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In Harmony or Out of Tune: Is Advocates' Immunity an Appropriate Principle in Common Law Countries (Article) [2004] JSPL 21; (2004) 8(2) Journal of South Pacific Law

IN HARMONY OR OUT OF TUNE?

IS ADVOCATES’ IMMUNITY AN APPROPRIATE PRINCIPLE IN COMMON LAW COUNTRIES?

JENNIFER CORRIN CARE AND LINDA HALLER*

INTRODUCTION

Just as with an English oak, so with the English common law. You cannot transplant it ... and expect it to retain the tough character which it has in England. It will flourish indeed, but it needs careful tending. ... In these far off lands the people must have a law which they understand and which they respect. ^[1]

These words were expressed by Lord Denning in 1956, in relation to the African continent, but sound a warning extending to other parts of the globe. They highlight the inherent difficulty in applying the common law, developed over centuries in England, to foreign countries where very different circumstances prevail. The need to take these circumstances into account was recognised in the provisions applying the common law to new settings. In many countries it was expressed to apply, ‘so far only as the circumstances [of the country] permit’.^[2]

The article discusses the problems regarding the introduction of common law principles into an alien environment, with particular reference to the principle of advocates’ immunity from suit.^[3] It focuses on Papua New Guinea and the recent case of Takai Kapi v Maladinas Lawyers and Another,^[4] where the application of immunity from suit to the circumstances of Papua New Guinea was discussed. The article commences with some information about those circumstances. It proceeds to explain the provisos on the common law that has been introduced and the relationship between the common law and other sources of law in Papua New Guinea. It then examines the rationale behind the principle or immunity from suit and whether it still applies in other common law countries. Takai Kapi v Maladinas Lawyers and Another is then analysed to illustrate the issues involved in deciding whether a common law principle, in this case immunity of suit, is applicable to the circumstances prevailing in a “far off” country. The fascinating issues surrounding the application of customary law are outside the scope of this paper, and are only mentioned briefly in the context of the relationship between common law and customary law.^[5]

BACKGROUND

The Circumstances of Papua New Guinea

Papua New Guinea is a Melanesian archipelago in the far southwest corner of the Pacific. It has a land area of nearly 463,000 square kilometres and is made up of the eastern half of the island of New Guinea and over 1,400 smaller islands and atolls. It has a population estimated at 5.3 million, between them speaking over 700 different languages. Each of these languages signifies the existence of a unique culture, with its own customs, norms and values. The indigenous population are Melanesian. Other ethnic groups are Papuan, Negrito, Micronesian and Polynesian. About 75% of the population live in rural areas and live a subsistence lifestyle. The per capita GDP was estimated at US$2,100 in 2002.^[6]