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What Is an Ex Parte Originating Summons?

An originating summons in a proceeding where there is no defendant. Order 4 Rule 24 calls the applicant a plaintiff, Rule 27(2) lets them obtain a hearing appointment at any time, and Order 2 Rule 24 requires the document to be entitled “The Application of” and the plaintiff’s name.

The National Court practice series, no. 23 · Commencing proceedings · 5 min read

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.

Order 2 Rule 24 — the title

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.

Contrast Order 2 Rule 23

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)

Order 4 Rule 27(2)

Where there is no defendant, the plaintiff may at any time obtain from the Registry an appointment for hearing.

Faster than a contested matter

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

Proceedings commonly brought without a defendant
ApplicationSource
Directions where procedure is wanting or in doubtO 1 r 12(4) — “application may be made by originating summons”
Non-contentious probate — a grant where nobody objectsO 19 Div 3
Resealing a foreign grantO 19 Div 3
Statutory applications where an Act authorises an application and prescribes no modeO 4 r 3(2)(c)
Directions to trustees and administration questionsO 15
Discovery before suitO 3
Appointment of a guardian or similarO 20
Order 4 Rule 3(2)(c) is the general gateway

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

Two different things are called “ex parte”

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

The Court can bring them in

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.

The duty of candour

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

Common ex parte originating summons proceedings
ProceedingOrder
Probate and letters of administrationOrder 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 2Order 5 Div 2
Applications concerning infants and familiesOrder 20
Administration and trust applications where no contradictor existsOrder 15
Discovery before suit — to identify a prospective defendantOrder 3
Substituted service of external process — brought by the State Solicitor, and the summons shall not join any person as a defendantOrder 6 r 34(6)
Ex parte proceeding, not ex parte application

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

Check the section yourself

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.

Disclaimer: This article provides general information about Papua New Guinea law and does not constitute legal advice. Laws may change, and their application depends on individual circumstances. You should obtain professional legal advice for your specific situation. Read the full disclaimer.