Order 12 Rule 40 of the National Court Rules 1983 is the Court’s power to stop a proceeding that should not have been brought.
Order 12 Rule 40
(1) Where in any proceedings it appears to the Court that, in relation to the proceedings generally or in relation to any claim for relief —
(a) no reasonable cause of action is disclosed; or
(b) the proceedings are frivolous or vexatious; or
(c) the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief.
(2) The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).
Stay or dismissal. The Court chooses. A stay suits a proceeding that is premature; dismissal a proceeding that should never have been brought.
Whole or part. The order may reach the proceedings generally or any claim for relief within them.
Evidence is admissible under sub-rule (2) — the application is not confined to the face of the pleadings.
“It appears to the Court” — wide enough for the Court to act of its own motion, and the Listings Rules expressly allow summary determination on its own initiative under the Rule 40 grounds.
What each means
| Ground | Typical case |
|---|---|
| (a) No reasonable cause of action | The facts alleged, taken at their highest, disclose no claim known to law; the plaintiff has no locus standi; a necessary statutory precondition was never satisfied |
| (b) Frivolous or vexatious | A claim with no serious purpose; repeated proceedings against the same defendant on the same grievance; a claim so hopeless that pursuing it cannot be justified |
| (c) Abuse of process | Relitigating what has been decided; proceedings brought for a collateral purpose; a claim maintained to pressure rather than to obtain relief; using the wrong procedure to evade a safeguard |
The question is whether a cause of action is disclosed, not whether the plaintiff will win. A weak case is met by summary judgment, by a separate question, or at trial.
Two frequent applications in PNG practice fall under ground (a): the absence of a section 5 notice, since under the Claims By and Against the State Act 1996 no action lies against the State without one; and want of locus standi, which is a checklist item at the mention.
A limitation point must be pleaded specifically under Order 8 Rule 14. Where it is clear on the face of the pleading and admitted, it may support a Rule 40 application; where it depends on disputed facts about accrual, it belongs in the defence.
Rule 40 and Order 8 Rule 27
Order 8 Rule 27 strikes at the pleading: the Court may order the whole or any part of the pleading be struck out where it discloses no reasonable cause of action or defence, has a tendency to cause prejudice, embarrassment or delay, or is otherwise an abuse.
Order 12 Rule 40 strikes at the proceeding: stayed or dismissed.
Where the defect is curable by repleading — missing particulars, evidence pleaded instead of facts, embarrassing vagueness — Rule 27 is the right application, and the usual outcome is striking out with leave to replead.
Where no amendment could save the claim, Rule 40 is the application. In practice both are pleaded in the alternative, and the Listings Rules treat them together: summary determination is available under any of the grounds set out in Order 12 Rule 40 and Order 8 Rule 27, and motions under those provisions shall be moved before the Listings Judge.
Rule 41 — the residue
Where a party applies under Division 4 for a direction for entry of judgement under Rules 38 or 39, or for an order for stay or dismissal under Rule 40, and the proceedings are not wholly disposed of or wholly stayed, the proceedings —
(c) may be continued as regards any claim or part of a claim not disposed of and not stayed; and
(d) if commenced by writ, shall, on the hearing of the application, be before the Court for directions.
Paragraph (d) is a useful piece of case management. Where part of a claim is dismissed, the surviving part does not drift — the proceeding is before the Court for directions on the hearing of the application.
So an applicant should come prepared to address the future conduct of what remains, not only the part attacked.
Procedure
- Move before the Listings Judge, as the Listings Rules require for applications under Order 12 Rule 40 and Order 8 Rule 27.
- Cite the jurisdiction in the notice of motion — Motions Rule 8 requires a concise reference, and a motion without it may be struck out for being incompetent and for lack of form.
- Identify the ground — (a), (b) or (c) — and, where the attack is on part only, identify which claim for relief.
- File an affidavit where you rely on evidence under sub-rule (2) — on ground (c) especially, since abuse usually depends on matters outside the pleading, such as an earlier proceeding.
- Ask for a stay in the alternative, and for dismissal on terms.
- Move early. An application made after discovery and preparation for trial invites the answer that no real prejudice was suffered.
Under Order 12 Rule 7, an order for dismissal shall not, subject to any terms or conditions on which it is made, prevent the plaintiff from bringing fresh proceedings — though where costs were ordered and remain unpaid, the Court may stay the further proceedings until those costs are paid.
So a defendant who wants finality should ask for the dismissal to be made on terms addressing that, and should bear in mind that the practical bar on a fresh claim is often the limitation period rather than the dismissal itself.
Sources
- National Court Rules 1983 — O 4 rr 36, Div 5 (Motions Rules r 8); O 8 rr 14, 27; O 10 r 9A (Listings Rules 2005 rr 15, 16); O 12 rr 7, 37–41
- Claims By and Against the State Act 1996 — s 5
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.