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Can a Question Be Decided Separately Before Trial?

Yes. Order 10 Division 4 lets the Court order the decision of any question separately from any other — before, at or after any trial. If the decision substantially disposes of the proceedings, or renders a trial unnecessary, the Court may dismiss the claim or direct judgment on the spot.

The National Court practice series, no. 99 · Getting to trial, and the trial itself · 5 min read

Some cases turn on a single point. If that point can be decided first, the rest of the trial may never be needed. Order 10 Division 4 of the National Court Rules 1983 provides for it.

Rule 20

Order 10 Rule 20

In this Division “question” includes any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.

Deliberately wide

Three points follow. The question may be one of fact as much as of law — this is not confined to preliminary points of law. It may be mixed. And it need not arise from the pleadings: agreement of parties or otherwise is enough.

So the parties may agree to isolate an issue that no pleading raises squarely, and ask the Court to decide it.

Rule 21

Order 10 Rule 21

The Court may make orders for —

(a) the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings; and

(b) the statement of a case and the question for decision.

When a separate question is worth ordering
QuestionWhy separate it
Liability, with damages left overDamages may be lengthy and expensive to prove, and unnecessary if liability fails
A limitation defenceIf the claim is out of time, nothing else matters
Whether a section 5 notice was givenWithout it no action lies against the State
Construction of a contract clauseOften decides the whole dispute
Jurisdiction or locus standiBoth are checklist items at the mention
Whether a rule of customary law appliesPleaded under Order 8 Rule 20A, and may be decisive
Whether a party is bound by an agreementDisposes of liability without reaching quantum
Separation is not always the economy it appears

Where the separate question depends on facts that overlap with the rest of the case, the same witnesses may have to give evidence twice. Where the answer will not actually dispose of anything, the exercise adds a hearing rather than removing one.

The test to apply is Rule 24: will the decision substantially dispose of the proceedings, or render unnecessary any trial or further trial? If not, separation is unlikely to help.

Rule 22

Order 10 Rule 22

(1) Parties to proceedings in which a case is stated may, with the leave of the Court, agree that, on any question being decided in the sense specified in the agreement, a specified direction for entry of judgement or a specified order shall be made.

(2) On that question being so decided, the Court may make the agreed direction or order.

(3) Where the agreement is made before a case is stated, the terms of the agreement shall be set out in the stated case.

A powerful way to end litigation

The parties agree in advance what follows from each possible answer: if the clause means X, judgment for the plaintiff in a stated sum; if it means Y, the proceedings are dismissed. The Court decides the question, and the agreed consequence follows.

That converts a contested trial into a single argued point, with the outcome settled either way. It requires the leave of the Court, and where the agreement precedes the stated case its terms must appear in the stated case itself.

Rules 23 and 24

Order 10 Rule 23 — recording the decision

Where a question is decided, the Court shall, subject to Rule 24, either —

(a) cause the decision to be recorded; or

(b) direct the entry of such declaratory judgement, or make such declaratory order, as the nature of the case requires.

Rule 24 — disposal

Where the decision —

(a) substantially disposes of the proceedings or of the whole or any part of any claim for relief; or

(b) renders unnecessary any trial or further trial in the proceedings or on the whole or any part of any claim,

the Court may, as the nature of the case requires — (c) dismiss the proceedings or any part of any claim; (d) direct the entry of any judgement; or (e) make any other order.

The decision can end the case

Rule 24 means a separate question is not merely an advisory exercise. Where the answer disposes of the matter, the Court may dismiss the proceedings or enter judgment there and then.

A party proposing a separate question should therefore be as confident of the answer as they would be at trial — and should consider whether an appeal would lie. A judgment entered under Rule 24(d) is a final judgment; a decision merely recorded under Rule 23(a) is not, and an appeal from it may require leave under section 14(3)(b) of the Supreme Court Act (Chapter 37).

Division 3 — the commonest split of all

Order 10 Rule 17

(1) Where judgment is entered for damages to be assessed, the proceedings shall, unless the Court otherwise orders, be set down in accordance with Division 1 for trial for assessment of damages.

(2) Where the proceedings are carried on against that party on any claim not determined by the judgment, or against any other party, the assessment shall be held together with any other trial.

Liability first, quantum later

This is the familiar split, and it arises automatically on a default judgment for unliquidated damages or a judgment on liability. See how damages are assessed.

Rule 18 applies the same machinery to a judgment for the value of goods to be assessed. Rule 19 provides that where damages are assessed in respect of a continuing cause of action, repeated breaches of recurring obligations, or intermittent breaches of a continuing obligation, they shall be assessed down to the time of assessment, including damages for breaches occurring after the commencement of the proceedings.

How to ask

Raise it at the mention or directions hearing — the checklist includes identification of the factual and legal issues and the likely length of trial, both of which invite the question. Otherwise apply by notice of motion citing Order 10 Rule 21, with a draft formulation of the question. The formulation matters: a question loosely framed produces an answer that decides nothing.

Sources

Check the section yourself

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.

Disclaimer: This article provides general information about Papua New Guinea law and does not constitute legal advice. Laws may change, and their application depends on individual circumstances. You should obtain professional legal advice for your specific situation. Read the full disclaimer.