Papua New Guinea practice does not distinguish between counter-claims and third party proceedings. Order 8 Division 3 of the National Court Rules 1983 uses a single mechanism for all of them.
Order 8 Rule 38
(1) A party against whom a claim is made in proceedings, and who claims relief by way of counter-claim, cross-action, set-off, third party claim or otherwise, may make his claim by filing a pleading by way of cross-claim in those proceedings.
(2) A cross-claimant may file a cross-claim within the time fixed for filing his defence.
Against the plaintiff — a counter-claim. Against a co-defendant — contribution or indemnity. Against a stranger — what other systems call a third party claim; see bringing in a third party.
Rule 37 — the Division applies to proceedings commenced by writ, and to originating summons proceedings to such extent and with such modifications as the Court may direct.
Rule 39
(1) A cross-claim shall be in Form 20 or 21 as the case requires.
(2) It shall be intituled in the proceedings with an addition showing the names of the parties to the cross-claim.
(3) Where the cross-claim is solely against a party who claims against the cross-claimant, the cross-claimant may add the cross-claim to his defence.
(4) Where there are two or more, they are called the second cross-claim, the third cross-claim, and so on.
(5) Subject to Rule 27, a cross-claimant may plead all or any of the facts relied on by reference to the prior pleadings.
(6) The cross-claimant shall, in addition, plead the facts showing that the claim is one which may be made in the proceedings.
(7) Order 4 Rule 7 (claims for relief in originating process) applies to a cross-claim whether or not it is an originating process.
It is not enough to plead your claim. You must plead why it belongs in these proceedings — the connection between your claim and the claim made against you. Omit it, and the cross-claim is vulnerable under Rule 27 and to an order under Rule 41(e) dismissing it.
Sub-rule (3) is a useful economy: where you are cross-claiming only against the plaintiff, put the cross-claim in the same document as the defence. And Rule 40 requires every later document to be intituled in the manner in which the cross-claim is intituled.
Rules 42 and 43
(1) Where a defendant to a cross-claim has an address for service in the proceedings on the date the cross-claim is filed, the cross-claimant shall, on that date, serve the cross-claim on him.
(2) Where they have an address for service, personal service is not required.
(3) Order 6 Rule 14 (filing as service) does not apply to a cross-claim.
Rule 44
(1) Proceedings on a cross-claim shall follow as nearly as may be the course of proceedings on a writ of summons.
(3) The Rules apply as if the cross-claim were a writ of summons, the cross-claimant were a plaintiff, and the defendant to the cross-claim were a defendant.
(4) A plaintiff in a writ of summons need not give notice of intention to defend a cross-claim in the same proceedings.
(5) A notice of intention to defend already given operates, on service of a cross-claim, as a notice of intention to defend the cross-claim.
(6) The trial and all other steps shall as far as practicable be carried on together with those on the writ.
Any party may, at any time after the filing of a cross-claim, move for directions. The Court may then order that any claim, question or issue be tried in such manner as it directs; give a cross-defendant leave to defend the claim on the statement of claim or to appear at its trial; dismiss the cross-claim; determine the extent to which the parties are bound between themselves by a judgment or decision, including one by consent or default; and direct the entry of such judgment as the nature of the case may require.
Rules 45 to 47
Rule 45 — where a cross-defendant does not give notice of intention to defend or file a defence, a judgment or decision on any claim, question or issue in the main proceedings shall, unless the Court otherwise orders, be binding as between the cross-claimant and that cross-defendant so far as it is relevant.
Rule 46 — a default judgment on a cross-claim may be set aside or varied, on terms. See setting aside default judgment.
Rule 47 — a cross-claim may proceed notwithstanding that judgment is entered on the writ, or that the proceedings on the writ are stayed, dismissed or discontinued.
Your cross-claim has an independent life. If the plaintiff discontinues, or their claim is dismissed, yours survives. And Rule 45 means a cross-defendant who ignores the cross-claim is bound by findings made in a trial they chose not to attend.
Rules 48 and 49
Rule 48(1) — judgment for the cross-claimant shall not be entered except by direction of the Court, and shall not, unless the Court otherwise orders, be enforced by execution until satisfaction of the judgment against the cross-claimant.
Rule 48(2) — where the claim is for contribution under Part VIII of the Wrongs (Miscellaneous Provisions) Act (tort-feasors) against a party already in the proceedings, a defence to the cross-claim shall not be filed or served unless the Court so directs.
Rule 49 — where a party offers before trial to contribute to a specified extent, and does so without prejudice to his defence, the offer shall not be brought to the attention of the Court until all questions of liability and amount have been decided.
Sources
- National Court Rules 1983 — O 4 r 7; O 6 rr 3, 14; O 8 rr 4, 26, 27, 37–49, Div 6; Forms 20–22
- Wrongs (Miscellaneous Provisions) Act (Chapter 297) — Pt VIII
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.