Section 5(1) of the Claims By and Against the State Act 1996 names two officers, and only two.
Section 5(1)
(a) the Departmental Head of the Department responsible for justice matters; or
(b) the Solicitor-General.
The subsection is disjunctive. Notice to one satisfies it.
The Solicitor-General is the officer who conducts the State’s litigation, and is the usual recipient. The office’s functions derive from the Attorney-General Act 1989.
Where there is any doubt, nothing prevents giving notice to both. It costs nothing and removes an argument.
A notice given to the Police Commissioner, the Department of Works, or the provincial administration does not satisfy section 5, however sensible it may seem. The Act names two officers.
This is a common and avoidable failure. Notify the department concerned if you wish — but give the section 5 notice to one of the two named officers.
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).
| Method | Complies? |
|---|---|
| Handed personally to the Solicitor-General | Yes — s 5(3)(a) |
| Left with the officer’s personal secretary at 10 a.m. on a Tuesday | Yes — s 5(3)(b) |
| Left with the personal secretary at 12.30 p.m. | Outside the stated hours |
| Left with the personal secretary at 4.30 p.m. | Outside the stated hours |
| Left on a Saturday or public holiday | Excluded by the paragraph |
| Left with a receptionist or security officer | Not the personal secretary |
| Posted | Not a method the section provides |
| Emailed | Not a method the section provides |
Section 5(3)(b) is unusually precise, and the same hours reappear in section 7(2)(b) for service of process. There is no equivalent anywhere else in Papua New Guinea civil procedure.
Note the word “apparently” in the phrase the person apparently occupying the position of personal secretary. That protects the person delivering the notice who is told, and reasonably believes, that this is the personal secretary. Compare Order 6 Rule 5 of the National Court Rules 1983: evidence of a statement by a person that he holds some office is evidence that he holds that office.
Keep the record
- The date, and the time — because the statutory hours matter.
- Which officer the notice was addressed to.
- Who received it, by name and position — and, if the position was stated to you, record that it was.
- A stamped or receipted copy of the notice.
- Who delivered it — because that person may later need to depose to it.
If the notice is later disputed, the evidence must come from the person who actually delivered it. A lawyer cannot depose to what a clerk did.
So have the affidavit prepared at the time, not two years later when the State takes the point. That is the same discipline the Rules apply to affidavits of service under Order 6 Rule 18, which must state by whom the document was served, the day of the week and the date, and the manner of service.
The notice itself
The section prescribes no form. A prudent notice identifies the claimant; the occurrence, with date and place; what is alleged and by whom; the nature of the claim — contract, tort, or breach of a named constitutional right; and states the intention to make a claim against the State.
Where the claim engages a Basic Right, name the section — section 36, 37, 41, 42, 44. See the Basic Rights.
Two separate steps go to the same two officers, by the same two methods, within the same hours:
Section 5 — the notice of intention to make a claim, given before the action, within six months.
Section 7 — service of process, after proceedings are commenced.
Doing one does not satisfy the other. Both are required, and both must be proved.
If the six months has passed, see whether a late notice can be allowed — the Principal Legal Adviser may allow a further period, as may the court, on sufficient cause being shown.
Which of the two to use
Both officers are named, and either satisfies the subsection. In practice the Solicitor-General is the sensible choice, for three reasons.
First, that office conducts the State’s litigation, so the notice reaches the people who will deal with the claim.
Second, the same office receives service of process under section 7 and the certificate of judgment under section 14, so the file is built in one place from the outset.
Third, the Solicitor-General is the officer to approach if a further period is later needed, since it is that office that will take instructions on whether the State consents.
Section 5 governs claims against the State. A claim against a statutory authority that has its own separate legal personality — one that may sue and be sued in its own name — is not, without more, a claim against the State, and the section 5 notice requirement may not apply to it.
The safe course where the position is genuinely unclear is to give the notice anyway. Nothing is lost by giving a notice that turns out not to have been required; a great deal is lost by omitting one that was. Where the claim is against both a statutory body and the State, give it.
See who can be a party on identifying the correct defendant, and suing the State for the sequence as a whole.
Sources
- Claims By and Against the State Act 1996 — ss 5, 7
- Attorney-General Act 1989
- National Court Rules 1983 — O 6 rr 5, 18
- 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.