Defendants are not always findable. Order 6 Rules 12 and 13 of the National Court Rules 1983 give the Court two answers — one forward-looking, one retrospective.
Order 6 Rule 12
(1) Where the service of any document is required or permitted and it is impracticable for any reason to serve the document, or to serve the document in the manner required by or under any Act or by these Rules, the Court may, by order, 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 to be served.
(2) Every application shall be supported by an affidavit setting forth the grounds on which the application is made.
(3) The Court may order that the document be taken to have been served on the happening of any specified event, or on the expiry of any specified time.
“Impracticable for any reason” is deliberately wide. It covers a defendant who is evading service, one whose whereabouts are unknown, one in a location that cannot safely or economically be reached, and a case where the prescribed manner of service cannot be complied with even though the person could be found.
What it does not cover is a plaintiff who has simply not tried. The affidavit must show real attempts.
What sub-rule (2) requires
- Who is to be served, and what document.
- Every attempt made — dates, times, addresses, who was spoken to, what was said. Attempts by a process server should be deposed to by the server.
- The enquiries made to locate the person — employer, relatives, company register, land register, electoral roll.
- Why service is impracticable, drawing the conclusion from those facts.
- The steps proposed, and why they are likely to bring the document to the person’s notice. This is the part most often left out, and it is the part the Court is being asked to be satisfied about.
- Evidence connecting the person to the proposed channel — that this is the mobile number they use, this the address where they are living, this the page they post on.
Sub-rule (3) allows the Court to order that the document be taken to have been served on a specified event or after a specified time. Always ask for it. Without it, you have an order permitting steps but no fixed date from which time runs — and the whole point is to be able to move on to the next step.
A workable form is: “service be effected by [steps]; and the writ be taken to have been served on the seventh day after the last of those steps is taken.”
Orders the Court makes
| Method | When suitable |
|---|---|
| Advertisement in a national newspaper | Whereabouts unknown; the classic order. Ask for the wording and the number of insertions to be specified |
| Leaving the document with a named relative or associate | Where the defendant is known to be in contact with that person |
| Registered or certified post to a last known address | Address known but occupancy uncertain |
| Email, SMS or messaging to a proved account | Increasingly common — but prove the account is used by the defendant |
| Service on the defendant’s lawyer | Where a lawyer is acting but will not accept service under Rule 8 |
| Affixing to premises | Where the person is connected to identifiable premises |
| Radio announcement | Rural and remote areas where print does not reach |
Do not use Rule 12 where Rule 6 applies. In proceedings for 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 to a conspicuous part of the land — and, notably, a party may apply for such an order without filing or serving a notice of motion. Rule 6 works even where the defendant is outside Papua New Guinea.
Rule 13 — confirming what has already happened
Where service is required or permitted and it is impracticable for any reason to serve in the required manner, but steps for the purpose of bringing, or having a tendency to bring, the document to the notice of that person have been taken, the Court may by order direct that the document be taken to have been served on that person on a date specified in the order.
A writ was emailed rather than handed over. It was left with the defendant’s wife. It was given to a manager who was not the right officer of the company. In each case service was bad — but the document may well have reached the defendant.
Rule 13 lets the Court fix the position retrospectively, provided the steps taken had a tendency to bring the document to the notice of the person. Evidence that the defendant actually knows of the proceeding — a reply email, a phone call, a letter from their lawyer — is powerful.
It sits alongside Order 1 Rule 8, under which non-compliance does not render a proceeding void, and Order 1 Rule 7, dispensation.
Procedure and timing
Apply by notice of motion supported by the Rule 12(2) affidavit. Because the defendant has not been served, the application is ordinarily made without notice under Order 4 Rule 38. Remember Rule 8 of the Motions (Amendment) Rules 2005 — the motion must contain a concise reference to the Court’s jurisdiction, here Order 6 Rule 12.
An originating process is valid for service for two years and Order 4 Rule 13(2) forbids extension of that period. Substituted service must be ordered and carried out within it. Apply as soon as impracticability is apparent, not in the final weeks.
Where the defendant is abroad, Rule 12 is not the right tool: see service outside Papua New Guinea under Order 6 Division 2, and Rule 10 for service on a local agent of a foreign principal.
Sources
- National Court Rules 1983 — O 1 rr 7, 8; O 4 rr 13, 38; O 6 rr 6, 8, 10, 12, 13, Div 2; Motions (Amendment) Rules 2005 r 8
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.