A trader operating as “Highlands Hardware Supplies” may be a company, a partnership, or one person. Order 5 Division 3 of the National Court Rules 1983 solves the plaintiff’s problem of not knowing which.
Rule 33 — the definition
“business name” means a name, style, title or designation under which a person carries on a business, not being a name consisting of the name of that person and the name of each other person (if any) in association with whom that person carries on business, without any addition.
“the Act” means the Business Names Act 1963.
If two partners named Kila and Wera trade simply as “Kila & Wera”, that is not a business name for this Division — it is just their own names, with no addition. Sue them by name.
If they trade as “Kila & Wera Trading”, the word “Trading” is an addition, and it is a business name.
The Business Names Act 1963 is not available on PacLII at the time of writing. Registration status can be checked with the Investment Promotion Authority, which administers business name registration in Papua New Guinea.
Rule 34 — the key condition
Where a claim for relief is made against a person in respect of anything done, omitted or suffered in the course of, or otherwise relating to, a business carried on within Papua New Guinea by that person under a business name, and that business name is not, on the date on which proceedings are commenced, registered under and for the purposes of the Act in relation to that person, then —
(a) the proceedings may be commenced and prosecuted against that person in that business name; and
(b) that business name shall be a sufficient designation of that person in any process or other legal document; and
(c) any judgment given or order made may be enforced against that person or, where there are two or more such persons, against any of them.
Division 3 applies only where the name is unregistered. If the business name is registered, the register discloses the proprietor — so the plaintiff can and must sue that person by their own name. The Division is a remedy for the trader’s failure to register, not a general licence to sue trading names.
The condition is tested on the date proceedings are commenced — that is, under Order 4 Rule 12(1), the date of filing. Check the register before you file, and keep the search.
Paragraph (c) is valuable: judgment may be enforced against any of the persons carrying on the business. It removes the plaintiff’s risk of picking the wrong partner. See enforcing a judgment.
Rule 35 — a much easier route
(1) Any originating process or other document may be served —
(a) by leaving it at a place within Papua New Guinea where the business is carried on with some person apparently engaged (whether as servant or otherwise) in the business and apparently of or above the age of 16 years; or
(b) by sending it by certified mail addressed to the business name or to the person to be served, addressed to a place within Papua New Guinea where the business is carried on.
(2) This applies whether the person is sued in his own name or in a business name.
(3) Service in accordance with sub-rule (1) shall have effect as personal service.
(4) The place of service is the place mentioned, wherever the person served may be at the time of service.
Personal service of an originating process ordinarily requires the document to be handed to the defendant. Rule 35(3) deems service on a shop assistant, or certified mail to the business address, to be personal service.
Sub-rule (4) closes the obvious escape: the proprietor cannot say service was ineffective because they were in Lae, or in Australia, when the document was left at the shop.
Note sub-rule (2) — this method is available even if you sue the trader in their own name, provided the business name is unregistered. It is a useful method of service in its own right.
Rule 36 — the defendant must come out
(1) Where a person is sued in a business name, he shall not give a notice of intention to defend except in his own name.
(2) He shall file and serve with his notice a statement of the names and places of residence of all the persons carrying on business under that business name on the date of commencement of proceedings.
(3) Where a person fails to comply, the Court may order that his notice of intention to defend be struck out.
The trader who wants to be heard must disclose their own name and the names and addresses of everyone else in the business. If they do not, the notice of intention to defend may be struck out — opening the way to default judgment under Order 12 Division 3.
Rule 37 — the plaintiff’s duty
Where proceedings are commenced against a person in a business name, the plaintiff shall, as soon as practicable, take all reasonable steps (whether by way of discovery of documents, interrogatories or otherwise) for the purpose of ascertaining the names of the defendant, and shall, so far as practicable, make amendments so that the proceedings are continued against the person sued in his own name and not in his business name.
If the trader is a company registered under the Companies Act 1997, this Division is not the route. Sue the company by its registered name, and serve it at its registered office. See suing a company. Remember too that under Order 4 Rule 5(2), a corporation may not commence or carry on proceedings otherwise than by a solicitor — a restriction that does not apply to a sole trader, who may appear in person.
Sources
- National Court Rules 1983 — O 4 rr 5, 12; O 5 rr 33–37; O 9; O 12 Div 3
- Business Names Act 1963 — not available on PacLII
- Companies Act 1997
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.