Making a Claim
Against the State
If your Constitutional rights have been breached by the State or a State authority, you have the right to take legal action. This guide outlines what the law says and what you need to do — all services are free of charge through OPS.
Legal Foundation
What Does the Law Say?
Under Sections 57 and 58 of the Constitution, it is possible to take action against the State when an impecunious person's guaranteed Constitutional rights have been breached.
An action against the State is exactly the same as an action between two private parties. The State is a full legal person against whom actions can be taken and legal proceedings brought.
Under Section 58 of the Constitution, the National and Supreme Courts are given the authority to award damages — including exemplary damages — for the breach of Constitutional Rights.
Key Facts
Facts You Should Know
6-Month Notice Requirement
Under Section 5 of the Claims By and Against the State Act 1996, a party wishing to sue the State must give written notice within 6 months of the occurrence of the incident giving rise to the claim.
Who to Serve the Notice On
Your written notice must be served on the Attorney General or the Solicitor General. Failure to serve the correct person may invalidate your notice.
Extension of Time
If you miss the 6-month deadline, you can apply to the Attorney General for an extension. If refused, you may apply to the National Court which would hear the substantive matter.
Exemplary Damages
The National and Supreme Courts can award exemplary damages for breach of Constitutional Rights under Section 58 of the Constitution — not just compensatory damages.
Filing in the National Court
Documents Required
To apply for an extension of time to make a claim against the State, file the following at the National Court (Waigani).
Originating Summons
The Originating Summons must plead the orders that you seek.
The Plaintiff claims:
- Extension of time to lodge a Notice of Intention to make a claim against the State pursuant to Section 5(2)(c) of the Claims By and Against the State Act 1996.
- Any other Orders that this Honourable Court deems fit.
Notice of Motion
The Notice of Motion must contain the same orders you are asking for. The Plaintiff will move the Court at Waigani National Court.
Orders sought:
- Extension of time to lodge a Notice of Intention to make a claim against the State pursuant to Section 5(2)(c) of the Claims By and Against the State Act 1996.
- Any other Orders that this Honourable Court deems fit.
Affidavit in Support
The Affidavit in Support must contain evidence to support your application.
- The reasons for your delay in giving notice to the State
- Evidence of any medical reports or insurance damages suffered
- The reason the notice to the State was not given
- Medical report of injuries received
- List of property lost (fire, clothes, pens, furniture, etc.)
Example Reason
"No Legal Aid — X does not know anything about the law and does not know about legal aid. X takes food from the bush and comes to town only to sell food and comes to know of his rights. X then joins affidavit form to ask for an extension of time to make a claim against the State."Explore More
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8 locations across Papua New Guinea — from Port Moresby to Kimbe.
Your Rights Are Protected
Government of PNGAny further legal advice on making a claim against the State is subject to approval by the Public Solicitor. Please visit your nearest OPS office to seek guidance before filing any documents with the court. Contact us immediately.