A defendant who thinks the writ should never have reached them faces a dilemma: respond, and appear to accept the Court’s authority; or stay silent, and risk default judgment. Order 7 Rule 7 of the National Court Rules 1983 resolves it.
Rule 7(1)
The giving of a notice of intention to defend does not constitute a submission to the jurisdiction of the Court.
Under older practice, a defendant who entered an unconditional appearance was taken to have accepted jurisdiction. Rule 7(1) removes that trap: filing the notice protects you against default judgment and preserves the objection.
So the practical advice for a defendant with a jurisdiction or service point is straightforward: file the notice, then move promptly. Do not choose between them.
Rule 7(2)
A defendant shall be entitled, either before giving notice of intention to defend or within 14 days after giving that notice, to serve a notice of motion to set aside the service on him of the writ or of notice of the writ, or to discharge the order authorizing the service, on the ground that —
(a) the Court has no jurisdiction to determine all or part of the plaintiff’s claim; or
(b) the issue or service of the writ was irregular; or
(c) an order giving leave to serve the writ or notice of the writ out of the jurisdiction ought not to have been made; or
(d) the defendant has been served as a partner in a firm of which he was not a partner or liable as such at any material time.
| Ground | Typical case |
|---|---|
| (a) No jurisdiction | The matter is one for the Supreme Court under Constitution s 18; or for a Local Land Court; or the defendant has no connection with Papua New Guinea at all |
| (b) Irregular issue or service | Served after the two-year validity period; not the sealed copy; a company served otherwise than under Companies Act s 431; the State served otherwise than under Claims Act s 7 |
| (c) Leave should not have been given | The proceeding is not within any Order 6 Rule 19 category, or there was no prima facie case, or the Rule 20(3) affidavit was defective |
| (d) Not a partner | Served as a member of a firm the defendant never belonged to, or had left before the material time |
“The Court has no jurisdiction” means the Court lacks authority to determine the claim — not that the plaintiff will lose. A weak claim is met by a defence, or by an application to dismiss under Order 12 Rule 40, not by Rule 7.
Remember too that the National Court is a court of unlimited jurisdiction under Constitution section 166(1). Genuine jurisdictional objections are correspondingly narrow — see suing in the wrong court.
Rule 7(5) — the plaintiff must stop
After the service of the notice of motion the plaintiff shall not be entitled to enter judgement in default of defence or take any other step in the action without the leave of the Court.
The freeze operates on service of the notice of motion — not on its hearing. So a defendant who serves the motion is immediately safe from default judgment while the jurisdiction question is decided, which is exactly right: the plaintiff should not obtain judgment in a court whose authority is under challenge.
It also gives the defendant breathing space on the defence, which would otherwise be running.
Rule 8
The Court may, on motion made by a defendant under Rule 7, by order —
(a) set aside the originating process; or
(b) set aside the service of the originating process; or
(c) declare that the originating process has not been duly served; or
(d) discharge any order giving leave to serve the originating process outside Papua New Guinea or confirming service outside Papua New Guinea.
Paragraph (a) is the strongest: the process itself goes. Paragraphs (b) and (c) leave the writ standing but undo the service — and if the two-year validity period has expired, and Order 4 Rule 13(2) forbids extending it, that may be just as decisive.
Paragraph (d) is the answer to a leave order obtained on inadequate material.
The application in practice
- Diarise the 14 days. It runs from the giving of the notice — which, under Order 7 Rule 3(3), is the date the notice is received in the Registry.
- Or move before filing any notice at all. Rule 7(2) expressly permits that.
- State the ground. Identify which of paragraphs (a) to (d) you rely on, and cite Order 7 Rules 7 and 8 as the jurisdiction — Rule 8 of the Motions (Amendment) Rules 2005 requires a concise reference to the Court’s jurisdiction in the motion.
- Support it with an affidavit proving the facts — when and how you were served, why you are not a partner, why the leave order was wrong.
- Serve it. The Rule 7(5) freeze begins on service.
- Do not take other steps in the meantime. Filing a defence, seeking discovery or applying for other relief undercuts the objection, whatever Rule 7(1) says about the notice itself.
The proceeding continues and the defendant must defend it. Ask, when the motion is dismissed, for directions on the time to file the defence — the Court has ample power under Order 1 Rule 15 and Order 4 Rule 31 to fix a fresh timetable.
Sources
- National Court Rules 1983 — O 1 r 15; O 4 rr 13, 31; O 6 rr 19, 20; O 7 rr 3, 7, 8; O 12 rr 25–40; Motions (Amendment) Rules 2005 r 8
- Constitution — ss 18, 166
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.