The shortest judgment in this series may be the one that has ended the most cases. It is five pages long and it decides that suing the State without first giving notice is fatal.
Paul Tohian, Minister for Police, and the State v Tau Liu [1998] PGSC 25; SC566
Supreme Court — Kapi DCJ, Sheehan and Jalina JJ, 27 August 1998. SCA 67 of 1997.
What happened
Mr Liu sued the Minister for Police and the State for defamation, filing his writ on 15 July 1997. A letter purporting to be notice of intention to make a claim reached the Solicitor-General on 20 August 1997, after the writ had issued. The State moved to strike out the writ for non-compliance with section 5 of the Claims By and Against the State Act 1996, which provides that no action to enforce a claim against the State lies unless notice in writing is given within six months of the occurrence, or within such further period as the Principal Legal Adviser or the court allows.
What the National Court held
Woods J dismissed the State’s motion. The right to sue the State, he reasoned, was a common law right protected by the Constitution and the Wrongs Act, not a privilege created by statute; section 5 merely regulated it. Its purpose was to make claimants act promptly so the State could investigate. Since the writ had been filed and served within six months of the incident, the writ could itself be treated as notice and no further notice was needed.
What the Supreme Court decided
Leave to appeal was granted because the point under section 5 was before the Supreme Court for the first time and the law needed clarifying. Mr Liu conceded the appeal and undertook to file a fresh writ.
Section 5 is very similar to section 54 of the Motor Vehicles (Third Party Insurance) Act, which the Supreme Court in Rundle v MVIT [1988] PNGLR 20 had held to be a mandatory condition precedent to the validity of any writ against the Trust. The trial judge was right that the provisions are similar, but erred in not following Rundle. The purpose of the notice requirement is the same whether the notice is given within six months or within an extended period. Notice of intention to make a claim is a condition precedent to issuing a writ of summons in all circumstances.
The appeal was allowed, the trial judge’s decision quashed, and the writ struck out.
Did it make new law?
The Court reversed the National Court and extended its own reasoning in Rundle, a motor vehicle insurance case, to the new 1996 Act. Because the point was conceded, the judgment is brief, but it has been treated ever since as the root authority on section 5. Later benches speak of “a preponderance of judicial authority since Tohian v Tau Liu” that compliance is a condition precedent.
Why it matters
Notice first, writ second. The sequence cannot be reversed. A writ issued before notice is incompetent, and the defect is not cured by a notice given afterwards.
Six months from the occurrence. A claimant who misses the period must obtain an extension from the Principal Legal Adviser or the court, on sufficient cause shown, before suing.
Prove it. The burden is on the plaintiff to show, on the balance of probabilities, that notice was given, and the State may take the point at any stage.
What it does not decide
Tohian does not say what a sufficient notice must contain, or what amounts to “sufficient cause” for an extension of time; those questions have been worked out in later National and Supreme Court decisions, and a claimant seeking an extension should expect to explain the delay in detail. Nor does it decide which proceedings count as a “claim”. Later authority holds that section 5 does not apply to judicial review under Order 16, a point settled in Asiki v Zurenuoc (2005) SC797, while confirming that damages claims however framed remain within it. Nor does it deal with the separate requirements for enforcing a judgment against the State under the same Act.
Recent cases applying it
- Paiara v Pupaka [2026] PGSC 58; SC2900 — Hartshorn J: on the preponderance of authority since Tohian, a proceeding commenced without timely section 5 notice is incompetent; the National Court proceeding should have been dismissed.
- Joseph v Rami [2021] PGSC 62; SC2138 — Tohian described as “the root authority” on section 5.
- Rema v Yaki [2019] PGSC 104; SC1874 — the plaintiff must satisfy the court on the balance of probabilities that notice was given, applying Tohian through Joshia v Raphael (2017) SC1665.
Sources
- Tohian v Tau Liu [1998] PGSC 25; SC566 (Kapi DCJ, Sheehan and Jalina JJ, 27 August 1998)
- Claims By and Against the State Act 1996 — s 5
- Rundle v Motor Vehicles Insurance (PNG) Trust (No 1) [1988] PGSC 28; [1988-89] PNGLR 20
- Paiara v Pupaka [2026] PGSC 58; SC2900; Joseph v Rami [2021] PGSC 62; SC2138; Rema v Yaki [2019] PGSC 104; SC1874
A case brief is a summary written by a person, not a substitute for the judgment. Read the judgment itself at the link given, check whether it has since been followed, distinguished or overruled, and get advice before relying on it. 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.