The State is served differently from every other defendant, and the rule is in the Act rather than the Rules. Order 6 Rule 2(1) requires personal service of originating process “subject to any Act” — and the Claims By and Against the State Act 1996 is that Act.
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 that 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 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday.
Section 7(1) is expressed disjunctively. Service on either the Departmental Head of the Department responsible for justice matters or the Solicitor-General satisfies the section. In practice the Office of the Solicitor-General is the usual recipient, since it conducts the State’s litigation.
The Solicitor-General’s functions come from the Attorney-General Act 1989. Note also that Order 1 Rule 6 of the National Court Rules 1983 separately defines “State Solicitor”; that is a different office again.
Section 7(2)(b) is unusually specific: 7.45 a.m. to 12 noon, and 1.00 p.m. to 4.06 p.m. Leaving a document at the office over the lunch hour, after 4.06 p.m., or on a Saturday is not service under the paragraph.
It must also be left with the person apparently occupying the position of personal secretary to the officer — not with a receptionist, a security officer, or a registry clerk. “Apparently” protects the server who is told, and reasonably believes, that this is the personal secretary; Order 6 Rule 5 assists, since evidence of a statement by a person that he holds some office is evidence that he holds that office.
Get a copy stamped and dated. The affidavit of service under Order 6 Rule 18 must state by whom, the day of the week and the date, and the manner of service — and where the State is the defendant, it should record the time as well, so that compliance with section 7(2)(b) appears on the face of it.
Do not confuse service with notice
Section 5(1) — no action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given to the Departmental Head of the Department responsible for justice matters, or the Solicitor-General.
Section 5(2) — the notice must be given within six months after the occurrence out of which the claim arose; or for breach of contract, within six months after the claimant became aware of the alleged breach; or within such further period as the Principal Legal Adviser or the court before which the action is instituted, on sufficient cause being shown, allows.
Section 5(3) — the notice is given by personal service on such an officer, or by leaving it at the office with the person apparently occupying the position of personal secretary, within the same hours as section 7(2)(b) prescribes.
Section 5 is not a rule of service; it is a condition of the right to sue. A claim brought without a valid section 5 notice is liable to be dismissed however good the merits, and section 2(2) extends the Act to applications under Constitution sections 57 and 58.
See what a section 5 notice is and whether a late notice can be allowed. On the six-month clock and how it sits alongside the general limitation period, see the time-limits article.
Who exactly are you suing?
The proper defendant for a claim against the government is ordinarily The Independent State of Papua New Guinea. A Department is not a separate legal person, and naming “the Department of Works” alone invites an application to strike out.
Where the complaint is about a particular officer’s conduct — a police officer, for instance — the practice is to join that officer, the relevant office holder, and the State, so that vicarious liability under the Wrongs (Miscellaneous Provisions) Act (Chapter 297) is properly pleaded.
By contrast, statutory authorities with their own corporate identity are sued and served in their own right — see serving a corporation.
After service on the State
| Feature | Provision |
|---|---|
| No fees payable by the State for filing, issuing or sealing any document | Claims Act s 6 |
| Special provision for the filing of a defence by the State | Claims Act s 9 |
| No default judgment without compliance with the Act’s requirements | See default judgment against the State |
| No execution against the State | Claims Act s 13 |
| Satisfaction of judgment follows a statutory certificate process | Claims Act s 14 — see how a judgment against the State is paid |
Suing the State is a sequence, not a single step: section 5 notice within six months → proceedings within the limitation period → service under section 7 → defence under section 9 → judgment → certificate and payment under section 14, with no execution. Missing the first step defeats everything after it. See suing the State.
Sources
- Claims By and Against the State Act 1996 — ss 2, 5, 6, 7, 9, 13, 14
- National Court Rules 1983 — O 1 r 6; O 6 rr 2, 5, 18
- Attorney-General Act 1989
- Constitution — ss 57, 58
- Wrongs (Miscellaneous Provisions) Act (Chapter 297)
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.