What is informal service through confirmation? 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:
- Originating process such as writ of summons and originating summons.
- 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.
Substituted service
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. You can ask the Court for substituted service which usually involves publication of the court document in the newspaper. However, this can be costly.
Informal service through confirmation
The other option that you can use is apply to the Court to confirm service of the court document. You can do that by filing a notice of motion wherein you will seek this relief. You must accompany the motion with a supporting affidavit showing the attempts that you have made to serve on the defendant the court document formally. You must also show that you have served it informally. You will then ask the court of confirm that inform service.
In Titus v Tavarai [2018] PGNC 175; N7267 (Tamate J) the plaintiff sought leave of the court for either substituted service or informal service through confirmation. The plaintiff informed the court that he does not have the money to pay for the cost for publication in the newspaper should the court order substituted service through publication of the court document in the newspaper. Instead, the plaintiff opted for informal service through confirmation. The court considered that fact that the plaintiff has attempted to serve the document on various occasions on the defendant and thus confirmed that service on 14 November 2016 was sufficient.
In National Finance Ltd v Tapalai [2019] PGNC 239; N8044 (Makail J) the plaintiff made an application to confirm his informal service of the writ of summon via a Facebook post on the defendant’s Facebook wall. The Court, however, refused to confirm this informal service on the basis that it is hard to proof that the Facebook account belongs to the defendant. Furthermore, it is hard to tell if the person who responded to the post is the defendant. However, the Court did not say that service via social media would not be confirmed, instead it stated that it can be done but not too readily.
In conclusion, you can serve on the defendant or any party a court document if you have attempted to serve on the defendant formal but was unable and served on the defendant informally. The court can confirm this informal service.
For more similar articles, click here.
About the author