SC2766
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA 159 OF 2022

BETWEEN:

PAUL MARIS
Appellant

AND:

DR ERIC KWA as the Secretary
of Department of Justice & Attorney General
and the Principal Legal Adviser of the
National Executive Council
Respondent

WAIGANI:  KANDAKASI DCJ, KANGWIA J, LOGAN J
25 FEBRUARY 2025

ADMINISTRATIVE LAW – where the appellant appeals against a decision of the National Court to dismiss application for extension of time under Claims By and Against the State Act  – whether ss 147A to 147E of the Civil Aviation Act 1988 mean the National Airports Corporation (NAC) is the State for the purposes of the Claims By and Against the State Act – whether the NAC meets the definition of State as set out in PNG Power Ltd v Augerea [2013] PGSC 53 – whether prejudice would be suffered by granting extension of time to give notice to the State – held:  the NAC is the State for the purpose of the Claims by and Against the State Act 1996 - appeal allowed. 
 
Facts:
 
The dispute arises from the termination of a contract for employment of Mr Paul Maris (the appellant).

The appellant was an employee of the National Airports Corporation Ltd (NAC) until 2019. At the end of September 2019, the appellant commenced proceedings against NAC for breach of policy. This culminated in a letter of 13 January 2020 in which the NAC maintained a decision to terminate the appellant’s employment.

The appellant commenced proceedings in the National Court to seek an extension of time in which to file a notice for a claim upon the NAC for damages for wrongful termination of employment.

In that National court case, OS 66 of 2022, the primary judge held that the NAC was not the State under s 5 of the Claims By and Against the State Act 1996. 

The appellant appeals that decision to the Supreme Court.

Held:
1.	Appeal allowed. 
2.	The NAC is the State for the purposes of the Claims By and Against the State Act 1996.
3.	Pursuant to s 16(c) Supreme Court Act 1975, the appellant is granted under ss 5(2)(c)(1) and (2) of the Claims by and Against the State Act 1996 an extension of time for a period of 14 days from today within which to give notice to the State.   

Cases cited
Audambui and Post PNG Limited [2014] N5772
Mineral Resources Development Limited v Sisimiut [2010] SC1090
PNG Power Limited v Augerea [2013] SC1245
Rawson Construction Limited v Department of Works [2005] SC777

Counsel
Mr S Gor, for the appellant 
No appearance for the respondent

1.	BY THE COURT: Mr Paul Maris was until 2019 an employee of National Airports Corporation Limited (NAC).  NAC is a company incorporated under the Companies Act 1997.  However, as will be seen, it is a company which is regulated by provisions in the Civil Aviation Act 2000 inserted by amendment in 2013.  
2.	Mr Maris’ employment is governed by a contract made on 16 August 2017.  That provided for a period of employment for 3 years.  In July 2019 Mr Maris was promoted although still employed under the 2017 contract to the position of head of aviation security compliance.  Commencing at the end of September 2019 there occurred proceedings within the NAC relating to an alleged breach of the NAC’s policy by Mr Maris.  That culminated in a letter of 13 January 2020 on which the NAC maintained a decision to terminate Mr Maris’ employment.  
3.	That termination occurred at least seven months short of when the contract would have come to a natural end if not renewed.  Mr Maris was paid, what the NAC considered to be, his entitlements on the basis of a termination for cause.  Thereafter by various means Mr Maris sought to have the NAC reconsider that termination.  He also lodged a complaint with the Department of Labour and Industrial Relations in an endeavour without litigation to have his termination overturned.  That culminated finally in a letter in 2021 in which the NAC, notwithstanding correspondence from the Department of Labour and Industrial Relations, maintained its decision to terminate the cause.  
4.	Mr Maris took the view on advice that before instituting proceedings in respect of damages for wrongful termination, it was necessary for him to give a notice under s 5 of the Claims By and Against the State Act 1996.  By that stage a six-month period for which s 5(2), prima facie provides, had expired.  So, it was necessary for him to apply to the National Court for an extension of time within which to serve such a notice.  He did this.  In the course of the hearing of his application for that extension, the learned primary judge raised, of her Honour’s own motion, an issue as to whether the NAC was the State for the purposes of the Claims By and Against the State Act 1996.   
5.	The upshot was that, for reasons which were reserved and later given, the primary judge came to hold that the NAC was not the State.  As a consequence the finding was that the application under s 5(2)(c)(1) and (2) of the Claims By and Against the State Act 1996 was misconceived and should be dismissed.  Influential if not determinative in that conclusion was a reference by the primary judge to the definition of “State” in s 1 of the Attorney General (Amendment) Act 2013 and in turn to the functions of the State Solicitor as provided for by s 13B of the Attorney General (Amendment) Act 2013.
6.	The view seems to have been taken by the primary judge that because the NAC did not fall within that statute’s definition of the State against the NAC, so it could not be the State for the purposes of s 5 of the Claims By and Against the State Act 1996.  Having reached that conclusion, the primary judge did not consider the merits of the submissions which have been made on behalf of Mr Maris as to why it was that he should be granted an extension of time under s 5.  
7.	Mr Maris has appealed against the order dismissing his application under s 5 for an extension of time.  In so doing he has named as the respondent, as he did as defendant in the National Court, the Secretary of the Department of Justice and Attorney General and Principal Legal Adviser of the National Executive Council.  He did so obviously enough because that official has the interest in the service of notices under s 5 of the Claims By and Against the State Act 1996.  Although that respondent was given notice of today’s hearing and further of the submissions in writing filed on behalf of the appellant, there has been no appearance by or on behalf of that official.  We are satisfied though that there has been an opportunity to be heard extended and that it is appropriate nonetheless to proceed to the hearing and to the determination of the appeal.
8.	The principles relevant to the determination of whether a particular body corporate does or does not represent the State were the subject of detailed consideration by the Supreme Court in PNG Power Limited v Augerea [2013] PGSC 53; SC 1245 (PNG Power).  Whilst the case concerned principally what constitutes the State for Constitutional purposes the Court took the opportunity in PNG Power to advert also to the State for the purposes of s 5 of the Claims By and Against the State Act 1996 in a passage which commences at [60].  
9.	For present purposes it is only necessary to advert to [68] and also [73] in which the court stated:
68.	Notwithstanding the differences in opinions as noted above, all of the above authorities and others agree that, all entities established by the National Government or a provincial government or a local level government, with some form of government control and ownership and funding is a governmental body. This should be the test to determine if an entity or a body is a governmental body. To this, we add the purpose for which the entity has been established. If it is for an important public purpose, the kind that traditionally were the function of welfare states governments is in the case of telecommunications, electricity, public transport, water and sanitation, health and education, this would render the entity a governmental body. This would be the case even if the entity appears to have private corporate status and structure.
73.	It should logically follow therefore that, all governmental bodies which includes corporations like, Air Niugini, Telikom (PNG) Limited, Eda Ranu and the Water Board, and of course PNG Power are tasked with the duty and responsibility to provide a critical service. We repeat the objective of their corporatization was to make them more efficient and effective and not necessarily be profit driven. This was so that an efficient, effective and reliable service can be provided to our people in their respective critical areas at less cost. When it comes specifically to supporting the constitutional institutions and constitutional office holders, what this means is that, these corporations must have to ensure that these important constitutional entities are served in a way that is not interrupted. Contrary to the submissions of learned counsel for PNG Power, when it comes to the Judiciary and the Judges, we repeat they provide an important and sometimes very critical service, for instance, a person after having committed a crime might seek to leave the country, or a child is about to be taken out of the country or some action or inaction threatening human life is about to occur. Only the Courts can order a stop, or issue such orders as it considers necessary for the safety and protection of life and property. An interruption to the supply of electricity, water and telephone services can and has in a number of cases, prevented the Courts and Judges from sitting in Court, hearing and arriving at timely decisions. This has resulted in much harm and damage being done, including a build up in the Courts’ lists or backlog as is now known.
10.	After PNG Power there have been a number of applications of the principles discussed in that case in the National Court, notably in Audambui and Post PNG Limited [2014] N5772; and Mineral Resources Development Company Limited v Sisimolu [2010] SC 1090.
11.	Suffice it to say in itself the fact that a company is incorporated under the Companies Act 1997 does not mean that that legal entity cannot be a State for the purposes of s 5 of the Claims By and Against the State Act 1996.  Instead, it is necessary to enquires to the ownership and control of the entity concerned and further the nature of the function it undertakes.  It is in this regard that an analysis of the Civil Aviation Act 1988 becomes of critical importance.  Sections 147A through to and including 147E are relevant:  
147A.	INCORPORATION OF NATIONAL AIRPORTS CORPORATION LTD., BY MINISTERS. 
(1)	A company has been incorporated pursuant to Section 132 under the Companies Act 1997 for the purpose of owning, operating, managing and maintaining airports and providing all related services in Papua New Guinea.
(2)	The company referred to in Subsection (1) is called “National Airports Corporation Ltd.” (NAC) or, subject to the approval of the Registrar of Companies, such other name as the Ministers and the shareholders may decide from time to time.
(3)	In furtherance of its principal airport function under Subsection (1), the functions of NAC shall include any function as determined by the shareholders and included in its constitution approved by the Registrar of Companies. 
(4)	The board of directors of the National Airports Corporation Limited shall have seven members comprising –
(a)	the Managing Director of National Airports Corporation, ex officio;  and
(b)	the Departmental Head of the Department responsible for transport matters or his nominee, ex officio;  and
(c)	the Departmental Head of the Department responsible for treasury matters or his nominee, ex officio;  and
(d)	one independent director representing the aviation industry nominated by the industry;  and
(e)	one independent director representing the business community nominated by the Papua New Guinea Chamber of Commerce and Industry;  and
(f)	one independent director representing the tourism industry nominated by the Tourism Promotion Authority;  and
(g)	one independent director representing the shareholders being a person who has sufficient experience and knowledge in the aviation sector and who has a high reputable standing in the business community and can contribute to the delivery of aviation services in Papua New Guinea. 
(5)	The Minister shall advise the industry organisations or body referred to in Subsection (4)(d), (e) and (f) in the event of a vacancy or where a vacancy is likely to occur in the position of a director representing the particular industry or body. 
(5A)	Upon receipt of the advise of vacancy, an industry organisation or body referred to in Subsection (4)(d), (e) and (f) shall provide to the Minister, a list of three persons nominated for appointment as a director and the alternate, within 21 days or such other period as determined by the Minister. 
(5B)	In the case where an industry organisation or body referred to in Subsection (4)(d), (e) and (f) is unable for any reason to provide a list of three persons to the Minister within 21 days, the Minister shall take reasonable steps to consult widely with industry participants, as he considers appropriate. 
(5C)	The Minister shall submit to the National Executive Council a list of directors and the alternates under Subsection (4)(f), (g) and (h) in accordance with the procedures for appointment and revocation of directors of statutory authorities under the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004. 
(6)	No person other than the Minister and the Minister responsible for finance matters shall hold any shares in the company or be entitled to exercise effective control of the company but nothing in this subsection shall prevent the Minister and the Minister responsible for finance matters, acting jointly, from disposing of all or part of the shares in or business of the company to any other person on such terms and conditions as they think fit. 
(7)	No director or employee of the company shall be personally liable for any liability of the company, or for any act done or omitted by the company, or by the chief executive of the company or  any other employee of the company in good faith in pursuance or intended pursuance of the functions or powers of the company.
(8)	The  term of appointment of all independent directors to the Board of NAC shall be four years. 
(8A)	A minimum period of four years separation shall apply before a person shall be available for reappointment as a director unless the Minister waives this requirement, in the interest of NAC. 
(9)	The company, the board, each director, and each shareholder of the company shall have the rights, powers, duties, and obligations set out in the Companies Act 1997 and the company’s constitution approved by the Registrar of Companies consistent with the objects and functions of the NAC as set out in this Act.

147AB.	CHAIRMAN AND DEPUTY CHAIRMAN. 

(1)	The Chairman of the Board shall be appointed by the National Executive Council from among the independent members appointed under Section 147A(4)(d), (e), (f) and (g). 
(2)	The Deputy Chairman shall be appointed from among the independent directors appointed under Section 147A(4)(d), (e), (f) and (g) by the members of the Board.
147AC.	LEAVE OF ABSENCE OF DIRECTORS OF THE BOARD. 
(1)	A director shall in writing notify the Minister that he will not be available for a scheduled meeting of the Board.
(2) 	The Minister may grant leave of absence to a director on such terms and conditions as the Minister determines.
(3)	Unless the Minister grants leave of absence to a director under Subsection (2), the director shall be deemed absent from the scheduled Board meeting.
(4)	A director who is absent from three consecutive scheduled meetings of the Board shall be dismissed by the Minister.

147AD. 	RESIGNATION OF INDEPENDENT DIRECTORS. 
An independent director under Section 147A(4)(d), (e), (f) and (g) may resign from office by written notice to the Minister.

147AE.	VACATION OF OFFICE BY INDEPENDENT DIRECTORS. 
(1)	If an independent director under Section 147A(4)(d), (e), (f) and (g) - 
(a)	dies or is permanently incapable of performing his duties;  or
(b)	resigns from office;  or
(c)	is absent from three consecutive meetings of the Board, without obtaining special leave of absence granted by the Minister;  or
(d)	becomes bankrupt or makes any assignment or composition with his creditors generally;  or
(e)	is convicted of a criminal offence in Papua New Guinea or in any other jurisdiction, 
the Minister shall terminate his appointment.
(2)	The Minister may, at any time, by written notice, advise an independent director that he intends to terminate the appointment of the independent director on the grounds of inability, non-performance or misbehaviour.
(3)	Within seven days of the receipt of a notice under Subsection (2), the independent director may reply in writing to the Minister who shall consider the reply and where appropriate proceed to recommend the termination of the appointment.
(4)	Where an independent director is given notice under Subsection (2) fails to reply in accordance with Subsection (3), his appointment is deemed terminated.
(5)	Where the appointment of the independent director is terminated under Subsection (4), the Minister shall request the interest group of the terminated director to nominate a candidate to fill the vacancy.

147AF. 	APPOINTMENT OF MANAGING DIRECTOR.

(1)	There shall be a Managing Director who is the chief executive of the Company who shall be appointed in accordance with the procedures for the appointment, suspension and revocation of appointment of chief executive officers of Regulatory Statutory Authorities under the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004.
(2)	The Managing Director shall be appointed for a term of three years and is eligible for re-appointment subject to his performance in accordance with his contractual provisions.
(3)	The terms and conditions of the Managing Director shall be as determined by the National Executive Council and contained in a written contract of employment which shall be signed by the Minister and by the Managing Director.
(4)	The person considered for appointment as Managing Director shall - 
(a)	be the holder of an academic degree in a field, considered by the Public Service Commission to be related to the position, from an accredited university that is recognised by the department responsible for higher education;  and
(b)	has at least 10 years practical experience in a field considered by the Public Service Commission to be related to the position, at least five of which were in an executive managerial capacity equivalent to head or deputy head level of a reputable organisation;  and
(c)	be a fit and proper person, which includes -
(i)	passing the fit and proper person test prescribed under Section 50 of the Act;  and
(ii)	medical clearance from a certified medical practitioner;  and       
(iii)	police clearance.
(5)	The Managing Director shall be terminated if he –
(a)	fails one of the requirements under Subsection (4)(c);  or
(b)	becomes incapable of performing his duties;  or
(c)	other than with written consent of the Minister, engages in any paid employment or carries on business outside the duties of his office;  or                            
(d)	becomes bankrupt, applies for the relief of the law for bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his salary for their benefit;  or
(e)	is convicted of an offence that is punishable by law with a sentence of imprisonment;  or
(f)	ceases to be ordinarily resident in the country;  or
(g)	commits an offence against this Act. 
 
147AG.	APPOINTMENT OF ACTING MANAGING DIRECTOR. 
(1)	In the interest of the Aviation Sector, the Minister shall suspend the Managing Director, with or without cause, if –
(a)	the Managing Director is absent from duty (from whatever cause arising);  or
(b)	there is a vacancy (whether by reason of death, resignation, or otherwise);  or
(c)	from time to time while the absence or vacancy continues,  and appoint a senior person in the company in terms of the number of years he has worked in the company or a suitable person to act in the position.
(2)	The appointment process under Section 147AF is not applicable to Subsection (1).
(3)	The appointment made under Subsection (1) shall be for a maximum period of three months and shall be published in the National Gazette.
(4)	Any extension of the period prescribed under Subsection (3) shall be made in accordance with Section 147AF.

147B. 	NATIONAL AIRPORT CORPORATION LTD. 
(1)	The National Airport Corporation Ltd. is a company incorporated under the Companies Act 1997 pursuant to Section 132 of this Act.
(2)	Subject to Subsection (4), after the commencement date of the amendment to this Act as declared by the Minister, no person other than the NAC shall provide the following services in respect of Papua New Guinea airports –
(a)	improve, maintain, operate or manage an airport, whether or not the airport was established under this Act;  and
(b)	improve, maintain, operate or manage an airport which has been added to, improved or reconstructed by the State or some other authority, body or person since the establishment of the airport;  and
(c)	establish, improve, maintain, operate or manage an airport on any land, whether or not the land is wholly or partly owned by the airport authority;  and                      
(d)	improve, add to, alter or reconstruct an airport or part of an airport maintained or operated by the airport authority;  and
(e)	operate or manage an airport as a commercial undertaking;  and
(f)	establish, operate or manage or cause to be established, operated or managed at airports refreshment rooms, bookstalls, booking offices, travel agencies and such other facilities as may be considered necessary;  and
(g) 	enter into contract for the management and operations of the airport;  and
(h)	set charges as an aviation service provider in accordance with this Act;  and
(i)	enter into contracts and agreements for the provision of services and facilities;  and
(j) 	enter into and carry out any agreement or arrangement necessary for the exercise of any power or function conferred on the Company;  and
(k)	develop policies and corporate strategies directed to achieve the greatest benefit to the State and the people of Papua New Guinea.

(3)	Nothing in this section shall apply to aerodrome flight information services.
(4)	Subject to obtaining the consent of -  
(a)	the Minister;  and
(b)	the Director as to safety aspects, the NAC may contract with any other person for the provision of airport services in Papua New Guinea. 
(5)	Subject to obtaining the consent of the Director as to safety aspects, the NAC may consent in, writing, to any other person providing airport services in Papua New Guinea in the event that the NAC is unable to for any reason.

147C. 	POWER TO EXEMPT CERTAIN FLIGHTS FROM FEES. 
(1)	The Minister may, by notice in the National Gazette, after consulting with NAC, exempt flights of a particular class from payment of fees for the use of airport services.
(2)	The Minister shall, with the concurrence of the Minister responsible for finance matters, out of moneys appropriated by Parliament, compensate NAC for exempt flights and the amount of compensation shall be equivalent to the sum which would have been charged by NAC to those flights as if they had not been exempted from charges.
147D. 	ANNUAL REPORT. 
(1)	The company shall submit to the Minister an annual report, including the audited and approved financial statements endorsed by the board within three months of the end of each financial year. 
(2)	A copy of the annual report shall be sent to the last known address of all airport service customers of the NAC who operated scheduled services within or to and from Papua New Guinea. 
(3)	A copy of the annual report shall be supplied to other airport service users on request.
147E.	 PAYMENT TO CASA BY NAC AND PNG ASL. 
(1)	As from the commencement date of the amendment to this Act as declared by the Minister, the NAC and PNG ASL shall pay to CASA a percentage, as prescribed in Subsection (3), of all annual income earned from –
(a)	international terminal facility charges;  and
(b)	domestic terminal facility charges;  and
(c)	security levy;  and  
(d)	aeronautical charges.
(2)	The payments shall be made –
(a)	for each passenger;  and
(b)	at the end of each calendar month;  and
(c)	no later than fourteen days after the payment has been received from the operator. 
(3)	The percentages shall be paid by the NAC and PNG ASL as follows:
(a)	the NAC –
(i)	fifteen percent of international terminal facility charges;  and
(ii)	ten percent of domestic facility charges;  and
(iii)	ten percent of security levy;  and 
(b)	the PNG ASL shall pay ten percent of aeronautical charges for upper airspace. 
12.	In particular, s 147A(6), there is provision for ministerial shareholding, subject to the possibility of a disposal of all or part of the shares in, or business of the company, to any other person.  The evidence before the primary judge showed that there were three shares issued in the NAC held as to one, by one minister, and as to two by another minister.  The Act in the provisions cited also demonstrates: 
(1)	a high level of ministerial control in respect of the appointment of the NAC’s board albeit from particular constituencies;
(2)	ministerial control in terms of contracting for the provision of airport services in Papua New Guinea, see s 147B(4)(a) by way of a ministerial consent requirement;
(3)	ministerial ability after consulting with the NAC to exempt clients of particular class from payment of fees for use of airport services, see s 147C(1);
(4)	an annual reporting requirement by the NAC to the minister, see s 147D(1);  
(5)	an ability on the part of the minister by declaration to make provision for the NAC to make payments to the Civil Aviation Safety Authority.
13.	Considered collectively and having regard also to the function of the provision of airport services within Papua New Guinea, it becomes apparent having regard to the principles discussed in PNG Power that the NAC is, for the purposes of s 5 of the Claims By and Against the State Act 1996, the State.  Indeed, having regard to decided cases, Mr Maris had every reason to expect that that subject, in respect of his application, would not be controversial.  Instead the question, substantively with respect, should have been whether or not he had made out a case for the granting of an extension of time?  
14.	As to this the relevant considerations have been settled by another judgment of the Supreme Court, Rawson Construction Limited v Department of Works [2005] SC777.  
15.	In particular having regard to what was said in that case, it was for Mr Maris to establish by evidence before the primary judge that:
(1)	there was a reasonable explanation for the delay in not giving notice within the usual period;
(2)	that there was an arguable case established in respect to the cause of action to be pursued against the proposed defendant; and 
(3)	that no prejudice would be occasioned by the delay in not giving notice within the ordinary time period.  
As to this, Mr Maris had placed before the primary judge evidence already adverted to as to informal endeavours which he had made to resolve the proceeding.  
16.	The case is one where the learned primary judge was, with respect, in error in dismissing the case on the basis mentioned.  The real question for today is not so much whether the appeal should be allowed, but whether this Court itself pursuant to s 16(c) of the Supreme Court Act 1975 should grant the extension sought by considering the merits as opposed to remitting that subject for consideration in the National Court.  It was pressed on behalf of Mr Maris that we should embark upon a consideration of the merits of whether to grant an extension.  The case is one where, through no fault of Mr Maris, delay has already been introduced by, with respect, a tangential subject being introduced by the primary judge.  
17.	The interests of justice favour our considering the merits of whether to grant the extension.  That Mr Maris did not rest on his rights is readily apparent from the chronology already given of his endeavours after receiving notice of termination.  
18.	It is evident also that if his evidence is accepted there is a prima facie case, an arguable case for damages for wrongful termination. Although a cautionary note must be sounded as to the quantum of those damages.  That cautionary note flows from the fixed term nature of the contract and the provision in it for no automatic renewal.  So, it does not follow that Mr Maris has a claim for damages which is uninformed by the fixed term nature of a contract which could have been brought, in any event, towards natural end just by the passage of time in 2020.  It is not though for us to determine either the merits of the claim for wrongful termination much less quantum of damages, only to sound that cautionary note.  But he has established both a reasonable explanation for his delay and an arguable case.
19.	It is difficult to see any particular prejudice that the NAC might suffer, given that it has long been put on notice by the means mentioned that his termination was under challenge.  That being so one might expect that prudently the NAC had already assembled whatever evidence it could to establish that the termination was not wrongful.
20.	In the circumstances and for the reason given the appeal should be allowed Further, pursuant to s 16(c) of the Supreme Court Act 1975, Mr Maris should be granted under ss 5(2)(c)(i) and (ii) of the Claims By and Against the State Act 1996, an extension of time for a period of 14 days from today, within which to give notice to the State.  One might hope and expect that that notice having been given and perhaps after the institution of proceedings that Mr Maris and the NAC will come to take advantage of alternative dispute resolution informed by the risks of litigation and the cautionary note we have sounded as to what may prove to be the quantum of damages. 

21.	KANDAKASI DCJ: Thank you, Justice Logan.  That succinctly gives all of the reasons we as a Court have in determining this appeal.  I just have only one aspect as an additional reason or ground to grant the appeal just to add.  And that is in relation to the issue of whether the NAC was part of the State for the purposes of section 5 being raised in her own motion by the learned trial judge, and which took the appellant by surprise.
22.	One would have expected her Honour to, with respect, know the case law on point on that very point.  If she did, then all the cases we have cited, per Logan J, her Honour would have been settled in her mind that that was not an issue at all, and the focus should have remained on the application for extension of time.  Unfortunately, she did raise it, only bearing in mind or set in motion by her own decision in another National Court matter, OS 443 of 2019, Vanimo Jaya Limited and another v PNGNFA.  That is not published as a judgment, but there are numerous published judgments of the Supreme and National Courts, some of which his Honour has referred to.  And she also says at paragraph 4 of her written judgment that Mr Gor for the applicant, has not made any submissions addressing the relevant point.  That is not accurate, that is incorrect.  
23.	When her Honour surprised counsel with that issue counsel ably, as is borne out by the transcript at page 191 of the appeal book, page 3 of the transcript, Mr Gor says, “Yes, yes.  It operates as an authority as well as a company.  But if your Honour looks at the functions of NAC, those functions are to serve a public purpose.  And there are cases such as Joel Aundambui v PNG Post where his Honour Justice, DCJ as he then was, they look at the functions of this.”  So, he has made reference to the relevant case law on point, but her Honour chose to treat counsel making no submissions.  That unfortunately led her into error, and seriously affected her judgment and into the decision which we have now looked at.  Anything to add, Mr Justice Kangwia?

24.	KANGWIA J: No.  I have got nothing to add on there.

Orders
1.	Appeal allowed. 
2.	The NAC is the State for the purposes of the Claims By and Against the State Act 1996.
3.	Pursuant to s 16(c) Supreme Court Act 1975, the appellant is granted under ss 5(2)(c)(1) and (2) of the Claims by and Against the State Act 1996 an extension of time for a period of 14 days from today within which to give notice to the State.   
________________________________________________________________
Lawyers for appellant:       Gor Lawyers
Lawyers for respondent:     Solicitor General