National Court of Papua New Guinea

(b0;҈& the Stor-General

(2) &160; #160; A A notice thir this section shall be given &;

(i) ټ&#<60; e>the Princirincipal Legal Adviser; or

(ii) &##160;; the >the court ourt before which the action is instituted, on sufficiense behown,ws

(3)  & A60; A notice under nder Subsection (1) shall be given by –

(a) personal servnce oofan er icer referred to in Subsection (1); or

(b) ټ&#leavingaving the dthe document at fficehe of withpersoarently occupying the position of personal secretarretary to y to that that officofficer beer between the hours of 7.45 am and 12 noo 1.00nd 4.06 pm, or suor such otch 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).

(emphasis added).

This Section is in similar terms as Section 54(6) of the Motor Vehicles (Third Party Insurance) Act, Chapter 295 and was discussed and decided by the Supreme Court in Graham Rundle v. Motor Vehicles Insurance (PNG) Trust (No. 1) [1988] PNGLR 20. Section 54(6) reads:-

“No action to enforce any claim under this section lies against the Trust unless Notice of Intention to Make a Claim is given by the Claimant to the Trust within a period of six months after the occurrence out of which the claim arose, or within such period as:-

(a) the Commissioner; or

(b) oue Cbeft e whrch the acti action is instituted,

on sufficient cause being shown, allows.”

This section is exactly in the same terms as the wording in Section 5(1) & (2e onlor dince I notice in t in these hese two stwo sections of the respective Acts is that in Section 54(6), it does not say that the “notice” should be in writing. Whereas in Section 5(1) of Claims By and Against the State Act, the “notice” must be in writing, which is an improvement to the situation in Section 54(6) provisions. The purpose of Section 54(6) was explained in Rundle’s case by Bredmeyer J at p. 23 is to give the Trust early notification of the Claim so that it can make its own enquiries as to the driver, owner, witnesses, police accident reports and insurance certificates. Section 54(6)esigned to give the Trust pust prior notice of the claim within six months.

I would apply the same reasoning here and say that the purpose of Section 5(1) & (2) of Claims By and Against the State Act, 1996, is to give the State early notification of the claim so that it can make enquiries. Obviously enquiries as to, as in this case, the raid itself, the policemen involved, the properties damaged or destroyed their value, the witnesses and whether the action is time barred. Section 5(1) & (2) is therefore designed to give the State and its agents or servants sufficient prior notice of the claim within six months. I also make similar observations as those made by Bredmeyer J in Rundle’s case that, fiection 5(2) No2) Notice of Intention to make a claim is mandatory by saying:

“(2) & A notice under this this section shall ven –

(60; &#16...../...

(

(c) ـ within shin such further pher period as –

(i) 0;;&#rincipal Leal Legal Adal Advisor; or

(ii) &##160& th0; the; the Cour Cour Court before which the action is instituted,

on sient being shown, allows.”

In the same came case, ase, Amet J (as he then was) then discussed the proper application and meaning of Section 54(6) (a) & (b) which are in similar terms to Section 5(2)(b)(I) & (ii) and said at page 29 that:

“O the purposes for gfor giving early notice must be to enable parties to make enquiries before any further action or proceedings onsidered. If subs. (b) is construed as it is drafted, to require the action to have been ieen instituted before any application for extension of time to give notice can be made, than it can defeat 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. (b) as I have interpreted it, the words “to be” should be read in after “the action is” and before instituted to read:

(b) ټ the Coue Court before which the action is to be instituted. This surely makes a whole lot more sense, that no Coction or proceedings can be instituted to enforce any claim unless notice of intention to m to make a claim has first been given to the Trust.”

I therefore adopt and apply the same reasoning and meaning given bay their Honours by interpreting Section 5(1) and (2) (a) & (c) of the Claims By and Against the State Act, 1996.

In doing so, I find the present Claimant/Plaintiff has not given the mandatory prerequisite notice to the State. Therefore no action will lie against the State.

The second point I wish to make is that a notice under Section 5(1) and (2) is different from Writ of Summons. The notice to the State under Section 5(1) & (2) is a notice to the State of an intention to make a claim; the Writ of Summons is the claim itself. The two are not the same although they provide the State with the same information but their purposes are different. That is because without the notice the State would not be in a position to make enquiries to either confirm or deny the claim or allegations.

The plaintiff may say, but he is not time barred. Section 21(2) of the Claims By and Against the State Act, 1996 says:

“(2) e upo coming intg into oper operation of this Act no action to enforce a claim against the State has been commenced in respect of an occurrence which took place before that coming not operation, notice shall be given in accordance with Section 5(1) within a period of six months after that coming into operation, or within such further period as –