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National Court Commercial List Rules 2005

PAPUA NEW GUINEA

NATIONAL COURT OF JUSTICE

NATIONAL COURT COMMERCIAL LIST RULES 2005

ORDER 10A
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NATIONAL COURT (COMMERCIAL LIST) RULES
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Made pursuant to Section 184 of the Constitution and Section 8 of the National Court Act (Chapter No 38) and all other powers thereunto enabling, the following rules prescribing the practice and direction of the National Court of Justice relating to the conduct of commercial cases shall come into force on a date specified in these Rules.

These Rules are in addition to and form part of the procedure for pre trial preparations contained in the National Court Rules.

Dated this 27th day of September 2005

Chief Justice Sir Mari Kapi, Kt, CSI
Deputy Chief Justice Sir Salamo Injia, Kt,
Justice Sir Kubulan Los, Kt,
Justice Timothy Hinchliffe CBE,
Justice Gibbs Salika, OBE
Justice Moses Jalina, OBE
Justice Bernard Sakora,
Justice Mark Sevua,
Justice Don Sawong, MBE
Justice Nicholas Kirriwom
Justice Les Gavara-Nanu, OBE
Justice Ambeng Kandakasi
Justice Salatiel Lenalia
Justice Panuel Mogish
Justice Ellenas Batari
Justice Cathy Davani,
Justice Greg Lay
Justice David Cannings
Justice George Manuhu
Justice Kingsley Allan David,
Justice Sao Gabi

PURPOSE

1. The purpose of these rules is to establish a Commercial List to expeditiously resolve commercial matters. The Commercial List will commence to operate on a date promulgated by the Chief Justice.

APPLICATION

2. The Chief Justice will allocate a judge or judges to conduct the Commercial List.

3. The Commercial List will be maintained by a Commercial List Clerk in the Registry.

4. The Commercial List Judge will be responsible for the management of all pre trial and listing matters.

5. The Commercial List Clerk will be the first point of contact and he may be contacted by telephone or facsimile.

6. All files for the Commercial List will be under the custody of the Commercial List Clerk who will be fully informed of the position of each matter in the Commercial List.

7. All file references of matters on the commercial list shall bear the abbreviation "COMM" beside the file reference.

NATURE OF LISTED PROCEEDINGS

8. Any matter already filed and apparently involving a dispute concerning an amount greater than K500, 000 arising out of a commercial transaction or in which there s an issue which has importance in trade or commerce, will be, if the Registry identifies the matter, automatically placed on the Commercial List. Any other matter may be added to the List by application of a party, in accordance with this direction, or on the recommendation of the Registrar.

9. Without being exhaustive, proceedings which are likely to involve any one or more of the following may be regarded as arising out of a commercial transaction or involving an issue which has importance in trade or commerce:

a)

i) Construction of a business contract or a commercial document;

ii) Insurance and re-insurance;

iii) Banking and financial services;

iv) Provision and enforcement of securities;

v) Business and commercial agents;

vi) Exploitation of or rights to technology;

vii) Entitlement to intellectual property;

viii) Takeovers;

ix) Exporting or importing of goods;

x) Carriage of goods by land, sea, air or pipeline;

xi) Exploitation of natural resources;

xii) Conduct or operation of markets, exchanges or commodity boards or regulators;

xiii) Application of the Independent Consumer and Competition Commission Act 2000.

xiv) Proceedings under the Income Tax Act or other revenue legislation, but not matters where the summary judgement procedure is available to the plaintiff.

xv) Corporations’ law.

b) Proceedings which concern the above topics but exhibit no serious commercial element, or in which there is no real dispute, should not be listed on the Commercial List.

c) The Commercial List judge has discretion as to whether a matter should be entered or retained on the Commercial List.

APPLICATION FOR LISTING

10. A proceeding may be listed on the commercial list upon application to the Commercial List judge or the Judge Administrator of the Civil List.

11. Unless otherwise directed, an application to have a proceeding listed on the Commercial List may be made only;

a) After the writ or summons has been served on the defendants or respondents;

b) After the views of the defendants or respondents as to its listing have been sought by the applicant;

c) On service of a motion to list together with a supporting statement, of the parties to the proceedings.

(i) Prior to filing a listing motion the lawyer for the applicant must contact the Commercial List Clerk or the Associate to the Commercial List Judge and obtain a date and time for the hearing.

(ii) a) A listing application is to be made by motion supported by a statement made in accordance with these rules ("a listing statement");

b) The form of a listing statement should substantially comply with schedule A.

14. An applicant for listing shall prepare a draft order setting out the directions sought on the return of the motion. The draft is to be delivered by the applicant to the associate to the Commercial List judge and to the other parties, not less than 24 hours prior to the time set for the hearing. Any consent to the orders should be endorsed on the draft. If the parties agree to the proposed orders the endorsed draft order should be delivered to the Commercial List judge and the judge may, without the need for a hearing, include the proceedings on the Commercial List.

15. An order to include a proceeding in the Commercial List is an interlocutory order.

16. The Respondent to an application shall be in a position on the hearing of the application to advise the Court of its position to each of the matters in the Listing Statement; including;

a) Which of the contentions is contested;

b) What the Respondent’s contentions are in relation to the dispute;

c) What the Respondent believes to be he nature of the dispute and the issues likely to arise.

d) Whether the Respondent intends to cross claim and the factual and legal basis of that cross claim.

APPLICATIONS AND DIRECTIONS AFTER LISTING

17. Upon entry of proceedings to the Commercial List all interlocutory applications and motions and the trial of the proceedings, if practicable, shall be conducted by the Commercial List judge, subject to any direction from the Judge Administrator of the civil list. The rules relating to motions in the National Court Rules shall apply to interlocutory applications.

18. The Commercial List judge may make such orders or give such directions as are appropriate to ensure the just, efficient and expeditious disposal of cases on the list.

19. At the first directions hearing orders will be made and directions given with a view to the just, quick and cheap disposal of the proceedings. The orders or directions may relate to:

(a) the filing of points of claim, points of defence or other documents;

(b) the filing of cross-claims;

(c) the filing of a statement of agreed issues and the result in the proceedings according to the determination of those issues;

(d) the provision of any essential particulars;

(e) the making of admissions, pursuant to a notice to admit facts or otherwise;

(f) the delivery or exchange of experts’ reports;

(g) the holding of conferences of experts;

(h) the filing of lists of documents either generally or with respect to specific matters;

(i) the preparation of a Schedule of contentious issues;

(j) the provision of copies of documents;

(k) the administration and answering of interrogatories either generally or with respect to specific matters;

(l) the service and filing of affidavits or statements of evidence by a specified date or dates;

20. Any defence filed pursuant to a direction should:

(a) avoid formality;

(b) admit or deny the facts on which the plaintiff relies;

(c) so far as they do not appear from (b), state the facts on which the defendant relies and contain adequate particulars of those facts; and

(d) identify the legal grounds for opposition to the relief claimed.

21. Orders or directions relating to the provision of particulars, the filing of lists of documents and the administration of interrogatories will be made only upon demonstrated need being established in respect to particular matters.

22. Where appropriate prior to trial orders for production of experts reports, statements of evidence and delivery of lists and bundles of documents will be made in the form of schedule "B" amended as the parties’ desire. Where an order is made in terms of schedule "B" the order may be taken out in short form with any amendments noted substantially in accordance with schedule "C".

MATTERS LISTED BY THE REGISTRY OR ON THE RECOMMENDATION OF THE REGISTRAR

23. (1) Where a matter already filed at commencement of these rules is listed by the Registry or a matter is listed on the recommendation of the Registrar, the Commercial List Clerk will notify the parties;

(2) Within 14 days of receipt of such a notice from the Commercial List Clerk any party may apply by motion to have the matter removed from the lists;

(3) If no application is filed to remove the proceeding from the list within 14 days of the Commercial List Clerk’s notice, the plaintiff shall, within 28 days of the notice, file a motion for directions, together with a Commercial List Statement completed as to paragraphs 1,2,5,6 and 7 if applicable.

REMOVAL FROM THE LIST

24. The Commercial List judge may order the removal of a proceeding from the Commercial List.

21. On making such an order these rules will no longer apply to the proceeding unless otherwise ordered.

22. Removal from the list in no way affects any order or direction made in the proceeding prior to removal.

SUMMARY DISPOSAL

23. The summary disposal procedure set out in Rule 16 of the Listings Rules 2005 is adopted and shall apply to matters on the Commercial List.

SCHEDULE "A"

[PARTIES]

COMMERCIAL LIST STATEMENT

The Plaintiff [or Defendant] makes the following statement in support of an application to have these proceedings listed on the Commercial List:

1. The nature of the dispute... [set out in a summary way];

2. The issues which are likely to arise in the proceedings are... [set out in a summary bullet point manner];

3. The proceedings ought to be included on the Commercial List for the following reasons:

4. The attitude of the other parties as to the proposal to include these proceedings in the Commercial List are as follows:

5. The applicant's contentions in relation to the proceedings are:

a. [set out a brief and informal statement of the relevant general facts giving rise to the proceeding];

b. [set out a brief statement of the grounds on which the applicant claims relief, including any statutory rights etc];

6. The special directions required in this proceeding and the reasons why the directions are sought are:

7. The circumstances of urgency in relation to the proceedings are:

.......................................
Lawyers for the Applicant

SCHEDULE "B"

[PARTIES]

ORDER FOR HEARING

The Court Orders, subject to any specific orders which may have been made in relation to the following matters, that:

Experts Reports

1. If a party intends to rely upon the evidence of an expert witness:

a. The party shall serve a copy of the report of the expert on each other party no later than 28 days before the date fixed for hearing (("trial date");

b. The party shall serve a copy of a report responsive to a report delivered in accordance with subparagraph (a) no later than 14 days before the trial date;

c. A party receiving a report pursuant to Order 1(a) shall not less than 14 days before the trial date, and a party receiving a report pursuant to Order 1(b) shall not less than 7 days before the trial date, state to each other party in writing whether or not it proposes to object to the whole or any part of any such report and the grounds of the objection;

d. The Court may, on such terms as it thinks fit, direct that a report served or part of it, stand as the evidence in chief of the witness or as part of such evidence;

e. If the report is not tendered by the party who served it and the expert is not called as a witness, no other party may put the report in evidence without the leave of the Court;

f. If an expert is called as a witness, the party calling the expert may not lead evidence from the expert the substance of which is not included in the report already served in accordance with this paragraph, without the leave of the Court;

g. If an expert is called as a witness any other party may use his report or any part of it in cross examination of the expert, whether or not the report was tendered, unless the Court otherwise orders;

h. Nothing in this order deprives a party of a proper objection to the admissibility of evidence;

Statements of Evidence

2. Each party shall not less than 28 days before the trial date, serve on each other party a statement of the evidence proposed to be led from each witness to be called by that party, each page signed by the proposed witness, unless the Court otherwise orders.

Service & Delivery of Statements and Affidavits

3. Where directions have been given for the service of affidavits or statements of evidence or paragraph 2 of this Order applies:

a. A party who fails to comply with such a direction or order may not adduce evidence to which the order or direction applies without leave of the Court;

b. At least 14 days before the trial date each party shall, by notice in writing t each other party, state whether that party proposes to object to the whole or any part of a statement of evidence or affidavit and the grounds for the objections;

c. The Court may, on such terms as it thinks fit, order that the affidavit or statement of evidence served, or part of it, stand as the evidence in chief of the witness or part of it;

d. If the affidavit is not read or the maker of the statement of evidence is not called as a witness, no other party may put the affidavit or statement into evidence without the leave of the Court;

e. If the affidavit is read or the maker of the statement is called as a witness, the party serving the affidavit or statement may not lead evidence from the maker, the substance of which is not included in the affidavit or statement, without the leave of the Court, except as to new matters which arise during the course of the trial;

f. Where the maker of an affidavit or statement served under this order, is called as a witness, any other party may use the affidavit or statement or part of it in cross examination, whether or not that document was used in evidence by the party calling the witness;

g. Nothing in this order deprives a party of a proper objection to the admissibility of evidence.

Specifying Documents to be tendered

4 (1) At least 14 days before the trial date each party shall, by notice in writing to each other party, specify what documents it proposes to tender at the hearing and, if there has been no inspection, where the documents may be inspected;

(2) Within 7 working days thereafter, each party shall advise each other party in writing:

a. Which of the specified documents may be tendered by consent;

b. Whether the authenticity of any of the remaining documents, and if so which, is disputed; and

c. In so far as any document may not be tendered by consent, the grounds for the objection to its tender.

(3) Each party other than the plaintiff shall, not later than 5:00 pm on the fourth last working day before the trial date, deliver to the plaintiff 2 copies of all documents intended to be tendered by such party at the hearing, which have not been specified in the plaintiffs notice referred to in subparagraph (1).

(4) The Plaintiff shall file by midday on the last working day prior to the trial date, duly paginated and indexed, two copies of the bundle of documents intended to be tendered at the hearing by any party. The index of documents shall indicate which documents are tendered by consent and where there is no consent to tender of a document which party intends to tender the document.

6. Tender of Original Documents

(1) If any party intends to tender an original document that party shall, at least 7 days before the date fixed for hearing, give notice of that intention to all other parties;

(2) If any party requires another party to tender an original document that party shall at the time of advising in accordance with subpara 3(b) give notice of that requirement to the other party;

(3) The party in possession of a document the subject of a subpara (1) or (2) notice shall make the document available for inspection prior to the trial date at the office of the lawyer for the party giving notice.

Continuing Discovery

7. Where a party is required to file a list of documents:

a) Until the conclusion of the hearing that party shall be under a continuing obligation to disclose any document relevant to any matter in issue;

b) If a party becomes aware that it has documents in its possession which have not been include in its list of documents that party shall include and clearly identify, particulars of those additional documents in a supplementary list and file and serve an affidavit specifying the reason for failure to disclose the documents in the original list;

c) At least 7 days before the trial date each party shall file and serve a supplementary list of documents (if any) which have come into its possession since service of its original list, but excluding copies of documents received pursuant to discovery or subpoena to which all parties have been granted access, and shall give supplementary inspection.

Statements of Agreed Issues and Chronology etc.

8. No later than 4:30 pm on the last working day before trial:

a) The plaintiff’s lawyer shall cause to be filed and served a statement of agreed issues, a chronology of relevant events and, where the number of persons who feature warrants it, a list of relevant characters;

b) If there is no agreement each lawyer shall cause to be filed and served a statement of the issues which the lawyer perceives are likely to arise;

c) Each lawyer shall cause to be filed a list of topics to be covered by the submissions, in the order in which they will be taken, and a list of propositions of law relied upon together with the authorities to be cited in support;

d) The lawyer for any party other than the plaintiff may file and serve a chronology of relevant events and a list of relevant characters.

9. Documents required by paras 4(3) and 7 of this order to be filed are to be filed by delivery to the Commercial List Clerk. Documents required by para 7 of this order to be served are to be delivered to the lawyer for each opposing party.

SCHEDULE "C"

[PARTIES]

The Court Orders:

1. The usual order for hearing in accordance with annexure "B" to National Court (Commercial List) Rules.

2. The usual order is amended as follows: