Order 10 Division 1 of the National Court Rules 1983 governs setting down. It must be read with the Listings Rules 2005, which are reproduced as Rule 9A and are expressed to be in addition to Order 10 Division 1.
Order 10 Rule 4
(1) A party may, after the pleadings are closed, file a notice requesting that the proceedings be set down for trial.
(2) The notice, in Form 40, shall state —
(a) the place for trial as fixed by or under Rule 2; and
(b) whether the proceedings are to be set down for trial generally or for the trial of specified issues.
(3) The party filing shall, on the day of filing, serve the notice on each other party who has an address for service.
Proceedings shall, unless the Court otherwise orders, be set down for trial generally — that is, for trial of all the questions and issues arising on every claim for relief.
Setting down for specified issues requires an order. See separate decision of a question under Order 10 Division 4.
(1) Trial shall take place at such place within Papua New Guinea as is stated in the notice filed under Rule 4.
(2) The Court may, on the application of a party or of its own motion, appoint some other place within Papua New Guinea.
(3) Unless the Court otherwise orders the trial shall be by a single Judge.
Six weeks, and a letter first
Where a plaintiff wishes to file a Notice to Set Down for Trial he may do so after lapse of 6 weeks from the close of pleadings (after all interlocutory processes have been completed). He shall first write to the other parties to notify them that he is going to do this. Such letter can be sent at any time after pleadings are closed.
Six weeks must elapse from the close of pleadings, and all interlocutory processes must be complete. A notice filed earlier is premature.
You must write first. The letter is a precondition, not a courtesy. It may be sent at any time after pleadings close, so it can be sent immediately and the six weeks run in parallel.
(a) Advise the Plaintiff in writing that they are not ready, specifying the reasons — with a copy of the letter sent to the Registrar to be placed on the Court file; or
(b) Endorse the Notice to Set Down with the words: “I agree that the matter is ready to proceed, pleadings have closed and there are no further interlocutory steps to complete prior to the Notice to Set Down for Trial being filed”; or
(c) Send a letter to the other party, with a copy to the Court, agreeing in the terms set out in (b).
The Listings Rules are explicit: the endorsement must be signed by the lawyer or the party and the name of the lawyer or party must appear below the signature. It must not be signed or initialled by the law firm, which is incapable of having a signature.
A notice endorsed in the firm’s name is liable to be rejected. This is a small point that costs real time.
The plaintiff shall apply by Motion, before the Listings Judge, for leave to be given for a Notice to Set Down for Trial or for such other orders as may seem appropriate.
So a defendant cannot simply block setting down by asserting unreadiness. But the plaintiff must go to the Listings Judge rather than filing regardless.
Rules 7 to 9
| Rule | Step |
|---|---|
| 7 | The Registrar shall place the matter in the list of matters for hearing at the next sittings at the place appointed |
| 8(1) | The plaintiff shall, within seven days after the cause or issue has been set down, deliver to the Registrar two copies of the whole of the pleadings or of the issues, one for the use of the Court at the trial |
| 8(2) | Those copies shall be typed, except for parts the Rules permit to be written |
| 9 | The Registrar shall, not less than 14 days before the trial date, give notice of trial in Form 41 to each party with an address for service who was not present or represented when the proceedings were set down |
Rule 6 — directions instead
Where notice to set down has been filed but the Court considers that the proceedings are not ready for trial, the Court may give directions as to the steps to be taken to make the proceedings ready for trial.
Rule 5 — six weeks, and the risk of dismissal
Where a plaintiff does not, within six weeks after the pleadings are closed, set the proceedings down for trial, the Court, on motion by any other party, may, on terms, dismiss the proceedings or make such other order as the Court thinks fit.
Under the Listings Rules a plaintiff may not file the notice until six weeks have elapsed. Under Order 10 Rule 5, a plaintiff who has not set the matter down within six weeks is exposed to a motion to dismiss.
Read together, the message is that the six-week mark is when the plaintiff should be acting: writing to the other parties immediately after pleadings close, completing any outstanding interlocutory steps, and filing the notice as soon as the period expires.
Rule 5 is discretionary — “may, on terms, dismiss the proceedings or make such other order” — and in practice the Court usually gives a further opportunity with a costs order. But a plaintiff who has done nothing for months has no answer. See dismissal for want of prosecution, and note the parallel power in Order 4 Rule 36.
Sources
- National Court Rules 1983 — O 4 r 36; O 8 r 23; O 10 rr 1–9, 9A (Listings Rules 2005 rr 1–7), Div 4; Forms 40, 41
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.