This is the first question to ask before filing anything, because it is the one mistake that cannot be cured.
Order 1 Rule 15 of the National Court Rules 1983 allows the Court to extend “any time fixed by the Rules or by any judgement or order”.
A limitation period is fixed by neither. It is fixed by the Frauds and Limitations Act 1988, and no rule of court can extend it.
The same is true of Order 1 Rule 7 (dispensation) and Order 1 Rule 8 (non-compliance not void). Both reach the Rules, and only the Rules.
PacLII carries the Frauds and Limitations Act 1988 as a downloadable document rather than as browsable text. Check the current text of the Act for the period applying to your particular cause of action — different causes of action attract different periods, and the Act has been amended.
The ordinary period
For actions founded on simple contract and on tort, the general limitation period in Papua New Guinea is six years from the date on which the cause of action accrued.
Other periods apply to other categories — actions on a deed, actions to recover land, and claims in respect of a deceased estate among them. The Act also makes special provision for disability and for cases involving fraud or concealment.
The period runs from when the cause of action accrued — not from when you decided to sue, and not from when you found a lawyer.
- Contract — ordinarily from the breach.
- Tort — ordinarily from the damage.
- Debt — from the date payment fell due.
Because the accrual date is a question of law as well as fact, and because the consequences of getting it wrong are absolute, this is a point on which to take advice early rather than late.
Filing is what stops it
Proceedings shall be commenced by the filing of the originating process.
The relevant date is the date the Registrar writes on the document under Order 2 Rule 19. Service can come later.
But an originating process is valid for service for only two years, and Order 4 Rule 13(2) forbids any extension of that period. If the writ lapses unserved, sub-rule (3) allows fresh proceedings — commenced on the new filing date.
So a plaintiff who files at five years and eleven months, then lets the writ lapse two years later, has lost the claim. See whether a writ can be renewed.
The second clock: section 5 notice
(1) No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given by the claimant to (a) the Departmental Head of the Department responsible for justice matters; or (b) the Solicitor-General.
(2) Notice shall be given (a) within six months after the occurrence out of which the claim arose; or (b) for breach of contract, within six months after the claimant became aware of the alleged breach; or (c) within such further period as the Principal Legal Adviser or the court before which the action is instituted, on sufficient cause being shown, allows.
Section 5(1) does not merely regulate procedure. It provides that no action lies without the notice. A claim against the State without a section 5 notice is liable to be dismissed however strong its merits.
Section 5(2) applies to applications under Constitution sections 57 and 58 as well — section 2(2) of the Act expressly extends it to the enforcement of guaranteed rights and freedoms and to damages for their infringement. See human rights proceedings.
There is an extension power — but it is in the Act, not the Rules, and it requires sufficient cause. See whether a late notice can be allowed and what a section 5 notice is.
Statutory periods elsewhere
| Proceeding | Limit | Extendable? |
|---|---|---|
| Contract and tort generally | Six years — Frauds and Limitations Act 1988 | No |
| Notice of claim against the State | Six months — Claims Act s 5 | Yes, on sufficient cause, under the Act |
| Judicial review | Four months — National Court Rules O 16 r 4 | Yes — a rule of court |
| Election petition | 40 days — Organic Law on National and Local-level Government Elections | No |
| Adultery or enticement action | Six months, extendable to nine — Adultery and Enticement Act 1988 s 7 | Limited — three further months only |
| Family Court proceedings for a child | Not after the child attains 18 — Lukautim Pikinini Act 2015 s 112 | No |
Practical steps
- Fix the accrual date first. Everything else follows from it.
- If the State may be a defendant, give the section 5 notice immediately. Six months is short, and the notice costs nothing.
- Do not file at the very edge of the period if service will be difficult — the two-year validity rule then becomes fatal.
- Raising the point as a defendant. A time bar is a matter for the defence, and the listings checklist expressly asks whether any condition precedent to the action or statutory time bar issues arise. It may also support dismissal under Order 12 Rule 40.
Sources
- Frauds and Limitations Act 1988
- Claims By and Against the State Act 1996 — ss 2, 5
- National Court Rules 1983 — O 1 rr 7, 8, 15; O 2 r 19; O 4 rr 12, 13; O 12 r 40; O 16 r 4
- Organic Law on National and Local-level Government Elections
- Adultery and Enticement Act 1988 — s 7
- Lukautim Pikinini Act 2015 — s 112
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.