Substituted Service

What is substituted service? When does it apply? In Papua New Guinea, for any document that is filed in a court proceedings, it must be served on the other party. These documents may be served personally on the other parties. However, for some documents you do not need to serve it personally on the other party. There are some documents, however, that the National Court Rules 1983 specifically sets out that these documents must be served personally on the other parties. Some examples of these are:

1. Originating process such as writ of summons and originating summons.
2. Notice of motion or summons, statement of charge and affidavit in relation to contempt proceedings. 

If you are a plaintiff who had just filed a writ of summons in the National Court, but you cannot locate the defendant to serve on him personally the writ of summons, what would you do? The National Court Rules specifically states that originating processes such as a writ of summons must be served on the Defendant personally. Any other form of service is not acceptable. When you are faced with such difficulties, the Rules allows you to apply to the Court to ask for orders that instead of service, you can take such other steps that will bring the court document to the notice of the defendant.

To ask the court to make such an order, you must demonstrate to the court the difficulties that you faced in serving the court document that makes it impractical to comply with the rules for service.

Procedure to apply for substituted service

You will file a notice of motion setting out the order for substituted service. You will also file an affidavit with the notice of motion setting out the grounds you are relying on to make the application. The affidavit must set foth the difficulties you had in serving the court documents. It must show the attempts that you took in serve the court documents on the defendants.

In Chief Collector of Taxes v Dickson Panel Works Pty Ltd and Davis Consolidated Pty Ltd [1988] PGLawRp 29 (Bredmeyer J) the Court plaintiff served the writ for unpaid income tax to one of the defendants via the registered post office. Thereafter, the Chief Collector entered default judgement. One of the defendants applied to set aside the judgement on the basis that the writ that was served to the registered office was the old address. The defendant no longer uses this address. The court thus set aside the default judgement but stated that a corporation should not be able to escape service by having no current address or registered post address. The plaintiff can always apply for substituted service.

Mode of substituted service

Once an application is made to the court and if the Court orders substituted service, then you will comply with the orders of the Court. In practice, most substituted service is done through publication of the court document in the daily newspaper. It is only proper to publish it in any of the newspaper which has a nationwide distribution so that it expands the possibility of the defendant sighting the publication in the newspaper. In Titus v Tavarai [2018] PGNC 175; N7267 (Tamate J) the Court acknowledged that publication in the newspapers is the practice today for substituted service.

In conclusion, if you have a difficult time serving the court document on a party in a proceeding, you can apply to the court for substituted service.

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