Judicial review is not governed by the ordinary limitation periods. Order 16 Rule 4 of the National Court Rules 1983 deals with delay in its own way.
Rule 4(2)
Where the relief sought is an order of certiorari to remove any judgement, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of Sub-rule (1) is four months after the date of the proceeding.
It applies where the relief sought is certiorari to quash a judgment, order, conviction or other proceeding. It does not by its terms fix a period for mandamus, prohibition, quo warranto, or for a declaration or injunction sought under Rule 1(2).
The period runs from the date of the proceeding — that is, the decision sought to be quashed — not from the date the applicant learned of it.
Rule 4(1)
Where the Court considers that there has been undue delay in making an application for judicial review, or, in a case to which sub-rule (2) applies, the application for leave is made after the relevant period has expired, the Court may refuse to grant —
(a) leave for the making of the application; or
(b) the relief sought.
The Court may refuse leave, or may grant leave and later refuse relief. So an applicant who scrapes through the leave stage is not safe: delay may still defeat the substantive application.
And note that undue delay is a freestanding ground. Even within four months, an application may be refused where the delay was undue in the circumstances — where, for instance, third parties have acted on the decision in the meantime.
Conversely, the four months is not a limitation period in the ordinary sense. It is the trigger for a discretion, and the Court may refuse — not shall.
Rule 4(3)
Sub-rule (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.
Where legislation fixes its own period for challenging a decision, that period governs and the Rules do not extend it. Two familiar examples in Papua New Guinea practice:
- The 40-day period for filing an election petition under the Organic Law on National and Local-level Government Elections — and election petitions run under the Election Petition Rules 2017, not Order 16.
- The six-month notice under section 5 of the Claims By and Against the State Act 1996, which by section 2(2) extends to applications under Constitution sections 57 and 58. See section 5 notices.
Neither can be extended by a rule of court. Order 1 Rule 15 reaches time fixed by the Rules or by any judgement or order — and the four months in Order 16 Rule 4(2) is fixed by the Rules, so it is within Rule 15. A statutory period is not.
Rule 3(6)
Where leave is sought for certiorari to quash a judgement, order, conviction or other proceedings which is subject to appeal, and a time is limited for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired.
Rule 3(6) creates a practical difficulty: an applicant who waits for an appeal to be determined may find the four months has run.
The safe course is to file for leave within the four months and let the Court adjourn under Rule 3(6) if it thinks fit, rather than holding off and arguing later that the delay was justified. See exhausting other remedies.
The timetable that follows
| Step | Time | Rule |
|---|---|---|
| Notice to the Secretary for Justice before applying for leave | Not later than two days before | r 3(3) |
| Certiorari to quash a proceeding | Four months after the date of the proceeding | r 4(2) |
| Any application | No undue delay | r 4(1) |
| Notice of Motion allocated a hearing date by the Registrar after consultation with the parties | Within 21 days after grant of leave | r 5(4) |
| Between service of the Notice of Motion and the day named for hearing | At least 14 days, unless the court granting leave otherwise directs | r 5(3) |
Rule 5(4) requires the Notice of Motion to be allocated a date of hearing by the Registrar after consultation with the parties within 21 days after grant of leave. An applicant who obtains leave and then lets the matter drift is not complying.
Because judicial review proceedings are outside the Listings Rules 2005, there is no mention or pre-trial conference to prompt the applicant. The obligation to move the matter along rests squarely on them — and delay after leave feeds back into the Rule 4(1) discretion to refuse relief.
- Date the decision precisely, and diarise four months.
- Give the two days’ notice to the Secretary for Justice, with the statement and every affidavit.
- File early. If an internal appeal or review is pending, file anyway and let the Court adjourn under Rule 3(6).
- Explain any delay in the affidavit rather than leaving the respondent to raise it.
- After leave, get a hearing date within 21 days, and serve at least 14 days before it.
Sources
- National Court Rules 1983 — O 1 r 15; O 10 r 9A; O 16 rr 3–5
- Claims By and Against the State Act 1996 — ss 2, 5
- Organic Law on National and Local-level Government Elections; Election Petition Rules 2017
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.