“The Court has no jurisdiction” is one of the most frequently made and least frequently successful objections in Papua New Guinea practice. Understanding why requires starting with the Constitution.
Constitution section 166(1)
Subject to this Constitution, the National Court is a court of unlimited jurisdiction.
Section 155(3)(a) adds that the National Court has an inherent power to review any exercise of judicial authority, and section 155(4) gives it power to make such orders as are necessary to do justice in the circumstances of a particular case.
The question is not whether the National Court has been given jurisdiction over your dispute. It is whether something in the Constitution or a statute has taken it away.
That is a much harder proposition, and it disposes of most jurisdictional arguments before they start.
Where jurisdiction genuinely is excluded
| Matter | Where it belongs |
|---|---|
| Interpretation or application of a Constitutional Law | Supreme Court — s 18(1), original jurisdiction to the exclusion of other courts; other courts shall refer under s 18(2) unless the question is trivial, vexatious or irrelevant |
| Disputes as to interests in customary land | Mediation, then the Local Land Court — Land Disputes Settlement Act (Chapter 45) |
| Appeals from the National Court | Supreme Court — Supreme Court Act (Chapter 37) |
| Leadership Code misconduct | Leadership Tribunal, on reference by the Ombudsman Commission |
| Adultery and enticement compensation | The District Court — the Adultery and Enticement Act 1988 defines “Court” that way |
| A dispute the parties agreed to arbitrate | Arbitration — though this founds a stay rather than a want of jurisdiction |
Where a question of the interpretation or application of a Constitutional Law arises, section 18(2) obliges the National Court to refer it to the Supreme Court. That is not a matter for the parties’ agreement, and it can be raised at any stage.
Note the distinction the Constitution draws: the National Court enforces constitutional rights under sections 22 and 57, and awards compensation under section 58 — see human rights proceedings. What it does not do is decide what a Constitutional Law means.
Order 7 Rule 7
A defendant may, either before giving notice of intention to defend or within 14 days after giving that notice, serve a notice of motion to set aside service or discharge the order authorising it, on the ground — among others — that the Court has no jurisdiction to determine all or part of the plaintiff’s claim.
Rule 7(1) — giving a notice of intention to defend does not constitute a submission to the jurisdiction.
Rule 7(5) — after the motion is served, the plaintiff may not enter default judgment or take any other step without leave.
The ground is available where the Court lacks jurisdiction over part of the claim. A claim that mixes a matter properly before the National Court with one reserved to another body may be attacked in part — and the Court may then deal with the rest, since Order 5 Rule 7(2) allows it to determine the issues in dispute so far as they affect the rights and interests of the parties.
See conditional notice of intention to defend for the full procedure and the orders available under Rule 8.
Objections that are something else
“The claim is time-barred.” That is a defence, to be pleaded — see limitation periods. It is also a matter the listings checklist raises, as whether any condition precedent to the action or statutory time bar issues arise.
“No section 5 notice was given.” Under the Claims By and Against the State Act 1996, no action lies without it — a powerful point, but properly raised as a defence or on an application to dismiss, not as want of jurisdiction. See section 5 notices.
“The plaintiff has no standing.” Locus standi is expressly considered at the listings mention, and may support dismissal under Order 12 Rule 40.
“The claim should have been in the District Court.” Not a jurisdictional objection at all — the National Court’s jurisdiction is unlimited. It is a costs point. See suing in the wrong court.
Where the objection is to the mode, not the Court
Proceedings begun by originating summons that should have been begun by writ are not a nullity: Order 4 Rule 35 allows the Court to order the proceedings to continue on pleadings, whereupon they proceed as if commenced by writ.
Similarly, judicial review must go through Order 16 and requires leave; election petitions follow the Election Petition Rules 2017. Using the wrong track is an objection to procedure, met by an order transferring or converting the proceeding.
And Order 1 Rule 8 stands behind all of it: non-compliance with the Rules does not render a proceeding void, though the Court may set it aside for irregularity.
A defendant who files a defence, seeks discovery, or applies for other relief before taking the jurisdiction point will find it much harder to press. Rule 7(1) protects the notice of intention to defend — it does not protect every other step you take.
Sources
- Constitution — ss 18, 22, 57, 58, 155, 166, 172
- National Court Rules 1983 — O 1 r 8; O 4 r 35; O 5 r 7; O 7 rr 7, 8; O 12 r 40; O 16
- Land Disputes Settlement Act (Chapter 45); Supreme Court Act (Chapter 37)
- Claims By and Against the State Act 1996 — s 5
- Adultery and Enticement Act 1988; Organic Law on the Ombudsman Commission
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.