An injunction is sometimes needed before the other side can be told — assets about to be moved, land about to be cleared, a document about to be destroyed. The Motions Rules of the National Court Rules 1983 prescribe how such an application is made.
The first step is not the Court
(a) A lawyer or party wishing to make an urgent ex parte application must contact the Registrar in writing, explaining the reasons for the urgency and why the requirement for service of the Motion is sought to be dispensed with.
(b) The Registrar, after being satisfied with the explanation given, will fix a time and date for the hearing in consultation with the Motions Judge.
The Registrar is a gatekeeper, and the letter must do real work: what the threatened harm is, why it cannot wait for an ordinary motion on notice, and why service should be dispensed with.
Out of hours, there is a separate route: motions to be moved after official Court sitting time, on weekends and public holidays, must be done by prior arrangement with the Registrar. The Motions Judge is the duty judge, or another judge assigned by the Judge Administrator (Civil), and such applications are treated as urgent, with the same practice applying.
Five documents — all of them
- Originating Process
- Notice of Motion
- Supporting Affidavit or Affidavits
- Where appropriate, an Undertaking as to Damages
- Draft order
The originating process must be filed. Even where you proceed under Order 14 Rule 9 — which permits an injunction on the application of a person who merely intends to commence proceedings — the Motions Rules require the originating process for the application to be listed.
Where the claim is one that would ordinarily require a writ, remember Order 4 Rule 2(3)(b): that requirement does not apply to a person who desires to apply for an immediate injunction, so an originating summons may be used.
The draft order matters more than it looks. The judge is being asked to make an order at speed, without argument from the other side. A clear, narrow, workable draft is far more likely to be made than a sprawling one.
The order of the relief sought
The applicant must, in the Notice of Motion, first seek an order dispensing with the requirement for service of the motion.
In the supporting affidavit, the deponent must demonstrate the urgency of the matter and the reasons why dispensation with the requirement for service is necessary — such as difficulty with locating the defendant in order for service to be effected.
Urgency — why the matter cannot wait.
Why service should be dispensed with — which is a different question. It is not enough that the matter is urgent; there must be a reason the other side cannot be told, whether because they cannot be found, or because notice would defeat the purpose of the order.
Remember also that Rule 8 of the Motions Rules requires every motion to contain a concise reference to the Court’s jurisdiction. Motions without it will not be accepted for filing, and if accepted in error may be struck out for being incompetent and for lack of form. See notices of motion.
Paragraph (e)
- An order dispensing with requirements of service;
- An interim order which provides some solution, until the return date;
- Service of the Order, the Originating Process, Motion, Supporting Affidavit, Undertaking as to Damages (where appropriate) and other documents, on or by a specified date;
- Giving “liberty to apply”;
- Giving a specific return date, when the interim orders become returnable before the Motions Judge;
- An affidavit of service of those documents.
A party shall not and the judge shall not make any order in terms of the substantive relief sought in the originating process.
This restates Rule 9 of the Motions Rules: except as expressly provided, motions shall be for relief on interlocutory matters only and not for the substantive relief claimed.
So an ex parte application cannot deliver the case. It can only hold the position until the return date. An applicant who asks, without notice, for what they seek at trial will be refused.
Full and frank disclosure
Because the Court hears one side only, the applicant must put before it all relevant facts and information — including matters favouring the absent party.
In Golobadana No 35 Ltd v Bank of South Pacific Ltd [2002] PGNC 36; N2309, the National Court treated the applicant’s failure to disclose all relevant facts as a matter that could result in the lifting of an injunction, or a refusal to continue orders obtained ex parte — and it told against continuity there.
So disclose the defendant’s known answer, any relevant delay, any earlier proceedings, and any weakness in your position. See what you must prove.
The return date, and afterwards
(1) An application to set aside an ex parte order shall be made inter partes, before the same judge who made the ex parte order.
(2) Where that judge is unavailable, the application may be made before another judge.
The rule sends the application to the judge who granted the order, because that judge knows what they were told — which matters where the complaint is non-disclosure.
A restrained party need not always wait for the return date. But note that under Rule 20 of the Motions Rules the judge may dispense with the requirements of these Rules in appropriate cases, and interim orders are in any event returnable on the date fixed. See setting aside an interlocutory order.
On service of the order once made, Order 6 Rule 17 allows notice of an interlocutory injunction to be served by telegram or letter signed by or on behalf of the Registrar — speed being the point.
Sources
- National Court Rules 1983 — O 4 rr 2, 38; O 6 r 17; O 14 r 9; Motions Rules rr 5–9, 19(4), 20
- Golobadana No 35 Ltd v Bank of South Pacific Ltd [2002] PGNC 36; N2309
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.