FOREWORD

by
the Chief Justice

In the year 2000 the Parliament enacted the Underlying Law Act which imposes certain statutory duties on the Courts and Counsel. In December 2010 the Office of the Attorney General facilitated a conference in Alotau with the theme, the Underlying Law. It was a useful occasion to look back and review what has occurred in connection with the underlying law both since Independence and since the introduction of the Act. As former Chief Justice Sir Buri Kidu observed it is difficult for the Courts to be active in development of the underlying law if parties to litigation and counsel do not bring appropriate material before the Court for consideration, and this restriction has hindered the development anticipated by the Act. This Journal and subsequent periodic publications to follow will provide counsel and parties a useful source of reference material and information on the underlying law in cases before the Courts that involve development in the underlying law.

The Judges have recognised that unless a formal process of pleading is required, which directs special pleading for the development of the underlying law, there will be little change from the current position in another decade. Hence the Judges have made the National Court Rules (Underlying Law Amendment) which appear in this Journal.

My hope is that this Journal can be an occasional publication to present developments in the underlying law to practitioners and others interested, in a convenient form. Remember, the development of the underlying law is not just about the incorporation of custom, which is important and dominant in the scheme of the Act, but also about the introduction of any new principle of common law developed after independence in England or at any time in any other common law jurisdiction. If counsel seeks to rely on such a principal pleading will be required. 

1st of February 2012

Sir Salamo Injia, Kt.
Chief Justice