Order 4 of the National Court Rules 1983 governs how a civil case begins.
Subject to the provisions of any Act, regulations or rules, but without prejudice to Order 8 Rule 38, proceedings in the Court under this Part shall be commenced by writ of summons or by originating summons.
Order 4 Rule 4 — proceedings may be instituted by motion only if they relate to an interlocutory application.
A notice of motion is a step within a proceeding, not a way of starting one. See making an interlocutory application.
Choosing between them
| Claim | Process | Rule |
|---|---|---|
| Relief or remedy for any tort | Writ — required | O 4 r 2(1)(a) |
| Claim based on an allegation of fraud | Writ — required | r 2(1)(b) |
| Damages for breach of duty including death, personal injuries or damage to property | Writ — required | r 2(1)(c) |
| Damages for breach of promise of marriage | Writ — required | r 2(1)(d) |
| Mainly a question of construction of an Act, deed, will or contract, or some other question of law | Originating summons — appropriate | r 3(2)(a) |
| Unlikely to be a substantial dispute of fact | Originating summons — appropriate | r 3(2)(b) |
| An application authorised by an Act where no other mode is prescribed | Originating summons — appropriate | r 3(2)(c) |
Even where a writ would otherwise be required, sub-rule (1) does not apply to proceedings commenced by a person who desires to apply for —
(a) a declaration of right; (b) an immediate injunction; (c) an immediate appointment of a receiver; or (d) immediate orders under Order 14 Rule 10 (preservation of property).
That is what allows an urgent application — see getting an injunction — to be brought quickly by originating summons even in a tort case. See choosing between a writ and an originating summons.
Order 4 Rules 7 and 8
(1) An originating process shall state specifically the relief claimed by the plaintiff.
(2) Where the claim includes a claim for the determination or direction of the Court on any question, the originating process shall state the question.
(3) Costs need not be specifically claimed.
(a) the name, address and occupation of the plaintiff;
(b) where the plaintiff sues by a solicitor — the name, address and telephone number of the solicitor;
(c) where that solicitor acts by an agent — the agent’s name, address and telephone number;
(d) an address for service, which shall not be more than 15 km from the Registry.
The address for service must be within 15 km of the Registry. A plaintiff living in a village far from the provincial centre cannot simply give their home address.
The practical answer is to nominate the address of a lawyer, or of a person or business in town willing to receive documents. Without a valid address for service, documents cannot reach you and orders may be made in your absence — see appearing for yourself.
Order 4 Rule 12 — the proceeding begins
(1) Proceedings shall be commenced by the filing of the originating process.
(2) Originating process shall be filed in the Registry.
(3) The Registrar shall sign and mark with the seal of the Court a sufficient number of copies of the originating process for service and proof of service.
The proceeding is commenced on filing. That is the date that matters for a limitation period under the Frauds and Limitations Act 1988.
It is also the date from which the two-year validity period in Order 4 Rule 13 runs, and the date the Registry uses to assign the serial number under Order 2 Rule 20.
See how to file a proceeding for the practical steps.
Order 4 Rules 9 and 11
Where there is a defendant, an originating process (other than an originating summons under Rule 26) shall bear a note that the defendant is liable to suffer judgement or an order against him unless the prescribed form of notice of his intention to defend is received in the Registry — and the note shall specify the time limited for giving it.
(a) Originating summons under Rule 26 — not later than the date for hearing stated in the summons.
(b) Other originating process — served within Papua New Guinea: not less than 30 days after service; served outside Papua New Guinea: two months after service, or such other time as the Court may order.
See how long you have to respond. Note that where the State is the defendant, section 9 of the Claims By and Against the State Act 1996 substitutes a longer period for filing a defence.
Order 4 Rules 5 and 6
(1) Subject to sub-rule (2), Rule 6(1) and Order 5 Rule 20(2), any person may proceed in the Court by a solicitor or in person.
(2) Except as provided by or under any Act, a corporation may not commence or carry on any proceedings otherwise than by a solicitor.
An individual may act for themselves; a company may not. A person under a disability sues by a next friend under Order 5. And under Rule 6 a relator must act by a solicitor, whose written authority must be filed.
Before filing, check three things: that you are within the limitation period; that this is the right court; and, if you are suing the State, that you have given the section 5 notice.
Sources
- National Court Rules 1983 — O 2 r 20; O 4 rr 1–13; O 5 r 20; O 8 r 38; O 14 r 10
- Frauds and Limitations Act 1988
- Claims By and Against the State Act 1996 — ss 5, 9
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.