Every set of court rules in Papua New Guinea traces back to one provision.
The Judges are empowered to make rules of court with respect to the practice and procedure of the courts.
Subject to Section 184 (rules of court) of the Constitution, the Judges of the National Court may make Rules of Court of the National Court.
Made by the Judges, collectively
Rules are made by the Judges as a body. The certificates on the front of each rule set show this plainly — the Election Petition Rules 2017 and the Human Rights Rules each carry the signatures of the Chief Justice, the Deputy Chief Justice and every other Judge.
The Chief Justice then fixes the commencement date. The Alternative Dispute Resolution Rules 2022 were made on 29 July 2022 and came into force on 1 September 2022, as determined by the Chief Justice and published in National Gazette No G621 of 8 August 2022.
| Rules | Made under | In force |
|---|---|---|
| National Court Rules 1983 | Constitution s 184; National Court Act s 8 | 4 July 1983 |
| Human Rights Rules (now Order 23) | Constitution s 184; National Court Act s 8 | 1 July 2011 |
| Election Petition Rules 2017 | Constitution s 184; Organic Law on National and Local-level Government Elections s 212(2); National Court Act s 8 | 1 July 2017 |
| ADR Rules 2022 | Constitution s 184; National Court Act s 7E | 1 September 2022 |
| Fraud and Corruption Related Offences Rules 2013 | Constitution s 184; National Court Act s 8 | As determined by the Chief Justice |
Why the Judges make the Rules
Constitution section 157 provides that neither the Minister responsible for the National Justice Administration nor any other person or authority outside the National Judicial System — other than the Parliament through legislation — has power to give directions to any court, or to a member of any court, in respect of the exercise of judicial powers or functions.
If the Executive could write the rules of procedure, it could shape the outcome of cases it is a party to. Section 184 keeps procedure in judicial hands.
Parliament retains its own power: it legislates, and legislation prevails. That is exactly what the Claims By and Against the State Act 1996 does — several of its sections open with “Notwithstanding anything in the National Court Rules”. See suing the State.
A specific rule-making power — mediation
The Judges may make rules of the Court to further elaborate and provide for the conduct of mediation, maintaining of appropriate standards and guidelines for mediation, qualification and training of mediators by appropriately qualified mediators, and remuneration or fee for mediators.
Sections 7A to 7E of the National Court Act make up Part IIA — Mediation. Section 7B(1) provides that in addition to the jurisdiction vested in the Court by Constitution section 166, the Court may order a dispute to be resolved by mediation.
Section 7E then authorises the detailed rules. The ADR Rules 2022 are the result — a complete scheme for accreditation, professional conduct, discipline and referral. See the ADR Rules.
Reading the current version
The National Court Rules have been amended many times since 1983 — Order 10A (the Commercial List) and Order 23 (human rights) were both added long after the original Rules.
Practical steps:
- Read the current consolidation on PacLII, which also carries the other PNG court rules.
- Check the National Gazette for the commencement of any amending rules.
- Ask the Registry for the current practice directions — these are not in the Rules but govern listing, filing and case management in practice.
- Check the prescribed forms in Schedule 1.
One further source is worth knowing: PacLII carries an Overview of Court Rules for National Court and Supreme Court, a consolidated guide to which rules apply to what. And where the Rules do not answer the question at all, Order 1 Rule 12 allows a party to apply to the Court for directions.
What rules of court cannot do
Section 184 is a power to make rules with respect to the practice and procedure of the courts. It does not authorise the Judges to create or remove substantive rights. Three consequences follow, and each is a recurring point in practice:
- Limitation periods cannot be extended by the Rules. Order 1 Rule 15 reaches time fixed by the Rules or by any judgement or order — and a limitation period under the Frauds and Limitations Act 1988 is neither. See time limits.
- Statutory preconditions stand outside the Rules. The six-month notice under section 5 of the Claims By and Against the State Act 1996 is extendable only under that Act, on sufficient cause shown. See section 5 notices.
- Jurisdiction comes from the Constitution, not the Rules. The National Court is a court of unlimited jurisdiction under section 166(1); the Rules regulate how that jurisdiction is exercised. See challenging jurisdiction.
Several Rules are expressly subordinated to statute. Order 6 Rule 2(1) requires personal service of originating process “subject to any Act” — which is why section 431 of the Companies Act 1997 governs service on a company, and section 7 of the Claims Act governs service on the State.
Order 8 Rule 20A goes the other way: it is a rule made to give procedural effect to the Underlying Law Act 2000, requiring customary law to be pleaded in a prescribed way.
Sources
- Constitution — ss 157, 166, 184, 187
- National Court Act (Chapter 38) — ss 7A–7E, 8, 9
- National Court Rules 1983
- Alternative Dispute Resolution Rules 2022
- Election Petition Rules 2017
- Organic Law on National and Local-level Government Elections — s 212(2)
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.