Of everything in the Claims By and Against the State Act 1996, section 5 defeats more claims than any other provision.
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 in accordance with this section by the claimant to —
(a) the Departmental Head of the Department responsible for justice matters; or
(b) the Solicitor-General.
Those words are decisive. Section 5 does not regulate how a claim is brought; it says that without the notice no action lies. The right to sue does not arise.
So a claim without a valid notice is liable to be dismissed however meritorious. It is a point commonly taken on an application to dismiss under Order 12 Rule 40 of the National Court Rules 1983, on the ground that no reasonable cause of action is disclosed, and it is a matter the listings mention raises as whether any condition precedent to the action or statutory time bar issues arise.
And no rule of court can save it. Order 1 Rule 7 permits dispensation with the requirements of these Rules; Rule 15 extends time fixed by the Rules or by any judgement or order. Section 5 is neither.
What it covers
The words are wide. They cover claims in contract and in tort — the two categories the Act names in its opening provisions.
And section 2(2) extends the Act to applications for the enforcement against the State of a right or freedom under Section 57 of the Constitution and for damages for infringement of a right or freedom under Section 58.
Section 2(2) puts this beyond argument. A claim for damages under section 58 against the State requires a section 5 notice, as does an application for enforcement under section 57.
That matters because human rights claims frequently arise from events — a raid, a detention, a beating — after which the claimant is unlikely to obtain prompt legal advice. See claims against police.
Note that Order 23 Rule 5(j) places on the Human Rights List an application to allow a further period in which to give notice where the claim relates to a Division III.3 right — the Rules anticipating exactly this problem.
Section 5(3)
A notice shall be given by —
(a) personal service on an 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 5(3)(b) is unusually specific, and the same hours reappear in section 7(2)(b) for service of process. Leaving a notice over the lunch hour, after 4.06 p.m., or on a weekend does not comply with the paragraph.
It must also be left with the person apparently occupying the position of personal secretary to the officer — not a receptionist, a security officer or a registry clerk.
Get a copy stamped and dated, note the time, and record who received it. If the notice is later disputed, that record is the whole case.
Contents
The section requires notice in writing of an intention to make a claim. It does not prescribe a form.
A prudent notice states: the claimant’s name and address; the occurrence out of which the claim arises, with the date and place; what is alleged to have been done and by whom; the nature of the claim — contract, tort, or breach of a named constitutional right; and that the claimant intends to make a claim against the State.
The purpose of the notice is to allow the State to investigate while the events are fresh. A notice that identifies the occurrence with precision serves that purpose and is harder to attack.
Give it as soon as a claim is contemplated. There is no advantage in waiting, and the six-month period runs from the occurrence, not from when advice is taken. See the time limit.
Section 5(1)(a) and (b)
Notice may be given to the Departmental Head of the Department responsible for justice matters or to the Solicitor-General. The subsection is disjunctive.
In practice the Office of the Solicitor-General is the usual recipient, since that office conducts the State’s litigation. See who to give the notice to.
Do not confuse the two. The section 5 notice precedes and conditions the action. Service of process under section 7 happens after proceedings are commenced.
They go to the same two officers, by the same two methods, within the same hours — which is why they are so often confused. Both are required, and doing one does not satisfy the other.
Section 5(2)(c) allows a further period to be allowed by the Principal Legal Adviser or the court before which the action is instituted, on sufficient cause being shown. See late notices.
That is an extension power in the Act, not in the Rules — which is why it exists at all, and why it requires sufficient cause rather than the ordinary discretion.
Sources
- Claims By and Against the State Act 1996 — ss 1, 2, 5, 7
- Constitution — ss 57, 58
- National Court Rules 1983 — O 1 rr 7, 15; O 10 r 9A; O 12 r 40; O 23 r 5
- 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.