ORDER 4.-COMMENCEMENT OF PROCEEDINGS.

Division 1.-Mode of Beginning Civil Proceedings.

1. Two modes only. (4/1)

Subject to the provisions of any Act, regulations or rules but without prejudice to Order 8 Rule 38, proceedings in the Court under this Part shall be commenced by writ of summons or by originating summons.

2. Where writ of summons required. (4/2)

(1) Proceedings shall be commenced by writ of summons -

(a) where a claim is made by the plaintiff for any relief or remedy for any tort; and

(b) where a claim made by the plaintiff is based on an allegation of fraud; and

(c) where a claim is made by the plaintiff for damages for breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under an Act or independently of any contract or any such provision), and the damages claimed consist of or include damages in respect of the death of any person or in respect of personal injuries to any person in respect of damage to any properly; and

(d) where a claim is made by the plaintiff for damages for a breach of promise of marriage.

(2) In Sub-rule (1) personal injuries includes any disease and any impairment of a person's physical or mental condition.

(3) Sub-rule (1) does not apply to proceedings commenced by a person who desires to apply for -

(a) a declaration of right; or

(b) an immediate injunction; or

(c) an immediate appointment of a receiver; or

(d) immediate orders under Order 14 Rule 10 (the preservation of property).

3. Where plaintiff may choose. (4/3)

(1) Except in the case of proceedings which by these Rules or by or under any Act are required to be commenced by writ of summons, proceedings may be commenced either by writ of summons or by originating summons as the plaintiff considers appropriate.

(2) Proceedings -

(a) in which the sole or principal question at issue is, or is likely to be, one of the construction of an Act or of any instrument made under an Act, or of any deed, will, contract or other document, or some other question of law; or

(b) in which there is unlikely to be a substantial dispute of fact; or

(c) in which a person is authorized by an Act, regulation or by these Rules to make an application to the Court or a Judge with respect to a matter that is not already the subject matter of a pending cause or matter, and no other mode of making the application is prescribed by that Act, or regulation or by these Rules,

are amongst those which are appropriate to be commenced by originating summons unless the plaintiff considers the proceedings more appropriate to be commenced by writ of summons.

4. Mode of proceedings in interlocutory matters.

Proceedings may be instituted by motion, only if they relate to an interlocutory application.

5. Right to sue in person. (4/4)

(1) Subject to Sub-rule (2), to Rule 6(1) and to Order 5 Rule 20(2) (disability), any person may proceed in the Court by a solicitor or in person.

(2) Except as provided by or under any Act, a corporation may not commence or carry on any proceedings otherwise than by a solicitor.

6. Relator. (4/5)

(1) A relator must act by a solicitor.

(2) A solicitor may not act for a relator in any proceedings unless the relator has authorized the solicitor in writing to act for him in the proceedings and the authority has been filed.

(3) The authority may be written on the originating process.

(4) A married woman may be a relator.

Division 2.-Originating Process Generally.

7. Relief claimed. (7/1)

(1) An originating process shall state specifically the relief claimed by the plaintiff.

(2) Where the claim for relief includes a claim for the determination or direction of the Court on any question, the originating process shall state the question.

(3) Subject to Rule 10(4) costs need not be specifically claimed.

8. Name, address, etc. (7/2)

An originating process must have subscribed to it -

(a) the name, address and occupation of the plaintiff; and

(b) where the plaintiff sues by a solicitor-the name, address and telephone number of the solicitor; and

(c) where the plaintiff sues by a solicitor and that solicitor has another solicitor as agent for him in the proceedings-the name, address and telephone number of the agent; and

(d) an address for service, which shall not be more than 15 km from the Registry.

9. Notice of intention to defend. (7/3)

(1) Where there is a defendant, an originating process (other than an originating summons under Rule 26) shall bear a note that the defendant is liable to suffer judgement or an order against him unless the prescribed form of notice of his intention to defend is received in the Registry.

(2) The note under Sub-rule (1) shall specify the time limited for the giving of the notice.

(3) Where there is a defendant an originating summons under Rule 26 shall bear a note that -

(a) if there is no attendance before the Court by the defendant or his counsel or solicitor at the time and place stated in the summons, the proceedings may be heard and the defendant will be liable to suffer judgement or an order against him; and

(b) before any attendance at that time the defendant must file in the Registry a notice of his intention to defend the claim.

10. Money claim; Stay on payment. (7/4)

(1) Where a plaintiff, by his originating process, claims against a defendant for debt, damages or other money, but makes no claim of any other kind, the defendant -

(a) may, within the time limited for giving notice of intention to defend, pay to the plaintiff the sum of -

(i) the amount claimed (other than costs); and

(ii) the amount prescribed for costs under Table 2 of Schedule 2; and

(b) may file notice of the payment in Form 8.

(2) Where payment is to be made under this Rule on a claim for liquidated demand together with interest, interest shall be paid for the period from the date of the claim until payment at the rate specified in the claim or, if no rate is specified, at the rate of 8% yearly.

(3) On the filing of a notice of payment under Sub-rule (1), further proceedings shall be stayed.

(4) An originating process to which this Rule applies shall bear a note to the effect of Sub-rules (1) and (3) and, where Sub-rule (2) applies, of that sub-rule, and shall specify the prescribed amount for costs.

11. Time for giving notice of intention to defend. (7/5)

The time to be limited for a defendant to give a notice of intention to defend shall be -

(a) in the case of service of an originating summons under Rule 26-not later than the date for hearing stated in the summons; or

(b) in the case of service of other originating process -

(i) within Papua New Guinea-not less than 30 days after service; or

(ii) outside Papua New Guinea-two months after service or such other time as the Court may order.

12. Filing and copies (7/6)

(1) Proceedings shall be commenced by the filing of the originating process.

(2) Originating process shall be filed in the Registry.

(3) The Registrar shall sign and mark with the seal of the Court a sufficient number of copies of the originating process for service and proof of service.

13. Validity for service. (7/7)

(1) For the purpose of service an originating process shall be valid for two years from the date on which it is filed.

(2) The Court shall not extend the period of two years mentioned in Sub-rule (1).

(3) This Rule does not prevent the plaintiff from commencing fresh proceedings by filing another originating process.

14. Recovery of land; Notice to occupier. (7/8)

(1) Where, on the date on which proceedings for possession of land are commenced, a person (in this Rule called the occupier) not joined as a defendant is in occupation of the whole or any part of the land, the plaintiff shall -

(a) state in the originating process that he does not seek to disturb the occupation of the occupier; or

(b) where the proceedings are commenced by originating summons under Rule 26-serve on the occupier not less than 21 days before the date of the appointment for hearing, unless the Court otherwise orders, the summons together with a notice in Form 9 that he may apply to the Court for an order that he be added as a defendant and that, if he does not apply at or before the appointment for hearing stated in the summons, he may be evicted pursuant to a judgement entered in his absence; or

(c) where in proceedings other than proceedings commenced by originating summons under Rule 26-serve the originating process on the occupier together with a notice that he may apply to the Court for an order that he be added as a defendant and that, if he does not so apply within 21 days after service, he may be evicted pursuant to a judgement entered in his absence.

(2) Documents may be served on an occupier for the purpose of Sub-rule (1) personally or by leaving the documents in a prominent and secure place on the land in his occupation addressed to him by name or addressed to the occupier.

15. Concurrent writs of summons.

(1) One or more concurrent writ of summons may, at the request of the plaintiff, be issued at the time when the original writ is issued or at any time before the original writ ceases to be valid.

(2) Without prejudice to the generality of Sub-rule (1), a writ for service within the jurisdiction may be issued as a concurrent writ with one which, or notice of which, is to be served out of the jurisdiction and a writ which, or notice of which, is to be served out of the jurisdiction may be issued as a concurrent writ with one for service within the jurisdiction.

(3) A concurrent writ is a true copy of the original writ with such differences only (if any) as are necessary having regard to the purpose for which the writ is issued.

(4) This Rule shall apply to an originating summons as it applies in relation to a writ of summons.

Division 3.-Writ of Summons.

16. Form of writ.

A writ of summons for the commencement of an action shall, except when any different form is prescribed, be in Form 5.

17. Costs of prolixity.

Any costs occasioned by the use of any more prolix or other forms of writs, and of endorsements on them, than the forms prescribed shall be borne by the parties using the same, unless the Court otherwise directs.

18. Date and teste.

Every writ of summons, and also (unless by any law or by these Rules it is otherwise provided) every other writ shall bear date on the day on which it is issued, and shall be tested in the name of the Chief Justice of the Court.

19. Endorsement of claim. (UK 6/2)

Without prejudice to Order 8 Rule 33, before a writ of summons is issued it must be endorsed with a statement of claim.

20. Endorsement as to capacity. (UK 6/3)

(1) Before a writ of summons is issued it must be endorsed -

(a) where the plaintiff sues in a representative capacity-with a statement of the capacity in which he sues; and

(b) where a defendant is sued in a representative capacity-with a statement of the capacity in which he is sued.

(2) In probate actions the endorsement shall show whether the plaintiff claims as creditor, executor, administrator, residuary legatee, legatee, next-of-kin, heir-at-law, devisee, or in any and what other character.

(3) The issue of a writ of summons in a probate action shall be preceded by the filing of an affidavit by the plaintiff, or by one of the plaintiffs, verifying the endorsement on the writ.

21. Endorsement of claim for account.

In all cases in which the plaintiff, in the first instance, desires to have an account taken, the writ of summons shall be endorsed with a claim that such account be taken.

22. In actions for libel and slander.

In actions for -

(a) libel-the endorsement on the writ shall state sufficient particulars to identify the publications in respect of which the action is brought; and

(b) slander-the writ shall state sufficient particulars to identify the time and place where the words complained of were uttered.

Division 4.-Originating Summons.

23. Application. (5/1)

This Division applies only to proceedings commenced by originating summons.

24. Parties. (5/2)

(1) A party claiming relief by originating summons shall be called a plaintiff.

(2) A party against whom relief is claimed by originating summons shall be called a defendant.

25. Choice of summons.(5/4)

A plaintiff commencing proceedings by originating summons may use either a summons stating an appointment for hearing in accordance with Rule 26 or a summons for a hearing to be appointed in accordance with Rule 27.

26. Summons stating appointment for hearing. (5/4A)

(1) This Rule applies to proceedings commenced by originating summons in Form 6 stating an appointment for hearing.

(2) The appointment for hearing to be stated in a summons under this Rule maybe fixed by the Court, or, if not fixed by the Court, shall be obtained from the Registry.

(3) Where there is a defendant, the summons shall, unless the Court otherwise orders, be served not less than five days before the date of the appointment for hearing.

(4) Where the appointment for hearing is obtained from the Registry and the summons is to be served outside Papua New Guinea, the date of the appointment shall be not less than one month after the date of filing of the summons.

(5) Where the Court makes an order under Sub-rule (3), the summons shall bear a note of the order made.

27. Summons for hearing to be appointed. (5/4B)

(1) This Rule applies to proceedings commenced by originating summons in Form 7, for a hearing to be appointed.

(2) Where there is no defendant, the plaintiff may at any time obtain from the Registry an appointment for hearing.

(3) Where any defendant has given notice of intention to defend or has made default in giving that notice, the plaintiff may obtain from the Registry an appointment for hearing.

(4) Where a plaintiff does not obtain an appointment under Sub-rule (3) within seven days after becoming entitled to do so, a defendant may obtain from the Registry an appointment for hearing.

(5) The Court may, on application by a party, make an appointment for hearing at any time, whether or not an occasion has arisen for obtaining an appointment under Sub- rule (2) or (3).

28. Appointment for further hearing. (5/4C)

(1) This Rule applies where the proceedings are not disposed of altogether on the first day appointed for hearing.

(2) A party may, unless the Court otherwise orders, obtain from the Registry an appointment for further hearing.

(3) The Court may make an appointment for further hearing.

(4) This Rule does not affect the powers of the Court as to adjournment.

29. Notice of appointment. (5/5)

(1) Where -

(a) a party obtains an appointment for hearing under Rule 27(2) or (3); or

(b) a party obtains an appointment for further hearing under Rule 28(2),

the party shall, on the day on which the appointment is obtained, file notice of the appointment and serve notice in Form 10 on each other party who has an address for service in the proceedings.

(2) Where the Court makes an appointment for hearing under Rule 27(4) or for further hearing under Rule 28(3), the Court may give directions for the filing and service of notice of the appointment or for otherwise notifying the parties of the appointment.

30. Alteration of date. (5/5A)

(1) Where an appointment for hearing has been obtained or made the Court may alter the appointment to a later date and may authorize the solicitor for a party to make corresponding alterations in any copy for service of any summons or notice.

(2) The Registrar may exercise the powers of the Court under Sub-rule (1) and may give authority by telephone or by such other means as he thinks fit.

31. Directions. (5/7)

(1) The Court may exercise its powers under this Rule at any time after the commencement of the proceedings.

(2) The Court shall give such directions as are convenient for the just, quick and cheap disposal of the proceedings.

(3) Without limiting the generality of Sub-rule (2), the Court may -

(a) make orders for defining the issues by pleading or otherwise; and

(b) direct that the whole or any part of the evidence be given on affidavit or orally; and

(c) make any orders relating to the conduct of the proceedings which it might make on motion by a party.

32. Determination. (5/8)

The Court may, on the first or any later day of hearing -

(a) hear and determine the proceedings or any claim in the proceedings; and

(b) make such order or direct the entry of such judgement as the nature of the case requires.

33. Absence of party. (5/9)

The Court may proceed with a hearing in the absence of -

(a) a plaintiff, where he has had due notice of the hearing; or

(b) a defendant, where -

(i) he is in default of giving a notice of intention to defend; or

(ii) he has had due notice of the hearing.

34. Cross-claim. (5/10)

(1) A defendant may, with the leave of the Court, cross-claim for any relief which the Court may grant.

(2) A defendant who wishes to cross-claim shall, at as early a stage as is practicable, tell the Court the nature of the cross-claim.

(3) A cross-claim shall be made in such manner as the Court may direct under Rule 31 or 35. or under Order 8 Rule 37(2).

35. Continuation on pleadings. (5/11)

(1) The Court may order that the proceedings continue on pleadings.

(2) The Court may, on or after making an order under Sub-rule (1) -

(a) order that any affidavits stand as pleadings; or

(b) make orders for the filing of a statement of claim or other pleadings.

(3) The provisions of these Rules concerning proceedings commenced by writ of summons shall, except as far as the Court otherwise orders, and except so far as the context or subject matter otherwise indicates or requires, apply to proceedings ordered under this Rule to continue on pleadings.

36. Want of prosecution. (5/12)

(1) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may stay or dismiss the proceedings.

(2) Sub-rule (1) applies, with any necessary modifications, in relation to a cross-claimant as it applies in relation to a plaintiff.

Division 5.-Motions.

37. Interlocutory or other application in proceedings. (19/1)

An interlocutory or other application, in or for the purpose of or in relation to proceedings commenced or to be commenced by writ of summons or by originating summons, shall be made by motion.

38. Notice necessary. (19/2)

(1) Subject to Sub-rule (2), a person shall not move the Court for any orders unless before moving he has filed notice of the motion and has served the notice on each interested party who has an address for service in the proceedings.

(2) A person may move the Court without previously filing or serving notice of the motion -

(a) where the preparation of the notice, or the filing or service, as the case may be, of the notice would cause undue delay or other mischief to the applicant; or

(b) where each party interested, other than the applicant, consents to the order; or

(c) where under these Rules or the practice of the Court for the time being the motion may properly be made without the prior filing or service, as the case may be, of notice of the motion; or

(d) where the Court dispenses with the requirements of Sub-rule (1).

(3) Except with the leave of the Court, and subject to these Rules, a motion shall be moved only on a date fixed by the Court for the hearing of motions.

39. Parties to a notice of motion.

(1) A party making an application by motion shall be called an applicant.

(2) A party against whom relief is claimed by motion shall be called a respondent.

40. Contents of notice. (19/2(3))

(1) Notice of a motion shall -

(a) state the date and time when, and the place where, the motion is to be moved; and

(b) where the Court makes an order under Rule 44-bear a note of the order made; and

(c) state concisely the nature of the order which is sought; and

(d) name each party affected by the order which is sought.

(2) Costs need not be specifically claimed.

(3) Notice of motion shall be in Form 11.

41. Persons under disability.

Where the applicant or his solicitor is aware that the respondent is an infant or a person of unsound mind the fact shall appear on the face of the notice of motion.

42. Time for service of notice. (19/3)

Where notice of a motion is required to be served, it shall, unless the Court otherwise orders, be served not less than three days before the date named in the notice for hearing the motion.

43. Service. (19/4)

(1) Where notice of a motion is to be served on a person who has not given a notice of intention to defend and is not in default in giving that notice, the notice of motion shall be served personally.

(2) An affidavit of service of a notice of motion shall be filed not later than the day before the day on which the motion is to be made.

44. Affidavits.

(1) Where a motion is founded on facts or on facts and documents, unless the Court otherwise orders, an affidavit setting forth those facts and having annexed to it those documents (if any) shall be filed with the notice of motion, and a copy of the affidavit shall be served on the parties sought to be affected by the motion with the notice of the motion.

(2) A respondent may, before the date appointed for the hearing or, by leave of the Court within such further time as may be fixed by the Court, file an answering affidavit and shall on the same day serve a copy of it on the applicant.

45. Motion dismissed or adjourned for notice on other persons.

If, on the hearing of a motion, the Court is of opinion that any person on whom notice of the motion has not been served ought to have been served, the Court may, on such terms (if any) as the Court thinks fit to impose, either dismiss the motion or adjourn its hearing in order that such notice may be given.

46. Absence of party. (19/5)

The Court may hear and dispose of a motion in the absence of any party

(a) where service of notice of the motion on the absent party is not required by these Rules or by an order; or

(b) where notice of the motion has been duly served on the absent party.

47. Notice of adjournment. (19/7)

Where notice of motion has been served for any date or the hearing of a motion has been adjourned to any date, and, before that date, any party files a request, bearing the consent of each other party to the motion, for an adjournment in accordance with this Rule, the hearing of the motion shall stand adjourned to the date specified in the notice or to such later date as the Court may appoint.

48. Further hearing. (19/8)

(1) Where notice of a motion for any day has been filed or served, and the motion is not disposed of on that day -

(a) the Court may hear and dispose of the motion on any later day fixed by the Court; and

(b) subject to Sub-rule (2), filing or service of further notice of motion shall not be required.

(2) Sub-rule (1)(b) shall not have effect -

(a) where the Court directs the filing or service of a further notice of motion; or

(b) where service is required on a party on whom notice of the motion has not previously been served.

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 dispensation with 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[^3] Judges.

Schedule A-Consent Adjournment Form

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 . . .