Conference on the Underlying Law Act

Alotau, 1st December 2010

Remarks
By the Chief Justice of Papua New Guinea Sir Salamo Injia, Kt.

INTRODUCTION

The underlying law in Papua New Guinea is the base law. Where there is a gap in the written law on a particular subject, the underlying law fills the gap. 

Since the advent of colonization Papua New Guinea has been governed by written laws in various forms. The written laws make provision recognizing custom and common law as a sources of the underlying law and Courts were entrusted the responsibility of developing the underlying law. Whilst common law did not attract any specific conditions for its application, custom attracted stringent conditions for its proof and application in criminal and civil cases before the Courts. But there is limited legal literature to trace judicial development of the underlying law. 

Of immediate concern to this audience today is the judicial development of the underlying law since Independence. The framers of the Constitution understood the importance of the development of the underlying law as one of the critical essentials of modern nation building. Section 9 of the Constitution, defines the laws of PNG as including the underlying law. Section 20 of the Constitution made provision for an Act of the Parliament to provide for the declaration and development of the underlying law but until such time as an Act of Parliament is enacted, the provisions of Schedule 2 of the Constitution applied. Schedule 2 declares custom and common law of England as at independence as two sources of the underlying law and provide for their recognition and application to cases. Schedule 2.3, 2.4 and 2.5 of the Constitution entrusts the responsibility for developing the underlying law on the courts of the National Judicial System, and especially the Supreme Court and the National Court, and to ensure that underlying law develops in a consistent and coherent manner that is appropriate to the circumstances of the country. 

In 2000, the Parliament enacted the Underling Law Act (the Act). The Act adopted the same sources of the underlying law: customary law and the common law of England in force immediately before independence. The Act provides for methods and processes for developing the underlying law, which in many respects are similar to those provided in Schedule 2 of the Constitution. 

Prior to the Act, the National Court and the Supreme Court dealt with numerous cases in which involved the application of custom and common law. 

Since 2000, both Courts have also dealt with many cases in which custom and common law principles have been considered. In a small number of cases the process under the Act has been applied to formulate a rule of the underlying law. 

Since independence the Supreme Court and the National Court, through the discharge of judicial function by individual judges in individual cases, and in accordance with common law tradition, have adopted a case-by case basis approach in discharging this important function. The task has been left to individual Judges to perform in individual cases as assisted by the parties through their lawyers. To assist us in our deliberations, I make a few remarks to set the stage for the conference, in the following areas:- 

1.	Development of the underlying law from 1975 – pre-Underling Law Act 2000. 
2.	Development of the underlying law post Underlying Law Act 2000. 
3.	Courts of the National Judicial System and their role in the development of the underlying.
4.	Conclusion. 

Development of the underlying law prior to the Underlying Law Act 2000. 

Judicial development in this period has been undertaken on an ad hoc basis or a case by case approach. The steps in this approach are summarized in Appendix 1. This approach has produced a body of underlying case law that is lacking in an appreciable measure of comprehensiveness, consistency and coherency 

This is not to say that the Courts have not discharged their duty to develop the underlying law. Thorough research is necessary to establish the full extent of judicial development of the underlying law in this period. From my brief research, I am able to produce some raw data on cases for reference purposes and those are set out in Appendix 2 and 3 under the following categories:

•	Custom not recognized.
•	Custom recognized.
•	Reception of common law.
•	Formulation of new rule of the underlying law. 

The Underlying Law Act is enacted against this background of judicial activism and is intended to address the problems experienced in the past. 

Development of the underlying law under the Underlying Law Act 2000.
Opening remarks

By way of opening remarks, implementation of the Underlying Law Act is has been and still is the duty of the courts of the National Judicial System (NJS), and especially the higher judiciary, which is required to play an active and leading role, in ensuring that  "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 " (Schedule 2) or  "The courts, especially the Supreme Court and the National Court, shall 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. " (s 5 of the Underlying Law Act). The task of developing the underlying law is a collective one that should involve other Courts of the NJS. 

Prior to the Act, there was some confusion as to the role other courts of the NJS in developing the underlying law. This point is resolved by the Act by spelling out the role of other Courts, without specifying what those other Courts are. In my view, those other courts include other Courts of the formal legal system and informal legal system: District Courts, Village Courts, Land Courts and so on. Let me explain.

The Constitution, s 155 (1) spells out the Courts of the National Judicial System (NJS), as consisting of: 

(a)	The Supreme Court; and
(b)	The National Court; and
(c)	Such other Courts as are established under Section 172 (establishment of other courts). 

Section 172 states:

172.	Establishment of other courts.

(1)	Subject to this Constitution, Acts of the Parliament may establish, or provide for the establishment of, courts within the National Judicial System in addition to the Supreme Court and the National Court, and may define, or provide for the definition of, their respective powers, functions and jurisdictions and their relationship with other components of the National Judicial System.

(2)	Courts established under Subsection (1) may include courts intended to deal with matters primarily by reference to custom or in accordance with customary procedures, or both.

(3)	Full-time members of courts established under Subsection (1) (other than courts referred to in Subsection (2)) shall be appointed by the Judicial and Legal Services Commission, and may be removed from office in accordance with an Act of the Parliament, but only for incapacity or misbehaviour (including, if applicable, misconduct in office).

(4)	Acts of the Parliament may make provision for or in respect of the appointment and removal from office of members of courts referred to in Subsection (2).(underlining is my emphasis).

Section 172 (1) makes provision for Acts of the Parliament to establish other Courts of NJS. Subsections (1) and (3) are intended to make provision for other Courts of the formal legal system. District Courts established under the District Courts Act come under those provisions. Subsections (2) and (4) are intended to make provision for informal Courts. Village Courts established under the Village Courts Act and Land Courts established under the Land Disputes Settlement Act, come under those provisions. 

Reading together s 155 (1) and s 172 (2), the Courts of NJS consist of all Courts established in Papua New Guinea by the Constitution or by Acts of the Parliament as authorized by s 155(1) (c) and s 172. The Courts of NJS as presently established are the District Courts, the Village Courts and other special Courts established by statute. 

Therefore the duty is on all Courts of the NJS to collaborate in developing the underlying law, of course with the higher judiciary taking on a leadership role.

The Courts of the NJS that are well placed as Courts of first instance on cases involving custom are the Village Courts, the District Courts and other Courts such as the Land Courts. The enabling statutes make provision for cases or disputes founded on custom to be brought before those Courts to be determined primarily by application of customary law. These Courts have been operating for many years in all parts of the Country. There is a wealth of information by way of custom that is recorded in judicial pronouncements by those courts. They continue to hear such cases and make judicial determinations on custom. That information is the ideal and best evidence of the development of the underlying law. That is the underlying law. However little is known of those pronouncements and determinations because those decisions are not published. That information needs to be ascertained and published as reference information which would then also provide an ideal source of information to the National and Supreme Courts to develop the underlying law. 

The Underlying Law Act contains an important provision (s 8) which provides for all Courts of the NJS to play a part in the development of the underlying law under the supervision of the Chief Justice through a review process. Given the definition of courts under the Act, that would include District Courts, Village Courts and Land Courts. Village Courts are not formal Courts but they have an important role to play in assisting the formal Courts to develop the underlying law. I outline their role towards the end of my paper.

Evidence and information placed before the Courts (s 11) is the first step in the judicial process and is critical to judicial development of the underlying law. Parties are required to  "bring evidence and information " on custom. Where parties are represented by lawyers, a duty is placed on lawyers to assist the Court by bringing evidence and information on custom. The question as to the existence of custom is one of law and not fact (s 16) but it would seem this does not remove the onus placed on the parties to produce  "evidence or information " on the custom in question. It seems the Court is dependent on the parties produce evidence and information. Should the Courts or the institutions of government charged with development of the law assist the parties in providing evidence or information on custom? This is an important issue because if matters are left entirely to the parties and lawyers, we may see a repeat of the past where parties due to cost factors may not be keen to pursue that course. The Court should be in a position to call up the necessary information on custom. 

 From the perspective of the higher Courts, I mention a few practical aspects at the outset, on implementation of the Act that may generate discussion at this conference, as follows: 

•	The Courts’ lack of appreciation of the importance of the task at hand.
•	Quick resort to common law and slavishly following common law precedent.
•	Lack of information/literature / evidence on custom furnished to the Court by:-
•	The Court’s sources. This is hampered by lack of adequate resources to conduct its own research and gather information on a particular custom or custom generally.
•	Lawyers and parties not prepared to call evidence in cases.
•	Published literature, report, reference material etc by the executive government.
•	Published literature, etc by private sources. 
•	Lack of case law and other published reference material /information on custom material from District Courts, Village Courts, Land Courts and other Courts. 

How have the higher courts discharged their duty to develop the underlying law under the Underlying Law Act?

Implementation of the Underlying Law Act in the higher Judiciary: 

The Underlying Law Act 2000 came into force in August 2000. 

Since the introduction of the Act quite a number of cases in the National and Supreme Courts have referred to the underlying law, although not necessarily to the new Act. Most of those cases are simply acknowledging that some part of the common law of England was adopted as part of the underlying law at Independence Day. For example, the duty of care in tort, the slip rule as it applies to Courts of final appeal, the law relating to malicious prosecution, the doctrine of ratification, contract law, the principles of negligence in tort, vicarious liability as it applies to the State, and that the standard of proof in criminal cases is the standard of  "beyond reasonable doubt " . Judge-made rules as to how to apply a statute in circumstances not specifically provided for by the statute, for example how to proceed when in a petition to wind up a company on the basis of an undisputed debt is defended by a cross claim, have also been recognised by the Supreme Court as part of adopted common law forming the underlying law.
The District Court has demonstrated it is also aware of the sources of the underlying law received at Independence.

Some attempts have been made in the National Court to develop the underlying law. At the National Court level it has been recognised that where a party seeking to rely on custom it must be clearly pleaded. However there are justifiable criticisms of all of the decisions which have modified the underlying law, which may prevent those decisions being followed by the judges of the National Court or adopted by the Supreme Court. The criticisms fall into 2 categories; either it does not appear from the reasons of the court that the court was aware of the introduction of the Underlying Law Act and made reference to the Constitution, or being aware of the Act the reasons for decision do not disclose that the parties have brought material to assist the Court in deciding whether to apply a rule of customary law pursuant to s11 (1) (a) of the Act nor that the court has made a decision either that there is no applicable customary law or that the customary law should not be applied pursuant to s11(2)(a) of the Act. Nor does there appear from the reasons of the court any indication that Counsel has called relevant evidence and obtained relevant information to assist the court in deciding those questions in accordance with Counsel's duty pursuant to s15 of the Act.
Consequently the very few opportunities that the Supreme Court has had to consider the Underlying Law Act have been limited to cases in which the decision of the trial judge has been reversed. However the Supreme Court has had the opportunity to make some helpful rulings on the application of the Act. The Supreme Court has held that:

•	it is mandatory for the parties to bring evidence and information for the assistance of the Court pursuant to section 11 of the Act when the court is considering the development of the underlying law; the judge cannot act unilaterally;

•	there should no longer be any reference to the Constitution in applying rules to determine the underlying law;

•	Section 9 of the Act (power of a judge to develop the underlying law) is not an exception to section 19 of the Act (decisions of the Supreme Court bind the lower courts). When the Supreme Court has declared the underlying law the National Court cannot change that rule of law by relying on s9;

•	all issues relating to the development of the underlying law should be pleaded carefully; 

•	The Court's powers for development of the underlying law cannot amend, repealed, disband or declare inappropriate and inapplicable a rule of subordinate legislation.

So the situation is that on the 10th anniversary of the introduction of the Act there is very little case law in which a rule of the underlying law has been developed in accordance with the procedures contemplated by Parliament. In 2002 a detailed and illuminating paper examining the gestation of the new Act with a critical examination of its provisions and making some comparisons with the Customs Recognition Act was published by Jean G Zorn and Jennifer Corrin Care in the Law Asia Journal. With hindsight that paper did not receive the wide circulation within Papua New Guinea which was desirable and deserved. Certainly the major problem raised in the paper, how to deal with the fact that the Customs Recognition Act has not been repealed, whether to treat it as partly impliedly repealed or to narrowly read the interpretation of  "custom " by virtue of the provisions of the Customs Recognition Act, has never been addressed.

While there may be many reasons for the lack of implementation of the Act my own view is that the 2 principal causes are:

Firstly, research into customary law is outside the academic experience of most lawyers and relevant writing is not readily accessible to them. Secondly, there has not been any large-scale systematic collation of customary rules, nor is there any assessable repository for such material, apart from academic writing. Any time spent on research or in engaging qualified academics in the field to advise is additional cost to the lawyer's client which would not be insignificant or welcome. Of course I do not discount the possibility that the education of Papua New Guinea lawyers has developed a bias against custom as is suggested in the Zorn and Corrin Care paper.

Given the small number of cases in which the Underlying Law Act has been given any consideration and the reluctance of parties to litigation to engage in the quite onerous and probably expensive task of investigating custom in relation to a dispute, it is unlikely that we will be much advanced in another decade in the application of custom to develop the underlying law unless the government equips the courts with the necessary information. It is the responsibility of the government to ensure that the Courts are equipped to do their work, especially when Parliament imposes a duty. Adequate funding should be given for the work of codification of the customary law.

The only place in the court system where customary law is both known and applied on a daily basis is the village court. There are approximately 13,000 village courts throughout the country and most, if not all, of their work consists of making rulings based on what custom dictates within the community in which the court exercises jurisdiction. I have encouraged the Village Courts Secretariat to attempt collation of rulings and reasons of the village courts on a district by district basis with a view to extracting, rules of customary law and then to compile on a Province by Province basis. Some work has already begun. If this work was properly funded and managed I am sure that within the space of a few years a useful reference work could be produced to assist the higher courts. It would then be relatively easy for both counsel and the courts to comply with the requirements of the Underlying Law Act. 

Some practical suggestions

Following on from the comments made in the preceding paragraph, there is a need to codify customary law in Papua New Guinea. The Village Court machinery would play a pivotal role in this project.

Codification of Custom: Provincial and National Code. 

Following on from the comments made in the preceding paragraph, in 2002 at a conference of Village Court administrators in Lae, I said that the Village Courts were also Courts of the National Judicial System and that they should play a direct and important role in assisting the higher judiciary in discharging its constitutional function to develop the underlying law. I suggested that the Village Court establishment conduct a research on custom for each district or province and develop a code on custom in that province. That Code should contain the common customs and different customs on particular subjects amongst ethnic groups in that provincial location. Out of 19 Codes, the next phase is to develop a national code which contains customs of universal or distinct types. The Courts could then use this information as an aid to establishing the custom, in addition to or apart from the painstaking task of requiring parties to prove custom by evidence. The Rules of Court should provide for recognition and use of this reference material. Custom of course is changing as time goes on and provision could be made for periodic reviews of the Code.

The Code is made available to all the Courts, especially the higher Courts, for parties and the Court to use as primary source of information on customary law under s 16 of the Act.

I remain to be informed of the work, if any, the government has done to codify custom. 

Case Law development: District Court and other Courts:

The District Courts and Land Courts should make its business to publish judgments under the DC numbered judgment system. In every case, I suggest, in which a determination of which involves custom, that judgment should be published. That information is useful for other magistrates and judges of the higher judiciary to have recourse and use it in cases. 

Case Law development in the higher judiciary:

The higher judiciary should seize of every opportunity presented to it to develop the underlying law. The Courts will continue to play an important role in developing the underlying law. The courts will continue to decide cases involving development of the underlying law and publish its judgements for public dissemination under its  "N " and  "SC " numbered publication system. Those judgements are now posted on the PACLII website and accessible worldwide. 

The judiciary can offer training of judicial officers and other legal officers to equip them with the knowledge and skills required to handle the task. The higher judiciary, with the support of the Department of Justice, has put in place a judicial education program involving both the lower and the higher judiciary which will see the establishment of a Judicial Training Education Centre to promote and enhance knowledge and skills of judicial officers. Education programs on the underlying law can be undertaken to sensitize judicial officers on the importance of the task at hand and equip them with skills to effectively carry out their task of developing the underlying law. Some of the research on custom and common law can be undertaken by this centre and legal information published periodically for use by lawyers and Judges.

Where new rules of court are required to implement the Act, the higher judiciary can also offer new rules of Court to implement the Act. The judiciary also has set up a Rules Committee headed by Justice Davani, which has representatives of the private and the public bar. The committee is in the process of drafting rules of court to implement the Underlying Law Act. Resolutions and recommendations made at this conference can be channelled to the Judiciary through this committee and factored in the new Rules. 

The Judiciary can also offer official publications of Court decisions on development of the underlying law. The judiciary has set up a Court publications committee which conducts research and considers and recommends official court publications important aspects of court administration and court processes. Currently the committee is responsible for publishing bench books for judges and case digests/journals. Its terms of reference can be extended to cover publications on the development of the underlying law.

The higher judiciary can offer a more concerted effort to achieving the purpose of the Act. 

Conclusion

The task of developing the underlying law is enormous and costly. The task at hand is of immense importance and benefit in the delivery of qualitative judicial services to our people which is dispensation of justice. The task is a collaborate effort of all courts of the NJS with the support of the executive government through provision of resources. The higher Courts of the National Judicial System will continue to play a leading role, with the support of the relevant government agencies and the legal profession to develop a body of underlying law that is appropriate to the circumstances o the country. I look forward to your support ad wish the organizers and speakers at this conference a productive and successful conference.

APPENDIX 1

STEPS IN THE ASCERTAINMENT AND APPLICATION OF THE UNDERLYING LAW PRIOR TO THE UNDERLYING LAW ACT 2000

Custom:

The development of the underlying law is done in two stages: 

(a)	Pleading : The rules of court which require pleading of cause of actions under common law have also been extended to actions founded on customary law: Giewa Kewa Piel v Eric Ranpi [1996] PNGLR 396, per Injia, J; Madaha Resena v The Independent State of Papua New Guinea [1991] PNGLR 174 at 183-184, per Kapi DCJ, Mesulam Meriba v Phillip Silon (2002) N2227 (per Lenalia J).

(b)	Evidence: Unlike methods of proof principles of the common law by mere reference to case law which is then subject to applicability test in Schedule 2, , customary law has been subjected to proof by appropriate evidence and a finding on the existence of that custom: ; Madaha Resena v The Independent State of Papua New Guinea [1991] PNGLR 174, Henry Aisi v Malaita Hoala [198] PNGLR 199 (per Bredmeyer J), Kolta Development Pty Ltd and Others v PNG Defence Force and The State [1997] PNGLR 585, Salika J. Proof of custom by evidence is a statutory requirement: see Customs Recognition Act, (Ch. 19, s2.) which says "the question of the existence and nature of custom in relation to a matter, and its application in or relevance to any particular circumstances, shall be ascertained as though they were matters of fact".

(c)	Court’s finding: The Court must first make a finding of fact on the existence of custom. That custom may arise in two situations: 

(i). Custom of application to particular group: custom and its application in a particular case, to particular parties;

(ii). Common custom of application to majority of communities: Constitutional Reference No 1 of 1977; Poisi Tatut v Chris Cassimus [1978] PNGLR 295, Prentice CJ, Raine DCJ, Saldanha J; SCR No 4 of 1980; Re Petition of M T Somare [1981] PNGLR 265, Kidu CJ, Kearney DCJ, Greville - Smith J Kapi J Miles J) Kolta Development Pty Ltd v PNG Defence Force & ors [1997] PNGLR 585, per Salika DCJ (as he then was). 

(d)	A custom must meet the applicability test in Schedule 2.1: custom must not be inconsistent with the Constitution, a statute or is repugnant to general principles of humanity.

Common Law:

If there is no written law on a subject and there is no customary law (customary law is superior to common law: Madaha Resena v The Independent State of Papua New Guinea [1991] PNGLR 174), or common law principle on a subject, the Court identifies a common law principle but that must pass the applicability test in schedule 2.2. 

Formulation of rule of the underlying law:

If there is no custom or common law on a subject, the Court proceeds to formulate a rule of the underlying law in accordance with Schedule 2. 3 and 2.4. 

Difficulties with pleading and proof of custom:

This is a stringent requirement and onerous one that would involve costs to parties and place enormous onus on the Courts which have scarce resources. A dispute about custom can be mind boggling to resolve. As a result, the parties and also the Courts and parties have taken the easiest route and that is to readily resort to established principles of the Common law on a particular subject. And at times slavishly adopted and applied principles of common law without subjecting the principle to the applicability test. The common law has been developed for centuries and it is comprehensive on every subject of human activity that generates any form of dispute. This approach is inconsistent with the clear mandate in the Schedule 2. 2 that common law is subservient to customary law on a particular subject. 

Common law vs. Custom

If there is no written law on a subject and there is no customary law (customary law is superior to common law: Madaha Resena v The Independent State of Papua New Guinea [1991] PNGLR 174), or common law principle on a subject, the Court identifies a common law principle but that must pass the applicability test in schedule 2.2. 

APPENDIX 2

CASES ON DEVELOPMENT OF THE UNDERLYING LAW GENERALLY

"There is much talk about developing an underlying law and reconciling the imposed and customary law. Few of the critics of this court realize that seldom is reliable evidence of custom ever elicited or produced for the Court’s benefit.": The State v Toraram [1983] 283 McDermott J.

"I am aware of the criticism by some legal practitioners that the courts are failing to take custom into account and also failing to develop the underlying law as required by the Constitution. I do not wish to be defensive; rather I will make some remarks which might explain to academics and practitioners the reason why courts have not taken any active part in the recognition of custom and also in the development of the underlying law.

There are basically two reasons why custom is not recognized by the courts and the underlying law not developed. (1) In almost every case that has come before the National Court (and also the Supreme Court) lawyers have not made any attempt either to produce evidence or material necessary for the Judges both in the National and Supreme Court to use to recognise4 customer or develop the underlying law. The Judges have not had the time and resources to undertake their own research in most cases and it is unfair for lawyers to expect so much from Judges who are already overworked and under rewarded. (2) The Parliament has failed to perform its duty as given to it by the Constitution. Section 20 of the Constitution provides …": The State v Pokolou (1983) N404 Kidu CJ.

Constitution schedule 2.4 provides "… Except in so far as it would not be proper to do so by judicial act." Where there are multiple policy considerations it is not proper to develop the law by judicial act: The State v Wik Kor [1983] 24 Kapi DCJ.

"The duty to develop the underlying law … is only to be exercised in situations readily perceived as being governed by no custom or principal of law. There must first be a gap that requires attention and there must also be evidence or argument of it advanced before any new principle is introduced. To proceed to do so in the absence of such evidence or argument would be to proceed in error.": Central Provincial Government v Alfred Viro Haino (1993) SC439m, Hinchliffe, Sheehan & Andrew JJ:

The underlying law cannot be a source of defining an offence, the exculpatory defences and for prescribing a penalty: The State v Peter Wamna (1995) N 1342 Injia J.
The provisions of the Natives Customs (Recognition) Act 1963 that "custom shall be taken into account in determining the penalty (if any) to be imposed on a guilty party" means the judge may increase or decrease the sentence depending on whether custom mitigates or aggravates the offence. Pursuant to section 37(2) of the Constitution the offence and penalty must be prescribed by a "written law". There is no jurisdiction to order compensation by payment of pigs. The term "a written law" was used to distinguish from custom mentioned in schedule 2.2, 2.3 and 2.4 of the Constitution. Acting Public Prosecutor v Uname Aumane [1980] 510 : Per Kapi DCJ – These views of Kapi DCJ confirmed by the Supreme court in SCR No. 2 of 1981; re section 19(1) (f) Criminal Code [1982] PNGLR 150’.

Where custom is taken account of under the Customs Recognition Act section 4(e) in deciding sentence, it is not a development of the underlying law. Schedules 2.1 and the Customs Recognition Act section 3 are irrelevant: The State v Robert Kupera [1983] 312.
The court was answering the question whether an adopted daughter is a lineal descendant for the purposes of the crime of incest. In developing this area of the law pursuant to Constitution schedule 2.3 the court considered pursuant to schedule 2.3(1) (d) the "legislation and decisions of any country…" Being the laws of Australia and New Zealand both legislation and case law and concluded that an adopted daughter is not a "daughter or other lineal descendant" for the purpose of the Criminal Code: The State v Misimb Kais [1978] PNGLR 241 Andrews J. 

APPENDIX 3

CASES ON UNDERLYING LAW IN THE PERIOD 1975 -1999 (PRE-UNDERLYING LAW ACT 2000)

Custom not judicially recognized

•	The custom of acquiring customary land by conquest found to be repugnant to the general principles of humanity: Wena Kauigo v Siwi Kurundo [1976] PNGLR 34, per Saldanah J. Principle applied by Los J in Application of Tomba Emba (1985) N 549. 

•	Custom of interfering with dead bodies/cannibalism is repugnant to general principles of humanity: The State v Aubafo Feama [1978] PNGLR 301.

•	: custom which allows revenge killing is contrary to the Constitution and statute and repugnant to the general principles of humanity: Public Prosecutor v Apava Kerua and Aia Moroi [1985] PNGLR 78.

•	custom of mutilating an adulterer is contrary to the Constitution and statute and repugnant to the general principles of humanity: Public Prosecutor v Sidney Kerua [1985] PNGLR 85.

•	Payback killing, which could be regarded as part of the custom of the Wahgi Valley district of Western Highlands Province, as a sanction for non-payment of customary compensation to the relatives of the victim of a motor vehicle accident, was unenforceable as it was repugnant to the general principles of humanity: Aundak Kupil and Kauke Kensi v The State [1983] PNGLR 350, Bredmeyer J

•	A custom in the Jimi district of Western Highlands Province that required a woman who had been deserted by her husband for several years and who committed adultery, to pay compensation (and then be imprisoned for failure to pay) was unenforceable as it was contrary to s 55 of the Constitution: Re Wagi Non and Section 42(5) of the Constitution [1991] PNGLR 85, Woods J:

•	A custom in the Western Highlands Province that required a woman to pay compensation to her husband for having sexual relations with her husband’s brother, in circumstances where her husband had left her to find work elsewhere and was not regularly supporting her (and then be imprisoned for failure to pay) was repugnant to the general principles of humanity and should be denied a place in the underlying law and was unenforceable: Re Kaka Ruk and Section 42(5) of the Constitution [1991] PNGLR 105, Woods J.

•	An East Sepik custom that allegedly required a man who had been convicted of manslaughter to give up one of his daughters to the deceased’s relatives was contrary to the welfare of the child and to the constitutional prohibition against slavery, and therefore unenforceable and could not be a mitigating factor for sentencing purposes: The State v Joseph Kule [1991] PNGLR 404, Doherty J:

•	the custom in many parts of Manus Province and Morobe Province that says women whose husbands have died are not to go around with another man strikes against the basis of equality provided in Section 55 of the Constitution, as there is no equivalent custom that says a man whose wife had died is not allowed to go around with other women and therefore it is oppressive to women and fails to recognise the inherent dignity of mankind: Re Kepo Raramu and Yowe Village Court [1994] PNGLR 486 : Doherty J.

•	The custom of tribes in the Minj district of Western Highlands Province of requiring young women to be given up as "head pay", as part of a compensation package paid by a wrongdoer to a victim, was unenforceable as it was contrary to the Basic Rights to freedom and equality, unjust, not in the public interest and repugnant to the general principles of humanity: Application by Individual and Community Rights Advocacy Forum Re Miriam Willingal [1997] PNGLR 119, Injia J; applied in The State v Paulus Non Pable [1998] PNGLR 468 (per Injia, J) and The State v Sinzai Karawa (2004) N2631 (per Kandakasi J), 

•	The plaintiffs’ attempt to establish a cause of action in custom against the Defence Force and the State to seek compensation for the burning down of the Germania Club, Waigani, was misconceived as, even if there was a custom, as claimed, it purported to establish no-fault liability, and this would cause a grave injustice and not be in the public interest: Kolta Development Pty Ltd and Others v PNG Defence Force and The State [1997] PNGLR 585, Salika J:

•	Custom of defacto marriage relationship to see if then validate marriage if woman bears child is repugnant to general principles of humanity: Umbuk v Darius [1994] PNGLR 279 (Sevua J). 

•	Customary killing of sorcerer is contrary to statute and repugnant to general principles of humanity. The State v Maraka Jackson (2006) N3237 (per Kandakasi J): Also see Irai Thomas v The State [2007] SC 867 (per Kandakasi J, Lenalia J and David J: 

Customs judicially recognized:

•	Customary compensation for personal injuries or death or damage/destruction to personal property: Aundak Kupil and Kauke Kensi v The State [1983] PNGLR 350, Bredmeyer J:, State v Angaun Kakas & Others [1994] PNGLR 20 (K17,000); State v Billy Kauwa [1994] PNGLR 503 (K100,000); State v Margaret John (No. 2) [1996] PNGLR 298 (K25,000); State v Maria Pelta Pung [1995] PNGLR 173 (K20,000); State v Lucy Moro (1998) N1328 (K25,000); State v Paulus Non Pable (1995) N1873 (K20,000): State v Maria Er [1998] PNGLR 26 (K16,000); State v Peter Kot (2000) N2027 (K25,000 – 30,000); State v Balise Kurimo N1879 dated 20 May 1999 (K15,000), Acting Public Prosecutor v Unama Aumane [1985] PNGLR 312, State v Wapulae [1980] N233 (Narokobi AJ), Acting Public Prosecutor v Nitak Mangilonge Taganis [1982] PNGLR 299, State v Nitak Mangilonge of Tanganis (1980) N 270, Bore Komia v Daniel Dosinga [1989] N745, The State v Tedi Kalio Ulo [1980] PNGLR 350, Andrew Lope v Marril Seeto & Anor (2002) N2281 (Kandakasi J), The State v Angap Make [1998]PNGLR 61.

•	Custom of killing reputed sorcerer is vengeance killing and forbidden: State v Boat Yukum (2002) N2337, Acting Public Prosecutor v Unama Aumane [1985] PNGLR 312.

•	Family law: Henry Aisi v Malaita Hoala [1981] PNGLR 199 (per Bredmeyer J), Payment of compensation for enticement, custom of bride price for woman: Henry Aisi v Malaita Hoala [1981] PNGLR 199, The State v Ure Hane [1983] N442 (Kaputin AJ), also see See Bore v Dosinga (1989) N745 Kere v Timon [1990] PNGLR 103.

•	Custom of forbidding sexual relationship with half sister: State v Luke Aidou [1985] PNGLR 292.

•	Locus standi: Custom which recognizes the standing of big men to speak for his people: Re Petition of M T Somare [1981] PNGLR 265, Kidu CJ, Kearney DCJ, Greville J, Smith J Kapi J Miles J), 

•	Land law: Madaha Resena v The Independent State of Papua New Guinea (Re Fisherman’s Island) [1990] PNGLR 22 (Bredmeyer J): Fair compensation for wrongful occupation (trespass) to customary land by the State must be paid. Rule of underlying law formulated.

•	Criminal law: The custom of relatives helping an offender to share responsibility for punishment for wrong is acceptable in an accused complying with conditions of suspension of sentence as to restitution orders: The State v Eric Emmanuel (2002) N2447 (per Kandakasi J), The State v Dobi Ao (No. 2) (20002) N2247 (per Kandakasi J).

Reception of common law: 

•	The Court cannot say House of Lords was wrong in deciding a point of law; but can say the principle is inappropriate and inapplicable to the circumstances of the country and decline to adopt and apply it: (per Miles J)Also see Ester Pierce v MVIT [1988-89] PNGLR 480 (per Brunton AJ).

•	The common law principle of strict, narrow and legalistic approach to interpreting statutes is outdated and inappropriate to the circumstances of this country: PLAR No.1 of 1980 [1980] PNGLR .. 

•	The common law principle on standard of proof in a criminal case that is adopted and applied in this country is not inconsistent with the Constitution or statute: John Beng v the State [1977] PNGLR 230 at 251 (per Prentice CJ, Wilson J, & Kearny J).

•	.Estate claim-action survives.... Dennis Walbank v the State [1994] PNGLR 78.

•	Proceedings for custody of children of automatic citizens – customary law, common law and statute law apply: Derbyshire v Tongia [1984] PNGLR 148 (per Pratt J, Kaputin J, & McDermott J): 

•	Principles of natural justice relating to the a public authority’s duty to give reasons for decision and good reasons for decision are adopted as part of the underlying law of Papua New Guinea: Ombudsman Commission v Peter Yama (2004) SC747, Ninggints v Tokam [1993] PNGLR 70 at p.66; Margaret Misso and two (2) Others v Minister for Lands [1987] PNGLR 331; Kelly Yawip v Police Commissioner [1995] PNGLR 93; Michael Kapa Wena v Police Commissioner (1997) N1570; Application of Moge Enga [1995] PNGLR 031; Gegeyo v Minister for Lands [1987] PNGLR 331. Ombudsman Commission v Donohoe [1985] PNGLR 348; Nilkare v Ombudsman Nilkare v Ombudsman Commission (1996) SC 498. 

•	The common law principle that a spouse of an accused person charged with a serious offence involving a child under the age of 16 years residing in their house, is a competent but not compellable witness is not inappropriate or inapplicable to the circumstances of Papua New Guinea: SCR No. 3 of 1985; The State v Uniss Kumagaip [1985] PNGLR 278. 

•	The common law rule of practice requiring a jury to be warned that it is dangerous to act on the uncorroborated evidence of an accomplice is inapplicable to the circumstances of Papua New Guinea, it is a question of weight when the only evidence is that of an accomplice: The State v Joseph Tapa [1978] 134 Prichard J.

•	Dissenting opinions to the effect that the warning was still required expressed in The State v Namaemo Waru [1977] 152, Frost CJ; Titeva Fineko [1978] PNGLR 262, Prentice DJC; The State v Amoko- Amoko [1981] 373 Pratt J.

•	Pursuant to schedule 2.2 of the Constitute it is part of the underlying law that the English rule, that the tribunal of fact should be warned of the risks of making a comparison of disputed handwriting, a judges sitting alone must warn himself: State v Andrew Baine [1990] PNGLR 1 Brunton AJ: 

•	In sexual cases the development for the tribunal to warn itself regarding the uncorroborated evidence of the prosecutrix may be thought a rule of common law pursuant to schedule 2.2, its continued application in keeping with the development of the underlying law schedule 2.3.: The State v Kai [1976] PNGLR 481 Prentice DCJ

•	In the circumstances (that the offence occurred at Vanimo when neither policeman nor magistrates were legally trained): the English common law rule relating to duplicity and 

•	that the information must give sufficient particulars of the nature of the charge,
were inappropriate to the circumstances of this country: Constitution schedule 2.2 (1) (b) and schedule 2.2 (4) (the circumstances of the case, time and place of relevant events): Jacob Hendrik Prai and Otto Ondaname v An Officer of the Government of Papua New Guinea [1979] PNGLR 42

•	The common law principle that a complaint can be bad for duplicity is applicable in the Local Court even though there is no statutory provision to that effect: Vebubu v Nelly Maleva [1987] PNG 87 Kidu CJ.

•	Charges are to be proven beyond reasonable doubt. There has been no proposal to develop the underlying law otherwise: The State v John Koe [1976] PNGLR 562 Prentice DCJ.

•	The burden of proof is the beyond reasonable doubt standard. What the House of Lords has said before independence is the common law; developments in other jurisdictions are irrelevant: The State v Alan Worla [1978] PNGLR 909 Kearney J.

•	The court was answering the question whether an adopted daughter is a lineal descendant for the purposes of the crime of incest. In developing this area of the law pursuant to Constitution schedule 2.3 the court considered pursuant to schedule 2.3(1) (d) the  "legislation and decisions of any country… " Being the laws of Australia and New Zealand both legislation and case law and concluded that an adopted daughter is not a  "daughter or other lineal descendant " for the purpose of the Criminal Code: The State v Misimb Kais [1978] PNGLR 241 Andrews J.

Equity

•	The principles of equity under which injunctions are granted are applicable and enforceable as part of the underlying law. Section 155(4) extends the jurisdiction to make orders where there is no jurisdiction under the common law: Mauga Logging Co Pty ltd v South Pacific Palm Oil Development Ltd [1977] PNGLR 82 Chief Justice Frost.

•	Adopting the common law principles for the grant of an injunction: Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers and Seamen’s Union (1982) N393, Kapi DCJ

•	The principles of proprietary estoppel shall be regarded as part of the underlying law of Papua New Guinea: PNG Ready Mixed Concrete Pty Ltd v The State [1981] PNGLR 396 Miles J.

•	Calculation of Damages: The Court is bound to apply the common law rule that a torfeasor must pay damages for his negligence, but not the rule of practice as to what method to use. The court decided to continue to use the interest discount method. Distinction between the law and the rule of practice.

•	In the circumstances of the particular case the defendant was liable in damages to the plaintiff for the killing of the deceased as a breach of section 35 of the Constitution and pursuant to custom of the people of the area: Bore Konia Daniel Dosinga (1989) N 745 Los J. 

•	Pursuant to schedule 2.2 of the Constitution it is part of the underlying law of Papua New Guinea that goods and services required by an injured plaintiff supplied at the cost of a relative or friend are the plaintiff’s costs for the purpose of the defendant. This includes goods and services prescribed by government or other body where there is a right to recover those costs, whether that right has been exercised or not at trial. It does not include goods and services provided free of charge where there is no right to recover: Vevehupa v MVIT [1983] 343 Kapi DCJ.

•	Whether a subsequent overruling of a common law rule in England affects the application of the common law at independence: The State v Bisket Uranguae Polia [1980] 97 Kapi J.

•	Pursuant to Constitution schedule 2.2 where common law principles of England before 16 September 1975 applied in Papua New Guinea are subsequently overruled and held to be wrong in England the latter opinion will have retrospective effect and all cases following the earlier principal will be held to be wrongly decided. It is not a development of the law but a declaration of what the law should have been.

•	The appropriate rules to apply where an injured man dies are that there is no right to recover damages for economic loss during the lost years, which will survive to the benefit of the estate. The post independence decisions of Picketts Case [1979] 1 All ER 774 and Gammell v Wilson [1980] 2 All ER 557 change the law, they did not declare what it had always been: Vian Guatal v The State [1981] 230 Miles J.

•	Referring to the common law of England, in the National Court rules "costs" means professional costs: Kramer Consultants Pty Limited and Cameron McNamara Pty ltd v The State, [1985] PNGLR 200 Cory J; Cf. the 2001 case Karingu v Papua New Guinea Law Society [2001] PGSC 10 where Kandakasi J extended the meaning of the term "costs" to include the reasonable cost of a litigant in person.

Miscellaneous:

The Judges Rules – whether adopted as part of the underlying law?

•	The State v Golu Golu [1979] 653 Saldanha J: That the Judges Rules of England (relating to the taking of confessional statement) are part of the Law of PNG by virtue of schedule 2.2 of the Constitution.

•	The State v Win Kwainfelin [1986] 106 Pratt J: The Judges Rules 1912 part of the underlying law.

•	The State v the Kiki Hopea: [1985] PNGLR 6 McDermott J: If the Judges Rules are part of the underlying law, which rules are they? The 1906 or 1964 Rules both appearing in Carter's Criminal law.

•	The State v Mana Turi: [1986] 222 McDermott J: The reference to the Judges Rules is confusing and unnecessary, doubts as to whether it is part of the underlying law. Decided the Rules are a statement about police conduct to be investigated and considered for signs of impropriety and unfairness. 

Formulation of rule of the underlying law:

•	Land law: Fair compensation for wrongful occupation (trespass) to customary land by the State must be paid. Rule of underlying law formulated: Madaha Resena v The Independent State of Papua New Guinea (Re Fisherman's Island) [1990] PNGLR 22 (Bredmeyer J).