THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Rules of the National Court of Justice (Underlying Law Amendment)

Pursuant to Section 184 of the Constitution and all other powers there unto enabling the following amendment to the Rules of the National Court of Justice is made and shall come into force on the undermentioned date.

DATED this..............................day of December 2011

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Chief Justice Sir Salamo Injia, Kt.
Deputy Chief Justice, Gibbs Gibuma Salika, CSM, OBE
Justice Bernard Berekia Sakora, CBE, CSM
Justice Nicholas Kirriwom
Justice Les Gavara-Nanu, OBE, CSM
Justice Ambeng Kandakasi
Justice Ellenas Vitata Batari, MBE
Justice Salatiel Lenalia
Justice Catherine Anne Davani
Justice Panuel Mogish
Justice David Canning
Justice George Manuhu
Justice Kingsley Allen David
Justice Sao Gabi
Justice Derek Hartshorn, ML
Justice Joseph Yagi
Justice Colin Makail
Justice Ere Kariko, MBE
Justice Don Sawong, MBE
Justice John Kawi
Justice Stephen Kassman
Justice Jacinta Murray
Justice Berna Joan Collier
Justice John Alexander Logan
Acting Justice Royale Thompson
Acting Justice David Maliku
Acting Justice Mekeo Gauli
Acting Justice Martin Ipang  Acting Justice Lawrence Kangwia

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AMENDMENT OF ORDER 8

1.	Order 8 of the Rules of the National Court of Justice is amended by:

(a)	Inserting in Rule 8(1) after the word "but" the words ", subject to these Rules," and,

(b)	 Inserting the following new subdivision after Rule 20 of Subdivision C:

"Subdivision C1—Pleading the Underlying Law

20A The Underlying Law Act 2000

(1)	Interpretation and application

a.	This Subdivision C1 shall also apply to proceedings commenced by Originating Summons.

b.	In this rule terms have the same meaning that they have in the Underlying Law Act 2000.

c.	In this rule the term "Constitutional rights" means the National Goals and Directive Principles and Basic Social Obligations established in the Constitution and the basic rights guaranteed by Division III.3 (Basic Rights) of the Constitution.

(2)	Every pleading which does not state whether or not a rule of customary law is applicable shall be deemed to plead that no rule of customary law is applicable.

(3)	Where a party pleads that a rule of customary law exists but should not apply that party shall plead the particulars of the rule and whether or not the rule of customary law:

a.	Is inconsistent with a written law;

b.	Its application or enforcement, would be contrary to the Constitutional rights; and

c.	The facts and circumstances on which the party relies to contend that the rule of customary law should not apply.

(4)	Where a party pleads that the Court should apply:

a.	A rule of customary law, that party shall plead:

i.	the particulars of the rule, the source of the rule and the factual circumstances in respect of which the rule is applicable;

ii.	the nature and source of the evidence or information which the party will adduce to assist the court;

iii.	and shall be deemed to have pleaded:

1.	the rule is not inconsistent with the written law;
2.	the rule is consistent with the Constitutional rights.

b.	A rule of common law, which is not part of the underlying law, that party shall plead:

i.	whether any rule of customary law is applicable, and if so, the facts and circumstances on which the party relies to contend that the Court should not apply the rule of customary law;

ii.	the rule of common law, the source of the rule (including case citations) and the factual circumstances in respect of which the rule is applicable;

iii.	the nature and source of the evidence or information that party will adduce to assist the court;

iv.	and the party shall be deemed to have pleaded that the adoption of the proposed rule of common law:

1.	is not inconsistent with the written law; and

2.	is applicable and appropriate to the circumstances of the country, and

3.	is consistent with any applicable rule of the customary law; and

4.	Or its application or enforcement, would not be contrary to the Constitutional rights.

c.	A new rule of the underlying law, that party shall:

i.	be deemed to have pleaded that the written law, the customary law and the underlying law do not apply to the subject matter of the proceeding;

ii.	plead the particulars of all of the matters which the party contends the Court should have regard to including;

1.	the Constitutional rights;
2.	analogies drawn from the relevant written law and customary law; and
3.	the laws of a foreign country relevant to the subject matter of a proceeding.
4.	the nature and source of the evidence or information that party will adduce to assist the court.

d.	A newly formulated rule of the underlying law that party shall plead:

i.	the formulated rule of the underlying law that the party seeks to have applied; the facts and circumstances on which the party relies to contend that a rule of the underlying law is no longer applicable to the circumstances of the country;

ii.	particulars of all of the matters which the party contends the Court should have regard to including:

1.	the Constitutional rights; 
2.	the laws of a foreign country relevant to the subject matter of a proceeding;
3.	the nature and source of the evidence or information that party will adduce to assist the Court.

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