Transfer of proceedings

Once pleadings in a proceedings is closed, a party may file a notice at the Registry wherein the party will request that the proceedings be set down for trial. This notice is Form 40 provided in Schedule 1 of the National Court Rules 1983. The notice in Form 40 shall state the following details:

1. The place of trial.
2. Whether the proceedings are to be set down for trial generally or for the trial of specified issues.

The party filing a Form 40 must serve the sealed copy of the notice on the same day on the other party or parties. That party must serve this notice on the address of service of the other parties. However, the practice now is that, no Notice to Set Down for Trial will be filed unless it is consented to by all parties to the proceedings. This is to ensure that all parties have agreed that the matter is ready for trial after the completion for pleadings and other interlocutory matters. An application may be made to the Court for a dispensation of the required consent, if a party unnecessarily and without good reasons withholds consent to the Notice to set down for trial (see Dogoliv v Laho [2005] PGNC 47, Sawong J; N2885 and Bank of South Pacific Ltd v Piari [2005] PGNC 181; N3245, Lay J).

Trial of the proceedings shall take place at the place as set out in the sealed Form 40. However, the Court may appoint some other place within Papua New Guinea for trial of the proceedings to be conducted. The Court can do that:

1. On application by a party to the proceedings; or
2. By the Court’s own motion.

If a party makes an application to have trial conducted in some other place, then that party must satisfy a test before the Court grants its application to transfer the proceedings. Justice Hartshorn in Newman v Melpa Properties Ltd [2017] PGNC 376; N7069 dealt with an application under Order 10 Rule 2 (2) by the Defendant wherein the Defendant sought to transfer the proceedings from the Waigani National Court to the Mt Hagen National Court. The Defendant in that case submitted that the proceeding should be transferred as there are special circumstances which were as follows:

1. the office of the defendant is in Mount Hagen;
2. the property the subject of the proceeding is in Mt Hagen;
3. the residential address of the plaintiff is in Mt Hagen;
4. the parties’ witnesses are all in Mt Hagen;
5. the cause of action of the plaintiff is in Mount Hagen; and
6. no prejudice will be caused to either party if the proceeding is transferred to Mt Hagen National Court and there will not be any delay; and
7. there are other proceedings that have been commenced by the defendant against the plaintiff concerning the subject property at the Mt Hagen National Court.

Justice Hartshorn adopted the test in the Australian case of National Mutual Holdings Pty Ltd v Sentry Corporation [1988] FCA 133; (1988) 83 ALR 434 where the Court stated that the tests to apply to transfer proceedings is “Where can the case be conducted or continued most suitably, bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the court?”. At page 43, the Court, after commenting that the power conferred on the Court or Judge by section 48 of the Federal Court Act was wholly unfettered, said that:

“The factors which the court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous. The court must weigh those factors in each case. Residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the court itself are some of the factors that may be relevant in particular circumstances.

By the Court in National Mutual Holdings Pty Ltd v Sentry Corporation [1988] FCA 133; (1988) 83 ALR 434

The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case. A party commences a proceeding by filing an application in a particular registry of the court. If that party or another party wishes to have the proceeding conducted or continued in another place he may apply to the court for an order …. as the case may be. There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? On the one hand, if the party who commenced the proceeding chose that place capriciously the court would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for some time at the place of commencement with many steps having been taken there, for example, filing of pleadings and affidavits, discovery and inspection. Due weight would be given by the court to such matters before directing that the proceeding should continue at a different place.

By the Court in National Mutual Holdings Pty Ltd v Sentry Corporation [1988] FCA 133; (1988) 83 ALR 434

The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably, bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the court? It cannot and should not, in our opinion, be defined more closely or precisely.”

By the Court in National Mutual Holdings Pty Ltd v Sentry Corporation [1988] FCA 133; (1988) 83 ALR 434

In conclusion, the above test must be satisfied by the Applicant for the Court to exercise its discretion to transfer the proceedings to another place.

For more similar articles, click here.