Equity and Trust in Papua New Guinea 2024 PDF

7 Aug 2024 EQUITY AND TRUST Paramountcy of Justice 1 2 Last Time: MAIN RULE: SCR: No 2 of 1992 PNGLR 336 Maintain the power of legislation as the chief an overriding source of law EXCEPTIONS...

7 Aug 2024 EQUITY AND TRUST Paramountcy of Justice 1 2 Last Time: MAIN RULE: SCR: No 2 of 1992 PNGLR 336 Maintain the power of legislation as the chief an overriding source of law EXCEPTIONS IN PNG Constitution: Section 158 (2) – “paramountcy of justice” in the application of law Section 41 under which the court may declare a lawful act or conduct unlawful because its consequences would be harsh or oppressive Sections 59 and 60 which require the court to pay particular attention to developing a system of principles of natural justice as part of the underlying law Section 155(4) which gives the courts power to make orders as are necessary to do justice in a particular case 3 1  7 Aug 2024 Paramountcy of Justice PNG Constitution Section 158 (2) “In interpreting the law the courts shall give paramount consideration to the dispensation of justice” Wine v Giglmai PNGLR 462 A man was promised the use of government land. He enforced regulations on someone who he had leased the land to. However, he never received permission to sublease the land and therefore could not enforce the tenancy agreement. The person renting should not have been there in the first place. The word “law” includes the underlying law and the principles of equity 4 Paramountcy of Justice Generally the underlying law encourages decentralisation – that is application of law on a provincial or local basis. Land Law, through the Land Act, is however still centralised. All land titles are registered in Waigani This may lead to injustices due to lack of information on a local or provincial basis; this is where S158(2) of the PNG constitution can be used. In the case of Wine v Giglmai PNGLR 462 A man was waiting for a land lease to be transferred from Port Moresby over land in Kerowagi; the sublease was however governed locally 5 Putput Logging v Ambalis Putput Logging v Ambalis PNGLR 159 Similar situation as Wine v Giglmai PNGLR 462 Customary Land Owners lease land to an International Company without having proper (paper) claim to the land. The company doesn’t pay its rent. The agreement falls as there could be no sublease of land because of lack of formal ownership (unenforceable agreement). HOWEVER: “for this Court to countenance such a fraud would be contrary to natural justice” 6 2  7 Aug 2024 Relief against Harsh or Oppressive Acts PNG Constitution Section 41 (1) “Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case (a) is harsh or oppressive; or (b) Is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or (c) Is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, is an unlawful act” 7 Harsh or Oppressive Acts A valid Act can be declared unlawful if the APPLICATION of the law would, in that particular case, be deemed unlawful. Intended to safeguard against the abuse or excessive use of legal power (public law). Almost the same as repugnancy = inconsistency or incompatibility of ideas or statements HOWEVER does not delete the law, it just suspends its use in this particular case. Tabula in naufragio is a legal Latin phrase, literally interpreted as "a plank in a shipwreck". It is used metaphorically, particularly in law, to convey: "when all else has failed, it is the thing that stops (or is intended to stop) you from drowning." (google) 8 Harsh or Oppressive Acts Tabula in naufragio = when all else fails, pull this one out of the hat… “…high judicial authority of a contextual interpretation limiting its application to cases where a fundamental right is in jeopardy” (your book p46) => Successful use of this section of the constitution has happened when established equitable principles would have prevailed REMEMBER: the law is only suspended for that particular case. 9 3  7 Aug 2024 Natural Justice Constitution of Papua New Guinea Section 59 (1) “ subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings” Section 59 (2) “the minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly” Section 60 “In the development of rules of the underlying law in accordance with sch.2 …. Particular attention shall be given to the development of a system of principles of natural justice and of administrative law specifically designed for Papua New Guinea, taking special account of the National Goals and Directive Principles and of the Basic Social Obligations, and also of typically Papua New Guinean procedures and forms of organisation” 10 Natural Justice Been used to confront abuses of power in public sector institutions Gegeyo v Minister for Lands PNGLR 331 It is the responsibility of a Minister to appoint people to sit on land trusts for land dedicated to public use; it is also the Ministers responsibility to remove them. Gegeyo argued that if you remove someone you have to explain why – give them ample notice and advice Re Application of NCDIC PNGLR 339 If a Minister wants to change the purpose or use of Public Reserve Land (Land Trust), thus dismissing the whole board of trustees, they have a right to be informed why 11 The Inherent power to do Justice The Inherent power of the Court to do Justice Section 155 (4) “both the Supreme Court and the National Court have an inherent power to make in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case” 12 4  7 Aug 2024 The Inherent power to do Justice Natural Justice = the courts power to review administrative decisions S155 (4) is thus about the ACTUAL cases. The wording of S155 (4) has been heavily debated. What you need to know is: 1. Mauga Logging v South Pacific Oil Palm Development PNGLR 80 - S155 (4) is not an action section – once a right is extinguished, it cannot be recreated 2. Mauga Logging v South Pacific Oil Palm Development PNGLR 80 – the court can change direction from the decisions of the past, make deliberate changes to the law 3. Dent v Kavali PNGLR 488 - The court can use S155 (4) to make declarations 4. PNG v Sisia PNGLR 102 – the Constitution is a superior law to a statute and any law must be read subject to the constitution 13 The Inherent power to do Justice USED IN Spichiger v Spichiger unnumbered, unreported National Court Judgement – the National Court of PNG can order the sale of joint property when that order is necessary to do justice in the circumstances of the particular case ANZ Banking Group v Wari N801 – when selling a property, you are not only bound by good faith, clean hands etc. it is also your duty to take reasonable steps to obtain the true market price 14 OVERALL While the main rule is that we are to Maintain the power of legislation as the chief an overriding source of law SCR No 2 of 1992 PNGLR 336 The PNG constitution allows for the court to arrive at justice through these four (4) sections of the constitution: Section 158 (2) – “paramountcy of justice” in the application of law Section 41 under which the court may declare a lawful act or conduct unlawful because its consequences would be harsh or oppressive Sections 59 and 60 which require the court to pay particular attention to developing a system of principles of natural justice as part of the underlying law Section 155(4) which gives the courts power to make orders as are necessary to do justice in a particular case 15 5  7 Aug 2024 Adoption and adaptation of Equity Remember: only when there is no underlying law! If there is a law that covers the same issue, we use the law. Underlying Law Act, 2000 a. Question of law – not fact b. When common law and customary law is the same, common law can be applied Exceptions: when in conflict with the Constitution Case: Magiten v Beggie PNGLR 1 16 LAW: When customary law and equity clash S2(1) Customs Recognition Act Ch 19 Raise the question of custom during pleading Remember: only when there is no underlying law! 17 Custom and repugnancy Exceptions: when in conflict with the Constitution Repugnancy = inconsistency or incompatibility of ideas or statements Cases: Magiten v Beggie PNGLR 1 Marriage for female widows Kaigo v Kurond PNGLR 34 Ownership of land through war Kupil v PNG PNGLR 350 Killing someone because they didn’t pay compensation 18 6  7 Aug 2024 Summary What do we know so far? Equity is a collection of principles (12) Equity is not written down as a law Equity is still a formal legal tool The remedies of equity are behavioural sanctions Common Law is repealed by Equity Equity is repealed by Customary Law exception: The Constitution Repugnancy 19 20 7