ORDER 10.-TRIAL.
Division 1.-Setting Down for Trial.
1. Application of Division 1. (33/1)
(1) This Division applies to proceedings commenced by writ of summons.
(2) This Division applies to proceedings commenced by originating summons to such extent and with such modifications as the Court may direct.
2. Place and mode of trial. (33/2 and 3)
(1) Subject to Sub-rule (2) the trial of proceedings shall take place at such place within Papua New Guinea as is stated in the notice filed pursuant to Rule 4.
(2) Notwithstanding the provisions of Sub-rule (1) the Court may, on the application of a party or of its own motion, appoint some other place within Papua New Guinea for the trial of any proceeding.
(3) Unless the Court otherwise orders the trial shall be by a single Judge.
3. Extent of trial. (33/4)
Proceedings shall, unless the Court otherwise orders, be set down for trial generally, that is to say, for trial of all the questions and issues arising on every claim for relief in the proceedings.
4. Notice to set down for trial. (33/5)
(1) A party may, after the pleadings are closed, file a notice requesting that the proceedings be set down for trial.
(2) The notice in Form 40 to set down for trial shall state -
(a) the place for trial as fixed by or under Rule 2; and
(b) whether the proceedings are to be set down for trial generally or for the trial of specified issues.
(3) A party filing notice to set down for trial shall, on the day of filing, serve the notice on each other party who has an address for service in the proceedings.
5. Want of prosecution. (33/6)
Where a plaintiff does not, within six weeks after the pleadings are closed, set the proceedings down for trial, the Court, on motion by any other party, may, on terms, dismiss the proceedings or make such other order as the Court thinks fit.
6. Directions before setting down. (33/7)
Where notice to set down for trial has been filed, but the Court considers that the proceedings are not ready for trial, the Court may give directions as to the steps to be taken to make the proceedings ready for trial.
7. Listing a matter for hearing.
Where a notice has been given under Rule 4 the Registrar shall place the matter in the list of matters for hearing at the next sittings of the Court at the place appointed for the hearing of the proceedings.
8. Delivery of copies of pleadings on entering action.
(1) The plaintiff shall, within seven days after the cause or issue has been set down for trial, deliver to the Registrar two copies of the whole of the pleadings or of the issues, one of which shall be for the use of the Court at the trial.
(2) The copies referred to in Sub-rule 1 shall be typed, except as to such parts (if any) of the documents as are by these Rules permitted to be written.
9. Notice of trial. (33/9)
The Registrar shall, not less than 14 days before the date for which the proceedings are set down for trial, give notice of trial in Form 41 to each party who has an address for service and who was not present or represented when the proceedings were set down for trial.
[^5]9A. Listings Rules 2005
Purpose.
These Rules include a consolidation of all previous Practice Directions and Notes issued by the Registrar between 1983 to 2004 in relation to call-over and listing of all civil cases, except, for Appeal, Judicial Review, Commercial and Election Petition cases. Those previous Practice Directions & Notes are contained in Civil Jurisdiction Bulletin 2004. As from the date of coming into operation of this these Rules, those practice directions & notes will cease to apply.
These Rules are in addition to the provisions of Order 10 Div. 1 (rr 1-9) of the National Court Rules relating to pre-trial preparation and setting down cases for trial. They are intended to improve the disposition of civil cases in a quick, fair and cheap manner.
1. INTERPRETATION.
The following words or abbreviations unless the context otherwise suggests-
Listing process means, the process set out in this Practice Direction and in particular, Mentions, Directions Hearing, Pre-trial Conferences and Status Conferences.
List means matters on the Listings List., Mentions List & Directions List.
2. JUDGE.
The Chief Justice may assign a judge(s) as determined in the Annual Circuit Calendar to conduct listings in all civil cases except for, appeals, judicial review, commercial and election petition matters.
3. CALL-OVERS.
The Registrar will not produce a call-over list and conduct call-over of civil matters. Instead, all matters already filed and pending before the Court as well as those that are yet to be filed, will be dealt with in the manner outlined hereunder.
4. FILE REFERENCE.
Civil matters bearing the following file reference shall be listed for directions before the listings judge:
WS No of (year) - Writ of Summons
OS No. of (year) - Originating Summons
MC No. of (year) - Matrimonial Causes.
WPA No. of (year) - Wills, Probate and Administration
LA - of (year) - Lawyers Admission.
MP No. of (year) - Human rights applications, Winding up Petitions, Insolvency Petitions and other Miscellaneous applications in civil matters.
5. COURT LISTS.
(1) The Registrar shall maintain a general civil list of all civil cases (other than Appeal, Judicial Review, Commercial and Election Petition cases) filed and pending in the National Court.
(2) The Registrar shall compile such other lists as directed by the judge including a list containing cases in which a Notice to Set Down for Trial/Hearing has been filed and the case is ready for pre-trial directions.
6. NOTICE TO SET DOWN FOR TRIAL.
(1) Where a Plaintiff wishes to file a Notice to Set Down for Trial he may do so after lapse of 6 weeks from the close of pleadings (after all interlocutory processes have been completed). He shall first write to the other parties to notify them that he is going to do this. Such letter can be sent at any time after pleadings are closed.
(2) The other party or parties may then do any of the following:
(a) Advise the Plaintiff in writing that they are not ready to have the matter set down for trial and specify the reasons in writing (a copy of the letter should be sent to the Registrar to be placed on the Court file); or
(b) Arrange to endorse the Notice to Set Down (or Notice of Hearing or Notice of Appointment for the Hearing), with the following words:
I agree that the matter is ready to proceed, pleadings have closed and there are no further interlocutory steps to complete prior to the Notice to Set Down for Trial (or such Notice as is appropriate) is filed.
The endorsement must be signed by the lawyer or the party and the name of the lawyer party must appear below the signature. It must not be signed or initialed by the Law firm as it is incapable of having a signature.
(c) Send a letter to the other party (with a copy to the Court) agreeing in the terms set out in (b) above that the matter is ready to set down for trial.
(3) If the Plaintiff wishes to set a matter down where the Defendant says (in writing or by sending a letter) the matter is not ready, he or she shall apply by Motion, before the Listings Judge, for leave to be given for a Notice to Set Down for Trial or for such other orders as may seem appropriate.
7. MENTIONS.
(1) All matters that have been filed and have progressed passed the pleadings and interrogatories and are pending before the National Court shall be specifically mentioned by the Court each Mondays on a date and time the Court may fix with sufficient notice to the parties, commencing with the earliest filed date of the originating process.
(2) Where necessary, the Registrar shall give Notice for Mention or Directions Hearing in accordance with the form provided in Schedule A.
(3) The Registrar shall produce at least 7 days before the date set for mention a mentions list and circulate the list to all of the parties.
(4) At the mention, the Court will consider, amongst other things, the following-
(a) Legal representation of the parties;
(b) The Courts jurisdiction and locus standi and the capacity of the parties to sue and be sued;
(c) Sufficiency of pleadings and the need for further pleadings;
(d) Whether any condition precedent to the action or statutory time bar issues arise;
(e) Whether there are any related proceedings and their consolidation;
(f) Nature of the case;
(g) Joinder of all necessary and relevant parties and causes of action;
(h) Any cross-claim or set-off;
(i) Whether parties have attempted out of court settlement;
(j) An identification of the relevant factual and legal issues raised in the proceedings;
(k) Whether any documents will be relied upon and any need for discovery of documents;
(l) Whether any expert or independent assessment is required;
(m) The likely length of time for trial and time within which the matter is likely to be ready for trial;
(n) Number of witnesses the parties wish to call and their relevance and necessity;
(o) Filing of any witness statements and or affidavits;
(p) Issue of witnesses summonses;
(q) Whether parties wish to file statement of agreed and or disputed facts and issues for trial;
(r) Medium and or mode of giving evidence;
(s) Any requirement for translation;
(t) Whether any further interlocutory steps need to be completed before trial;
(u) The necessity to transfer the proceedings to a different Court or venue;
(v) Preparation and compilation of a pleadings book as required by Order 10 Rule 8 of the National Court Rules which contains, amongst other relevant documents, the Originating Process, Statement of Claim, Defence (& Cross Claim if any), Reply (& Defence to Cross Claim if any), Reply to Defence on Cross Claim if any, and Further and Better Particulars;
(w) The date, time and venue for pre-trial conference; and
(x) Such other matters as may aid in the prompt disposition of the matter.
(5) After the completion of the mentions in accordance with sub-rule (4) and within 7 days from the close of pleadings for all other matters filed and pending, the Court shall similarly mention those matters.
(6) In a case where there has been no activity since filing or after the last activity there has been no further meaningful activity, the Court will deal with the matter summarily in accordance with procedure set out in Rule 16.
(7) If the parties are ready and able to assist the Court when a matter goes before the Court on mention or where the Court considers appropriate to do so, it may issue such orders and directions as it considers appropriate in relation to the matters set out in sub-rule (4).
(8) Where the parties are not ready to assist the Court at the mention, the Court shall fix a date within 14 days from the date of the mention for directions hearing.
8. DIRECTIONS HEARING.
(1) At the Directions Hearing, the Court shall consider and give orders and directions in relation to the matters set out in Rule 7 (4) and fix a date for Pre-trial Conference.
(2) The Registrar shall produce at least 7 days before the date set for Directions Hearing, a Directions Hearing List and circulate it to the parties and the public.
9. PRE-TRIAL CONFERENCE.
(1) The Court shall conduct a Pre-trial Conference within 21 days from the date of directions hearing.
(2) At the Pre-trial Conference the Court shall inquire into and ensure compliance of the orders and directions given at the Directions Hearing under Rule 7 & 8 and may amongst others:
(a) Confirm legal representation;
(b) Confirm correctness of the Pleadings Book;
(c) Confirm the issues for trial;
(d) Ascertain and confirm the number of witnesses and the length of their evidence;
(e) Ascertain filing of Statement of Agreed and Disputed Facts and Legal Issues in the form in Schedule B**;
(f) Direct filing and service of notices under Section 34 and 35 of the Evidence Act;
(g) Issue summonses for witnesses;
(h) Direct filing extract of submissions where appropriate;
(i) Fix a date or dates for trial; and (j) Fix a date for a status conference.
(3) Immediately upon the judge fixing a trial date(s), the Registrar shall issue to all the parties a Notice of Trial/Hearing or Appointment for the Hearing.
(4) Upon completion of the Pre-trial conference, the Judge's Associate shall record a summary of the pre-trial details in the form in Schedule C** and place it on the file.
10. STATUS CONFERENCE.
A status conference shall be conducted by the trial judge on the first day of the circuit month to confirm that all relevant directions and orders issue during directions and pre-trial conference have been complied with and that the matter is ready for trial.
11. URGENT MATTERS.
Urgent matters shall be scheduled for Directions Hearing, Pre-trial Conference and or Status Conference, within the period stipulated by these rules or as the urgency of the case might require and or as the Court deems fit.
12. TRIAL.
(1) Once a matter is listed for trial the Registrar shall issue to the parties a notice of trial and place the matter on a Trial List, which he shall produce and circulate to all the parties at least seven days before the dates fixed for trial.
(2) The trial shall proceed on the date fixed by the Court at the Pre-trial conference and it may be conducted in accordance with the directions and order made by the Court at the time or before the fixing of the trial date.
13. ADJOURNMENTS.
(1) A trial once fixed shall not be adjourned except by leave of the Court upon sufficient cause being shown.
(2) Where the Court decides to adjourn the trial, it shall be adjourned to a fixed date within the circuit month or to the earliest available Directions Hearing or Pre-trial conference as the trial judge may consider appropriate.
14. LEGAL REPRESENTATION.
(1) Subject to sub-rule (2) herein, where a party is represented by a lawyer, that party shall attend at all of the various listing process with the lawyer who has the carriage and conduct of the matter and will be appearing at the trial.
(2) Where the lawyer having carriage of the matter instructs another lawyer to appear, the lawyer must be fully briefed.
15. SUMMARY DISPOSAL.
(1) The Court may summarily determine a matter:
a. on application by a party; or
b. on its own initiative; or
c. upon referral by the Registrar under (3) below.
(2) The Court may summarily dispose of a matter in the following situations:
a. for want of prosecution since filing the proceedings or since the last activity on the file; or
b. for a failure to appear at any of the listing or directions hearing by a party or his lawyer; or
c. for non-compliance of any order or directions previously made or issued by the Court at any of the listing processes.
d. under any of the grounds set out in Order 12 Rule 40 and Order 8 Rule 27 of the National Court Rules.
e. on any competency ground relating to non-compliance with the National Court Rules or any other relevant rules of Court.
(3) Where the Registrar refers a matter for summary determination, the following procedure shall be followed:
a. A notice in the form in Schedule D** is issued by the Registrar which gives notice to the parties of his intention to refer the matter to the judge for summary determination on the ground(s) stated in the letter. The letter will also give the parties thirty (30) days to respond and fix a return date and time for the matter to come before the judge. In appropriate cases, the Registrar may publish the notice letter in the media.
b. If the Registrar receives a response, either in writing or verbal, he must place on the file the written response or a note of the verbal response and advise the parties to appear in Court on the date fixed.
c. Upon expiry of 30 days, the Registrar shall forward the file to the judge.
d. The judge may determine the proceedings summarily based on the response received and any further representations made by the parties in Court or give such directions as may seem necessary for the future conduct of the proceedings.
e. If the parties are unrepresented, the Registrar shall draft the Court Order, enter it and forward sealed copies to the parties.
f. The file is closed and forwarded to Archives for storage.
16. MOTIONS.
Motions in respect of listing aspects such as application for leave to file Notice to Set Down for Trial, applications under Order 12 Rule 40 and Order 8 Rule 7 of the National Court Rules or applications for summary determination under Rule 16(1)(a) shall be moved before the Listings Judge.
17. DISPENSATION WITH REQUIREMENTS OF THESE RULES.
The Court may dispense with compliance of these Rules in appropriate cases.
18. COMMENCEMENT OF THESE RULES.
These Rules shall commence on the date they are signed by the [^6]judges.
Schedule "A"-Notice for Mention/Directions Hearing
SCHEDULE A
(Title)
NOTICE FOR MENTION/DIRECTIONS HEARING
To the:
Plaintiff/lawyer: . . .
Defendant/lawyer: . . .
Take note that this matter is listed for Mention/Directions Hearing before the Listings judge at the National Court at . . . (Courthouse) at . . . a.m./p.m. on the . . . day of . . . 20 . . .
You are required to attend at the Mention/Directions Hearing to assist the judge to deal with the matters listed below.
At the Mention/Directions Hearing, the judge will consider, amongst other things, the following:
(a) Legal representation of the parties.
(b) The Court's jurisdiction and locus standi and the capacity of the parties to sue and be sued.
(c) Sufficiency of pleadings and the need for further pleadings.
(d) Whether condition precedent to the action or statutory time bar issues arise.
(e) Whether there are any related proceedings and their consolidation.
(f) Nature of case.
(g) Joinder of all necessary and relevant parties and causes of action.
(h) Any cross-claim or set off.
(i) Whether parties have attempted out of court settlement.
(j) An identification of the relevant factual and legal issues raised in the proceedings.
(k) Whether any documents will be relied upon and need for discovery of documents.
(l) Whether any expert or independent assessment is required.
(m) The likely length of time for trial and time within which the matter is likely to be ready for trial.
(n) Number of witnesses the parties wish to call and their relevance and necessity.
(o) Filing of witnesses' statements and or affidavits.
(p) Issue of witnesses' summonses.
(q) Whether parties wish to file statement of agreed and/or disputed facts and issues for trial.
(r) Medium and/or mode of giving evidence.
(s) Any requirement for translation.
(t) Whether any further interlocutory steps need to be completed before trial and determination of the same.
(u) The necessity to transfer the proceedings to a different Court or venue.
(v) Preparation and compilation of a Pleadings Book as required by Order 10 Rule 8 of the National Court Rules which contains, amongst other relevant documents, the Originating Process, Statement of Claim, Defence (& Cross claim, if any), Reply (& Defence to Cross Claim, if any), Reply to Defence on Cross Claim, and Further and Better Particulars.
(w) The date, time and venue for pre-trial conference.
(x) Such other matters as may aid in the prompt disposition of the matter.
Dated this . . . day of . . . , 20 . . .\ Issued by:
. . . . . . . . .\ Registrar
Schedule "B"-Statement of Agreed & Disputed Facts & Legal Issues
SCHEDULE B
(Title of proceedings)
STATEMENT OF AGREED & DISPUTED FACTS & LEGAL ISSUES
A. STATEMENT OF AGREED FACTS
The parties agree on the following facts:
B. STATEMENT OF DISPUTED FACTS FOR DETERMINATION
The following facts are disputed:
C. STATEMENT OF AGREED LEGAL ISSUES FOR DETERMINATION
The legal issues for determination are as follows:
Dated this . . . day of . . . 20 . . .
. . . . . .\ (signature) (signature)
Name of lawyer/Plaintiff: Name of Lawyer/ Defendant.
Schedule "C"-Pre-Trial Form
SCHEDULE C****
PRE-TRIAL FORM\ (to be completed by Judge's Associate after Pre-trial Conference)
Title of proceedings: . . .
1. Lawyer for the Plaintiff & Counsel:
2. Lawyer for Defendant & Counsel:
3. Nature of claim:
4. Issues of fact:
5. Legal issues:
6. Statement of agreed and disputed facts filed:
7. Number of witnesses for Plaintiff\ - Giving affidavit evidence only:\ - Giving oral evidence:
8. Number of Defence witnesses-\ - Giving affidavit evidence only:\ Giving oral evidence:
9. Expert witnesses:
10. Documentary and physical evidence:
11. Witnesses summonsed to give evidence:
12. Pleadings Book filed:
13. Duration of trial:
14. Whether out of court settlement attempted and exhausted:
15. Whether all necessary interlocutory processes have been completed:
16. Date and time of trial:
Dated this . . . day of . . . 20
Prepared by:
. . .\ Name and signature of Associate to Judge
Schedule "D"-Notice Letter for Summary Determination
SCHEDULE D****
(Notice letter for summary determination). Date:
To: . . .\ (Name of Plaintiff/Lawyer & Address)
Copy to: . . .\ (Name of Defendant/Lawyer & address)
Title of proceedings: . . .
I refer to the above matter and advise that this matter is listed for summary determination before the Listings Judge in the National Court at . . . (Courthouse) at . . . am/pm on the . . . day of . . . 20 . . .
The grounds or reasons are:
1. . . .
2. . . .
3. . . .
You are required to attend Court on the date and time fixed above to show cause why your matter should not be summarily dismissed for the reason(s) stated above.
If you wish to given an explanation before appearing in Court, you may do so by letter addressed to the Registrar, within thirty (30) days from the date of this letter.
Yours Sincerely,
. . .\ Registrar
Division 2.-Trial.
10. Interpretation and application of Division 2. (34/1, 2)
(1) For the purposes of this Division -
(a) where the burden of proof on any issue lies on the plaintiff, he shall be the beginning party and the defendant shall be the opposite party; and
(b) where the burden of proof on all the issues lies on the defendant, he shall be the beginning party and the plaintiff shall be the opposite party.
(2) This Division applies to proceedings commenced by writ of summons.
(3) Subject to Rule 11, this Division applies to proceedings commenced by originating summons to such extent and with such modifications as the Court may direct.
11. Time and place of trial. (34/4)
(1) Where proceedings have been set down for trial under Division 1 for a specified date, the trial may be held on that or any later date.
(2) Notwithstanding Sub-rule (1) and notwithstanding the setting down of any proceedings for trial under Division 1, the Court may make such orders as it thinks fit for fixing the time and place of trial.
12. Absence of party. (34/5)
(1) If, when a trial is called on, any party is absent, the Court may, on terms-
(a) order that the trial be not held unless the proceedings are again set down for trial, or unless such other steps are taken as the Court may direct; or
(b) proceed with the trial generally or so far as concerns any claim for relief in the proceedings; or
(c) adjourn the trial.
(2) Where the Court proceeds with a trial in the absence of a party, and at or at the conclusion of the trial a verdict is given or a finding or assessment is made, the Court, on motion by that party, may, on terms, set aside or vary the verdict, finding or assessment, and may give directions for the further conduct of the proceedings.
(3) A motion under Sub-rule (2) must be made on notice and the notice must be filed and served not more than seven days after the giving of the verdict or the making of the finding or assessment.
13. Conduct of trial. (34/6)
(1) The Court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial.
(2) Subject to Sub-rule (1) -
(a) where the only parties are one plaintiff and one defendant, and there is no cross-claim, the order of evidence and addresses shall be as provided by this Rule; and
(b) in any other case, the order of evidence and addresses shall be as provided by this Rule, subject to such modifications as the nature of the case may require.
(3) The beginning party may make an address opening his case and may then adduce his evidence.
(4) Where, at the conclusion of the evidence for the beginning party, no document or thing has been admitted in evidence on tender by the opposite party, the opposite party may elect to adduce evidence or not to adduce evidence.
(5) If, pursuant to Sub-rule (4), the opposite party elects not to adduce evidence, the beginning party may make an address closing his case and then the opposite party may make an address stating his case.
(6) If, under Sub-rule (4), the opposite party elects to adduce evidence, the opposite party may make an opening address before adducing his evidence and after adducing his evidence he may make an address closing his case and then the beginning party may make an address closing his case.
14. Judgement by direction.
(1) Where the plaintiff is the beginning party, a defendant may, at any time after the conclusion of the evidence for the plaintiff in his case in chief, move the Court for an order directing the entry of judgement for that defendant in the proceedings generally or on any claim for relief in the proceedings on the ground that, on the evidence given, an order directing the entry of judgement for the plaintiff could not be supported.
(2) Where the ground of a defendant's motion under Sub-rule (1) is established, the Court may direct the entry of judgement for the defendant accordingly.
(3) Where a defendant's motion under Sub-rule (1) is refused, the defendant may not, without leave of the Court, adduce evidence in the proceedings or on the claim for relief in question, as the case may be.
(4) Where fewer than all defendants apply under Sub-rule (1), the Court may refuse to make an order under Sub-rule (2) until the conclusion of the evidence given for all the parties.
15. Record of trial. (34/9)
The associate, or other proper officer present at the trial, shall be the clerk at the trial and shall maintain and complete a record of the trial.
16. Death before judgement. (34/10)
(1) Where a party dies after the verdict or finding on the issues of fact, the Court may by order direct the entry of judgement, and judgement may be entered, notwithstanding the death.
(2) Sub-rule (1) does not affect the power of the Court to make orders under Order 5 Rule 10 (change of parties by reason of death, etc.)
Division 3.-Assessment.
17. Damages under judgement. (35/1)
(1) Subject to Sub-rule (2), where judgement is entered for damages to be assessed, the proceedings shall, unless the Court otherwise orders, be set down in accordance with Division 1 for trial for assessment of damages under the judgement.
(2) Where judgement is entered against any party for damages to be assessed and the proceedings are carried on against that party on any claim for relief not determined by the judgement or against any other party, the trial for assessment of damages under the judgement shall, unless the Court otherwise orders, be held together with any other trial in the proceedings and the proceedings shall be set down for trial accordingly.
18. Value of goods under judgement. (35/2)
Rule 17 applies in relation to a judgement for the value of goods to be assessed, with or without damages to be assessed, as it applies to a judgement for damages to be assessed, and references in Rule 17 to the assessment of damages shall be construed accordingly.
19. Damages to time of assessment. (35/3)
(1) Where damages are to be assessed in respect of -
(a) any continuing cause of action; or
(b) repeated breaches of recurring obligations; or
(c) intermittent breaches of a continuing obligation,
the damages shall be assessed down to the time of assessment, including damages for breaches occurring after the commencement of the proceedings.
(2) Sub-rule (1) applies to the assessment of damages under this Division or otherwise.
Division 4.-Separate Decision of Questions.
20. Interpretation of Division 4. (31/1)
In this Division question includes any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.
21. Order for decision. (31/2)
The Court may make orders for -
(a) the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings; and
(b) the statement of a case and the question for decision.
22. Agreed result. (31/4)
(1) Any parties to proceedings in which a case is stated under Rule 21 may, with the leave of the Court, agree that, on any question being decided in the sense specified in the agreement, a specified direction for entry of judgement or a specified order shall be made.
(2) On that question being so decided, the Court may make the agreed direction or order.
(3) Where an agreement is made pursuant to Sub-rule (1) before a case is stated, the terms of the agreement shall be set out in the stated case.
23. Record, etc. of decision. (31/5)
Where any question is decided under this Division the Court shall, subject to Rule 24, either -
(a) cause the decision to be recorded; or
(b) direct the entry of such declaratory judgement, or make such declaratory order, as the nature of the case requires.
24. Disposal of proceedings. (31/6)
Where the decision of a question under this Division -
(a) substantially disposes of the proceedings or of the whole or any part of any claim for relief in the proceedings; or
(b) renders unnecessary any trial or further trial in the proceedings or on the whole or any part of any claim for relief in the proceedings,
the Court may, as the nature of the case requires-
(c) dismiss the proceedings or the whole or any part of any claim for relief in the proceedings; or
(d) direct the entry of any judgement; or
(e) make any other order.
[^7]ORDER 10A. - NATIONAL COURT (COMMERCIAL LIST) RULES.
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 [^8]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 is 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);
(iii) The form of a listing statement should substantially comply with schedule A.
12. 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.
13. An order to include a proceeding in the Commercial List is an
interlocutory order.
14. 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.
15. 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.
16. The Commercial List judge may make such orders or give such
directions as are
17. 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;
18. 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.
19. 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.
20. 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.
21. (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.
22. The Commercial List judge may order the removal of a proceeding
from the Commercial List.
23. On making such an order these rules will no longer apply to the
proceeding unless otherwise ordered.
24. Removal from the list in no way affects any order or direction made
in the proceeding prior to removal.
Summary disposal.
25. The summary disposal procedure set out in Rule 16 of the
[^9]Listings Rules 2005 is adopted and shall apply to matters on the Commercial List.
Schedule "A"-Commercial List Statement
SCHEDULE A
NATIONAL COURT OF\ JUSTICE AT WAIGANI WS .
[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"-Order for Hearing
SCHEDULE B
IN THE NATIONAL COURT OF WS\ OF JUSTICE AT WAIGANI
[PARTIES]
ORDER FOR HEARING
The Court Orders, subject to any specific orders which may have been made in relation to the following matters, that:
1. 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;
2. 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.
3. 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 to 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.
4. 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.
5. 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.
6. Continuing Discovery
6. 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.
7. Statements of Agreed Issues and Chronology etc.
7. 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.
8. 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"-The Court Orders
SCHEDULE C
IN THE NATIONAL COURT\ AT WAIGANI WS....2005
[PARTIES]
The Court Orders:
1. The usual order for hearing in accordance with annexure B to
National Court (Commercial List) Rules.