The National Court’s writ does not run automatically beyond Papua New Guinea. Order 6 Division 2 of the National Court Rules 1983 sets out when and how it may be sent abroad.
The structure of Division 2
Rule 19 — subject to Rule 20, originating process may be served outside Papua New Guinea where the proceeding falls within one of the listed categories.
Rule 20(1) — service outside Papua New Guinea is not valid under this Division unless the service is in accordance with prior leave, or the Court confirms it, or the person served waives objection by giving notice of an intention to defend.
Being within a Rule 19 category is not enough on its own; and leave will not be given for a proceeding outside those categories, because Rule 20(2)(a) requires the Court to be satisfied that the proceedings are proceedings to which Rule 19 applies.
See whether leave is needed for the Rule 20 procedure in detail.
Rule 19 — when foreign service is allowed
| Para | Category |
|---|---|
| (a) | Proceedings founded on a cause of action arising in Papua New Guinea |
| (b) | Founded on a breach in Papua New Guinea of a contract wherever made |
| (c) | Concerning a contract that is made in Papua New Guinea, made through an agent carrying on business or residing here, or governed by the law of Papua New Guinea |
| (d) | Founded on tort committed in Papua New Guinea |
| (e) | For damage suffered wholly or partly in Papua New Guinea caused by a tortious act or omission wherever occurring |
| (f) | For contribution or indemnity in respect of a liability enforceable by proceedings in the Court |
| (g) | The person to be served is domiciled or ordinarily resident in Papua New Guinea |
| (h) | The person to be served has submitted to the jurisdiction |
| (i) | Proceedings properly brought against a person served here, and the foreign person is properly joined |
| (j) | The subject matter is property in Papua New Guinea |
| (k) | Perpetuation of testimony relating to property here |
| (l), (m) | Construction or enforcement of an Act or instrument affecting property in Papua New Guinea; or of a deed, will, contract or obligation affecting such property |
| (n) | For an injunction as to anything to be done in Papua New Guinea, or against the doing of any act here |
| (o) | Administration of the estate of a person who dies domiciled in Papua New Guinea |
| (p) | Execution of trusts governed by the law of Papua New Guinea |
| (q) | Concerning membership of a corporation incorporated here, or an association formed or carrying on part of its affairs here |
| (r), (s) | Construction, effect or enforcement of an Act or instrument; or of an executive, ministerial or administrative act done under one |
| (t) | Brought by virtue of the Civil Aviation (Aircraft Operators’ Liability) Act 1975 |
| (u) | Related to an arbitration held in Papua New Guinea |
| (v) | Falling partly within one paragraph and partly within others |
Rule 20(5) — an easily missed step
Where the defendant is not within Papua New Guinea, notice of the writ in Form 12, and not the writ itself, shall be served on him.
This is a formal requirement and it is often overlooked. Prepare Form 12 — see the forms — and serve that. Rule 22(2) adds that notice of a writ should be served in the manner in which a writ of summons is served under the Rules.
Where the Court grants leave, it may specify a time to be inserted in the originating process or notice of it, within which the defendant served with it is to give notice of intention to defend.
Ask for a realistic period. The ordinary domestic period will rarely suit a defendant in another country. See time to respond to a writ.
Rules 22 and 23
22(1) — subject to this Division and subject to any convention, these Rules apply to service outside Papua New Guinea as they apply to service inside Papua New Guinea.
23 — a document to be served outside Papua New Guinea need not be served personally so long as it is served in accordance with the law of the country in which service is effected.
Personal service abroad may be impossible, or unlawful. Rule 23 substitutes the local law of the place of service. In practice that means engaging a lawyer or process server in that country and obtaining evidence of what their law requires and that it was complied with.
Order 6 Division 3 then supplies a formal channel — through a judicial authority or a Papua New Guinea consular authority in a convention country, or through the government of the country where it is willing to effect service. See how service abroad is actually effected.
Two ways to avoid the problem
Rule 11 — service under contract. Where the defendant has agreed, before or after commencement, that documents may be served in a manner or at a place whether in or outside Papua New Guinea, service in accordance with the agreement shall be sufficient service. No leave; no Form 12.
Rule 10 — service on a local agent. Where a contract was entered into in Papua New Guinea with or through an agent resident or carrying on business here, for a principal who was and is abroad, and the agent’s authority subsists or they remain in business relations with the principal, the Court may authorise service on the agent instead of the principal. The application may be ex parte on affidavit; the order shall limit a time for the notice of intention to defend; and a copy of the order and writ shall be sent by prepaid post to the defendant at his address out of Papua New Guinea.
An originating process is valid for service for two years, and Order 4 Rule 13(2) forbids any extension. Foreign service takes time — leave, translation, transmission through official channels. Start early.
Sources
- National Court Rules 1983 — O 4 r 13; O 6 rr 10, 11, 19–23, Div 3
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.