Legal Index: N
Natural justice and notice of a claim against the State — the constitutional duty to act fairly, the condition precedent in section 5, what “sufficient cause” means once the six months has passed, and the proceedings the notice requirement does not reach.
Natural justice
Unusually, Papua New Guinea has natural justice in its Constitution rather than only in the case law.
Section 59 — Principles of natural justice.
(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.
Section 60 — Development of principles. In developing the underlying law, particular attention shall be given to a system of principles of natural justice and of administrative law specifically designed for Papua New Guinea, taking special account of the National Goals and Directive Principles, the Basic Social Obligations, and typically Papua New Guinean procedures and forms of organization.
Ombudsman Commission of PNG v Donohoe [1985] PGSC 14; [1985] PNGLR 348 (Supreme Court) — the obligation to observe natural justice under sections 59 and 60 may apply, depending on the circumstances, to proceedings before the Ombudsman Commission. The Court also held that the Supreme and National Courts have jurisdiction to review the Commission’s proceedings on the ground that it exceeded its jurisdiction, and — more broadly — that an Organic Law cannot restrict, narrow down or qualify a grant of jurisdiction or a right under the Constitution unless the Constitution itself so provides.
NTN Pty Ltd v The Board of the PTC [1987] PNGLR 70 (National Court) — in deciding whether there is an arguable case founded on a denial of natural justice, regard should be had to section 60, which directs attention to developing a system suited to Papua New Guinea rather than importing one wholesale.
Asiki v Zurenuoc [2005] PGSC 27; SC797 (Supreme Court) — the duty to give reasons for an administrative decision is an integral part of the duty to accord natural justice. An officer who receives a recommendation from a constitutional institution such as the Public Services Commission must either implement it or give cogent and convincing reasons for not doing so.
New Britain Oil Palm Ltd v Sukuramu [2008] PGSC 29; SC946 (Supreme Court) — natural justice binds the court itself. If a court is going to decide an issue not raised on the pleadings or argued by the parties, or by reference to evidence not before it, or on a principle the parties have not addressed, the parties must first be given an opportunity to be heard.
Section 59(2) sets a minimum, not a ceiling: the duty to act fairly, and in principle to be seen to act fairly. What fairness requires varies with the decision, the decision-maker and what is at stake.
Three requirements recur across the cases: notice of what is alleged or proposed; an opportunity to be heard on it; and, following Asiki, reasons for the decision reached. A decision-maker who gives none of the three is vulnerable on review.
See the principles of natural justice, what a breach looks like, and Legal Index: J on judicial review.
Notice of a claim against the State
Section 5 of the Claims By and Against the State Act 1996 provides that no action to enforce a claim against the State lies unless notice of intention to make a claim has been given. Whether that is a true condition precedent was settled in 1998.
Tohian, Minister for Police and The State v Tau Liu [1998] PGSC 25; SC566 (Supreme Court)
The trial judge had held that where a writ was filed and served within the six-month period, no separate notice was needed — reasoning that the right to sue the State is a common law right the Act merely regulates, and that the writ itself could serve as notice.
The Supreme Court held that he fell into error. Section 5 is closely comparable to section 54 of the Motor Vehicles (Third Party Insurance) Act, which the Supreme Court had already held in Rundle v Motor Vehicles Insurance (PNG) Trust (No 1) [1988] PGSC 28; [1988-89] PNGLR 20 to create a mandatory condition precedent to the validity of a writ. The trial judge accepted the analogy but declined to follow the reasoning; the Supreme Court held he should have followed it.
The consequence is that the notice must be given before the action is commenced. Filing inside six months does not cure the absence of notice, and the writ is not itself notice.
Rawson Construction Ltd v Department of Works [2005] PGSC 39; SC777 (Supreme Court) — on what an applicant must show to obtain a further period under section 5(2)(c). The Court held that “sufficient cause” is shown where the applicant can:
(a) provide, by appropriate evidence, a reasonable explanation for not giving notice within the statutory period — and, where there has been delay in applying for the extension, a reasonable explanation for that delay as well;
(b) demonstrate a reasonable cause of action to be pursued on the merits; and
(c) show by appropriate evidence that the delay has not caused and would not cause prejudice to the State.
Seravo v Bahafo [2001] PGNC 122; N2078 was cited with approval. On the facts the appellants failed: they neither gave notice nor explained the failure, nor applied promptly for an extension.
Asiki v Zurenuoc [2005] PGSC 27; SC797 (Supreme Court) — the notice requirements apply only to actions founded on contract, tort, or breaches of constitutional rights.
Section 5 therefore does not apply to proceedings seeking orders in the nature of the prerogative writs commenced under Order 16 of the National Court Rules, because Order 16 supplies a comprehensive and exclusive procedure for judicial review. Punangi v Brown [2004] PGNC 120; N2661 was approved.
A litigant who has missed the six months is therefore not necessarily out of court: the character of the claim decides whether section 5 applies to it at all. See Judicial review.
Was notice required? Only for claims founded on contract, tort, or breach of constitutional rights — Asiki.
Was it given before the action? It must be. A writ is not notice — Tohian v Tau Liu.
Can a late notice be allowed? Yes, on sufficient cause, applying the three limbs in Rawson.
And note the fourth question that none of these cases answers: an extension of the notice period does not extend the limitation period under the Frauds and Limitations Act 1988, which no court can extend.
See what a section 5 notice is, the six-month period and whether a late notice can be allowed.