Order 6 Rule 2(1) of the National Court Rules 1983 requires originating process to be served personally on each defendant, “subject to any Act”. Where the State is the defendant, that Act is the Claims By and Against the State Act 1996.
Service of process where the State is a party
(1) Where the State is a party to a suit, all process in the suit required to be served on it shall be served on —
(a) the Departmental Head of the Department responsible for justice matters; or
(b) the Solicitor-General.
(2) Service shall be effected by —
(a) personal service on the 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 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 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 under the Public Holidays Act (Chapter 321).
Section 7 is not confined to the originating process. It applies to all process in the suit required to be served on the State — the writ, notices of motion, and other documents requiring service.
Once the State has a lawyer on the record with an address for service under Order 6 Rule 7, ordinary service on that address will usually be the practical course for interlocutory documents. But the originating process itself must go under section 7.
Why they matter
7.45 a.m. to 12 noon, and 1.00 p.m. to 4.06 p.m. Not the lunch hour. Not after 4.06 p.m. Not weekends or public holidays.
Leaving a writ at the office outside those hours does not comply with paragraph (b). The alternative is personal service on the officer under paragraph (a), which the section does not confine by hours.
The identical hours appear in section 5(3)(b) for the notice of intention to make a claim — the two provisions are deliberately parallel.
Paragraph (b) requires the document to be left with the person apparently occupying the position of personal secretary to that officer. A receptionist, a security officer or a registry clerk is not that person.
“Apparently” protects the server who is told, and reasonably believes, that this is the personal secretary. That works with Order 6 Rule 5: evidence of a statement by a person that he holds some office is evidence that he holds that office.
The affidavit of service
An affidavit of service shall state by whom the document was served, the day of the week and the date on which it was served, and the manner of service.
Where the State is the defendant, add the time — so that compliance with the section 7(2)(b) hours appears on the face of the affidavit. Identify which officer was served, and whether service was personal or by leaving the document with the personal secretary.
It is the foundation of any later application for default judgment — and Order 12 Rule 34 requires an affidavit proving due service and a second affidavit proving the default relied on.
Have the affidavit sworn promptly by the person who effected service. A lawyer cannot depose to what a clerk did.
Two separate steps
| Section 5 notice | Section 7 service | |
|---|---|---|
| What | Notice of intention to make a claim | Service of process in the suit |
| When | Before the action — within six months | After proceedings are commenced |
| To whom | The same two officers | |
| How | The same two methods, within the same hours | |
| Consequence of failure | No action lies | Proceedings not properly served; no default judgment |
Because the two steps go to the same officers by the same methods, they are frequently confused. A claimant who gave a section 5 notice and then filed a writ has not served it; a claimant who served the writ under section 7 has not thereby given the section 5 notice.
Both are required. See section 5 notices and who to give them to.
After service
The State has 60 days to file a defence under section 9, not the ordinary 14 — see the defence period.
No fees are payable by the State under section 6 for any filing, issuing, sealing or otherwise dealing with any document.
The rights of parties are otherwise the same. Section 11 — in a suit to which the State is a party, the rights of parties, as nearly as possible, are the same, and judgement may be given and costs awarded, as in a suit between other persons.
Note one further use of the same machinery. Under section 14(1), the certificate of judgment issued under section 13(2) must be served on the Solicitor-General by personal service or by leaving it with the person apparently occupying the position of personal secretary — within the same statutory hours.
So the section 7 method recurs at the payment stage, and the same care is required.
Sources
- Claims By and Against the State Act 1996 — ss 5–7, 9, 11, 13, 14
- National Court Rules 1983 — O 6 rr 2, 5, 7, 18; O 12 r 34
- Attorney-General Act 1989
- Public Services (Management) Act 1995; Public Holidays Act (Chapter 321) — not available on PacLII
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.