Personal service is the strictest method the Rules provide, and it is the method required for originating process. Order 6 Rule 3 of the National Court Rules 1983 says exactly what it involves.
Order 6 Rule 3(1)
Personal service of a document may be effected by leaving a copy of the document with the person to be served or, if he does not accept the copy, by putting the copy down in his presence and telling him the nature of the document.
The ordinary case is the first limb: hand over the copy.
The second limb defeats the defendant who folds their arms. Three things must happen: the copy is put down, it is put down in their presence, and they are told the nature of the document. All three matter, and all three should appear in the affidavit of service.
“Telling him the nature of the document” does not require a legal explanation. “This is a writ of summons from the National Court in proceedings brought against you by X” is enough.
The person need not read it. Nor keep it. A defendant who tears up the writ has still been served.
No particular place. Personal service may be effected anywhere the person is found — home, work, a public place.
Not through a relative. Handing a writ to the defendant’s spouse, brother or employee is not personal service. Note Rule 15: where husband and wife are parties, service on the husband shall not have effect as against the wife.
Identity. Rule 5 helps here — for the purpose of proof of service, evidence of a statement by a person of his identity, or that he holds some office, is evidence of his identity or that he holds that office. So the server may depose that the person said “yes, I am John Kaupa”.
Where personal service is compulsory
| Document | Provision |
|---|---|
| Originating process — writ, originating summons | O 6 r 2(1), subject to any Act |
| Motion for leave to enforce a representative judgment against a non-party | O 5 r 13(5) |
| Motion to vary a business-name judgment into the proprietor’s own name | O 5 r 39(2) — and r 35 does not apply to that service |
| Order requiring a disabled person to do or refrain from an act; committal motion; subpoena to them | O 5 r 31(8) |
| Any document the Court orders to be served personally | O 6 r 1 |
Several rules give other methods the effect of personal service:
- O 6 r 2(3) — filing a notice of intention to defend means the originating process is taken to have been served personally on the filing date.
- O 6 r 8 — a solicitor’s note accepting service means the document is taken to have been duly served.
- O 5 r 35(3) — service at the premises of an unregistered business name shall have effect as personal service.
Rule 3(2) and (3)
(2) Personal service on a corporation may be effected by serving the document in accordance with sub-rule (1) on the mayor, chairman or president of the corporation, or on the town clerk, clerk, secretary, treasurer or other similar officer.
(3) Sub-rule (2) applies in addition to any provision for service on a corporation made by or under any Act.
Rule 3(3) says the rule operates in addition to statutory provisions. Section 431(2) of the Companies Act 1997 says the methods it lists are the only methods by which a document in legal proceedings may be served on a company in the country.
Order 6 Rule 2(1) is itself expressed to be “subject to any Act”. For a company under the 1997 Act, work from section 431. Rule 3(2) remains useful for the many corporations not incorporated under that Act — statutory authorities, local-level government bodies and the like. See serving a company.
Who effects service
The Rules do not confine personal service to the Sheriff or to a lawyer. A law clerk, a process server or any adult who can depose to what happened may serve.
What matters is that the person who served can swear the affidavit of service required by Rule 18, stating by whom the document was served, the day of the week and the date on which it was served, and the manner of service. A lawyer who sends someone else must have that person depose — the lawyer cannot swear to what they did not see.
When personal service is impracticable
Rule 12 — substituted service. Where it is impracticable for any reason to serve, the Court may direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person.
Rule 13 — informal service confirmed. Where steps having a tendency to bring the document to the notice of the person have already been taken, the Court may direct that the document be taken to have been served on a date specified in the order. This is the cure where a writ was emailed or handed to a relative.
Rule 10 — service on an agent. Where a contract was made in Papua New Guinea with or through an agent here for a principal abroad, the Court may authorise service on the agent instead of the principal. The application may be made ex parte on affidavit, and a copy of the order and writ must then be sent by prepaid post to the defendant at his address out of Papua New Guinea.
An originating process is valid for service for two years, and Order 4 Rule 13(2) provides that the period shall not be extended. If personal service is proving difficult, apply under Rule 12 well before the two years expire — not after.
Sources
- National Court Rules 1983 — O 4 r 13; O 5 rr 13, 31, 35, 39; O 6 rr 1–18
- Companies Act 1997 — s 431
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.