A District Court order is only as good as the name on it. If the defendant is misdescribed the order may be unenforceable, and if the defendant named is not a legal person the order is a nullity. Getting the party right at the complaint stage avoids both.
Only a legal person can be sued
The Magistrates’ Manual cites The United States of America, on behalf of the Embassy of the United States of America v W R Carpenters (Properties) Ltd [1992] PNGLR 185, in which the Embassy was held not to be a legal person and therefore not a proper party. The same is true of a trade store, a plantation, a mining project, a church congregation or a “landowner company” that was never incorporated. The complainant must find the natural person, company, incorporated association or other body that carries on the business and name it.
Companies
A company incorporated under the Companies Act 1997 is a legal person separate from its shareholders and directors, and sues and is sued in its own name. In AGC (Pacific) Ltd v Woo International Pty Ltd [1992] PNGLR 100, on appeal from the District Court, the National Court explained that when a wrong is done to a company the company is the proper plaintiff, and when a company incurs a liability it, and not its members or officers, is the proper defendant. Service is in accordance with the Companies Act under section 47(1)(b) of the District Courts Act, and the registered office can be checked on the Investment Promotion Authority’s register.
Partners and firms
Any two or more persons claiming or being liable as co-partners may join in making a complaint, or may be joined as defendants in a summons, in the names of their respective firms (if any), and any person carrying on business in the name of a firm apparently consisting of more than one person may be sued in the name of that firm.
So a complaint may be brought by or against “Kila & Sons” without listing every partner. An order against the firm binds the partners, and regulation 22 governs how it is enforced.
Two or more defendants
A complaint may be made against two or more persons liable jointly, severally, or in the alternative, and orders may be made against one or more of them as the Court finds liable (reg 21).
Where an order is made against two or more defendants jointly, it may be enforced against any one of them as if made against him separately; once satisfied by any of them, no further steps may be taken against the others; and the defendants’ rights of contribution between themselves are not affected (reg 22).
Section 149 of the Act reinforces this for jointly liable persons: it is enough to serve any one of them, an order may be made and enforced against the one served even though the others are not in the country, and the complainant may later proceed against the others if the order is not satisfied, but may not recover in all more than the amount of the order. The person who pays has the same rights of contribution as if sued in the National Court.
Unregistered business names
Everyone carrying on business under a name other than their own is required to register it under the Business Names Act, but many do not. The Manual explains that section 28 of that Act allows proceedings to be taken against any person in the business name under which he carries on business if the name is not registered, that the name is then a sufficient designation in all summonses and documents, and that a judgment obtained may be enforced against the person or persons carrying on the business. If the name is registered, the register discloses the true owner and the complaint should name that person or company.
Other bodies
| Body | How to name it |
|---|---|
| Incorporated association | In its corporate name under the Associations Incorporation Act |
| Business group | In its corporate name; section 17 of the Business Groups Incorporation Act makes it a corporation |
| Incorporated land group | In its registered name under the Land Groups Incorporation Act |
| The State, a department, the police | “The Independent State of Papua New Guinea”; Arawe Logging v The State [1988–89] PNGLR 216 holds that named office holders need not be added. See suing the State |
| Provincial government or local-level government | In the name given by its establishing law; see Getsi v PNG Harbours Board [1993] PNGLR 408, where a provincial government was held not liable for costs merely because its employee was the informant |
If the wrong party is named
Section 138 lets the Court amend the summons at the hearing so as to determine the real questions in controversy, and regulation 44 provides that a departure from the forms does not void a proceeding unless the Court directs. A misdescription of an existing party, such as “Pty Ltd” for “Ltd”, can be corrected. Substituting an entirely different defendant is another matter: the new defendant must be served and given the chance to be heard, and any limitation period is judged as at the date of the amendment. See amending a claim.
The District Courts Act and Regulation are not on PacLII; both are on vLex (Act, Regulation). The Business Names Act and Associations Incorporation Act are cited from the Magistrates’ Manual; check the current text before relying on the section numbers.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. 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.