Papua New Guinea’s courts have always had to deal with people who arrive, incur debts and leave. The District Courts Act contains a cluster of provisions aimed at exactly that, some older than Independence and still in force.
The stranger about to leave
If a person complains on oath to a Magistrate (a) that he has a cause of action, whether it arose within or outside the country, which, if it arose in the country, would be cognizable by a Court against any other person for any debt or damages; and (b) that that person does not usually reside in the country and is about to leave it without paying the debt or satisfying the damages, a Court may (c) hear and determine the matter of the complaint in a summary way; and (d) make such order for the payment of the debt or so much as appears due, or a sum by way of damages, as it thinks just.
Three features stand out. The complaint must be on oath. The defendant must be a non-resident who is about to leave; the section does not apply to a citizen moving provinces. And the Court may hear the matter “in a summary way”, which the Magistrates’ Manual and the general scheme of the Act treat as permitting a shortened return date and hearing, provided the defendant is still given notice and a chance to answer. The cause of action may have arisen outside Papua New Guinea, so a debt incurred abroad by a visitor can be sued on here.
How it works in practice
| Step | Note |
|---|---|
| Sworn complaint to a magistrate stating the debt or damages and the defendant’s imminent departure | The evidence of departure matters: a booked flight, a completed contract, a notice to quit |
| Summons issued with a short return date | Section 46 allows the return date to be fixed by the magistrate; section 48 allows substituted service if the defendant is evasive |
| Hearing, with the defendant heard if he appears | Section 143 allows an ex parte hearing on proof of service if he does not |
| Order for payment | Enforced by warrant of execution against goods here, or by the fraudulent debtor provisions below |
The money limit in section 21 still applies, and so does the section 21(4) list of excluded claims. Section 148 changes the speed, not the scope.
A departing witness
Section 72 deals with the related problem of a witness, rather than a defendant, who is about to leave. A magistrate satisfied on oath that a person can give material evidence on a pending complaint and is likely to be absent from the country at the hearing may order the evidence to be taken before him beforehand, on notice to the other party, and section 74(3) allows the deposition to be read at the hearing if the witness is out of the country. See compelling a witness.
After judgment: the debtor who leaves
An order for the payment of a debt or damages may be enforced by imprisonment where it is proved that the person making default is about to leave the country without paying the debt, damages, costs, money or instalment, or so much as is unsatisfied; or is about to depart elsewhere within the country with intent to evade payment.
This is Division 5 of Part IX, the imprisonment of fraudulent debtors. Section 193(3) allows the Court, by written order to a police officer, to have the debtor brought before it without delay, and the debtor may then be examined on oath. If the ground is proved the Court may under section 192(3) order commitment for up to two months unless the sum is paid, and section 195 allows the order to be made ex parte in special circumstances. See imprisonment of judgment debtors.
Section 193 adds a curious protection for a debtor leaving for Australia: no commitment order may be made unless the Court is satisfied that he can earn enough in Papua New Guinea to maintain himself and his family and has means exceeding K50 in addition to his and his family’s fares and clothing, with the onus on the debtor to prove he does not. The figure has not been updated and the provision reflects the pre-Independence movement of workers between the two countries; it remains law.
An appellant about to leave
Section 237 gives a magistrate power, on oath that a person who has instituted an appeal is about to leave the country, to issue a warrant for his arrest and commit him to prison until the appeal is determined, unless he enters into a recognizance with sufficient sureties to appear and abide the National Court’s judgment. It is aimed at a convicted defendant who appeals to buy time and then departs. See release pending appeal.
Limits and alternatives
None of these provisions gives the District Court power to order a person not to leave the country or to surrender a passport in a civil matter. Section 148 speeds up judgment; section 192 punishes a departure without payment once judgment exists; section 237 secures an appellant. A creditor who needs to restrain a departure or freeze assets before judgment must apply to the National Court for an injunction or a freezing order, which the District Court has no power to grant against a person’s liberty of movement. And under section 13(1) of the Claims By and Against the State Act none of this applies to the State.
The District Courts Act is not on PacLII; it is available on vLex.
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.