ORDER 6.-SERVICE OF DOCUMENTS.
Division 1.-Service Generally.
1. Mode of service. (9/1)
Any document required or permitted to be served in any proceedings may be served personally, but need not be served personally unless personal service is required by these Rules or by order of the Court.
2. Originating process. (9/2)
(1) Subject to any Act, and to these Rules, originating process shall be served personally on each defendant.
(2) The copy for service shall be signed and sealed as specified in Order 4 Rule 12.
(3) Where a defendant to any originating process serves a notice of intention to defend under Order 7, the originating process shall be taken to have been served on him personally on the date on which that notice is filed or on such earlier date as may be proved.
3. Personal service: How effected. (9/3)
(1) Personal service of a document may be effected by leaving a copy of the document with the person to be served or, if he does not accept the copy, by putting the copy down in his presence and telling him the nature of the document.
(2) Personal service of a document on a corporation maybe effected by serving the document in accordance with Sub-rule (1) on the mayor, chairman or president of the corporation, or on the town clerk, clerk, secretary, treasurer or other similar officer of the corporation.
(3) Sub-rule (2) applies in addition to any provision for service on a corporation made by or under any Act.
4. Ordinary service: How effected. (9/4)
(1) Where personal service of a document is not required, the document may be served -
(a) by leaving a copy of the document at the proper address of the person to be served between the hours of 9 a.m and 5 p.m on any day on which the Registry is open; or
(b) by sending a copy of the document by pre-paid post addressed to the person to be served at his proper address.
(2) For the purpose of Sub-rule (1), the proper address of a person shall be the address for service of that person in the proceedings but if, at the time when the copy is left or posted pursuant to that Sub-rule, he has no address for service in the proceedings, his usual or last known place of business or of abode shall be his proper address.
(3) Where service of a document is made by pre-paid post under this Rule, service of the document shall, unless the contrary is proved, be deemed to have been effected at the time at which the document would be delivered in the ordinary course of post.
5. Identity. (9/4A)
For the purpose of the proof of service, evidence of a statement by a person of his identity or that he holds some office is evidence of his identity or that he holds that office as the case may be.
6. Possession of land. (9/5)
(1) Where in proceedings for possession of land, the Court is satisfied -
(a) that it appears that no person is in possession of the land; and
(b) that there is a defendant on whom the originating process cannot, apart from this Rule, be served without undue delay or expense,
the Court may authorize service of the originating process on that defendant by affixing a copy of the originating process to a conspicuous part of the land.
(2) Where, in proceedings for possession of land, the Court is satisfied -
(a) that a copy of the originating process has been affixed to a conspicuous part of the land; and
(b) that at the time when the copy was so affixed it appeared that no person was in possession of the land; and
(c) that there is a defendant on whom the originating process could not, apart from this Rule, be served without undue delay or expense,
the Court may order that the affixing of the copy have effect as service on that defendant.
(3) A party may apply for an order under this Rule without filing or serving a notice of the motion.
(4) This Rule has effect notwithstanding that the defendant is outside Papua New Guinea at the time of affixing the copy of the originating process.
7. Address for service. (9/6)
(1) An address for service shall be the address, of a place within 15 km of the Registry, at which documents in the proceedings may, during ordinary business hours, be left for the person whose address for service it is and to which documents in the proceedings may be posted for that person.
(2) The address for service of a person represented by a solicitor shall be the office of the solicitor or of his Papua New Guinea agent, but in the case of a solicitor who has requested and been allocated by the Registrar a compartment in the Document Exchange Box located within the Registry then a deposit of a document in such compartment shall amount to ordinary service within the meaning of this Sub-rule.
(3) A person may change his address for service by filing a notice of the change showing his new address for service.
(4) A person who files a notice of a change of his address for service shall, on the date of filing, serve the notice on each party to the proceedings.
8. Acceptance by solicitor. (9/7)
(1) This Rule applies to -
(a) any originating process; and
(b) any document required or permitted to be served in any proceedings, but not required to be served personally.
(2) Where a solicitor makes on a copy of a document to which this Rule applies a notice that he accepts service of the document on behalf of any person, the document shall be taken to have been duly served on that person on the date on which the solicitor makes the note or on such earlier date of service as may be proved.
9. Service on solicitor in court below. (9/8)
(1) This Rule applies where -
(a) a decision is given or a stated case is stated in proceedings in any court other than the National Court; and
(b) on the date on which the decision is given or the stated case is stated a party to the proceedings below has a solicitor and an address for service for the purposes of the proceedings below; and
(c) that address for service is a place within 15 km of the Registry and is the office of the solicitor or his agent; and
(d) proceedings are commenced in the Court -
(i) instituting an appeal from the decision in the proceedings below; or
(ii) for an extension of time for instituting an appeal from that decision,
or proceedings on the stated case are commenced in the Court; and
(e) that party to the proceedings below is a defendant in the proceedings in the Court; and
(f) the plaintiff in the proceedings in the Court has not, before the date on which those proceedings are commenced, received notice that that solicitor has ceased to act for that defendant or that that address for service has ceased to be applicable.
(2) In a case to which this Rule applies -
(a) the plaintiff in the proceedings in the Court shall file and serve with the originating process a statement showing, in respect of the defendant mentioned in Sub-rule (1), the name of his solicitor and his address for service for the purposes of the proceedings below; and
(b) the solicitor shown in the statement shall be the solicitor for that defendant for the purposes of the proceedings in the Court, subject to change under Order 2, Division 5; and
(c) the address for service shown in the statement shall be the address for service of that defendant for the purposes of the proceedings in the Court, subject to change under Rule 7; and
(d) the originating process need not be served personally on that defendant, unless the Court otherwise orders.
(3) The statement required by Sub-rule (2) may be subscribed to the originating process.
(4) Where there are two or more defendants to whom Sub-rule (1) applies, the matters mentioned in Sub-rule (2)(a) shall be put in a single statement for all of them.
10. Service on agent of principal out of Papua New Guinea.
(1) Where the Court is satisfied that -
(a) a contract has been entered into within Papua New Guinea with or through an agent who is either a natural person residing or carrying on business within Papua New Guinea or a corporation having a registered office or place of business within Papua New Guinea; and
(b) the principal for whom the agent was acting was at the time the contract was entered into and is at the time of the application neither such a natural person nor such a corporation; and
(c) at the time of the application either the agent's authority has not been determined or he is still in business relations with the principal,
the Court may authorize service of a writ of summons commencing an action relating to the contract to be effected on the agent instead of the principal.
(2) An order under this Rule authorizing service of a writ of summons on an agent shall limit a time for the notice of intention to defend of the defendant.
(3) An application under this Rule may be made ex parte supported by an affidavit stating the facts on which the application is founded.
(4) Where an order is made under this Rule authorizing service of a writ of summons on an agent, a copy of the order, the writ and the endorsements on it shall be sent by prepaid post to the defendant at his address out of Papua New Guinea.
11. Service under contract. (9/9)
Where a defendant in any proceedings has, before or after the commencement of the proceedings, agreed that originating process or any other document in the proceedings may be served on the defendant or on some other person on behalf of the defendant in a manner or at a place (whether in or outside Papua New Guinea) specified in the agreement, service in accordance with the agreement shall be sufficient service on the defendant.
12. Substituted service. (9/10)
(1) Where the service of any document is required or permitted in any proceedings and it is impracticable for any reason to serve the document or to serve the document in the manner required by or under any Act or by these Rules, the Court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person to be served.
(2) Every application to the Court for an order for substituted or other service, or for the substitution of notice for service, shall be supported by an affidavit setting forth the grounds on which the application is made.
(3) Where the Court makes an order under Sub-rule (1), the Court may order that the document be taken to have been served on the happening of any specified event, or on the expiry of any specified time.
13. Informal service: Confirmation. (9/11)
Where the service of any document on any person is required or permitted in any proceedings and it is impracticable for any reason to serve the document or to serve the document in the manner required by or under any Act or by these Rules, but steps for the purpose of bringing, or having a tendency to bring, the document to the notice of that person have been taken, the Court may, by order, direct that the document be taken to have been served on that person on a date specified in the order.
14. Service by filing. (9/12)
Where the service of any document on any person is required or permitted in any proceedings, but personal service is not required, and that person is in default of giving a notice of intention to defend, or has given such a notice but has no address for service in the proceedings, the filing of the document shall, unless the Court otherwise orders, have effect as service of the document on that person.
15. Husband and wife. (9/13)
Subject to these Rules, where husband and wife are parties to proceedings, service on the husband shall not have effect as against the wife.
16. Notice etc. by the Court. (9/14)
Where, under these Rules or under any order, any notice or other document is to be given to or served on any party by the Court or any officer of the Court, the notice or document shall, unless these Rules otherwise provide or the Court otherwise orders, be sufficiently given or served if served in any manner in which a document not requiring personal service may be served under this Division.
17. Injunction: Service. (9/15)
Where the Court grants an interlocutory injunction, the party may serve notice of the injunction, if desired, by telegram or letter signed by or on behalf of the Registrar.
18. Affidavit of service.
An affidavit of service of a document shall state by whom the document was served, the day of the week and the date on which it was served and the manner of service.
Division 2.-Service Outside Papua New Guinea.
19. Cases for service of originating process. (10/1)
Subject to Rule 20, originating process may be served outside Papua New Guinea where -
(a) the proceedings are founded on a cause of action arising in\ Papua New Guinea; or
(b) the proceedings are founded on a breach in Papua New Guinea of a contract wherever made, whether or not the breach is preceded or accompanied by a breach wherever occurring that renders impossible the performance of any part of the contract which ought to be performed in Papua New Guinea; or
(c) the proceedings are for the enforcement, rescission, dissolution, rectification or annulment of a contract, or otherwise affect a contract, or are for damages or other relief in respect of the breach of a contract, and the contract -
(i) is made in Papua New Guinea; or
(ii) is made on behalf of the person to be served by or through an agent carrying on business or residing in Papua New Guinea; or
(iii) is governed by the law of Papua New Guinea; or
(d) the proceedings are founded on tort committed in Papua New Guinea; or
(e) the proceedings are founded on, or are for the recovery of, damage suffered wholly or partly in Papua New Guinea caused by a tortious act or omission wherever occurring; or
(f) the proceedings are for contribution or indemnity in respect of a liability enforceable by proceedings in the Court; or
(g) the person to be served is domiciled or ordinarily resident in Papua New Guinea; or
(h) the proceedings are proceedings in respect of which the person to be served has submitted to the jurisdiction of the Court; or
(i) the proceedings are properly brought against a person served or to be served in Papua New Guinea and the person to be served outside Papua New Guinea is properly joined as a party to the proceedings; or
(j) the subject matter of the proceedings so far as concerns the person to be served, is property in Papua New Guinea; or
(k) the proceedings are for the perpetuation of testimony relating to property in Papua New Guinea; or
(l) the proceedings concern the construction, effect or enforcement of an Act, or a regulation or other instrument having or purporting to have effect under an Act affecting property in Papua New Guinea; or
(m) the proceedings are for the construction, rectification, setting aside or enforcement of a deed, will or other instrument, or of a contract, obligation or liability, affecting property in Papua New Guinea; or
(n) the proceedings are for an injunction as to anything to be done in Papua New Guinea or against the doing of any act in Papua New Guinea whether damages are also sought or not; or
(o) the proceedings are for the administration of the estate of a person who dies domiciled in Papua New Guinea or are for relief which might be granted in proceedings for administration of such an estate; or
(p) the proceedings are for the execution of trusts which are governed by the law of Papua New Guinea, or are for relief which might be granted in proceedings for the execution of those trusts; or
(q) the proceedings affect the person to be served in respect of his membership of a corporation incorporated in Papua New Guinea or of an association formed or carrying on any part of its affairs in Papua New Guinea; or
(r) the proceedings concern the construction, effect or enforcement of an Act or a regulation or other instrument having or purporting to have effect under an Act; or
(s) the proceedings concern the effect or enforcement of an executive, ministerial or administrative act done or purporting to be done under an Act or regulation or other instrument having or purporting to have effect under an Act; or
(t) the action is brought by virtue of the Civil Aviation (Aircraft Operators' Liability) Act 1975; or
(u) the proceedings are related to an arbitration held in Papua New Guinea; or
(v) the proceedings, so far as concerns the person to be served, fall partly within one of the paragraphs of this Rule and partly within one or more of the other paragraphs.
20. Leave or confirmation. (10/2)
(1) 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.
(2) 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 in the proceedings outside Papua New Guinea under this Division.
(3) Every application for leave to serve originating process, 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.
(4) 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.
(5) 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.
(6) Where the Court grants leave to serve originating process out of Papua New Guinea, the Court may, in the order granting leave, 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 his intention to defend the claim.
(7) Where originating process has been served outside Papua New Guinea without a prior motion for leave under Sub-rule (2), and the Court is satisfied -
(a) on the matters mentioned in that Sub-rule; and
(b) that the failure to apply for leave is sufficiently explained,
the Court may, on terms, by order confirm the service.
21. Other documents. (10/3)
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.
22. Rules as to service generally. (10/4)
(1) Subject to this Division and subject to any convention, these Rules apply to service outside Papua New Guinea under this Division as they apply to service inside Papua New Guinea.
(2) Subject to Sub-rule (1), and in Rule 23, notice of a writ should be served in the manner in which a writ of summons is served under these Rules.
23. Mode of service. (10/5)
A document which is to be served outside Papua New Guinea need not be served personally on the person required to be served so long as it is served on him in accordance with the law of the country in which service is effected.
Division 3.-Procedure for Effecting Service Outside Papua New Guinea.
24. Application of Division 3. (10/7)
(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) This Division does not apply to, or render invalid or insufficient, a mode of service in a country, with which a convention has been made, extending to Papua New Guinea which is otherwise valid and sufficient according to the procedure of the Court and which is not expressly excluded by that convention.
25. Service in foreign country.
(1) Where a document in a proceeding is to be served in a foreign country with which a convention in that behalf subsists, the document may be served -
(a) through a judicial authority of that country; or
(b) through a Papua New Guinea consular authority in that country.
(2) Where a document in a proceeding is to be served in a foreign country with which a convention in that behalf does not subsist, the document may be served -
(a) through the government of that country, where that government is willing to effect service; or
(b) through a Papua New Guinea consular authority in that country unless service through such an authority is contrary to the law of that country.
26. Requisite documents. (10/8)
A person (in this Division called **the applicant') requiring a document to be served in another country may -
(a) lodge with the Registrar -
(i) the document to be served; and
(ii) unless English is an official language of the country concerned, a translation of the document in accordance with Rule 27; and
(iii) a copy of the document and of the translation for each\ person to be served; and
(iv) such further copies of the document and of the translation as the Registrar may direct or the convention may require; and
(v) if any special manner of service is required, a request for service in that manner and, unless English is an official language of the country concerned, a translation of the request; and
(b) file -
(i) a copy of each of the documents in Paragraph (a); and
(ii) a request and undertaking in accordance with Rule 28.
27. Translation. (10/9)
A translation of a document lodged under Rule 26 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.
28. Request and undertaking. (10/10)
(1) A request and undertaking filed under Rule 26 shall contain -
(a) a request by the applicant to the Registrar that a sealed copy\ of the document to be served be transmitted to the country concerned for service on a specified person; and
(b) if the applicant requires service 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 for service.
(2) The request and undertaking shall be in Form 13 or 14, as the case requires.
(3) The request shall state the medium through which it is desired the service shall be effected, that is, whether -
(a) directly through the Papua New Guinea Consul; or
(b) through a foreign judicial authority.
29. Procedure on filing and lodgement. (10/11)
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.
30. Evidence of service. (10/12)
(1) Where the Registrar has sent documents to the Secretary for Justice under Rule 29 and afterwards 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 in that country as to service or attempted service or non-service is filed, the certificate shall be sufficient proof of the matters stated in the certificate.
(2) Where an official certificate filed in the Court in the manner provided in Sub-rule (1), certifies or declares that efforts to serve a document 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 of the document.
(3) A request for substituted service of a document under this Rule, and the document and a copy of the document and of the order shall be sealed and transmitted to the Secretary for Justice in the manner described in Rule 29 together with such letter of request (if any) as may be necessary.
(4) Where a writ of summons or other originating process, or notice of a writ or other process, is served pursuant to this Rule and an official certificate of service is produced, an endorsement of service is not required.
31. Order for payment of expenses. (12/13)
Where a person has given an undertaking under Rules 26 and 28 and does not, within seven days after service on him of an account of expenses incurred in consequence of the request for service, pay to the Registrar the amount of the expenses, the Court may, on application by the Registrar -
(a) order the applicant to pay the amount of the expenses to the\ Registrar; and
(b) stay the proceedings until payment, so far as concerns the whole or any part of any claim for relief, by the applicant.
Division 4.-Service in Papua New Guinea of External Process.
32. Application of Division 4. (57/1)
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.
33. Requisite documents. (57/2)
(1) In order that service may be effected in accordance with this Division, 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 to be served or the letter of request is not in English-a translation in English of the document or letter, as the case may be, and a copy of the translation.
(2) Instead of translated copies of the document forwarded with the letter of request, it shall be sufficient if each copy of the document 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 to be served is annotated in accordance with Sub-rule (2), it shall not be necessary to leave with the person served a translated copy of the document.
34. Service. (57/3)
(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 to be paid 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.
35. Affidavit of service. (57/4)
After the document has been served or attempts to serve the document have failed, the process server shall file an affidavit made by the person who served or attempted to serve the document stating when, where and how he did so and the costs incurred.
36. Certificate. (57/5)
(1) Where the request for service is made pursuant to a convention, the Registrar shall give either -
(a) a certificate -
(i) certifying that the document or a copy of it, as the case may be, was served on the person, at the time, and in the manner, specified in the certificate or, if attempts to effect service failed, certifying the failure and the reasons for the failure; and
(ii) certifying the amount of the costs incurred; or
(b) such other certificate as is appropriate to the terms of the letter of request.
(2) Where the request for service is not made pursuant to a convention, the Registrar shall give either -
(a) a certificate -
(i) annexing the letter of request, and a copy of the document to be served and of any translation, and a copy of the affidavit under Rule 35; and
(ii) identifying the annexures; and
(iii) certifying that the manner of service of the document and the proof of service are such as are required by the rules of the court regulating the service of originating process of the Court in Papua New Guinea or, if attempts to effect service failed, certifying the failure and the reasons for the failure; and
(iv) certifying the amount of the costs incurred; or
(b) such other certificate as is appropriate to the terms of the letter of request.
(3) The certificate shall be sealed with the seal of the Court.
(4) The Registrar shall send the certificate to the Secretary for Justice, or, if the letter of request or any relevant convention so requires, to the appropriate consul or other authority.
37. Private service of external process not affected.
This Division shall not prevent the service of external process otherwise than in accordance with these Rules.