Nothing else in a District Court case works if service has not. A hearing in a defendant’s absence, a warrant for non-appearance and an ex parte order all depend on proof that the summons reached the defendant in the way the Act requires.
What a summons is
A summons is the document, signed by a magistrate or the Clerk under sections 44 and 45, that tells the defendant to appear at a stated time and place. Under section 44 it must state shortly the offence or matter of the complaint and name or describe the defendant; section 42 adds that a summons on a complaint must require the defendant to appear before a Court and be lodged with the Clerk before the hearing. A summons may not be signed in blank. Under section 46 the return date may be extended by a magistrate or Clerk, and regulation 20 requires the alteration to be noted in the margin.
How it is served
A summons shall be served at least 72 hours before the time appointed in the summons for the hearing:
(a) in the case of a natural person, by delivering a copy to him personally or, if he cannot be found, by leaving it at his last known place of abode with some other person apparently an inmate and apparently not less than 16 years of age;
(b) in the case of a company incorporated under the Companies Act, in accordance with that Act;
(c) in the case of any other corporation, by delivering a copy to the secretary, public officer or other chief officer in the country, or by post to that officer at the corporation’s last known address in the country,
or in any other manner provided by law.
| Defendant | Method | Note |
|---|---|---|
| Individual | Hand a copy to the defendant | Preferred; the server should identify the defendant |
| Individual who cannot be found | Leave it at the last known place of abode with an apparent inmate aged at least 16 | Only after a genuine attempt at personal service |
| Company under the Companies Act 1997 | As that Act provides, normally at the registered office | Check the registered office on the IPA register |
| Other corporation, including statutory bodies | Deliver to the chief officer, or post to the last known address | Posting is expressly permitted here but not for individuals |
| The State | On the Departmental Head responsible for justice or the Solicitor-General, under s 7 of the Claims By and Against the State Act | See suing the State |
Proving service
(2) Within seven days after service, a person who serves a summons shall make an affidavit, endorsed on the original summons, stating the day and place of service and shall immediately transmit the original summons to the Clerk for production at the hearing.
(3) A document purporting to be an affidavit of service under Subsection (2) is prima facie evidence of the service of the summons.
The Magistrates’ Manual explains the mechanics: the server writes on the back of the original a statement of how, where and when the copy was served, swears it before a magistrate or other person authorised to take affidavits, and returns it to the Clerk. Without that affidavit the Court cannot proceed against a defendant who does not appear, because section 125 (criminal) and section 143 (civil) both require proof on oath of due service before anything is done in the defendant’s absence.
The 72-hour rule
Seventy-two hours means three clear days between service and the hearing. Section 11(4) of the Interpretation Act provides that where a statute allows an act to be done within a period not exceeding eight days, Sundays and public holidays are not counted, so a summons served on Friday afternoon for a Monday morning hearing is short. A different period applies to a default summons, which section 157 requires to be served not less than six days before the return day, and to the committal documents under section 94, which must be served at least 14 days before the hearing.
If the defendant cannot be served
Where service under section 47 cannot promptly be effected, section 48 lets the Court or a magistrate extend the return date and order substituted service, including service by advertisement. See substituted service. Regulation 47(3) provides that if process is unserved within 60 days of issue the Clerk refunds the service fee.
What defective service does to the case
In Philipae v Igaso (2011) N4366 the Madang District Court made an eviction order against a man who had never been served with the complaint. Cannings J held that this denied him his right to be heard and natural justice, that the order was made in contravention of section 143, that the errors led to a substantial miscarriage of justice, and quashed the order. The lesson for a complainant is that a shortcut on service costs the whole case; for a defendant, that an order made behind your back can be set aside under section 25 or on appeal.
Witnesses and appeal documents
A summons to a witness is served in the same way and within the same time under section 67, and the affidavit of service is what founds a fine or warrant under section 68 if the witness fails to appear. Appeal documents have their own rule in section 238: delivery personally, or leaving the document at the person’s usual or last known place of abode or business with an apparent inmate or employee aged at least 16, proved by affidavit.
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.