Order 8 Rule 27 of the National Court Rules 1983 is the Court’s control over defective pleadings.
Order 8 Rule 27
(1) Where a pleading —
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or
(c) is otherwise an abuse of the process of the Court,
the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.
(2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1).
Ground (a)
This ground asks a question of law: assuming everything alleged is true, does it amount to a cause of action known to the law of Papua New Guinea, or a defence to the claim?
Examples: a claim for breach of a duty the law does not recognise; a claim against a director for the company’s debt with no basis pleaded; a defence that pleads only the general issue, contrary to Rule 28.
Note the words “or other case appropriate to the nature of the pleading” — the ground reaches a reply or a cross-claim as well.
Ground (a) is not an occasion to try the merits. That a claim looks difficult, or that the plaintiff’s evidence appears thin, is a matter for trial or for summary judgment — not for striking out the pleading.
Ground (b) — the workhorse
It does not mean the pleading is awkward for the other side. It means the pleading is so framed that the opposite party cannot tell what case they have to meet, or cannot plead to it properly.
| Defect | Rule breached |
|---|---|
| Evidence pleaded instead of material facts | r 8(1) |
| Unnecessary length | r 9 — and costs under O 4 r 17 |
| Allegations not in numbered paragraphs, or several matters run together | r 7 |
| Fraud, misrepresentation or undue influence without particulars | r 30 |
| Negligence pleaded without particulars of the acts or omissions | r 32 |
| Inconsistent allegations not put as alternatives | rr 18, 19 |
| Scandalous or irrelevant material | rr 8, 9 |
| Vagueness — “the defendant breached the agreement” with no more | rr 8, 29 |
A pleading may be perfectly clear and still have a tendency to cause delay — for instance by raising a mass of marginal issues that will lengthen the trial without affecting the outcome. That, too, is within ground (b).
Ground (c)
Relitigating a matter already decided; pleading a claim brought for a collateral purpose; a pleading advanced to harass rather than to obtain relief.
Note the overlap with Order 12 Rule 40, under which the Court may dismiss proceedings that are frivolous or vexatious or an abuse of the process. Rule 27 strikes at the document; Rule 40 at the proceeding. Where the whole claim is bad, plead both — see dismissal for abuse of process.
Three things that matter in practice
Evidence is admissible — sub-rule (2). Unlike the old demurrer, the application is not confined to the face of the pleading. That said, on ground (a) the Court is chiefly concerned with the pleaded facts, and evidence tends to matter more on grounds (b) and (c).
“At any stage of the proceedings” — there is no fixed deadline. But delay tells against the applicant: a defendant who pleads to an embarrassing statement of claim, gives discovery and prepares for trial, then applies to strike out, will meet the answer that no real embarrassment was suffered.
“On terms or otherwise”, and “the whole or any part” — the Court has a graduated response. The usual outcome for a curable defect is that offending paragraphs are struck out with leave to replead, and the party at fault pays the costs of the application.
Where the whole statement of claim goes and no leave to replead is given, the proceeding is effectively at an end. But where leave is given, the plaintiff files an amended pleading and the case continues.
Watch the limitation period: a plaintiff whose claim is struck out without leave, and who must start again, may find the Frauds and Limitations Act 1988 has intervened. And the writ’s two-year validity cannot be extended.
Procedure
- Identify the paragraphs attacked, and the ground — (a), (b) or (c) — for each. A motion aimed at “the statement of claim” generally is much weaker than one that takes the document paragraph by paragraph.
- Cite the jurisdiction — Order 8 Rule 27 — as Rule 8 of the Motions (Amendment) Rules 2005 requires.
- File an affidavit where you rely on evidence under sub-rule (2), exhibiting the pleading and any request for particulars.
- Ask for the alternative relief you actually want — particulars under Rule 36, or an order that the defective paragraphs be repleaded, may be a better outcome than striking out.
- Consider raising it at the mention. The listings mention expressly considers the sufficiency of the pleadings, and directions may resolve the problem without a contested motion.
Consider whether to amend rather than fight. Under Order 8 Division 4 a party may amend once without leave before the pleadings are closed. An amendment made promptly usually costs far less than a lost motion.
Sources
- National Court Rules 1983 — O 4 rr 13, 17; O 8 rr 7–9, 18, 19, 27–36, Div 4; O 12 rr 38, 40; Motions (Amendment) Rules 2005 r 8
- Frauds and Limitations Act 1988
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.