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Konga v Lano [2012] PGNC 140; N4857 (12 October 2012)

N4857

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 479 OF 2012

DR. JOHN KONGA.

First Plaintiff

And

DR. AMOS LANO.

Care taker Chief Executive Officer
First Defendant

And

DARU HOSPITAL BOARD,
Second Defendant

Goroka: Ipang AJ
2012: 14, 27 September
12 October

ADMINISTRATIVE LAW – Correct mode for instituting proceedings seeking declaratory orders – Procedure for application for judicial review. Distinctions in Order 16 National Court Rules relate to nature of remedies set out in Rule 1 sub rule 1 which provides judicial review as exclusive procedure & declaration and injunction under Rule 1 Sub Rule 2 provide for optional procedure.

COMPLIANCE – Section 5 Notice of Claim by and Against State Act, 1996 – Service of notice of intention to make a claim against the state is a condition precedent to making any claim against the State.

Cases Cited

Rooney –v- Forest Industries Council of Papua New Guinea & Another [1990] PNGLR 407
In Re Application By Aiten Maniho –v- Luther Wenge & Micah Pitpit (Chief Magistrate) [1990]PNGLR 427
Massive –v- Okuk [1985] PNGLR 105
Raka –v- Tohichem [2000] PNGLR 328
Gelu –v- Secretary Department of Justice and Attorney General [2004] PGNC 23; N2762 (28th December, 2004)
Nelson –v- Pruaitch, Minister for Forests & Ors N2536" title="View LawCiteRecord" class="autolink_findcases">[2004] PGNC, N2536 (14 April, 2004)
Mesia Novau –v- Nimrod Mark & Electoral Commission [1992] PNGLR 229
NEC –v- PEA [1993] PNGLR 264
Paul Tohian & Ors –v- Tau Liu SC 566

Counsel

Mr. R.Yombon, for the Plaintiff
Mr. D. Koeget, for the First Defendant

No Appearance, for the Second Defendant

RULING

12 October, 2012

1. IPANG AJ: There are two motions on foot before this Court. The first motion was filed by the plaintiff on the 9th of August, 2012. The Second motion was filed by the First Defendant on the 22nd August, 2012.
   
2. The Plaintif sought the following reliefs:
   
   1. Summary judgment be entered for the Plaintiff in terms of the reliefs sought in the Originating Summons pursuant to Order 12 Rule 37 of the National Court Rules.
      
   2. Costs of the proceedings be paid by the Plaintiff.
      
   3. Any other orders the Honourable Court deems appropriate.
      
3. The First Defendant's motion seeks the following reliefs:
   
   1. The entire proceedings be struck out for not disclosing reasonable course of action pursuant to Order 8 Rule 27 of the National Court Rules.
      
   2. The entire proceedings be dismissed for non-compliance with requirements of Order 16 Rule 3 of the National Court Rules.
      
   3. That the entire proceedings be dismissed for non- compliance with requirements of Section 5 Claims By And against the State Act.
      
   4. Any other orders the Court deems fit.
      
4. I heard both motions and directed both Counsel to file in their respective submissions which they have done and this is my ruling on the both motions.
   
5. There were three (3) crushing issues which arose and which need to be determined:
   
   1. What is the correct mode of proceedings in seeking declaratory orders?
   2. The requirements of Section 5 Notice of Claims By And Against The State Act 1996.
   3. Disclosing no reasonable cause of action pursuant to Order 8 Rule 27 of the National Court Rules (NCR)
      
6. I will deal with each of the issues and in so doing will address each of the motions.
   
7. Mr. R. Yombon of counsel for the Plaintiff submitted that his client chose not to seek leave as his client's case is a clear case based on contract of employment. He said his client is not trying to seek review of the First Defendant's action to withhold his client's gratituity allowance totaling to K47, 802.50.
   
8. In the Originating Summons filed by the plaintiff the plaintiff claims:
   
   1. A Declaration that the Plaintiff is entitled to gratuity allowance of K9, 560.50 per annum under the contract of employment dated 10th February 2006.
      
   2. A Declaration that the plaintiff is still entitled to receive the gratuity allowance when he is under sidelining until his employment is determined.
      
   3. A declaration that the Defendants have without lawful basis did not pay or cause to be paid the Plaintiff his gratuity allowance since 2008.
      
   4. A Declaration that the plaintiff is owed a gratuity allowance of K47, 802.50 since 2008.
      
   5. An order that the Defendants cause to be paid the Plaintiff his gratuity allowance as and when it falls due until his employment is determined or lawfully otherwise decided.
      
   6. An Order that the Defendants cause to be paid the Plaintiff his gratuity allowance as and when it falls due until his employment is determined or lawfully otherwise decided.
      
   7. An order that the Defendants pay the Plaintiff's costs of these proceedings.
      
   8. An Order that the Defendants pay an interest of 8% pursuant to Judicial Proceedings (Interest on Debts and Damages) Act.
      
   9. Any other orders the Honorable Court deems appropriate.
      
9. Mr. Koeget of Counsel for the first Defendant argued that the correct process is for the Plaintiff to seek leave and in the event if leave is granted then the Plaintiff is at liberty to file a judicial review on the decision of First Defendant not to pay the plaintiff's gratituity allowance. The way to go about this is through Order 16 Rule 3 of the National Court Rules.
   
10. On the 12th of August, 2008 the Plaintiff then the Chief Executive Officer (CEO) of the Second Defendant was arrested and charged over misappropriation of funds belonging to the Second Defendant. First Defendant's Counsel submitted earlier that the Plaintiff's gratituity allowances were with-held pending the misappropriation charges against the Plaintiff. Counsel said in the event Plaintiff is found guilty of misappropriation, all his gratituity allowances will be used to offset the funds misappropriated. So, Mr. Koeget submitted that Plaintiff should have invoked Order 16 Rule 3 to review decision of First Defendant to withhold his gratituity allowance.
    
11. The next line of submission by Mr. Koeget of Counsel for the First Defendant is that the Plaintiff should have commenced action through Writ of Summons (WS) endorsed with a Statement of Claim. Initially Mr. Koeget submitted that Plaintiff should do pleadings. However, this is unusual in Originating Summons (OS) proceedings as pleadings are not done but it is affidavit disclosing sufficient facts.
    
12. Mr. Koeget referred to the case of Masive –v- Okuk [1985] PNGLR 105 as the right approach, the Plaintiff should follow. In Masive –v- Okuk (supra), the Plaintiff instituted proceeding through Originating Summons under Order 4 Rule 3, seeking a declaration concerning the residency of a nominated candidate for election officers from placing the nominated candidate's and for an injunction restraining electoral name on the electoral papers.
    
13. In Masive's case Pratt, J in considering Order 4 Rule 2 (b) hinted out that the most important factor in deciding on the appropriateness or otherwise of the proceedings by way of Originating Summons is "there is unlikely to be a substantial dispute of fact."
    
14. In RE Application By Aiten Maiho –v- Luther Wenge & Micah Pitpit (Chief Magistrate [1999] PNGLR 472, the applicant sought orders in the nature of mandamus to compel District Court Magistrate to deliver a judgment. He commenced his action through Originating Summons under Order 4 Rule 3 of the National Court Rules. In his ruling, Injia, J (as he then was) made it clear that the correct procedure to be adopted when seeking orders compelling a public official to perform his statutory duty should be by way of seeking an order of Mandamus. Injia, J (as he then was) said the correct procedure is prescribed by Order 16 of the National Court Rules.
    
15. This case can be contrasted with this instant case. In Aiten Maniho Case (supra) the applicant was seeking orders to compel First Respondent to locate and deliver judgment in a matter unlike in this instant case the cause of action is one based on contract and the applicant is seeking declaratory orders. The mode of commencement of proceedings therefore cannot be the same. The reliefs sought are completely different.
    
16. I do not concede with Mr. Koeget's arguments. The Order 16 procedure for applying for judicial review is not an exclusive procedure for obtaining judicial review. The Court in NEC –v- PEA [1993] PNGLR 264 stated that, "...it is open to the plaintiff to choose any of the procedures under the Rules ... Order 16 does not make any distinction between declarations and injunctions as a remedy for infringement of a right protected under public law, as opposed to those under private law. (Emphasis Mine)
    
17. Despite the procedures set out in Order 16 many lawyers do get the procedures confused or mixed up. The nature of remedies provided under Order 16 Rule 1 Sub Rule 1 invokes judicial review as the exclusive procedure. The remedies in the nature of declaration or injunction under Order 16 Rule 1 Sub rule 2 which provides for optional procedures.
    
18. A plaintiff may choose to apply for a declaration by Originating Summons under Order 4 rule 3 of the National Court Rules thus evading the need to apply for leave under Order 16. Thus Order 4 rule 3 makes it explicitly clear in the following.
    

"3. Where plaintiff may choose. (4/3)

1. Except on the case of proceedings which by these Rules or by or under any Act are required to be commenced by Writ of Summons, proceedings may be commenced either by Writ of Summons or by originating Summons as the plaintiff considers appropriate.
   
2. Proceedings –

(a) In which the sole or principal question at issue is, or is likely to be, one of the construction of an Act or of any instrument made under an Act, or of any deed, will, contract or other document, or some other question of law, or

(b) In which there is unlikely to be a substantial dispute of facts; or

(c) In which a person is authorized by an Act, regulation or by these Rules to make an Act, regulation or by these Rules to make an application to the Court or a Judge with respect to a matter, and no other mode of making the application is prescribed by that Act, or regulation or by these Rules,

are amongst those which are appropriate to be commenced by originating Summons unless the plaintiff considers the proceedings more appropriate to be commenced by Writ of Summons.

19. I am satisfied that the Plaintiff's cause of action lies in contract regarding his entitlement of gratituity allowance and he is seeking declaration in this regard and he has invoked a correct mode of instituting his proceeding under Order 4 Rule 3 sub rule 2 (b) ... "In which there is unlikely to be a substantial dispute of facts."
    

Section 5 Notice under Claims By Against the State Act, 1996.

20. The First Defendant raised the issue of non- compliance with S.5 Notice of the Claims By and Against the State Act, 1996. The Section 5 provides;
    

"5. Notice of Claim against the State.

1. No action to enforce any claims against the State lies against the State, unless notice in writing of Intention to make a claim to –
   
   1. The Department Head of the Department responsible for justice matters; or
   2. The Solicitor General
      
2. A Notice under this Section shall be given –
   
   1. Within a period of six months after the occurrence out of which the claim arose; or
      
   2. Where the claim is for a breach of contract, within a period of six months after the claimant becomes aware of the breach; or
      
   100. With such further period as –
        
        1. The Principal Legal Adviser; or
        2. The Court before which the action is instituted,
           

On sufficient cause being shown, allows.

3. A notice under subsection (1) shall be given by –
   
   1. Personal service on an officer referred to in subsection (1); or
   2. 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 7:45am and 12 noon, or 1:00pm and 4:06pm or such other hours as may from time to time be declared by or under the Public Services (Management) Act, 1995to 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)".
      
21. In Olympic Stationary Limited trading as PNG Stationary and Officer Supplies –v- The State N2194 (15 August, 2001) Sevua, J (as he then was) was forthright:
    

"..... it is trite law that s.5 Notice, being a condition precedent to the issuance of proceedings, must be given first before the actual filing of the Originating process. While I accept that notice must be given within 6 months from.... I accept that notice must be given within 6 months from the date of occurrence of the act giving rise to the Court proceedings. It is now settled that the s.5 notice must be given before a writ is issued. In the present case the originating summons was issued on 21 January, 2001, while the notice was dated 8 February, 2001. It is obvious that the plaintiff has not strictly complied with the requirements of s.5 of the Claims By and Against the State Act."

22. The wording of Section 5 (1) which commences by declaring that no action to enforce any claim against the State shall lie unless a notice of intention to make a claim has been made in writing and served on the State either on the Attorney General or on the Solicitor General. It is for this reason that the Supreme Court in Paul Tohian & Ors –v- Tau Liu SC 566 declared that the service of a notice of intention to make a claim against the State is a "condition precedent" to making any claim against the State.
    
23. I find there is no evidence that Plaintiff has complied with the Section 5 notice under Claims By and Against the State Act, 1996. For this reason I now strike out the proceedings with costs. Costs to be agreed if not, to be taxed.
    

_______________________________

Kumul Legal Group Lawyers: Lawyer for the Plaintiff

Koeget Lawyers: Lawyer for the First, Defendant
Lawyer for the Second Defendant: Nil Appearance