Pokia v Yallon [2021] PGNC 59; N8806 (13 April 2021)

N8806

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.148 OF 2011

BETWEEN:
MURISO POKIA
Plaintiff

AND:
MENDWAN YALLON
First Defendant

AND:
DOROTHY NANAI
Second Defendant

AND:
SENIOR CONSTABLE JOB EREMUGO
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: David, J
2021: 10^th March & 13^th April

PRACTICE & PROCEDURE – application for confirmation of service of documents by informal service - National Court Rules, Order 6 Rule 13.

Cases Cited:

Nil

Counsel:

Muriso Pokia, as Plaintiff in Person

RULING

13^th April, 2021

1. DAVID, J: INTRODUCTION: This is a ruling on the plaintiff’s application for confirmation of informal service of certain documents purportedly effected on the third defendant to be taken to have been served on him either on 10 or 18 August 2020 or 22 January 2021 pursuant to Order 6 Rule 13 of the National Court Rules. The application is moved by notice of motion filed on 4 February 2021.
   

EVIDENCE

2. The application is supported by the following affidavits:
   
   1. Affidavit of Service of Muriso Pokia sworn on 22 September 2020 and filed on 23 September 2020;
   2. Affidavit in Support of Constable Anton James sworn and filed on 4 February 2021;
   3. Affidavit of Sharon Vate sworn on 27 October 2020 and filed on 28 October 2020; and
   4. Affidavit of Christine Gimots sworn on 27 October 2020 and filed on 28 October 2020.
      

3. The application is made ex parte.

ISSUES

4. The main issues that arise from the plaintiff’s motion are:

1. Whether the plaintiff has taken steps to serve the documents required to be served on the third defendant in the manner required by the National Court Rules, but it has been impractical to serve them?
2. Whether at the material time, steps for the purpose of bringing the documents required to be served to the notice of the third defendant were taken?
   

5. I will address the two issues together. Both issues need to be decided in favour of the plaintiff to succeed in this application.

PLAINTIFF’S SUBMISSIONS

6. The plaintiff contends that the evidence before the Court demonstrates that it has been impractical to serve on the third defendant the documents constituting contempt proceedings including the notice of motion filed on 30 June 2020 and supporting documents in the manner required by the National Court Rules and therefore requests the Court to direct that the documents be taken to have been served on the third defendant either on 10 or 18 August 2020 or 22 January 2021 pursuant to Order 6 Rule 13 of the National Court Rules.

LAW

7. The Court’s jurisdiction to grant the order specifically sought is derived from Order 6 Rule 13 which states:

“13. Informal service: Confirmation. (9/11)

Where the service of any document on any person is required or permitted in any proceedings and it is impracticable for any reason to serve the document or to serve the document in the manner required by or under any Act or by these Rules, but steps for the purpose of bringing, or having a tendency to bring, the document to the notice of that person have been taken, the Court may, by order, direct that the document be taken to have been served on that person on a date specified in the order.”

8. Under this rule, where it is impractical for any reason to serve any document on any person in the manner prescribed under any Act or by the National Court Rules, the Court may confirm informal service of the document on the person to be served on a date specified in an order, if it is satisfied that steps were taken for the purpose of bringing the document to the notice of that person.

9. The Court’s power under this rule is discretionary in nature.

10. The service provision under Order 14 Rule 45 applying to personal service of notice of motion or summons, the statement of charge and supporting affidavits is mandatory. The rule states:

“45. Service. (55/9)

The notice of motion or summons, the statement of charge, and the affidavits shall be served personally on the contemnor.”

11. Order 6 Rule 3 of the National Court Rules states how personal service of a document is effected and it reads:

“3. Personal service: How effected. (9/3)

(1) Personal service of a document may be effected by leaving a copy of the document with the person to be served or, if he does not accept the copy, by putting the copy down in his presence and telling him the nature of the document.

(2) Personal service of a document on a corporation maybe effected by serving the document in accordance with Sub-rule (1) on the mayor, chairman or president of the corporation, or on the town clerk, clerk, secretary, treasurer or other similar officer of the corporation.

(3) Sub-rule (2) applies in addition to any provision for service on a corporation made by or under any Act.”

12. The term “document” is defined under Order 1 Rule 6 (Interpretation) of the National Court Rules and it “includes any record of information, whether legible by eye or not.”

CONSIDERATION

13. The documents, the subject of this application, are:

1. Notice of Motion dated 29 June 2020 and filed on 30 June 2020;
2. Statement of Charge dated 29 June 2020 and filed on 30 June 2020;

3. Affidavit in Support of Muriso Pokia sworn on 22 June 2020 and filed on 30 June 2020; and

4. Further Affidavit in Support of Muriso Pokia sworn on 29 June 2020 and filed on 30 June 2020.

14. The plaintiff personally served these documents (documents for contempt proceedings) on the Solicitor-General on 7 July 2020.

15. On Monday, 11 January 2021, the plaintiff asked one Constable James to serve the documents for contempt proceedings on the third defendant personally. The third defendant was attached to the Family and Sexual Violence Unit at the Boroko Police Station. Constable James tried unsuccessfully to serve the documents on the third defendant at the Family and Sexual Violence Unit at the Boroko Police Station from 11 to 15 January 2021 and from 18 to 21 January 2021 because he was not at work. On 22 January 2021, he finally met the third defendant at his office and told him that he had documents from the plaintiff to serve on him and they concerned contempt of court proceedings against him for not settling the judgment debt entered against him in these proceedings. The third defendant refused to accept service and did not sign the acknowledgment of service. Given that, what Constable James should have done was comply with Order 6 Rule 3(1), i.e., personal service of the documents could have been effected by putting the copies of the documents down in the third defendant’s presence and telling him the nature of the documents. He did not. The third defendant however suggested that the plaintiff contact his lawyer called Sharon to arrange for service of the documents on him witnessed by his lawyer.

16. I am satisfied from the evidence before the Court that the plaintiff has taken steps to serve the documents for contempt proceedings on the third defendant personally in the manner required by Order 14 Rule 45 of the National Court Rules, but I am not convinced that it has been impractical to serve them. There is no evidence to show that the third defendant has gone into hiding or has absconded to avoid being served the documents for contempt proceedings. His place of work is known to the plaintiff. As has been mentioned already, the third defendant suggested that the plaintiff contact his lawyer namely, Sharon to arrange for service of the documents on him witnessed by his lawyer. There is no evidence from the plaintiff that he has contacted Sharon regarding the third defendant’s suggestion.

17. As to the second issue, I am satisfied from the evidence before the Court that steps for the purpose of bringing the documents for contempt proceedings to the notice of the third defendant were taken.

18. However, I am not satisfied from the evidence that any informal service of the documents for contempt proceedings was effected by or on behalf of the plaintiff on the third defendant either on 10 or 18 August 2020 or 22 January 2021 for the Court to grant the order specifically sought.

19. Both issues have not been decided in favour of the plaintiff. Given this and in the exercise of my discretion, I will refuse the plaintiff’s application and dismiss it.

JUDGMENT AND ORDERS

20. I direct the entry of judgment in the following terms:

1. The plaintiff’s application is refused and dismissed.
2. No order as to costs.
3. Time is abridged.
   

Ruling and orders accordingly.
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