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O'Connor v Popondetta Engineering and Transport Co Pty Ltd [1967-68] PNGLR 363 (30 July 1968)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 363 - O'Connor v Popondetta Engineering and Transport Co. Pty. Ltd.

[1967-68] PNGLR 363

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

O’CONNOR

V.

POPONDETTA ENGINEERING AND TRANSPORT CO. PTY. LTD.

Port Moresby

Frost J

2-3 July 1968

22 July 1968

30 July 1968

PRACTICE - District Court - Service of summons on company by Post - Ordinary course of post - District Courts Ordinance 1963-1965, ss. 55, 131 - Companies Ordinance 1963-1966, s. 362 - Ordinances Interpretation Ordinance 1949-1966, s. 7 - Postal (Papua) Regulations 1959-1966, regs. 134, 135.

Proof that a letter containing a summons against a company was sent by pre-paid post addressed to the company’s registered office in the Territory does not constitute proof of due service on the company a reasonable time before the return date pursuant to s. 131 of the District Courts Ordinance 1963-1965.

Kelly v. The Queen’s Birthday United Gold Mines Co. Ltd. [1895] VicLawRp 31; (1895), 21 V.L.R. 335; Moody v. Godstone Rural District Council, [1966] 1 W.L.R. 1085; Crossbee & Sons v. Bechtel [1908] WALawRp 23; (1908), 10 W.A.L.R. 72, and Lewis v. Evans (1874), 10 L.R.C.P. 297, 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 1963-1965 against an order of the District Court at Port Moresby on 8th February, 1968, directing that an information laid against the respondent should be struck out for want of proper service. On 10th October, 1967, an information was laid by the appellant against the respondent company for failing to lodge an annual return as required by the Companies Ordinance 1963-1966, s. 158(4). A summons was issued returnable on 18th October, 1967, and there being no appearance by the defendant, was adjourned. On 19th December, 1967, when there was again no appearance by the defendant, counsel appeared for the appellant, and called the appellant to give evidence as to service. He deposed that on 12th October, 1967, he sent by pre-paid post a letter containing the summons addressed to the defendant at Room 1, First Floor, Granville House, Cuthbertson Street, Port Moresby, which was its registered office. Later on 31st October he completed a proof of service on the back of the summons, pursuant to the District Courts Ordinance 1963-1965, s. 55(2). However the matter was not disposed of until 8th February, 1968, when the learned stipendiary magistrate ordered that the summons be struck out on the ground that there was no proof of due service on the defendant a reasonable time before the return date pursuant to s. 131 of the District Courts Ordinance 1963-1965.

This appeal raises a question of some importance in the Territory as it involves the mode of service on companies generally. The only provisions for service contained in the District Courts Ordinance 1963-1965 are s. 55, and also s. 56 which provides for substituted service. Section 55 is as follows:

“(1)    A summons shall be served, at least seventy-two hours before the time appointed in the summons for the hearing there of, 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 six teen 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 subsections 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.”

Under s. 131 provision is made as follows for ex parte hearing in the absence of the defendant:

“If, at the time and place appointed by a summons for hearing and determining an information of a simple offence, the defendant does not appear when called, and proof is made to the court upon oath, or by deposition made as prescribed by Section 55 of this Ordinance, of due service of the summons upon the defendant a reasonable time before the time appointed for his appearance, the court may either:

(a)      proceed ex parte to hear and determine the case in the absence of the defendant; or

(b)      upon oath being made before it, substantiating the matter of the information to its satisfaction, issue its warrant for the arrest of the defendant to bring him before a court to answer to the information and to be further dealt with according to law.”

Mr. Gajewicz’s submissions which he had made to the learned stipendiary magistrate, were that s. 55 was applicable only to natural persons, and that service in this case had been properly effected under the Companies Ordinance 1963-1966, s. 362. That section is in the following terms:

“In addition to any other method of service provided for by or under this Ordinance or any other law in force in the Territory or a part of the Territory, a document may be served on a company by leaving it at or sending it by post to the registered office of the company.”

That section has to be read with the Ordinances Interpretation Ordinance 1949-1966, s. 7, which provides:

“Where an Ordinance authorizes or requires a document to be served by post, whether the expression ‘serve’ or the expression ‘give’ or ‘send’ or any other expression is used, then unless the contrary intention appears, the service shall be deemed to be effected by properly addressing, pre-paying (except where under a law of the Territory the document may be sent by post free of charge), and posting the document as a letter, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

His argument was that upon proof of posting the document as a properly addressed pre-paid letter, that was conclusive evidence of service, and that in the ordinary course of post the letter would have been delivered within a reasonable time before the return day. The learned stipendiary magistrate, however, had regard to the fact the Post Office in the Territory does not provide any delivery of postal articles. Letters are sorted and delivered into locked private boxes which may be rented, but otherwise postal articles must be called for by the addressee at the nearest Post Office. He accordingly held that he could not be satisfied that the letter had been delivered in the ordinary course of post within a reasonable time before the return day. Indeed he was inclined to the view that in the Territory the requirements of service by post within the meaning of s. 7 (supra) can never be met.

In this Court Mr. Gajewicz submitted that when in 1949 the legislature enacted the Ordinances Interpretation Ordinance 1949-1966, s. 7, it must have had regard to the state of the postal services, so that in s. 7 delivery should be understood to mean delivery of a postal article at the Post Office to be called for by the addressee. I pause here to point out that the Ordinances repealed in 1949 had both contained provisions to the same effect as s. 7 (supra) (see Ordinances Interpretation Ordinance 1911-1940 of Papua, and Ordinances Interpretation Ordinance 1934-1941 of New Guinea). He submitted that I was entitled to take into account that in the ordinary course of business the defendant (the registered office of which was only a short distance from the Port Moresby Post Office) would have collected its mail on the day after it was posted, and that in accepting incorporation under the Companies Ordinance 1963-1966 the defendant must have submitted to the provision of s. 362 as interpreted in accordance with the state of the postal services within the Territory. He then went on to refer me to various Postal Regulations, to which I shall return shortly.

Although the respondent was served with the notice of appeal by having a copy left at the registered office, there was no appearance by the respondent.

At the outset I propose to refer to one matter which was referred to by the learned stipendiary magistrate. Section 55 which, as I have said, is the only provision in the District Courts Ordinance 1963-1965 for service plainly refers to natural persons only. But this provision cannot confine the jurisdiction of the District Court to natural persons only; (see Kelly v. The Queen’s Birthday United Gold Mines Co. Ltd.[cdlxiv]¹, which was a decision under the Victorian Justices Act 1890, which contained a similar provision as to service dealing only with natural persons, to the effect that a corporation not incorporated under the Companies Acts could properly be served in accordance with the general law). Accordingly in the case of proceedings against companies incorporated under the Companies Ordinance 1963-1966 it is necessary to go to s. 362 which makes special provision for service on such companies. The term, “documents”, which may be served in accordance with that section, includes a summons. Companies Ordinance 1963-1966, s. 5(1).

The question is as to the meaning of the words “sending by post to the registered office of the company”. As this section authorizes a document to be served by post, s. 7 (supra) of the Ordinances Interpretation Ordinance 1949-1966 is brought into operation, there being no expression to the contrary in s. 362 of the Companies Ordinance 1963-1966. Section 7 of the Ordinances Interpretation Ordinance 1949-1966 is in similar terms to s. 26 of the English Interpretation Act 1889, which has recently been considered by the Court of Appeal in Moody v. Godstone Rural District Council[cdlxv]², to which Mr. Gajewicz referred. In that case it was held that the English section is in two parts, the first part providing that the despatch of a document in the manner laid down is deemed to be service thereof, and the second part providing that unless the contrary is proved, service is effected at the time at which the letter would be delivered in the ordinary course of post. But the second part only comes into play in a case where the relevant legislation requires the document to be received by a certain time. “Receipt ... in that type of case is an essential element”[cdlxvi]³. The second part does not apply to the service of documents which are not required to be served by or at any particular date. In the latter class of document, the despatch of the document in the manner prescribed is sufficient in itself to prove service upon the defendant. However pursuant to s. 131 of the District Courts Ordinance 1963-1965, the summons in this case had to be served within a reasonable time before the return day, so that the second part of s. 7 was applicable. There being no evidence as to the actual receipt of the letter, it was thus necessary for the informant to prove that the time at which the letter would be delivered in the ordinary course of post would be within a reasonable time before the return date of the summons. Evidence of what is the ordinary course of post may be required: Crossbee & Sons v. Bechtel[cdlxvii]⁴.

The treatment of mail matter by the Postal Department is provided for in the Postal (Papua) Regulations 1959-1966, regs. 134 and 135 which were not cited in the District Court:

“134(1)         Subject to the provisions of this regulation, an unregistered postal article, other than a parcel, shall be delivered to:

(a)      the addressee;

(b)      in the absence of instructions in writing to the contrary, a responsible member of the addressee’s household;

(c)      upon production of a power of attorney, the person named therein; or

(d)      a person authorized in writing by the addressee to receive it.

(2)      In the case of a postal article delivered by postman, delivery shall be made by depositing the article in a suitable receptacle or letter-box provided at the address for the purpose.

(3)      ....

(4)      ....

(5)      In the case of a postal article addressed to a person, firm, company, institution, or other body renting a private box at a post office, or directed to a private box, the depositing of the article in the private box shall be deemed to be delivery to the addressee.

135(1) The privilege of having correspondence delivered at a post office is restricted to:

(a)      visitors and tourists;

(b)      private box holders;

(c)      persons who do not reside within the area of a delivery by postman; and

(d)      others who in the opinion of the Postmaster cannot for good and sufficient reasons conveniently receive their correspondence by postman or through a private box.

(2)      The persons referred to in the last preceding subregulation, other than private box holders or persons who reside beyond the limits of a delivery by postman, are not, except as provided in the next subregulation, entitled for a longer period 1968 than six months to have correspondence delivered at a post office or addressed to a post office to be called for.”

Now as the fact is that there is no delivery by postmen in the Territory, the only two methods of delivery of mail are by the depositing of a postal article in a private box, and delivery at a post office. In the former case, unless the contrary is proved, service is deemed to have been effected at the time when in the ordinary course of post the article is deposited in the private box (reg. 134(5) (supra)). It is in the present class of case in which the postal article is delivered at a post office to be called for that the difficulty arises. The only case I have seen bearing on the point is Lewis v. Evans[cdlxviii]⁵ the headnote of which reads:

“The place of abode of a county voter as described in the list of voters was Wern. To prove service of a notice of objection the duplicate addressed to the voter at Wern was produced, and it was proved that the notice had been posted in time to reach Efarlwen, which is the nearest post-town to Wern, on the morning of 19th August, by the ordinary course of post; but Wern was two miles distant from Efarlwen, and there was no delivery of letters at Wern, and, unless by some private accidental conveyance, the voter would not receive the notice:

Held, that the above was no evidence, under 6 Vict. c. 18, s. 100, of the notice having been given to the voter at Wern, in the ordinary course of post, on or before the 20th of August.”

Mr. Gajewicz sought to distinguish that case on the facts. In the present case the letter was posted at the Port Moresby Post Office on 12th October, 1967, and, as deposed to by Mr. Carter, the Director of Posts and Telegraphs in an affidavit filed in this Court, would have been available for the defendant, at the same post office on or about the following day. Further in giving judgment, Brett J. said, “There is no delivery at Wern and there is no evidence that anyone goes to the post-town to receive letters for Wern”, which Mr. Gajewicz submitted, indicates that the decision would have gone the other way if there was evidence that the letters were taken to Wern.

However, I do not derive assistance from this case. I have given careful consideration to Mr. Gajewicz’s forceful argument that “delivery” must be interpreted having regard to the practice of residents and business men making regular calls to the Post Office for mail. But how frequently does regularly mean, would it convey the same meaning in each case? Further the plain and ordinary meaning of the language used by the legislature must prevail. In my opinion, the words “in the ordinary course of post” in s. 7 are crucial. The point of time to which the section is directed is delivery to the addressee in the ordinary course of post, that is, by reason of some action taken by the Postal Department. Delivery will be effected by handing the letters at the Post Office to the addressee or one of the other persons mentioned in reg. 134(1), but the time at which the delivery is made is not determined in the ordinary course of post; it depends on the extraneous circumstance of the addressee calling for the letter. Delivery does not take place in the ordinary course of post because after the letter is delivered at the Post Office to be called for no ordinary course of post exists to determine the time of delivery.

Accordingly in the present case the appellant could not invoke the second part of s. 7 of the Ordinances Interpretation Ordinance 1949-1966 to prove due service a reasonable time before the return day of the summons. No evidence was called as to the time or receipt of the summons by the defendant, or from which the receipt of the summons within such a period could be inferred, especially in view of the brief period between the posting on 12th October, 1967, and the return day, 16th October, 1967, with a weekend intervening. No use could be made by the appellant of the Dead Letter Office provisions Postal (Papua) Regulations 1959-1966, reg. 158.

Accordingly the summons was properly struck out for want of proof of service, and the appeal must be dismissed.

I appreciate that this decision may well cause difficulty in the proof of service of documents by post, but the remedy is in the hands of the legislature, if thought fit, in enacting appropriate amending legislation.

Appeal dismissed.

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

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

[cdlxv][1966] 1 W.L.R. 1085.

[cdlxvi][1966] 1 W.L.R., at p. 1093, per James J.

[cdlxvii](1908) 10 W.A.L.R. 72.

[cdlxviii][1874] UKLawRpCP 80; (1874) L.R. 10 C.P. 297.