Not every proceeding has an opponent. Some applications are made to the Court without anyone to oppose them, and the National Court Rules 1983 provide for that.
Subject to any rule to the contrary, a document in any proceedings in which there is no defendant shall be entitled “The Application of” together with the name of the plaintiff, and not otherwise.
A document in proceedings between parties shall be entitled between the parties, and not otherwise.
So the form of the title tells you immediately which kind of proceeding you are looking at. An application with no defendant is headed “The Application of [name]”, not “A v B”.
Order 4 Rule 27(2)
Where there is no defendant, the plaintiff may at any time obtain from the Registry an appointment for hearing.
Where there is a defendant, Rule 27(3) requires the plaintiff to wait until the defendant has given notice of intention to defend or is in default before obtaining an appointment.
With no defendant there is nothing to wait for. The plaintiff may obtain an appointment at any time.
Note that the notice requirements in Order 4 Rule 9 are expressed to apply “where there is a defendant”, and drop away where there is none.
Typical applications with no defendant
| Application | Source |
|---|---|
| Directions where procedure is wanting or in doubt | O 1 r 12(4) — “application may be made by originating summons” |
| Non-contentious probate — a grant where nobody objects | O 19 Div 3 |
| Resealing a foreign grant | O 19 Div 3 |
| Statutory applications where an Act authorises an application and prescribes no mode | O 4 r 3(2)(c) |
| Directions to trustees and administration questions | O 15 |
| Discovery before suit | O 3 |
| Appointment of a guardian or similar | O 20 |
Proceedings in which a person is authorised by an Act, regulation or these Rules to make an application to the Court on a matter that is not already the subject matter of a pending cause, and no other mode of making the application is prescribed, are among those appropriate to be commenced by originating summons.
Papua New Guinean legislation frequently confers such a right without saying how to exercise it. Rule 3(2)(c) supplies the answer.
A distinction worth keeping clear
A proceeding with no defendant. Nobody is affected adversely, so there is nobody to serve. That is what this article is about.
An application made without notice to an opponent who exists. That is Order 4 Rule 38(2) and Rule 5 of the Motions (Amendment) Rules 2005 — urgent relief obtained before the other side is heard, always subject to a return date and the rule that no order may be made in terms of the substantive relief sought.
The first is a category of proceeding. The second is a temporary departure from natural justice, justified by urgency and reversed at the first opportunity.
Where an interested person emerges
Order 5 Rule 8 — where a person ought to have been joined, or whose joinder is necessary to ensure that all matters in dispute may be effectually and completely determined, the Court may — on application by him, by any party, or of its own motion — order that he be added as a party.
Order 4 Rule 45 — on a motion, if the Court thinks a person not served ought to have been served, it may dismiss the motion or adjourn so notice can be given.
Where a proceeding is brought without a defendant, the Court hears only one side. The applicant must therefore put the material fully and fairly, including anything that tells against the application, and must identify any person whose interests may be affected.
That reflects Constitution section 59, under which natural justice is a rule of the underlying law and its minimum requirement is to act fairly and be seen to act fairly.
If the application turns out to be genuinely contested, the Court may order the proceeding to continue on pleadings under Order 4 Rule 35, and it proceeds as if commenced by writ.
On the two forms of originating summons and how each is listed, see what an originating summons is.
The proceedings that have no defendant
| Proceeding | Order |
|---|---|
| Probate and letters of administration | Order 19 |
| Approval of a settlement of a disabled person’s claim made before proceedings — expressly permitted by Order 5 Rule 29(4) notwithstanding Order 4 Rule 2 | Order 5 Div 2 |
| Applications concerning infants and families | Order 20 |
| Administration and trust applications where no contradictor exists | Order 15 |
| Discovery before suit — to identify a prospective defendant | Order 3 |
| Substituted service of external process — brought by the State Solicitor, and the summons shall not join any person as a defendant | Order 6 r 34(6) |
The two are easily confused. An ex parte originating summons is a whole proceeding with no defendant. An ex parte application under Order 4 Rule 38 is a motion made without notice within a proceeding that has parties — an urgent injunction, say, or leave to serve abroad.
The duty of candour applies to both, and in both the Court may require notice to be given to anyone whose interests appear to be affected before it acts.
Sources
- National Court Rules 1983 — O 1 r 12; O 2 rr 23, 24; O 3; O 4 rr 2, 3, 9, 24, 27, 35, 38, 45; O 5 rr 8, 29; O 6 r 34; O 15; O 19; O 20
- Constitution — s 59
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.