Practitioners familiar with other jurisdictions often ask about renewing a writ. In Papua New Guinea the answer is short.
(1) For the purpose of service an originating process shall be valid for two years from the date on which it is filed.
(2) The Court shall not extend the period of two years mentioned in Sub-rule (1).
(3) This Rule does not prevent the plaintiff from commencing fresh proceedings by filing another originating process.
Two separate points, and both matter.
First, the National Court Rules 1983 contain no renewal machinery at all. There is no application to renew, no form for it, and no rule under which it could be sought.
Second, even if renewal were framed as an extension of time, sub-rule (2) forecloses it: the Court shall not extend the two years.
The Court’s usual flexibility does not reach this
| Power | Why it does not apply |
|---|---|
| O 1 r 15 — extend or abridge time | Displaced by the specific prohibition in O 4 r 13(2) |
| O 1 r 7 — dispense with compliance | A general power cannot be used to defeat an express prohibition |
| O 1 r 8 — non-compliance not void | The writ is not irregular; it has simply expired |
| O 1 r 12 — directions | The Rules are not silent — they answer the question, in the negative |
Where the Rules confer a general power but then specifically exclude its operation in a defined case, the specific provision governs. Order 4 Rule 13(2) is about as specific as drafting gets: “The Court shall not extend the period of two years.”
Contrast Order 1 Rule 15(2), which goes out of its way to say the Court may extend time as well after as before the time expires. The draftsman knew how to permit retrospective extension, and chose the opposite for Rule 13.
The only course: fresh proceedings
The Rule does not prevent the plaintiff from commencing fresh proceedings by filing another originating process.
A fresh proceeding is commenced on the new filing date — Order 4 Rule 12(1). The original filing has no continuing effect.
So the practical issue is not whether you may file again, but whether the limitation period under the Frauds and Limitations Act 1988 still permits it.
Where the cause of action arose more than the limitation period before the new filing date, the fresh proceeding is liable to be struck out — and no rule of court can save it, because the bar is statutory.
If the State is the defendant, check the section 5 notice position as well. A notice given for the first proceeding does not lose its effect, but the Claims By and Against the State Act 1996 imposes its own requirements that should be reviewed before filing again.
A related power that does exist
One or more concurrent writs may be issued at the plaintiff’s request, at the time the original writ is issued or at any time before the original writ ceases to be valid.
A concurrent writ is a true copy of the original with only such differences as are necessary. Sub-rule (2) contemplates one for service within the jurisdiction issued alongside one for service outside it. Sub-rule (4) applies the Rule to an originating summons.
A concurrent writ does not extend anything — note the words “before the original writ ceases to be valid”. It solves a different problem: getting sealed copies to several defendants in different places, particularly where some are outside Papua New Guinea.
How to avoid the problem entirely
- Diarise the expiry date on the day you file. Two years from the date the Registrar writes on the writ under Order 2 Rule 19.
- Serve promptly. There is nothing to be gained by holding a writ. Service is governed by Order 6.
- Move early for substituted service if the defendant cannot be found. The application itself takes time to prepare, list and hear.
- Allow months, not weeks, for service abroad. Order 6 Divisions 2 and 3 may require leave and, in some cases, transmission through official channels.
- Do not file at the very end of the limitation period if service is likely to be difficult. That is the situation in which a lapse becomes fatal.
Once served, the two-year rule is spent and the risk changes character. A plaintiff who then lets the case go quiet faces dismissal for want of prosecution under Order 4 Rule 36 and Order 10 — a discretionary remedy, and one the Court can be persuaded not to grant.
What to do with a lapsed writ
This Rule does not prevent the plaintiff from commencing fresh proceedings by filing another originating process.
The limitation period. The new proceeding is commenced on the new filing date. If the period under the Frauds and Limitations Act 1988 has run, re-filing achieves nothing but a costs order against you.
Whether service can now be effected. If the defendant could not be found in two years, filing again without a plan for substituted service repeats the problem.
Whether the State is a defendant. The section 5 notice attaches to the claim rather than to the writ, but the position should be checked and the notice exhibited to the new proceeding.
Costs of the first proceeding. Under Order 8 Rule 67, a second proceeding on the same cause of action may be stayed until the costs of a discontinued first one are paid.
Order 1 Rule 7 (dispensation), Rule 8 (non-compliance not void) and Rule 15 (extension of time) are general provisions. Order 4 Rule 13(2) is a specific prohibition, and a specific prohibition is not displaced by a general power.
An application to extend the two years should not be made. The correct advice is to file again if the limitation period permits — and if it does not, to say so plainly.
Sources
- National Court Rules 1983 — O 1 rr 7, 8, 12, 15; O 2 r 19; O 4 rr 12, 13, 15, 36; O 6; O 8 r 67
- Frauds and Limitations Act 1988
- 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.