Order 12 Division 3 of the National Court Rules 1983 applies, by Rule 24, to proceedings commenced by writ of summons. It has no application to an originating summons.
Rule 25
A defendant shall be in default —
(a) where the originating process bears a note under Order 4 Rule 9, and the time for him to comply has expired but he has not given the notice;
(b) where he is required to file a defence and the time has expired but he has not filed his defence; or
(c) where he is required under Order 8 Rule 24 to verify his defence and the time has expired but he has not so verified.
(a) No notice of intention to defend within the time limited on the writ — not less than 30 days if served in Papua New Guinea, two months if served abroad.
(b) Notice given but no defence filed within the further 14 days under Order 8 Rule 4.
(c) Defence filed but not verified where the statement of claim bears a note requiring verification of a defence to a liquidated demand.
So a defendant can be in default at three different stages. Filing a notice of intention to defend and stopping there is not protection — Order 7 Rule 9 makes clear the notice does not relieve the defendant of the obligation to file a defence.
Rules 27 to 31
| Claim | Judgment available | Rule |
|---|---|---|
| Liquidated demand only | Judgment for a sum not exceeding the sum claimed in the statement of claim on that demand, and for costs | 27 |
| Unliquidated damages only | Judgment for damages to be assessed and for costs | 28 |
| Detention of goods only | At the plaintiff’s option — (a) delivery of the goods or their value to be assessed, and costs; or (b) the value of the goods to be assessed and costs | 29 |
| Possession of land only | Judgment for possession and costs — subject to the affidavit requirement | 30 |
| Two or more of the above, and nothing else | Judgment on each according to its nature | 31 |
Where a claim for a liquidated demand includes interest at an unspecified rate, interest accruing after the date of filing the statement of claim to the date of entry of judgement shall be reckoned at the rate of 8% yearly.
The same rate appears in Order 12 Rule 6(2) for post-judgment interest and in Order 4 Rule 10(2).
Rule 27(1) caps the judgment at what was claimed in the statement of claim. A plaintiff who under-pleaded cannot recover more on default. That is one reason to plead the money claim carefully — see the statement of claim.
Rule 30 — the strictest case
(2) A plaintiff shall not enter judgement unless he files an affidavit —
(a) showing whether any and, if so, what persons other than parties were, on the date of filing the statement of claim, in occupation of the whole or any part of the land; and
(b) proving, as to each of those persons (other than any whose occupation he does not seek to disturb), either that the writ and a notice under Order 4 Rule 14 has been served on him not less than 10 days before judgment is sought, or that he has ceased to be in occupation.
(3) Where, before entry, any person has filed notice of motion for his addition as a defendant, the plaintiff shall not enter judgement until the motion is disposed of.
(4) Where possession is claimed against more than one defendant, judgment shall not, unless the Court otherwise orders, be enforced against any defendant until judgement for possession is entered against each defendant.
Rule 30 protects people living on land who were never named as defendants. The plaintiff must disclose who they are, prove that each was served with the writ and an Order 4 Rule 14 notice at least 10 days beforehand, or prove they have left.
It works with Order 7 Rules 10 to 13, under which a person in possession may by leave appear and defend on filing an affidavit showing possession, and with Order 5 Rule 8(3), under which a person in possession may apply to be added as a defendant.
Sub-rule (3) then holds the plaintiff off while such an application is pending. A plaintiff who enters judgment regardless has entered it irregularly.
Where default judgment is not available
Proceedings by originating summons — Rule 24 confines the Division to writs.
Against a disabled person — under Order 5 Rule 23(1), where no notice of intention to defend is given, no party may take any step affecting the disabled person until a guardian at law gives one.
Where a jurisdiction motion has been served — under Order 7 Rule 7(5), the plaintiff shall not be entitled to enter judgement in default of defence or take any other step without the leave of the Court.
Where the claim is not one of the four kinds in Rules 27 to 30 — a claim for an injunction or a declaration, for instance, requires a different route.
Against the State — see default judgment against the State, where the Claims By and Against the State Act 1996 imposes additional requirements.
Under Order 12 Rule 8(2)(a), the Court may, on terms, set aside or vary a judgement entered pursuant to Order 12 Division 3. See setting aside a default judgment, and on the mechanics of obtaining one, how to get default judgment.
Sources
- National Court Rules 1983 — O 4 rr 9, 10, 11, 14; O 5 rr 8, 23; O 7 rr 7, 9–13; O 8 rr 4, 24; O 12 rr 6, 8, 24–31
- Claims By and Against the State Act 1996
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.