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National Court Motions (Amendment) Rules 2005

PAPUA NEW GUINEA

NATIONAL COURT OF JUSTICE

NATIONAL COURT MOTIONS (AMENDMENT) RULES 2005

MOTIONS (AMENDMENT) RULES 2005

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 procedure of the National Court of Justice relating to the conduct of Motions shall come into force on a date specified in these Rules.

These Rules are in addition to and form part of the procedure for motions set out in the National Court Rules.

Dated and signed by the Judges on 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, CBE
Justice Mark Sevua
Justice Don Sawong, MBE
Justice Nicholas Kirriwom
Justice Les Gavara-Nanu, OBE
Justice Ambeng Kandakasi
Justice Ellenas Batari, MBE
Justice Catherine Davani
Justice Salatiel Lenalia
Justice Panuel Mogish
Justice Greg Lay
Justice David Cannings
Justice George Manuhu
Justice Kingsley Allen David
Justice Sao Gabi

Order 4 Division 5 (Motions) of the National Court Rules is amended by inserting the following:

"49. – Motions (Amendment) Rules 2005

Purpose

Between 1983 to 2004, the Registrar issued a number of Practice Directions & Notes in relation to the conduct of motions. These are contained in Civil Jurisdiction Bulletin 2004. These Rules include a consolidation of those previous Practice Directions & Notes. Upon coming into operation of these Rules, those Practice Directions & Notes shall cease to apply. The purpose of these Rules is to improve the disposition of motions and other interlocutory applications in all civil cases, in a quick, fair and cheap manner.

1. Motions List

The Registrar shall from time to time as required by the Motions Judge, compile a Motions List containing Motions filed for all civil cases except Motions in the following matters-

a. Appeals,

b. Judicial Review,

c. Commercial,

d. Election Petitions,

e. and in those cases which involve listing issues such as Motions seeking leave to dispense with requirements for notice to set down for trial or applications for dismissal of proceedings for want of prosecution or under Order 12 Rule 40 and Order 8 Rule 27 of the National Court Rules.

2. Rules of Court

These Rules are in addition to the procedure for motions as set out in O. 4 Div. 5 (Rules 37 to 48) of the National Court Rules.

3. Judge

The Chief Justice may from time to time assign a judge (s) to conduct the Motions List, as determined in the Annual Circuit Calendar issued by the Chief Justice.

4. Senior Clerk

The Registrar shall appoint a Senior Clerk and such other clerks to manage the motions list and to perform other duties required of him or her under the Rules or as required by the Registrar.

5. Urgent ex parte applications.

i. Without filing Originating Process and Notice of Motion under Order 14 Rules 9 – 16 of the National Court Rules.

(a) If a lawyer or a party wishes to make an urgent ex parte application, they must first contact the Registrar or Deputy Registrar by telephone, and by sending a fax setting out the details of the application, and why the matter is urgent.

(b) The Registrar will then fix a time for the hearing in consultation with the Motions Judge.

(c) If the judge grants the interim orders sought, they must be made returnable before the Court on a fixed date. The judge must also make orders for filing and service of the Court Order, Originating process, Notice of Motion and supporting affidavit, Undertaking as to damages, security for costs and any other relevant documents, on the defendant or any other person directly affected by the order.

ii. Urgent ex parte applications in other cases.

(a) A lawyer or a party wishing to make an urgent ex parte application, must contact the Registrar in writing, explaining the reasons for the urgency and why the requirements for service of the Motion is sought to be dispensed with.

(b) The Registrar, after being satisfied with the explanation given, will fix a time and date for the hearing of the Motion, in consultation with the Motions Judge.

(c) The application will not be set down for hearing unless the following documents are filed:-

• Originating Process;
  
• Notice of Motion;
  
• Supporting Affidavit/s;
  
• Where appropriate, an Undertaking as to Damages;
  
• Draft order.
  

(d) The applicant must, in the Notice of Motion, first seek an order dispensing with the requirement for service of the motion. In the supporting affidavit, the deponent must demonstrate the urgency of the matter and the reasons why the requirement for service of the Motion is necessary, such as difficulty with locating the defendant in order for service to be effected.

(e) Upon hearing the application, the Judge may make orders including:

i. An order dispensing with requirements of service;

ii. An interim order which provides some solution, until the return date;

iii. Service of the Order, the Originating Process, Motion, Supporting Affidavit, Undertaking as to Damages (where appropriate) and other documents filed in the proceedings, on or by a specified date.

iv. Giving "liberty to apply";

v. Giving a specific return date, when the interim orders become returnable before the Motions Judge.

vi. Affidavit of service of the documents referred to in above.

(f) A party shall not and the judge shall not make any order in terms of the substantive relief sought in the originating process.

6. Motion days.

Motions are heard at times as determined by the Judge. For the time being in Waigani, Motions are heard on Monday, Wednesday and Friday, of each week except, on the Supreme Court week.

7. Duty Judge

Motions to be moved after official Court sitting time on week-ends and public holidays must be done by prior arrangement with the Registrar. The Motions Judge is the duty judge or in his or her absence, another judge assigned by the Judge Administrator (Civil. They are treated as urgent applications and the practice set out in Rule 5 above, applies.

8. Form of Motions

All Motions must contain a concise reference to the Court’s jurisdiction to grant the orders being sought. Motions not containing such reference will not be accepted for filing. If accepted by the Registry staff without such reference, and it goes before the motions judge, the Court may strike out the motion for being incompetent and for lack of form.

The motion must state the following;

"...move the Court for Order pursuant to (e.g. section 5 of the Claims By and Against the State Act...) ...".

9. Motions for interlocutory matters only

Except as otherwise expressly provided in the National Court Rules, Motions shall be for relief on interlocutory matters only and not for the substantive relief claimed in the originating process.

10. Signing of Motions

The Motion must be signed by the lawyer or applicant and the name of the lawyer or party must appear below the signature. The Motion cannot be signed by the Law firm as it is incapable of having a signature.

11. Filing and Service of Motions.

(1) Motions must be served as soon as practicable on or after the day they are filed. Counsel must ensure that the motion is not listed, if he or she has not complied with the three (3) clear days of service. If the motion is listed, and the three (3) days service rule has not been complied with, the court will adjourn the motion.

(2) An Affidavit of Service must be filed as soon as practicable on or after the day of service. To that affidavit of service must be attached copies of the court documents served, including cover letters/notes and the Law firm’s acknowledgement form showing who received the document; his or her name; his or her position with the company and the date and time of receipt.

(3) If affidavits served exceed 5 pages, the copies of the first two (2) pages and the last page of the affidavit (not the attachment), should be attached.

12. Supporting affidavits

(1) All affidavits in support of the Motion must be filed on the date of filing the Motion;

(2) All affidavits opposing and counter motions must be filed at the latest by 2 pm on the day before the hearing of the motion;

(3) Motion files will be sent to the Motions Judge at the latest by 3 pm on the day preceding the day the Motion is to be heard;

(4) Leave must be sought from the Motion Judge before any affidavit is filed on the day of the hearing. The Registry will no longer accept affidavits filed after 2 pm on the day preceding the hearing of the Motion or on the morning the Motion is to be heard.

(5) With the exception of contempt hearings, there shall be no cross-examination of deponents of affidavits, except with leave of the Court.

13. Motion List & Number of matter on Motions List

(1) The Registrar shall publish a Motions List and made available at the Registry on Motion days. Lawyers and parties must check with the Motions Clerk on the day preceding the hearing date, to ensure that their matter is placed on the Motions List. Any Motions that does not appear on the Motions List is not before the Judge and it will not be dealt with.

(2) The maximum number of Motions appearing on the Motions List shall not exceed 35. This number may be varied by the Judge.

14. Motion duration

A motion must not exceed a total of 20 minutes in hearing time. Where a Motion is expected to exceed 20 minutes, application should be made to the judge for a special fixture. The Judge may allocate a special fixture in the circuit month or refer the matter to the Judge Administrator (Civil) for a special fixture.

15. Special fixtures

The Motions Judge may refer a motion matter to the Judge Administrator (Civil) to allocate a special fixture in appropriate cases including a motion which is expected to exceed 20 minutes or in which the Judge is unable to deal with the motion.

16. Motions not mentioned

(1) Motion matters appearing on the Motion List but not mentioned due to non-appearance of parties may be struck out for want of prosecution or be adjourned to a fixed time.

(2) Where the Motion is adjourned, the Registrar shall advise the parties in writing of the adjournment and if the party filing the Motion fails to appear on the adjourned date, the Motion may be struck out or dismissed for want of prosecution.

17. Dismissal /Striking out of Motions

The Court may of its own motion or upon application strike out or dismiss a Motion which is not prosecuted within one (1) month after it is filed or if it is adjourned twice.

18. Adjournments

(1) A Motion shall not be adjourned generally but to a fixed date and time.

(2) With the exception of winding up petitions, a Motion will not be adjourned twice, except with leave of the court. Otherwise, the Motion may be struck out for want of prosecution.

(3) A motion may be adjourned by consent of the parties by completing the form in Schedule A hereto. The completed form may be presented to the Court or given to the Clerk responsible for Motion matters or the Judge’s Associate before the hearing. If counsel for the applicant is resident out of town, then he or she must brief counsel in a law firm in town to appear for him/her to seek the adjournments.

(4) No Motion will be adjourned by correspondence addressed to or copied to the Registrar, Clerk or Judge’s Associate.

19. Other matters

(1) Undertaking as to Damages

This must be filed together with the Originating Process, affidavits and Notice of Motion and it must be signed by the applicant, not the lawyer.

(2) Contempt hearings

All contempt matters shall be mentioned before the motions judge who either hears the application on the motion day or allocates a special fixture for the hearing of the application.

(3) Default judgment procedure

(a) Against individuals

(i) An applicant for Default judgment shall file the following documents:

• 1. Notice of Motion
  
• 2. An Affidavit of Service;
  
• 3. An Affidavit of Search (of the court file) conducted just before filing the motion;
  
• 4. An Affidavit in support (to also attach copy of the letter to the other party forewarning of the application, if a Notice of Intention to Defend has been filed).
  
• 5. A draft order for Default Judgment.
  

(ii) Upon compliance with sub-rule ( i ) and the requirements of Order 12 Division 3 of the National Court Rules, the Registrar shall fix a return date on the Notice of Motion. The date must be three (3) clear days after the anticipated service of the Motion.

(iii) If the motion has been outstanding for two (2) weeks or more, then three (3) days before the motion is moved, the applicant or his/her lawyer must conduct a fresh search of the court file and file a fresh affidavit of search.

(iv) The affidavit of service must strictly comply with Order 12 Rule 34 of the National Court Rules, that is:

• the affidavit must prove due service of the writ, i.e it must depose to date and time of service and on whom the writ was served;
  
• A copy of the writ must be attached to the affidavit of service.
  

(b) Against a corporate entity including the State

(i) Motions on other statutory corporations and bodies must be effected in accordance with the requirements of the relevant statutory provision, e.g. 431 (1) (a) to (f) (2) of the Companies Act

(ii) In order to assist the court, Counsel moving the Motion must tender to the court copy of the relevant provision governing institution and service of court process against these entities.

(4) Application to set aside ex parte orders.

(1) An application to set aside ex parte order shall be made inter partes, before the same judge who made the ex parte order.

(2) Where the judge who made the ex parte order is unavailable, the application may be made before another judge.

20. Dispensation with requirements of these Rules

The judge may dispense with the requirements of these Rules in appropriate cases.

21. Commencement of these Rules

These Rules shall commence on the date they are signed by the Judges.

SCHEDULE A

(Title)

CONSENT ADJOURNMENT FORM

I.............(insert name) the lawyer for the Plaintiff/Defendant certify that I agree to the adjournment of the Motion in this matter dated ................. (insert date).

..........................
(Signature of Lawyer)

.....................................
(Lawyer’s name and firm name)

I ..................... (insert name) the lawyer for the Defendant/Applicant (or as appropriate) certify that I agree to the adjournment of the Motion in this matter dated ............... (insert date) to the following date ................... (insert date).

............................
(Signature of Lawyer)

..............................
Lawyer’s name and firm

Dated this .................. day of ............... 20.......

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