DC3090

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
DC. NO 123 0F 1997
BETWEEN:
PETER SAMBAI 
Complainant
AND
JOHN KOVAGU for & on behalf of Department of Works 
First Respondent
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEASecond Defendant

Wabag:  Sagu PM
 2018:  19 December 

PRACTICE & PROCEDURE – Service of the process – Claims By and Against the State Act 1996 s.5 –
Whether Section 5 can be dispensed with – Section 5 notice is mandatory a Condition Precedent- Notice precedes the Complaint. 

PRACTICE AND PROCEDURE – Section 5 of the Claims By and Against 
the State Act – Application to dismiss proceedings –– Proceedings dismissed for non-compliance with s.5 of the Claims By and Against the State Act.

PRACTICE AND PROCEDURE – Section 13 Attorney Generals Act 1989. -Whether Solicitor General has authority to settle- Solicitor General or his employed lawyer no authority to settle – Only Attorney General -  Solicitor General instructions come from the Attorney General Alone.

CASES CITED
Tohian, Minister For Police and The State v Tau Liu [1998] PGSC 25; SC566 (27 August 1998) 
Rundle v MVIT [1988] PNGLR 20
The State v Downer Construction (PNG) Ltd (2009) SC979
William Wrondimi& Others v AlphonsVokene(7.2.07) N3148,
Marinda v The State (1991) N1026
Uriap v Tokivung [2008] PGNC 119; N3444
Bokin v The Independent State of PapuaNew Guinea (2001) N2111.
Hewali v Police Force and The State (2002) N2233
William Trnka v The State (2000) N1957
Minato v  The State (1998) N1768.
Chefs Secret Limited v National Capital District Commission [2011] N4217
Peter Aigilo v The State (No 1) (2001) N2103
Simon Mali v The State (2002) SC690
Manorburn Earthmoving Ltd (2003) SC716, 
Polem Enterprise Ltd v Attorney General [2008] PGSC 9; SC911 (2 May 2008

LEGISLATION CITED
Claims by and Against the State Act.
Attorney Generals Act 1989

COUNSEL
Mr. Michael Thoke for Complainant
Ms. Naomi Balen for the Defendant 

RULING 
SAGU PM:  This is the application by the second Defendant  The  Independent State of Papua New Guinea (the Defendant State))   to dismiss the entire proceedings for  lack of Section 5 Notice  under the Claims By and Against the  State  Act 1996 (the Claims Act)
BACKGROUND
2.	There was a long list of State cases pending in this court since 1997. A call over list for Civil State matters was conducted in June 2018. The parties were encouraged to negotiate outside settlement by the court as part of judicial case management.  This was successful in part in that Parties agreed to settle most of the cases except for this case and another seven cases to which the State took issue under Section 5 of the Claims by and Against the State Act (the Claims Act).  I will write my reasoning on this case only as the same argument will be advance on the other five case which are very similar and the outcome of this decision will affect those other cases.
BRIEF FACTS
3.	Mr. Peter Sambai  (the Complainant) claimed K4,599.00 for damages  against John Kavagu in his capacity as the  Provincial National Works  Manager  Enga Province (First Defendant)  and  The Independent State of Papua New Guinea (the State) as second Defendant.  The complainant alleged that in 1993 the First Defendant without authority engaged a private excavator to construct a road on the Complainants customary land at Yakedis village Wapenamanda District.  The excavator also destroyed certain properties including cash crops, bush trees, gardens. etc. during the construction of the road.  The Complainant did not give the State his notice of intention to claim against the State  under Section 5 of  the Claims Act.
4. In 1997 the Complainant filed court proceedings against the defendants to claim damages in the District Court at Wabag in complaint number DC 123 of 1997. No Section 5 Notice has been given.   
5. The State Filed notice of Intention to defend on the 11.5.1998 but no defence has ever been filed. Since then the file had been inactive until in June 2015 the matter was listed again. 
6.  The complainant says that during the course of negotiation between Mr. Thoke of Thoke Lawyers for the Complainant and Miss. Bernadette Potane employed lawyer of the State agreed that Section 5 notice under the Claims Act and liability would not be issues.  Miss Bernadette Pato was having carriage of the case and was based at the Solicitor General’s office at Wabag at the relevant time. Based on this agreement, the Complainant filed submission for Settlement to the State.  
7.  In June 2018 the matter was placed on the Summary determination civil State list. The parties were encouraged to negotiate outside settlement. The Defendant State filed submission for Settlement on the 10.7.2018 but was subject to the approval by the Solicitor General.  
8.  The Solicitor General did not approve and took issue with the lack of Section 5 Notice under the Claims Act.  On the 5.10.2018 the State applied to have the whole of the proceedings dismissed.
9.  The complainant says the Defendant waved Section 5 requirement under the Claims Act in theexercise of her discretion and took no issue with liability. She acted in her capacity as the lawyer having carriage of the case.
SUBMISSION
10.  The Defendant/Applicant submits that Section 5 notice is mandatory and non- compliance will render the complaint void.  Her second submission is that the Solicitor General is the Chief Advocate for the State who receives instruction only from Attorney General and none other. Only the Solicitor General gives direction to his officers as he receives from the Attorney General. Employed Lawyers in the Solicitor General’s office do not have the authority to wave Section 5 Notice.  There is no evidence from the AG to the Solicitor General to wave section 5 notice on which the employed lawyer could have relied upon.  The Defendant State submits the entire proceedings should be dismissed.
11.  The Complainant/Respondent submits that the Solicitor General through his employed lawyer had waved the section 5 notice requirement and that she had the authority to do so as the lawyer having carriage of the case.  That the Defendant by his action had conceded waver of section 5 requirement by filing submission for settlement.  Furthermore, that there had been no defence filed by the State and in any event the Complainant is entitled to a judgement in his favour by default.  The Complainant submits that the court dismiss the application and enter judgement for the Complainant.
12. ISSUES
1.	Whether Section 5 Notice under the Claims By and Against the State Act can be dispensed with; and 
2.	Whether the Solicitor General through her employed Lawyer has the power to dispense with Section 5 Notice under the Claims By and Against the State Act.
3.	Does the lack of State defence veto’s Section 5 Notice requirement.
4.	Whether a default judgement can be entered for lack of defence where Section 5 is in issue.
LAW
13.  Any person who intends to make a claim against the State must first give a notice of  his intention within six months from the date of occurrence out of which the claim arose as per Section 5 of the Claims By and Against the State Act. This section reads: 
 “5. Notice of claims against the State.
(1) No action to enforce any claim against the State lies 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;     
(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”.
14.  The Claimant must give the State a written notice of his/her intention to lay a claim to the Secretary for Justice or the Solicitor General  by sect. 5(1)  within six (6) months after the occurrence out of which the claim arose before commencing litigation under Section 5(2)(a). Notice outside of the six (6) months period may be given by the approval of the Principal Legal Adviser or the court before which the action is instituted Section 5(2)(c) of the Act.
15.  There are many case authorities developed by the courts that have approved the above principal stressing the importance of giving a section 5 notice prior to the issuing of a writ even within the six month after the date of the occurrence out of which the claim arises. The courts have ruled that giving of the Section 5 notice precedes the writ as discussed in the cases below.
16.  The giving of a Notice of intention to sue is mandatory and is a condition precedent to the commencement of litigation where the prospective defendant is the State as laid down in the leading Supreme Court case of Paul Tohian and The State v Tau Liu (1998) SC566, the Supreme Court comprising of (Kapi, DCJ, Sheehan, J and Jalina, J).  The Supreme Court said that Section 5 of the Claims Act was similar to Section 54 of the Motor Vehicle Insurance Third Act where the Supreme Court has already considered this provision and ruled that the giving notice of intention to sue was mandatory condition precedent (see Rundle v MVIT [1988] PNGLR 20).

17.  The Supreme Court in Paul Tohian and The State v Tau Liu (supra) had this to say:

“The appellants filed a motion in the National Court to strike out the writ of summons for failure to comply with s 5 of the Act. The argument was advanced that the notice required is a condition precedent to the cause of action and the writ filed before the notice was given is a nullity...

The Primary Trial Judge held the view that  provision under consideration is very similar to s. 54 of the Motor Vehicles (Third Party Insurance) Act (Cap 295) (hereinafter referred to as the MVITA). The Supreme Court has considered that provision and concluded that service of notice of intention to make a claim under the MVITA is a mandatory condition precedent to the validity of any writ of summons filed against the Trust (see Rundle v MVIT [1988] PNGLR 20). The trial judge acknowledged this case in his decision but chose not to apply the same reasoning …
“the trial judge was correct in holding that the provision under consideration is similar to s. 54 of MVITA. However, he fell into error when he did not follow the reasoning in Rundle v MVIT (supra). The purpose of the requirement to give notice remains the same may be granted by the Principal Legal Adviser or the Court. It is clear to us that the notice of intention to make a claim is a condition precedent to issuing a writ of summons in all circumstances.
18.  The court further held that notice under s 5 of the Claims By and Against the State Act must be given first before the writ is issued, even if the writ is issued within six (6) months after the date of the occurrence out of which the claim arose.
19. In William Wrondimi& Others v AlphonsVokene(7.2.07) N3148, Gabi; J adopted and applied what the Supreme Court said in Tau Liu’s case (supra), that a notice of intention to make a claim is a condition precedent to a claim against the State. His Honour said a notice under s.5 of the Claims By and Against the State Actmust precede the claim. A claimant has no cause of action against the State unless the notice of claim is given.
20.  The Section 5 notice to the State is a requirement regardless of whether there will be a court litigation.  Kandakasi, J  in his judgement in the case of The State v Downer Construction (PNG) Ltd (2009) SC979 considered s.5(2)(c)(ii) of the Claims Act  held that:
“Clearly, the phrase in question does not say that the requirement for notice applies only to cases in which there is to be a court action so as to exclude cases in which there is to be no court action. Instead, it is clear that a person, who is caught out by the 6 month time limit to give notice of one’s intention to make a claim, can apply to the Attorney General or the Court before which he or she will issue proceedings for extension of time to give notice of his or her intention to make a claim. 
21.  Where there has been non-compliance with the requirements of the above Actthat is a ground for setting aside a default judgment Marinda v The State (1991) N1026. 
22.  The method of service to the appropriate persons mentioned under s 5 is mandatory: Bokin v The Independent State of PapuaNew Guinea (2001) N2111.  The Section 5 notice must be served in compliance with Section 5(3)(a) or (b). In Uriap v Tokivung [2008] PGNC 119; N3444  Lenalia J held: it is a condition precedent that the notice of claim must be served in accordance with the provisions of s.5 (3) (a) or (b) of the Claims Act. 
23.  The notice under s.5 must be in writing and it must give sufficient details of the intended claim such as time, date, and place of occurrence Hewali v Police Force and The State (2002) N2233 as per Kandakasi J.
24.  In William Trnka v The State (2000) N1957Sevua; J said that both the Attorney General and the Court before whom an action is instituted have discretion to extend the time for giving notice of intention to sue the State. According to the above case "sufficient cause" ought to be shown to have existed why notice was not given within 6 months. The example of that would be "inaccessibility" to legal advice.

25.  The reasons why notice under s.5 of the above Act must be given within 6 months is that the State should be given early warning while the evidence is fresh. It would enable the State to make its own investigation if it wanted to and depending on whatever evidence it gathers may decide to either settle or dispute an intended claim: Minato v The State (1998) N1768.
THIS CASE 
26.  In this case no section 5 notice has ever been given since 1993. The Complainant commenced court proceedings against the Defendant State in 1997. There has not been any Section 5 notice of intention to bring a claim served on the Defendant.  
27.  Section 5 of the Claims Act is clear that No Action shall be taken against the State unless the notice of intention to claim is given to the State within six (6) from the date of occurrence out of which claim arose.       
28.  It is well settled law now in this jurisdiction that notice of intention to bring an action against the State is a mandatory condition precedent under Section 5 of the Claims By and Against the State Act as seen inPaul Tohian and The State v Tau Liu(supra)The claim must be given prior to  filing any Action. A claimant has no cause of action against the State unless the notice of claim is given as was held in William Wrondimi& Others v AlphonsVokene (supra). 
29.  Section 5 notice is a mandatory condition precedent that the Claimant must satisfy prior to commencing any action in court. Non - compliance will render the proceedings incompetent.  
30.  In Chefs Secret Limited v National Capital District Commission [2011] N4217at [6]-[7] Sawong J said:
“If the Claims Act is not complied with, the Court has the discretion to strike out proceedings on its own motion. It does not have to wait for a party to apply to the Court. The Court should not take a back seat in such matters. It must be vigilant in its delivery of justice by ensuring that parties comply with stipulated, mandated procedures.
31.  Section 5 prescribes very specific mode of services in which the Notice of Intention to sue can be given and that is to the Departmental Head in charge of Justice Administration or the Solicitor General Section 5(1) and (3) by personal service.  
32.  Furthermore, the section envisages those who may be out of the six month time period  to give notice that they seek extension of time Section 5(2)© of the Act. In The State v Downer Construction (PNG) Ltd (2009) SC979 considered s.5(2)(c)(ii) of the Claims Act the Court  held that:
“it is clear that a person, who is caught out by the 6 monthtime limit to give notice of one’s intention to make a claim, can apply to the Attorney General or the Court before which he or she will issue proceedings for extension of time to give notice of his or her intention to make a claim.”
33.  Section 5 Notice under the Claims By and Against the State Act cannot be dispensed with.  Giving that notice is a mandatory condition precedent requirement.  In this case the Complainant failed to give the Section 5 notice and therefore this proceeding is incompetent to proceed.

34.  The proper course to take would have been for the Complainant to seek extension of time under section 5(2)(c)(ii). He could have applied to this court or the Attorney General.  I failed to understand that course was not followed.  
35.  I now turn to the second issue.  Does the Solicitor General or through its employed lawyer who has carriage of the case have the authority /discretion to wave the Section 5 Notice requirement.
FUNCTIONS OF THE SOLICITOR GENERAL
36.  In addressing this issue I ask the question what is the Function of the Solicitor General.  The office of the Solicitor General is established under Section 10 of the Attorney Generals Act 1989. The Attorney General appoints the Solicitor General under section 11 of the Act.
37.  The primary function of the Solicitor General is to appear as an advocate for the State in matters coming before the courts in PNG.  In exercising this function he is under obligation to accept instruction only from the Attorney-General and none other by virtue of Section S. 13 Attorney-General Act 1989.
38.  The previous position was that the Solicitor General had the power to enter into outside settlement  as per Peter Aigilo v The State (No 1) (2001) N2103Simon Mali v The State (2002) SC690.  However, in 2003 The Supreme Court (Amet CJ, Kapi DCJ and Los J in  The State v Manorburn Earthmoving Ltd (2003) SC716, held that the Solicitor-General has no power to settle cases except on the absolute instructions of the Attorney-General. The Supreme Court in handing down that decision, the decision in Aigilo and Mali were held to have been wrongly decided.  The Court in Manoburn held that the Solicitor-General is appointed by and therefore answerable to the Attorney-General under Section 11 of the Attorney-General Act. The Court focussed on Section 13 (function of Solicitor-General) of the Act, which states:
“(1) The primary function of the Solicitor-General is to appear as an advocate for the State in matters coming before the courts in Papua New Guinea.
(2) In the exercise of his function under Subsection (1), the Solicitor-General shall accept instructions only from the Attorney-General. [Emphasis added.]
39.   The Court observed:
This provision indicates the nature and the scope of the functions of the Solicitor-General. Its main function is to "appear as an advocate for the State in matters before the courts". This is a specific and limited function. In exercising this function, the Solicitor-General shall accept instructions from the Attorney-General (s 13(2)).
In practice, where the State is a party in any litigation before the courts, the Solicitor-General may act as an advocate if instructed to do so by the Attorney-General in accordance with Section 13(2) of Attorney-General Act. Where the Solicitor-General is instructed, he must act in accordance with the instructions of the Attorney-General, such as to settle or not to settle a matter.
40.  The Manorburn case stands for the proposition that the Attorney-General – not the Solicitor-General – has the authority to settle cases out of court. If the Solicitor-General wishes to enter into a deed of settlement, this can only be done on the instructions, ie approval, of the Attorney-General. The Solicitor-General cannot act independently. The interpretation of the Act in Manorburn was thus the opposite of that arrived at in Aigilo and Mali. The Manoburn case discussed extensively the Attorney General Act and the (reason whcy I follow Manoburn.
41.  The Supreme Court in Polem Enterprise Ltd v Attorney General [2008] PGSC 9; SC911 (2 May 2008 while acknowledging the opposing views of the above cases that which is held in Aigilo and Mali  but agreed  with Manoburn  in holding that the  respective roles and functions of the Solicitor-General and the Attorney-General were authoritatively settled by the Supreme Court in Manorburn. 
42.  It is clear in this case that the Solicitor General does not have the authority to settle cases without the expressed instruction from the Attorney General.  There is no evidence that the Solicitor General had agreed to wave the requirement of Section 5 notice. Miss. Bernadette Potane did not have the authority to enter into agreement to forego Section 5 notice and admit liability.  Even if there was evidence to that effect it was void from the beginning given that Section 5 notice is a mandatory condition precedent which cannot be dispense with.  
43.  Mr. Thoke of Counsel for the Complainant submitted that Miss Bernadette had carriage of the case and she therefore had the authority to propose settlement. He submits that in the Absence of Statutory authority in PNG, common law principles should apply. He argues that in common law the lawyer who has the carriage of the case has authority to enter into negotiation on behalf of client and cited OS No.35 of 1990 Motor Vehicles Insurance (PNG) Trust –v- Kulubala Salem unreported.  In this case the Defendant had changed two lawyers.  The first lawyer Mr. Joseph Pakauof  Pakau Lawyers representing the Defendant accepted the Motor vehicle Insurance offer to settle at K10,000.  The Defendant changed lawyers.  The Defendants new lawyer K10,000 and made new offers for settlement. The question was did Mr. Pakau had the authority to settle at K10,000.00 and the court ruled he did.
44.  Firstly, the above case discusses the authority of a lawyer in private representation to settle.  However, in this case it is the State.  All cases in which the State is a Party is regulated by Statute Law.  There is no deficiency to which the Common law can assist. The Claims by and Against the State Act 1996 provides for the practice and process in which the state can be taken to court in which Section 5 notice is mandatory.  The Solicitor General is the Chief Advocate in State Litigation matters under the Attorney Generals Act 1989. The Solicitor General acts only upon the instruction from the Attorney General and none other.  OS No.35 of 1990 Motor Vehicles Insurance (PNG) Trust –v- Kulubala Salem does not apply in this case. Miss Bernadette Potane was a officer within the office of the Solicitor General based in Wabag.  There is no evidence of her entering into an agreement to forego Section 5 notice and admit liability but even if there was she had no authority.  It is clear law that Section 5 notice is condition precedent and cannot be dispense with.

CONCLUSION
45.  I conclude by answering the above questions in the following manner:-
1.	Whether Section 5 Notice under the Claims By and Against the State Act can be dispensed with; and 
Answer:      NO.  Section 5 notice cannot be dispensed with.  The notice is Condition       
Precedent it precedes the complaint.

2.	Whether the Solicitor General through her employed Lawyer has the power to dispense with Section 5 Notice under the Claims By and Against the State Act.
Answer:      NO . The Solicitor General does not have authority to settle.  Her instructions    
                    Only come from the Attorney General and none other.

3.	Does the lack of State defence veto’s Section 5 Notice requirement.  

Answer:     NO. Lack of Section 5 notice renders the proceedings void from the beginning.

4.	Whether a default judgement can be entered for lack of defence where Section 5 is in issue.                
Answer :   No. Lack of Section 5 notice renders the proceedings void from the beginning

46.  The Formal Orders of the Court are:-
		1.	The Compliant No. DC.123 of 1997 is dismissed in its entirety for lack of                           .                                    Section 5 Notice of the Claims By and Against the State Act.
                        2.          Parties to meet own costs.

_____________________________________
Office of the Solicitor General :Lawyer for the  State the 2nd Defendant 
Michael Thoke Lawyers:   	Lawyer for the Respondent/Complainant