Papua New Guinea has no formal class action statute. What it has is Order 5 Rule 13 of the National Court Rules 1983, which does much of the same work. Representative proceedings are common in PNG — landowner claims, village claims arising out of police raids, and group claims against the State.
Order 5 Rule 13(1)
Where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.
Numerous persons. No number is fixed. The point is that joining them all individually would be impracticable.
The same interest. Not merely similar grievances — the same interest in the proceedings. Where each claimant’s case turns on different facts and different loss, the same-interest requirement becomes difficult.
One or more of them representing all. The representative must be one of the class. A person outside the class cannot represent it under Rule 13 — that is what Rule 14 is for.
Rule 13 works for defendants as well as plaintiffs. Numerous defendants with the same interest may be sued through representatives — useful where a plaintiff seeks possession against a large group of occupiers, or an injunction against a group.
Under sub-rule (2), the Court may, on the application of the plaintiff, appoint one or more of the defendants or other persons to represent all of them. Under sub-rule (3), if the Court appoints someone who is not a defendant, it shall make an order under Rule 8 adding him as a defendant.
The binding effect — and its limit
(4) A judgment entered or order made shall be binding on all the persons as representing whom the plaintiffs sue or the defendants are sued, but shall not be enforced against any person not a party to the proceedings except with the leave of the Court.
(5) An application for leave shall be made by motion, notice of which shall be served personally on the person against whom enforcement is sought.
(6) Notwithstanding that the judgment is binding on them, that person may dispute liability to have the judgment enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from the liability.
| Question | Answer |
|---|---|
| Is the represented person bound? | Yes — r 13(4) |
| Can the judgment be enforced against them directly? | Not without leave — r 13(4) |
| How is leave sought? | By motion, served personally — r 13(5) |
| Can they resist? | Yes — on facts particular to their own case — r 13(6) |
| Can they re-argue the merits generally? | No — they are bound by the decision |
Sub-rule (6) is the protection for the individual. Being bound by a decision on a common question is one thing; being made to pay under a judgment in proceedings you never conducted is another. The rule allows the individual to say “my circumstances are different” at the enforcement stage.
Sub-rule (7) — the exclusions
Rule 13 does not apply to proceedings concerning —
(a) the administration of the estate of a deceased person; or
(b) property subject to a trust.
Those are governed by Rule 14 (representation in administration and construction cases, including representation of unborn persons) and Rule 15 (trustees, executors and administrators, where beneficiaries need not be joined at all). See who can be a party.
What goes wrong in practice
No authority from the class. The commonest complaint in PNG representative claims is that the named plaintiff had no mandate. The prudent course is to file, with the originating process or shortly after, an affidavit exhibiting the written authority of each represented person, and a list identifying them by name.
The class is not identified. “The people of X village” is not a class the Court can work with. Name them.
The interest is not the same. Where each person’s loss is different, a representative claim for damages is vulnerable. A representative claim for a declaration or an injunction — relief that is the same for everyone — sits far more comfortably in Rule 13.
Claims against the State. Each represented person is a claimant, so each needs a section 5 notice under the Claims By and Against the State Act 1996 within six months. This is a frequent point of failure. See suing the State.
Rule 13(1) says the proceedings may be continued in representative form “unless the Court otherwise orders”. The Court may therefore end the representative character of a proceeding at any stage.
It also has Rule 6 — separate trials where joinder may embarrass or delay trial or is otherwise inconvenient — and Rule 9 to remove a party improperly or unnecessarily joined, plus its power under Order 12 Rule 40 to dismiss proceedings that are an abuse of process.
Under Constitution section 57(1), a right or freedom may be enforced on the application of any person who has an interest in its protection and enforcement, or on the Court’s own initiative. That is a broader gateway than Rule 13. See human rights proceedings.
Sources
- National Court Rules 1983 — O 5 rr 6, 8, 9, 13–15; O 12 r 40; O 23
- Constitution — ss 57, 155(4)
- Claims By and Against the State Act 1996 — s 5
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.