Rule 8 of the Election Petition Rules 2017 provides for service in a way found nowhere else in Papua New Guinea civil procedure — deemed service by newspaper advertisement is available as of right.
Rule 8(1)
The petition shall be served on the respondents within 14 days after the date of filing the petition or within such further period as the Court determines upon application made within those 14 days.
An extension is available, but only if sought within those 14 days. An application on day 15 is out of time on the face of the rule.
Note that the period runs from the date of filing — and Rule 1 defines “filed” as lodged and sealed with the seal of the Court and endorsed with an election petition number. Record that date.
Rule 8(2)
(a) personal service on the first respondent is effected; or
(b) publication by the petitioner of the Notice of Petition in Form 2, endorsed with the approval of the Registrar, at the petitioner’s expense, at least once in a daily newspaper circulating in the country; or
(c) compliance with any other mode of service authorised by the Court.
In ordinary civil proceedings, substituted service requires an order. Here, publication is a stand-alone mode of deemed service — provided the notice is in Form 2, endorsed with the approval of the Registrar, and published at least once in a daily newspaper circulating in the country.
That is a practical response to the difficulty of finding a newly elected member during the weeks after a declaration.
Take the Form 2 notice to the Registrar for endorsement before publication. Publication without the endorsement does not satisfy paragraph (b).
Rule 8(3)
(a) leaving the document at the office of the person apparently occupying the position of personal secretary to the Electoral Commissioner between 7.45 am and 12 noon, or 1.00 pm and 4.06 pm, or such other hours as may be declared under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared under the Public Holidays Act (Chapter 321); or
(b) publication of the Notice of Petition in Form 2, endorsed by the Registrar, at least once in a daily newspaper circulating in the country; or
(c) compliance with any other mode of service authorised by the Court.
These are the hours that appear in section 7 of the Claims By and Against the State Act 1996 and in the section 5 notice provision. Record the time of service, not merely the date.
And note who must receive it: the person apparently occupying the position of personal secretary to the Electoral Commissioner. Leaving the petition at a counter is not compliance.
Paragraph (b) appears in both subrules. A single properly endorsed and published Form 2 notice therefore effects deemed service on both the successful candidate and the Electoral Commission.
Rule 8(4) prescribes its appearance: publication shall be in the size of a standard quarter-page tabloid page newspaper notice and shall be without embellishment. A smaller notice, or one with a photograph or decorative treatment, does not comply.
Rule 9
The petitioner shall, within ten days after the date of service of the petition, file an affidavit of service giving full particulars of the manner in which service has been effected and, if by advertisement, by annexing copies of the Notice of Petition as it appeared in the newspaper.
Where service was by advertisement, the rule requires copies of the notice as it appeared in the newspaper — not the text as submitted for publication. That is what allows the Court to see that Rule 8(4) was complied with as to size and absence of embellishment.
Keep the whole page, so the newspaper’s name and date are visible, and record the Registrar’s endorsement.
The affidavit matters beyond proof of service: Rule 11(1) measures the respondent’s time to appear from service of the petition in accordance with Rule 9.
Rules 10 and 11
It is the obligation of the respondents to the petition named in the advertisement of the Notice of Petition, to obtain a copy of the petition from the Registrar.
Where service is by advertisement, the notice is what reaches the respondent; the burden of obtaining the petition itself is then on the respondent.
(1) Within 14 days after service of the petition in accordance with Rule 9, a respondent shall file a notice to appear in accordance with Form 3 at the place where the petition was filed and serve a copy on the petitioner and on every named respondent.
(2) Where a respondent fails to file a notice to appear, the Court may proceed to deal with the petition in his or her absence.
A respondent who objects to the competency of the petition has 21 days after service to file an objection in Form 4, give at least three clear days’ notice of intention to mention it before the Judge Administrator, serve it on the petitioner and the other respondents, and file and serve all affidavits in support.
See objections to competency, and note that under Rule 16 the Court deals with the petition and any objections to the competency at the trial.
Sources
- Election Petition Rules 2017 — rr 1, 8–12, 16; Sch 2 Forms 2, 3, 4
- Organic Law on National and Local-level Government Elections — ss 206–211
- Claims By and Against the State Act 1996 — ss 5, 7
Public Services (Management) Act 1995 and Public Holidays Act (Chapter 321) — not available on PacLII.
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.