Having obtained leave under Rule 20, the plaintiff must actually get the document to a defendant in another country. Order 6 Division 3 of the National Court Rules 1983 provides an official channel.
Rule 24
(1) This Division applies to the service outside Papua New Guinea of a document for the purpose of proceedings in the Court.
(2) This Division shall not affect the operation of Division 2.
(3) It does not apply to, or render invalid or insufficient, a mode of service in a convention country which is otherwise valid and sufficient according to the procedure of the Court and which is not expressly excluded by that convention.
Sub-rule (3), read with Rule 23 — a document served abroad need not be served personally so long as it is served in accordance with the law of the country in which service is effected — means a plaintiff may often instruct a lawyer or process server in the foreign country directly.
The official channel matters where the foreign country insists on it, where private service is unlawful there, or where the plaintiff wants the conclusive proof that Rule 30 provides.
Rule 25
| Situation | Permitted channels |
|---|---|
| A convention subsists with that country | Through a judicial authority of that country; or through a Papua New Guinea consular authority in that country |
| No convention | Through the government of that country, where that government is willing to effect service; or through a Papua New Guinea consular authority in that country, unless service through such an authority is contrary to the law of that country |
Order 1 Rule 6 defines “convention country” as a foreign country to which a convention in that behalf extends. Whether a convention applies to a particular country is a matter to check with the Registrar and the Department of Justice and Attorney-General before lodging.
Rules 26 and 27
- The document to be served;
- Unless English is an official language of the country concerned, a translation in accordance with Rule 27;
- A copy of the document and of the translation for each person to be served;
- Such further copies as the Registrar may direct or the convention may require;
- If a special manner of service is required, a request for service in that manner — with a translation of the request unless English is an official language there.
And the applicant files a copy of each of those documents, together with a request and undertaking in accordance with Rule 28.
A translation shall —
(a) be a translation into an official language of the country in which service is required; and
(b) bear a certificate, in that language, of the translator, stating his full name, address and qualifications for making the translation, and certifying that it is a translation of the document.
Not in English. This is a specific requirement of Rule 27(b) and a common reason for documents being returned. Engage a translator who can supply the certificate in the required form, and check that the language chosen is an official language of the country.
Rule 28 — and the costs
(1) The request and undertaking shall contain —
(a) a request by the applicant to the Registrar that a sealed copy of the document be transmitted to the country concerned for service on a specified person;
(b) if service is required pursuant to a convention, a reference to the convention; and
(c) an undertaking by the applicant or his solicitor to pay to the Registrar an amount equal to the sum of all expenses incurred in consequence of the request.
(2) It shall be in Form 13 or 14, as the case requires.
(3) The request shall state the medium — whether directly through the Papua New Guinea Consul or through a foreign judicial authority.
Rule 31 — where a person who has given an undertaking does not, within seven days after service of an account of expenses, pay the Registrar, the Court may, on application by the Registrar, order the applicant to pay and stay the proceedings until payment.
A stay of your own proceeding for unpaid service expenses is an avoidable embarrassment. Where a solicitor gives the undertaking, it binds the solicitor personally. See the prescribed forms.
Rule 29
Where documents are filed and lodged under Rule 26, the Registrar shall seal the documents lodged with the seal of the Court and shall send them to the Secretary for Justice for transmission for service, together with such letter of request (if any) as may be necessary.
Rule 30
(1) Where a certificate purporting to be a certificate of a judicial authority or other responsible person in the country concerned, or of a Papua New Guinea consular authority, as to service or attempted service or non-service is filed, the certificate shall be sufficient proof of the matters stated in it.
(4) Where an official certificate of service is produced, an endorsement of service is not required.
Rule 30(2) — where an official certificate certifies that efforts to serve have been without effect, the Court may, on the ex parte application of the plaintiff, order that the plaintiff may make a request for substituted service.
Rule 30(3) — that request, the document, and a copy of the document and of the order are sealed and transmitted to the Secretary for Justice in the same way.
So the concept of substituted service reaches abroad as well — but through the official channel, not by a domestic Rule 12 order alone.
Begin with the Registry. Ask what the Registrar requires for the country in question and how many copies are wanted — Rule 26(a)(iv) expressly contemplates the Registrar directing further copies. Budget for translation and foreign fees, and remember Rule 21: each later document served abroad also needs leave or confirmation.
On documents coming into Papua New Guinea from a foreign court, see service of external process under Division 4.
Sources
- National Court Rules 1983 — O 1 r 6; O 4 r 13; O 6 rr 20–31, Div 4
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.