A stay stops a proceeding in its tracks. Unlike a dismissal, it does not end the case — a stayed proceeding remains on foot and may be revived if the reason for the stay is removed.
The main provisions
| Situation | Provision |
|---|---|
| No reasonable cause of action; frivolous or vexatious; abuse of process | O 12 r 40 — stayed or dismissed |
| Security for costs ordered and not given | O 14 r 25 — stayed until security is given |
| Costs of a discontinued action unpaid, and a fresh action brought | O 8 r 67 |
| Refusal to submit to a medical examination | O 9 r 39 — and automatic on filing the motion |
| Default in discovery, interrogatories or inspection | O 9 rr 15, 25, 46 |
| Payment of a liquidated demand with costs | O 4 r 10(3) — further proceedings shall be stayed |
| Acceptance of a payment into Court | O 8 r 76(1) |
| Persons jointly but not severally liable not all sued | O 5 r 5(2) |
| Failure to appoint a replacement next friend | O 5 r 25(1)(b) |
| Unpaid expenses of service abroad | O 6 r 31(b) |
| Pending appeal | Supreme Court Act (Ch 37) |
Order 12 Rule 40
(1) Where it appears to the Court that, in relation to the proceedings generally or to any claim for relief —
(a) no reasonable cause of action is disclosed; or
(b) the proceedings are frivolous or vexatious; or
(c) the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief.
(2) The Court may receive evidence on the hearing of an application under sub-rule (1).
Rule 40 offers both. A stay is the appropriate order where the defect may be curable, or where the proceeding is premature — for example because a statutory or contractual process has not been exhausted, or because the matter belongs before another body for the time being.
Dismissal is for cases beyond saving. See dismissal for abuse of process, and compare Order 8 Rule 27, which strikes at the pleading rather than the proceeding.
Order 14 Rule 25
On the application of a defendant, where it appears —
(a) that a plaintiff is ordinarily resident outside Papua New Guinea; or
(b) that a plaintiff is suing not for his own benefit but for the benefit of some other person, and there is reason to believe that plaintiff will be unable to pay the costs of the defendant if ordered to do so; or
(c) that the address of a plaintiff is not stated or is mis-stated in the originating process; or
(d) that a plaintiff has changed his address after commencement with a view to avoiding the consequences of the proceedings,
the Court may order security for the defendant’s costs and that the proceedings be stayed until the security is given.
Sub-rule (2) — the Court shall not order security by reason only of ground (c) if the failure or mis-statement was made without intention to deceive. An honest mistake in the address is not a ground.
And note what is not a ground: mere impecuniosity of an individual plaintiff resident in Papua New Guinea. Ground (b) requires that the plaintiff sue for the benefit of another.
If security is ordered and not given, Rule 27 allows the Court, on terms, to dismiss the claims — so a stay under Rule 25 can harden into dismissal. Where the State is the plaintiff, see security for costs against the State.
Stays that need no order
Order 9 Rule 39(2) — where, before the proceedings are set down for trial, a party files notice of a motion for a stay because a person refused a medical examination, the proceedings shall, unless the Court otherwise orders, be stayed pending disposal of the motion. The stay begins on filing, not on hearing.
Order 4 Rule 10(3) — on the filing of a notice of payment of a liquidated demand with costs, further proceedings shall be stayed.
Order 8 Rule 76(1) — on a plaintiff accepting money brought into Court, the proceedings shall be stayed as to that cause of action, any alternative cause of action, anything abandoned, and any cross-claim taken into account.
Under Order 7 Rule 7(5), once a defendant serves a motion challenging jurisdiction or service, the plaintiff shall not be entitled to enter judgement in default of defence or take any other step without the leave of the Court. Not called a stay, but identical in effect.
Making or resisting the application
- Identify the source of the power. Rule 8 of the Motions Rules requires a motion to contain a concise reference to the Court’s jurisdiction.
- Ask for a stay in the alternative to dismissal. A court reluctant to end a case outright may readily stay it, and Order 12 Rule 40 expressly offers both.
- Say what would lift the stay — security given, costs paid, a mediation completed, another proceeding determined. A stay without a route out is close to a dismissal.
- Support it with evidence. Rule 40(2) expressly permits evidence.
- Remember the limitation clock. A stay preserves the proceeding, so the limitation period is not a problem while it lasts — which is why a stay is often the fairer order where a plaintiff has begun in the wrong forum.
Because the proceeding survives, either party may apply to lift the stay when circumstances change. Ask for liberty to apply on the face of the order. And note that a stay does not stop time running for the purposes of want of prosecution once it is lifted — a plaintiff who obtains a stay and then does nothing for years remains at risk.
Sources
- National Court Rules 1983 — O 4 r 10; O 5 rr 5, 25; O 6 r 31; O 7 r 7; O 8 rr 27, 67, 76; O 9 rr 15, 25, 39, 46; O 12 rr 40, 41; O 14 rr 24–28; Motions Rules r 8
- Supreme Court Act (Chapter 37)
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.