Section 5(2) of the Claims By and Against the State Act 1996 fixes the period, and it is short.
Section 5(2)
(a) within a period of six months after the occurrence out of which the claim arose; or
(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or
(c) 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.
Two different starting points
| Claim | Six months runs from |
|---|---|
| Tort — assault, negligence, trespass, false imprisonment | The occurrence out of which the claim arose — para (a) |
| Breach of contract | When the claimant became aware of the alleged breach — para (b) |
| Constitutional rights — ss 57, 58 | The occurrence, para (a) applying by force of s 2(2) |
For a tort claim the six months runs from the occurrence — not from when the claimant appreciated they had a claim, not from when they obtained advice, not from when the extent of injury became clear.
Contrast paragraph (b), which for breach of contract runs from when the claimant became aware of the alleged breach. The difference is deliberate, and it means a tort claimant has less time in substance than a contract claimant.
That asymmetry is the reason so many claims arising from the conduct of a disciplined force fail on section 5. See claims against police.
Two clocks, not one
The section 5 notice period is a condition of the right to sue. Six months, from the occurrence.
The limitation period is the time within which proceedings must be commenced. For contract and tort it is generally six years under the Frauds and Limitations Act 1988. See time limits.
A claimant who gives a section 5 notice within six months has satisfied the condition. They must still commence proceedings within the limitation period, and then serve within two years of filing — a period Order 4 Rule 13(2) of the National Court Rules 1983 forbids extending.
Conversely, a claimant who commences within the limitation period but never gave the notice has no action at all. Both requirements must be met.
Paragraph (c)
The Principal Legal Adviser, or the court before which the action is instituted — on sufficient cause being shown.
That distinction is the whole point. Order 1 Rule 15 extends time fixed by the Rules or by any judgement or order, and the section 5 period is neither. If paragraph (c) did not exist, the period could not be extended at all.
Note the standard: sufficient cause. That is more demanding than the ordinary discretion to extend time, which requires no particular threshold.
And note the alternative route: an application may be made to the Principal Legal Adviser rather than to the Court. Where the State is willing, that is quicker and cheaper. See late notices.
An application under section 5(2)(c)(iii) to allow a further period, where the claim relates to enforcement of a right or freedom in Division III.3 of the Constitution, is placed on the Human Rights List by Order 23 Rule 5(j).
So the extension application itself is treated as a human rights matter — with the benefits that carry: a dedicated Judge, and the Court’s general approach to facilitating enforcement.
What to do
- Fix the date of the occurrence precisely, and diarise six months from it.
- Give the notice immediately. There is no reason to wait, and no advantage in it. The notice costs nothing.
- Do not wait to quantify the claim. The section requires notice of an intention to make a claim, not a fully particularised claim.
- Keep proof — a stamped copy, the date, the time, and the name of the person who received it. Section 5(3) requires the notice to be given within the statutory hours and to the person apparently occupying the position of personal secretary to the officer, if not served personally.
- If the six months has passed, apply under paragraph (c) rather than assuming the claim is dead — and be ready to show sufficient cause.
A person is injured by State officers. Months pass while they recover, or while they try to make a complaint through other channels. By the time they see a lawyer, the six months has gone.
The claim is not necessarily lost — paragraph (c) exists for exactly this — but it now depends on establishing sufficient cause, which is a materially worse position than having given the notice in time. Anyone advising in this area should treat the notice as the first step, taken before anything else.
Notice period and limitation period
The six-month notice period under section 5(2) is a condition of the right to sue the State. The limitation period under the Frauds and Limitations Act 1988 is the period within which the action itself must be commenced.
The critical practical difference is that the notice period can be extended, by the Principal Legal Adviser or the court under paragraph (c), while the limitation period cannot be extended by anybody.
So a claimant may have given a valid notice and still be out of time to sue; or may be well within the limitation period and yet unable to sue at all for want of a notice. Both clocks must be checked, and both are checked from the date the cause of action accrued. See time limits for starting a claim.
Sources
- Claims By and Against the State Act 1996 — ss 2, 5
- Frauds and Limitations Act 1988
- National Court Rules 1983 — O 1 r 15; O 4 r 13; O 23 r 5
- Constitution — ss 57, 58, Div III.3
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.