A proceeding is commenced by filing, but nothing happens until the defendant is served. Order 6 of the National Court Rules 1983 governs service.
Rule 1 — the general position
Any document required or permitted to be served in any proceedings may be served personally, but need not be served personally unless personal service is required by these Rules or by order of the Court.
Rule 2 — personal service is the rule
(1) Subject to any Act, and to these Rules, originating process shall be served personally on each defendant.
(2) The copy for service shall be signed and sealed as specified in Order 4 Rule 12.
(3) Where a defendant serves a notice of intention to defend, the originating process shall be taken to have been served on him personally on the date on which that notice is filed, or on such earlier date as may be proved.
“Subject to any Act” matters. Section 431(2) of the Companies Act 1997 prescribes the only methods of serving a company — see serving a company. Section 6 of the Claims By and Against the State Act 1996 governs service on the State.
Serve the sealed copy. Not a photocopy of the draft — the copy bearing the Registrar’s seal and date under Order 4 Rule 12.
Rule 2(3) cures defects. A defendant who files a notice of intention to defend is deemed personally served. Arguments about service evaporate once the defendant engages.
Rule 4
(1) Where personal service is not required, the document may be served —
(a) by leaving a copy at the proper address of the person to be served between the hours of 9 a.m. and 5 p.m. on any day on which the Registry is open; or
(b) by sending a copy by pre-paid post addressed to the person at their proper address.
(2) The proper address is the person’s address for service; if they have none, their usual or last known place of business or of abode.
(3) Postal service is deemed to have been effected at the time the document would be delivered in the ordinary course of post, unless the contrary is proved.
Leaving a document at an address outside those hours, or on a day the Registry is closed, is not service under Rule 4(1)(a). On which days the Registry is open, see court sittings and holidays.
Rule 7 — the 15 km rule
(1) An address for service shall be the address of a place within 15 km of the Registry at which documents may, during ordinary business hours, be left, and to which documents may be posted.
(2) For a person represented by a solicitor, it is the office of the solicitor or of his Papua New Guinea agent. Where a solicitor has been allocated a compartment in the Document Exchange Box located within the Registry, deposit in that compartment amounts to ordinary service.
(3) A person may change their address for service by filing a notice of the change.
(4) They shall, on the date of filing, serve the notice on each party.
A party living in a remote district still needs an address within 15 km of the Registry. In practice this is the lawyer’s office; a self-represented litigant must nominate a suitable address, and it must be one at which documents can actually be left in business hours.
The Document Exchange Box is how most inter-party service is effected in Waigani. If you act for a party, check your compartment.
Rules 8, 9, 11 and 14
| Rule | Effect |
|---|---|
| 8 — acceptance by solicitor | Where a solicitor notes on a copy that he accepts service on behalf of a person, the document is taken to have been duly served on the date of the note, or an earlier proved date. Applies to originating process too |
| 9 — solicitor in the court below | On an appeal or stated case, the respondent’s lawyer below carries over. File a statement with the originating process, and it need not be served personally |
| 11 — service under contract | Where the defendant has agreed, before or after commencement, that documents may be served in a manner or at a place whether in or outside Papua New Guinea, service in accordance with the agreement is sufficient |
| 14 — service by filing | Where personal service is not required and the person is in default of a notice of intention to defend, or has no address for service, the filing of the document has effect as service |
| 17 — injunctions | Notice of an interlocutory injunction may be served by telegram or letter signed by or on behalf of the Registrar |
A well-drafted service clause spares a plaintiff the cost and delay of tracing a defendant. It works even for service outside Papua New Guinea.
Rules 6, 15 and 16
Rule 6 — possession of land. Where it appears no person is in possession and a defendant cannot be served without undue delay or expense, the Court may authorise service by affixing a copy of the originating process to a conspicuous part of the land. The application may be made without filing or serving a notice of motion, and the rule works even if the defendant is outside Papua New Guinea.
Rule 15 — husband and wife. Service on the husband shall not have effect as against the wife. Spouses must be served separately.
Rule 16 — documents from the Court. Notices given by the Court or its officers may be served in any manner in which a document not requiring personal service may be served.
Do not simply give up, and do not swear an affidavit of service you cannot support. The Rules provide for substituted service under Rule 12 and for confirmation of informal service under Rule 13, where steps having a tendency to bring the document to the notice of the person have been taken.
Remember also that an originating process is valid for service for two years only, and Order 4 Rule 13(2) forbids extension. Serve early.
Sources
- National Court Rules 1983 — O 4 rr 12, 13; O 6 rr 1–18
- Companies Act 1997 — s 431
- Claims By and Against the State Act 1996 — s 6
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.