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Legal Index: U, V and W
The underlying law and how it is declared, the State’s liability for the acts of its police and officers, and the standard of unreasonableness that will justify setting a decision aside.
Underlying law
Papua New Guinea’s own body of judge-made law, drawn from custom and the common law, developed under Schedule 2 of the Constitution and the Underlying Law Act 2000.
New Britain Oil Palm Ltd v Sukuramu [2008] PGSC 29; SC946 (Supreme Court)
The Court set out how a rule of the underlying law may properly be formulated, and how the hierarchy of courts operates when a judge thinks a declared rule unsuited to the country.
Parties must be heard first. If a court is going to decide an issue not raised on the pleadings or argued by the parties, or by reference to evidence not before it, or on a principle the parties have not addressed, the parties must first be given an opportunity to be heard.
Evidence is mandatory. Where the court proposes to apply a rule of common law or to formulate a rule of the underlying law, it is mandatory for the parties to bring evidence and information and to make submissions to assist the court. The underlying law is not to be declared on the judge’s own impressions.
Precedent still binds. Section 9 of the Underlying Law Act is not an exception to section 19, under which decisions of the Supreme Court bind the National Court.
What a disagreeing judge may do. Where the Supreme Court has declared the underlying law and a National Court judge considers the rule inappropriate to the circumstances of Papua New Guinea, the judge may either express that view and then apply the law as declared, or find the necessary facts and refer the question of law to the Supreme Court under section 15 of the Supreme Court Act.
Sukuramu arose from a dismissal, and it also decided that a letter terminating an ordinary contract of personal service need not adopt the precise words of the contract provided it conveys the sense of a valid termination.
But its lasting significance is constitutional rather than industrial: it is the Supreme Court’s statement of the discipline required before the underlying law is developed, and of the limits on a first-instance judge departing from a declared rule.
Vicarious liability of the State
When the State answers for the wrongs of a police officer or other public official.
The Independent State of Papua New Guinea v Kofowei [1987] PGSC 10; [1987] PNGLR 5 (Supreme Court)
The Court decided three things that together govern claims against the State for police misconduct.
(1) The independent discretion rule does not apply here. The common law rule — under which a constable exercising an original discretion was answerable only personally, not through an employer (Enever v The King (1906) 3 CLR 969; Fisher v Oldham Corporation [1930] 2 KB 364) — was not adopted as part of the underlying law at Independence, because it had already been replaced by the Wrongs (Miscellaneous Provisions) Act before Independence.
(2) A policeman is a servant and an agent of the State for the purposes of section 1(1)(a) of the Wrongs Act, and an officer for the purposes of section 1(4).
(3) Which limb applies is a question of fact. Whether the State is liable for a policeman’s tort as a servant or agent acting within the scope of employment under section 1(1), or as an officer performing functions conferred by statute or the underlying law under section 1(4), is to be determined on the facts of the particular case.
On the appeal itself, a finding of liability under section 1(1) where section 1(4) was the proper basis had caused no injustice warranting interference.
Kofowei v Siviri [1983] PGNC 32; [1983] PNGLR 449 (National Court)
The decision at first instance in the same litigation took the opposite view on both points: that the independent discretion rule had survived into the underlying law, and that a police officer’s position did not engage the State’s liability under section 1 of the Wrongs Act.
The Supreme Court reversed it on both. It is included here because it states the contrary reasoning fully, and because the two judgments read together show how much turned on whether a pre-Independence English rule had been displaced by statute before 1975.
Kofowei establishes that the State can be liable; it does not make it automatically so. The plaintiff must still bring the officer’s conduct within section 1(1) or section 1(4), and must comply with the section 5 notice requirement for a claim founded on tort.
See suing the State and suing for wrongful arrest.
Unreasonableness as a ground of review
The State v Kapal [1987] PGSC 11; [1987] PNGLR 417 (Supreme Court)
Where a statutory ground for a discretionary decision exists, the decision is entirely within the discretion of the decision-maker, and is open to judicial review only where it is shown that the decision-maker exceeded or abused its powers, or made a decision which no reasonable authority could have made.
That last formulation is the Papua New Guinea statement of the Wednesbury standard. The Court reached it following R v Inland Revenue Commissioners; Ex parte Preston [1985] 2 All ER 327 and R v Chief Constable of Merseyside Police; Ex parte Calveley [1986] 1 All ER 257.
The threshold is high by design. Unreasonableness is not an invitation to review the merits: a decision is not reviewable because the court would have decided differently, but only because no reasonable authority could have decided as this one did.
The rest of Kapal — on exhausting alternative remedies before seeking review — is set out under Legal Index: J, together with Kekedo v Burns Philp, which followed it.
See also the grounds of judicial review.
The PacLII page for the Underlying Law Act 2000 is a landing page offering the Act as a PDF; the consolidated text is not reproduced in HTML there.