Category Archive National Court

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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What is personal service of court documents? If you are a Plaintiff who had just filed a Writ of Summons in the National Court, what is the method that you must employ to serve the court document on the defendant. 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.  

How to effect personal service on an individual?

If you filed a writ of summons against an individual, you must serve it on the Defendant personally. That means that you must hand over the document to the defendant and he himself must receive it. However, if he refused to accept the writ, you must leave a copy down in his presence. Thereafter, you must tell him the nature of the document.

In Pansat Communications Pty Ltd v Mai [1995] PNGLR 438 (Sawong AJ) the plaintiff served on the defendant the writ of summons. The process served handed the writ of summons to the defendant who took it and read it. Thereafter, he handed the writ of summons back to the process server. The Court found that her was personally served the writ of summons. The fact that he handed it back to the process server is irrelevant. Furthermore, the Court found that handing back the writ of summons does not amount to declining service.

How to effect personal service on a corporation?

The National Court Rules 1983 provides under Order 6 rule 3 (2) that if you filed a writ of summons against a corporation, you must serve it on the corporation personally. You can do that through serving it personally on the mayor, chairman or president of the corporation or on the town clerk, clerk, secretary, treasurer, or other similar officers of the corporation. That means that you must hand over the document to the defendant and he himself must receive it on behalf of the corporation. However, if he refused to accept the writ, you must leave a copy down in his presence and tell him the nature of the document.

The National Court Rules 1983, however,  provides under Order 6 rule 2 (1) that all originating process must be served personally on each defendant unless there is a legislation that states that it should not be served personally or it provides other methods for service. A good example of this is Section 431 of the Companies Act 1997 which provides that you can serve any court document in a proceeding, such as a writ, summons, notice, or order, against an incorporation in the following ways:

1. by delivery to a person named as a director or the secretary of the company on the register.
2. by delivery to an employee of the company at the company’s head office or principal place of business.
3. by leaving it at the company’s registered office or address for service.
4. by posting it to the company’s registered office, or address for service or postal address.
5. by serving it in accordance with any directions as to service given by the court having jurisdiction in the proceedings.
6. in accordance with an agreement made with the company.
7. by serving it at an address for service given in accordance with the rules of the Court having jurisdiction in the proceedings or by such means as 7a solicitor has, in accordance with those rules, stated that the solicitor will accept service.

These seven methods set out about are the only method by which you can serve a court document on a corporation in Papua New Guinea. In Kitika v Mitina [2021] PGNC 479; N9340 (Eliakim AJ) found service on an unauthorized officer of the corporation at a branch that is neither the registered office nor the principal place of business is not service.

In Wong v Haus Bilas Corp Pty Ltd [1988-89] PNGLR 42 (Andrew AJ) the Court set aside a default judgement because it discovered that it made this judgement upon the mistaken belief that service was effected properly on the defendant who is a incorporation. The plaintiff served the writ on the accountant of the defendant at an office that is not the registered office of the defendant. Hence, it is not sufficient service on the accountant on the defendant.

Service on defendants named in a group

How do you effect serve on defendants who are named in the proceedings as a group? Do you serve the document to only one of the defendants in the group? The short answer to this in no, you serve is on each of the named defendants. You must serve it personally on each one. In Tima v Korohan [2006] PGNC 21; N3045, the plaintiffs named four (4) defendants in a group. He then served one copy of the writ of summons on only one of the defendants. The Court held that personal service was not effected on the other three (3) defendants. The service of one defendant named in a group is not sufficient to say that it is personal service on all defendants named in a group. Each must be service personally.

In conclusion, personal service must be effected on each defendant personally as per Order 6 rule 2 and 3 of the Rules and if there are legislations that makes provision for service then service must be in accordance with those legislations for each specific matter.

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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.

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Can you add parties to a proceedings? The short answer is yes. The National Court Rules 1983 make provision for this under Order 5.

Who can apply to the Court to add a party to a proceedings? Order 5 rules 8 of the Rules allows for three (3) persons to add a party to a proceedings. These three (3) are as follows:

1. the person who ought to be joined as a party.
2. Any party to the proceedings.
3. The Court.

The Court may add a party upon its on motion. The first two (2) persons must make an application to the Court to add a party to the proceedings. This application must be supported by evidence filed before the Court by way of an affidavit. The evidence must show that:

1. The person ought to be a party to the proceedings.
2. Adding that person is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon.

Once such an application is made, the Court will rely on the following principles as set out in Medaing v Ramu Nico Management (MCC) Limited [2010] PGNC 175; N4158 (Cannings J) and Timbers PNG Ltd v Papua New Guinea Forest Authority [2012] PGNC 30; N4638 (Hartshorn J),  to decide whether to order that a person be added as a party to the proceedings:

1. whether the applicant has sufficient interest in the proceeding.
2. whether the applicant’s joinder as a party is necessary to ensure that all matters in dispute in the proceeding can be effectively and completely adjudicated upon.

In determining whether the applicant has sufficient interest in the proceedings the Court will look at the following considerations:

1. any relief is sought against the proposed party.
2. the plaintiff opposes the application for joinder.
3. the proposed party will be affected if the relief sought in the statement of claim is granted.
4. the joinder of the proposed party is necessary to satisfy any orders made in the proceeding.

In Medaing v Ramu Nico Management (MCC) Limited [supra] the plaintiff applied to the Court to add 10 persons as plaintiff. The defendant objected to this application, generally against all 10 persons on that basis that they do not have sufficient interest in the proceedings. Justice Cannings, in determining, this application set out the relevant considerations set out above. His Honour found that nine (9) of the ten (10) persons had sufficient interest in the outcome of the proceedings. Hence, his Honour granted the application and allowed the nine (9) persons to be joined as a party. This case is an example of an application made by any party to the proceedings to add another party to the proceedings.

In Timbers PNG Ltd v Papua New Guinea Forest Authority [supra] a person who was not a party to a proceedings made an application to be joined as a party to the proceedings. The person applied to be joined in the proceedings as the third defendant. Justice Hartshorn considered the application and found that the person does not have sufficient interest in the outcome of the proceedings to be joined as a party. Hence, his Honour refused to grant the reliefs sought to be added as a party. This case is an example of an application made by a person who applied to join on the believe that he thought he ought to be joined as a party.

In the case of adding a party as a plaintiff, that person must give his consent to be added as a plaintiff to the proceedings. If he did not give his consent, he should not be added as a plaintiff. In Medaing v Ramu Nico Management (MCC) Limited [supra] Justice Cannings refused to add one (1) out of the ten (10) person because the applicant did not provide sufficient evidence to show that he has given his consent. Hence, his was not added as a party.

In conclusion, an applicant must satisfy those requirements set out above to be added as a party to the proceedings.

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A disabled person can only make a claim or bring a proceedings for relief in the National Court through a next friend. A disabled person is a minor or a mentally disordered person. If, on the other hand, the disabled person is to defend or intervene or appear in any proceedings under order then the disabled person can only do that through his guardian at law. A guardian at law means the guardian of a defendant who is a disabled person. The disabled person may, by his next friend, commence, carry on or defend any claim in a proceedings for relief.

Any person can be a next friend except a disabled person and a corporation. However, a person may not be a next friend if that person has an interest that is adverse to the interest of the disabled person. Furthermore, in order for a person to be a next friend, he must give his consent to be next friend. A person cannot take any step in any proceedings as next friend for a disabled person unless he files, beforehand, at the National Court Registry, the following documents:

1. his consent to act as next friend of the disabled person in the proceedings.
2. a certificate by his solicitor that the next friend has no interest in the proceedings adverse to that of the disabled person.

In Kagl v Baki, Secretary Department of Education [2008] PGNC 40; N3318, the proceedings was commenced by a next friend of a disabled person. This disabled person is mentally disordered. The next friend filed the proceedings without filing a consent to act for the disabled person and filing a certificate by the solicitor. The Court ordered default judgement and the matter returned before the Court for assessment of damages. Thereafter, the Defendant raised the issue of compliance with requirement under the Rules for acting as next friend for a disabled person. His Honour, Justice Kandakasi (as he then was) dealt with the following two (2) issues:

1. whether the proceedings are correctly on foot in light of the non-compliance of the rules?
2. whether the signing of default judgment is a bar to considering the validity of the proceedings and defendant’s liability?

Justice Kandakasi (as he then was), after considering the law and the evidence dismissed the proceedings on the following basis:

“The provisions of O 5 rr 21(6) and 22(3) are clear. These provisions stipulate that, no person purporting to be a next of friend can take any step in any proceedings until the required consent and certificates have first been filed. These requirements are in mandatory terms and are important and necessary to ensure that the proceedings or any steps that are taken for a disabled person is indeed for the benefit of the disabled person and not otherwise. By reason of his or her disability, a disabled person may not be able to fend for him or herself and hence, could easily be taken advantage of by other persons purporting to represent them. Thus, the need for the Court to ensure that, the next friend is indeed acting for and in the best interest of a disabled person. The consent of the next of friend and the lawyer’s certificate provides the necessary basis for the Court to be satisfied that the proceedings are indeed for the benefit of a disabled person. Accordingly, no proceedings can be issued and maintained purportedly for and on behalf of a disabled person, unless the requirements in question are met.

Justice Kandakasi (as he then was) in Kagl v Baki, Secretary Department of Education [2008] PGNC 40; N3318

It is, therefore, a prerequisite requirement to file these documents prior to instituting a proceedings as next friend of a disabled person. As these requirements are in mandatory terms, failure to comply will raise the issue of whether the Court has the jurisdiction to deal with a proceeding. His Honour, Justice Kandakasi (as he then was) in Kagl v Baki, Secretary Department of Education [supra] addressed the issue on competency of the proceedings as follows:

The failure to provide the consent and the certificates at the first place and the failure to correctly fix the defects, goes into Mr Boi Gabriel’s ability to initially issue, then pursue and maintain these proceedings. It also goes into the jurisdiction of the Court in the matter. To the extent that the required consents and certificates have not been given prior to the issuance, the pursuance and the maintaining of these proceedings, the Court would have no jurisdiction to allow the matter to go any further. In my view, this is not a simple non compliance of the rules which can be cured under O 1 r 7. The non compliance is a fundamental one given the reasons for the requirements which I have briefly noted above.

It is now clear law that, the issue of competency of any proceedings before the Court is an open issue. As such, the issue can be raised at any stage of the proceedings even on the Court’s own initiative. In the absence of a proper consent to act and certification from the plaintiff’s lawyer as required, the proceedings are not correctly before me. This alone forms the foundation for a dismissal of the proceedings.

Justice Kandakasi (as he then was) in Kagl v Baki, Secretary Department of Education [Supra]

In Kewa v Motor Vehicles Insurance Ltd [2011] PGNC 162; N4440, Justice Makail stated that the requirements of Order 5, rules 21 and 22 are mandatory in a case where a plaintiff is a disable person. A failure to comply with these requirements would render the proceeding incompetent and can be struck out.

In conclusion, the requirements of Order 5 Division 2 must be complied in a proceedings commenced by a next friend of a disabled person. The non-compliance of these Rules may render the entire proceedings incompetent.