Order 6 Rule 20 of the National Court Rules 1983 is the control on foreign service. It is short, and it repays close reading.
Rule 20(1) — the only ways service abroad is valid
Service outside Papua New Guinea of originating process is not valid under this Division unless —
(a) the service is in accordance with the prior leave of the Court given under sub-rule (2); or
(b) the Court confirms the service under sub-rule (7); or
(c) the person served waives objection by giving notice of an intention to defend.
A defendant abroad who files a notice of intention to defend waives objection to the service. That fits Rule 2(3), under which the originating process is then taken to have been served personally on the filing date.
The corollary matters for defendants: a foreign defendant who wants to challenge jurisdiction or service should take advice before filing anything. See challenging jurisdiction.
Rule 20(2) — the test
Where the Court is satisfied —
(a) that the proceedings are proceedings to which Rule 19 applies; and
(b) that the applicant has a prima facie case for the relief he seeks,
the Court may, by order, grant leave to serve originating process outside Papua New Guinea.
The Court shall not grant leave to serve originating process, or notice of it, out of Papua New Guinea unless the Court is satisfied that the case is a proper one for service out of Papua New Guinea under this Order.
“A proper one” imports a discretionary judgment beyond mere category-matching. Leave is not granted as of course. Show the connection with Papua New Guinea, and show that this Court is a sensible forum for the dispute.
Not proof, and not a trial of the merits. The Court is looking for a case that, on the material filed, would entitle the plaintiff to the relief sought if the facts deposed to were accepted. A bare assertion of a claim is not enough; the affidavit should set out the facts giving rise to the cause of action.
Rule 20(3)
Every application for leave, or notice of it, shall be supported by affidavit or other evidence —
(a) stating that, in the belief of the deponent, the plaintiff has a good cause of action; and
(b) showing in what place or country the defendant is, or probably may be found; and
(c) stating the grounds on which the application is made.
The affidavit must actually say that in the deponent’s belief the plaintiff has a good cause of action. It is a formal requirement and its omission is a real defect.
Paragraph (b) requires more than “the defendant is overseas”. Name the country, and the address if known; if not known, depose to where they probably may be found and on what basis.
Paragraph (c) is where you identify the Rule 19 paragraph relied on and the facts that bring the case within it — that the contract was made in Papua New Guinea, that the damage was suffered here, that the property is here.
- The prima facie case under sub-rule (2)(b), with the facts, not just the conclusion.
- How service will be effected — under the Division 3 procedure, or in accordance with the local law under Rule 23.
- The time to be inserted for the notice of intention to defend, which sub-rule (6) allows the Court to specify.
- Translation, if English is not an official language of the country — Division 3 requires it.
Rule 20(7) — if you served first
Where originating process has been served outside Papua New Guinea without a prior motion for leave, and the Court is satisfied —
(a) on the matters mentioned in sub-rule (2) — that is, Rule 19 applies and there is a prima facie case; and
(b) that the failure to apply for leave is sufficiently explained,
the Court may, on terms, by order confirm the service.
Confirmation requires the failure to be sufficiently explained. “We did not know about Rule 20” is a poor explanation. And the words “on terms” mean the plaintiff will usually bear the costs of the application.
Sub-rule (7) exists to save a proceeding, not to provide a shortcut. Seek leave first.
Rule 21
Service outside Papua New Guinea of a document other than originating process is valid if the service is in accordance with the prior leave of the Court or is confirmed by the Court.
Having obtained leave for the writ, parties sometimes assume everything afterwards may simply be posted abroad. Rule 21 says otherwise: each document served outside Papua New Guinea needs leave or confirmation.
The practical answer is to ask, when leave is granted for the originating process, for liberty to serve further documents in the proceedings in the same manner. Where the foreign defendant appears through Papua New Guinea lawyers, the problem disappears — they will have an address for service within 15 km of the Registry under Order 6 Rule 7, and ordinary service applies.
Apply by notice of motion, ordinarily ex parte under Order 4 Rule 38, citing Order 6 Rule 20 as the jurisdiction. Remember that the writ is valid for service for only two years and that period cannot be extended — foreign service consumes time, so apply as soon as the proceeding is filed.
Sources
- National Court Rules 1983 — O 4 rr 13, 38; O 6 rr 2, 7, 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.