Cited:
Papua New Guinean Cases

Yaluma v The State (2010) N4088
Agmark Pacific Ltd v Cocoa Board of PNG (2012) N4902
Frederick Martins Punangi v Sinai Brown (2004) N2661
Katherine Mal v Commander, Beon Correctional Institution (2017) N2661 Farhad Rahmati v The State (2018) N7468
Thomas Karo v The Commissioner of Correctional Services and The State (2018) N7799
Mision Asiki v Zurenuoc, Provincial Administrator (2005) SC797
Paul Tohian & The State v. Tau Liu (1998) SC566 
Simon Kauba v Alphonse Willie (2021) SC2162
JH Rayner (Mincing Lane) Ltd v Chief Collector of Taxes (1991) N1175
Tumu for Luhalipu Clan v Independent State of Papua New Guinea (2002) N2190
Daniel Hewali v The State (2002) N2233
Paul Tohian, Minister for Police and the State v Tau Liu (1998) SC566
Jim Kas v Justice Mark Sevua & Ors (2000) N2010
State v Downer (PNG) Ltd (2009) SC979
Kuso Maila Anda Limited v United Pacific Corporation Limited (2019) SC1894
Anna Wemay v Kepas Tumdai [1978] PNGLR 173
Polling v Motor Vehicle Insurance (PNG) Trust [1986] PNGLR 228
Mount Hagen Urban Local Level Government v Sek No 15 Ltd (2009) SC1007
State v Nimbituo & Ors (2020) SC1972

Overseas Cases Cited:

Craig, Williamson Pty Ltd v Barrowcliff [1915] VLR 450
Adams P Brown Male Fashion Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170

Counsel:

Mr N. Kopunye with Ms M. Worinu, for the Appellants
Ms B. Kumo, for the Second Respondent
Mr A. Jerewai, for the Fourth Respondent
No appearance by the First & Third Respondents

18th January 2024

1.	YAGI J:	This is an appeal arising from a decision of the Waigani National Court delivered ex tempore on 13 March 2020 whereby the Court dismissed the proceeding instituted by the appellants on the basis of alleged non-compliance with the requirement to give notice of their claim to the State pursuant to s. 5 of the Claims By and Against the State Act 1996 (CBASA).

Background Facts

2.	The relevant background facts in the case are these. The first and second appellants (appellants) are members of various clans within the Gobe Petroleum Project area (GPP area) in the Southern Highlands Province. They claim to be leaders of various clan groups who are subject to a document entitled “The Charter of the Gobe Leadership Committee” executed on 22 November 1997 between several influential leaders from within the clan groups in the GPP area (Charter). One of the objectives of the Charter is for the leaders to negotiate on behalf of people within the GPP area with the Project Developer and the State in terms of the development issues. The Charter, among others, created the membership and provided for election of members of the GPP every two years.

3.	The Charter also created a governing body called “Gobe Leadership Committee” (GLC). The GLC elected the fourth respondent as the Chairperson of the GLC. There were also other leaders elected as pioneer members of GLC under the chairmanship of the fourth respondent.

4.	The appellants claim that the fourth respondent who holds himself as the Chairman of GLC was illegally holding office because there have never been any meetings called and election held to appoint new members of the GLC for several years contrary to the requirements of the Charter.

5.	Between 1997 and 2019, a period of approximately 22 years, among other significant changes, was that several pioneer or original members of the Executive Committee passed away leaving vacancies which required filling. The validity and legitimacy of the office bearers and management and administration of the affairs of the GLC consequently became a serious issue. 

6.	By a notice dated 30 July 2019, signed by six members of the GLC, called for a meeting of the GLC on a date, time and venue specified with a single specific agenda to deal with the composition of the GLC.

7.	During the meeting on 03 August 2019, it was resolved that the office bearers under the Chairmanship of the fourth respondent (Philip Kende) were dissolved and hence vacant, and consequently, among other appointments, the first appellant (Mathew Sisimolu) and the second appellants (James Kaia, Fred Kitapa and Soso Tomu) were elected as Chairman, Deputy Chairman, Secretary and Treasurer of GLC respectively.

8.	The election of the appellants was subsequently disputed by the fourth respondent (Philip Kende).

National Court Proceedings

9.	On 14 August 2019 the appellants filed proceeding OS No. 555 of 2019 in the Waigani National Court where they sought declarations and a restraining order as principal reliefs in the proceeding. The following parties were named as defendants in the proceeding –

(a)	Lohial Nuau – Acting Secretary of the Department of Petroleum, as the First Defendant.

(b)	Minerals Resources Development Company Ltd, as the Second Defendant.

(c)	The Independent State of Papua New Guinea (States), as the Third Defendant.
	
(d)	Philip Kende, as the Fourth Defendant.

10.	The declaratory orders relate to the failure to conduct elections of the GLC, that the first appellant (Mathew Sisimolu) is entitled to hold office as Chairman of the Executive Committee of GLC and the second appellants (James Kaia, Fred Kitapa and Soso Tomu) are entitled to hold office as members of the Executive Committee of GLC.

11.	The restraining order sought was to injunct the respondents and their agents, employees or associates from interfering with the appellants in the performance of their duties and functions as Chairman and members of the Executive Committee of GLC respectively.

12.	The following reliefs were pleaded in the originating summons –

“1.	A declaration that the First, Third and Fourth Defendants have failed to conduct elections of the Gobe Leadership Committee (GLC) in accordance with Clause 4.3 of The Charter of the GLC.

2.	A declaration that the First Plaintiff is entitled to hold himself out as and is the Chairman of Executive Committee of the GLC until such time he is replaced or removed pursuant to provisions of the Charter of the GLC.

3.	A declaration that the Second Plaintiffs (James Kaia, Fred Kitapa and Soso Temu) are entitled to hold themselves out and are the members of the Executive Committee of GLC until such time they are replaced or removed pursuant to the provisions of the GLC Charter.

4.	An order that the Defendants by themselves and or their agents, employees or associates are to be restrained and or prohibited from taking steps to interfere with the duties and functions of the First Plaintiff as the Chairman of the GLC and the Second Plaintiffs as members of the Executive Committee of the GLC.

5.	The Defendants to pay the Plaintiff’s cost of the proceedings at the scale deemed appropriate by this Honourable Court.

6.	Such further or other orders as this Honourable Court deems appropriate.”

13.	On 12 December 2019 the first and third respondents (Acting Secretary for the Department of Petroleum and the State) filed a application by way of a notice of motion seeking a dismissal of the entire proceeding for want of compliance with s. 5 of the Claims By and Against the State Act 1996 (CBASA).

14.	The application was heard and determined on 13 March 2020. The learned primary judge dismissed the proceeding having determined that the appellants failed to comply with the requirement of s. 5 of the CBASA in terms of giving a notice of the claim to the State.

15.	The appellants (the plaintiffs in the Court below) being aggrieved filed an appeal against the decision of the primary judge on 15 April 2020. The orders they seek from this Court are that the appeal be upheld, the decision of the primary judge be set aside and the proceeding OS No 555 of 2019 be reinstated and for cost of this appeal and in the National Court proceeding.

Grounds of Appeal

16.	The grounds of appeal are set out in paragraphs 3(a) to (f) of the notice of appeal. I consider it instructive to reproduce the grounds verbatim –

(a)	The Learned Judge erred in law in failing to dismiss the 1st and 3rd Respondents’ Notice of Motion filed on 12 December 2019 for being incompetent under rule 8 of the Motion Amendment Rules 2002 when:

(i)	the Notice of Motion did not cite and or make reference 		to the Court’s jurisdiction to grant the relief sought 		which was a dismissal of the Proceedings;

(ii)	the appropriate jurisdiction being Order 12 Rule 40 of 		the National Court Rules was not referred to;

(iii)	section 5 of the Claims By and Against the State Act 		1996 (the Claims Act) did not give the Court 			jurisdiction to grant the relief sought, it was grounds 		upon which the relief was sought;

(iv)	the 1st and 3rd Respondents conceded that the Notice of 		Motion did not make reference to the Court’s 			jurisdiction.

(b)	The Learned Judge erred in law in finding that all claims 	against the State and the State entities require notice to be 	given under section 5 of the Claims Act and that the 	Appellants were required to give such notice, when:

(i)	the Parliament in passing the Claims Act intended for 		the notice requirement to apply in claims either based 		in contract or tort of a monetary nature or claims 			where the relief sought is a monetary relief or claims 		for damages;

(ii)	the Supreme Court and National Court have held in a 		number of cases that not all claims require for notice 		to be given as required by section 5 of the Claims Act 		and each claim must be determined on its merits;

(iii)	claims not of a monetary nature do not require notice 		to be given under section 5 of the Claims Act;

(iv)	in the Appellants’ Originating Summons filed on 14 		August 2019 no monetary relief was sought;

(v)	when considered on its merits the Proceedings did not 		require for the Appellants to give notice under section 		5 of the Claims Act.

(c)	The Learned Judge erred in law in finding that as the 	Appellants sought an injunctive relief, they were required to 	give notice under section 5 of the Claims Act, when:

(i)	the Parliament in passing the Claims Act intended for 		the notice requirement to apply in claims founded on 		contract or tort of a monetary nature or claims where 		the relief sought is a monetary relief or claims for 			damages;

(ii)	the Supreme Court and the National Court have held 		in a number of cases that not all claims require for 			notice to be given as required by section 5 of the 			Claims Act and each claim must be determined on its 		merits; 

(iii)	claims not of a monetary nature do not require notice 		to be given under section 5 of the Claims Act;

(iv)	in the Appellants’ Originating Summons filed on 14 		August 2019 no monetary relief was sought;

(v)	the relief of an injunctive is not a monetary relief and 		the giving of and Undertaking by the Appellants was 		sufficient for any prejudice the 1st and 3rd Defendants 		would have suffered (if any).

(vi)	the relief of injunction is an equitable relief and 			founded upon an equitable claim based in the laws of 		equity as adopted and the Claims Act did not apply to 		such a claim.

(d)	The Learned Judge erred in law in dismissing the proceedings based on   orbiter dictum observations of a Judge (per Justice Cannings in Katherine Mal v Commander, Beon Correction Institution (2017) N6710).

(e)	The Learned Judge erred in law in dismissing the Proceedings on the grounds that there was one injunctive relief sought in the Originating Summons and thereby denying the Appellants’ right to be heard on the 3 other declaratory relief sought in the Originating Summons.

(f)	The Learned Judge erred in law dismissing the Proceedings against all the Respondents/Defendants when:

(i)	the Appellants were only obliged (to) give notice under 		section 5 of the Claims Act in respect to their claim 		against the 2nd and 3rd Respondents (the State and a 		State entity);

(ii)	the 2nd Respondent (a State entity) took the position 		that notice was not required;

(iii)	there was no requirement for the Appellants to give 		notice under the Claims Act in relation to their claim 		against the 1st and 4th Respondents,

as a consequence of which, the Appellants were denied the right to be heard on their claim against the 1st, 2nd, and 3rd Respondents.

Issues in the appeal

17.	Notwithstanding the detailed formulation of the grounds in the appeal, it is my considered opinion the grounds can be compartmentalized into the following three broad issues for determination in this appeal -

(a)	whether the learned primary judge fell into error in not dismissing the application (notice of motion) filed by the first and third respondents in the Court below for failing to cite the Court’s jurisdiction to grant the reliefs sought in the application (ground (a)); and

(b)	whether the learned primary judge fell into error in holding that the claims made by the appellants in the Court below are subject to the requirement of s. 5 of the CBASA in terms of giving notice of the claim within 6 months after the claim arose (grounds (b), (c) and (d)). 

(c)	whether the appellants were denied the right to be heard on their substantive claims when the learned primary judge dismissed the entire proceeding (grounds (e) and (f)). 

Submission by the Appellants

18.	In so far as it relates to the first issue it was submitted that the notice of motion relied on by the first and third respondents in the Court below was incompetent because it did not comply with the requirement of Order 4 Rule 49(8) of the Motions (Amendment) Rules 2005 of the National Court Rules 1984 (NCR) which provides that a notice of motion seeking a relief must state the concise jurisdictional basis for the Court to grant the relief being sought.

19.	That being the case it was submitted the learned primary judge should have found that the notice of motion was incompetent and therefore dismiss the application without hearing it. The appellants cited and relied on Yaluma v The State (2010) N4088 and Agmark Pacific Ltd v Cocoa Board of PNG (2012) N4902 in support of their submissions.	

20.	As regards the second issue it was submitted that although s. 5 of the CBASA require that a notice of claim in contract, in tort or an application for the enforcement of a right or freedom under ss. 57 and 58 of the Constitution must be given to the State: Frederick Martins Punangi v Sinai Brown (2004) N2661; not all claims are subject to that requirement. 

21.	It is argued the exception to the general rule apply to actions, suits or claims that are not monetary claims in damages or compensation. The appellants rely on Katherine Mal v Commander, Beon Correctional Institution (2017) N2661 and Farhad Rahmati v The State (2018) N7468.

22.	In this case counsel argued the claims by the appellants were for declaratory reliefs and a injunctive relief, none of which are monetary in nature, and therefore the notice requirement under s. 5 of the CBASA does not apply.

Submission by the Second Respondent

23.	The second respondent supports the submissions made by the appellants. 

24.	As to the first issue it submits the learned primary judge erred in law in upholding the application when the notice of motion failed to cite the correct jurisdiction of the Court.

25.	With regards the second issue it is submitted the Supreme Court in Mision Asiki v Zurenuoc, Provincial Administrator (2005) SC797 discussed the genesis of the CBASA including the Parliamentary Hansard, and in so doing, held that the notice requirement under s. 5 of the CBASA does not apply to actions seeking prerogative writs commenced under Order 16 of the NCR. Reliance was also placed on Karo v Commissioner of Correctional Service (2018) N7799 and Katherine Mal (supra) where it was held in these two cases that s. 5 notice requirement in the CBASA do not apply to claims not involving damages or compensation or any other similar remedy.

Submission by the Fourth Respondent

26.	In addressing the first issue, Mr Jerewai, counsel for the fourth respondent argued that the notice of motion is competent because, firstly, s. 5 of the CBASA was cited in the notice of motion. Secondly, counsel submitted the National Court has inherent jurisdiction under s. 5 of the CBASA and this proposition is supported by Order 1 subrules 1 and 6 of the NCR having regard to the definition of “legislation” and the purpose and effect of the NCR. Counsel argued subrule (6) of Order 1 is unambiguous in that the NCR are not an end to themselves but a means to an end. Therefore, the learned primary judge did not err in holding that s. 5 of the CBASA was the correct jurisdictional basis cited in the notice of motion, hence, this ground of appeal is unmeritorious and must be dismissed.

27.	As to the second issue, counsel submits s. 5 of the CBASA is clear in its language or terms and there are no exceptions. It applies to all actions. Subsection (1) of the provision is not made subject to any other provisions. It is also submitted that the definition of “suit” in s. 1 includes “any action or original proceeding”. The meaning of a “claim” was also judicially considered in Frederick M Punangi v Hon Sinai Brwon & Ors (2004) N2661. Furthermore, counsel submits to restrict the definition and meaning of “claim” only to monetary claim is wrong and inconsistent with the intention of the legislation. 

28.	With regards to the third issue, no specific submission was made by Mr Jerewai on the issue. 

Considerations and conclusions

29.	I now turn to consider the issues in the appeal.

Issue 1 – competency of the notice of motion by the first and third respondents

30.	The reliefs sought in the notice of motion filed by the first and third respondents is stated in these terms –

“1.	The entire proceedings be dismissed for want of Section 5 of the Claims By and Against the State Act, 1996.

2.	Cost be in the cause.

3.	Any further order this Honourable Court deems fit.”

31.	At the hearing in the Court below the appellants objected to the competency of the notice of motion on the basis that it did not comply with Order 4 Rule 49(8) of the Motions (Amendment) Rules 2005.

32.	The learned primary judge heard the arguments and overruled the objection on the basis that s. 5 of CBASA is a statutory requirement which overrides the requirement of the NCR. The brief reasons for the ruling given by learned primary judge can be found at page 97, lines 5 – 10 of the transcript of the proceeding in the Appeal Book (AB) as follows - 

“HER HONOUR:	All right, thank you counsel for your assistance this afternoon. This court upon hearing counsel is of the view that the citation of section 5 or lack of section 5 notice is an appropriate jurisdictional basis for coming to court and that you can only go back and see an application for extension of time under 9 of the Claims By and Against State Act, counsel. That is the jurisdictional basis. It is the statutory requirement and the Act supersedes or overrides but it has more basis than the rules, would it not, if you have made an application pursuant to a provision of this constitution the court would still hear you or otherwise you seek an alternative but for want of section 5 notice is still an appropriate jurisdictional basis as far as this court understands from what the first and third defendants are seeking the reliefs, that they are seeking. And the court can also raise the same issue in its own volition. All right, that matter being addressed Mr Kopunye.”

33.	The NCR govern and regulate the practice and procedure in terms of litigation of civil disputes in the National Court. The NCR, Order 1 Rule 2 expressly stipulate in mandatory terms that the NCR apply to all proceedings commenced or instituted in the National Court. In so far as it relates to motions Division 5 of Order 4 applies. Division 5 comprises of Rules 37 – 49. 

34.	A party who desires to apply for an interlocutory order or relief in the proceeding is required to do so by filing and serving a notice of motion: see Order 4 Rule 37. Prior to 2005, there was no requirement for a party to cite the jurisdictional basis for seeking a relief. However, as the practice and the law evolved, the need for changes in the practice became obvious and necessary, hence appropriate amendments was introduced in 2005. 

35.	In so far as the practice and procedure pertaining to motions is concerned, Rule 49 was amended and described as – “Rule 49. – Motions (Amendment) Rules 2005”. The amendment includes the form with an example provided in subrule (8) in the following terms – 

8. Form of Motions.
All Motions must contain a concise reference to the Court’s jurisdiction to grant the orders being sought. Motions not containing such reference will not be accepted for filing. 
If accepted by the Registry staff without such reference, and it goes before the motions judge, the Court may strike out the motion for being incompetent and for lack of form.

The motion must state the following;

"…move the Court for Order pursuant to (e.g. section 5 of the Claims By and Against the State Act…) …".
[ Underlining and emphasis added ]

36.	It is instructive to note the expressed language of Subrule (8) of Rule 49. The motion must cite concisely the power or jurisdiction of the Court “to grant the order being sought”.

37.	In this case the notice of motion cited s. 5 of the CBASA as the jurisdictional basis for the Court to dismiss the proceeding. Section 5 of the CBASA is in these terms -

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 1953.

38.	It is clear, in my humble opinion, that s. 5 of the CBASA does not grant to the Court a power to dismiss the proceeding. Section 5 is a condition precedent to a right to make a claim against the State: Paul Tohian & The State v. Tau Liu (1998) SC566; Mision Aseki (supra) and Simon Kauba v Alphonse Willie (2021) SC2162. This provision is otherwise a statutory defence available to the State and its bodies, entities, and instrumentalities against a claim in contract or tort or an action based on ss. 57 and 58 of the Constitution.

39.	In this regard I accept the submission of the appellants that the proper jurisdictional basis for the Court to exercise its power to dismiss the proceeding is Order 12 Rule 40 of the NCR. Rule 40(1) expressly grants to the Court the power to dismiss a proceeding where no reasonable cause of action is pleaded, or where the proceeding is frivolous or vexatious or where it tantamount to an abuse of process. In this case the first and the fourth respondents alleged that no notice of the claim under s. 5 of the CBASA was given and therefore there is no valid claim in law thus the proceeding is incompetent and a nullity. This is a ground or the legal basis for seeking the relief in terms of a dismissal of proceeding. It does not confer on the Court the power to dismiss the proceeding.

40.	The submission by counsel for the fourth respondent pertaining to Order 1 Rule 6 of the NCR is unsupported. I have perused these rules and find nothing that purports to fortify the arguments as advanced. Order 1 Rule 6 is an interpretation provision of the NCR.
 
41.	I conclude and indeed, it is my considered opinion, that the learned primary Judge erred in holding that s. 5 of the CBASA is the proper or correct jurisdiction granting the power to dismiss the proceeding. This issue must be decided in favour of the appellants. I would therefore uphold ground 3(a) of the appeal.

Issue 2 – whether s. 5 notice applies to claims in the nature of declaratory and injunctive reliefs

42.	The exercise which the Court is required to perform in dealing with this particular issue is one of construction and interpretation of statutory provisions. In this regard it necessary at this juncture to bear in mind the general principles pertaining to statutory interpretation.

43.	Under s. 109(4) of the Constitution it is provided that:

“(4)	Each law made by the Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit, …………..”

44.	In JH Rayner (Mincing Lane) Ltd v Chief Collector of Taxes (1991) N1175 the Court stated that one of the key rules of statutory interpretation is to ascertain the purpose and intention of the legislation and then apply the plain and ordinary meaning. The following passage in that case is relevant:

“… that words be given their normal and ordinary sense and that the meaning of statutes and their provisions are to be determined from actual wording of the legislature. For all that this maybe hedged around by decisions which permit Courts to endeavour to ascertain the intention of Parliament in cases of anomalous or irrational results, these decisions do not in any way derogate from the principal rule. Departure from the clear and unambiguous wording may only be resorted to in plain and obvious cases where without correction the objectives of the (A)ct itself would be defeated.”

45.	In Tumu for Luhalipu Clan v Independent State of Papua New Guinea (2002) N2190 the Court discussed rules of interpretation and emphasized that “….. Acts of Parliament must be given their fair and liberal meaning as well. It is also clear law that, statutes must be interpreted in such a way so as to give effect to the purpose of the legislation under consideration.”

46.	The starting point in determining the issue, in my respectful view, must necessarily begin with a consideration of the preamble and ss. 1, 2 and 5 of the CBASA. For convenience I reproduce these provisions -

“Being an Act to provide for claims by and against the State, and to repeal the Claims By and Against the State (Chapter 30), and for related purposes.

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 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.

3. SUIT AGAINST THE HEAD OF STATE.

4. SUITS BY THE STATE.

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 1953.”

47.	The preamble to the Act (CBASA) says, among others, that it is “….. an Act to provide for claims that are made by and against the State.” It means that the legislative intention of Parliament is to regulate and control certain types of claims that are made against the State. The underlying reason and purpose for the enactment of the Act can be discerned from the political statement made by the then Minister for Justice Hon. Arnold Marsipal, MP when presenting the Bill to Parliament for enactment. The relevant excerpt of the statement by the Minister has been quoted in Mision Asiki (supra) and adopted in paragraph 17 of the judgment in Farhad Rahmati v The Independent State of Papua New Guinea (2018) N7468. There can be no doubt, in my view, that the primary objective and intention behind the legislation is to protect the State against claims (many of which are spurious) resulting in unnecessary, unwarranted, and unlawful losses of public or State funds. The circumstance prevailing at the material time seems to be that the body or entity responsible (Office of the Solicitor General) in defending the State against such claims was inadequately resourced in terms of funding and legal professional manpower. The number of lawyers in the Office of Solicitor General was far too low to effectively and efficiently deal with the tsunami of claims resulting in default judgments being entered against the State given the limited timelines prescribed by the rules of court. Consequently, s. 9 of the CBASA was introduced to give the State more time to prepare its case and file a defence to the claim.

48.	The common types of claims appear to be for breach of contract, allegations founded on law of tort in negligence and violations of human rights particularly for alleged police brutality and other wrongful actions. These kinds of claims had resulted in the State making exorbitant payments to settle claims including court orders. Hence, the purpose of s. 2 of the Act is to clearly limit the ambit of the control specifically to claims based on contract, tort, and breach of human rights under the Constitution.

49.	Conversely, and in the same vein, it is significant to note that there is no corresponding requirement in the CBASA for the State to give notice of a claim including a claim in contract, tort, and human rights action under the Constitution, ss 57 and 58 against another party even though this is envisaged in the preamble of the Act.

50.	Section 5 has received judicial consideration in the past. One of the first reported cases which discussed this provision is Daniel Hewali v The State (2002) N2233. In that case, in the course of dealing with application to enter judgment by default in a claim against the State, an issue arose as to whether the proceeding is maintainable where there is lack of s. 5 notice under the CBASA, the National Court heard arguments, and in effect, held among others that the requirement to give notice of a claim to the State is a condition precedent that must be complied with.

51.	The Supreme Court affirmed that principle in Paul Tohian, Minister for Police and the State v Tau Liu (1998) SC566. In that case the respondent instituted in the National Court an action for defamation claiming damages against the appellants. The appellants applied to strike out the proceeding for failure to comply with s. 5 notice requirement under the CBASA. The National Court dismissed the application on the basis that the originating process (writ of summons) was filed and served within 6 months of the cause of action, hence, constitute sufficient notice for the purpose of s. 5 of the CBASA and therefore the requirement to give notice was not necessary. On appeal by the appellants the Supreme Court formed a firm opinion that the National Court erred in law in holding that s. 5 notice requirement did not apply in the circumstances of the case. The Supreme Court went further and held that the requirement of s. 5 is a condition precedent to commencing a claim against the State that must be complied with.

52.	In Frederick Martins Punangi (supra), the learned Deputy Chief Justice Injia (as he then was) was dealing with a leave application for judicial review under Order 16 of the NCR. It involved a review of a decision of the National Executive Council (NEC) to suspend the plaintiff/applicant as a Departmental Secretary. The issue before the Court was whether the applicant had an arguable case for leave to be granted. In the course of deliberating on the issue the question of whether s. 5 notice under the CBASA was raised and argued. The respondents relied on the Supreme Court decision in Paul Tohian (supra) and Daniel Hewali (supra) and argued that s. 5 of the CBASA is applicable. The applicant, on the other hand, relied on Jim Kas v Justice Mark Sevua & Ors (2000) N2010 and argued the opposite. It was argued such notice is not required in a judicial review proceeding under Order 16 of the NCR. The Court in Frederick Martins Punangi (supra) considered ss. 1, 2 and 8 of the CBASA and held in favour of the argument by the applicant, in that, s. 5 notice requirement does not apply in judicial review proceedings where prerogative writs are sought. The Court concluded –

“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.”

53.	In Farhad Rahmati (supra), the plaintiff was a asylum seeker held at a Processing Centre. He brought a human right enforcement proceeding against the State seeking to quash an administrative decision refusing to grant him asylum status. The defendant (State) applied to dismiss the proceeding for being an abuse of process on the ground that the plaintiff failed to give a s. 5 notice under the CBASA. The plaintiff opposed the application relying on Mision Aseki (supra) and argued that his claim in the proceeding is not a claim for damages or compensation and therefore the s. 5 requirement is not necessary. The Court upheld the submissions of the plaintiff citing Thomas Karo v The Commissioner of Correctional Services and The State (2018) N7799; Mision Aseki (supra) and State v Downer (PNG) Ltd (2009) SC979. The Court stated -

“I am of the view that Section 5 Notice is not required for actions that are not monetary claims in damages or compensation. I agree with Cannings J in his definition of “claim” in the case of Katherine Mal v Beon Correctional Service Commander (2017) (N6710); PGNC 87 (8 May 2017) where he stated 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.”

 54.	The Court reasoned that the case before it is “not an action or claim in monetary terms but a court action seeking orders to quash a decision of the defendant (State) refusing to grant refugee status …….. by virtue of Section 41 of the Constitution claiming that such refusal was harsh and oppressive ……”

55.	In Ruth Kaurigova v Dr Russo Perone & 2 Others (2008) SC964 the appellant instituted a claim for damages alleging medical negligence by the medical officers employed by the State. The primary judge dismissed the proceedings on the basis of alleged failure to give notice of claim to the State as required by s. 5 of the CBASA and alleged failure to diligently prosecute the claim. The appellant appealed against the dismissal order. The appellate court (Supreme Court) upheld the appeal and reversed the findings of the primary judge, effectively finding that s. 5 notice was duly served and that the proceeding was duly prosecuted by the appellant. In the course of determining the issues in the appeal, the Court discussed the meaning of “claim” in s. 5 of the Act in the context of service of the notice of claim on the State. The Court did not discuss whether the “claim” should only be for contract, tort or enforcement of rights under the Constitution. However, what is of relevance and significance is that the Court re-affirmed the position as to the purpose of s. 5, that is to give 6 months prior written notice warning of intention to initiate a suit or court proceeding in respect to the claim.

56.	In State v Downer Construction (PNG) Ltd (2009) SC979 the appellant engaged the respondent under a written contract to upgrade and seal a major road network or highway. The contract provides, among others, that dispute under the contract be resolved through arbitration. A dispute arose between the parties as to the amount of claim payable by the State which caused the State to commence arbitration proceedings. The State maintained that the amount claimed by the respondent was illegal pursuant to the Public Finance Management Act and was time barred. After failing to secure declarations to that effect in the National Court, the State filed another National Court proceeding seeking declaration that the arbitration proceedings initiated by the respondent was unlawful because the respondent failed to give notice of its claim to the State under s. 5 of the CBASA. The National Court refused the declarations and the injunctive orders sought by the State. The State appealed against the refusal order.

57.	The central issue in the appeal was whether notice in s. 5 of the CBASA relates only to court proceedings and not to arbitration proceedings. In addressing the Court on that issue, the parties argued whether the word “claim” in s. 5 of the Act includes arbitration proceedings. Mr Egan of counsel for the appellant contended that the word “claim” be given inclusive meaning, in that, all claims including those arising in arbitration proceedings made against the State. The respondents through counsel Mr Griffin QC, on the other hand, argued that the word “claim” should be given restricted meaning, that it relates only to court proceedings. The Court, by majority, held that the word "action" in s. 5 of the Act does not include claims made in arbitration proceedings. In reaching that conclusion, Gavara-Nanu J at [29] adopted the following useful statement of principle by Hodges J in Craig, Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 -

“I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give same meaning to the same words wherever these words occur in that document, and that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.”

58.	His Honour Gavara-Nanu J also adopted the purposive approach in interpreting s. 5 as discussed in Ruth Kaurigova (supra). In that same case (Downer Construction (PNG) Ltd), Lay J stated at [163] –

“It is a presumption of general statutory construction that where Parliament has used a word in different sections of a statute it intends to convey the same meaning with that word; unless the context requires a different interpretation. This method of interpretation has been applied to the Constitution: Reference by Western Highlands Provincial Government (1995) SC486.  It is not a rule which compels the same meaning to be adopted in respect of every instance of the use of a word. Lord McDermott in the House of Lords in Madras Electric Supply Corporation Ltd v Boarland [1955] AC 667 at 685 made the following comments:

“The presumption that the same word is used in the same sense throughout the same enactment acknowledges the virtues of an orderly and consistent use of language, but it must yield to the requirements of the context, and it is perhaps at its weakest when the word in question is of a kind that readily draws its precise import, its range of meaning from its immediate setting or the nature of the subject with regard to which it is employed.””

59.	It is apparent that all these cases have defined and gave meaning to s. 5 of CBASA. In so doing, the Courts have applied the purposive approach in interpretation of the Act and consistently recognized the clear legislative intention of the Parliament. The plain and ordinary meaning of “claim” in s. 5 must be the same as the language or term in s. 2 of the same Act.

60.	Having regard to the intention and purpose of the legislation, I must concur with the interpretation given by the learned Deputy Chief Justice Injia (as he then was) in Frederick Martens Punangi (supra) that “any claim” in s. 5 of the CBASA must have the same meaning and be consistent with s. 2 of the Act. To give it an all-inclusive meaning as submitted by counsel for the fourth respondent would be inconsistent with and defeat the tenor and discolour the principle behind s. 2 of the Act. Clearly, the Supreme Court in Downer Construction (PNG) Ltd (supra) has ruled out all-inclusive meaning in s. 5 of the Act. This interpretation has also received consistent support in all the reported cases including Katherin Mal (supra); Farhad Rahmati (supra) and Mision Aseki (supra). The fourth respondent has not provided any case authority to the contrary that supports his contention.

61.	In my respectful opinion s. 5 of the CBASA is intended to apply only to claims for damages or monetary losses against the State, its bodies, instrumentalities, and entities which are based specifically in contract, tort, and enforcement of guaranteed rights and freedoms under ss. 57 and 58 of the Constitution. 

62.	I uphold grounds 3(b), (c) and (d) of the appeal and conclude that s. 5 notice requirement under the CBASA does not apply to claims in declaration and injunctive reliefs which do not involve monetary loss or damages as in the present case.

63.	In reaching this conclusion I am cognizant of the appellant’s right to subsequently amend the claims or reliefs in the proceeding before trial which may include monetary benefits or reliefs. In my view, any amendment that tantamount to defeating or circumventing the requirement of s. 5 of the CBASA should not be allowed or permitted. Where such amendment is necessary the appropriate course, in my view, would be to withdraw or discontinue the proceeding entirely and start afresh.

Issue 3 – whether the appellants were denied the right to be heard on their substantive claims

64.	In my opinion the grounds of appeal under this issue are misconceived by the appellants. 

65.	It is trite that a denial of a right to be heard stems directly from s. 59 of the Constitution which espouses the natural justice principle. This constitutional principle directs that a decision maker in an administrative or judicial proceeding has the duty to act fairly. One of the salient features of the rules of natural justice that has long been recognized and enforced by the Courts is the right of a party to be heard before a decision is made: Kuso Maila Anda Limited v United Pacific Corporation Limited (2019) SC1894 and cases cited and discussed therein.

66.	In this case the decision of the primary judge to dismiss the entire proceeding was made after a hearing on the notice of motion filed by the first and third respondents. The relief or order for the dismissal of the proceeding was a logical and legal consequence of that motion. The primary judge did not hear the substantive claim by the appellants nor did the dismissal order emanate following a hearing of the substantive claim. Therefore, the appellants cannot rightly claim that their right to be heard on the substantive claim was denied. The appellants were in fact heard on the merits of the notice of motion resulting in the order being made.

67.	I would dismiss these grounds and hence the issue for being entirely without any substance and merit.

Conclusion

68.	Having considered the grounds and issues in this appeal I have reached the conclusion that grounds (a) – (d) have substantial merit. I therefore consider that these grounds warrant the appeal to be upheld and hence appropriate orders in accordance with s. 16 of the Supreme Court Act should follow forthwith. 

Orders

69.	In the circumstances I make the following orders:

	1.	The appeal be upheld.

2.	The judgment and orders of the Waigani National Court made on 13 March 2020 in proceedings OS No. 555 of 2019 dismissing the proceeding are quashed and set aside forthwith.

3.	The notice of motion filed by the first and third respondents (first and third defendants in the National Court) in proceedings OS No. 555 of 2019 on 12 December 2019 is forthwith dismissed on grounds of incompetency pursuant to National Court Rules, Order 4 Rule 49(8) of the Motions (Amendment) Rules 2005.

4.	The National Court proceedings OS No. 555 of 2019 is forthwith restored and reinstated and shall be listed before another Judge for hearing of the substantive claims.

5.	The fourth respondent shall pay the appellants’ and the second respondent’s cost of this appeal on party-party basis to be taxed, if not agreed.

6.	The first and third respondents shall pay the appellants’ and second respondent’s cost in the National Court proceedings OS No. 555 of 2019 in respect to the notice of motion filed by them on 12 December 2019 on party-party basis to be taxed, if not agreed. 

70.	GEITA J (dissenting): The Appellants claims a declaration that the First, Third and Fourth Defendants have failed to conduct elections of the Gobe Leadership Committee (GLC) in accordance with Clause 4.3 of The Charter of the GLC.

71.	A declaration that the First Plaintiff is entitled to hold himself out as and is the Chairman of Executive Committee of the GLC until such time he is replaced or removed pursuant to provisions of the Charter of the GLC.

72.	A declaration that the Second Plaintiffs (James Kaia, Fred Kitapa and Soso Tomu) are entitled to hold themselves out as and are the members of the  Executive Committee of the GLC until such time they are replaced or removed pursuant to provisions of the Charter of the GLC.

73.	An order that the Defendants by themselves and or their agents, employees or associates are to be restrained and or prohibited from taking steps to interfere with the duties and functions of the First Plaintiff as the Chairman of the GLC and the Second Plaintiffs as members of the Executive Committee of the GLC. 

74.	The Defendants to pay the Plaintiffs cost of the proceedings at a scale deemed appropriate by this Honourable Court.

75.	Such further other orders as this Honourable Court deems appropriate.

Grounds of appeal.

76.	The Appellants grounds may be summarised as follows:
(a)	The Learned Judge erred in law in failing to dismiss the 1st and 3rd Respondent’s Notice of Motion filed on 12 December 2019 for being incompetent under rule 8 of the Motion Amendment Rule when:

i)	The Notice of Motion did not cite and or make reference to the Court’s jurisdiction to grant relief sought which was a dismissal of the Proceedings; 
ii)	The appropriate jurisdiction being Order 12 Rule 40 of the National Court Rules was not referred to;
iii)	Section 5 of the Claims By and Against the State Act 1996 did not give the Court jurisdiction to grant the relief sought, it was a ground upon which the relief was sought;
iv)	The 1st and 3rd Respondents conceded that the Notice of Motion did not make reference to the Court’s jurisdiction.
(b)	The Learned Judge erred in law in finding that all claims against the State and State entities require notice to be given under section 5 of the Claims Act and that the Appellants were required to give such notice, when,
(i)	 The Parliament in passing the Claims Act intended for the notice requirement to apply in claims either based in contract or tort of a monetary nature or claims where the relief sought is a monetary relief or claims for damages;
(ii)	 The Supreme Court and National Court have held in a number of cases that not all claims require for notice to be given as required by section 5 of the Claims Act and each claim must be determined on its merits;
(iii)	Claims not of a monetary nature do not require notice to be given under Section 5 of the Claims Act,
(iv)	The Appellant’s Original Summons filed on 14 August 2019 no monetary relief was sought;
(v)	 When considered on its merits the Proceedings did not require for the Appellants to give notice under section 5 of the Claims Act.
( c)  	The Learned Judge erred in law in finding that as the Appellants sought an injunctive relief; they were required to give notice under  section 5 of the Claims Act, when:
(i)	The Parliament in passing the Claims Act intended for the notice requirement to apply in claims founded in contract or tort of a monetary nature or claims where the relief sought is a monetary relief or claims for damages;
(ii)	 The Supreme Court and National Court have held in a number of cases that not all claims require for notice to be given as required by section 5 of the Claims Act and each claim must be determined on its merits;
(iii)	Claims not of a monetary nature do not require notice to be given under Section 5 of the Claims Act,
(iv)	The Appellant’s Original Summons filed on 14 August 2019 no monetary relief was sought;
(v)	 The relief of an injunctive is not a monetary relief and the giving of an Undertaking by the Appellants was sufficient for any prejudice the 1st and 3rd Defendants would have suffered (if any).
(vi)	The relief of injunction is an equitable relief and founded on equitable claim based in the laws of equity as adopted and the Claims Act did not apply to such a claim.
(d)	The Learned Judge erred in law in dismissing the Proceedings based on obiter dictum observations of a Judge (per Justice Cannings in Katherine Mal v Commander, Beon Correction Institution (2017) N6710.
( e)	The Learned Judge erred in law in dismissing the Proceedings on the grounds that there was one injunctive sought in the Originating Summons and thereby denying the Appellants’ right to be heard on the 3 other declaratory relief sought in the Originating Summons.
(f)	The Learned Judge erred in law in dismissing the Proceedings against all the Respondents/Defendants when:
(i)	The Appellant were only obliged give (sic) notice under section 5 of the Claims Act in respect of their claim against the 2nd and 3rd Respondents. (the State and State Entity);
(ii)	The 2nd Respondent (a State entity) took  the position that notice was not required.
(iii)	There was no requirement for the Appellants to give notice under the Claims Act in relation to their claim against the 1st and 4th Respondents.
As a consequence of which, the Appellants were denied the right to be heard on their claims against the 1st, 2nd, and 3rd Respondents. 

History.

77.	The Appellants are members of landowner clans in the Gobe Petroleum Project Area. On 22 November 1997 the eight landowner clans in Gobe entered into an agreement and formed a Charter ( The Charter of The Gobe Leadership Committee) which provided a single voice for the Project Area People in dealing with the Developer or the State on all matters associated with the Gobe Project. (Objective 1 (b) of The Charter.)

78.	As I understand from the evidence before us some disgruntled members who were not happy with the running of the Committee formed a faction group and elected themselves into office, replacing the Fourth Respondent and his full Committee. The First and Second Appellants were voted into office on 19 August 2019. The Fourth Defendant, then former and founding Chairman of GLC has gone into an offensive and taken out public advertisements denouncing their election into office. His actions has caused instability and threatened the First and Second Appellants’ tenure in office, giving rise to the Appeal before us. 

Appellant’s consideration of Appeal 

79.1    The Parliament in passing the Claims Act intended for the notice requirement to apply in claims either based in contract or tort of a monetary nature or claims where the relief sought is a monetary relief or claims for damages;

79.2    The Supreme Court and National Court have held in a number of cases that not all claims require for notice to be given as required by section 5 of the Claims Act and each claim must be determined on its merits.

79.3    The claims not of a monetary nature do not require notice to be given under section 5 of the Claims Act.

79.4	In the Appellants’ Originating Summons filed on 14 August 2019 no monetary relief was sought.

79.5    When considered on its merits the Proceedings did not require for the Appellants to give notice under section 5 of the Claims Act.

79.6.	The Parliaments in passing the Claims Act intended for the notice requirements to apply in claims funded in contract or tort of a monetary nature or claims where the relief sought is a monetary relief or claims for damages.

79.7	The Supreme Court and National Court have held in a number of cases that not all claims require for notice to be give as required by section 5 of the Claims Act and each claim must be determined on its merits.

79.8	Claims not of a monetary nature do not require notice to be given under section 5 of the Claims Act.

79.9	In the Appellants’ Originating Summons filed on 14 August 2019 no monetary relief was sought.

79.10	The relief of an inductive (sic) is not a monetary relief and the giving of an Undertaking of the Appellants was sufficient for any prejudice the 1st and 3rd Defendants would have suffered (if any).

79.11	The relief of injunction is an equitable relief and founded upon an equitable claim based in laws of equity as adopted and the Claims Act did not apply to such a claim.

79.12	The Learned Judge erred in law in finding that as the Appellants sought an injunctive relief, they were required to give notice under section 5 of the Claims Act.

Respondent’s consideration of Appeal 

80.	After leave was granted Respondent 3 addressed court verbally as he did not have a prepared written submission.

81.	As to Appeal ground (a) Mr Jerewai submitted that Court Rules were merely to assist Court procedures and not mandatory hence any failure to comply with them will not render the Notice of Motion defective. When placed against Statutory provision, as in this case, where the giving of Notice is mandatory in Section 5 Notice Claims By And Against the State 1996 (CBAS)  legislation takes precedence.  On that basis it is submitted that this ground of the Appeal be dismissed with costs.

82.	As to ground (b) he submitted that since the State was named as a party in these proceedings it was incumbent on the Appellants to give notice to the State and Her Honour was correct in holding that view which resulted in the dismissal of the Notice of Motion. Mr Jerewai submitted that in trying to define what is a claim under Section 1 of CBAS, Courts have given varying  definitions depending on the nature of such claims. For instance, in the case of Punangi v Brown, Minister for Public Service [2004] PGNC 120; N2661, Injia DCJ held that notice of claim under s.5 of the Claims By and Against the State Act 1996, is not required in applications for judicial review under Order 16 of the National Court Rules. He said and I quote:

“…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.”

83.	In the same scheme of things Injia DCJ said:

“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. “

84.	In Rahmati v The Independent State of PNG [2018] PGNC 325; N7468 late Tamate J held the view that Section 5 Notice is not required for actions that are not monetary claims in damages or compensation.

85.	In another case Cannings, J in his definition of “claim” in the case of Kathrine Mal v Beon Correctional Service Commander [2017]; PGNC 87 (8 May 2017) held that 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.”

86.	Mr Jerewai submitted that a claim is what constitutes that action which is instituted again the State and the application of ss 1,2, 5 of CBAS should not be restricted only to monetary claims or damages. Sections 5 and 1 are standalone sections and submitted that the court below did not err and this ground be dismissed.

87.	Mr Jerewai further submitted that the declarations sought by the Appellants were an abuse of process and mischievous in that they were asking court below to endorse them as duly elected when that event had already occurred and they were elected into Office. They have now come to Court to endorse that process. Her Honour said at [AB page 110,line 20]  “Änd how can the court declare them to be rightfully elected as their representatives if they do not allege any breaches of that process except to seek that they be declared?

88.	As to appeal grounds (b) ( c) (d) ( e) and (f) Mr Jerewai submitted  that submissions made in response to appeal ground (a) also covers those grounds. He further added that a claim is what is pleaded and without going to the extent of defining what is monetary, equity etc, this  Court has the opportunity to give clarity to what is a claim. For the moment the definition of what is a claim is founded in the case of Punangi v Brown, Minister for Public Service [2004] PGNC 120; N2661 (18 October 2004) Per Injia J:

 “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.”

89.	Mr Jerewai submitted that all that the court need to do is look at the content of the action in the proceeding’s and one need not look elsewhere to see where s. 5 Notice is required on not. To restrict its interpretation narrowly only to monetary claims or damages is a narrow assignment of interpretation. We submit that a claim is what constitute that action which is instituted against the State. I have not case authority but it’s a novelty. Therefore s.5 ss1 of the CBAS is a standalone provision.

Legal framework

90.	This is an appeal pursuant to s 14 (3) (b)(ii) Supreme Court Act. Civil appeals lie to the Supreme Court from the National Court on a question of law or on a question mixed law and facts.

91.	As the matter was still progressing, the Third Respondent filed a Notice of Motion on 12 December 2019 and secured a dismissal of the declaratory and injunctive proceedings on 13 March 2020. The Court upheld the Third Defendant’s Notice of Motion filed on 12 December 2019 and dismissed the entire proceedings on the grounds that Section 5 notice under the  Claims by and Against the State Act (CBSA) was not given to the State.

92.	Aggrieved by that decision the Appellant appeal against the whole of the decision of Her Honour Justice Polume Kiele delivered ex tempore on 13 March 2020 in proceedings OS No. 555 of 2019 at the National Court in Waigani. 

93.	 The First and Second Respondents are interested State entities and are signatories to the Gobe Leadership Charter. 

Gobe Leadership Committee (GLC) (The Charter)

94.	The Preamble of The Charter provides:

“The Gobe Leadership Committee (“GLC”) is a group of influential leaders of the people of the area of the Gobe Petroleum Project. The GLC was agreed to be established pursuant to Clause 5, and 6 of The Gobe Memorandum of Understanding between the Gobe Project Area People and the Developer (led by Chevron) (“the MOU”) , and Clauses 7 and 8 of the Memorandum of Accord between the Gobe Project Area People and the State (“the Accord”), both signed on the 24th December 1996.”

95.	Clause 4.3 of The Charter 196 provides that elections of the GLC shall be held every two years and shall be conducted by the Department of Petroleum and Energy or its equivalent Government Department. The election shall be conducted amongst all adult members of the clan.

96.	The GLC entered into an agreement with the 1st, and 3rd Defendants by virtue of “The Charter” and “The Accord”. 
The Cambridge English Dictionary (Cambridge University Press) Version 5.6.52.  describes “accord” as a formal agreement, or the condition of agreeing with both parties signing the accord.
 The Cambridge English Dictionary(Cambridge University Press) Version 5.6.52.   describes charter as a formal statement of the rights of a country’s people, or a particular social group, which is agreed by or demanded from a government etc.

97.	So going by these two definitions it is safe to resolve that the GLC entered into a contractual relation with the Developer and the Entities of the State of Papua New Guinea in 1996: they become interested parties to any and all disputes and or litigations affecting the State.

98.	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 being shown, allows.

99.	By virtue of  section 5 (1) (2) (a) (b) of CBAS, the Charter and Accord were no longer simply one of material consideration. Their provisions, provided that they are relevant to the particular application.

100.	It follows that s. 5 notice must be given to the State. As it is, it’s way past the 6 months period envisaged  by S.2 (a) (b) of CBAS. Might I add here in passing that the 12 years limitation period under FLA is of no help either as the contract was signed in 1997.

101.	In Punangi v Brown, Minister for Public Service [2004] PGNC 120; N2661, Injia DCJ  explained the effect of this provision thus:

“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. “

Appeal Ground (a)

102.	Ground (a) turned on the Courts jurisdiction under rule 8 of the Motion Amendment Rules 2005 and Order 12 Rule 40 National Court Rules.

Appellant’s submission

103.	That the Applicant in the Court below failed to invoke the correct jurisdiction of the Court and further failed to refer to the appropriate NC Rules.

104.	The Appellant then went on to submit that the 3rd Defendant  erred in law  when, she allowed the Motion to be heard.

Conclusion.

105.	It is common ground that the interpretation of Court Rules should be interpreted objectively, in the light of its context and objectives. They should not be interpreted as if they were a contract or statutory provisions.

106.	In Polling v Motor Vehicle Insurance (PNG) Trust [1986] PGNC 47; [1986] PNGLR 228; N564 (20 October 1986) Wilson J held that (2) As the National Court Rules are only a code of practise, the court has power either inherent, or deriving from O 1,rr 7,8 and 9, in a particular case, to dispense with strict compliance with the Rules. ( Morres v Papuan Rubber and Trading Co Ltd (1914) 14 SR (NSW) 141 at 143-144, considered.

107.	In this case the matter was raised before the Primary Judge who ruled against it, although not very significant at that stage which ruling was accepted by all partis before that Court.

108.	In Mount Hagen Urban Local Level Government v Sek No 15 Ltd [2009] PGSC 26; SC 1007 (4 September 2009) the Supreme Court in the judgment of the Court delivered by Gavera-Nanu, Davani and Yagi JJ:

“33…It is an ordinary rule of statutory interpretation that in the absence of ambiguity or uncertainty in a statute, that it is unnecessary or inappropriate  to look beyond  the particular statute for aids in interpretation: Anna Wemay v Kepas Tumdai [1978] PNGLR 173.”

109.	For the reasons set out above Ground (a) does not succeed.

Ground (b) (c) (d) ( e ) (f) .

Appellant’s submission.	

110.	The Learned Judge erred in law in finding that all claims against the State and State entities require notice to be given under section 5 of the Claims Act and that the Appellants were required to give such notice. Further the Learned Judge erred in law in finding that as the Appellants sought an injunctive relief; they were required to give notice under  section 5 of the Claims Act,  The relief of injunction is an equitable relief and founded on equitable claim based in the laws of equity as adopted and the Claims Act did not apply to such a claim. The Learned Judge erred in law in dismissing the Proceedings on the grounds that there was one injunctive sought in the Originating Summons and thereby denying the Appellants’ right to be heard on the 3 other declaratory relief sought in the Originating Summons.

111.	The Appellant contends that they were not required to give notice under Section 5 of the Claims Act as their claim was not of a monetary nature but sought declaratory reliefs in relation to the appointment of the chairman and members of the executive committee of the Gobe Landowner Committee and that the Judge erred in dismissing their motion. 

112.	They argued that the injunctive relief sought by the Appellants would not involve direct cost or prejudice to the State. 

113.	They argued that since the Notice of Motion before the primary Judge lacked jurisdictional basis as it violated Rule 8 of the Motion (Amendments) Rules 2005. (Yaluma v State [2010] N4088.) 

114.	The Appellants argued that the Judge erred when she assumed jurisdiction by relying on the section 5 Notice and dismissed the proceedings.

115.	They argue that the requirement of giving Notice under the Claims Act only applied to actions that were founded on contract or tort or breach of constitutional rights. The case of Mision Asiki v Manasupe Zurenoc (2005) SC 797 and Fredrick Martins Punangi v Sinai Brown (2004)  N2661 were relied upon this contention.

Conclusions.

116.	On the evidence, I accept the Defendants submissions that as the 1st and 3 Respondents were State entities falling under the auspices of the GLC “Charter” and the ”Accord “ a notice of claim must be given to them. The action below was an abuse of process because the 1st and 2nd Appellants have already been elected into Office. Since the 1st Appellant is in office, he is no longer an aggrieved party.  

117.	In my judgment the Appellants have not demonstrated to me a strong case supported by case law authority to persuade me that the well-established principle in this jurisdiction that equity must give way to the statute law should be reviewed. In this case the Appellants are seeking both injunctive and declaratory reliefs from an agreement signed in 1966.  

118.	According to the Cornell Law School Legal Information Institute, Cornell University, Declaratory relief refers to a court’s declaratory judgment stating the rights of parties without ordering any specific action or listing awards for damages. A party seeking declaratory relief must show that there is an actual controversy even though there is an actual controversy even though the declaratory will not order enforceable action against the defendant.

119.	In the case before me there is no controversy as the Appellants have already assumed Office. Their motives to use the Court system to buffer their interests in my view is an abuse of process.

120.	During exchange between Mr Serowa and Her Honour [AB 110 at 20& 30]  as regards the Appellants seeking order for the court to declare that they (his clients) were rightfully elected into office and that is there cause of action now Her said:
“And how can the court declare them to be rightfully elected as their representatives if they do not allege any breaches of that process except to seek that they be declared?...”Any way what else? 
	
121.	The gist of the Appellants contention is based on the Courts failure to consider and grant reliefs under declaratory and or injunctive reliefs. They are writs per se as opposed to prerogative writs under Order 16 NCR. In my considered view it is erroneous for the Appellants to rely on Injia DCJ in Punangi v Brown, Minister for Public Service [2004] PGNC 120; N2661 (18 October 2004) in which His Honour said,  “ s. 2 notice provisions in the Act does not apply to such application.” In his Honours observations,  section 2 requirements no not apply to prerogative writs. Prerogative writs are not the same as declaratory or injunctive reliefs.

122.	For the reasons set out above, Ground  (b) (c) (d) ( e ) & (f) .
does not succeed. 

123.	The appeal is dismissed on all grounds.

Final conclusions

124.	The claim for declaratory and injunctive reliefs is refused under Section 16 (b) of the Supreme Court Act 1975.

125.	The Decision of the National Court made on 13th March 2020 in proceedings OS No. 555 of 2019 is affirmed.

126.	The First and Second Appellants pay the 3rd Respondent’s cost of and incidental to the appeal and of the proceedings in the National Court including any reserved costs.

127.	NUMAPO J:  A. BACKGROUND: The Appellants appealed against the whole judgment of the National Court (NC) proceedings OS No. 555 of 2019 – Mathew Sisimolu & Ors –v- Philip Kende & Ors delivered on 13 March 2022 in which the Appellant’s claim was dismissed for want of Section 5 Notice under the Claims By and Against the State Act (‘Claims Act’ hereinafter). 

128.	Appellants’ submitted that their claim in the NC proceedings was basically seeking injunctive relief and declaratory orders which do not require a Section 5 Notice under the Claims Act. They sought three declaratory orders and one injunctive relief in the Originating Summons. However, they were not heard on application for the three declaratory orders sought when the primary judge dismissed the entire proceedings for want of section 5 notice based on the injunctive relief sought. The reliefs sought do not involve direct cost or prejudice to the State hence, section 5 notice is not required. 

129.	The injunctive relief was specifically to restrain the 1st and 3rd Respondents from interfering with the duties and functions of the Appellants as the appointed executive committee members of Gobe GLC. And because the 1st and 3rd Defendants are State and State Entities respectively, the primary judge considered that notice under section 5 is required.

130.	The 1st and 3rd Respondents (who were Defendants in the NC proceedings) filed a notice of motion to dismiss the entire NC proceedings for want of notice under section 5 of the Claims Act. The primary judge proceeded on and dismissed the proceedings for failure to give notice.  The orders given were in the following terms: 

(a)	The entire proceedings be dismissed for want of Section 5 Notice of the Claims By and Against the State Act.

(b)	Costs be in the cause; and

(c)	Any further order this Honourable Court deems fit.  

131.	The Appeal lies without leave pursuant to section 14 (1) and (3) (b) (ii) of the Supreme Court Act (Chapter 37).  

132. The reliefs sought in the Originating Summons were:

5.1	A declaration that the First, Third and Fourth Defendants have failed to conduct elections of Gobe Leadership Committee (GLC) in accordance with Clause 4.3 of the Charter of the GLC.

5.2.	A declaration that the First Plaintiff is entitled to hold himself out as and is the Chairman of Executive Committee of the GLC until such time he is replaced or removed pursuant to the provisions of the Charter of the GLC. 

5.3.	A declaration that the Second Plaintiffs (James Kaia, Fred Kitapa and Soso Tomu) are entitled to hold themselves out as and are the members of the Executive Committee of GLC until such time they are replaced or removed pursuant to the provisions of the GLC Charter.

5.4.	An order that the Defendants by themselves and or their agents, employees or associates are to be restrained and or prohibited from taking steps to interfere with the duties and functions of the First Plaintiff as the Chairman of the GLC and the Second Plaintiffs as members of the Executive Committee of the GLC.

5.5.	The Defendants to pay the Plaintiff’s cost of the proceedings at the scale deemed appropriate by this Court; and	

5.6.	Such further orders as are deemed necessary.

B.	GROUNDS OF APPEAL

133.	The grounds of appeal are as follows:

(i)	   The trial judge erred in law in failing to dismiss the 1st and 3rd Respondents’ Notice of Motion filed on 12 December 2019 for being incompetent under Rule 8 of the Motion (Amendment) Rules 2005 when:

(a)	the Notice of Motion did not cite and or make reference to the Court’s jurisdiction to grant the relief sought which was a dismissal of the proceedings;

(b)	the appropriate jurisdiction being Order 12 Rule 40 of the National Court Rules (NCR) was not referred to;

(c)	Section 5 of the Claims Act did not give the Court jurisdiction to grant the relief sought, it was grounds upon which the relief sought;

(d)	the 1st and 3rd Respondents conceded that the Notice of Motion did not make reference to the Court’s jurisdiction.

(ii)	The Learned trial judge erred in law in finding that all claims against the State and State entities require notice to be given under section 5 of the Claims Act and that Appellants were required to give such notice, when:

(a)	the Parliament in passing the Claims Act intended for the notice requirement to apply in claims either based in contract or tort of a monetary value or claims where the relief sought is a monetary relief or claims for damages;

(b)	the Supreme Court and National Court have held in a number of cases that not all claims require for notice to be given as required by section 5 of the Claims Act and each claim must be determined on its own merits;  

(c)	claims not of monetary nature do not require notice to be given under section 5 of the Claims Act.

(iii)	 The learned judge erred in law in finding that as the Appellants sought an injunctive relief, they were required to give notice under section 5 of the Claims Act, when:

(a)	 the Parliament in passing the Claims Act intended for the notice requirement to apply in claims founded on contract or tort of a monetary nature or claims where the relief sought is a monetary relief or claims for damages;

(b)	the Supreme Court and National Court have held in a number of cases that not all claims require for notice to be given as required by section 5 of the Claims Act and each claim must be determined on its own merits;

(c)	claims not of monetary nature do not require notice to be given under section 5 of the Claims Act;

(d)	in the Appellant’s Originating Summons filed on the 14 August 2019 no monetary relief was sought;

(e)	the relief of an injunctive nature is not monetary relief and the giving of an undertaking by the Appellants was sufficient for any prejudice the 1st and 3rd Defendants would have suffered (if any); and

(f)	the relief of injunction is an equitable relief and founded upon equitable claim based on the laws of equity as adopted and Claims Act do not apply to such a claim. 

(iv)	  The learned trial judge erred in law in dismissing the proceedings based on obiter dictum observations of a judge (per Cannings J in Katherine Mal v Commander, Beon Correctional Institution (2017) N6710).

(v)	The trial judge erred in law in dismissing the proceedings on the grounds that there was one injunctive relief sought in the Originating Summons and thereby denying the Appellants’ right to be heard on the three other declaratory relief sought in the Originating Summons.

(vi)	  The trial judge erred in law in dismissing the proceedings against the Respondents/Defendants when:

(a)	The Appellants were only obliged to give notice under section 5 of the Claims Act in respect to their claim against the 2nd and 3rd Respondents (the State and a State Entity);

(b)	The 2nd Respondent (a State entity) took the position that notice was not required;

(c)	There was no requirement for the Appellants to give notice under the Claims Act in relation to their claim against the 1st and 4th Respondents, as a consequence of which, the Appellants were denied the right to be heard on their claims against the 1st, 2nd and 3rd Respondents

C. CONSIDERATION

134.	The grounds of appeal can be divided into three main grounds. The first ground (Appeal Ground1) relates to the notice of motion filed by the 1st and 3rd Respondents which failed to state concisely the Orders that are being sought (including the Order to dismiss the proceedings), and furthermore, the failure by the Respondents to plead the concise jurisdiction of the Court to grant such Orders being sought. This is in breach of Order 4 Rule 40 (1) (c) (with respect to the nature of the Order which is sought), and Order 4 Rule 49 (8) of the NCR (with respect to the Court’s jurisdictional basis) to grant such Orders being sought. 

135.	The second ground which is the main ground of appeal comprised of Appeal Grounds 2, 3, 4 and 6 that relates to the relevance and application of section 5 notice. The main issue is; whether the primary judge erred in law by deciding that all claims against the State and State entities require a notice to be given under section 5 of the Claims Act. 

136.	The third ground comprised of Appeal Ground 5 which alleged that the Appellant was not given the right to be heard under Section 59 of the Constitution on the three other declaratory orders sought in the notice of motion after the primary judge refused one injunctive relief sought and consequently, dismissed the entire proceedings for want of section 5 notice. 

137.	The grounds of appeal can be reduced into two main considerations. Firstly, the requirement of notice under section 5 of the Claims Act, and the types of claim to which notice is required, and, secondly, whether a notice of motion that does not clearly state the concise nature of the order sought and does not make specific reference to the Court’s jurisdiction to grant such order which is being sought (which is to dismiss the proceedings) is in breach of Order 4 Rules 40 (1) and 49 (8) of the NCR and Rule 8 of the Motion (Amendments) Rules 2005 and therefore, is incompetent.

138.	The threshold issue is; whether the primary judge erred in law in dismissing the entire proceedings when Her Honour decided that, all claims against the State and State entities require a notice to be given under section 5 of the Claims Act. 

139.	A finding made on this threshold issue will determine the outcome of this whole case, in my considered opinion. In other words, the entire appeal hinges on the finding made with respect to section 5 notice. The other issues raised are peripheral to this main issue.

D. PRIMARY RELIEF SOUGHT

140.	The primary relief sought by the Appellants in the original proceeding was one based on equity for specific performance and injunctions. Appellants sought certain declaratory orders relating to the appointment of the Chairman and the members of the Executive Committee of the Gobe Landowners Committee based on an agreement signed under the Charter of GLC. It seeks to have the First Appellant recognized as Chairman of the Executive Committee of the GLC until such time an election is held, and he is either removed or replaced in accordance with the protocols set out under the Charter of GLC.

141.	The interlocutory relief sought by the Appellant was refused by the primary judge and the entire proceedings was dismissed solely for want of section 5 notice based on a notice of motion by the Respondents. The primary relief sought were neither in contention nor included in the grounds of appeal. It seems to me that the merits of the Appellant’s motion may not have been properly dealt with when the proceedings was prematurely dismissed for want of section 5.  Given that, it would be of no use, in my respectful view, for the Supreme Court to descend into the arena of the parties and used its inherent powers to discuss the appropriateness or otherwise, of relief sought (see: State v Nimbituo & Ors [2020] PGSC 64; SC1972 (30 June 2020).  

142.	I should add further that, the declaratory orders sought by the Appellants were interlocutory in nature. They are not permanent orders to deprive or deny any person of any positions within the GLC. The effect of the orders sought were merely to maintain status quo in the interim since the First, Third and Fourth Defendants failed to conduct elections of the Executive Committee Members of the GLC in accordance with the Charter of GLC. The relief sought are temporary, for all intention purposes, as it does not finally determine the rights, duties and obligations of the parties. A final order does that (see: Adams P Brown Male Fashion Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170). I therefore, cannot see how the Respondents could be disadvantaged or suffer permanently if the interim relief sought were granted to the Appellant.

E. SECTION 5 NOTICE

143.	The main issue relates to section 5 notice of the Claims Act, as I have alluded above. Appellant argued that section 5 notice is not required for an application seeking equitable relief. This is because it is not a claim that is based on monetary relief or involves monetary considerations. Section 5 notice is only required for claims that are monetary in nature. Section 2 of the Claims Act is very specific on the types of claim which notice under section 5 is required. Claims seeking injunctive relief and declaratory orders is not one of them.  The law is clear, there is no ambiguity. 

144.	The principal Act that deals with claims against the State is the Claims By and Against the State Act (Claims Act). 

145.	Section 2 of the Claims By and Against the State Act states:

(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 states:

(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 period as –
(i)	the Principal Legal Adviser; or
(ii)	the court before which the action is instituted,
   on sufficient cause being shown, allows. 

146.	The Claims Act sets out the requirements for a person to give a section 5 notice to the State of his intention to make a claim against the State, before bringing an action against the State. The Act was enacted for the purposes of providing for claims by the State and claims by a person against the State and for related purposes. The law simply is that, if a person wishes to sue the State then he must give notice to the State.

147.	Section 2 (1) defines the types of claims against the State in which notice under section 5 would be required. Notice is required for claims made in contract or tort that a person may bring against the State. In addition, Subsection (2) of section 2 provides for enforcement of human right and freedom under Section 58 of the Constitution in which compensation and damages in monetary considerations is provided for infringement of these rights and freedoms. Strictly speaking, under the Claims Act there are only two types of claims that would require a section 5 notice according to section 2, and they are; (i) claims based on contract or tort and, (ii) for infringement of a right and freedom under Section 58 of the Constitution where compensation is paid where breach and enforcement of these rights and freedoms is proven. The third category of claim where section 5 notice is required, is where the claim although is not monetary in nature but if it involves a direct cost or prejudice the State as a consequence of the order sought, then notice of such is required.  The intention of Parliament is made clear through this legislation that any claims made against the State that may have financial implications requiring the State to pay using public funds, notice must be given. Generally, notice is required where a claim is based on monetary relief where State is a party. 
 
148.	Mr Kopunye for the Appellants, in his extract of submission, submitted that the Appellants did not give notice under section 5 on the basis that the matter did not involve any claim for damages or compensation or any other similar remedy, the Appellants sought non-monetary reliefs (including injunctive relief and declaratory orders). Furthermore, that the injunctive relief sought by the Appellants would not involve any direct cost or prejudice to the State, hence there is no need for a section 5 notice. Counsel referred to the case of Katherine Mal v Commander, Beon Correctional Institution (supra) where the Court held that section 5 only applies to monetary claim or a claim for an injunction that would involve direct cost or prejudice to the State. None of these orders were sought in this proceedings by the Appellants. The only relief sought in the Originating Summons was to restrain the Respondents from interfering with the duties and functions of the Appellants under the GLC. This was the only injunctive relief sought by the Appellants. There would be no direct cost or prejudice to the State as the Appellants have given an undertaking as to damages for any damages that maybe suffered by the Respondents during the period of the restraining order. Damages (if any) would be paid for by the Appellants based on this undertaking hence, there is no direct cost to the State and for this reason, section 5 notice is not required. 

149.	There is a good body of case laws on Section 5 Notice and the types of claims for which notice is required. I refer to some of them here below.

150.	In Punangi v Brown, Minister for Public Service [2004] PGNC120; N2661, Injia DCJ (as he then was) when consideration the relevance of section 5 for claims brought under contract or tort against the State consistent with section 2 of the Claims Act stated that:

“Section 2 of the Act actually defines the ambit of a “claim” against the State for which State may be sued under the Act. Subsection (1) defines “claims” to mean “claims” in “contract or tort”.  These are usually all personal actions in law for damages in tort or contract under the principle of common law and equity as modified by statute, such as claims for debt in money, goods or property; or compensatory breaches of a statutory duty…. 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”.  

151.	His Honour went on further and held that:

“Subsection (2) than 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. 

152.	The types of claim requiring notice under section 5 was expressly stated in Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797, where the Supreme Court held that:

“Firstly, the notice requirements of the Claims By and Against the State Act apply only to actions that are founded on contract or tort or a breach of constitutional rights; and secondly, section 5 does not apply to actions seeking orders in the nature of prerogative writs commenced under Order 16 of the National Court Rules…”

153.	The Court added further that:

“It is 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 and suit in court for damages or compensation in contract or tort or for breach of human rights under Sections 57 and 58 of the Constitution”.

154.	With regards to Sections 57 and 58 of the Constitution, the relief sought will determine if section 5 notice is required or not. The distinction was made clear in Mal v Commander, Beon Correctional Institution (supra) where the Court held that, although Section 5 notice was not given, the applicant argued that this was not necessary as the present application does not involve any claim for damages or compensation or any other similar remedy; it is simply an application for early release from custody. His Honour Justice Cannings held that because the applicant is not claiming damages or compensation or other similar relief, it was not necessary to give notice under Section 5 of the intention to make the application. 

155.	In a similar application, in Rahmati v Independent State of Papua New Guinea [2018] PGNC 325; N7468, Tamate J (as he then was) after considering the issue relevant case laws regarding Section 5 notice held that: 

“Taking into consideration the term “claim” and the “intention of Parliament” discussed in the case of Asiki (supra) and State v Downer (PNG) Ltd [2009] PGSC51; Sc979, I am of the view that Section 5 Notice is not required for actions that are not monetary claims in damages or compensation.”

156.	Having considered Sections 2 and 5 of the Claims Act and the relevant case laws discussed, I must agree with the Appellant that Section 5 notice is only required for claims relating to contract or tort that involves monetary relief, and for enforcement of Constitutional rights under section 58 of the Constitution where relief is usually by way of compensation for the breach of right and freedom. It does not apply to claims or actions seeking injunctive and declaratory reliefs such as in this case. However, where an application for a declaratory or injunctive relief involves a direct cost or prejudice to the State then the State must be given notice.  There is no evidence suggesting that the relief sought by the Appellant if granted, would involve any such cost or prejudice to the State, especially the 1st and 3rd Respondents. In any case, the Appellant has already given an undertaking as to damages to help defray any damages that may be suffered as a result of this proceedings. 

157.	It is clear to me that the action commenced by the Appellant in the National Court was for injunctive relief and declaratory orders to restrain the Respondents not to interfere and to allow the Appellants to continue in their duties and functions as the Executive committee members of the GLC until a proper election is held and the new office bearers are elected. The relief sought does not involve monetary considerations nor does it involve any direct cost or prejudice the 1st and 3rd Respondents (State). Section 5 notice is clearly not required and does not apply in this case. I am satisfied therefore, that the reliefs sought by the Appellant do not fall under the types of claims defined under section 2 (1) and (2) of the Claims Act which requires a notice under section 5. 

158.	I find therefore, that the primary judge erred in law in making a finding that all claims (including those seeking equitable relief for specific performance) made against the State and State entities requires a notice to be given under section 5 of the Claims Act and therefore, the Appellant is required to give such notice. I am satisfied that the Appellant’s claim is not one that is founded on contract or tort nor is it seeking damages for breach of human rights and freedoms under Section 58 of the Constitution, hence, section 5 notice is not required.  

F. JURISDICTIONAL BASIS

159.	The second ground of appeal relates to the requirement of stating the concise jurisdictional basis of the court in its notice of motion to grant the relief sought, failing which the proceedings may be rendered incompetent and therefore, dismissed.

160.	The notice of motion must state concisely the nature of the order sought which is a requirement under Order 4 Rule 40 (1) (c) of the National Court Rules (NCR). Pursuant to Order 4 Rule 49 (8), all motions must contain a concise reference to the court’s jurisdiction to grant the orders being sought. A motion that does not contain a concise reference to the jurisdiction of the court to grant such orders being sought, renders the orders void. Order 4 Rule 49 (8) of the NCR makes this requirement mandatory under the Rules. It reads:

Order 49. Motions (Amendment) Rules 2005

Rule 8: Form of Motions
All Motions must contain a concise reference to the Court’s jurisdiction to grant the orders being sought. Motions not containing such reference will not be accepted for filing. If accepted by the Registry staff without such reference, and it goes before the motions judge, the Court may strike out the motion for being incompetent and for lack of form. The motion must state the following: “…..move the Court for Order pursuant to (e.g. section 5 of the Claims By and Against the State Act…)”.

161.	Ms Kumo for the 2nd Respondent submitted that section 5 of the Claims Act does not give the court the jurisdictional basis to grant the orders sought by the Respondents which include the orders to dismiss the proceedings. 

162.	Counsel in her written submission basically supported the grounds of appeal raised in the Notice of Appeal by the Appellant and submitted that the appeal should be upheld and the decision of the trial judge quashed. Counsel submitted that 1st and 3rd Respondents failed to specifically plead the concise jurisdiction of the Court to grant the orders sought in their motion, including an order to dismiss the proceedings. The defect in the motion was brought to the attention of the trial judge by the Appellant at the National Court which is reflected at page 95 para 30 of the transcript but was ignored. Furthermore, the 1st, 3rd and 4th Respondents agreed that the motion was defective and incompetent as evidenced in page 96 paragraphs 20 and 40 of the transcript. Despite the defects on the competency of the claim, the primary judge proceeded on and considered that section 5 of the Claims Act provided the jurisdictional basis and dismissed the proceedings without providing any justifiable reason(s) for doing so. It appears that the primary judge has not properly considered the arguments relating to the defects found in the motion raised by the Appellant and supported by the Respondents, resulting in a decision that was unexpected.

163.	Appellant argued that section 5 of the Claims Act does not provide the Court the jurisdictional basis from which to grant the Orders the 1st and 3rd Respondents sought, including dismissing the proceedings for want of notice. This in breach of Order 4 Rule 49 (8) of NCR which requires that the motion must state the concise reference to the jurisdiction of the Court in making such Orders.

164.	Counsel for the 4th Respondent, Mr Jerewai in his oral submission submitted that the Court Rules were mere procedural requirements and are not substantive law with mandatory requirement on strict compliance failing which, may render the motion incompetent. The substantive law in this regard, is the notice under section 5 which the Appellants must give but have failed to do so as required under Claims Act. Counsel further argued that if the State was named as a party in a proceedings, the party making the ‘claim’ must give a section 5 notice to the State.  

165.	Section 1 of the Claims Act defines ‘claim’ as:

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

166.	Mr Jerewai further submitted that a claim constituted an action and if it is taken against the State, it is not necessarily restricted to monetary claims or damages only, but also includes all claims commenced against the State. Sections 1, 2 and 5 are standalone provisions and should not be restricted to monetary claims only. Counsel had not provided any case law authority on point to support his argument that all claims of which State is a party requires a section 5 notice. With respect, Mr Jerewai’s interpretation of section 5 is misconstrued and his line of argument is without basis.  His views unfortunately are not consistent with the established principles of law developed in this jurisdictions relating to section 5 notice.   

167.	I reiterate once more that section 2 (1) and (2) of the Claims Act specifies the types of claims in which notice under section 5 is required. They involve claims made in contract or tort, and also enforcement against the State of a right or freedom under Section 57 (Enforcement of guaranteed rights and freedoms) of the Constitution for damages for infringement of a right or freedom under Section 58 (Compensation) of the Constitution. It cannot get any clearer than this.

168.	Orders sought in the nature of prerogative writs do not fall within the ambit of section 2 of the Claims Act. Injia DCJ (as he then was) in Punangi v Brown, Minister for Public Service (supra) when considering an application for a judicial review, held that notice of claim under section 5 of the Claims By and Against the State Act is not required in application for judicial review under Order 16 of the NCR. His Honour went onto say that:

“Conversely, an application in the nature of 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 in such application.”

169.	With respect to Order 4 Rules 40 (1) (c) and 49 (8), of NCR, Mr Jerewai submitted that non-compliance of the Rules should be treated as a mere irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein. In otherwords, non-compliance with the Rules should not render the proceedings void. Whilst I agree in principle, that strict adherence to Rules is not required, the Court has a duty to protect its own Rules and processes from being abused. 

170.	In this jurisdiction the tendency under the Rules is to provide the Court with a wide discretion to deal with issues of non-compliance with the Rules of the Court and to ameliorate any hardship which might arise from strict adherence to the rules. This is a matter of discretion for the Court on proper application. The general rule is that non-compliance with the Rules will not automatically nullify a proceedings unless the Court so directs. To dispense with the requirements of the Rules, the Applicant seeking it, must make a proper application to the Court to deal with the non-compliance. Respondents in this case have not done so within a reasonable period of time before the Appellant seeking the declaratory orders became aware of it. The net effect therefore, is that, the issue of non-compliance has not been dealt with by the Court and therefore, the requirement of the Rules still applies, until the Court so directs upon proper application to dispense with it. Since, no application has been made to address the issue of non-compliance, the motion by the Respondents is defective and incompetent.  

G. CONCLUSION

171.	I reached the following conclusions:

(i)	      Orders sought by the Appellants in the Originating Summons were in the nature of declaratory orders and injunctive relief that do not require a Section 5 Notice under the Claims Act.

(ii)	      The claim is not founded on monetary relief involving contract or torts pursuant to section 2 (1), or under subsection (2) of the Claims Act, for enforcement of a right or freedom under Section 58 of the Constitution that involves damages and compensation hence, Section 5 notice is not required.
    
(iii)	      The claim is not monetary in nature and therefore, the Appellant is not obliged to give notice under section 5 of the Claims Act especially, to the 1st and 3rd Respondents (State and State Entity).
    
(iv)	     Section 5 of the Claims Act does not provide the Court its jurisdictional basis to grant the Orders sought by the Respondents (including Orders to dismiss the proceedings). 

(v)	     The Court has not been asked to exercise its discretion to deal with the issue of no-compliance with the Rules, therefore, rendering the proceedings incompetent. 

H. ORDER

(vi)	      The decision of the primary judge is quashed.

(vii)	 	Appeal is upheld.

(viii)	       Respondents to pay for the cost relating to this appeal, to be taxed, if not agreed. 

Orders of the Court

1.	The appeal is upheld.

2.	The judgment and orders of the Waigani National Court made on 13 March 2020 in proceedings OS No. 555 of 2019 dismissing the proceeding are quashed and set aside forthwith.

3.	The notice of motion filed by the first and third respondents (first and third defendants in the National Court) in proceedings OS No. 555 of 2019 on 12 December 2019 is forthwith dismissed on grounds of incompetency pursuant to National Court Rules, Order 4 Rule 49(8) of the Motions (Amendment) Rules 2005.

4.	The National Court proceedings OS No. 555 of 2019 is forthwith restored and reinstated and shall be listed before another Judge for hearing of the substantive claims.

5.	The fourth respondent shall pay the appellants’ and the second respondent’s cost of this appeal on party-party basis to be taxed, if not agreed.

6.	The first and third respondents shall pay the appellants’ and second respondent’s cost in the National Court proceedings OS No. 555 of 2019 in respect to the notice of motion filed by them on 12 December 2019 on party-party basis to be taxed, if not agreed. 

________________________________________________________________
Kopunye Lawyers: Lawyers for the Appellants	
Lawyer for the First & Third Respondents: None on record
Jema Lawyers: Lawyers for the Second Respondent			
Jerewai Lawyers: Lawyers for the Fourth Respondent