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Hewali v Papua New Guinea Defence Force [2002] PNGLR 12 (27 March 2002)

[NATIONAL COURT OF JUSTICE]

DANIEL HEWALI

v

PAPUA NEW GUINEA DEFENCE FORCE; and
THE STATE

Waigani: Kandakasi J

6, 13 and 27 March 2002

PRACTICE & PROCEDURE – Giving notice of intention to make a claim against the State – Nature and form of notice – What is important is the giving of notice of an intended claim against the State – The instrument seeking to give notice must disclose cause of action and sufficient details about the possible claim so as to enable the State to conduct its own inquiries while the trail of evidence is still fresh – Reference to early correspondence seeking extension of time to give notice out of time not sufficient notice under extended time – Proper notice must be given within extended time.

CLAIMS AGAINST THE STATE – Notice of intention to make a claim against the State under section 5 of the Claims by and Against the State Act – Condition precedent to a claim against the State – Unless proper notice of an intention to make a claim is given with the time prescribed or extended by the Attorney General or a Court, no cause of action exists against the State – Claims by and Against the State Act s 5.

LIMITATION OF ACTION – Notice of intention to make a claim against the State – Such notice must be given within the period prescribed or within the period extended by the Attorney General or a Court – Failure to give notice within such period amounts to the action being time bared – Claims by and Against the State Act s 5.

WORDS AND PHRASES – Interpretation of "notice" under the Claims By and Against The State Act.

Facts

The applicant claimed to be a soldier in the PNG Defence Force from 1982 to 1996. He asserted that the Force failed to facilitate his attainment of a motor mechanic tradesman certificate, consequently after discharge he was unable to obtain any gainful employment as a motor mechanic. He gave notice of his intention to make a claim against the State out of time and applied to the AG for an extension of time. His application was rejected but allowed by the Court which gave him 14 days to give the necessary notice to make a claim. He then purported to give notice by forwarding a copy of the court order to the AG. The question was whether he was able to combine the earlier invalid notice with his letter to the AG informing him of the extension of time granted by the Court in order to form a satisfactory notice within the meaning of s 5 of the Claims by and Against the State Act.

Held

1. the notice given during the extended period must satisfy the requirements of the section;
   

2. unless notice in the terms prescribed is given in the manner prescribed, there could be no notice in fact or in law against the State.

Papua New Guinea cases cited

Carol Laime v MVIT [1995] PNGLR 224.
Cathy Robert Kolum as next friend of Salome Robert, Jamila Robert and Peter Kolum v The Motor Vehicles Insurance (PNG) Trust [2000] PNGLR 40.
Graham Rundle v Motor Vehicles Insurance (PNG) Trust No.1 [1988] PNGLR 20.
Joy Kawai an infant by her next friend Kawai Takame v Motor Vehicles Insurance (PNG) Trust (1998) unreported SC588.
Kamapu Minato & Anor v State (1998) unreported N1768.
Paraka Nui v MVIT (unreported & unnumbered).
Paul Tohian, Minister for Police and The State v Tau Liu (1998) unreported SC566.
Stanley Tende v MVIT [1996] PNGLR 379.
Tau Lui v Paul Tohian & The State unreported (1997) N1615.
Wane Ume v MVIT [1998] PNGLR 253.

Counsel

R Uware, for the plaintiff.
C Apundamatiet, for the defendant.

27 March 2002

Kandakasi J. By notice of motion filed on 19th February 2002, Mr. Hewali sought to enter judgement against the State in default of the State's notice of intention to defend and defence. The State opposed the application on the basis that Mr. Hewali did not give notice of his intention to make a claim against the State in accordance with s 5 of the Claims by and Against the State Act 1996 ("CBASA"). I refused the application for default judgement. Then by consent of the parties, I heard the arguments on whether or not the proceedings could be maintained following lack of notice under s 5 of the CBASA. I then reserved a ruling and this is the ruling on that argument.

The relevant facts are not in issue. Mr. Hewali claims that he was a soldier with the PNG Defence Force after having enlisted in 1982. He was discharged from the Force in 1996. He claims that the Force failed to facilitate an attainment of a motor mechanic tradesman certificate. Consequently, after being discharged from the Force he is not able to obtain any gainful employment as a motor mechanic. He did not bring a claim against the State or the Force within the first 6 months within the meaning of s. 5 of the CBASA.

By letter dated 1st June 2000, he sought an extension of time from the Attorney General. That was declined. So Mr. Hewali applied to the National Court for an extension of time to give the State notice of his intention to make a claim against the State. The National Court granted him his application on 10 September 2001. The orders do not specify it, but going by his counsel's submission, Mr. Hewali was given 14 days to give notice of his intention to make a claim against the State.

Under cover of letter dated 11 September 2001, Mr. Hewali forwarded a copy of the National Court order to the Attorney General. That letter is the critical letter. Mr. Hewali says that it is his letter of notice under s 5 of the CBASA within the 14 days extended by the National Court. The letter in the main part reads:

"RE: Daniel Hewali

I refer to my letter of 1st June 2000(sic)(copy enclosed).

As a result of non response to application for extension of time lodged on behalf of my client I have sought the same from the Court on 10 September and the Court granted the orders sought.

This letter serves as requisite notice pursuant to Section 5 of Claims By an (sic) Against the State Act.

Please let me (sic) have your response at once.

Yours faithfully

FRAZER S. PITPIT

Public Solicitor"

Before hearing counsel, I asked counsel to consider cases under the Motor Vehicles (Third Party Insurance) Act Chp.295 ("MVIT Act"), in similar settings, in the absence of any particular case under the CBASA. Both counsel referred me to Graham Rundle v Motor Vehicles Insurance (PNG) Trust N0.1 [1988] PNGLR 20 and the Supreme Court decision in Paul Tohian, Minister for Police and the State v Tau Liu SC566 (judgement delivered on 27 August 1998).

Mr. Uware for Mr. Hewali, argues that the letter dated 11th September 2001, is sufficient notice for the purpose of s 5 of the CBASA, when taken together with the earlier letter of June 2000. At the same time he concedes that the earlier letter was one which was seeking an extension of time and not giving notice of an intention to make a claim against the State. He was not able to provide any authority to support his submission.

Similarly, Mr. Apundamatiet, argued without the support of any authority that the letter of the 11 September 2001 was not notice within the meaning of s 5 of the CBASA, even when taken together with the earlier letter of 1 June 2001.

All claims by and against the State are governed by the CBASA. Section 5 of that Act provides that:

"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 (Chapter 321)."

The wording in this section is identical to section 54(6) of the MVIT Act. There are two significant differences between the two sections. First, there is no guidance as to what form a notice under section 54(6) of the MVIT Act should take, whereas under the CBASA, it provides that the notice must be in writing. Akuram J (as he then was) spoke of this difference in Kamapu Minato & Anor v State (unreported judgement) N1768. Secondly, it prescribes the manner in which the notice must be served.

All the cases on point, such as Kamapu Minato & Anor v State (supra), agree that, the purpose or intent of Parliament behind s 5 of the CBASA, is the same as that under the MVIT Act, as held by the Supreme Court in the Rundle case (supra). The relevant part of the judgement in that case is in these terms by Bredmeyer J:

"The purpose of s 54(6) is to give the Trust early notification of the claim so that it can make its inquiries. Obviously inquiries as to the driver, the owner, and the insurance details of a vehicle, become more difficult as time passes. Drivers change addresses and sometimes in Papua New Guinea their names and witnesses disappear, expatriates leave Papua New Guinea, and police accident reports and insurance certificates get lost."

It was also made clear in the Rundle case, that the requirement for notice is a condition precedent. Amet J (as he then was) expressed that view with the agreement of the then Chief Justice Sir Buri Kidu in these terms:

"The requirement to give "notice of intention to make a claim" is in mandatory terms. "No action to enforce any claim lies against the Trust unless" such a notice is first given to the Trust within six months after the occurrence out of which the claim arises. It is a condition precedent to any "action to enforce any claim". On an examination of the other subsections of s 54 it becomes apparent that two different stages and processes are spoken of or referred to."

The first is the notice of intention to make a claim and the claim for damages made to and against the Trust as distinct from "any proceedings to enforce any such claim for damages" or "action to enforce any claim" which is to be instituted before a court.

The point to be made, in my view, is that, consistently with similar expressions used in the other subsections, the words "action to enforce any claim" used in subs (6) refer to and mean "proceedings to enforce any claim" in a court. This might seem trite, but it is important, I believe, to establish it sufficiently. If we interpose this expression in the place of "action to enforce any claim" in subs (6) then it would read like this:

"No 'proceedings to enforce any claim under this section in a court' lies against the Trust unless notice of intention to make a claim is given ... etc."

If this be the meaning of subs (6), and it is a mandatory condition precedent before any court proceedings to enforce any claim can lie against the Trust, then I consider para (b) is inconsistent with it. To use the words or para (b) itself, if no action can be instituted in a court to enforce any claim unless notice is given, how can application be made, for an extension of time to give such notice of intention to make a claim, to "the court before which the action is instituted?" In my opinion that is non sequitur. No court action can commence or can be instituted unless the condition precedent of the notice of intention has first been given to the Trust. I believe subs (b) has been poorly drafted. If it is to be construed the way it is presently worded, it would require, as a condition precedent to making application to the court, that the action should first be instituted. That is "the court before which the action is instituted." This surely does not make sense. One of the purposes for giving early notice must be to enable parties to make enquiries before any further action or proceedings are considered. If subs (b) is construed as it is drafted, to require the action to have been instituted before any application for extension of time to give notice can be made, then it defeats the whole purpose of the need to give notice.

In my opinion, to render para (b) consistent with the plain meaning of the body of subs (6) as I have interpreted it, the words "to be" should be read in after "the action is" and before "instituted," to read:

"(b) the court before which the action is to be instituted."

This surely makes a whole lot more sense, that no court action or proceedings can be instituted to enforce any claim unless notice of intention to make such a claim has first been given to the Trust.

The issuing of the writ of summons on 3 November 1983 is, in my view, institution of an action to enforce the claim, or commencement of proceedings to enforce or action to enforce the claim. It is not the "notice of intention to make a claim" required to be given under s 54(6).

Mr Justice Woods (as he then was) however was of the view that the requirement for notice under the CBASA was not a condition precedent to bringing a claim against the State. His Honour reasoned this way in Tau Lui v Paul Tohian & The State N1615:

"The Motor Vehicle (Third Party Insurance) Act enables people who have suffered injuries or have a cause of action for personal injuries or death following a motor vehicle accident to issue proceedings against the Motor Vehicles Insurance (PNG) Trust and not against the driver or owner of the vehicle alleged to have been at fault. Such a right to sue the Insurance Trust is therefore contrary to the normal principles of common law and the Wrongs Act. Therefore the right to sue the Trust is a specific right granted by statute and by statute alone. Therefore the parameters of that right and the conditions and procedures for the availment of that right must be found within the statute and nowhere else.

However the right to proceed against the State for any wrong is a right at Common Law and protected in the Constitution and covered in the Wrongs Act. The right to sue the State is not a special privilege granted by statute, it is a right that has always existed. The purpose of the Claims By and Against The State Act is to regulate and facilitate and present some conditions to a right that has always existed. Therefore the writ that has issued in July must be a valid writ. The purpose of the time provision in Section 5 of the Act is to require claimants to take action within a certain time to enable the State to properly research the basis of such a claim before the facts that gave rise to the claim get forgotten or fade in people's memory. Bearing in mind that the State is in a different position than the usual defendant in that the State is responsible for the actions of so many people over the whole nation."

With respect, Woods J overlooked the significance of the words used in the first and opening subsection of s 5 of the CBASA. It opens with the words:

"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 ...".

This is a precise replication of the provisions of s 54(6) of the MVIT Act. The Supreme Court in the Rundle case, clearly stated that these words when properly interpreted means, no action to enforce a claim against the State exists unless, notice of an intention to make a claim has first been given within the period specified. It is a condition precedent to a claim against the state. The reason for this, in my view, is the same as in the case of the MVIT under its Act.

That reason is simply that, both the MVIT and the State are themselves not necessarily responsible for that which gives rise to a claim against them. They instead become responsible or liable by reason of the law. In the case of the MVIT it is because of the MVIT Act and in the case of the State, it based on the principles of common law in some cases and in other cases based on statute. In most cases, they do not have any personal involvement and knowledge of matters giving rise to a cause of action against them. Of course, common law does not override any statutory law. Instead, under our hierarchy of laws as set out in s 9 of the Constitution, the principles of common law are subject to any relevant Act of Parliament.

It was therefore not surprising that the Supreme Court upheld an appeal against Mr Justice Woods' judgement, in the judgement referred to by Counsel, Paul Tohian, Minister for Police and the State v Tau Liu (Supra). In that judgement the Supreme Court reaffirmed the position per the Rundle case, that the requirement for notice of an intention to make a claim is a condition precedent to a claim against the MVIT and in the context of s 5 of the CBASA, for a claim against the State.

There is not yet a case on what amounts to sufficient notice under s 5 of the CBASA. But there are a good number of cases under the s 54(6) of the MVIT Act. Examples of these cases like that of Carol Laime v MVIT [1995] PNGLR 224; Wane Ume v MVIT, N1684; Paraka Nui v MVIT; unnumbered and unreported, and Stanley Tende v MVIT [1996] PNGLR 379.

In the Paraka Nui case, my brother Justice Sawong at page 12 stated the position in these terms:

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

My brother Justice Injia, expressed a similar view at page 383 in the Stanley Tende case, in these terms:

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

The only case, which differs from these views, is the judgement of my brother Justice Sevua in Cathy Robert Kolum as next friend of Salome Robert, Jamila Robert and Peter Kolum v The Motor Vehicles Insurance (PNG) Trust N1998. There His Honour, after referring to the above cases said:

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

With the greatest respect, I am not in agreement with my brother Justice Sevua. I do so on the basis that various judgements of both the Supreme and the National Courts starting with the Supreme Court decision in Rundle's case, make it clear as to the purpose of giving the trust notice within the periods specified. It is to give the MVIT early notice of an impending claim against it so that it can carry out its own investigations while the trail of evidence is still fresh to enable it to meaningfully decide whether or not to settle the intended claim. No such investigations could be carried out if no details of the kind spoken of by the other judgements are disclosed or given. Simply stating that "I give you notice that I will make a claim against you," would serve no useful purpose particularly, when MVIT or as in this case, the State is not itself responsible for that which gives rise to the possible claim against it.

Speaking of the need to give notice of one's intention to make a claim against the MVIT within any extended period, Mr. Justice Woods said in the Carol Laime case these:

"It must be noted here that such approval is not a revival of any earlier purported notice, it is an approval of an extension of time in which to give notice of intention to make a claim. This was considered in the case Rundle v MVIT [1988] PNGLR 20 and as Amet, J stated in this case "In any event what is more important is that the Commissioner granted a second extension of 28 days on 23 August 1984 to run from that date and not retrospective to extend from 2 to 15 November 1983. No Notice of any kind was served on the Trust within the further extended time." I adopt the principles that these words highlights namely that an approval of an extension of time is what it says, an approval of an extension of time in which to send a Notice of Claim, but not a retrospective approval of any communication that may have been made previously but which did not comply with s 54(6)."

The Supreme Court in Joy Kawai an infant by her next friend Kawai Takame v Motor Vehicles Insurance (PNG) Trust s 588 (judgement delivered April 1998), held that the MVIT was under no obligation to consider purported notices of intention to make a claim against it outside the prescribed 6 months and before any extension of time has been obtained. This is because, such purported notices are a nullity. Then, once an extension is obtained, notice must be given within the extended period. An extension of time does not retrospectively resurrect an earlier invalid purported notice. It also held that merely referring to an earlier purported notice in subsequent correspondence within an extended period does not amount to notice within the extended period.

In its own words the Supreme Court said at page 3 of the judgement:

"After the Commissioner granted an extension of 28 days to lodge the notice, a letter of notice ought to have been given to the Trust together with the Commissioner's approval for extension of time for another 28 days. Mr O'Connor did not do that, he merely relied on the letter of 25th February 1993 which in itself was invalid or ineffective. In any case, the Trust denied ever receiving the letter of the 25 February 1995."

This position equally applies to a case under s 5 of the CBASA, in my view. As the above and other cases have stated, an extension of time to give ones notice of intention to make a claim against the State does not retrospectively resurrect any prior invalid purported notice. Instead, it is to enable the applicant or the claimant to give notice of his intention to make a claim against the State after having lost the right to give notice within the first 6 months prescribed by the Act.

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

This I consider is very important because, the State being a large institution, it would be hard placed to take any meaningful step to assess a claim as early as much as possible before it is lodged. This could serve both ways. It gives the State an early opportunity to investigate and assess a possible claim and facilitate early settlement in cases where the State is clearly liable to the claimant. This would minimize costs and interest to both parties. It would also help reduce the number of matters entering the court system for resolution.

As noted, like under the MVIT position, a claimant against the State is required to give his/her notice in the manner prescribed. In my view therefore, unless notice in the terms described is given in the manner prescribed, there could be no notice in fact or in law against the State for the reasons already given. It is therefore, incumbent upon claimants and their lawyers to ensure that notice in these terms are given to the State in the manner prescribed in order to meet the condition precedent to one's claim against the State.

In the present case, in the absence of any evidence to the contrary, I find that the purported letter of notice dated 11th September 2001, did not provided any details to constitute notice under s 5 of the CBASA as interpreted. The enclosure of the earlier letter of the 1st of June 2000, in the letter of the 11th of September 2001 also failed to provide sufficient details to amount to a notice for the purposes of s 5 of the Act. In any case, there is no acknowledgement of either or both of the letters by the State. It was therefore necessary on the part of the plaintiff to produce evidence of having given notice in the terms and manner provided for under s 5 when the State took issue on notice. He however failed to do that, and I am left with no evidence that notice was given in accordance with s 5. In these circumstances, I find that, Mr Hewali failed to meet the notice requirements and hence a condition precedent to his claim. I therefore, find these proceedings have not been properly brought against the State. Consequently, I order a dismissal of the proceedings against the State with costs following the event.

Lawyers for the plaintiff: Public Solicitor.
Lawyers for the defendant: Solicitor General.