This article sets out the mechanics. On which originating process to use, see writ or originating summons.
Check these first
- Is this the right court? The National Court has unlimited jurisdiction under Constitution section 166(1), but a small claim belongs in the District Court. See suing in the wrong court.
- Are you within the limitation period? Filing is what stops the clock.
- Is the State a defendant? If so, you must first have given the section 5 notice under the Claims By and Against the State Act 1996. No notice, no action.
- Which originating process? A writ is compulsory for tort, fraud, and death, personal injury or property damage claims — Order 4 Rule 2.
- Are you a corporation? Order 4 Rule 5(2) — a corporation may not commence or carry on proceedings otherwise than by a solicitor.
What the document must look like
| Requirement | Rule |
|---|---|
| Prescribed form — Form 5 (writ), Form 6 or 7 (originating summons) | O 4 rr 16, 26, 27 |
| Headed “In the National Court of Justice”, entitled between the parties | O 2 rr 22, 23 |
| A4 paper, one side only, 51 mm left margin, no carbon copies | O 2 r 26 |
| Backsheet with title, description, and solicitor’s or party’s contact details | O 2 r 27 |
| Signed by the solicitor, or by the party if unrepresented | O 2 r 30 |
| Dates and sums in figures | O 2 r 28 |
| Relief claimed stated specifically; plaintiff’s name, address, occupation; address for service within 15 km of the Registry | O 4 rr 7, 8 |
| On a writ — endorsed with a statement of claim before issue | O 4 r 19 |
| Note warning the defendant of judgment in default, and the time for responding | O 4 r 9 |
Order 1 Rule 11(2) — it is sufficient compliance if the document is substantially in accordance with the requirement, or has only such variations as the nature of the case requires.
But note Order 4 Rule 17: the costs of prolix writs and endorsements are borne by the party using them.
The Registry
Originating process shall be filed in the Registry — which includes a sub-registry under the Order 1 Rule 6 definition.
The Registry is open every day except Saturdays, Sundays and Court holidays, from 8.00 a.m. to 12.00 noon and 1.00 p.m. to 3.30 p.m.
Order 2 Rule 12 — a person with proper business that could not be transacted when the office next opens, or which would involve serious risk of prejudice, may require the Registrar to open on payment of K5.00.
Order 2 Rule 13 — a Judge may, on sufficient cause, direct the Registrar to open at a specified time, and may fix a special fee.
These provisions exist for the case where a limitation period expires tonight, or an urgent injunction cannot wait until morning.
On filing
1. Date. Order 2 Rule 19 — the Registrar writes the date of filing on the document. That date, not the date typed on it, is the date the proceeding is commenced.
2. Serial number. Order 2 Rule 20 — the first document filed is assigned a serial number with the calendar year. Every later document must bear it. A new series begins each year.
3. Register. Order 2 Rule 15 — the filing is entered in the register of all documents filed.
4. Sealing. Order 4 Rule 12(3) — the Registrar signs and marks with the seal of the Court a sufficient number of copies for service and proof of service.
You need one for each defendant, one to retain, and one for the affidavit of service. Sub-rule (3) contemplates copies for both service and proof of service.
The writ takes effect as an act of the Court because it is sealed — section 5 of the National Court Act (Chapter 38) requires a seal for sealing all writs and other instruments issued out of the Court. An unsealed copy is not a writ.
Filing fees
Order 2 Division 6 provides for fees, and the amounts are set by regulation and revised from time to time. No figure is given here because a stale figure is worse than none.
Ask the Registry for the current scale before you attend. See also what a National Court case costs.
One exception worth knowing: section 6 of the Claims By and Against the State Act 1996 provides that no fees shall be payable by the State for filing, issuing, sealing or otherwise dealing with any document.
What happens next
1. Serve the sealed originating process under Order 6. The process is valid for service for two years, and that period cannot be extended.
2. Prove service by affidavit.
3. Await the defendant’s notice of intention to defend — 30 days after service within Papua New Guinea, two months if served abroad, or by the hearing date on an originating summons under Order 4 Rule 26.
4. If no notice is given, consider default judgment under Order 12 — but note the special rules where the defendant is the State, and that default judgment cannot be entered during the vacation without a Judge’s direction.
5. If a defence is filed, the case moves into pleadings, discovery and setting down for trial.
Sources
- National Court Rules 1983 — O 1 rr 6, 11; O 2 rr 11–15, 19, 20, 22–30, Div 6; O 4 rr 2, 5, 7–13, 16–19, 26, 27; O 6
- National Court Act (Chapter 38) — ss 4, 5
- Claims By and Against the State Act 1996 — ss 5, 6
- Constitution — s 166
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.