A summons is a command, not an invitation. What follows if it is disobeyed is set by the Act, and the answer is different for each of the three kinds of case the District Court hears.
A criminal charge
If the defendant does not appear when called, and proof is made on oath, or by the affidavit under section 47, of due service of the summons a reasonable time before the appointed time, the Court may (a) in the case of a simple offence the maximum penalty for which does not include imprisonment (other than for default in payment of a fine), proceed ex parte to hear and determine the case in the absence of the defendant; or (b) in the case of a simple offence or an indictable offence triable summarily, on oath being made substantiating the matter of the information, issue its warrant for the arrest of the defendant.
The line drawn by paragraph (a) is constitutional. Section 37(5) of the Constitution forbids a trial in the defendant’s absence without consent, except that a law may allow a charge whose maximum penalty does not include imprisonment to be heard summarily in absence on proof of service. So a fine-only offence can be decided without you; anything carrying imprisonment cannot, and the Court’s only course is a warrant. Section 126 then adjourns the hearing until you are arrested, and you are held until you can be brought before the Court, with notice to the complainant.
An ex parte hearing under section 125(a) is a hearing. In Supreme Court Reference No 1A of 1981 [1982] PNGLR 122 the Supreme Court struck down provisions of the Motor Traffic Act and the District Courts Act that required a magistrate to record a plea of guilty merely on proof of service and non-attendance, as inconsistent with section 37(4) and (5). The prosecution must prove the charge by evidence on oath even though the defendant is not there. The struck-down paragraph survives in the Act only as the note “[Declared unconstitutional]” in section 132A(1)(b).
For an indictable offence that is not triable summarily, section 93 gives the same answer as section 125(b): on proof of service and oath substantiating the information, a warrant. Section 61(2) confirms that the Act never authorises a charge of an indictable offence to be heard in the defendant’s absence.
Not turning up to an adjourned hearing
Section 130 deals with a defendant who appeared at first but not at the adjourned date. For a simple offence the Court may proceed to the hearing or further hearing as if the party were present. The Magistrates’ Manual reads this with the Constitution too: for a charge carrying imprisonment, the defendant must have positively consented to the hearing continuing in absence, and mere non-appearance is not enough. In practice the magistrate will issue a warrant under section 83 if the defendant was on bail, or under section 125(b).
A civil complaint
Where the defendant does not appear at the time specified in the summons, or at an adjourned hearing, if it appears to the Court on oath that (a) the summons was duly served at least 72 hours before the time appointed, or an order for substituted service was complied with; and (b) no sufficient grounds are shown for an adjournment, the Court may proceed ex parte to hear and determine the complaint or may adjourn.
The complainant must still prove the claim. But an order will be made, and it can be enforced by warrant of execution or garnishee like any other. For a default summons the position is stricter still: under section 157(4) if no notice of intention to defend is served at least 48 hours before the return date, the complainant need not even attend or prove the claim.
How to fix it afterwards
| What happened | Remedy |
|---|---|
| Convicted in absence of a fine-only offence | Apply under s 25 to set aside the conviction; the Court may rehear or adjourn. Or appeal under s 219 within one month |
| Warrant issued for a charge carrying imprisonment | Surrender to the Court or the police; ask the magistrate to recall the warrant and grant bail under s 56 or s 89 |
| Ex parte civil order | Apply under s 25 with an affidavit showing a defence on the merits, an explanation for the absence, and promptness: setting aside an ex parte order |
| Default summons judgment | Apply under s 159 on affidavit of a good defence, with 48 hours’ notice to the complainant |
| Never served at all | The order is liable to be set aside for denial of natural justice: Philipae v Igaso (2011) N4366 |
If you are the witness, not the defendant
A witness who ignores a summons faces, under section 68, a fine of up to K200 imposed in his absence after proof of service and, except in indictable cases, of the tender of reasonable expenses, and a warrant to bring him to court. See compelling a witness.
The Act gives the Court a discretion to adjourn in every one of these situations. A defendant who cannot attend on the date should tell the Clerk in writing before the hearing, giving the reason and asking for an adjournment, and should ensure a representative appears if possible. A magistrate who knows why a party is absent has “sufficient grounds for an adjournment” under section 143(b) and will rarely proceed ex parte.
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.