The first question every defendant asks. Order 4 Rule 11 of the National Court Rules 1983 answers it.
Order 4 Rule 11
The time to be limited for a defendant to give a notice of intention to defend shall be —
(a) in the case of service of an originating summons under Rule 26 — not later than the date for hearing stated in the summons; or
(b) in the case of service of other originating process —
(i) within Papua New Guinea — not less than 30 days after service; or
(ii) outside Papua New Guinea — two months after service or such other time as the Court may order.
Rule 11 does not say the period is 30 days. It says the time to be limited shall be not less than 30 days. The period is fixed on the writ itself, and it may be longer than 30 days.
So read the document you were served with. The endorsement on the originating process states the time within which you must give notice, and that is your deadline. Thirty days is the floor, not necessarily the figure.
When the clock starts and stops
Time runs from the date of service, not the date the writ was filed or sealed. The day of service is excluded, and the period ends at the close of the last day.
Where the last day falls on a day the Registry is closed, the act may be done on the next day it is open. And where the period is expressed in days and is less than seven, days on which the Registry is closed are not counted — a rule that matters more for motions than for the 30-day period here.
See how time is calculated in full.
The date of service is a question of fact, proved by the affidavit of service under Order 6 Rule 18. Where the writ was posted, Order 6 Rule 4(3) deems service to occur when the document would be delivered in the ordinary course of post, unless the contrary is proved.
If you are a defendant and unsure when you were served, do not guess in your favour. Treat the earliest possible date as the start.
Paragraph (a) is much tighter
Where you are served with an originating summons under Order 4 Rule 26, the notice must be given not later than the date for hearing stated in the summons.
An originating summons names a return date on its face. There is no 30-day period. If the summons is returnable in ten days, you have ten days.
This is one of the practical differences between the two modes of commencement: the writ procedure gives a defendant a fixed minimum period; the originating summons brings the matter before a judge quickly.
The whole timetable
| Step | Time | Provision |
|---|---|---|
| Notice of intention to defend — served in PNG | Not less than 30 days after service, as limited on the writ | O 4 r 11(b)(i) |
| Notice — served abroad | Two months, or as the Court orders | O 4 r 11(b)(ii); O 6 r 20(6) |
| Notice — originating summons under r 26 | Not later than the hearing date stated | O 4 r 11(a) |
| Motion to set aside service or challenge jurisdiction | Before the notice, or within 14 days after giving it | O 7 r 7(2) |
| Defence | Governed by Order 8 — see the defence | O 8 |
| Recovery of land — notice to occupier | Served not less than 21 days before the date in the notice; occupier applies within 21 days | O 4 rr 14, 26 |
Under Order 7 Rule 7(2), a defendant may move to set aside service or challenge jurisdiction either before giving notice of intention to defend, or within 14 days after giving it. Fourteen days is short. Any defendant with a jurisdiction or service point must take advice at once — not after the 30 days have run.
Missing the deadline
You may still file. Order 7 Rule 6(1) — a defendant may give a notice of intention to defend at any time without leave.
But you gain nothing. Rule 6(2) — you are not entitled to file a defence or do any other thing later than if you had given notice within the time, unless the Court orders otherwise.
And judgment may already be entered. A plaintiff may sign default judgment once the time has passed. Filing a late notice does not undo it — you must apply to set it aside.
Order 1 Rule 15 allows the Court to extend any time fixed by the Rules or by any judgement or order, and it may do so after the time has expired. So an extension is available — see getting more time to defend.
The cheapest course is usually to ask the plaintiff’s lawyers for a short extension by consent before the time runs out. Most will agree; and a party who unreasonably refuses may face a costs consequence when the Court grants what should have been agreed.
Whatever the merits, respond within the time limited. See what happens if you ignore a writ. If you believe the Court has no jurisdiction, that is a reason to move under Order 7 Rule 7 — not a reason to do nothing.
Sources
- National Court Rules 1983 — O 1 Div 3, r 15; O 4 rr 11, 14, 26; O 6 rr 4, 18, 20; O 7 rr 6, 7; O 8; O 12 Div 3
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.