Claims against the State for unpaid contracts, damaged property and police conduct are common, and many are small enough for the District Court. The Court has the jurisdiction; the difficulty is the special procedure that applies to the State as a party.
The right to sue
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.
The District Court is such a court for a contract or tort claim within section 21. The Magistrates’ Manual confirms that the State is sued as “The Independent State of Papua New Guinea” and that named officers need not be added, citing Arawe Logging v The State [1988–89] PNGLR 216. Two limits: section 21(4)(d) keeps false imprisonment and malicious prosecution out of the District Court whoever the defendant is, and constitutional claims under sections 57 and 58, to which section 2(2) of the 1996 Act applies, belong in the National Court.
The section 5 notice
(1) No action to enforce any claim against the State lies unless notice in writing of intention to make a claim is given to the Departmental Head responsible for justice matters or the Solicitor-General. (2) The notice shall be given within six months after the occurrence, or for breach of contract within six months after the claimant became aware of the breach, or within such further period as the Principal Legal Adviser or the court allows on sufficient cause. Section 5A requires full details of the tortfeasor or the contract.
In Tohian v Tau Liu (1998) SC566 the Supreme Court held the notice to be a condition precedent to the claim, and in Hewali v Police Force (2002) N2233 Kandakasi J held that without proper notice within the prescribed or extended time no cause of action exists. Those decisions concern National Court writs, but section 5 speaks of “any court”, and a District Court complaint without a prior notice is equally bad. The notice, its timing and its content are covered in what is a section 5 notice and late notices.
What is different in the District Court
| Stage | Ordinary defendant | The State |
|---|---|---|
| Before suing | Nothing | Section 5 notice within six months |
| Service of the summons | Personally, s 47 | On the Departmental Head or the Solicitor-General, s 7, in office hours |
| Time to respond | Appear on the return date | 90 days from service of the summons, s 9(d), or such further time as the Court allows |
| Default judgment on a liquidated claim | Default summons, s 157 | Only where the claim is for a debt only; otherwise damages to be assessed, s 12(3) |
| Exemplary damages | Available | Only for a severe or continuous breach of constitutional rights, s 12(1) |
| Time or method of payment | Instalments under s 165 | The Court may not order them, s 12(2) |
| Enforcement | Warrant of execution, garnishee | None: s 13(1) forbids execution or attachment against the State |
| Payment | By the judgment debtor | Certificate of judgment served on the Solicitor-General, endorsed within 60 days, paid by the Finance Department within a reasonable time, s 14 |
| Court fees | Paid in advance | None payable by the State, s 6 |
Getting paid
Section 13(1) provides that in any suit, execution or attachment may not issue against the property or revenue of the State. A District Court order against the State is enforced only through section 14: the Clerk issues a certificate of judgment in Form 1 under section 13(2), it is served on the Solicitor-General, who must endorse it within 60 days, and the Departmental Head responsible for finance must then satisfy it within a reasonable time, by instalments if he chooses. Section 14(5) limits mandamus or contempt to a failure to observe those requirements. The practical reality is delay, and the District Court has no power to speed it up. See how a judgment against the State is paid.
Sue the State or the officer?
A claim for a police officer’s assault or damage to property can be brought against the officer personally, against the State as employer, or both. The State is the defendant with money, but attracts the section 5 notice and the section 13 bar. The officer can be sued without notice and enforced against by execution, but may have nothing. Many claimants sue both. Section 25 of the Bail Act gives a distinct statutory claim against a policeman for wrongful refusal of bail, expressly triable in the District Court.
Provincial governments and statutory bodies
The 1996 Act applies to the State. A provincial government, a local-level government or a statutory corporation is sued under its own establishing law, in its own name, without the section 5 notice unless its Act requires one, and can be executed against. Getsi v PNG Harbours Board [1993] PNGLR 408 confirms that a provincial government’s capacity to be sued does not make it liable for its employee’s costs in a case to which it was not a party.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. 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.