Interlocutory orders are made quickly, often on limited material and sometimes without the affected party present. The National Court Rules 1983 provide a route back.
The Motions Rules
(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 the judge who made the ex parte order is unavailable, the application may be made before another judge.
Inter partes — the application to set aside is itself made on notice. You cannot answer one ex parte order with another.
Before the same judge — because that judge knows what they were told. Where the complaint is that the applicant failed to disclose something, only the judge who heard the original application can measure the omission.
Sub-rule (2) provides the practical exception. Judges travel on circuit, and a party should not be left without a remedy because a judge is unavailable.
Why an ex parte order may be set aside
| Ground | Point to make |
|---|---|
| Material non-disclosure | The applicant failed to put relevant facts before the Court — the strongest ground |
| No serious question to be tried | The claim does not meet the threshold |
| Balance of convenience misjudged on full facts | The evidence now shows greater harm from the order than without it |
| No genuine urgency, or no reason to dispense with service | The Motions Rules require both to be demonstrated |
| The order grants substantive relief | Prohibited — a judge shall not make any order in terms of the substantive relief sought in the originating process |
| No jurisdiction stated in the motion | Motions Rule 8 — the Court may strike out the motion for being incompetent and for lack of form |
| The order is too wide or unworkable | Seek variation rather than discharge |
| No undertaking as to damages, or one of no value | Ask for the order to be discharged or made conditional on security |
In Golobadana No 35 Ltd v Bank of South Pacific Ltd [2002] PGNC 36; N2309, the National Court held an applicant to be under an obligation to disclose all relevant facts and information before the grant of an injunction, and treated a failure to do so as capable of resulting in the lifting of an injunction, or a refusal to continue injunctive orders obtained ex parte. On the facts, the failure to disclose told against continuity.
So if you are answering an ex parte injunction, start by obtaining the applicant’s affidavits and identifying what was left out.
Often you need not apply at all
Under the Motions Rules, where interim orders are granted ex parte the judge must make them returnable before the Court on a fixed date, and must order service of the Order, the Originating Process, Notice of Motion, supporting affidavit, undertaking as to damages, security for costs and any other relevant documents on the defendant or any other person directly affected.
The judge may also give “liberty to apply”.
The order has a built-in expiry. It continues only to the return date unless extended, so the burden is on the applicant to justify continuing it.
You are entitled to the material. If the documents have not been served, ask for them at once — you cannot answer what you have not seen.
Liberty to apply means you can come back earlier. Where the order is causing serious harm, do not simply wait for the return date.
A different position entirely
Where an interlocutory order was made after a contested hearing, the Court has decided the question. Asking the same judge to decide it again on the same material is an abuse, and exposed to Order 12 Rule 40.
Three legitimate routes remain:
1. A material change of circumstances. Interlocutory orders regulate the position pending trial, and the Court retains power to vary them as things change. Say what has changed, and when.
2. The slip rule. Under Order 8 Rule 59, where there is a clerical mistake in a minute of a judgement or order, or an error arising from an accidental slip or omission, the Court may, on application by a party or of its own motion, at any time, correct it. That corrects the record; it does not reopen the decision.
3. Appeal. Where the judge simply got it wrong, the Supreme Court is the forum.
What to file
- A notice of motion stating precisely whether you seek discharge, variation or a stay of the order, and containing a concise reference to the Court’s jurisdiction as Motions Rule 8 requires.
- An affidavit setting out the facts the Court was not told, or the change of circumstances.
- The applicant’s own material, exhibited, so the comparison is before the Court.
- Move promptly. Delay suggests the order is not causing the harm alleged.
- List it before the same judge — tell the Registry which judge made the order.
- Consider asking for variation rather than discharge. A court unwilling to discharge an order may readily narrow it, add exceptions, or require security for the undertaking under Order 14 Division 4.
Where an ex parte order is discharged for non-disclosure, the successful party should ask for costs, and may ask for an inquiry on the undertaking as to damages for loss suffered while the order stood. Note Order 22 Rule 22: where the Court grants an interlocutory injunction and afterwards a further injunction continuing it, an order as to the costs of the further injunction shall, unless the Court otherwise orders, include the costs of the first.
Sources
- National Court Rules 1983 — O 8 r 59; O 12 rr 8, 40; O 14 Div 4; O 22 r 22; Motions Rules rr 5, 8, 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.