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Kuijk v Kuijk [1977] PGLawRp 540; [1977] PNGLR 253 (23 August 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 253 - Maureen Kuijk v Jacob Kuijk 

[1977] PNGLR 253

N104

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KUIJK

V

KUIJK

Waigani

Pritchard J

23 August 1977

MATRIMONIAL CAUSES - Practice and procedure - Service - Service of petition by post - Acknowledgement of service not returned - Letter addressed to Court by respondent - Technical non-compliance with r. 63(1)(b) of Matrimonial Causes Rules 1965 - Power to deem service sufficient and to dispense with further service - Matrimonial Causes Act, 1963, s. 100[ccxxv]¹ - Constitution s. 155(4)[ccxxvi]².

The solicitor for a petitioner in proceedings for dissolution of marriage posted by pre-paid registered post to the respondent in Jakarta, Indonesia, an envelope containing a sealed copy of the petition, a sealed copy of the notice of petition and an acknowledgement of service together with a letter asking that the acknowledgement of service be returned. The letter did not contain an envelope with the name and address of the petitioner’s solicitors as required by r. 63(1)(b) of the Matrimonial Causes Rules 1965. The acknowledgement of service was not returned but a letter purporting to be from the respondent was received by the Registrar of the National Court, and a copy thereof by the petitioner’s solicitor.

Held

N1>(1)      Section 27(1) of the Interpretation (Interim Provisions) Act 1975, provides that where a form is contained in a provision, substantial compliance with that form is sufficient; accordingly the letter from the respondent was sufficient compliance with the furnishing of an acknowledgement of service (form 11).

Welch v. Welch [1965] Q.W.N. 12 followed.

N1>(2)      If the Court is satisfied that the purpose of a rule has been substantially fulfilled, the Court has an inherent jurisdiction under s. 155(4) of the Constitution, in the interests of justice to waive strict compliance with the rule.

N1>(3)      The purpose of the rules as to service of petitions being to furnish the respondent with a full copy of the petition which has been filed and a copy of the notice of petition setting out his rights under the Act, and having in the circumstances been fulfilled, failure by the petitioner’s solicitor to enclose an envelope as required by r. 63(1)(b) of the Matrimonial Causes Rules should be regarded as a matter of no consequence.

N1>(4)      Exercising the discretion vested in the Court by s. 100(2) of the Matrimonial Causes Act 1963, the petition and notice of petition should be deemed to be properly served, and further service thereof be dispensed with.

Application

These were proceedings under the Matrimonial Causes Act 1963, seeking an order that a petition be deemed to have been properly served and any further service be dispensed with.

Counsel

I. R. Molloy, for the applicant petitioner.

Cur. adv. vult.

23 August 1977

PRITCHARD J: The petitioner in this matter instituted proceedings for dissolution of her marriage to the respondent by petition dated 24th May, 1977. The petition was filed on 27th May, 1977, and originally numbered M.C. 13 of 1977 which number was subsequently altered to M.C. 14 of 1977. The address of the respondent was set out in the petition as c/- Poste Restante, Jakarta, Indonesia.

In an affidavit dated 19th August, 1977, the solicitor for the petitioner has sworn that on the 1st day of June, 1977, he posted by prepaid registered post to the respondent at the above address an envelope containing a sealed copy of the petition, a sealed copy of the notice of petition and an acknowledgement of service together with a letter from him asking that the acknowledgement of service be completed and returned or that the respondent’s solicitors get in touch with him. The letter did not contain an envelope with the name and address of the petitioner’s solicitors in compliance with r. 63(1)(b) of the Matrimonial Causes Rules 1965.

The acknowledgement of service was never returned to the solicitor for the petitioner but subsequently a letter dated 1st July, 1977, purporting to be from the respondent was received by the Registrar of this Court and a copy of such letter similarly received by the solicitor for the petitioner. In addition the petitioner’s solicitor has had handed to him a photograph which was sent in an envelope from Jakarta post marked 11th July, 1977, to the present de facto husband of the petitioner. The petitioner has identified the signature on the letter of 1st July, 1977, as being that of the respondent and has identified the European man in the photograph referred to as being the respondent. In the photograph the respondent is seated with what appears to be a young Indonesian woman and a child. The letter of 1st July, 1977, addressed to this Court is headed:

“Testimony of Jacob Willem Kuijk in answer to the petition presented to the Court by my wife Mrs. Maureen Kuijk (No. 13 of 1977).”

The first paragraph of the letter is as follows:

“I am Jacob Willem Kuijk, my address is Poste Restante, Jakarta, Indonesia. My occupation is teacher and I am lawfully married to Mrs. Maureen Kuijk. I was born in Haarlem, Holland, on 10th October, 1937. In this testimony I would like to set down some of the facts concerning my marriage.”

The full name, date of birth and birth place of the person writing the letter accord with the particulars of the respondent in the marriage certificate filed in this suit. The letter goes on to speak of events which occurred during the marriage of the parties leading up to their separation. The final paragraph reads as follows:

“I am working as a teacher in Indonesia on an Asian salary and can’t afford a solicitor who is based in Papua New Guinea.”

I have been asked to make an order that the petition herein be deemed to have been properly served and to dispense with any further service. Section 100 of the Matrimonial Causes Act 1963 reads as follows:

N2>“(1)    Service of process of a court under this Act may be effected either in or outside the Territory in accordance with the Rules.

N2>(2)      The Court may dispense with service where the Court thinks it necessary or expedient so to do.”

This section follows closely on the terms of the original s. 121 of the Commonwealth Matrimonial Causes Act of 1959. That section was repealed on 1st February, 1966, at which time the power to dispense with service was vested in the Registrar under the new r. 64a of the Matrimonial Causes Rules made under that Act. Prior to that, such power did not lie with the Registrar. In this country the power is still vested in a Judge of this Court under s. 100 above referred to. The form of acknowledgement of service is form 11 in the First Schedule to the Matrimonial Causes Rules 1965. It follows the wording of the identically numbered form under the previous Australian legislation. In 1965, in Welch v. Welch[ccxxvii]³ it was held by Jeffriess J., in the Queensland Supreme Court, that an advice of delivery receipt signed by the respondent may be accepted by the Court instead of form 11 as proof of service. Under the Interpretation (Interim Provisions) Act 1975, s. 27(1) provides that where a form is contained in a provision, substantial compliance with that form is sufficient. I am therefore prepared to similarly find, in this matter, that the letter of 1st July, 1977, from the respondent is sufficient compliance with the furnishing of an acknowledgement of service (form 11).

Under s. 155(4) of the Constitution it is provided:

“Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, ... such other orders as are necessary to do justice in the circumstances of a particular case.”

I do not interpret this provision to mean that regulations and rules made under statutory authority can be ignored or disregarded. I do believe, however, that if one is satisfied that the purpose of the rule has been substantially fulfilled, this Court has an inherent discretion in the interest of the administration of justice to waive strict compliance with such rule. In the present case the purpose of the rule clearly is to furnish the respondent with a full copy of the divorce petition which has been filed against him and a copy of the notice of petition which sets out his rights under our Act. In this case I am quite satisfied that this has been done and the failure of the petitioner’s solicitor to enclose an envelope on which was written his name and address to enable the respondent to post back an acknowledgement of service is a matter of no consequence.

In the exercise of the discretion vested in me by s. 100(2) of the Matrimonial Causes Act 1963 and s. 155(4) of the Constitution I therefore hold that the petition and notice of proceedings in this matter have been properly served on the respondent and in the absence of evidence of the time of delivery in the usual course of post from Papua New Guinea to Indonesia, that such service be deemed to have been effected on the date of the respondent’s letter, namely 1st July, 1977, and I dispense with further service of such documents upon him.

Order accordingly.

Solicitors for the petitioner: Craig Kirke & Wright.