THE INDEPENDENT STATE OF PAPUA NEW GUINEA

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

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

DATED this s;..~ day of ~ 20 II

~Chief Justice Sir Salamo Injia, Kt.

Justice Nicholas Kirriwom Justice Kingsley Allen David

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Justice Ellenas Vitata. Batari, MBE

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Justice Catherine Anne Dava 1

Ik ~Justice Ere Kariko, MB

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Justice Panuel MogisH

Justice David Cannings

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Acting Justice Royale Thompson

j-~-=---Justice Jacinta Murray

Acting Justice Mekeo Gauli

Justice Berna Joan Collier

Justice John Alexander Logan

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AMENDMENT OF ORDER 8

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

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

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

"Subdivision CI-Pleading the Underlying Law

20A The Underlying Law Act 2000

(1) Interpretation and applicationa. This Subdivision C I shall also apply to proceedings commenced by

Originating Summons.b. In this rule terms have the same meaning that they have in the Underlying Law

Act 2000.c. In this rule the term "Constitutional rights" means the National Goals and

Directive Principles and Basic Social Obligations established in theConstitution and the basic rights guaranteed by Division III.3 (Basic Rights) ofthe Constitution.

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

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

a. Is inconsistent with a written law;

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

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

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

a. A rule of customary law, that party shall plead:i. the particulars of the rule, the source ofthe rule and the factual

circumstances in respect of which the rule is applicable;

11. the nature and source of the evidence or information which the partywill adduce to assist the court;

Ill. and shall be deemed to have pleaded:I. the rule is not inconsistent with the written law;2. the rule is consistent with the Constitutional rights.

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

1. whether any rule of customary law is applicable, and if so, the factsand circumstances on which the party relies to contend that the Courtshould not apply the rule of customary law;

11. the rule of common law, the source ofthe rule (including casecitations) and the factual circumstances in respect of which the rule isapplicable;

Ill. the nature and source of the evidence or information that party willadduce to assist the court;

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

1. is not inconsistent with the written law; and

2. is applicable and appropriate to the circumstances ofthecountry, and

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

4. or its application or enforcement, would not be contrary to theConstitutional rights.

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

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1. be deemed to have pleaded that the written law, the customary law andthe underlying law do not apply to the subject matter of theproceeding;

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

I. the Constitutional rights;2. analogies drawn from the relevant written law

and customary law; and3. the laws of a foreign country relevant to the

subject matter of a proceeding.4. the nature and source of the evidence or information that party

will adduce to assist the court.

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

1. the formulated rule of the underlying law that the party seeks to haveapplied;

II. the facts and circumstances on which the party relies to contend that arule of the underlying law is no longer applicable to the circumstancesof the country;

Ill. particulars of all of the matters which the party contends the Courtshould have regard to including:

I. the Constitutional rights;2. the laws of a foreign country relevant to the

subject matter of a proceeding;3. the nature and source of the evidence or information that party

will adduce to assist the Court.

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