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Ship 'Federal Huron' v Ok Tedi Mining Ltd [1986] PNGLR 5 (20 January 1986)

Papua New Guinea Law Reports - 1986

[1986] PNGLR 5 - The Ship "Federal Huron" v Ok Tedi Mining Ltd 

[1986] PNGLR 5

SC313

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE SHIP “FEDERAL HURON”

V

OK TEDI MINING LTD

Waigani

Kidu CJ Pratt Woods JJ

31 October 1985

20 January 1986

SHIPPING AND NAVIGATION - Admiralty jurisdiction - Law and practice for Papua New Guinea - Colonial Courts of Admiralty Act 1890 (Imp) adopted and developed as underlying law - Constitution, Schs 2.3, 2.4, 2.6(2).

ADMIRALTY LAW - Jurisdiction - Law and practice for Papua New Guinea - Colonial Courts of Admiralty Act 1890 (Imp) adopted and developed as underlying law - Constitution, Schs 2.3, 2.4, 2.6(2).

CONSTITUTIONAL LAW - Development of underlying law - Formulation of - Retrospective operation - Constitution, Schs 2.3, 2.4.

CONSTITUTIONAL LAW - Development of underlying law - Admiralty law - Law and practice for Papua New Guinea - Colonial Courts of Admiralty Act 1890 (Imp) adopted and developed - Constitution, Schs 2.3, 2.4. 2.6(2).

STATUTES - Retrospective operation - Development of underlying law - Formulation of under Constitution - Retrospective operation - Constitution, Schs 2.3, 2.4.

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Interpretation - Adoption of pre-Independence laws - Effect of - Constitution, Sch 2.6(2).

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Interpretation - Reception of common law - “Notwithstanding” revision by statute - Meaning and effect of - Statutory modifications excluded - Constitution, Sch 2.2(3).

JUDGMENTS AND ORDERS - Final or interlocutory - Test for - Nature of application determinative - Exception where split hearing.

Held

(1)      The courts of Papua New Guinea have, and have had since 16 September 1975, by statute, and by development of the law under the Constitution, Sch 2.3 and Sch 2.4, an admiralty jurisdiction for the whole of Papua New Guinea, such jurisdiction being within the parameters and limitations set down in the Colonial Courts of Admiralty Act 1890.

Milan Capek v The Yacht “Freja” [1980] PNGLR 57; Milan Capek v The Yacht “Freja” (No 2) [1980] PNGLR 161, approved:

New Guinea Cocoa (Export) Co Pty Ltd v Basis Vedbaek, the owner of the MV “Aya Trigon” [1980] PNGLR 205, overruled.

Held Further

(2)      In formulating an appropriate rule of law as part of the underlying law of Papua New Guinea pursuant to the Constitution, Sch 2.3 and Sch 2.4, the Court may formulate such law so as to have a retrospective operation.

(3)      The effect of the Constitution, Sch 2.6(2), relating to the adoption of pre-Independence laws is that all laws made by the several Legislative Councils and the House of Assembly before Independence are re-enacted as laws of the new National Parliament of Papua New Guinea together with certain adopted laws which thereby become laws of the State.

(4)      The expression, “The principles and rules of common law and equity are adopted ... notwithstanding any revision of them by a statute of England ...”, in the Constitution, Sch 2.2(3), is to be construed as excluding statutory modifications to the common law.

Booth v Booth [1935] HCA 15; (1935) 53 CLR 1, not followed.

Held further

(5)      Whether a decision or judgment of the court is final or interlocutory is determined by the nature of the application to the court, except where there is a split trial or a split hearing.

Salaman v Warner [1891] UKLawRpKQB 85; [1891] 1 QB 734; Salter Rex & Co v Ghosh [1971] 2 QB 597; White v Brunton [1984] QB 570 at 573, followed and applied.

Shelley v PNG Aviation Services Pty Ltd [1979] PNGLR 119 at 121-122, considered.

Cases Cited

Administration of the Territory of Papua and New Guinea v Guba [1973] PNGLR 603; (1973) 130 CLR 353.

Bankers Trust International Ltd v Todd Shipyards Corporation; The Halcyon Isle [1981] AC 221.

Bennet v Grainger (Unreported, 0S No 107 of 1985, 10 December 1985).

Booth v Booth [1935] HCA 15; (1935) 53 CLR 1.

Constitutional Reference No 1 of 1977 (Sch 2.3) [1978] PNGLR 295.

Cretanor Maritime Co v Irish Marine Management; “The Cretan Harmony” [1978] 1 WLR 966: [1978] Lloyd’s Rep 425.

Dawson v Commonwealth [1946] HCA 41; (1946) 73 CLR 157.

Donoghue v Stevenson [1932] AC 562.

Harmer v Bell; The Bold Buccleugh [1850] EngR 162; (1852) 7 Moo PCC 267; 13 ER 884.

“The Immacolata Concezione” [1883] UKLawRpPro 65; (1884) 9 PD 37.

McEnroe (Dennis) v Felix Mou [1981] PNGLR 222.

Milan Capek v The Yacht “Freja” [1980] PNGLR 57.

Milan Capek v The Yacht “Freja” (No 2) [1980] PNGLR 161.

Ninemia Maritime Corp v Trane Schiffahrtsgesellschaft GmbH und Co KG; “The Niedersachsen” [1983] 1 WLR 1412; 2 Lloyd’s Rep 600.

New Guinea Cocoa (Export) Co Pty Ltd v Basis Vedbaek, the owner of the MV “Aya Trigon” [1980] PNGLR 205.

R v Bernasconi [1915] HCA 13; (1915) 19 CLR 629.

Rothmans of Pall Mall (Overseas) Ltd v Saudi Arabian Airlines Corporation [1981] QB 368.

Rylands v Fletcher (1868) LR 3 HL 330.

SCR No 3 of 1985: The State v Uniss Kamugaip [1985] PNGLR 278.

Salaman v Warner [1891] UKLawRpKQB 85; [1891] 1 QB 734.

Salter Rex & Co v Ghosh [1971] 2 QB 597.

Sharp (John) & Sons Ltd v Katherine Mackall [1924] HCA 37; (1924) 34 CLR 420.

Shelley v PNG Aviation Services Pty Ltd [1979] PNGLR 119.

Strachan v Commonwealth (1906) 4 CLR (Pt 1) 455.

Union Steamship Co of New Zealand Ltd v The Ship Caradale: “The Caradale” [1937] HCA 1; (1937) 56 CLR 277.

United Africa Co Ltd v Owners of MV Tolten; “The Tolten” [1946] P 135; 2 All ER 372.

Wahgi Savings and Loans Society Ltd v Bank of South Pacific Ltd (Unreported, SC 185, 25 November 1980).

White v Brunton [1984] QB 570.

Wilkinson v Barking Corporation [1948] 1 KB 721.

Appeal

This was an appeal from a decision of Bredmeyer J in which he held that the Colonial Courts of Admiralty Act 1890 (Imp) ceased to operate in Papua New Guinea on Independence (16 September 1975), and then formulated a law pursuant to the Constitution, Sch 2.3(1), allowing the action.

Counsel

R Cooper QC and I Molloy, for the appellant.

R O’Regan QC and P King, for the respondent.

Cur adv vult

20 January 1986

KIDU CJ PRATT WOODS JJ: The facts out of which this appeal arose are contained in the judgment appealed from (of Bredmeyer J) at 1-3:

“The ship ‘Federal Huron’ berthed in Port Moresby on 24 May 1982. The plaintiff was the owner and consignee of 410 crates of modular houses which were sent from Houston, Texas and needed for the OK Tedi Mining project. Five pieces were damaged on unloading and the plaintiff issued a writ for K200,000 damages. The ship was arrested under a warrant of arrest in rem. Security was given by the ship and it was released from arrest and sailed away.

On 2 June 1982 the defendant entered a conditional appearance to the writ in these terms:

‘Enter a conditional appearance in this action for the defendant the ship “Federal Huron” who denies the writ was in force at the date of service.’

On 10 June 1982 the defendant gave notice of a payment into court in these terms:

‘Take notice that the defendant has paid into court two thousand and one kina (K2,001) and says that the sum is enough to satisfy the plaintiff’s claim in respect of all causes of action set forth in the statement of claim.’

In August 1983 the plaintiff filed and served a statement of claim alleging: (1) damages for breach of the contract of carriage as evidenced by the bill of lading; (2) damages for breach of the defendant’s duty as bailee; and (3) damages for the tort of negligence.

To this the defendant filed a defence, an amended defence and then a further amended defence. I can consider the defence and the amended defence together. In those two pleadings the defendant admitted the bill of lading and that four pieces of cargo were damaged on unloading. It said that under the bill of lading the contract was governed by the United States Carriage of Goods by Sea Act 1936 and that liability was limited to $US800 in respect of each package, a total of $2,000. The defendant denied that the fifth piece of cargo was damaged and said that if it was, the defendant’s liability was also limited to $500; alternatively that the claim was time barred under the United States statute, by not having been made within three days of delivery and, in any event, because the suit in relation to that claim was not brought within one year.

The further amended defence filed on 18 November 1983 adds the further ground that the statement of claim does not disclose a cause of action known to the law of Papua New Guinea. That ground has been argued before me as a preliminary point.”

Bredmeyer J decided, as he had already done in New Guinea Cocoa (Export) Co Pty Ltd v Basis Vedbaek, the owner of the MV “Aya Trigon” [1980] PNGLR 205 (The Aya Trigon hereon), that the Colonial Courts of Admiralty Act 1890 (Imp) ceased to operate in Papua New Guinea when the country attained its independence on 16 September 1975. The consequence of this was that actions in rem in the admiralty jurisdiction with respect to things such as damage to cargo are not available under the law of Papua New Guinea. Having held this the learned judge then used the Constitution, Sch 2.3(1), and formulated a law allowing the action by the respondent. Bredmeyer J also held that a common law action in rem in admiralty does not include any statutory modifications.

PRELIMINARY QUESTIONS — LEAVE TO APPEAL

The query was raised that as the National Court had ruled on a preliminary matter, its decision was an interlocutory one and that pursuant to the Supreme Court Act (Ch No 37), s 14(3), leave of this Court is required to appeal. The provision states as follows:

“(3)    No appeal lies to the Supreme Court without leave of the Supreme Court:

(a)      from an order allowing an extension of time for appealing or applying for leave to appeal; or

(b)      from an interlocutory judgment made or given by the National Court except:

(i)       where the liberty of the subject or the custody of infants is concerned; or

(ii)      in cases of granting or refusing an injunction or appointing a receiver; or

(iii)     in such other cases prescribed by the Rules of Court as are in the nature of final decisions; or

(c)      from an order of the National Court as to costs only that by law are left to the discretion of the National Court.” [Our emphasis.]

There is no disagreement that there can only be an appeal by leave of this Court if such appeal is from an interlocutory judgment of the National Court. But both counsel for the appellant and counsel for the respondent agreed that in the present case leave is not necessary as Bredmeyer J’s judgment was a final one and not an interlocutory one. In England the test as to whether a decision or judgment is an interlocutory one or a final one is determined by the nature of the application to the court: see Salaman v Warner [1891] UKLawRpKQB 85; [1891] 1 QB 734, Salter Rex & Co v Ghosh [1971] 2 QB 597 and White v Brunton [1984] QB 570. This test seems to have been cited with approval by Prentice CJ (with whom Pritchard J agreed) in Shelley v PNG Aviation Services Pty Ltd [1979] PNGLR 119 at 121-122. Although Prentice CJ did not specifically adopt the test, he did not reject it either.

There is an exception to this rule and the most recent enunciation of it is by Sir John Donaldson MR (with whom Fox and Stephen Brown LJJ agreed) in White v Brunton at 573:

“The Court is now clearly committed to the application approach as a general rule and Bozson v Altrincham Urban District Council [1903] UKLawRpKQB 44; [1903] 1 KB 547 can no longer be regarded as any authority for applying the order approach. However, the decision in Bozson’s case as distinct from the reasoning, can be upheld on a different ground as an exception to the general rule. It was a case of a ‘split trial’, all questions of liability and breach of contract being tried before and separately from any issue as to damages. If the two parts of the final hearing of the case had been tried together, there would have been an unfettered right of appeal, even if the judgment had been that there was no liability and that accordingly no question arose as to damages. It is plainly in the interests of the more efficient administration of justice that there should be split trials in appropriate cases, as even where the decision on the first part of a split trial is such that there will have to be a second part, it may be desirable that the decision shall be appealed before incurring the possibly unnecessary expense of the second part. If we were to hold that the division of a final hearing into parts deprived the parties of an unfettered right of appeal we should be placing an indirect fetter on the ability of the Court to order split trials. I would therefore hold that, where there is a split trial or more accurately, in relation to a non-jury case, a split hearing, any party may appeal without leave against an order made at the end of one part if he could have appealed against such an order without leave if both parts had been heard together and the order had been made at the end of the complete hearing.

In effect that is the position in the present case, for in directing a preliminary issue on a point of construction the district registrar was seeking to divide the final hearing into two parts in the justified belief that it was possible that by adopting this course the expense of part of the hearing might be avoided. That the division may not have run exactly along the line dividing liability from quantum is, I think, immaterial. The decisive feature is that the ‘preliminary issue’ was not, when analysed, an issue preliminary to a final hearing, but the first part of a final hearing.

Accordingly I would hold that the plaintiff does not need leave to appeal.” [Emphasis added.]

In this jurisdiction, as in England, the National Court is allowed by the National Court Rules to decide different questions separately in the one case. Order 10, r 21, provides:

“The Court may make orders for:

(a)      the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings, and

(b)      the Statement of a case and the question of decision.”

In the case before us the learned trial judge ordered that the jurisdiction point be decided first. His Honour must have done this under the rule set out above (that is, O 10, r 21). We would not think that there is any doubt that this case falls into the sort of case discussed by Sir John Donaldson MR in White v Brunton. Here the issue of whether the National Court has admiralty jurisdiction was split from the question of liability. It is clearly a split hearing case and the learned trial judge’s decision was a final one and not an interlocutory one. The appellant therefore need not seek leave to appeal pursuant to the Supreme Court Act, s 14.

The respondent raises a further point in the pleadings. It is submitted that the appellant is estopped from appealing in this matter as although the appellant filed a conditional appearance on 2 June 1982, it had at some later date paid a sum of money into court saying that that sum was enough to satisfy the plaintiff’s claim. The respondent submits that payment into court waives the challenge to the jurisdiction suggested by the conditional appearance.

One must note here that this conditional appearance was filed under the old rule of court, O XII, r 22.

The defendant did not act promptly to have the question of jurisdiction decided so can it be held that it waived the alleged lack of jurisdiction? Is the payment into court a waiver or an irregularity? But in this case there is no irregularity in a summons or pleading. The challenge was to the very question of jurisdiction, to the suggestion that the cause of action does not exist in the law of Papua New Guinea. This question is one that the Court is bound to put its mind to; parties themselves by consent or failure to plead cannot give the Court a jurisdiction that the Court does not have. As was said by Mustill J in Rothmans of Pall Mall (Overseas) Ltd v Saudi Arabian Airlines Corporation [1981] QB 368 at 376:

“Still less can one party by unilateral act confer on the court a jurisdiction which Parliament has said it should not have. Entry of an unconditional appearance does not preclude the defendant from raising the objection at a later stage, since it is the duty of the court not to entertain the dispute.”

Which follows from what Asquith LJ for the Court of Appeal said in Wilkinson v Barking Corporation [1948] 1 KB 721 at 725:

“No act of the parties can create in the courts a jurisdiction which Parliament has said shall vest not in the courts, but exclusively in some other body. Nor again can a party submit to, so as to make effective, a jurisdiction which does not exist ....”

We would adopt these statements here and state that the Court is bound to examine the questions. As we have already noted the defendant filed the application seeking an order that the question of jurisdiction be tried separately before any trial in the proceedings and the order was made which resulted in the judgment appealed from to this Court.

THE APPEAL

We now pass to the main ground of appeal. The appellant does not contest Bredmeyer J’s finding that after 16 September 1975 (Independence Day) there was no longer an admiralty jurisdiction in Papua New Guinea, other than a common law jurisdiction, because the Colonial Courts of Admiralty Act had ceased to apply. His Honour however developed the underlying law within the terms of Schs 2.3 and 2.4 of the Constitution and thus attracts the criticisms of the appellant. The respondent, on the other hand, asks this Court to follow two decisions of the National Court in 1980: Kapi J (as he then was) in Milan Capek v The Yacht “Freja” [1980] PNGLR 57 and Miles J in Milan Capek v The Yacht “Freja” (No 2) [1980] PNGLR 161, in which their Honours ruled that an admiralty jurisdiction at least similar to that in 1890 under the Colonial Courts of Admiralty Act did come into operation after Independence Day. Further, says Mr O’Regan for the respondent, this Court should not follow an earlier decision of the present judge under appeal in which his Honour ruled in New Guinea Cocoa (Export) Co Pty Ltd v Basis Vedbaek, the owner of the MV “Aya Trigon” that Papua New Guinea had no admiralty jurisdiction except perhaps that which existed in the United Kingdom before 1840. This decision was handed down shortly after the decisions of Kapi J and Miles J. What Mr O’Regan argues is the existence of a statutory right in rem stemming from the Admiralty Court Act 1861 (Imp) through the Colonial Courts of Admiralty Act, the claim here being for cargo damaged whilst being unloaded from the vessel “Federal Huron” in Port Moresby on 24 May 1982. The action is based on the Admiralty Court Act, s 6, which reads as follows:

“The High Court of Admiralty shall have jurisdiction over any claim by the owner or consignee or assignee of any bill of lading of any goods carried into any port in England or Wales in any ship, for damage done to the goods or any part thereof by the negligence or misconduct of or for any breach of duty or breach of contract on the part of the owner, master or crew of the ship, unless it is shown to the satisfaction of the court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales: provided ....”

As a short summary of the jurisdiction of the High Court in England in admiralty matters in 1890, we would adopt a statement of the law by Miles J in “Freja” (No 2) at 165. Such jurisdiction:

“... was limited by the Admiralty Court Act [sic] 1840 and 1861 (Imp) (The Yuri Maru [1927] AC 906 at 913). But, I might add, those Acts are not an end of the matter. Maritime law, the law administered in the admiralty jurisdiction, had developed over a period of 500 years and at least as early as 1840 common concepts between the common law courts and the admiralty court had begun to develop.”

The position in Papua New Guinea before Independence will be subject to some analysis shortly, but in essence the pre-Independence Supreme Court exercised an admiralty jurisdiction based on the Colonial Courts of Admiralty Act.

Indeed prior to the Admiralty Court Act 1840 there was a considerable amount of admiralty law being administered by the Admiralty Courts. This jurisdiction enforced maritime liens through the action in rem arising out of collision between ships, salvage, seamen’s wages and bottomry: see Harmer v Bell; The Bold Buccleugh [1850] EngR 162; (1852) 7 Moo PCC 267 at 283; [1850] EngR 162; 13 ER 884 at 890 and Bankers Trust International Ltd v Todd Shipyards Corporation; The Halcyon Isle [1981] AC 221 at 232-233. In The Halcyon Isle case, Lord Diplock also makes it clear that no maritime lien or right of action in rem arose under the old admiralty law for damage to cargo (at 235): “In The Pieve Superiore [1874] UKLawRpPC 7; (1874) LR 5 PC 482, the Privy Council, in the course of its judgment stated as self-evident that cargo claims against an Italian vessel did not give rise to a maritime lien.” The learned authors of Halsbury’s Laws of England (3rd ed), Vol 1 at p 48 (par 87) described the old admiralty jurisdiction in the following terms:

“... collisions between ships and injurious acts committed on the high seas outside the body of any county (see The Zeta [1893] UKLawRpAC 51; [1893] AC 468 at 481, and see The Tubantia [1924] P 78 at 86 as to injurious acts done upon the high seas); salvage services rendered to property on the high seas and between the high and low water mark, but otherwise not within the body of any county (Raft on Timber [1844] EngR 234; (1844) 2 W Rob 251; 166 ER 749, The Eleanor [1805] EngR 174; (1805) 6 C Rob 39; 165 ER 842); droits of Admiralty (see Halsbury’s (3rd ed), p 68); possession of ships where no title was in question (The Warrior [1818] EngR 411; (1818) 2 Dods 288; 165 ER 1490); bottomry, so called because money had been lent on the security of the bottom of the ship, and respondentia bonds on cargo (The Atlas (1827) 2 Hagg 48; [1827] EngR 328; 166 ER 162); and claims of seamen’s wages where there had been no special contract (Opy v Adison (1693) 12 Mod 38; 88 ER 1149). The Court had also jurisdiction over the goods of pirates and goods piratically taken (The Hercules [1819] EngR 192; (1819) 2 Dods 353; 165 ER 1511); and as part of its old criminal or disciplinary jurisdiction, it entertained suits against masters of ships for assaults and battery committed on the high seas where the complainants were officers, seamen, or passengers of the ship (The Ruckers [1801] EngR 431; (1801) 4 C Rob 73; 165 ER 539), Le Caux v Eden (1781) 2 Dougl 594 at 609; 99 ER 375 at 383. Actions in respect of necessaries supplied on the high seas and for towage on the high seas seem also to have been within the jurisdiction, but seldom, if ever, occurred in practice.

In 1840 the Admiralty Court Act was passed to improve the practice and extend the jurisdiction of the High Court of Admiralty of England. This was the first of a series of Acts which enlarged or defined the jurisdiction.”

It was this pre-1840 area of admiralty law which gave rise to the true maritime lien as opposed to the statutory liens which owe their existence not only to the Acts of 1840 and 1861, but also the Supreme Court of Judicature (Consolidation) Act 1925 (Imp) and the Administration of Justice Act 1956 (Imp). The most recent updating of the legislation in the United Kingdom has been achieved by the Supreme Court Act 1981 (UK). It might certainly have been thought by the legislature that an admiralty jurisdiction did in fact exist in Papua New Guinea after Independence, for although we incorporated the whole of the United Kingdom Merchant Shipping Acts as a law of Papua New Guinea on the enactment of the Constitution, by Sch 5, it was not long before our own version of the Act was brought into being, part by part. Now, by the Merchant Shipping Act (Ch No 242), s 125, a statutory lien for wages has been given to crewmen — surely a lonely section if bereft of meaningful admiralty jurisdiction to support it.

In analysing the present day position on the question of whether or not the National Court does have an admiralty jurisdiction, we propose to follow the course taken by the three National Court judges mentioned earlier and approach the matter from two different starting points: first, the position in Papua up to Independence, then the position in New Guinea; and finally, the position achieved on and after 16 September 1975.

PAPUA PRIOR TO INDEPENDENCE

On 6 November 1884, Commodore Erskine proclaimed a protectorate over British New Guinea in the name of Her Britannic Majesty, Queen Victoria: see, for example, Barwick CJ in Administration of the Territory of Papua and New Guinea v Guba (1973) 130 CLR 353 at 381; [1973] PNGLR 603 at 622. Letters patent issued on 8 June 1888 whereby British New Guinea became part of Her Majesty’s dominion “constituted and erected into a Separate Possession” (actually effected on 4 September 1888). In the preamble to the Commonwealth of Australia’s Papua Act 1905 (Cth) a number of further interesting historical factors emerge. By virtue of the British Settlements Act 1887 (Imp) an order-in-council provided, inter alia, that “in all Admiralty matters arising out of the Possession of British New Guinea an appeal should lie from the Colonial Court of Admiralty of the Possession of British New Guinea to the Supreme Court of Queensland at Brisbane”. The Courts and Laws Adopting Ordinance of Papua 1888 set up a Central Court of British New Guinea and gave it a jurisdiction similar to that of the Supreme Court of Queensland. In our view, however, the Central Court did not acquire its admiralty jurisdiction through Queensland after 1891 because British New Guinea was a British possession within the meaning of the Colonial Courts of Admiralty Act, s 2, and thus the Act applied of its own force immediately following commencement. The opening subsection of s 2 reads as follows:

“(1)    Every court of law in a British possession, which is for the time being declared in pursuance of this Act to be a court of Admiralty, or which, if no such declaration is in force in the possession, has therein original unlimited civil jurisdiction, shall be a court of Admiralty, with the jurisdiction in this Act mentioned, and may for the purpose of that jurisdiction exercise all the powers which it possesses for the purpose of its other civil jurisdiction, and such court in reference to the jurisdiction conferred by this Act is in this Act referred to as a Colonial Court of Admiralty. Where in a British possession the Governor is the sole judicial authority, the expression ‘court of law’ for the purposes of this section includes such Governor.”

Under the Commonwealth of Australia Constitution Act 1900 (Imp), s 122, provision was made for the Commonwealth to make laws for any territory which the Crown placed under its authority. On 6 March 1902 an order-in-council issued from the Court of St James directing that letters patent were to issue “to make provision for placing British New Guinea under the authority of the Commonwealth of Australia”. Two proclamations were then issued in Australia on 1 September 1906: first, proclaiming that the Commonwealth had made laws for hearing appeals from Papua (thereby ending the appeals to the Supreme Court in Brisbane and transferring the appeal to the newly constituted High Court of Australia); and secondly, a proclamation declaring the new name of the possession to be “Papua”. In conjunction with these proclamations, of course, the Commonwealth Parliament passed the Papua Act 1905. Under s 6 of that Act the laws already in force in the possession were to continue in force until other provision was made. The Courts of Justice were also continued with the existing jurisdiction, practice and procedure until further provision. It should be noted at this point that, unlike the position in the Mandated Territory of New Guinea in 1921, the Courts and Laws Adopting Ordinance of Papua 1888 was an ordinance made by the local Legislative Council in Port Moresby. By s 10 of the 1888 ordinance, the civil jurisdiction of the newly created Central Court was to be the same as that of the Supreme Court of Queensland. In the following year the Legislative Council in Papua passed the Courts and Laws Adopting Ordinance 1889. This ordinance adopted certain statutes of Queensland as well as the principles and rules of common law and equity for the time being in force in England and in addition, by s 3, the possession adopted “those portions of the Acts, statutes and laws of England that were in force in the Colony of Queensland on 17 September 1888 and that can be put in force and become law in the Possession by being adopted by an Ordinance of Possession ...”. The 1888 ordinance was subsequently repealed by the Supreme Court Act 1949 (a Commonwealth Act) which in our view applied to and was adopted by Papua New Guinea in 1949.

At this point, we find our first divergence from the views expressed by Miles J in “Freja” (No 2). His Honour was of the opinion that with the coming into being of the Papua Act 1905, Papua ceased to be a British possession. In our view, however, Papua continued as a British possession until the time of Independence. Consequently, the Colonial Courts of Admiralty Act continued to apply of its own force to the possession. The first feature which caused us to pause and ponder on this point was a note by the learned editor of the Laws of the Territory of Papua 1888-1945 appearing in Vol 1 at 857 pointing out that the Admiralty Act 1890 applied “by virtue of s 2 of that Act”.

It is clear that the Papua Act 1905 certainly did not affect the status of the citizens of that possession. At that time, Australian citizens were British subjects, and so too were Papuan citizens (see s 1 and Sch 1 of the Status of Aliens Act 1914 (Imp). To have affected status would have required an Imperial Act rather than an Australian Act, although the Papua Act 1905 undoubtedly gave control of the Territory to Australia together with the full power to make laws via the local Legislative Council for the peace, order and good government of the country. Although the Papua Act 1905 had not come into operation at the time the cause of action arose, nevertheless, we accept the observations of Griffith CJ in Strachan v Commonwealth (1906) 4 CLR (Pt 1) 455 at 463 that the relationship between British New Guinea and the Commonwealth were the same as those it formerly bore to the colony of Queensland: “The relation is to the Governor-General and not to the Commonwealth, strictly speaking.” Perhaps O’Connor J, in the same case, brings out the relationship intended under the Papua Act 1905 and letters patent more clearly at the bottom of 466 where he says:

“The only object, apparently, for such a departure from the usual Constitution of a Crown colony, is that Australia, particularly that portion of it adjoining British New Guinea, is so vitally interested in the development of this possession that, for the purpose of advising and instructing the Administrator on behalf of the British Government, it was felt to be desirable that there should always be at hand some person having that knowledge of local conditions, which it would be impossible for the Government in Downing Street to have always available.” [Emphasis ours.]

His Honour then goes on to state that the letters patent of 18 March 1902 simply substituted the Governor-General of the Commonwealth of Australia for the Governor of Queensland “in respect of the authority exercised by the latter”. A similar line of reasoning is followed in R v Bernasconi [1915] HCA 13; (1915) 19 CLR 629.

A further pointer in the direction of Papua remaining a British possession, may be found we believe in an order-in-council at St James made on 1 June 1926 (Laws of Papua, Vol 1, p 882) being an order made under the Colonial Courts of Admiralty Act relating to the practice and procedure of the Courts of Admiralty and setting out new rules for the Central Court of the Territory of Papua in its admiralty jurisdiction. Such rules were to come into force “in the Central Court of the Territory of Papua in its Admiralty jurisdiction after publication in the Territory of Papua Government Gazette”. In that order-in-council the reference to “a British Possession” truly indicates to us that His Majesty and His advisors were still of the view that He retained Papua as one of His possessions. It is also of significance that the Admiralty Rules, published at p 870 of Vol 1 were reserved for His Majesty’s approval, not by the Commonwealth Governor-General but by the Lieutenant Governor-in-Council of Papua.

Finally, on this point, one can turn to the preamble first of the Papua and New Guinea Act 1949 (Cth) where the following appears in the penultimate paragraph:

“And whereas the Government of Australia is of opinion that it would be in the interests of ... to provide for the government of the Territory of Papua and the Territory of New Guinea in an administrative union, whilst maintaining ... the identity and status of the Territory of Papua as a Possession of the Crown.”

The very same assertion as to identity and status appears also in the preamble to the Papua New Guinea Independence Act 1975 (Cth).

It is true that preambles do not conclusively establish the facts stated therein (per Latham CJ in Dawson v Commonwealth [1946] HCA 41; (1946) 73 CLR 157 at 175), but nevertheless the learned author of Craies on Statute Law (7th ed. 1971) p 519 reminds us:

“... that if we find the rule of law enunciated in the preamble to a statute, or if it appears from the language of the statute that the legislation has acted upon the idea that such a rule existed, it is very strong evidence of what the law on the subject actually is, though the court is not absolutely bound by a recital, and, as was said by Lord Campbell in R v Lords Commissioners of the Treasury; Re Queen Dowager’s Annuity (1851) 20 LJQB 305 at 311 ‘the burden of proving that the legislature has fallen into a mistake is cast upon those who say so.’“

We are, of course, not concerned with any burden of proof here. The point that we make is simply that the highest legal advisors both to the British Crown and to the Governor-General-in-Council of the Commonwealth of Australia were also of the view that the Territory of Papua remained a British possession until Independence Day. We believe that the situation simply resolved itself into one where the Commonwealth of Australia was given authority over the Territory and was acting on behalf of the British Crown in all that it did both before the union with the Mandated Territory of New Guinea and after. We certainly do not think there is anything contained in the Papua and New Guinea Act 1949 (Cth), s 33, which affected the situation.

In 1945 there was an administrative merger of the Territory of Papua and the Mandated Territory of New Guinea. We see no necessity to examine the situation under the wartime regulations but the Papua-New Guinea Provisional Administration Act 1945 (Cth) applied to both Territories not under enemy control. There was a temporary suspension of certain provisions of the Papua Act and the New Guinea Act (Cth) including the section granting legislative power to the Legislative Council but giving power to amend any ordinances passed under those two Acts to the Governor-General of Australia. The 1945 Act also created a Supreme Court of the Territory of Papua-New Guinea and continued the system of appeals to the High Court: see s 16.

“The Supreme Court of the combined Territories was to have the same original jurisdiction, both civil and criminal ... as immediately prior to the commencement of this Act the Supreme Court of the Territory of Papua, and the Supreme Court of the Territory of New Guinea ... had respectively, in relation to the Territory of Papua or the Territory of New Guinea.”

This Act therefore was the first Act to join the two Territories together and we think makes it manifestly clear that the joinder was for administrative purposes only and for no other.

It is also our view that the Papua and New Guinea Act 1949 (Cth) went no further than that. By s 32(1)(a) those laws in force “immediately before the commencement of this Act in or in relation to the Territory of Papua ... shall continue in force in or in relation to that Territory ...”. The statement set out in s 33(2) dealing with a Commonwealth or Imperial Act applying of its own force to the combined Territory seems to be stating merely the obvious in directing that such Act will not be amended by any ordinance. Section 34 allowed any law continued in force by the Act to be amended or repealed by an ordinance of the combined Territory.

By s 58 a provision was made for the setting up of a Supreme Court of the Territory of Papua and New Guinea, the jurisdiction of which was to be provided by ordinance. Thus came into being the Supreme Court Ordinance of 1949 which gave this new Court the same jurisdiction in relation to the Territory of Papua as it had immediately before the commencement of the Act.

The Papua and New Guinea Act 1949 (Cth) underwent a number of amendments in the next twenty-six years but such amendments had no effect on the jurisdiction of the Supreme Court in relation to the Territory of Papua.

PAPUA ON INDEPENDENCE

This then brings us to 15 September 1975. On that day a bundle of complementary legislation was brought down both in Papua New Guinea by the then House of Assembly, the “Constituent Assembly”, and also in Canberra, operative on 15-16 September 1975. The whole legislation is interlocking but must be seen to have come into operation in a logical sequence to achieve: (a) a complete severence of dependence between Papua New Guinea and Australia; (b) a wiping clean of the legislative slate; (c) the creation of an Independent State of Papua New Guinea with its own autochthonous Constitution; and (d) an adoption, as laws of the newly Independent State, the majority of laws which were in existence in the country immediately prior to Independence.

The first relevant piece of legislation was the Statute Law Revision (Independence) Act (No 92 of 1975) which, inter alia, repealed the Supreme Court Act 1949. This Act was not drawn to the attention of either Kapi J or Miles J in 1980 and is a most significant one because it achieved a repeal of the Supreme Court Act earlier and separate from those Acts which were repealed by the Laws Repeal Act (No 93 of 1975). By Act No 92 the Supreme Court of Papua New Guinea together with its jurisdiction as brought through the separate Acts establishing and amalgamating the Territory of Papua and the Mandated Territory of New Guinea came to an end. A new court, the National Court, was created under s 163 and s 166 of the Constitution (as a court of unlimited jurisdiction) and by the National Court Act (No 98 of 1975).

However by the Laws Repeal Act (No 93 of 1975):

“All enactments, subordinate legislative enactments and all other legislation and subordinate legislation including ... applying to, adopted by, extending to or existing in Papua New Guinea or any part of Papua New Guinea is hereby repealed.”

In the definition section, “enactments” included an Act of England applying or extending to Papua New Guinea or any of its constituent parts but “does not include any Act of England which extends of its own force ...”. Pausing here for a moment, the Colonial Courts of Admiralty Act applied to all British possessions. In relation to Papua, it applied of its own force and thus was not an Act which was repealed by Act No 93 of 1975. Indeed one might ask how could it, for there was no power given by the British Parliament to the Papua New Guinea House of Assembly to repeal the application of an Imperial Act. Nevertheless, so far as Papua New Guinea was concerned, and more particularly, that part of the State previously known as Papua, it ceased to be a British possession on 16 September 1975 when it became an Independent State. Its only remaining link to the Crown was expressed in the country’s Constitution, s 82, wherein it was requested that Her Majesty become Queen and stated that Her Majesty’s consent to so act had been given. There is no suggestion that Papua or Papua New Guinea remained or became a possession of the British Crown. Such status ceased at midnight on 15 September 1975 so far as Papua was concerned. The Mandated Territory of New Guinea was never regarded as such.

The consequence is that the Colonial Courts of Admiralty Act no longer applied to Papua. Thus the 1840 and 1861 Acts also ceased to apply in the Territory of Papua. Although the Courts and Laws Adopting Ordinance 1889 (amended) was a law in our view repealed by the Laws Repeal Act No 93 of 1975 and subsequently brought back into operation by the Constitution, Sch 2.6(2), this does not affect the situation because the Colonial Courts of Admiralty Act did not come into operation until two years after 1889.

There are therefore two further points of divergence with the view of Miles J which emerge at this stage. The first is that as the Supreme Court Act 1949 was repealed not by Act No 93 the Laws Repeal Act 1975 but instead its immediate predecessor in time, the Statute Law Revision (Independence) Act 1975, it was not amongst those laws repealed by the Laws Repeal Act. Secondly, we do not believe that the Colonial Courts of Admiralty Act could be regarded as an Act which comes within par (f) of the definition section “enactment” in the Laws Repeal Act.

The vacuum left by the repealed Acts was immediately filled by Sch 2.6 of the new Constitution. By subs (2) thereof “all pre-Independence laws are, by virtue of this section, adopted as Acts of the Parliament ... and apply to the extent to which they applied immediately before Independence Day ...”. The Schedule itself sets out the definition of the term “pre-Independence laws” namely, “a law ... that was repealed by the Laws Repeal Act made by the pre-Independence House of Assembly of Papua New Guinea ...”.

Some discussion ensued as to whether Sch 2.6(1)(a) referred to a law which had been made by the House of Assembly as being the only law dealt with by the Laws Repeal Act, or whether the laws included in the Laws Repeal Act covered all pre-existing laws both before and after the House of Assembly came into existence. We are firmly of the view that it could only mean all laws passed by previous legislative bodies of the country, be they the Legislative Councils before or after the two Great Wars or by the House of Assembly itself. The phrase “made by the pre-Independence House of Assembly” is merely descriptive of the Laws Repeal Act, and is not descriptive of the term “a law”. In other words, the Schedule is not restricted merely to those laws which were passed by the House of Assembly. To hold otherwise would be to create a tremendous gap in the legislative content of the country. It should be remembered that the pre-Independence House of Assembly did not come into existence until 30 May 1963. We believe our interpretation is borne out by one glance at the Laws Repeal Act itself, for it defines not only “Territory” as including (1) the Territory of Papua New Guinea (after 1949) and Papua New Guinea (after 1963), but separately refers to ordinances of: (a) the Territory of New Guinea; (b) the Territory of Papua; and (c) the Territory of Papua and New Guinea.

Our interpretation of this section is therefore that all laws made by the several Legislative Councils and the House of Assembly before Independence are re-enacted as laws of the new National Parliament of Papua New Guinea together with certain adopted laws which thereby became laws of the State.

The consequence and final result of all this is that the 1840 and 1861 Acts no longer applied to that area of the country previously called Papua. We shall deal more fully with the significance of the territorial pre-Independence boundaries and the Laws Adoption and Adaptation Act (Ch No 20) when we consider the Mandated Territory of New Guinea legislation.

THE INTRODUCED COMMON LAW

Some of the gap left by the Laws Repeal Act was also filled by Sch 2.2 which adopted the common law of England. More specifically subs (3) of the Schedule reads as follows:

“The principles and rules of the common law and equity are adopted as provided by subsections (1) and (2) notwithstanding any revision of them by any statute of England that does not apply in the country by virtue of Section Sch 2.6 (adoption of pre-Independence laws).”

After all the difficulties which had been created in the Territory of New Guinea by the High Court decision in Booth v Booth [1935] HCA 15; (1935) 53 CLR 1, which concerned the importation into the Territory of New Guinea of the common law on married women and a statement by their Honours that the common law meant the common law as affected by statute (namely, the Married Women’s Property Act passed in the United Kingdom prior to the adoption of the common law in that Territory in 1921), one would have hoped that the adoption section in the Constitution would have been free from doubt. Alas this is far from the case. Debate has raged one way and the other as to what the Constituent Assembly meant by the word “notwithstanding” in Sch 2.2(3) since the enactment of the Constitution and has finally come up for interpretation before this Court. It has done so in this way. If in relation to the Territory of Papua, the 1890 Act no longer applies as a statute, then Papua and indeed New Guinea also is none the worse off because what the Constituent Assembly intended to do in the Schedule to the Constitution was to bring in the common law of England as amended by statute up until 1975. The term “common law” therefore is not merely the old judge-made law, but the judge-made law as modified by subsequent statutes. So says Mr O’Regan, and in support of his contention he has put forward a number of submissions. He starts with the definition in the Concise Oxford Dictionary (2nd ed), which defines “notwithstanding”, inter alia, as capable of meaning “although” which is really another way of saying “in spite of” or “despite” referred to as synonyms in the Shorter Oxford English Dictionary, Vol 2. The end result therefore, says Mr O’Regan, is something like this: “The principles of common law and equity are adopted although they have been revised by statutes in England which have not been applied in the country by virtue of Sch 2.6.” Needless to say, Mr O’Regan and Mr Cooper could not be further apart as to the meaning of this seemingly simply word.

It is necessary to resolve the difference because if Mr O’Regan is correct, then there is no need to investigate the learned trial judge’s implementation of the provisions of Sch 2.3 and Sch 2.4 concerning the development of the underlying law. Mr Cooper says that to interpret the phrase as contended for by the respondent is an abuse of language particularly when taken in the context not only of the subsection itself but in relation to other sections and Schedules of the Constitution.

We must admit having found this area most perplexing. If the Constituent Assembly intended to exclude the Booth v Booth result, then it is a great pity that it did not say so more clearly. There seems to be considerable merit in recasting a paraphrase of subs (3), perhaps not so much in the term suggested by Mr O’Regan but rather: “Despite the fact that the principles of common law and equity have been affected over the years by statutes the laws which are to be brought into existence as part of the law of Papua New Guinea are the end product of such statutory modification and not the base data.”

As both counsel have conceded, however, it is clearly a matter of interpretation of the section which is peculiar to the Constitution of this country and after very anxious thought we have rejected Mr O’Regan’s submissions and have formed the firm view that it was not the intention of the Constituent Assembly to introduce statute law into this country by means of modification thereby to the principles of common law and equity. We note that a similar view was taken by the learned trial judge under appeal and also by Kapi J (as he then was) in the Supreme Court decision, Wahgi Savings and Loans Society Ltd v Bank of South Pacific Ltd (Unreported, SC 185, 25 November 1980), although the decision in the latter case was purely obiter.

We list here the reasons which have brought us to our final view:

(1)      Although the word “notwithstanding” can be replaced by such words as “in spite of” or “despite” such procedure still does not really solve the issue for the statement remains ambiguous. One can say that despite the fact that the common law has been amended by statute it is the unamended, “untainted”, “pure” common law which is to be introduced as part of the law of the country. On the other hand, one can say that despite the fact that common law and principles of equity of England have been amended and modified by statutory interference, it is the end product of that interference which is introduced into the country because the modifications by amendment have become incorporated as part of the basic principles of common law. In its most natural meaning however the word “notwithstanding” means irrespective of any modification by statute law.

(2)      As any student learns early in his law course, common law is defined as much by what it excludes as what it includes. For example, the definition appearing in Jowitt’s Dictionary of English Law (2nd ed 1977) points to the long standing distinction between common law on the one hand and equity on the other. It was “that part of the law of England, which before the Judicature Acts 1873-1875 (Imp) was administered by the common law courts, especially the formal courts of the Queen’s Bench, Common Pleas, and Exchequer at Westminster”. The term is sometimes used, the learned author goes on to say:

“... in contradistinction to statute law, and then denotes the unwritten law, whether legal or equitable in its origin, which does not derive its authority from any expressed declaration of the will of the legislature .... It depends for its authority upon the recognition by the courts of principles, customs, and rules of conduct previously existing among the people.”

The Dictionary continues to point out that some of the original common law itself was to some extent modified by statute but nevertheless the end result is still regarded as the common law. This particular aspect is not alluded to by the learned author of Wharton’s Law Lexicon (14th ed 1938) and it may be that recognition is not universally given to the amendment of the ancient common law even by ancient statute. Certainly in this day and age there is generally quite a clear distinction in the mind of the speaker between the common law and the statute law, although there is still a percentage of those who maintain there is a difficulty in distinguishing the two. We note in that scholarly work “The Common Law in Papua New Guinea” by R S O’Regan, a reference to the content of the common law in Malaya by Professor Bartholomew (at 54) in the following terms:

“English law is a complex composed of statute law, common law and equity, and if, in Maitland’s phrase, equity may be regarded as a gloss or appendix of the common law, statute law may be regarded as the addendum and corrigendum of both. To interpret section 3(1) in such a way that only the unreformed version of the English law can be received would surely be rather odd in view of the fact that common law and equity can only be received under section 3 in so far as they are suitable. It would be curious to argue that the unreformed variety was available for Malaya when it had been found unsuitable even in England.”

One immediate reply in relation to this statement is not only does there exist in most jurisdictions a phrase to the effect that the law be received so far as and only to the extent that it is suitable to the circumstances of the country, but further in Papua New Guinea there was a deliberate plan executed to wipe the legislative slate clean at Independence. This is not only apparent from the legislation but is also referred to by such writers as C J Lynch and Professor John Goldring: see, for example, the “Adoption of an Underlying Law by the Constitution of Papua New Guinea” in Melanesian Law Journal, No 1, Vol 1 at 37, and the “Constitution of Papua New Guinea” 143 ff. Mr Lynch, of course, was the first Legislative Counsel in charge of drafting the Constitution. Consistent with this plan it is certainly understandable that any such foreign statute law as was thought suitable to the circumstances of the country would be adopted in more or less specific terms.

(3)      At the time of Independence specific ancient statutes of the United Kingdom were repealed but parts thereof were re-enacted. It may well be thought that the repealed Acts had long since become part of the ordinary common law and the fact that they were specifically brought back into operation by the House of Assembly on Independence Day seems to indicate a conviction that any statutes which had affected the common law were not reintroduced under Sch 2.2(3). We find for example, 14 Geo III Ch 48 and Ch 78, 11 Geo II, Ch 19, 4 Anne Ch 16, 32 Henry VIII Ch 34, and 24 Geo II, Ch 23 were specifically re-enacted, in part, in the Imperial Laws Replacement Act (No 39 of 1975). Whilst George I and George II as well as Queen Anne reigned collectively for a good part of the eighteenth century, we are decidedly going back into ancient history with Henry VIII (1509-1547). One would have thought that the part of the law dealing with landlord and tenant under Ch 34 of Henry’s reign would have long since disappeared into the common law itself in the minds of most people. Why then if the old statutes which affected the common law even as far back as Henry VIII were included by the term “notwithstanding” in Sch 2.3 were these old statutes specifically adopted. A further specific repeal of pre-1828 Imperial statutes was made by the Courts and Laws Adopting Acts (Nos 38 and 41 of 1975). Our point is that the further you go back into the earlier period of common law, the more difficult it is to separate out the common law itself from the statutory changes caused to it. Yet here we see an attempt by the legislature to emphasise that these pre-1828 statutes are not to have any effect in the newly independent nation.

(4)      In the 1927 Papuan Administration of Justice Act it was thought necessary to pass a section stating that if there was any variance between a rule under the division of loss in a matter arising out of a collision between two vessels on 9 June 1927 and the rule which was applicable in Queensland by the courts of common law before 1 January 1877, then the former was to prevail: see s 3(7). It is not clear whether the 1877 rule was brought about by statute or by judge-made law, but the point here is that the incorporation of that old section into the Laws Adoption and Adaptation Act (Ch No 20) after Independence seems to us once again to underline the fact that statutory changes to the common law were not considered to be part of Sch 2.3(3). We might also add here that the Administration of Justice Act was one of the few Acts dealing with courts which remained intact in 1975 and was included in the collection of legislation which was repealed by the Laws Repeal Act 1975.

(5)      Certain statutes of England may still be in existence by virtue of re-adoption under Sch 2.6(2) of the Courts and Laws Adopting Ordinance 1889 (No 6 of Papua) (amended). Whilst this obviously cannot include the Colonial Courts of Admiralty Act, it is quite possible that some of the statutes have amended or altered the course of the common law. If that were so, it would seem odd that the Constituent Assembly would catch up the self-same statutes under the term “notwithstanding” in Sch 2.3(3).

(6)      The High Court decision of Booth v Booth (supra) is certainly not a convincing authority. Rich and Dixon JJ (at 30) do not state categorically that the “principles and rules of common law must be taken subject to and together with the statutory modifications” but “probably”. With great respect to Starke J, his judgment is a very short one and cites no authorities for the proposition which he lays down. Over the years the authority has been the centre of a considerable amount of criticism. It does not form a strong fortress upon which to base one’s attack on the ordinary accepted meaning of the term “common law”.

(7)      It seems slightly odd to us that a newly emergent sovereign nation should deliberately choose to import into its law a large number of statutes of completely foreign origin which were never specifically enacted in its own pre-Independence legislatures. It seems a somewhat back-door method inconsistent with the particularity found elsewhere in the legislation of 15 September 1975.

(8)      Specific provision has been made under Sch 2.3 and Sch 2.4 to fill gaps and develop the law. This is especially so in relation to the underlying law of which the common law and principles of equity in England form a considerable part. The very existence of these two sections could be said to be an indication from the Constituent Assembly that gaps will be found because common law has been affected by statutes which have not been adopted. These Schedules provide the courts with a remedy.

(9)      Section 20(3) of the Constitution together with Sch 2.6(1) adopts certain specific statutes of Australia and the United Kingdom. This process could be interpreted as a way of saying “these statutes and these statutes only shall we import into our law and none other”.

The phrase “any statute of England that does not apply” appearing in Sch 2.2(3) must have a meaning and purpose. What this phrase seems to be driving at is that although certain statutes which are adopted by Sch 2.6 may have an effect on the common law, any other statutes which have such an effect are to be disregarded. It is only the statutes which are brought in under Sch 2.6 which are to be adopted into Papua New Guinea and none other, even if they do affect the common law. Any one of these points taken by itself is not essentially strong and some could be subject to arguments in the reverse direction. But collectively they lead to an almost inevitable conclusion that in using the term “notwithstanding” in Sch 2.2(3) it was the intention of the Constituent Assembly to exclude statutory modifications to the common law. The end result so far as concerns the previous Territory described as Papua is that the 1840 and 1861 Admiralty Court Acts were not brought back into operation after Independence as a means of modifying the common law and accordingly Papua is left with foundations, namely, the pre-1840 common law jurisdiction in admiralty matters and very little structure.

It is true a purist could argue that the old admiralty law was, certainly in early days, not part of the common law at all. It was a specialised field of law practised in the Admiralty Courts by those who were admitted to Doctors’ Commons. There had been a long and bitter battle fought between the two courts when by 1859 the common lawyers themselves were permitted to practise in the Admiralty Courts. Wiswall in his The Development of Admiralty Jurisdiction and Practice since 1800 (1970) at 95 comments that it was due to “the tender care of the remaining civil Doctors that the Admiralty Court underwent in terms of its organisation, its great transition from the civil to the common law”, after the final demolition of the Common Hall of the Doctors’ Commons and the dispersal of its “splendid library”. As Professor Plunknett writes in his Concise History of the Common Law (5th ed 1956) at 663: “... When Coke came to the Bench [1606] he deliberately set himself to cripple the Court of Admiralty and to capture Mercantile Law for the Common Lawyers.” At 664 he goes on to say by way of conclusion that the common law judges “set out to rediscover principles of commercial law which were known to the Admiralty judges several generations earlier, and to fit them into its framework of historical forms”. It is our view, therefore, that when the Legislative Counsel used the term “common law” he was using it in a broader sense and that there was no distinction in his mind or that of the Constituent Assembly between the old common law and the law maritime, not because of any lack of knowledge in the history of the law but simply because to use the term in such a restricted way and thereby exclude the law maritime would be a piece of pure pedantry. To create a distinction in 1985 between the two areas of law when such distinction disappeared to all intents and purposes by the middle of the last century would not only be unrealistic but far from the “fair and liberal interpretation” required under the present day law of Papua New Guinea.

THE MANDATED TERRITORY OF NEW GUINEA BEFORE AND AFTER INDEPENDENCE

We now turn to the position in the pre-Independence Mandated Territory of New Guinea. It is generally agreed that New Guinea acquired its original admiralty jurisdiction by virtue of s 14 of the Laws Repeal and Adopting Act 1921 (hereinafter called the 1921 Act). That section adopted as part of the laws of the Territory of New Guinea those “Acts, Statutes and Laws of England as are in force in the State of Queensland”, on 9 May 1921. Again, it is generally accepted that the Colonial Courts of Admiralty Act came to New Guinea via this particular route. Booth v Booth (supra, at 29) contains at least one helpful aspect in so far as their Honours Rich and Dixon JJ are of the view that “Acts, etc. of England”, in s 14 of the 1921 Act, refers not only to such Acts as were used as a basis for further legislation by the Queensland Parliament itself but also Acts which never received any attention from Parliament. In our view the 1890 Admiralty Act of the United Kingdom was re-enacted by Sch 2.6(2) of the Constitution on Independence for the reasons which follow:

(1)      The 1921 Act was in fact an ordinance made by the Governor-General of Australia-in-Council “in pursuance of the powers conferred by the New Guinea Act 1920 (Cth)”. It was the Act which clothed the newly acquired Mandated Territory with statutes, laws and the “principles and rules of common law and equity in England”. It was thus entirely dependent upon and subordinate to the New Guinea Act 1920.

(2)      In New Guinea, the Central Court had a similar jurisdiction to the Supreme Court of Queensland in civil matters by virtue of the Judiciary Ordinance 1921, s 11. This ordinance was also made by the Governor-General of Australia under the New Guinea Act. The jurisdictional provisions given to the Court by this ordinance were continued through the Papua-New Guinea Provisional Administration Act 1945 (Cth), s 16 and then the Supreme Court Act 1949, s 6, until that was repealed by the Statute Law Revision (Independence) Act (No 92 of 1975) on 15 September 1975. Interestingly enough, a further repeal of the Judiciary Act 1921 was made by the National Parliament on 7 April 1976 by Act No 10 of 1976. We are somewhat puzzled as to why it was thought necessary to include the Judiciary Act in the list of Acts repealed in 1976. Perhaps it was for more abundant caution.

(3)      It is important to note the distinction between the Judiciary Act 1921 and the Laws Repeal and Adopting Act 1921. It was urged by Mr O’Regan that the repeal of the Supreme Court Act 1949 destroyed only the structure of the Court and not the laws it administered. We agree. The Judiciary Act 1921 set up the jurisdiction of the Court. It was the same as that of the Supreme Court of Queensland. It had jurisdiction therefore in admiralty, common law and equity, etc. The 1921 Act however dealt with the laws which were adopted into New Guinea and not with jurisdiction. Those laws were adopted as part of the operative laws in the Territory, and as the Queensland Supreme Court applied the 1840 and 1861 Admiralty Court Acts of the United Kingdom by virtue of the application of the Colonial Courts of Admiralty Act, then such Acts were brought into operation in New Guinea. Such law had to be administered by a court of unlimited jurisdiction, but it remained a law as distinct from any other Act which set up a court for its administration.

(4)      Mr Cooper has argued forcefully that in 1921 the Queensland Supreme Court, and indeed all of the State courts of Australia had no admiralty jurisdiction because of the introduction in 1914 of the amendment section, s 30a, to the Judiciary Act 1903 (Cth). He bases his submissions on the short judgment of Starke J in the case Sharp (John) & Sons Ltd v Katherine Mackall [1924] HCA 37; (1924) 34 CLR 420. The question arose as to whether s 30a was void because the enactment was not reserved for His Majesty’s pleasure as laid down in s 4 of the Colonial Courts of Admiralty Act. Three of the High Court judges did not find it necessary to rule on the matter but Isaacs J came to the opposite view for reasons which we find more compelling than those given by Starke J. As Isaacs J found the section void, there was no question in his mind that the State still exercised an admiralty jurisdiction and we adopt the same course for the same reasons in this case. The end result of adopting that argument is of course that Queensland never lost its admiralty jurisdiction between the period 1914 and 1939, when s 30a was repealed.

However, we believe there is a much more compelling reason for disregarding the effect of s 30a of the Commonwealth Judiciary Act, for the repeal of that section in 1939 revived the admiralty jurisdiction of Queensland, even if it had fallen into oblivion for a period: see Dixon J in Union Steamship Co of New Zealand Ltd v The Ship Caradale: “The Caradale” [1937] HCA 1; (1937) 56 CLR 277 at 280.

On 16 September 1975 what occurred under Sch 2.6(2) of the Constitution was not a continuation of the old laws but a re-enactment by way of adoption. It seems to us therefore that where s 14 of the 1921 Act speaks of “those portions of the Acts ... of England that are in force in the State of Queensland at the commencement of this Ordinance ...”, the reference to the commencing date will no longer be 9 May 1921 but 16 September 1975. The Colonial Courts of Admiralty Act was in operation in Queensland on both dates, and is thus re-enacted as a piece of legislation of the National Parliament on the later date. It would also seem to us that where certain Acts ceased to be applicable in Queensland between 1921 and 1975 then they have not come across into this jurisdiction. However no submissions were necessary on this aspect so we say no more than that.

(5)      The New Guinea Act 1920 was repealed by the Papua and New Guinea Act 1949 (later called the Papua New Guinea Act 1949 (Cth)). By s 32(1) of that Act all laws in force in New Guinea were continued and such “laws” included any “ordinances” made under the repealed New Guinea Act: s 32(2).

(6)      In 1963 an amendment was passed to the Papua New Guinea Act to allow for the creation of a House of Assembly in Papua New Guinea. Prior to World War II each Territory had its own Legislative Council and from 1945 to 1949 the law-making power was given to the Commonwealth Governor-General. The Legislative Councils came back in a combined form in 1949. In 1973 a further very pertinent amendment was introduced. Section 34 of the Papua New Guinea Act reads:

“Subject to this Act, a law continued in force by this Act may be amended or repealed by enactment made under this Act or by a law made under any such enactment.”

At this point some time is worthwhile spent in the area of definitions. The term “this Act” is obviously the Papua New Guinea Act. A law continued in force by the Papua New Guinea Act covers the Laws Repeal and Adopting Act 1921 and thus that Act may be amended or repealed by an enactment made under the Papua New Guinea Act. The same position pertains in the Supreme Court Act 1949 (PNG). An “enactment” is defined in s 5(1) of the Papua New Guinea Act as amended in 1973 to mean:

“(a)    a law made by the House of Assembly; and

(b)      an ordinance made under the Papua and New Guinea Act 1949 (amended) — that is from 1949 to 13 December 1971 when the new name of Papua New Guinea came into effect (Act No 123 of 1971), and the Act as amended became thereafter the Papua New Guinea Act 1949-1971. The Act finally became the Papua New Guinea Act 1949-1975, so one can now read the reference to “an ordinance made under the Papua New Guinea Act 1949-1975.”

The end result therefore is that the Laws Repeal and Adopting Act 1921 being an Act continued in force by the Papua and New Guinea Act could be amended or repealed by the Papua New Guinea House of Assembly, subject to subsequent assent by the High Commissioner. There were also certain reserved areas for the exercise of the discretion by the Governor-General-in-Council.

(7)      The most significant result of this amendment to s 34 of the Papua New Guinea Act may be found in s 2(1)(f) of the Laws Repeal Act 1975. “Enactment” includes:

“(f)     An Act of Australia or of an Australian State or a subordinate legislative enactment made under such an Act, adopted as a law of, applied to or continued in force, or in relation to one of the Territories referred to in paragraphs (a), (b), (c) and (d) but does not include an Act of Australia or of an Australian State which extends of its own force to one of the Territories referred to in paragraphs (a), (b), (c) and (d) ....”

The Laws Repeal and Adopting Act 1921 was a subordinate enactment made under the original New Guinea Act 1920 and therefore ultimately made under the Papua New Guinea Act. It was an enactment which was adopted by, applied to, and continued in force in the Mandated Territory of New Guinea. It was thus an Act repealed by the Laws Repeal Act 1975.

(8)      In addition to the view just expressed above there is another route, though more convoluted, by which the 1921 Act became a part of the law of Papua New Guinea. If a superior legislative body gives its junior law-making authority power to both amend and even repeal the Acts of the superior body, surely that makes such Acts also Acts of the junior partner. They have a like authority which can be exercised in tandem. There are two Acts which we shall return to in connection with this point: (a) the 1921 Act; and (b) the Supreme Court Act 1949. One must bear in mind also that on 10 October 1973 when the Papua New Guinea Act (No 2) 1973, Commonwealth Act No 120, providing for s 34 came into operation the country was just fourteen months away from self-government and less than two years from independence.

In August 1975, the High Commissioner in Papua New Guinea assented to Act No 41 of 1975, the Laws Repeal and Adopting (New Guinea) Act, which repealed all pre-1828 Imperial Statutes “brought in force by the 1921 Act, so far as they are in force in the Territory of New Guinea”. This was achieved by adding a new section, s 14a. A further section was added to the same Act by the House of Assembly but this need not bother us here. The Act came into operation on 15 September 1975. If there was any doubt about the 1921 Act now being an enactment of the House of Assembly despite the fact that it was an Act of the Australian Parliament, we believe this repeal of part of the application of the 1921 Act by the local legislature before Independence puts the matter to rest. On the same day the High Commissioner assented to Act No 39 which re-enacted certain portions of pre-1828 Imperial Acts to ensure their continued operation in Papua New Guinea (the Imperial Laws Replacement Act 1975).

(9)      We have already dealt with the series of repealing Acts which were brought down by the House of Assembly on 15 September 1975. Very briefly, in r‚sum‚, a vast quantity of law which had been introduced into the pre-Independence Territories of Papua and New Guinea via the House of Assembly or its predecessors was repealed under the Laws Repeal Act 1975, not forgetting that the Supreme Court Act 1949 was repealed earlier that day by the Statute Law Revision (Independence) Act 1975. However all the legislative material repealed by the Laws Repeal Act was re-enacted and brought back into operation under Sch 2.6(2) of the Constitution.

(10)    It follows from what we have just said that if one of those repealed and re-enacted laws refers to other laws existing in a particular place, at a particular time then those laws are also part of the re-enacted law. A case in point is the 1921 Act. It will be recalled that the Papua New Guinea Act was amended by the Australian Parliament in 1973 to allow the Papua New Guinea House of Assembly to amend or repeal any law continued in force by the Papua New Guinea Act, s 34. We have said that in our view the 1921 Act became as much part of the Municipal Law of Papua New Guinea as that of Australia. By giving the power of amendment and repeal to the local legislature, the Commonwealth Parliament has made those Acts as if they had been passed by the House of Assembly itself. The House passed not only amendments to the 1921 Act by way of the passing the Laws Repeal and Adoption (New Guinea) Act (No 41 of 1975) but indeed repealed in the same Act certain Imperial statutes in so far as they purported to apply to the newly Independent State. In our view this underlines the fact that the 1921 Act had become an Act of the House of Assembly. Consequently, when Acts of the House of Assembly were repealed so was the 1921 Act. When the pre-Independence laws of the House of Assembly were re-enacted as laws of the new National Parliament so was the 1921 Act.

(11)    Quite separate from the above conclusion based on partnership power is the far simpler proposition following from what we have said in par (7). As the 1921 Act was an Act repealed by s 2(1)(f) of the Laws Repeal Act 1975, it was re-enacted as a new law under Sch 2.6(2) of the Constitution.

(12)    We note that the First Legislative Counsel under the Revision of Laws Act 1973 has used as his legislative basis and source for the Laws Adoption and Adaptation Act (Ch No 20) the Laws Repeal and Adoption Act 1921 as well as the Papuan Courts and Laws Adopting Act 1889 (amended). (The reference to the Act of 1888 in s 1, and s 2 of Ch No 20 must be a typing error as the 1888 Act was repealed by the Supreme Court Act 1949. The 1889 Act of Papua can be found at 2765 of Vol III of the Laws of the Territory of Papua 1888-1945, and was clearly used as the model for the New Guinea Act 1921.)

The revision of laws is essentially a cosmetic and house-keeping matter. Chapter No 20 restates part of the 1921 Act which will become relevant now in conjunction with the phrase: “and apply to the extent to which they applied” used in Sch 2.6(2) of the Constitution. Section 3 of Ch No 20 reads in part:

“(1)    This section applies in respect of that area, that, immediately before Independence Day, formed the Territory of New Guinea.

(2)      ...

(3)      Subject to section 4, those portions of the Acts, Statutes and Laws of England ... that were in force in Queensland on the date of adoption and that are applicable to and can be applied to the area in respect of which this section applies are, to the extent in which they were in force in Queensland on the date of adoption, in force in that area as written laws.”

Section 4 of the Act goes on to state that any such Act, etc:

“... is in force only so far as it is:

(a)      applicable to the area concerned; and

(b)      not repugnant to or inconsistent with:

(i)       the Constitutional laws or

(ii)      any other written law in force in relation to that area.”

Subsections 2 and 3 go on to allow the courts to modify the language of the statutes to correspond with the persons, place, subjects and authorities, etc in Papua New Guinea.

It should not be overlooked that the Laws Adoption and Adaptation Act (Ch No 20) contains several sections which are not Acts of Parliament, particularly ss 1, 5 and 6. As we said, they are interpretations by the revising editor placed on certain aspects of the law forming the basis and source of the Act just as the wording in ss 2, 3 and 4 are interpretations of that source of law rather than a simple restatement of the law. The powers of the First Legislative Counsel given under the Revision of Laws Act 1973 was not an area upon which we were addressed by counsel. It is this Act which also deals with division of loss in admiralty matters: s 13. It should also be noted that the Papuan Administration of Justice Act 1927 was not repealed by the Supreme Court Act 1949 and would thus appear to be in the same category as the 1921 Laws Repeal and Adopting Act of New Guinea. The existence of s 13 we think might indicate that at the time of re-enactment Parliament believed that Papua still retained at least some admiralty jurisdiction.

We are however not so much concerned with the existence of Ch No 20 in the revised laws in relation to the problem which must be solved by this Court. What we are very much concerned about is the phrase already adverted to in Sch 2.6(2) which reads in whole as follows:

“Subject to any Constitutional Law, all pre-Independence laws are, by virtue of this section, adopted as Acts of the Parliament, or subordinate legislative enactments under such Acts, as the case may be, and apply to the extent to which they applied, or purported to apply, immediately before the repeal referred to in Subsection (1)(a) or immediately before Independence Day, as the case may be.” (Emphasis added.)

It is difficult to construe the words which are emphasised in a restrictive sense. Certainly a fair and liberal meaning of the word “extent” must include “geographical extent”. Thus if a law applied only to the Mandated Territory of New Guinea and not to the Territory of Papua previous to Independence, then that was the extent of its application both before Independence and after Independence. It may perhaps be argued that as the Act applies to the whole of New Guinea and New Guinea ceased to exist as an entity after Independence, the Act, if it applies at all, must apply to the whole of the new State, for the Parliament could not mean to enact an admiralty jurisdiction for half of the State only. In short, prior to Independence, the Act applied to a whole entity, not just to a town or a district, and after Independence it must also apply to a whole entity and such whole entity is the entire Independent State of Papua New Guinea. Once again, this area was not canvassed during argument and we would be loath therefore to make any decision on the matter in such circumstances.

We seem to be faced then with the very odd situation that a law has been re-enacted which applies to part of the country only. The proceedings before us did not arise out of a cause of action within that part of the country previously called New Guinea, but stemmed from acts occurring in Port Moresby.

It might also be suggested that the Laws Repeal and Adopting Act 1921 cannot bring in the Colonial Courts of Admiralty Act to one part of the country only, because to do so would be to introduce an inconsistency with the Constitution itself. Such inconsistency would arise not only because of the existence of the opening words in the preamble to the Constitution which state that “the people are united in one nation”, but also from s 1 of the Constitution which declares the Emergence of a Sovereign Independent State which by s 2 thereof has an area bereft of division between a place previously called Papua and a place previously called New Guinea. For the same reason it may be said that the Colonial Courts of Admiralty Act cannot be introduced by the Laws Repeal and Adopting Act 1921 via Sch 2.6(2) because it is “inapplicable or inappropriate to the circumstances of the country”. In both instances therefore to introduce such a law would be in breach of Sch 2.2(1)(a) and (b) because of the re-introduction of a division created in colonial times which had been done away with by the newly emergent Constitution.

Certainly the First Legislative Counsel under the Revision of Laws Act 1973 has come to the conclusion that the word “extent” means “geographical extent”. Following the phrasing which he utilised in s 2 and s 3 of the Laws Adoption and Adaptation Act (Ch No 20) the revising editor introduced a special s 1 into the Native Administration Regulations (TNG) (Ch No 315) in the following terms:

“By virtue of Section Sch 2.6(2) (Adoption of Pre-Independence Laws) of the Constitution, this Regulation applies in relation to the area that, immediately before Independence Day, formed the Territory of New Guinea.”

(Chapter No 315) deals almost exclusively with succession to property and the crimes of adultery and enticement and stems from the old New Guinea Native Regulations. Its Papuan counterpart may be found in (Ch No 316) which has a similar s 1 inserted. More dramatic however in its application to one part of the country only is the revised Act (Ch No 42) entitled the “National Court Assessors Regulation” which provides for the use of assessors in the previously Mandated Territory of New Guinea and purports to restrict its operation to that area only. One could foresee that there might be certain constitutional difficulties in the way of applying this Act. We would sympathise with those persons previously called Papuans if they complained that the people on the other side of the range and in the New Guinea Islands were obtaining special privileges in a criminal trial. On the other hand, a person coming from the previous area called New Guinea may complain that his conviction was not a just one because he had been convicted not only by a judge but by two assessors as well and his Papuan counterparts do not have to put up with that sort of thing. We would hasten to point out that to our knowledge the use of assessors was made only once during a criminal circuit in Kieta in 1976 although there may have been another circuit elsewhere about the same time where assessors were used.

We believe however there is an answer to the arguments which we have outlined just above. We would agree that it is almost impossible to imagine that the Constituent Assembly intended to introduce a law for only one part of the country, at least in the absence of a precise statement to that effect. Certainly to introduce the Colonial Courts of Admiralty Act in this way would be to leave a very large gap, namely, half the country. The answer is simple. The Constituent Assembly has provided in the Constitution itself the very solution to the problem in its direction by Sch 2.4 to the judiciary to develop the underlying law. In this case the underlying law can be said to exist in relation to one part of the country. It seems to us to be “development” in the true sense of that word to ensure both consistency and a “coherent system in a manner that is appropriate to the circumstances of the country”, for this Court to extend the development of the law to the area of the pre-Independence Territory of Papua by using the Colonial Courts of Admiralty Act as analogy, and thereby achieve an interlocking area of law for the whole country. Such development should not go beyond the 1890 Act (and its underlying Admiralty Acts as amended to 1921). That Act of course introduced into the pre-Independent Territory of New Guinea not only the common law of England but the statutes 3 & 4 Vic c 65 (1840) and 24 Vic c 10 (1861). We note that the learned author of the Laws of Papua has not included the 1861 Act as a statute of England adopted as a law of the Territory of Papua (see for example Vol V at 91). Presumably therefore if he were doing a similar exercise in relation to the Mandated Territory of New Guinea he would produce the same result. We have been unable to find any reason why the 1861 Act should be left out.

In our final view the Colonial Courts of Admiralty Act was introduced to the new Independent State for a part of the country, and there is a duty cast on the judges of the Supreme Court by the legislature to develop the underlying law as a whole. The development we make is an application of the 1890 Act to the whole of Papua New Guinea and not just a part of it. In doing so we follow the same course as the learned trial judge and utilise the provisions of both Sch 2.3 and Sch 2.4 which read as follows:

“Sch 2.3.       Development, etc, of the Underlying Law

(1)      If in any particular matter before a court there appears to be no rule of law that is applicable and appropriate to the circumstances of the country, it is the duty of the National Judicial System, and in particular of the Supreme Court and the National Court, to formulate an appropriate rule as part of the underlying law having regard:

(a)      in particular, to the National Goals and Directive Principles and the Basic Social Obligations; and

(b)      to Division III.3 (basic rights); and

(c)      to analogies to be drawn from relevant statutes and custom; and

(d)      to the legislation of, and to relevant decisions of the courts of, any country that in the opinion of the court has a legal system similar to that of Papua New Guinea; and

(e)      to relevant decisions of courts exercising jurisdiction in or in respect of all or any part of the country at any time,

and to the circumstances of the country from time to time.

(2)      If in any court other than the Supreme Court a question arises that would involve the performance of the duty imposed by Subsection (1), then, unless the question is trivial, vexatious or irrelevant:

(a)      in the case of the National Court — the court may; and

(b)      in the case of any other court not being a Village Court — the court shall,

refer the matter for decision to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.

Sch 2.4.        Judicial Development of the Underlying Law

In all cases, it is the duty of the National Judicial System, and especially of the Supreme Court and the National Court, to ensure that, with due regard to the need for consistency, the underlying law develops as a coherent system in a manner that is appropriate to the circumstances of the country from time to time, except insofar as it would not be proper to do so by judicial act.”

Some of the relevant statutes referred to in Sch 2.3(c) are the Merchant Shipping Act (Ch No 242) and the Navigation Act 1912 (Cth), and of course the Colonial Courts of Admiralty Act as in operation in the area previously called New Guinea. This Act would also be analogous under Sch 2.3(d).

ALTERNATIVE REMEDIES AND ABSENCE OF LAW

We now deal with the main arguments put forward by Mr Cooper in his submissions against development of the law in this type of case.

Counsel lays great emphasis on the utility of the Mareva injunction in many areas already covered even in the United Kingdom Admiralty jurisdiction, and refers to Vol XIV in the British Shipping Laws by D R Thomas on “Maritime Liens” Sweet & Maxwell, (1980) to stress the efficacy of such an injunction over a writ in rem on certain occasions. Indeed common law and equity have been advanced so far by the emergence of the Mareva injunction (described by Lord Denning in his “Due Process of Law” as that “greatest piece of judicial reform” of his day), that there are some who doubt as to the necessity for Admiralty courts at all. The Australian Law Reform Commission’s Report on Admiralty Jurisdiction points out that there is no counterpart of an admiralty jurisdiction in many Western and European countries. This is so, they say, because a distinct jurisdiction to deal with such matters is not “an essential part of a modern legal system”. Lord Coke must be overjoyed. His wish to see the Court of Admiralty utterly vanquished is about to be realised, if we accept Mr Cooper’s submission.

There is no doubt a great deal of truth in what counsel says. The point of the submission is of course, two-fold. If there is an adequate remedy to cover what is essentially an action in contract, tort and bailment and also to secure assets of a defendant before judgment, there is no gap in the law at all. Alternatively, even if there were a gap it is unnecessary for the courts to develop any underlying law either under Sch 2.3 or Sch 2.4 for there are other remedies available to a citizen which adequately meet his requirements in a set of circumstances such as the present.

Mr O’Regan has furnished us with the number of points of difference between an action in rem and the Mareva injunction and some of these we adopt or modify.

(1)      Rights in rem arising out of a maritime lien travel with the vessel irrespective of ownership and come into existence automatically on the occurrence of the incident giving rise to the lien (per Scott LJ in United Africa Co Ltd v Owners of MV Tolten; “The Tolten” [1946] 2 All ER 372 at 379). Admittedly, the rights arising under a statutory lien are more restricted than under the more ancient maritime lien but they are still very extensive. The lien does not include or require possession and is “the foundation of the proceeding in rem”: Harmer v Bell, “The Bold Buccleugh” [1850] EngR 162; (1852) 7 Moo PCC 267 at 284; [1850] EngR 162; 13 ER 884 at 890.

(2)      The Mareva injunction is a personal action which merely “prohibits the owner from doing certain things in relation to the asset”: per Buckley LJ in Cretanor Maritime Co v Irish Marine Management; “The Cretan Harmony” (1978) 1 Lloyd’s Rep 425 at 429. Depending on the particular circumstances of a case it may well not have the desired effect of keeping the asset in the jurisdiction. Mr Cooper has referred to contempt proceedings but the threat of such proceedings may be much more a matter of theory than practice. No Marshall is in charge of the vessel and the owners or masters may well be prepared to run the risk of a contempt action when balancing their debits and credits.

(3)      The maritime lien gives rise to a claim in the nature of a security. There is a specific ranking of priorities for payment out of court from the fund held by the Admiralty Marshall. This order of priorities can be extremely important to the creditor although the ranking which attaches to the maritime lien is higher in the order than the statutory lien (see generally “The Immacolata Concezione” [1883] UKLawRpPro 65; (1884) 9 PD 37).

(4)      Perhaps most important of all, the issue of a Mareva injunction is a discretionary matter whilst the writ of arrest is not. The registry must issue the warrant once the writ of summons and praecipe have been filed. There are a number of matters upon which a court must be satisfied before it will issue the injunction and despite Mr Cooper’s suggestion that the injunction may be easier to obtain than the writ, we remain unimpressed. In Nimemia Maritime Corp v Trane Schiffahrtsgesellschaft GmbH und Co KG; “The Niedersachsen” [1983] 2 Lloyd’s Rep 600, the Court of Appeal lists the matters relevant to the granting of such an injunction and not unnaturally, they bear a great similarity to any other form of injunction. The evidence must be looked at as a whole and “although a good arguable case was no doubt the minimum which the plaintiffs had to show in order to cross the threshold for the exercise of the jurisdiction, the court had to consider the evidence as a whole in deciding whether or not to exercise this statutory jurisdiction” (at 614). There was also the question of hardship to be explored, and that refusal would involve “a real risk that a judgment or award in favour of the plaintiffs would remain unsatisfied” (at 617).

We might add in passing that during the preparation of this judgment the National Court set aside an ex parte Mareva injunction involving the detention of a vessel basically because of a failure by the plaintiff to meet the requirement of establishing “a good arguable case” as discussed in the “Niedersachsen” (supra) and Bennet v Grainger (Unreported, OS No 107 of 1985, 10 December 1985).

(5)      Finally, although it is not put forward as a legal point, it would nevertheless be quite unrealistic to ignore the difficulties which may arise in identifying the proper defendants or even their agents let alone arranging proper service. This may not be so apparent where all the facilities of a modern commercial legal practice exist, but there are parts of this country where very little exists other than the wharf at which the ship loads or the bay in which she is anchored. There is no law to say that the shipping agent or the crew of the offending ship must co-operate with a dissatisfied resident and give him the information he requires.

In our view there are distinct advantages arising from the implementation of the action in rem which stems from the maritime lien. We do not believe that the Mareva injunction is alone an answer to or supplants in particular circumstances the far more efficacious action in rem. To refer to Mr Thomas’ work on “Maritime Liens” (1980) (at 76):

“where a choice exists, it is difficult to apprehend that a claimant would choose to proceed otherwise than in rem. The significance of the emergence of the Mareva injunction is that it provides a claimant in rem with a possible means of supplementing the limitations inherent in that form of proceedings.” (Our emphasis.)

Mr Cooper has also drawn our attention to the remedies available to a claimant under the Merchant Shipping Act and the Navigation Act of the Commonwealth of Australia. At Independence the whole of the United Kingdom Merchant Shipping Act (as amended) until 1923 became part of the law of Papua New Guinea by Sch 5, Pt II, as was the Commonwealth Navigation Act 1912. Whilst they cover certain aspects of Admiralty, they do not create any rights in rem nor any ranking of priorities for payment. In so far as s 283 of the Commonwealth Navigation Act is concerned, learned counsel’s submissions do not take account of a number of factors which may operate before public officials are prevailed upon to take ultimate action.

In the final analysis therefore, we believe there is a serious defect in our law, at least concerning that area of the country previously described as Papua. Whether that defect could be described as a gap, a hole, a hiatus, or otherwise, is perhaps a matter of terminology. But it is there and the availability of other remedies, does not, in our view resolve the problem. This is especially so where certain rights would accrue in one part of the country but not in another. So that we will not be misunderstood we repeat our earlier conclusion. There is for the whole of the country that underlying law which arose from the practice and procedure of the Admiralty Courts of England before 1840. It must follow that the maritime lien for salvage and collision for example would not only attach but could be enforced in any part of post Independence Papua New Guinea. When one comes to the liens and rights of arrest which derive from the 1840 and 1861 Admiralty Court Acts of the United Kingdom, then such can only be enforced if the vessel were in waters previously described as Territory of New Guinea. Such situation cries out for a remedy and we believe that remedy is available to this Court.

If one goes to the opening words of Sch 2.3 there must be, as Mr Cooper has stressed, a particular matter before the court. Certainly, that is the position here, namely, a claim for damage to cargo covered by the Admiralty Court Act 1861, s 6. It is obvious that there is no rule of law in the Admiralty jurisdiction in the area previously known as Papua to cover the situation. If Sch 2.3 in the Constitution were the only section dealing with the matter of development, we would feel constrained to restrict any ruling merely to an action of the sort brought before the learned trial judge. We would formulate an appropriate rule of law concerning damage to cargo as part of the underlying law having regard more particularly to par (d) of Sch 2.3. The relevant legislation is that of the United Kingdom, the Commonwealth of Australia and its States, and that part of this country previously called New Guinea.

We do not think the matter rests there however because under Sch 2.4 there is a duty on the Court to develop a coherent system and in the performance of that duty we believe the relevant coherent system of law here is not only to adopt that part of the 1861 Act which deals with damage to cargo but the entire Act together with its predecessor in 1840. By so doing, one would then bring the law applicable in both areas of the country into a unified whole.

It is our firm belief for a number of reasons that the area was simply overlooked in the rush of legislation which flooded through the Legislative Counsel’s office immediately prior to Independence. The oversight was perhaps compounded by the fact that the original jurisdiction in one part of the country stemmed from a different source and for different reasons than that from the other. Although the research was obviously extremely thorough it is perhaps not surprising that some oversight was made. We think that that oversight has come to light in these proceedings. We certainly have not been convinced by counsel that there may have been a deliberate intention to reject the pre-Independence jurisdiction in admiralty. We have heard no reason which could support such a contention and we believe everything points to the opposite conclusion. We believe that there has been an omission through error, understandable enough when one is called upon to examine the hazy background of the admiralty jurisdiction.

Mr Cooper has laid particular emphasis on the Supreme Court judgment Constitutional Reference No 1 of 1977 (Sch 2.3) [1978] PNGLR 295. This was a case involving the common law action for enticement brought by a husband against his wife’s seducer. The action was entirely eradicated in the United Kingdom by the Law Reform (Miscellaneous) Provisions Act 1970 and consequently was not part of the common law by any interpretation of the word “notwithstanding” at Independence. The major difficulty which stood in the way of the Court formulating any rule was a lack of evidence on custom either one way or the other. Although Prentice CJ made reference (at 299) to the fact that legislation was likely to be before Parliament “in the relatively near future”, we are of the view that the main reason for the decision stemmed from this lack of evidence before the Court. Saldanha J certainly did lay some emphasis on the fact that a bill was ready for presentation and was likely to be debated later that year. It is clear from the nature of the original action that it was one in which his Honour justifiably felt that the Members of Parliament were in a better position to formulate a law on the matter than “expatriate Judges of the Supreme Court”. The relationship of husband and wife and the attitude generally in this country of men to women brings one into a veritable minefield. We have some sympathy with their Honours’ reluctance to become embroiled in the emotive area of enticement. We faced a similar problem in a recent Supreme Court case involving evidence by spouses in the witness box particularly in that area where a wife is forbidden to give evidence against her husband except in certain limited circumstances. We, too, felt that this area was best left to the Members of Parliament representing a true Papua New Guinea view at village level: see SCR No 3 of 1985; The State v Uniss Kamugaip [1985] PNGLR 278.

We do not think the same circumstances exist in this case and we do not believe the reference to the bill before Parliament was meant to be taken by either of their Honours in 1977 as a necessary preventative to action being taken by the Court. We may also add at this point that there has been “loose talk” for some years about a new admiralty bill being brought down in the House. We have no evidence about the present position. When and if that will happen is anyone’s guess and we do not believe that we should take any notice of this aspect. It would be engaging in pure speculation and certainly we do not consider it an area which we should take into account without clear evidence on the point having been placed before the learned trial judge.

Finally, even if a matter were to go before Parliament at some stage in the future, there is nothing to prevent that body from completely reversing whatever this Court does. It may be of course that the decision of this Court could galvanise some action in the legislative branch of Government and although we accept Mr Cooper’s admonition for the Court to be careful to avoid encroaching in what is a legislative area, we think the circumstances of the present case illustrate in a classic way the very reason for the existence of Sch 2.3 and Sch 2.4.

RETROSPECTIVE DEVELOPMENT

We turn now to an area which has worried us considerably. Mr Cooper has pointed out quite correctly that a statute of Parliament itself does not normally have retrospective effect and that if it does do so, it is cast in specific terms to achieve that effect. He further argues that if the Court made a ruling under Sch 2.3 and Sch 2.4 then such ruling should have prospective effect only and should not affect the rights of the parties currently before this Court. Basically what counsel says is simply this — if there was no rule of law applicable to the circumstances of this case at the time the incident occurred, then there was no cause of action and no basis upon which to issue the writ of summons. “There were no vested rights or obligations and citizens are entitled to order their affairs on that basis.” Might we just interpolate one peculiar twist in the present matter brought about because of a difference of view from the National Court bench. Kapi J and Miles J had both independently come to the view in a case involving the same vessel, but in two different actions, that an admiralty jurisdiction did exist in the whole of the country. Shortly after their reasons were handed down, Bredmeyer J, who had reserved on the point in “Aya Trigon” (supra), came to the opposite view and relied particularly on the all-important Statute Laws Revision (Independence) Act (No 92 of 1975) which had not been brought to the attention of or considered by his two brother judges. We endorse the views on judicial comity expressed in the case of Denis McEnroe v Felix Mou [1981] PNGLR 222 and we do not propose to repeat them here. Suffice it to say that a relevant statute was not considered in the two earlier judgments and that statute undoubtedly had a major effect on Bredmeyer J’s reasoning. The point is, however, it is not correct to say that citizens would order their rights according to the existing state of the law, or more accurately what was believed to be the existing state of the law. The Law Reports show that other cases, both before 1980 and after 1980, were dealt with in the admiralty jurisdiction and the preponderance of views might well have been that until the Supreme Court ruled otherwise there did exist in Papua New Guinea an admiralty jurisdiction. Consequently in the present case, we do not think the plaintiff/respondent could be criticised for pursuing the course that he did and proceeding on the basis that the cause of action was justified under two separate and independent decisions of the National Court.

Mr Cooper continues however that a reading of Schs 2.3, 2.4 and 2.5 together with s 20(2)(b) of the Constitution makes it clear that any law laid down or declared shall be the law as and from the date of the decision and not one which will affect the parties before the Court. Perhaps that is a slight simplification of what learned counsel has put to us but that is really what it amounts to. There are two legs involved in this contention. First, the court finds that there was no rule of law and secondly, that it fills the gap by formulating one. Until there is a decision that no such rule of law exists, then of course the parties are not any the wiser. In the present instance, the plaintiff believed there was no gap and pointed to two decisions of the National Court to support his case and has continued to do so during this appeal. The defendant/appellant, on the other hand, has pointed to a contrary decision in conjunction with the present matter under appeal where the same judge was involved. Counsel urges, however, that his Honour was wrong in formulating a principle of law and should have followed his earlier decision, “Aya Trigon” (supra) and simply ruled against the cause of action leaving the parties to any claims they may have in contract, tort or bailment under the ordinary law by an action in personam.

Appellant’s counsel has also emphasised a distinction between the situation envisaged by the Schedules to the Constitution and that actually encountered by the common law courts when developing the law in the time-honoured tradition of the judges. An obvious example is Donoghue v Stevenson [1932] AC 562. Prior to the decision, it had been believed that a person had no remedy. However, says counsel, “the law had developed to that point in time so that the court could say by its previous development, it had got to a stage where the law now is, and it operates inter partes”. Another classic example is Rylands v Fletcher (1868) LR 3 HL 330. Thus the development in the common law is different to the constitutional position under which a declaration is made that there was no law at all and then proceeds to find a solution. In short, the best the parties can hope to achieve is a statement of the law for future litigants and the community but no solution to their own particular dispute.

Mr O’Regan, however, does not see the development of the common law in this way at all. Such would be “a surprising conclusion and would be at odds with the normal principle that any decision of the Supreme Court will act retrospectively”. Not only is there a power to make law given to the judges of the Supreme Court under the Constitution in this country but a duty to do so. “The very purpose of the development of the underlying law is to provide a rule which is applicable and appropriate to the instant case.”

We must say that we have some difficulty in accepting the proposition that the intention of the legislature in drafting the Schedules was to send the litigant away empty handed, save for the small solace that he may have added to the clarity of the law for his fellow citizens. Further, it does seem to have the end result of bringing about what might almost be termed an advisory opinion on the law in so far as it has no effect on the parties who have come before the Court for the purpose of having their dispute resolved. As Mr O’Regan says however in one respect, every court decision has a retrospective effect. Let us assume that the Supreme Court finds that although the National Court judges had on all occasions believed a jurisdiction to exist up until the time of ruling, there was in fact no jurisdiction. This clearly has a retrospective effect on the parties in that whilst the law up to that point in time says there has been a jurisdiction, the Supreme Court has finally ruled that there was no such jurisdiction at all.

Let us then take the matter one step further. Assuming that the Court has power to remedy the lack of jurisdiction, then is not the logical and reasonable concomitant of that power, an ability to rule in a manner which will affect the parties who have come before the Court to seek such ruling. If the Constituent Assembly had given the Court the power to fill in a gap in the law it would seem somewhat odd to us if it were not meant to apply to the parties who had come before the Court in the first place even though logically that ruling must entail a declaration that the law did not exist at the time of the incident. The logic that if there is no rule of law then there is no cause of action in existence and thus no right for the party to bring an action is equally met by the logic of the argument that if the parties had come before the Court, and the Court is given the power to rule that there was no law, and is given the further power to fill such gap, surely that must be to meet the situation which has arisen then and there in the face of the Court. The whole purpose of filling in the gap is to give a solution to the dispute which exists between the two parties coming before the Court in the first place.

We believe we can look at the legislation and ascertain a general thrust revealed from the material as a whole (there being nothing contained in the Report by the Constitutional Planning Committee of assistance in this area). Obviously it is the words themselves used in the Schedule which are most important and are required to be given their “fair and liberal meaning”, taken from “time to time” (Sch 1.4) — that is the 16 September 1975, the date the cause of action arose, and the date of judgment.

Schedule 2.3(1) commences “If in any particular matter before a Court ...”. Subsection (2) starts with the phrase, “If in any court other than the Supreme Court a question arises ...”. As a result of this consistent reference to a court and to a matter before a court, it is difficult indeed not to agree with Mr O’Regan’s submission that the prime purpose of the law-making power under the Schedules must be to deal with the “existence of a problem in the context of a case which is before the Court”. Although Mr Cooper refers to s 20(2)(b) of the Constitution we do not believe that section adds anything to the matter one way or the other. Nor do we find any benefit from reading Sch 2.5. That merely directs the judges to submit a report “if it is desirable to do so”. It is not an escape clause to be used in order to allow the judges to avoid their responsibility and duty when the occasion arises under Sch 2.3 and Sch 2.4. We frankly find it incomprehensible and quite against accepted legal theory that a party should come before a court which, although given power to develop a law in that party’s case, turns him away without a remedy. We have been driven inexorably to the conclusion that despite the Court finding a gap in existence at some anterior point in time, it must fill such gap retrospectively.

If that is so, then at least in the circumstances of this case where a gap relates to half the country and the development is made on the basis of what existed in the other half at the time of Independence, another logical step must follow. Not only is the developed law retrospective, but it is retrospective to 16 September 1975. Thus the whole law of Papua New Guinea in the particular area is consistent and coherent from its inception. This may be of no assistance to persons who, for one reason or another, did not bring their Admiralty actions prior to the development that we would enunciate in this Court, for they will still be governed by the various limitation periods. But it does produce an ascertainable body of law for the whole country, albeit somewhat ancient and in need of modernisation.

In the final event, there is by statute and by development of the law under the Constitution, Sch 2.3 and Sch 2.4 an admiralty jurisdiction for the whole of Papua New Guinea within the parameters and limitations set down in the Colonial Courts of Admiralty Act of the United Kingdom. For what was previously the Territory of New Guinea it may be found in the adopted 1890 Act and the two earlier Acts, 3 and 4 Vic, c 65 (1840) and 24 Vic c 10 (1861) together with the pre-1840 common law. For the Papuan area it comes from a development of the underlying common law from 1840, by analogy to the 1840 and 1861 Imperial statutes through the Colonial Courts Admiralty Act as adopted into the Territory of New Guinea in 1921. Thus the two areas have one unified coherent system of law, consistent with their political unification as one sovereign State. We can only recommend to the Government of the day that they bring down a new up-to-date admiralty bill as a matter of urgency.

We dismiss the appeal with costs.

Appeal dismissed

Lawyer for the appellant: Brian White and Associates.

Lawyer for the respondent: Beresford Love Frances and Co.