ORDER 14.-MISCELLANEOUS POWERS OF COURT.
Division 1.-Accounts and Inquiries-General.
1. Account: Summary order. (48/1)
(1) Subject to Sub-rule (2), where a party claims an account or makes a claim which involves taking an account, the Court may, on application by that party at any stage of the proceedings -
(a) order that an account be taken; and
(b) order that any amount certified on taking the account to be due to any party be paid to him.
(2) The Court shall not make an order under Sub-rule (1)(a) -
(a) as against a defendant who has not given notice of his intention to defend unless he is in default of giving that notice; or
(b) if it appears that there is some preliminary question to be determined.
2. Account or inquiry at any stage. (48/2)
The Court may, on application by a party at any stage of proceedings, make orders for the taking of any account or the making of any inquiry.
3. Account: Directions. (48/3)
Where the Court makes an order for the taking of an account, the Court, by the same or a subsequent order -
(a) may give directions concerning the manner of taking or vouching the account; and
(b) without limiting Paragraph (a) may direct that in taking the account the relevant books of account shall be evidence of the matters contained in them.
4. Account: Form and verification. (48/4)
(1) The items on each side of an account shall be numbered consecutively.
(2) An accounting party shall, unless the Court otherwise orders, verify his accounts by affidavit and the account shall be made an exhibit to the affidavit.
5. Account: Filing and service. (48/5)
An accounting party shall, unless the Court otherwise orders -
(a) file his account and verifying affidavit; and
(b) serve the account and affidavit on each other party on the date of filing.
6. Account: Notice of charge or error. (48/6)
(1) Where a party seeks to charge an accounting party with an amount beyond that of which the accounting party by his account admits receipt, he shall give to the accounting party notice of the charge, stating, so far as he is able, the amount which he seeks to charge, with brief particulars.
(2) Where a party alleges that any item in the account of an accounting party is erroneous in amount or otherwise, he shall give to the accounting party notice of the allegation, stating the grounds for alleging the error.
7. Account: Allowances. (48/7)
In taking an account under a judgement or order, all just allowances shall be made.
8. Delay. (48/8)
Where it appears to the Court that there is delay in the prosecution of any account, inquiry or other matter under a judgement or order, the Court may make such orders as it thinks fit for staying or expediting the proceedings or for the conduct of the proceedings.
Division 2.-Interim Preservation, etc.
9. Order before commencement of proceedings. (28/1)
In an urgent case, the Court may, on the application of a person who intends to commence proceedings -
(a) grant an injunction; or
(b) make any order which the Court might make in proceedings in the nature of an application for habeas corpus ad subjiciendum; or
(c) make orders for the custody of minors; or
(d) appoint a receiver,
to the same extent as if the applicant had commence, the proceedings and the application were made in the proceedings.
10. Preservation of property. (28/2)
(1) In proceedings concerning any property, or in proceedings in which any question may arise as to any property, the Court may make orders for the detention, custody or preservation of the property.
(2) An order under Sub-rule (1) may authorize any person to enter any land or to do any other thing for the purpose of giving effect to the order.
(3) In proceedings concerning the right of any party to a fund, the Court may order that the fund be paid into Court or otherwise secured.
11. Disposal of personal property. (28/3)
Where, in proceedings concerning any property (other than land) or in proceedings in which any question may arise as to any property (other than land), it appears to the Court that-
(a) the property is of a perishable nature or is likely to deteriorate; or
(b) for any other reason it is desirable that the property should be sold or otherwise disposed of,
the Court may make an order for the sale or other disposal of the whole or any part of the property by such person, in such manner, and on such terms (if any) as the Court may direct.
12. Interim distribution. (28/4)
Where, in proceedings concerning property, it appears to the Court that the property is more than sufficient to answer the claims on the property for which provision ought to be made in the proceedings, the Court may allow any part of the property to be conveyed, transferred or delivered to any person having an interest in the property.
13. Interim income. (28/5)
Where, in proceedings concerning property, it appears to the Court that the whole or any part of the income of the property is not required to answer the claims on the property or its income for which provision ought to be made in the proceedings, the Court may allow that income or part to be paid, during such period as the Court may determine, to all or any of the persons having an interest in the income.
14. Payment before ascertainment of all persons interested. (28/6)
Where two or more persons are entitled to share in a fund, the Court may order or allow immediate payment to any of those persons of his share without reserving any part of his share to meet the subsequent costs of ascertaining any other of those persons.
15. Directions. (28/7)
Where, in proceedings commenced by writ of summons, a party applied for any order under Rule 10 or 11, the Court may order that the proceedings be before the Court for directions either immediately or on such date as the Court may appoint.
16. Terms: Time for order. (28/8)
The Court may make orders under this Division on terms and at any stage of the proceedings.
Division 3.-Receivers.
17. Address for service. (29/1)
A receiver shall, within seven days after his appointment, file a notice specifying an address for service.
18. Security. (29/2)
(1) Where the Court appoints a receiver, the Court may give directions for the filing by the receiver of security in accordance with this Rule.
(2) Where the Court directs the appointment of a receiver, then, unless the Court otherwise orders, a person shall not be appointed receiver pursuant to the direction until he has filed a security in accordance with this Rule.
(3) Sub-rules (1) and (2) have effect subject to any provision for the time being in force made by or under any Act.
(4) The security in Form 63 to be filed in accordance with this Rule shall be a security approved by the Court that the receiver will account for what he receives as receiver and will deal with what he receives as the Court may direct.
(5) Where a security has been filed under this Rule, the Court may make orders for the vacation of the security.
19. Remuneration. (29/3)
A receiver shall be allowed such remuneration (if any) as may be fixed by the Court.
20. Accounts. (29/4)
(1) A receiver shall file accounts at such intervals or on such dates as the Court may direct.
(2) The receiver shall, on the day on which he files an account, obtain an appointment to pass the account and serve the account, with a note of the appointment, on each party interested who has an address for service in the proceedings.
(3) The receiver shall, unless the Court otherwise orders, attend on the appointment to pass the account.
21. Default. (29/5)
(1) Where a receiver -
(a) is required by these Rules or by an order or direction of the Court-
(i) to file any account or affidavit; or
(ii) to attend on an appointment to pass his account; or
(iii) to do any other thing; and
(b) does not carry out the requirement,
the Court may make such orders and give such directions as the Court thinks fit, including orders and directions for -
(c) the discharge of the receiver; and
(d) the appointment of another receiver; and
(e) the payment of costs.
(2) Without limiting Sub-rule (1), where a receiver is required by these Rules or by an order or direction of the Court to pay into Court any sum shown by his account as due from him, and he does not carry out the requirements, the Court may charge him with interest at the rate of 5% yearly on that sum while in his possession as receiver.
(3) This Rule does not limit the powers of the Court as to the enforcement of orders or as to the punishment of contempt.
22. Powers. (29/6)
(1) The Court may authorize a receiver to do (either in his own name or in the name of the parties or any of them and either generally or in any particular instance) any act or thing which the parties or any of them might do if of full age and capacity.
(2) Sub-rule (1) has effect notwithstanding that the parties or any of them are not of full age and capacity.
(3) This Rule does not limit the powers of the Court apart from this Rule to authorize the receiver to do any act or thing.
23. Account on death. (29/7)
(1) Where a receiver in any proceedings dies, the Court may, on motion in the proceedings, make such orders as the Court thinks fit for the filing and passing of accounts by the representative of the deceased receiver and for the payment into Court of any amount shown to be due.
(2) The Court shall not make any order under Sub-rule (1) unless notice of the motion has been served on the representative.
(3) Notice of a motion under this Rule may be served in any manner in which a writ of summons may be served.
Division 4.-Security.
Subdivision A.-Security for Costs.
24. Interpretation of Division 4. (53/1)
In this Division -
(a) references to a plaintiff extend to any person who makes a claim for relief in any proceedings; and
(b) references to a defendant extend to any person against whom a claim for relief is made in any proceedings.
25. Cases for security. (53/2)
(1) Where in any proceedings, it appears to the Court on the application of a defendant-
(a) that a plaintiff is ordinarily resident outside Papua New Guinea; or
(b) that a plaintiff is suing, not for his own benefit, but for the benefit of some other person and there is reason to believe that that plaintiff will be unable to pay the costs of the defendant if ordered to do so; or
(c) subject to Sub-rule (2), that the address of a plaintiff is not stated or is mis-stated in his originating process; or
(d) that a plaintiff has changed his address after the commencement of the proceedings with a view to avoiding the consequences of the proceedings,
the Court may order that plaintiff to give such security as the Court thinks fit for the costs of the defendant of and incidental to the proceedings and that the proceedings be stayed until the security is given.
(2) The Court shall not order a plaintiff to give security by reason only of Sub-rule (1)(c) if it appears to the Court that the failure to state his address or the mis-statement of his address was made without intention to deceive.
26. Manner of giving security. (53/3)
Where the Court orders a plaintiff to give security for costs, the security shall be given in such manner, at such time, and in such terms (if any) as the Court may by order direct.
27. Failure to give security. (53/4)
Where a plaintiff fails to comply with an order under this Division, the Court may, on terms, order that the proceedings on any claims by the plaintiff for relief in the proceedings be dismissed.
28. Saving. (53/5)
This Division does not affect the provisions of any Act under which the Court may require security for costs to be given.
Subdivision B.-Security for Future Conduct, and Recognizances.
29. Security for future conduct. (53/6)
(1) Where, for the purpose of security for future conduct, the Court
(a) requires any person to pay money into Court or otherwise to deposit money; or
(b) puts any person on terms of payment into Court or other deposit of money; or
(c) puts any person on terms of procuring payment into Court or other deposit of money by some other person,
the Court shall, by order, specify the events in which the money so paid or deposited is to be forfeited, returned or otherwise disposed of.
(2) Where, for the purposes of security for future conduct, the Court
(a) requires any person to submit to an order for the payment of money; or
(b) puts any person on terms of submitting to an order for the payment of money; or
(c) puts any person on terms of procuring some other person to submit to an order for the payment of money,
the Court shall, by order, specify the events in which the order for the payment of money may be made and may, by order, specify the manner in which the submission is to be made.
30. Restriction as to recognizances. (53/7)
(1) In this Rule recognizance means an instrument or memorandum of acknowledgement by the terms of which any sum of money may be made or levied by execution on any property, except execution by way of enforcement of a judgement or order of the Court.
(2) Subject to any Act, the Court shall not require any person to give a\ recognizance and shall not put any person on terms of giving or procuring a recognizance.
(3) Where, but for Sub-rule (2), the Court might have required a person to give a recognizance, the Court may, subject to Sub-rule (2) and to Rule 29, require that person to give such security for future conduct as the Court may by order direct, or as the case may be, put him on terms of giving or procuring such security for future conduct as the Court may by order direct.
31. Forfeited recognizances. (53/8)
(1) Execution shall not be levied on a forfeited recognizance except on an order for payment made under Sub-rule (3).
(2) Where it appears to the Court that the amount of a recognizance has been deposited with any justice or other person, and the Court forfeits the recognizance, the Court shall order that the amount so deposited be paid into the Consolidated Revenue Fund.
(3) Subject to Sub-rule (2), where the Court forfeits a recognizance, the Court shall order the recognizor to pay the amount of the recognizance to the Registrar.
(4) Where the Court forfeits a recognizance in the absence of the recognizor, the Registrar shall post to the recognizor notice of the forfeiture and of the order made under Sub-rule (2) or (3).
(5) Where the Court forfeits a recognizance in the absence of the recognizor, the Court, on application by the recognizor, may, by order, revoke the forfeiture and vary or discharge any order made under Sub-rule (2) or (3).
(6) The recognizor may apply for orders under Sub-rule (5) by filing an affidavit of the facts on which he relies and, if the recognizor does so apply, the Registrar shall deliver the affidavit to the Court for determination of the application.
(7) An application for orders under Sub-rule (5) shall not be made except on a notice of motion or affidavit filed within 28 days after the date of posting of a notice under Sub-rule (4).
(8) The Registrar shall not, unless the Court otherwise orders, take any step for the enforcement of an order made under Sub-rule (3) until the expiration of 28 days after posting of a notice under Sub-rule (4), or, if in the meantime an application is made under Sub-rule (5), until disposal of the application.
(9) The Registrar shall pay into the Consolidated Revenue Fund all moneys received by him under an order for payment of the amount of a forfeited recognizance.
Division 5.-Disposal of Land.
32. Interpretation of Division 5. (30/1)
In this Division land includes any interest in or right over land.
33. Power to order sale. (30/2)
In proceedings relating to land, other than proceedings for possession of land, the Court may, at any stage of the proceedings -
(a) order that the whole or any part of the land be sold; and
(b) order that any party in receipt of the rents or profits of the land or otherwise in possession of the land deliver possession to such person as the Court may direct.
34. Manner of sale. (30/3)
(1) This Rule applies where the Court has made an order under Rule 33 that land be sold.
(2) The Court may appoint a party or other person to have the conduct of the sale.
(3) The Court may permit the person having the conduct of the sale to sell the land in such manner as he thinks fit.
(4) The Court may direct any party to join in the sale and conveyance or transfer or in any other matter relating to the sale.
(5) The Court may give such further directions as it thinks fit for the purpose of effecting the sale, including directions -
(a) fixing the manner of sale, that is to say, whether the sale is to be by contract conditional on approval of the Court, by private treaty, by public auction, by tender, or by some other manner; or
(b) fixing a reserve or minimum price; or
(c) requiring payment of the purchase money into Court or to trustees or other persons; or
(d) for settling the particulars and conditions of sale; or
(e) for obtaining evidence of value; or
(f) fixing the remuneration to be allowed to any auctioneer, real estate agent or other person.
35. Certificate of sale. (30/4)
(1) Where, pursuant to this Division, land is sold by public auction, the auctioneer shall, unless the Court otherwise orders, certify the result of the sale.
(2) Where, pursuant to this Division, land is sold otherwise than by public auction, the solicitor of the person having the conduct of the sale shall, unless the Court otherwise orders, certify the result of the sale.
(3) The Court may require that the certificate be verified by affidavit of the person certifying.
(4) The person the sale shall file the certificate and affidavit (if any).
36. Mortgage, exchange or partition. (30/5)
Where the Court makes an order for the mortgage, exchange or partition of land, Rules 34 and 35, so far as applicable and with the necessary modifications, apply to the mortgage, exchange or partition as those Rules apply to a sale under this Division.
Division 6.-Contempt of Court.
Subdivision A.-Preliminary.
37. Interpretation of Division 6. (55/1)
In this Division contemnor means a person guilty or alleged to be guilty of contempt of the Court.
Subdivision B.-Contempt in the Face or Hearing of the Court.
38. Arrest. (55/2)
Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of Court, committed in the face of the Court or in the hearing of the Court, the Court may -
(a) by oral order direct that the contemnor be brought before the Court; or
(b) issue a warrant for the arrest of the contemnor.
39. Charge, defence and determination. (55/3)
Where a contemnor is brought before the Court, the Court shall -
(a) cause him to be informed orally of the contempt with which he is charged; and
(b) require him to make his defence to the charge; and
(c) after hearing him, determine the matter of the charge; and
(d) make an order for the punishment or discharge of the contemnor.
40. Interim custody. (55/4)
(1) The Court may, pending disposal of the charge -
(a) direct that the contemnor be kept in such custody as the Court may determine; or
(b) direct that the contemnor be released.
(2) The Court may make a direction under Sub-rule (1)(b) on terms, which may include a requirement that the contemnor give security, in such sum as the Court directs, for his appearance in person to answer the charge.
Subdivision C.-Motion or Proceedings for Punishment.
41. Application. (55/5)
This Subdivision does not apply to a case in which the Court proceeds under Rules 38 to 40.
42. Procedure generally. (55/6)
(1) Where contempt is committed in connection with proceedings in the Court, an application for punishment for the contempt must be made by motion on notice in the proceedings, but, if separate proceedings for punishment of the contempt are commenced, the proceedings so commenced may be continued unless the Court otherwise orders.
(2) Where contempt is committed, but not in connection with proceedings in the Court, proceedings for punishment of the contempt must be commenced by originating summons, but, if an application for punishment of the contempt is made by motion on notice in any proceedings, the application may be heard and disposed of in the latter proceedings, unless the Court otherwise orders.
43. Statement of charge. (55/7)
A statement of charge, that is, a statement specifying the contempt of which the contemnor is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or originating summons.
44. Evidence. (55/8)
(1) Subject to Sub-rule (2), the evidence in support of the charge shall be by affidavit.
(2) The Court may, on terms, permit evidence in support of the charge to be given otherwise than by affidavit.
45. Service. (55/9)
The notice of motion or summons, the statement of charge, and the affidavits shall be served personally on the contemnor.
46. Arrest. (55/10)
Where-
(a) notice of a motion for punishment of a contempt has been filed or proceedings have been commenced for punishment of a contempt; and
(b) it appears to the Court that the contemnor is likely to abscond or otherwise withdraw himself from the jurisdiction of the Court,
the Court may issue a warrant in Form 64 for the arrest of the contemnor and his detention in custody until he is brought before the Court to answer the charge, unless he, in the meantime, gives security in such manner and in such sum as the Court directs, for his appearance in person to answer the charge and to submit to the judgement or order of the Court.
47. Motion or proceedings by Registrar. (55/11)
(1) Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of the court or of any other court, the Court may, by order, direct the Registrar to apply by motion for, or to commence proceedings for, punishment of the contempt.
(2) Sub-rule (1) does not affect the right that any person other than the Registrar may have to apply by motion for, or to commence proceedings for, punishment of contempt.
Subdivision D.-General.
48. Warrant. (55/12)
A warrant in Form 65 for the arrest and detention under this Division of a contemnor shall be addressed to the Sheriff and may be issued under the hand of the Judge presiding in the Court directing the arrest or detention.
49. Punishment. (55/13)
(1) Where the contemnor is not a corporation, the Court may punish contempt by committal to prison or fine or both.
(2) Where the contemnor is a corporation the Court may punish contempt by sequestration or fine or both.
(3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment where the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.
50. Discharge. (55/14)
Where a contemnor is committed to prison for a term, the Court may order his discharge before the expiry of the term.
Division 7.-Interpleader.
Subdivision A.-Preliminary.
51. Interpretation of Division 7. (56/1)
In this Division, unless the contrary intention appears -
claimant means a person making a claim to property in dispute;
execution creditor means a person on whose behalf process is issued;
process means process for execution issued by or under the authority of the Court;
property in dispute means any debt or property which is the subject of proceedings under this Division;
sheriff includes any officer charged with the execution of process;
stakeholder means an applicant under Rule 52.
Subdivision B.-Stakeholder's Interpleader.
52. Case for relief. (56/2)
Where-
(a) a person is under a liability (otherwise than as a sheriff) in respect of a debt or other personal property; and
(b) he is sued, or expects to be sued, in any court, for or in respect of the debt or property by two or more persons making adverse claims to the debt or property,
the Court may, on application by him, grant relief by way of interpleader.
53. Application in pending proceedings. (56/3)
(1) Where a stakeholder has, in proceedings in the Court, been sued for or in respect of the property in dispute, the application shall be by motion in the proceedings.
(2) A stakeholder applying under Sub-rule (1)-
(a) shall serve notice of the motion on each party to the proceedings who claims any interest in the property in dispute; and
(b) shall serve notice of the motion personally on each claimant who is not a party to the proceedings.
54. Commencement of proceedings.
In a case to which Rule 53 does not apply, a stakeholder applying for relief by way of interpleader shall commence proceedings by summons, joining each claimant as a defendant.
Subdivision C.-General.
55. Powers generally. (56/9)
On application for relief by way of interpleader -
(a) the Court may make such orders and directions as it thinks fit for the hearing and determination of all matters in dispute; and
(b) without limiting the generality of Paragraph (a) the Court may
(i) where proceedings in the Court are pending in which the applicant is sued for or in respect of any of the property in dispute, order that any claimant be added as a defendant in those proceedings in addition to or in substitution for the applicant, or order that those proceedings be stayed or dismissed; and
(ii) where proceedings in any other court are pending in\ which the applicant is sued for or in respect of any of the property in dispute- restrain the further continuance of those proceedings; and
(iii) order the applicant to pay or transfer any or all of the property in dispute into Court or otherwise to dispose of any or all of the property in dispute; and
(iv) where a claimant claims to be entitled by way of security for debt to any or all of the property in dispute-make orders for the sale of any or all of the property in dispute and for the application of the proceeds of sale; and
(v) on request by any party-summarily determine any or all questions of fact or law in which the requesting party is interested arising on the application; and
(vi) make orders for the settlement and trial of issues; and
(vii) make such order, or direct the entry of such judgement, as the nature of the case requires.
56. Default by claimant. (56/10) (1)
Where a claimant -
(a) has been given due notice of the hearing of an application for relief by way of interpleader and does not appear at the hearing; or
(b) does not comply with an order made in the proceedings on such an application,
the Court may, subject to Sub-rule (2), order that the claimant and those claiming under him be barred from prosecuting his claim against the applicant and those claiming under him.
(2) An order under Sub-rule (1) shall not affect the rights of the claimants amongst themselves.
57. Neutrality of applicant. (56/11)
(1) Where a stakeholder applies for relief by way of interpleader, the Court may dismiss the application or direct entry of judgement against the applicant unless the Court is satisfied that the applicant -
(a) claims no interest in the property in dispute except for charges or costs and
(b) does not collude with any claimant.
(2) This Rule does not affect the power of the Court in other cases to dismiss the application or to direct entry of judgement against the applicant.
58. Order in several proceedings. (56/12)
(1) Where an application for relief by way of interpleader is made and several proceedings are pending in the Court for or in respect of any or all of the property in dispute, the Court may make an order in any two or more of those several proceedings.
(2) A minute of an order made under Sub-rule (1) shall be entitled in all the proceedings in which it is made and the order shall be binding on all the parties to them.
59. Trial. (56/13)
Where, in proceedings for relief by way of interpleader, the Court directs the trial of any issue, Order 10 Division 2 shall, with the necessary modifications, but subject to such directions as the Court may give, apply to the trial.
60. Disposal. (56/14)
The Court before which an issue is tried under this Division may direct the entry of such judgement, or make such order, as the nature of the case requires including a judgement or order finally disposing of all questions arising in the proceedings.
Division 8.-Arbitration.
61. Application. (72/1)
This Division relates to proceedings after an order is made under Section 13 of the Arbitration Act 1951.
62. Interpretation of Division 8. (72/2)
In this Division unless the contrary intention appears -
arbitrator includes referee;
award includes report.
63. Notice of hearing. (72/3)
The arbitrator shall give to the parties not less than seven days' notice of the time and place of hearing and may, on the application of a party, extend the time for hearing.
64. Hearing in absence of party. (72/4)
If a party does not appear at the hearing after notice has been given to him the arbitrator may proceed in the absence of that party.
65. Examination on oath. (72/5)
The arbitrator may take the examination on oath of any witness.
66. Deposit. (72/6)
The Court may make orders for the payment into Court of a deposit for the remuneration of the arbitrator.
67. Time for award. (72/7)
The arbitrator shall make his award within such time as the Court may order.
68. Proceeding on making award. (72/8)
The arbitrator shall, within seven days after making his award -
(a) send it to the Registrar in a sealed envelope together with a copy of the award for each party; and
(b) send to the Registrar a statement showing the time occupied and the amount expended by him in connection with the hearing of the matter so referred; and
(c) notify the parties that he has sent the award to the Registrar.
69. Remuneration. (72/9)
(1) The Registrar shall immediately bring the statement before the Court.
(2) Where the Court has determined the remuneration to be paid to the arbitrator the Registrar shall notify the parties of the amount determined.
70. Ascertaining award. (72/10)
On payment by any party of the remuneration determined by the Court in excess of the sum deposited under Rule 66, the envelope containing the award shall be opened by the Registrar.
71. Service of award. (72/11)
The Registrar shall serve on the parties by post a copy of the award.
72. Setting aside award. (72/12)
If a party be dissatisfied with the award he may, within 28 days after service of the copy of the award referred to in Rule 71, apply to the Court for an order that the award be set aside or referred back.