O'Connor v Karamang Plantation Pty Ltd [1967-68] PNGLR 371 (30 July 1968)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 371 - O'Connor v Karamang Plantation Pty. Ltd.

[1967-68] PNGLR 371

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

O’CONNOR

V.

KARAMANG PLANTATION PTY. LTD.

Port Moresby

Frost J

3 July 1968

30 July 1968

PRACTICE - District Court - Substituted service of summons on a company - District Courts Ordinance 1963-1965, ss. 49, 55, 56 - Companies Ordinance 1963-1966, s. 362.

A District Court in the Territory has no power under ss. 55 or 56 of the District Courts Ordinance to order substituted service of a summons on a company.

Kelly v. The Queen’s Birthday United Gold Mines Company Ltd. [1895] VicLawRp 31; (1895), 21 V.L.R. 335, referred to.

Appeal from District Court.

The facts, relevant legislative provisions, and arguments of counsel appear sufficiently from the judgment.

Counsel:

Gajewicz, for the appellant.

No appearance for the respondent.

Cur. adv. vult.

30 July 1968

FROST J:  This is an appeal under the District Courts Ordinance 1963 against an order of the District Court at Port Moresby on 8th February, 1968, refusing an application for an order for substituted service. On 19th December, 1967, the appellant laid a complaint that the respondent company had failed to lodge with the Registrar of Companies a return containing the particulars required to be specified in the register of directors, pursuant to s. 134 of the Companies Ordinance 1963-1966. A summons was issued thereon, and it was in respect of this summons that the application was made to the District Court. The appellant gave evidence that a search of the company’s records showed that no notice of situation of the registered office had been lodged by the company. Evidence was given as to the persons who had subscribed the memorandum of association, one of whom had signed a consent to act as a director. However the learned stipendiary magistrate did not proceed to consider the merits of the application; he refused it on the ground that he had no power under the District Courts Ordinance 1963-1965 to order substituted service of a summons against a company.

The District Courts Ordinance 1963-1965, s. 49 provides that where an information is laid before a magistrate that a person, whether within the limits of the jurisdiction of the magistrate or not, is guilty of, or is suspected of, having committed an offence within the limits of the Territory, the magistrate may issue his summons. The only provisions as to service contained in the District Courts Ordinance 1963-1965 are ss. 55 and 56 as follows:

“55(1) A summons shall be served, at least seventy-two hours before the time appointed in the summons for the hearing thereof, upon the person to whom it is directed by delivering a copy thereof 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 thereof and apparently not less than sixteen years of age.

(2)      The person who serves a summons shall, within three days after service, endorse on the summons the day and place of the service thereof and his signature, and shall, unless the summons has been served on the defendant personally, attend before the court, at the time and place specified in the summons, to depose, if necessary, to the service.

(3)      If the summons has been served on the defendant personally, the person by whom it was served may attend before a Magistrate and depose in writing, on oath, to the service.

(4)      A deposition under either of the last two preceding sub-sections shall be endorsed on the summons and, on production to the court before which the information or complaint is heard, is sufficient proof of the service of the summons on the defendant.”

“56.    If, by statement on oath or by affidavit, it is made to appear to a court before which a summons is returnable, or to a Magistrate, that, from any cause, service in accordance with the last preceding section cannot be promptly effected, the court or Magistrate may extend the time for hearing and make an order for substituted or other service or for the substitution for service of notice by advertisement or otherwise.”

The learned stipendiary magistrate’s reasoning was that s. 55 does not apply to other than natural persons, and that s. 56 confers power to make an order only in cases where the court validly issues a summons under s. 49 and where s. 55 could apply to service, that is against natural persons.

Now as “person” is defined under the Ordinances Interpretation Ordinance 1949-1966, s. 6 (1) as including “a corporation sole, and also a body politic or corporate as well as an individual”, and no contrary intention appears in the District Courts Ordinance 1963-1965, s. 49, the jurisdiction of a justice to issue a summons cannot be restricted to individuals. In Kelly v. The Queen’s Birthday United Gold Mines Company Ltd.[cdlxix]¹ the Court had to consider the Victoria Justices Act 1890, which contained as the only provision for service, a section in terms similar to s. 55 of the Territory Ordinance. The question before the Court was whether the mode of service adopted was effectual, the defendant being a company incorporated under the English Companies Act. A’Beckett J. in upholding the decision of the justices that service was effective said:

“It was argued for the company that though such service might be good in a superior court it was bad in a case before justices, having regard to s. 23 sub-s. 1 of the Justices Act. That clause provides that every summons shall be served upon the person to whom it is directed by delivering a true copy to such person himself, or by leaving the same with some other person of sixteen years or upwards for him at his last or most usual place of abode or business, and that if it be made to appear that from any cause service as aforesaid cannot be promptly effected an order may be made for substituted service. It was contended that by reason of these words a corporation could only be effectually served in proceedings before justices where there was a statutory provision directing what should be good service, as in the case of corporations under our Companies Act. It was admitted that the section did not confine the jurisdiction of justices to individuals by speaking of service on “the person”. The words used in the section deal only with individuals. They were not intended to apply to corporations. There is, therefore, no specific direction in the Justices Act as to how a corporation is to be served. The justices have, nevertheless, jurisdiction to hear complaints against corporations, and where there is no specific statutory direction as to how a particular corporation should be served, the justices may consider the general law on the subject of service on a corporation”[cdlxx]².

Now the relevant section of the Justices Act is differently worded and in a different form from the provisions in the Ordinance which are divided into s. 55 and s. 56, but in my opinion A’Beckett J.’s reasoning applies to s. 49 and s. 55 of the District Courts Ordinance 1963-1965. Section 55 by its terms refers only to service upon individuals or natural persons. For the method of service upon companies registered under the Companies Act 1963 it is necessary to go to s. 362 which provides for service upon such companies. In the case of other corporations, if the ordinance under which any such corporation is incorporated contains no special provision as to service, it will be necessary, as in the Victorian case, to consider the general law.

Accordingly the learned stipendiary magistrate had before him a summons validly issued, the requirements for service of which were prescribed in the Companies Ordinance, s. 362. Under that section a summons, being a document under s. 1 of the Companies Ordinance, may be served on a company by leaving it at or sending it by post to the registered office of the company. But it proved not possible to effect due service of the summons in this case, as the company had no registered office.

In considering the application for substituted service under s. 56, the learned stipendiary magistrate considered that the words “if . . . it is made to appear . . . that . . . service in accordance with the last preceding section (that is s. 55) cannot be promptly effected,” operated to restrict the width of the expression “from any cause” contained in s. 56. His view was that service in accordance with s. 55 can never be effected on a company, because that section is not apt to and does not apply to companies, and so, if s. 56 applied to companies, the word “promptly” is otiose. Furthermore as s. 49 conferred jurisdiction against both natural persons and corporations, the mode of service on which is to be found outside the District Courts Ordinance, it is perhaps significant that the basis of operation of s. 56 is stated to be where service in accordance with s. 55, which is appropriate only to natural persons, cannot be promptly effected.

The contrary view is that as the Ordinance does not contain a comprehensive set of provisions as to service on defendants, too literal an interpretation of s. 56 should not be adopted to cut down the width of the meaning of the words “from any cause”.

Although my mind has fluctuated, I have come to the conclusion that the learned magistrate’s reasoning is correct. In my opinion the legislature intended to deal with service on individuals or natural persons only, and thus that s. 56 should be read with s. 55. It did not intend to deal with service on corporations which, in the case of companies incorporated under the Companies Ordinance, is to be found in s. 362 of that Ordinance. As that section makes no provision for substituted service, there is thus a gap in the law of the Territory which, in New South Wales, is covered by s. 362(3) of the Companies Act 1961.

The appeal is accordingly dismissed.

Appeal dismissed.

Solicitor for the appellant: S. H. Johnson, Crown Solicitor.

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[cdlxix](1895) 21 V.L.R. 335.

[cdlxx](1895) 21 V.L.R., at pp. 336, 337.