Kale v Ipata [2012] PGNC 148; N4806 (24 September 2012)

N4806

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP (HR) NO 493 0F 1998

MARK TUNUGU KALE
Plaintiff

V

KUTUBU IPATA
First Defendant

THOMAS KULARA
Second Defendant

SGT GENO AWAI
Third Defendant

TAIPE HELOI
Fourth Defendant

PETER MAPE
Fifth Defendant

PETER KENNEDY
Sixth Defendant

JERRY CHARLES
Seventh Defendant

JOHN WAKON, COMMISSIONER OF POLICE
Eighth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Ninth Defendant

Waigani: Cannings J
2012: 22, 26 June, 24 September

HUMAN RIGHTS – enforcement – protection from inhuman treatment – right to full protection of the law – trial on liability

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 plaintiff claimed that he was unlawfully assaulted by police officers. He commenced proceedings under Section 57 of the Constitution seeking enforcement of his human rights. A trial was set down to determine whether the State, in its capacity as employer of the police officers, was liable for breach of human rights. The plaintiff adduced affidavit evidence of being assaulted by named police officers. The State defended the matter by claiming that the entire proceedings should be dismissed as the plaintiff had failed to give notice of his 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.

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, 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.

(3) Here, 13 years after the proceedings had commenced, the court allowed a further period, setting a specific date by which the plaintiff could give notice to the State. The plaintiff gave notice four days after the period allowed. Despite those procedural irregularities the State failed to apply to have the proceedings dismissed and allowed the matter to be progressed to trial. An equitable estoppel operated against it, and the court proceeded to determine the question of liability on the merits.

(4) The plaintiff adduced credible evidence that he was without good reason assaulted by particular police officers at a particular place and time. The State did not adduce any evidence. The court found that the gist of the allegations was proven and made findings of fact accordingly.

(5) A number of the plaintiff's human rights were breached, viz

• freedom from inhuman treatment (Constitution, s 36(1));
• protection of the law (Constitution, s 37(1)); and
• protection from proscribed acts, including harsh or oppressive acts (Constitution, s 41(1)).
  

(6) The plaintiff established a cause of action for breach of human rights against the State, with damages to be assessed.

Cases cited

The following cases are cited in the judgment:

Eriare Lanyat v The State [1997] PNGLR 253
Joe Kape Meta v Kumono, Kulunio & The State (2012) N4958
Petrus and Gawi v Telikom PNG Ltd (2008) N3373
The State v David Wari Kofowei and Others [1987] PNGLR 5
Wama Kints v The State (2001) N2113
Yange Langan v The State (1995) N1369

APPLICATION

This was a trial on liability to determine whether the plaintiff's application for enforcement of human rights should be upheld.

Counsel

J Javapro, for the plaintiff
D K Piam, for the defendants

24 September, 2012

1. CANNINGS J: Mark Tunugu Kale is applying for enforcement under Section 57(1) of the Constitution of his human rights, which he claims were breached by three reserve police officers who assaulted him at Porgera on 30 June 1998. He has brought evidence to support his allegations. There are nine defendants, including, most significantly, the State, which is alleged to be vicariously liable as employer of the police officers for the human rights breaches that occurred. A trial has been conducted to determine whether any of the defendants are liable for the human rights breaches allegedly committed against Mr Kale.

2. None of the defendants adduced any evidence. Instead they rely on submissions of Mr Piam of the Office of Solicitor-General in defending the claim. The State defended the matter by claiming that the entire proceedings should be dismissed as the plaintiff had failed to give notice of his 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 it was 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. There are five issues:

1. Should the proceedings be dismissed due to the plaintiff's failure to comply with the Claims By and Against the State Act?
   
2. Has the plaintiff proven the factual allegations?
   
3. Has the plaintiff established a cause of action for breach of human rights?
   
4. Has the plaintiff established liability against the State?
   
5. What orders should be made?
   

1 SHOULD THE PROCEEDINGS BE DISMISSED DUE TO THE PLAINTIFF'S FAILURE TO COMPLY WITH THE CLAIMS BY AND AGAINST THE STATE ACT?

3 To appreciate the submissions of Mr Piam it is necessary to set out the procedural history of the case. The proceedings, which relate to an alleged incident on 30 June 1998, were commenced on 20 August 1998 by the filing in the Waigani Registry of the National Court of an 'application to enforce constitutional rights and freedoms'. The matter 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 this one and matters were listed for summary determination. The plaintiff appeared in person, without a lawyer and the court made the decision not to dismiss the proceedings for want of prosecution. Instead the court directed the Public Solicitor under Section 177(2)(b) of the Constitution to provide legal aid to Mr Kale, which he did.

4. 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 24 November 2011, I ordered, upon a motion by the plaintiff, to allow a further period to 2 December 2011, for the plaintiff to give notice. Notice was given, but not until 6 December 2011.

5. The Solicitor-General on 13 January 2012 gave notice to the Public Solicitor of his refusal to accept the notice. But no steps were taken formally in court to halt the progress of the matter. In the meantime directions hearings were conducted on 20 December 2011 and 24 January 2012 with a view to progressing the matter to a trial on liability. There were several adjournments by consent, with trial dates being vacated on 22 February, 26 April and 15 June 2012 before the trial commenced on 22 June and continued on 26 June 2012. On 21 June 2012 the Solicitor-General filed a motion for dismissal of the proceedings.

6. I refuse to dismiss the proceedings. I consider that 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. It is true that the plaintiff was four days late in giving the notice. However, 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, 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.

7. Here, 13 years after the proceedings had commenced, the court allowed a further period, setting a specific date by which the plaintiff could give notice to the State. The plaintiff gave notice four days after the period allowed. Despite those procedural irregularities the State failed to apply to have the proceedings dismissed and allowed the matter to be progressed to trial. An equitable estoppel operated against it, and therefore the interests of justice require that the question of liability be determined on its merits.

2 HAS THE PLAINTIFF PROVEN THE FACTUAL ALLEGATIONS?

8. Mr Piam submitted that the plaintiff's evidence should be rejected as it was unreliable and uncorroborated. However, I am not inclined to reject the plaintiff's affidavit evidence, which is consistent with the allegations pleaded in the original application filed on 20 August 1998 (less than two months after the incident at Porgera). I find that he has proven on the balance of probabilities that he was unlawfully assaulted in the manner alleged in his affidavit sworn and filed on 20 January 2012.

3 HAS THE PLAINTIFF ESTABLISHED A CAUSE OF ACTION FOR BREACH OF HUMAN RIGHTS?

9. The plaintiff has proven that his human rights, entrenched by various provisions of Division III.3 (basic rights) of the Constitution, were infringed in three ways.

(a) Freedom from inhuman treatment

10. Every person has the right to be treated humanely, and not to be submitted to torture or to cruel or otherwise inhuman treatment. This right is conferred by Section 36(1) (freedom from inhuman treatment), which states:

No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.

(b) Full protection of the law

11. Section 37(1) (protection of the law) states:

Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

12. Section 37(17) (protection of the law) states:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

(c) Protection against proscribed acts

13. Section 41 of the Constitution states:

(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.

(2) The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.

14. Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts (Petrus and Gawi v Telikom PNG Ltd (2008) N3373; Joe Kape Meta v Kumono, Kulunio & The State (2012) N4958). Even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case:

• harsh; or
• oppressive; or
• not warranted by the requirements of the particular circumstances; or
• disproportionate to the requirements of the particular circumstances; or
• not warranted by the requirements of the particular case; or
• disproportionate to the requirements of the particular case; or
• otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.
  

15. Under Section 41(2) the burden of showing that another person has committed an act falling within one of the seven categories of acts proscribed by Section 41(1) is on the party alleging it. The plaintiff has discharged that burden in relation to all seven categories of proscribed acts.

Conclusion as to cause of action

16. The plaintiff has established a cause of action under Section 57(1) of the Constitution for breach of the human rights conferred on him by Sections 36(1), 37(1) and 41(1) of the Constitution.

4 HAS THE PLAINTIFF ESTABLISHED LIABILITY AGAINST THE STATE?

17. Mr Piam submitted that 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.

18. I reject that submission. The State is vicariously liable for human rights breaches committed by police officers 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 assaulted the plaintiff. The State is not relieved of liability simply because the police officers acted well outside the scope of legitimate police functions.

19. The plaintiff has established a cause of action for breach of human rights, in particular the rights in Sections 36(1), 37(1), 37(17) and 41(1) of the Constitution, against the ninth defendant, the State, in respect of personal injury, but not property damage, caused to him by police officers at Porgera on 30 June 1998.

5 WHAT ORDERS SHOULD BE MADE?

20. As this trial was confined to the issue of liability, no assessment of damages will be made. Assessment of damages is not a formality. The plaintiff still needs to prove his losses (Yange Langan v The State (1995) N1369). This raises the question of how damages should be assessed. There are at least three options available to the court: (1) order a trial on assessment of damages or (2) let the parties resolve the matter or (3) order mediation. In the circumstances of this case and its long and unusual history I have decided to order a trial on assessment of damages.

21. As to costs, 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. I direct entry of judgment in the following terms:

(1) The plaintiff's application for enforcement of human rights is upheld.

(2) The plaintiff has established a cause of action for breach of human rights, in particular the rights in Sections 36(1), 37(1), 37(17) and 41(1) of the Constitution, against the ninth defendant, the State, in respect of personal injury, but not property damage, caused to him by police officers at Porgera on 30 June 1998.

(3) The question of assessment of damages shall be determined at a separate trial, in respect of which there shall be a directions hearing at Waigani on 8 October 2012 at 9.30 am or at such other time set by the court.

(4) Costs of the proceedings shall be paid by the ninth defendant to the plaintiff on a party-party basis, to be taxed if not agreed.

Judgment accordingly.
_____________________________

Public Solicitor: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Defendants