Buri Kidu - Hierarchy of Precedent

Hierarchy of Precedent

After the Rooney Affair it was a matter of some concern what direction the law of Papua New Guinea would take. Sir Buri quickly established that the mandate of the Constitution would stand and that even when its provisions as to the pre-1975 decisions of English courts might be out of keeping with arguably more sensible jurisprudence of jurisdictions of persuasive authority, such decisions must stand because that was what the Constitution mandated (see Supreme Court of Papua New Guinea).

Sir Buri quickly established that notwithstanding any implications of the Rooney Affair as to relations between the Executive and the Judiciary, the judiciary was wholly independent: Indeed, the hierarchy of case law precedent is that while the Supreme Court has authority to overrule any case authority, its own decisions are binding on the lower courts as are the decisions of the English superior courts prior to PNG's independence, which are deemed to be part of PNG's underlying law. The decisions of the pre-Independence Supreme Court of PNG are deemed to be foreign law, equivalent in authority to decisions by any foreign court with a similar legal system, and of persuasive value only.

The principle of the mere persuasiveness of other-than-English overseas (and pre-Independence PNG) authority vis-à-vis the binding authority of pre-1975 English authority has been compellingly reasserted in, for example, Toglai Apa and Bomai Siune v. The State PNGLR 43 that it is bound to follow the English case of Rookes v Barnard (House of Lords) AC 1129; 1 All ER 367 notwithstanding its having been comprehensively disapproved in both Australia and Canada soon after it was decided.