DC752 

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

CL 94 of 2007

BETWEEN

MARK KARAPETU
Complainant

AND

THE AUTONOMOUS BOUGAINVILLE GOVERNMENT
First Defendant

AND

ADMINISTRATION OF BOUGAINVILLE
Second Defendant

Buka: B Tasikul, SM

2007: November 13

Cases Cited

Unreported Judgment SC 672

References

Claims By and Against the State Act, s. 5

Counsel

For the Complainant - Mr. Thomas Tamusio of Tamusio Lawyers
For the Defendants - No Appearance

13 November 2007

RULING

B Tasikul, SM: This is a complaint whereby a Mark Karapetu of Buin is suing the Autonomous Bougainville Government and the Administration of Bougainville for unpaid services rendered by the defendant. This was in relation to accommodation and food supplied to the ex-combatants (students) from Buin.

2. Mr. Tamusio of Tamusio Lawyers representing the plaintiff while nobody appeared for both defendants despite been served with the summons.

3. Because the matter involved the Autonomous Bougainville Government, the court in its own initiative pointed out to the counsel of the plaintiff to address the court on issue whether the Autonomous Bougainville Government is also subject to the Claims By and Against the State Act, 1996. This is because Bougainville is now an Autonomous Region with some powers and functions have been transferred to the Autonomous Bougainville Government.

4. Mr. Tamusio submitted that in the Supreme Court reference No. 1 of 1998, Reservation Pursuant to Section 15 of the Supreme Court Act, Unreported Judgment SC 672, the word "state" also include Provincial Government, therefore the Autonomous Bougainville Government is no exception as most powers and functions are still with the National Government.

He submitted that to comply with section 5 of the Claim By and Against the State Act, 1996, a copy of the notice was served on the Acting Chief Administrator. A copy was tendered in court. 

5. I agree with the counsel that the definition of State in the Act also includes the Autonomous Bougainville Government. However, the question is: Is it proper for the notice under section 5 of the Claims By and Against the State Act 1996 to be served on the Chief Administrator’s office?

6. Section 5 of the Act states:

"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.

(a) the Departmental Head of the Department responsible for  Justice matter

(b) the Solicitor - General

7. The Departmental Head referred to the Act, in my view referred to the Attorney General of the Department of Justice. With the Autonomous Bougainville Government Constitution in operation, can we say that the office of the Chief Administrator is responsible for the notice against the Autonomous Bougainville Government if the government is been sued?

8. The Autonomous Bougainville Government is a creature of the National Constitution of Papua New Guinea whereby most of its powers and function are deprived from the National Government. Some of its powers and functions have not been transferred as yet. The Chief Administrator’s office is the head of the Bougainville Public Service which only deals with public services matters. It is my view that it is not responsible for justice matters. Even though the Autonomous Bougainville Government has legal capacity in law to be sued, it does not mean that, service of notice as stipulated under section 5 of Claims By and Against the State Act, 1996 be served on the Administrator’s office. 

9. The power and function in relation to the Administration of Justice still remains with the National Government. Therefore if the Autonomous Bougainville Government is to be sued than to comply with section 5 of Claims By and Against the State Act, notice must be served on the Attorney General’s office or the Solicitor’s General.

10. I therefore, find that the Plaintiff has not complied with section 5 of the Act and I therefore have the matter dismissed.

For the Complainant - Mr. Thomas Tamusio of Tamusio Lawyers
For the Defendants - No Appearance