No set of rules can foresee every situation. Order 1 Rule 12 of the National Court Rules 1983 deals with the gap.
(1) Where a person desires to commence proceedings or take any step in any proceedings, and the manner or form of procedure is not prescribed by an Act or these Rules, or that person is in doubt as to the manner or form of procedure, the Court may, on application by that person, give directions.
(2) Proceedings commenced in accordance with the directions of the Court shall be well commenced.
(3) A step taken in accordance with the directions of the Court shall be regular and sufficient.
(4) In respect of proceedings to be commenced for directions under sub-rule (1), application may be made by originating summons.
When Rule 12 is available
| Trigger | Meaning |
|---|---|
| Procedure not prescribed | Neither an Act nor the Rules say how the thing is to be done — a genuine gap |
| Applicant is in doubt | There may be a procedure, but its application to this situation is genuinely unclear |
Rule 12(1) does not require the applicant to prove that no procedure exists. It is enough that they are in doubt as to the manner or form of procedure.
That is a sensible allowance. A party faced with a novel application, or with a statute that creates a right but says nothing about how to assert it, should not have to guess and risk the whole proceeding.
Sub-rules (2) and (3) — why this matters
These are the operative words. Proceedings commenced in accordance with directions shall be well commenced. A step taken in accordance with directions shall be regular and sufficient.
So a party who obtains directions and follows them cannot later be met with an argument that the proceeding was irregularly commenced, or that the step was ineffective. The direction settles the point.
That is a real advantage over simply guessing and hoping to rely on Order 1 Rule 8 — which saves an irregular proceeding from being void but still exposes it to being set aside as irregular, and to a costs order.
Making the application
Before a proceeding exists — sub-rule (4) provides that application may be made by originating summons. See what an originating summons is.
Within an existing proceeding — by notice of motion under Order 4 Division 5, supported by an affidavit setting out the difficulty.
- The right or claim to be asserted, and its source — a statute, the Constitution, or the underlying law.
- Why the Rules do not answer the question, or why their application is doubtful.
- The procedure proposed — courts respond better to a concrete proposal than to an open request for guidance.
- Who is affected, and whether they should be heard before directions are given.
Situations where Rule 12 is useful
A statute creates a right but no procedure. Papua New Guinean legislation frequently confers a right of appeal or application on the National Court without prescribing the form. Rule 12 supplies it.
A novel remedy. Applications invoking Constitution section 155(4) — orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case — often have no prescribed form.
An unusual party or capacity. Proceedings by or against an unincorporated body, a customary group, or a person under a disability for whom no next friend is available.
Two rule sets that may both apply. For example a matter touching both the ordinary Rules and the Human Rights Rules in Order 23, which are expressed to be in addition to the National Court Rules.
The Court’s other flexibility
Order 1 Rule 7 — the Court may dispense with compliance with any requirement of the Rules, before or after the occasion for compliance arises.
Order 1 Rules 15 and 16 — the Court may extend or abridge time, and may fix a time where none is fixed.
Order 1 Rule 11(2) — substantial compliance with a form is sufficient.
National Court Act section 9 — practice and procedure is as provided by law or the Rules, except as directed by the National Court at any stage of the matter.
Taken together these provisions mean that a procedural difficulty is very rarely fatal in the National Court. What is fatal is a statutory bar — a limitation period, or the missing section 5 notice in a claim against the State — and no rule of court can cure that.
How a Rule 12 application is made
- State the step you want to take — commencing the proceeding, or a particular step within one.
- Show that the manner or form of procedure is not prescribed, or is in doubt. Set out the rules you have considered and explain why none answers the question, or why two answer it differently.
- Propose the directions you seek. A draft set of directions is far more useful to the Court than an open request for guidance.
- Support it with an affidavit setting out the facts that make the difficulty real.
Where a proceeding has not yet been commenced, the application is necessarily made before any other party is on the record — compare Order 4 Rule 38 on motions without notice. Where the proceeding is on foot, serve the other parties.
Proceedings commenced in accordance with directions shall be well commenced, and a step taken in accordance with them is regular and sufficient. That forecloses the argument, months later, that the whole proceeding was begun the wrong way.
It is a far better position than relying on Order 1 Rule 8 after the event — that rule saves a proceeding from being void, but leaves it open to being set aside as irregular, and leaves the party in default exposed on costs.
So where genuine doubt exists, ask first. Rule 12 costs one application; getting it wrong can cost the proceeding.
Sources
- National Court Rules 1983 — O 1 rr 7–16; O 4 Divs 4–5, r 38; O 23
- National Court Act (Chapter 38) — ss 8, 9
- Constitution — ss 155(4), 184
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.