The State can be sued, but not in the ordinary way. The Claims By and Against the State Act 1996 modifies the procedure at almost every stage.
Suits against the State
(1) A person making a claim against the State in contract or in tort may bring a suit against the State, in respect of the claim, in any court in which such a suit may be brought as between other persons.
(2) The provisions of the Act apply to applications for the enforcement against the State of a right or freedom under Section 57 (enforcement of guaranteed rights and freedoms) of the Constitution and for damages for infringement of a right or freedom under Section 58 (compensation).
Section 1 — “suit” includes any action or original proceeding between parties in any court of competent jurisdiction.
The Act speaks of claims in contract or in tort. Section 2(2) then extends it to human rights enforcement under Constitution sections 57 and 58 — which is why the section 5 notice applies to those claims too.
And section 11 — Rights of Parties — provides that in a suit to which the State is a party, (a) the rights of parties, as nearly as possible, are the same; and (b) judgement may be given and costs awarded, as in a suit between other persons.
Seven steps, in order
| Step | Requirement |
|---|---|
| 1. Notice | Section 5 — within six months, to the Departmental Head responsible for justice matters or the Solicitor-General |
| 2. Commence | Within the limitation period — the notice does not extend it |
| 3. Serve | Section 7 — on the same two officers, within the statutory hours |
| 4. Defence | Section 9 — 60 days, not the ordinary 14 |
| 5. Judgment | Section 12 — restrictions on exemplary damages, on orders as to time or method of payment, and on default judgment |
| 6. Certificate | Section 13(2) — the Registrar issues a certificate in Form 1 |
| 7. Payment | Section 14 — served on the Solicitor-General, endorsed within 60 days, then satisfied by the Departmental Head responsible for finance |
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.
That is not a rule of procedure. It is a condition of the right to sue. A claim without a valid notice is liable to be dismissed however strong the merits — and Order 1 Rule 7 of the National Court Rules 1983 cannot help, because it reaches only the requirements of these Rules.
Who to sue
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 it alone invites a strike-out application.
Where the complaint concerns the conduct of officers, join them as well. Under Constitution section 58(4), where an infringement was committed by a governmental body, damages may be awarded against the person who committed or was responsible for it, against the governmental body, or against both, in which last case the court may apportion the damages between them.
Vicarious liability is governed by the Wrongs (Miscellaneous Provisions) Act (Chapter 297). See claims against police.
A body with its own corporate personality — established by its own Act — is sued and served in its own right, not through the Claims Act. Check the constituting statute before assuming the Act applies.
The provisions that displace the Rules
Section 6 — no fees shall be payable by the State for any filing, issuing, sealing or otherwise dealing with any document.
Section 8 — notwithstanding anything in any other law, leave for judicial review shall not be granted unless the State has been afforded an opportunity to be heard.
Section 9 — notwithstanding anything in any other law, the State has 60 days to file a defence.
Section 10 — notwithstanding anything in the National Court Rules, the Court may order security for costs in specified cases.
Section 12(2) — notwithstanding anything in the National Court Rules, a court giving judgment against the State may not include any order as to time or method of payment.
Section 13(1) — execution or attachment, or process in the nature of execution or attachment, may not be issued against the property or revenue of the State.
A court giving judgment against the State may not include any order as to time or method of payment. So the familiar order that a judgment sum be paid within 14 days — Order 12 Rule 4 — cannot be made against the State.
Payment instead follows the statutory route in section 14: certificate, endorsement by the Solicitor-General within 60 days, then satisfaction by the Departmental Head responsible for finance within a reasonable time, and possibly by instalments in that officer’s absolute discretion.
Before you start
- Give the section 5 notice now. It costs nothing and preserves everything. Six months runs from the occurrence out of which the claim arose, or, for breach of contract, from when the claimant became aware of the alleged breach.
- Check whether the defendant is really the State or a separate statutory body.
- Diarise both clocks — the six-month notice period and the limitation period under the Frauds and Limitations Act 1988.
- Keep proof of the notice — a stamped copy, and evidence of who received it and when.
- Plan for the payment process, not just the judgment. There is no execution against the State.
Sources
- Claims By and Against the State Act 1996 — ss 1–14
- Constitution — ss 57, 58
- National Court Rules 1983 — O 1 r 7; O 12 r 4; O 13
- Wrongs (Miscellaneous Provisions) Act (Chapter 297); 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.