Missing the six-month period is not necessarily fatal. Section 5(2)(c) of the Claims By and Against the State Act 1996 provides a way back.
Section 5(2)(c)
A notice under this section shall be given … 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.
The Principal Legal Adviser may allow a further period. That is an administrative route, and where the State is prepared to consent it is far quicker and cheaper than a court application.
The court before which the action is instituted may also allow it. Note the wording: the court where the action is instituted — so the application may be made in the proceeding itself.
Approach the Solicitor-General first. A refusal costs nothing and strengthens the later court application by showing the point was raised early.
The standard
This is not the ordinary discretion to extend time. Order 1 Rule 15 of the National Court Rules 1983 permits extension without any stated threshold. Section 5(2)(c) requires sufficient cause being shown.
Nor could Order 1 Rule 15 be used here in any event: it reaches time fixed by the Rules or by any judgement or order, and the section 5 period is fixed by statute. Paragraph (c) is the only extension power that exists.
- Incapacity. The claimant was hospitalised, seriously injured, or otherwise unable to act — a frequent situation where the claim arises from the very conduct that injured them.
- Detention. The claimant was in custody and unable to obtain advice or reach an office. See complaints from custody.
- Remoteness. The claimant lives far from any office of the Solicitor-General or the Department, with no practical means of delivering a notice within the statutory hours.
- Pursuit of another remedy. The claimant was pursuing a complaint through another channel in good faith.
- Late discovery of the identity of the wrongdoer, where it was not apparent that the State was implicated.
- Conduct of the State that contributed to the delay.
“I did not know about section 5” is not, without more, sufficient cause. Nor is unexplained inactivity, nor the fact that a lawyer was instructed late without any reason for it.
The application must explain the delay period by period — what happened, and why nothing was done. Unexplained gaps are what such applications fail on.
Order 23 Rule 5(j)
The following proceedings shall be placed on the Human Rights List — applications under Section 5(2)(c)(iii) (notice of claims against the State) of the Claims By and Against the State Act to allow a further period in which to give notice to the State of an intention to make a claim against the State, where the claim relates to enforcement of a right or freedom referred to in Division III.3 of the Constitution.
That Order 23 Rule 5(j) exists at all is significant. The judges who made the Human Rights Rules recognised that the six-month notice period is the most common obstacle to human rights claims against the State, and gave extension applications their own place on the Human Rights List.
Section 2(2) of the Claims Act applies the Act to applications under Constitution sections 57 and 58, which is why the notice is required for such claims at all. See compensation for breach of rights.
What to file
- The application itself — by notice of motion in the proceeding, citing section 5(2)(c)(ii) as the jurisdiction. Rule 8 of the Motions Rules requires a concise reference to the Court’s jurisdiction, and a motion without it may be struck out for being incompetent and for lack of form.
- An affidavit from the claimant explaining the delay, period by period, from someone with direct knowledge.
- Supporting material — medical records, custody records, correspondence with other bodies.
- The notice itself, exhibited, so the Court can see what is proposed to be given.
- Evidence of any approach to the Principal Legal Adviser and the response.
- Evidence going to prejudice — that the State can still investigate, that records exist, that witnesses are available.
An extension of the notice period does not extend the limitation period under the Frauds and Limitations Act 1988, which no court can extend.
So a claimant seeking a further period should check that the limitation period has not itself expired. There is little point obtaining an extension for the notice if the action is by then statute-barred.
And where proceedings have already been commenced without a valid notice, expect the State to apply to dismiss under Order 12 Rule 40. The extension application should be brought promptly, and ideally before that application is heard.
Delay after discovering the problem is itself a factor against the applicant. A claimant who learns in month seven that no notice was given, and applies in month eight, is in a materially better position than one who applies two years later.
Sources
- Claims By and Against the State Act 1996 — ss 2, 5
- National Court Rules 1983 — O 1 r 15; O 4 Div 5 (Motions Rules r 8); O 12 r 40; O 23 r 5(j)
- Constitution — ss 57, 58, Div III.3
- Frauds and Limitations Act 1988
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.