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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
MP (HR) NOS 333 & 334 0F 1998
WILLIE GAWI
First Plaintiff
OLGA KARI
Second Plaintiff
V
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant
Waigani: Cannings J
2012: 21, 28 June, 8 October
HUMAN RIGHTS – enforcement – trial on liability and damages
PRACTICE AND PROCEDURE – failure to give notice of intention to make a claim against the State – whether National Court can, after originating process filed, allow a further period to give notice to the State: Claims By and Against the State Act, Section 5
The plaintiffs claimed that their houses (and in the case of the second plaintiff, her store) and contents were burned and destroyed by members of the Police Force. They commenced proceedings under Section 57 of the Constitution seeking enforcement of human rights. A trial was set down to determine whether the State, in its capacity as employer of the police, was liable for the alleged breach of human rights and, if it was, to assess damages. The plaintiffs adduced affidavit evidence of the incident. The State adduced no evidence but defended the matter by claiming that the entire proceedings should be dismissed as the plaintiffs had failed to give notice of intention to make a claim against the State in accordance with Section 5 of the Claims By and Against the State Act. In the alternative the State claimed that the court should decline to enter judgment against the State as the plaintiff's evidence was unreliable and uncorroborated and even if it were accepted the inference must be drawn that the police officers concerned acted so far outside their lawful duties as to prevent the State being vicariously liable for their wrongful actions. The State further argued that in the event that liability was established no damages should be awarded as there was no corroboration of the plaintiffs' evidence.
Held:
(1) The court can waive the requirement for a plaintiff to give notice under Section 5 of the Claims By and Against the State Act prior to commencement of proceedings, by allowing, on sufficient cause being shown, a further period to give such notice, which may be a date after the date of commencement of the proceedings.
(2) If the State fails to apply to have proceedings dismissed despite obvious grounds for doing so and allows a matter to be progressed to trial, it is by its conduct and as a matter of equity and justice estopped from relying on alleged breaches of the Claims By and Against the State Act or other procedural irregularities as a defence at trial.
(3) Here, 14 years after the proceedings had commenced, the court allowed a further period, setting a specific date by which the plaintiffs could give notice to the State. The plaintiffs failed to file an affidavit of service and failed to prove that the court's directions were complied with. Despite those procedural irregularities the State failed to apply to have the proceedings dismissed and allowed the matter to progress to trial. An equitable estoppel operated against it, and the court proceeded to determine the question of liability on the merits.
(4) The plaintiffs adduced credible evidence that the police raided the settlement in which they lived and burned down houses and a store and terrorised the residents.
(5) A number of the plaintiffs' human rights were breached, viz
- right to the full protection of the law (Constitution, Section 37(1));
- protection against harsh or oppressive acts (Constitution, Section 41(1));
- freedom from arbitrary search and entry (Constitution, Section 44); and
- protection against unjust deprivation of property (Constitution, Section 53(1)).
(6) The plaintiffs established causes of action for breach of human rights. The State was vicariously liable for the breaches as the members of the Police Force were acting within the scope of their police employment and the State failed to discharge the onus of showing that what they did was totally removed from the domain of their authorised actions.
(7) Damages were assessed at K12,000.00 (first plaintiff) and K16,000.00 (second plaintiff); and interest was awarded at a rate of 8 per cent per annum from the date on which the cause of action accrued to the date of judgment, a period of 14.77 years: K14,179.20 (first plaintiff) and K18,905.60 (second plaintiff).
Cases cited
The following cases are cited in the judgment:
Albert Baine v The State (1995) N1335
Eriare Lanyat v The State [1997] PNGLR 253
John Kami v Department of Works (2010) N4144
Jonathan Mangope Paraia v The State (1995) N1343
Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Mark Tunugu Kale v Kutubu Ipata & Ors (2012) N4806
Olympic Stationery v The State (2001) N2194
Paul Tohian and The State v Tau Liu (1998) SC566
Peter Wanis v Fred Sikiot and The State (1995) N1350
The State v David Wari Kofowei and Others [1987] PNGLR 5
Wama Kints v The State (2001) N2113
William Wrondimi v Alphonse Vokene (2007) N3148
Yooken Paklin v The State (2001) N2212
APPLICATION
This was a trial on liability to determine the plaintiffs' application for enforcement of human rights and an assessment of damages.
Counsel
E Wurr, for the plaintiffs
R K Gelu, for the defendants
8th October, 2012
1. CANNINGS J: Willie Gawi and Olga Kari are applying for enforcement under Section 57 of the Constitution of their human rights, which they claim were breached by members of the Police Force who raided the community in which they lived at 8-Mile, National Capital District on 22 December 1997. They claim that their houses (and in the case of the second plaintiff, her store) and contents were burned and destroyed by police. They seek damages under Section 58 of the Constitution against the State, which is alleged to be vicariously liable as employer of the police for the human rights breaches that occurred.
2. The plaintiffs adduced affidavit evidence of the incident, which they believe was fuelled by an allegation that persons living amongst them were responsible for the rape of a policeman's wife.
3. The State adduced no evidence but defended the matter by claiming that the entire proceedings should be dismissed as the plaintiffs had failed to give notice of intention to make a claim against the State in accordance with Section 5 of the Claims By and Against the State Act. In the alternative the State claimed that the court should decline to enter judgment against the State as the plaintiffs' evidence was unreliable and uncorroborated and even if it were accepted the inference must be drawn that the police officers concerned acted so far outside their lawful duties as to prevent the State being vicariously liable for their wrongful actions. The State further argued that in the event that liability was established no damages should be awarded as there was no corroboration of the plaintiffs' evidence.
4. There are five issues:
(1) Should the proceedings be dismissed due to failure to comply with the Claims By and Against the State Act?
(2) Have the plaintiffs proven the factual allegations?
(3) Have the plaintiffs established causes of action for breach of human rights?
(4) Is the State liable?
(5) What damages, if any, are the plaintiffs entitled to?
1 SHOULD THE PROCEEDINGS BE DISMISSED DUE TO FAILURE TO COMPLY WITH THE CLAIMS BY AND AGAINST THE STATE ACT?
5. To appreciate the State's position it is necessary to set out the procedural history of the case. The proceedings were commenced on 1 July 1998 by each plaintiff filing in the Waigani Registry of the National Court a form entitled 'application for enforcement of human rights and/or freedoms pursuant to s 57 Constitution'. The matters remained dormant until 2011 when soon after commencement of the Human Rights Rules 2010, on 1 July 2011, publicity was given to old matters such as these and matters were listed for summary determination. The plaintiffs appeared in person and the court made the decision not to dismiss the proceedings and the Public Solicitor undertook to represent them. Directions hearings were held on 8 August and 20 December 2011. It soon became apparent that the proceedings had been commenced in 1998 without prior notice to the State under Section 5 of the Claims By and Against the State Act. On 20 December 2011, I allowed, upon motion by the plaintiffs, a further period to 23 January 2012 for the plaintiffs to give notice and to file an affidavit of service. A further directions hearing took place on 24 January 2012 (when it was ordered that the two proceedings be tried jointly) and the matters were set down for trial on 21 February 2012. The matters did not proceed on that date and were adjourned to 26 April and then to 15 June 2012 before the trial commenced on 21 June and continued on 28 June 2012.
6. The Public Solicitor did not file an affidavit of service in regard to the Section 5 notice. This was contrary to the directions of 20 December 2011. Ms Wurr for the plaintiffs could not give a good explanation for the absence of an affidavit of service but insisted that the notice had been served within the time set by the court.
7. The State's position on Section 5 is twofold. First, it is argued that the court has no power, once proceedings are commenced, to allow a further period to give notice. Secondly, if the court has such a power and it was validly exercised here, the plaintiffs did not comply with the court's directions as there is no affidavit of service, thus there is no evidence that notice has ever been given.
8. As to the first argument, I point out that my decision of 20 December 2011 to allow a further period was made under Section 5(2) of the Claims By and Against the State Act, which states:
A notice [of intention to make a claim against the State] under this Section shall be given—
(a) within a period of six months after the occurrence out of which the claim arose; or
(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or
c) within such further period as—
(i) the Principal Legal Adviser; or
(ii) the court before which the action is instituted,
on sufficient cause being shown, allows. [Emphasis added.]
9. I considered that sufficient cause was shown by the plaintiffs and allowed under Section 5(2)(c)(ii) a further period within which notice was to be given. I took the view that the court can, after proceedings have commenced, allow a further period to give notice. The court can waive the requirement for a plaintiff to give notice under Section 5 prior to commencement of proceedings, by allowing, on sufficient cause being shown, a further period to give such notice, which may be a date before or after the date of commencement of the proceedings. That is the position I recently took in Mark Tunugu Kale v Kutubu Ipata & Ors (2012) N4806.
10. Ms Gelu for the State pointed to a strong line of authority stressing the importance of giving notice under Section 5 before the commencement of proceedings (eg Paul Tohian and The State v Tau Liu (1998) SC566, Olympic Stationery v The State (2001) N2194, William Wrondimi v Alphonse Vokene (2007) N3148, John Kami v Department of Works (2010) N4144). I agree that that is the general rule: the Section 5 notice must be served before proceedings are commenced. But there is, in my view, an exception: the Principal Legal Adviser or the Court before which the action is instituted can allow a further period after the proceedings have been commenced. To interpret Section 5(2) in the manner contended for by the State would result in injustice. I am not persuaded that my decision of 20 December 2011 was made in error, so I do not intend to reverse it, which seems to have been the purpose of Ms Gelu's submission. Besides that, if the State was aggrieved by my ruling of 20 December 2011 it should have either applied by notice of motion for it to be set aside or sought leave in the Supreme Court to appeal against it and applied for a stay of the National Court proceedings. To re-agitate the issue at the trial without notice is actually a breach of natural justice and an abuse of process and an attempt, with respect, to ambush the plaintiffs.
11. As to the State's second argument, I agree that there has been a failure to comply with my order of 20 December 2011 in that no affidavit of service has been filed. But does it follow that the proceedings must be dismissed? The State was in a good position to apply by motion to have the proceedings dismissed on the ground of failure to comply with directions of the court. However, no motion was filed and the issue has not been raised until the trial and then only in the form of an oral application (supported by written submission).
12. In these circumstances I refuse to dismiss the proceedings. If the State fails to apply to have the proceedings dismissed despite obvious grounds for doing so and allows a matter to be progressed to trial, especially if it acquiesces in obtaining directions for trial, it is by its conduct and as a matter of equity and justice estopped from relying on alleged breaches of the Claims By and Against the State Act or other procedural irregularities as a defence at trial. I thus reject both of the State's procedural arguments and will proceed to deal with the case on its merits.
2 HAVE THE PLAINTIFFS PROVEN THE FACTUAL ALLEGATIONS?
13. Ms Gelu submitted that the plaintiffs' evidence should be rejected as it was unreliable and uncorroborated. However, I am not inclined to reject the plaintiffs' evidence, which is consistent with the allegations pleaded in the original applications filed on 1 July 1998. I find that they have proven on the balance of probabilities that members of the Police Force, most of whom were based at McGregor Barracks, staged a raid of the Sepik Block, 8-Mile settlement, in the middle of the night on Monday 22 December 1997 and terrorised the residents. About 11 houses were set on fire, two of which belonged to the plaintiffs. A small trade store operated by the second plaintiff, Olga Kari, was also torched. Both houses and the trade store and their contents were destroyed.
3 HAVE THE PLAINTIFFS ESTABLISHED CAUSES OF ACTION FOR BREACH OF HUMAN RIGHTS?
14. The plaintiffs have proven that their human rights, entrenched by various provisions of Division III.3 (basic rights) of the Constitution, were infringed in four ways:
4 IS THE STATE LIABLE?
15. Ms Gelu submitted that if the court accepts the plaintiffs' evidence of what happened and finds that human rights breaches were committed, the inference must be drawn that the members of the Police Force involved were out on a 'frolic of their own'. They acted so far outside their lawful duties as to prevent the State being vicariously liable for their wrongful actions.
16. I reject that submission. The State is vicariously liable for human rights breaches committed by members of the Police Force within the scope of their police employment or functions unless the State discharges the onus of showing that what they did was totally removed from the domain of their authorised actions (The State v David Wari Kofowei and Others [1987] PNGLR 5; Eriare Lanyat v The State [1997] PNGLR 253; Wama Kints v The State (2001) N2113). The State has failed to discharge that onus. I conclude that the police were on duty when they raided the settlement. The State is not relieved of liability simply because the police officers acted well outside the scope of legitimate police functions. The plaintiffs have established a cause of action for breach of human rights against the State.
5 WHAT DAMAGES, IF ANY, ARE THE PLAINTIFFS ENTITLED TO?
17. Damages for human rights breaches are assessed under Section 58(2) (compensation) of the Constitution, which states:
A person whose rights or freedoms declared or protected by this Division are infringed ... is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.
18. There is no claim for exemplary damages so I will confine the assessment to "reasonable damages". The State argues, again, that the plaintiffs' evidence is uncorroborated, so they should not be awarded anything at all. I agree that the evidence is rather vague and it certainly would have been beneficial to have direct corroboration of the incident. But it does not follow from that that the plaintiffs should be awarded nothing. They endured a traumatic event. Of that there is no doubt. The incident was reported in The National newspaper two days after it happened. Complaints were lodged in 1998 with the Ombudsman Commission and the Police Division of Internal Affairs. Negotiations took place with the Solicitor-General in 2001. There is photographic evidence of the aftermath of the incident. Each of the plaintiffs has listed the property that was destroyed. At this juncture there are some general principles about assessment of damages to take into account:
19. I reiterate that I regard these as genuine claims. After considering the available evidence in light of the above principles I have decided to assess three categories of damages: loss of real property (house and/store); loss of chattels (household property and/or store goods); and stress and anxiety. The amounts awarded are shown in the following table.
ASSESSMENT OF DAMAGES
| Plaintiff No | Plaintiff's name | Real property (K) | Chattels (K) | Stress & anxiety (K) | Total |
| 1 | Willie Gawi | 5,000.00 | 5,000.00 | 2,000.00 | 12,000.00 |
| 2 | Olga Kari | 8,000.00 | 6,000.00 | 2,000.00 | 16,000.00 |
| | TOTAL | 13,000.00 | 11,000.00 | 4,000.00 | 28,000.00 |
INTEREST
20. I will award interest at the rate of 8 per cent per annum to each of the plaintiffs on the amount of their damages. This is done under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. I will award interest from the date of the incident, 22 December 1997, to the date of this judgment, a period of 14.77 years. I calculate the amount of interest by applying the following formula:
D x I x N = A
Where:
For the first plaintiff:
For the second plaintiff:
COSTS
21. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.
JUDGMENT
22. The Court will order that:
(1) damages are payable by the defendant to the plaintiffs, as prescribed by "damages awarded" in the Schedule;
(2) interest is payable by the defendant to the plaintiffs, as prescribed by "interest awarded" in the Schedule;
(3) a total judgment sum is awarded to each plaintiff, as prescribed by "judgment sum" in the Schedule;
(4) costs of the proceedings shall be paid by the defendant to the plaintiffs on a party-party basis, to be taxed if not agreed.
SCHEDULE
| Plaintiff No | Plaintiff's name | Damages awarded (K) | Interest awarded (K) | Judgment sum (K) |
| 1 | Willie Gawi | 12,000.00 | 14,179.20 | 26,179.20 |
| 2 | Olga Kari | 16,000.00 | 18,905.60 | 34,905.60 |
| | TOTAL | 28,000.00 | 33,084.80 | 61,084.80 |
Judgment accordingly.
_____________________________
Public Solicitor: Lawyer for the Plaintiffs
Solicitor-General: Lawyer for the Defendant
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