Order 4 Division 5 of the National Court Rules 1983, as amended by the Motions (Amendment) Rules 2005, governs motions.
Rule 37 — An interlocutory or other application, in or for the purpose of or in relation to proceedings commenced or to be commenced by writ or originating summons, shall be made by motion.
Rule 39 — the party applying is called the applicant; the party against whom relief is claimed is the respondent.
Order 4 Rule 4 — proceedings may be instituted by motion only if they relate to an interlocutory application.
And Rule 9 of the Motions (Amendment) Rules 2005 puts it beyond doubt: except as otherwise expressly provided, Motions shall be for relief on interlocutory matters only and not for the substantive relief claimed in the originating process.
Order 4 Rule 40
(a) state the date and time when, and the place where, the motion is to be moved;
(b) where the Court makes an order under Rule 44 — bear a note of the order made;
(c) state concisely the nature of the order which is sought;
(d) name each party affected by the order sought.
(2) Costs need not be specifically claimed. (3) Notice of motion shall be in Form 11.
All Motions must contain a concise reference to the Court’s jurisdiction to grant the orders being sought. Motions not containing such reference will not be accepted for filing.
And if a motion slips through the Registry without it, the Court may strike out the motion for being incompetent and for lack of form.
The Rule gives the required wording: “…move the Court for Order pursuant to (e.g. section 5 of the Claims By and Against the State Act…)…”.
This is the single most common reason motions are struck out in the National Court. Every motion must identify the rule, section or power relied on.
Rule 10 of the 2005 Rules — the motion must be signed by the lawyer or applicant, with the name appearing below the signature. The Motion cannot be signed by the Law firm as it is incapable of having a signature.
Order 4 Rule 41 — where the applicant or the applicant’s solicitor knows the respondent is an infant or a person of unsound mind, that fact shall appear on the face of the notice of motion.
Rules 38, 42 and 43
(1) A person shall not move the Court for any orders unless before moving he has filed notice of the motion and served it on each interested party who has an address for service.
(3) Except with leave, a motion shall be moved only on a date fixed by the Court for the hearing of motions.
Rule 42 — notice shall, unless the Court otherwise orders, be served not less than three days before the date named for hearing.
Rule 43(1) — where the person served has not given a notice of intention to defend and is not in default, the notice of motion shall be served personally.
Rule 43(2) — an affidavit of service shall be filed not later than the day before the motion is to be made.
Rule 11 of the 2005 Rules is explicit: counsel must ensure that the motion is not listed if he or she has not complied with the three clear days of service. If it is listed and the rule has not been complied with, the court will adjourn the motion.
The affidavit of service must attach copies of the documents served, cover letters, and the receiving firm’s acknowledgement showing who received them, their position, and the date and time of receipt. Where affidavits served exceed five pages, copies of the first two pages and the last page should be attached.
Rule 44 and the 2005 timetable
(1) Where a motion is founded on facts, or facts and documents, an affidavit setting forth those facts and annexing those documents shall be filed with the notice of motion, and a copy served with it.
(2) A respondent may, before the hearing date or by leave within further time, file an answering affidavit and shall serve a copy the same day.
Affidavits in support must be filed on the date of filing the Motion.
Affidavits opposing, and counter motions, must be filed by 2 pm on the day before the hearing.
Motion files go to the Motions Judge by 3 pm on the day before.
Leave must be sought before any affidavit is filed on the day of the hearing. The Registry will no longer accept affidavits filed after 2 pm on the day preceding the hearing.
Except in contempt hearings, there shall be no cross-examination of deponents except with leave.
How motions are heard
| Rule | Provision |
|---|---|
| 1 | The Registrar compiles a Motions List — excluding appeals, judicial review, commercial, election petitions, and listing-related motions |
| 6 | In Waigani, motions are heard Monday, Wednesday and Friday, except in Supreme Court week |
| 13 | The List holds a maximum of 35 motions. A motion not on the List is not before the Judge |
| 14 | A motion must not exceed 20 minutes; longer matters need a special fixture |
| 17 | The Court may strike out a motion not prosecuted within one month of filing, or adjourned twice |
| 18 | A motion is not adjourned generally but to a fixed date; not adjourned twice except with leave |
Rule 13(1) is emphatic: lawyers and parties must check with the Motions Clerk on the day preceding the hearing to ensure the matter is on the List. Any motion that does not appear on the Motions List is not before the Judge and will not be dealt with.
Under Rule 16, a matter on the List but not mentioned because nobody appeared may be struck out for want of prosecution or adjourned.
See how to make an interlocutory application for the practical sequence, the supporting affidavit, and applying without notice.
Sources
- National Court Rules 1983 — O 4 rr 4, 37–48; Motions (Amendment) Rules 2005 rr 1–18
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.