The Act gives a different answer for each side. A defendant who stays away risks an order against him; a complainant who stays away loses the case, at least for now. Both answers depend on proof of what was served on whom.
The defendant does not appear
Where, in the case of a complaint, the defendant does not appear at the place and time specified in the summons, or at the place and time to which the hearing was adjourned, if (a) it appears to the Court on oath that (i) the summons was duly served at least 72 hours before the time appointed; or (ii) an order for substituted or other service was duly 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 hearing to a future day.
Three things must be present: sworn proof of service, which is ordinarily the affidavit endorsed on the summons under section 47(2); no sufficient ground for an adjournment, so a message from the defendant explaining his absence will usually be enough to prevent an ex parte hearing; and a decision by the Court to proceed, which is discretionary. The Magistrates’ Manual reminds magistrates that if there are grounds for adjournment the new date must allow another 72 hours for service.
The Manual is emphatic: the complainant must prove the case on evidence, the magistrate must remain neutral, and evidence at an ex parte hearing is to be treated with care because there are nearly always two sides. In Philipae v Igaso (2011) N4366 an eviction order made in the absence of a defendant who had never been served was quashed for contravention of section 143 and denial of natural justice, and the case remitted for rehearing.
The complainant does not appear
Where, at the time and place specified in a summons, the defendant attends in obedience to it, but the complainant does not appear by himself or by his legal representative, the Court shall (a) dismiss the complaint and hear and determine the defendant’s set-off, if he has given notice of set-off; or (b) if it thinks proper, adjourn the hearing of the complaint and set-off to some other day on such terms as it thinks fit.
The default is dismissal; adjournment requires the Court to think it proper, and it will normally be on terms that the complainant pay the defendant’s costs of attending under section 260(1)(e). A defendant with a set-off notice on file can obtain an order on it in the complainant’s absence. Section 162 requires an order of dismissal and a certificate on application, and section 152 makes a determination final, though a dismissal for non-appearance is generally treated as leaving the complainant free to sue again, because the claim was not heard on its merits.
Default summonses
Section 143 does not apply to a default summons. There, under section 157(4), if no notice of intention to defend was served at least 48 hours before the return date, the complainant need not attend or prove the claim, and the order is made on the papers. A defendant who did serve a notice but then fails to attend is in the ordinary section 143 position. See default summonses.
The possibilities
| Who is absent | Conditions | Court may | Remedy afterwards |
|---|---|---|---|
| Defendant | Service proved on oath; no ground for adjournment | Hear ex parte, or adjourn | Application under s 25 to set aside; appeal under s 219 |
| Defendant on default summons, no notice to defend | Service of summons and notices proved | Make the order without a hearing | Application under s 159 |
| Complainant | Defendant attended on the summons | Dismiss and hear set-off, or adjourn on terms | Application under s 25; fresh complaint if the dismissal was not on the merits |
| Both | — | Adjourn under s 88 or 89, or strike out | Fresh complaint or application to reinstate |
Setting the result aside
Section 25 provides that a conviction or order made when one party does not appear may be set aside on application, on terms, and the Court may then hear the matter or adjourn it on notice. The three-part test from Commodity Development v Karai [1994] PNGLR 463 applies: an affidavit showing a defence on the merits, or for a complainant a claim on the merits; a reasonable explanation for the absence; and promptness. See setting aside an ex parte order. In Malipu v Laka (2025) N11322 the National Court held that on such an application the District Court may only rehear or adjourn, and has no power to dismiss for want of prosecution.
Practical advice
A party who cannot attend should write to the Clerk before the date, explaining why and asking for an adjournment, and should send a copy to the other side. Under section 143(b) that letter is a ground for adjournment the Court must weigh; under section 144(b) it is what makes an adjournment “proper”. A representative under section 59 may attend instead. Silence is what produces ex parte orders and dismissals.
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.