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Wasis v Pebo [2008] PGNC 273; N4515 (14 November 2008)

N4515

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 472 OF 2006

JOHN WASIS, VINCENT POMBO, JAMES RAPULA & OTHERS
Plaintiffs

V

BRIAN PEBO, ADMINISTRATOR,
SOUTHERN HIGHLANDS PROVINCE
First Defendant

SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT
Second Defendant

MARGARET ELIAS, SECRETARY,
DEPARTMENT OF PERSONNEL MANAGEMENT
Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Cannings J
2008: 12, 14 November

RULING

PRACTICE AND PROCEDURE – civil claim against a provincial government and the State – notice requirements of provincial and national legislation – Claims By and Against the State Act 1996, Section 5 – Claims By and Against the Southern Highlands Provincial Government Act, Section 4.

Employees of a provincial government commenced proceedings against four defendants – the provincial administrator, the provincial government, the Secretary for Personnel Management and the State – claiming unpaid and underpaid entitlements and damages for negligence. The defendants moved a motion to strike out the proceedings in their entirety on the ground that the notice requirements of the laws regulating claims against the provincial government and the State had not been complied with. The defendants argued that no notice at all of intention to make claims against the provincial administrator and the provincial government were given; and, though notice was given of an intention to make claims against the Secretary for Personnel Management and the State, it was given more than six months after the occurrence out of which the claims arose and therefore failed to comply with Section 5 of the Claims By and Against the State Act 1996.

Held:

(1) The notice requirements of the Claims By and Against the Southern Highlands Provincial Government Act are in addition to those of the Claims By and Against the State Act.

(2) As no notice was given to the provincial administrator, Section 4 of the provincial law was breached and the claims against the first and second defendants were dismissed.

(3) Section 5 of the Claims By and Against the State Act requires that notice of an intention to make a claim be made within six months "after the occurrence out of which the case arose".

(4) In this case, the plaintiffs' claims arose out of ongoing, regular occurrences – the alleged negligent failure of the third and fourth defendants to ensure that the plaintiffs were paid their lawful, fortnightly entitlements – and those occurrences continued up until (and beyond) the date on which notice was given under Section 5.

(5) Section 5 was complied with. The claims against the third and fourth defendants remain intact.

Cases cited

The following cases are cited in the judgment:

Casper Kondi v Provincial Administrator, Department of Western Highlands Province (2004) N2755
Paka Kuli v Southern Highlands Provincial Government, WS 43 of 2007, 28.08.08
SCR No 1 of 1998; Reservation Pursuant to Section 15 of the Supreme Court Act (2001) SC672
Wellcross Engineering Ltd v Yawari, Pebo, Southern Highlands Provincial Government and the State WS 959 of 2006, 21.05.08

NOTICE OF MOTION

This was a motion to dismiss the proceedings commenced by the plaintiffs.

Counsel

S Liria, for the plaintiffs
S Japson, for the first and second defendants
T Tanuvasa, for the third and fourth defendants

14 November, 2008

1. CANNINGS J: This is a ruling on a motion for dismissal of the proceedings, which has been moved in the following circumstances. The plaintiffs in this case are 35 employees of the Southern Highlands Provincial Government. Many of them are community health workers. They say that they have been underpaid their lawful entitlements over many years. In April 2006 they filed a writ in the National Court, claiming what they say is due to them. The total amount of the alleged underpayments is about K900,000.00. On top of that they are claiming a similar amount in special damages. They say that they have been forced to fly to Port Moresby to pursue their claims with the Department of Personnel Management. They are claiming for airfares, accommodation, meals and other expenses connected with their trips to Port Moresby. They are also claiming general damages for distress and hardship. They have joined four defendants:

1. the Provincial Administrator;
2. the Southern Highlands Provincial Government;
3. the Secretary of the Department of Personnel Management; and
4. the State.
   

2. The plaintiffs' cause of action appears to be negligence (particularly by the first and third defendants) and breach of the right to protection from unjust deprivation of property under Section 53 of the Constitution.

3. The first and second defendants have filed a notice of motion to dismiss the entire proceedings, on two grounds:

• failure to comply with the notice requirements of the Claims By and Against the Southern Highlands Provincial Government Act; and
  
• failure to comply with the notice requirements of the Claims By and Against the State Act.
  

4. That is the motion I am now ruling on. The third and fourth defendants support the motion. The plaintiffs oppose it.

HAVE THE PLAINTIFFS FAILED TO COMPLY WITH THE CLAIMS BY AND AGAINST THE SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT ACT?

5. Section 4 of this provincial law requires that a person wishing to enforce a claim against the Provincial Government must give notice of his or her intention to make the claim within six months after the occurrence out of which the claim arose. Notice has to be given to the Provincial Administrator.

6. Mr Liria concedes that no such notice was given to the Provincial Administrator but argues that that doesn't matter as notice was given to the Attorney-General under the Claims By and Against the State Act. He relies on the decision of the Supreme Court in SCR No 1 of 1998; Reservation Pursuant to Section 15 of the Supreme Court Act (2001) SC672: provincial governments are part of "the State". If you want to sue a provincial government you must give notice to the State under Section 5 of the Claims By and Against the State Act. Mr Liria has not taken issue with the existence of the Claims By and Against the Southern Highlands Provincial Government Act. A copy of this law is annexed to the affidavit of the present Provincial Administrator, William Powi, filed on 6 October 2008. Also annexed are copies of the certification of the law by the Speaker of the Provincial Assembly, dated 31 August 2000, and its approval by the Minister for Provincial and Local-level Government Affairs, dated 21 November 2000. In Paka Kili v Southern Highlands Provincial Government, WS 43 of 2007, 28.08.08, the plaintiff took issue with this law's existence and Hartshorn J concluded that there was insufficient material before the court for judicial notice to be taken of it. However, in the present case, no issue was taken with the law's existence and there is sufficient supporting documentation before the court. So I have decided to take judicial notice of it.

7. The question then arises whether the notice requirements of the provincial law are in addition to those of the Claims By and Against the State Act. If you want to sue the Southern Highlands Provincial Government, do you have to give two notices: one to the Provincial Administrator and one to the Attorney-General (or Solicitor-General) under the Claims By and Against the State Act?

8. I touched on this issue in Casper Kondi v Provincial Administrator, Department of Western Highlands Province (2004) N2755. I pondered over the question of whether provincial laws such as Claims By and Against the Southern Highlands Provincial Government Act were constitutional. I noted that the question had not been authoritatively dealt with by the National Court or the Supreme Court. So I presumed for the purposes of that case that the Claims By and Against the Western Highlands Provincial Government Act was constitutional and that it was necessary for the plaintiff to comply with it. The plaintiff had to give two notices. Hartshorn J reached the same conclusion in Wellcos Engineering Ltd v Yawari, Pebo, Southern Highlands Provincial Government and the State WS 959 of 2006, 21.05.08. (Interestingly, in that case, unlike in Kili's case, no issue was taken with the existence of the provincial law.) His Honour was faced with the same argument Mr Liria has put in the present case: giving notice under the Claims By and Against the State Act is sufficient. His Honour concluded:

I reject the argument that as notice was given pursuant to the Claims By and Against the State Act to the Solicitor-General, notice of intention to make a claim did not need to be given under the Claims By and Against the Southern Highlands Provincial Government Act. The Southern Highlands Provincial Government is named as a separate party in these proceedings.

9. I agree with Hartshorn J. Two notices have to be given. Here, no notice was given to the Provincial Administrator. It was a condition precedent to the issuing of the writ against him and the Provincial Government. The whole of the claim against the first and second defendants must be dismissed.

HAVE THE PLAINTIFFS FAILED TO COMPLY WITH THE CLAIMS BY AND AGAINST THE STATE ACT?

10. Section 5 of this Act 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 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).

11. Section 5 indicates who has to be given notice, and where, how and, most importantly, when it must be given: "within a period of six months after the occurrence out of which the claim arose".

12. Mr Tanuvasa, for the third and fourth defendants, concedes that notice in writing was given to the Attorney-General in November 2005 – so the who, where and how requirements were met. But he argues that the 'when' requirement was breached. The plaintiffs are claiming unpaid entitlements going back to the 1990s, so these are old claims and notice has been given far too late.

13. Indeed, these are very old claims. According to the statement of claim, some go back to 1990. Most of the plaintiffs are claiming various amounts, for example, for "unpaid annual higher duty allowance at CHW [Community Health Worker] grade effective from 1990 onwards". However, as the plaintiffs' claims arise out of ongoing, regular occurrences – the alleged negligent failure of the third and fourth defendants to ensure that the plaintiffs were paid their lawful, fortnightly entitlements – and those occurrences have allegedly been continuing up until (and beyond) the date on which notice was given under Section 5, I am satisfied that Section 5 has been complied with. Furthermore, there is evidence that the plaintiffs were pursuing their claims with the Provincial Administrator and the Secretary for Personnel Management throughout 2005. As it is the alleged negligent conduct of these officers on which the plaintiffs' cause of action is based, I am satisfied that those "occurrences" continued throughout 2005. The notice that was given to the Attorney-General in November 2005 was given within the required six-month period. Section 5 of the Claims By and Against the State Act was complied with. The claims against the third and fourth defendants will therefore remain intact.

ORDER

(1) The proceedings against the first and second defendants are dismissed in their entirety.

(2) The proceedings against the third and fourth defendants remain intact.

(3) The parties will bear their own costs.

(4) Time abridged.

Judgment accordingly.
_____________________________

Liria Lawyers: Lawyers for the Plaintiffs
Jerry Kiwai Lawyers: Lawyers for the 1st & 2nd Defendants
Solicitor-General: Lawyer for the 3rd & 4th Defendants