Order 4 Division 4 of the National Court Rules 1983 governs proceedings commenced by originating summons.
Rule 23 — this Division applies only to proceedings commenced by originating summons.
Rule 24 — a party claiming relief by originating summons is called a plaintiff; a party against whom relief is claimed is called a defendant.
Order 4 Rule 25 — the choice of summons
A plaintiff may use either a summons stating an appointment for hearing under Rule 26, or a summons for a hearing to be appointed under Rule 27.
| Rule 26 — Form 6 | Rule 27 — Form 7 | |
|---|---|---|
| Hearing date | Stated in the summons when issued | Obtained later from the Registry |
| Where the date comes from | Fixed by the Court, or obtained from the Registry | Obtained from the Registry once the parties are in position |
| Service | Not less than 5 days before the appointment, unless the Court orders otherwise | Served, then an appointment obtained |
| Service outside PNG | Appointment not less than one month after filing | — |
| Suited to | Urgent matters and simple applications | Matters where the defendant’s position is unknown |
(2) Where there is no defendant, the plaintiff may at any time obtain an appointment from the Registry.
(3) Where a defendant has given notice of intention to defend or is in default of giving it, the plaintiff may obtain an appointment.
(4) Where the plaintiff does not obtain an appointment within seven days after becoming entitled to, a defendant may obtain one.
(5) The Court may make an appointment at any time, whether or not an occasion has arisen under sub-rule (2) or (3).
Sub-rule (4) is a useful protection for a defendant who wants the matter dealt with and finds the plaintiff sitting on it.
Order 4 Rule 9(3)
(a) that if there is no attendance by the defendant or his counsel or solicitor at the time and place stated, the proceedings may be heard and the defendant will be liable to suffer judgement or an order against him; and
(b) that before any attendance the defendant must file in the Registry a notice of his intention to defend.
Under Order 4 Rule 11(a), the time for giving that notice is not later than the date for hearing stated in the summons — a much shorter period than the 30 days allowed on a writ.
Rules 28 to 33
(1) The Court may exercise its powers at any time after the commencement of the proceedings.
(2) The Court shall give such directions as are convenient for the just, quick and cheap disposal of the proceedings.
(3) Without limiting that, the Court may (a) make orders defining the issues by pleading or otherwise; (b) direct that the whole or any part of the evidence be given on affidavit or orally; and (c) make any orders relating to the conduct of the proceedings which it might make on motion by a party.
That phrase in Rule 31(2) is the guiding standard for the whole Division, and it explains the design. There are no pleadings, evidence is ordinarily on affidavit, and the matter can be listed for hearing on a fixed appointment.
Rule 32 — the Court may, on the first or any later day of hearing, hear and determine the proceedings or any claim, and make such order or direct the entry of such judgement as the nature of the case requires.
Rule 28 — where the matter is not disposed of on the first day, a party may obtain, or the Court may make, an appointment for further hearing. Rule 29 requires notice of an appointment obtained from the Registry to be filed on the day it is obtained and served in Form 10.
Rule 30 — the Court may alter an appointment to a later date; the Registrar may exercise that power and may give authority by telephone.
The Court may proceed with a hearing in the absence of — (a) a plaintiff, where he has had due notice; or (b) a defendant, where he is in default of giving notice of intention to defend or has had due notice of the hearing.
An originating summons moves quickly, and a party who ignores it can find the matter determined without them.
Rules 34 to 36
The Court may order that the proceedings continue on pleadings, and may order that any affidavits stand as pleadings or order the filing of a statement of claim. The writ provisions then apply.
Rule 34 — a defendant may, with the leave of the Court, cross-claim for any relief the Court may grant, and shall tell the Court the nature of the cross-claim at as early a stage as is practicable. See cross-claims.
Rule 36 — where a plaintiff defaults in complying with any order or direction, or does not prosecute the proceedings with due despatch, the Court may stay or dismiss the proceedings. See dismissal for want of prosecution.
The originating summons is also the prescribed route for an application for directions under Order 1 Rule 12(4), and for many statutory applications under Order 4 Rule 3(2)(c) where no other mode is prescribed.
Sources
- National Court Rules 1983 — O 1 r 12; O 4 rr 2(3), 3, 7, 9, 11, 23–36
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.