Kaltoi v Republic of Vanuatu
DECISION AS TO STRIKE-OUT APPLICATION
1. The Claimant Tom Kaltoi filed the Claim on 4 March 2026.
2. On 22 May 2025, the Defendant the State filed an Application to Strike out the Claim (the ‘Application’), Sworn statement of Agnes Tari and Submissions in support. It filed proof of service on 25 May 2026. The grounds of the Application is that the Claimant did not file his Claim within 6 months of giving the State notice to commence proceedings against the State in accordance with s. 6 of the State Proceedings Act No. 9 of 2007 (the ‘Act’) which provides as follows:
6. (1) No proceeding against the State other than an urgent proceeding or a Constitutional proceeding, may be instituted under section 3 unless the party intending to do so first gives written notice to the State Law Office of such intention.
(2) The notice under subsection (1) must:
(a) include reasonable particulars of the factual circumstances upon which the proposed proceedings will be based; and
(b) be given not less than 14 days and no more than 6 months prior to the institution of proceedings.
[emphasis added]
3. In the Application, the Defendant set out subs. 6(1) of the Act with the words, “Office of the Attorney General” in place of the reference to the “State Law Office.”
4. However, I am not aware of an amendment to the Act deleting the words, “State Law Office” from subs. 6(1) of the Act and substituting the words, ““Office of the Attorney General”.
5. Indeed, the 2024 consolidated edition of the Act sets out s. 6 of the Act as set out in para. 4 above.
6. By amendment to the State Law Office Act in 2021, the State Law Office was renamed the, “Office of the Attorney General” (‘OAG’). However, there does not appear to have been any consequential changes made to the State Proceedings Act.
7. Section 6 of the Act requires a claimant to give written notice of a proceeding against the State to the State Law Office, now the OAG, not less than 14 days and no more than 6 months prior to the institution of proceedings.
8. As the Court of Appeal held in Republic of Vanuatu v Napuat [2023] VUCA 8 at [15], citing Republic of Vanuatu v Kwang Sing 1 [2013] VUCA 35, s. 6 of the Act provides an absolute bar on proceedings which have not been instituted within the required minimum and maximum periods set out in s. 6:
15. We do, however, regard the obligation imposed by the statute as absolute, in the same way as this Court arrived at that conclusion in Sing. It provides an absolute bar on proceedings being instituted under section 3, that is to say against the State unless notice has been given as required and within the required minimum and maximum periods of 14 days and 6 months respectively. Counsel are well advised to bear in mind the provisions of the section and may consider filing a copy of the section 6 notice together with the originating claim to demonstrate compliance with the section.
9. By the Claimant’s own admission, notice was given in accordance with s. 6 of the Act by letter dated 6 August 2025 but proceedings were not instituted within 6 months. The proceedings were instituted 6 months and 25 days after the notice given.
10. However, para. 6(2)(b) of the Act requires that proceedings be filed within 6 months of the notice. This is a mandatory requirement therefore the Claim must be struck out: Republic of Vanuatu v Napuat [2023] VUCA 8 at [15].
11. For the foregoing reasons, the Defendant’s Application to Strike out filed on 22 May 2026 is granted.
12. The Claim is struck out.
13. Costs must follow the event. The Claimant is to pay the Defendant’s costs fixed in the sum of VT20,000 as sought in the Application.
DATED at Port Vila this 23rd day of July, 2026
BY THE COURT
………………………………………….
Justice Viran Molisa Trief