Litigation elsewhere sometimes needs a document served on someone in Papua New Guinea. Order 6 Division 4 of the National Court Rules 1983 — headed Service in Papua New Guinea of External Process — is the mirror image of Division 3.
Rule 32
This Division applies to the service in Papua New Guinea of any document required in connection with civil proceedings pending before a court or other tribunal in a place outside Papua New Guinea, where a letter of request from the court or tribunal is received by the Registrar — whether pursuant to a convention which has been extended to Papua New Guinea or otherwise from a proper authority.
Civil proceedings — the Division does not deal with criminal matters. Cooperation in criminal cases runs through separate legislation on mutual assistance and extradition.
Pending before a court or tribunal outside Papua New Guinea — not a private demand or a foreign lawyer’s letter.
A letter of request received by the Registrar, from a convention country or otherwise from a proper authority. So a request from a non-convention country is within the Division too, provided it comes from a proper authority.
Rule 33
There must be delivered to the Registrar, unless he otherwise directs —
(a) the document to be served and two copies of it; and
(b) the letter of request and a copy of it; and
(c) if the document or the letter of request is not in English, a translation in English of it, and a copy of the translation.
(2) Instead of translated copies of the document, it shall be sufficient if each copy is endorsed with an annotation in the English language, stating as precisely as possible the name and address of the person on whom the document is to be served, the nature of the document, and the names of the parties.
(3) Where the document is annotated in that way, it shall not be necessary to leave with the person served a translated copy.
Rule 34
(1) The Registrar shall request the Sheriff or some other person to serve the document.
(2) Subject to the provisions of the convention (if any), the document may be served in any manner in which originating process in proceedings in the Court may be served, including substituted service pursuant to Rule 13.
(3) Court fees shall not be charged for the service, but the fees payable to the Sheriff shall be the same as those payable for the service of similar documents issued out of the Court.
(4) Particulars of the charges of the person or agent who effects service shall be submitted to the Registrar, who shall certify the amount properly payable.
(5) The Court may make all such orders for substituted service or otherwise as are necessary to give effect to this Division.
(6) Proceedings for an order for substituted service shall be commenced by the State Solicitor by originating summons, and the summons shall not join any person as a defendant.
An originating summons with no defendant at all, brought by the State Solicitor — not by the foreign litigant, and not by a private lawyer here. This is because the request is being processed on the authority of the State, not as a party’s own application.
“State Solicitor” is defined in Order 1 Rule 6 as the State Solicitor for Papua New Guinea. Note that it is a different office from the Solicitor-General, who is the officer on whom process against the State is served under section 7 of the Claims By and Against the State Act 1996.
Note also the cross-reference in sub-rule (2) to Rule 13 — confirmation of informal service — which allows the Court to deem a document served where steps having a tendency to bring it to the notice of the person have been taken.
Rules 35 and 36
After the document has been served, or attempts to serve have failed, the process server shall file an affidavit made by the person who served or attempted to serve, stating when, where and how he did so and the costs incurred.
| Request | What the Registrar certifies |
|---|---|
| Pursuant to a convention — r 36(1) | That the document was served on the person, at the time, and in the manner specified — or the failure and the reasons for it — and the amount of the costs incurred; or such other certificate as suits the letter of request |
| Not pursuant to a convention — r 36(2) | A certificate annexing the letter of request, the document, any translation and the Rule 35 affidavit, identifying the annexures, and certifying that the manner of service and the proof of service are such as are required by the rules regulating service of originating process in Papua New Guinea — or the failure and its reasons — and the costs |
The certificate shall be sealed with the seal of the Court, and the Registrar shall send it to the Secretary for Justice — or, if the letter of request or the relevant convention so requires, to the appropriate consul or other authority.
Rule 37 — the Division is not exclusive
This Division shall not prevent the service of external process otherwise than in accordance with these Rules.
A foreign litigant may instruct a lawyer or process server in Papua New Guinea to serve directly, without a letter of request. That is not prohibited here.
Whether such service is effective for the foreign proceeding is a question for the foreign court and its own rules. The advantage of Division 4 is precisely that it produces the Registrar’s sealed certificate, which the foreign court will ordinarily accept as proof.
If you are served in Papua New Guinea with a foreign court document, take advice promptly. Time limits under the foreign court’s rules will be running, and they will not be the Papua New Guinea periods. Nothing in Division 4 makes the foreign court’s orders enforceable here — that is a separate question of the recognition and enforcement of foreign judgments.
Sources
- National Court Rules 1983 — O 1 r 6; O 6 rr 13, 18, 32–37, Div 3
- Claims By and Against the State Act 1996 — s 7
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. 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.