N6230

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 42 OF 2015

STEPHEN IAN ASIVO FOR HIMSELF AND ON BEHALF OF
23 OTHER AGGRIEVED EMPLOYEES OF
MADANG COCOA GROWERS EXPORT CO LIMITED
Plaintiff

V

COCOA BOARD OF PAPUA NEW GUINEA
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Madang: Cannings J
2015: 21 July, 10 August
2016: 23 March

HUMAN RIGHTS – application for enforcement – Constitution, Section 48 (freedom of employment); Section 41 (proscribed acts) – Universal Declaration of Human Rights, Article 23 (right to work).

PRACTICE AND PROCEDURE – whether proceedings were an abuse of process – National Court Rules, Order 12, Rule 40 (frivolity etc).

The plaintiff is the executive director of a company that had its registration as a cocoa exporter unlawfully cancelled by the Cocoa Board (the first defendant). The plaintiff, on behalf of himself and 23 other employees of the company, applied for enforcement of human rights against the Board. He sought damages for breaches by the Board of three human rights: freedom of employment under Section 48 of the Constitution; the right to work under Article 23 of the Universal Declaration of Human Rights; protection against harsh, oppressive or other unlawful acts under Section 41 of the Constitution. The Board and the State (the second defendant) failed to file a defence, failed to attend the trial of the application, which was set down to determine the issue of liability, and failed to adduce any evidence in response to the plaintiff's evidence. The plaintiff submitted: (1) as a preliminary point, that default judgment should be entered against the defendants due to their failure to defend the case; and in the event that default judgment was refused (2) that the Court should uphold the application for enforcement of human rights and find that the defendants have breached he human rights of himself and those 23 others he represents, and are liable to pay damages, to be assessed at a separate trial. 

Held:

(1)	The application for default judgment was refused as it was not properly before the Court. Such an application can only be made in proceedings commenced by writ of summons and by notice of motion supported by affidavit, in accordance with Division 12.3 of the National Court Rules.

(2)	The proceedings were an abuse of process as the plaintiff had (a) not complied with the notice requirements of Section 5 of the Claims By and Against the State Act; (b) not complied with the requirements for commencement of representative proceedings; (c) engaged in a multiplicity of proceedings, in a piecemeal manner, in different guises, without a satisfactory explanation and (d) inordinately delayed commencement of the proceedings, without a satisfactory explanation. 

(3)	No breach of human rights was proven in that (a) Section 48(1) of the Constitution confers a right to freedom of choice of employment (not a right to employment), which was not interfered with by the defendants; (b) the Universal Declaration of Human Rights does not create human rights that are capable of direct enforcement under the Constitution; (c) the action of the Board was not so harsh or oppressive as to be unlawful under Section 41 of the Constitution.

(4)	The application for enforcement of human rights was accordingly refused, and the proceedings were entirely dismissed. 

Cases cited

The following cases are cited in the judgment:

Allan Pinggah v Margaret Elias (2007) SC888
Anderson Agiru v Electoral Commission and The State (2002) SC687
Application by Anderson Agiru (2003) SC704
Application by Karingu [1988-89] PNGLR 276
Eddie Tarsie v Ramu Nico Management (MCC) Ltd (2010) N4141
Haiveta v Wingti (No 3) [1994] PNGLR 197
Joe Kape Meta v Constable Paul Kumono (2012) N4598
John Ipidari v Hon Francis Potape (2015) N6041
Kelly Koi v Constable Mathew Anseni (2014) N5580
Kiee Toap v The State (2004) N2766
Madang Cocoa Growers Export Co Ltd v National Development Bank Ltd (2011) N4291
Madang Cocoa Growers Export Co Ltd v National Development Bank Ltd (2012) N4682
Madang Cocoa Growers Export Co Ltd v Noilai Gunar (2012) N4703
Madang Cocoa Growers Export Co Ltd v Noilai Gunar (2014) N5500
Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2012) N4881
Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2012) N4956
Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2013) N5324
Madang Cocoa Growers Export Co Ltd v Tautea & Cocoa Board (2012) N4584
Madang Cocoa Growers Export Co Ltd v Tautea & Cocoa Board (2013) N5426
Madang Provincial Government v Madang Cocoa Growers Export Company Ltd (2014) SC1375
Morobe Provincial Government v John Kameku (2012) SC1164
National Executive Council & Luke Lucas v Public Employees Association [1993] PNGLR 264
Ok Tedi Mining Ltd v Niugini Insurance Corporation [1988-89] PNGLR 425
Paul Tohian & The State v Tau Liu (1998) SC566
Premdas v The State [1979] PNGLR 329, Application by Karingu [1988-89] PNGLR 276
Pruaitch v Manek (2010) N4149
Re Alleged Brutal Treatment of Suspects (2014) N5512
Reference by Dr Allan Marat, In the matter of Prime Minister and NEC Act Amendments (2012) SC1187
SCR No 1 of 1980, Re Section 22A(b) of the Police Offences Act [1981] PNGLR 28
SCR No 1 of 1981, Re Inter-Group Fighting Act [1981] PNGLR 151
SCR No 4 of 2001, Re Validity of NCDC Amendment Acts (2001) SC678
Simon Mali v The State (2002) SC690
Telikom (PNG) Ltd v ICCC & Digicel (PNG) Ltd (2008) SC906
Tigam Malewo v Keith Faulkner (2009) SC960
Wilfred Mamkuni & 80 Others v Ly Cuong-Long & Jant Ltd (2011) N4674

APPLICATION

This was the trial of an application for enforcement of human rights.

Counsel:

S I Asivo, the plaintiff in person

23 March, 2016

1. CANNINGS J: The plaintiff, Stephen Ian Asivo, applies on behalf of himself and 23 other present and former employees of Madang Cocoa Growers Export Company Limited ("Madang Cocoa") for enforcement of human rights against the Cocoa Board of Papua New Guinea (first defendant) and the State (second defendant).

2. The plaintiff argues that the Board unlawfully cancelled Madang Cocoa's licence to export cocoa, and in doing so breached the human rights of himself and the other company employees he represents. He seeks damages for breaches by the Board of three human rights: 

•	freedom of employment under Section 48 of the Constitution; 

•	the right to work under Article 23 of the Universal Declaration of Human Rights; 

•	protection against harsh, oppressive or other unlawful acts under Section 41 of the Constitution. 

3. Both the Board and the State failed to file a notice of intention to defend or a defence, failed to attend the trial of the application, which was set down to determine the issue of liability, and failed to adduce any evidence in response to the plaintiff's evidence. The trial has gone ahead without their involvement.

4. The plaintiff has submitted: 

(1) as a preliminary point, that default judgment should be entered against the defendants due to their failure to defend the case; and in the event that default judgment is refused 

(2) that the Court should uphold the application for enforcement of human rights and find that the defendants have breached he human rights of himself and those 23 others he represents and are liable to pay damages, to be assessed at a separate trial. 

(1)	SHOULD DEFAULT JUDGMENT BE ENTERED AGAINST THE DEFENDANTS?

5. No. The application for default judgment is not properly before the Court. It is just a preliminary point made in the plaintiff's submission. Such an application can only properly be made in proceedings commenced by writ of summons and by notice of motion supported by affidavit, in accordance with Division 12.3 of the National Court Rules.

(2)	SHOULD THE APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS BE UPHELD?

6. No. I refuse the application, even though it has been undefended, for two reasons: abuse of process and lack of merit.

ABUSE OF PROCESS

7. To appreciate why these proceedings are an abuse of process it is necessary to set out the background. On 27 July 2005 Madang Cocoa was registered by the Board as a permitted exporter of cocoa under the Cocoa Act, allowing it to export until 30 September 2006, and it began the business of exporting cocoa. Less than four months later, on 25 November 2005, its registration was cancelled, and it has never been renewed. Madang Cocoa's export business ceased. Many of its employees (the people represented by the plaintiff) lost their jobs.

8. In early 2006 it applied to the National Court for judicial review of cancellation of its registration, in proceedings which for various reasons took six years to complete. On 23 March 2012 the National Court upheld the application for judicial review, quashing the decision to cancel the registration and declaring that the cancellation was unlawful and a nullity. The Court declined to award damages against the Board as damages were not sought in the originating process (Madang Cocoa Growers Export Co Ltd v Tautea & Cocoa Board (2012) N4584). 

9. Four days later, on 27 March 2012, Madang Cocoa commenced fresh proceedings, by writ of summons, against the Board, claiming damages for business losses arising from the unlawful cancellation of its registration. The Board defended those proceedings vigorously. On 22 November 2013 the National Court dismissed the proceedings as an abuse of process, as Madang Cocoa had engaged in a multiplicity of proceedings, conducted litigation in a piecemeal manner and had a 'second bite at the cherry' without satisfactory explanation (Madang Cocoa Growers Export Co Ltd v Tautea & Cocoa Board (2013) N5426).

10. On 19 February 2015 the plaintiff, Mr Asivo, gave written notice to the Solicitor-General, in a letter dated 2 February 2015, of his intention to make a claim against the State on behalf of employees of Madang Cocoa in relation to the unlawful suspension by the Cocoa Board, on 25 November 2005, of Madang Cocoa's cocoa export registration. On 11 March 2015 the plaintiff filed the present application for enforcement of human rights. 

11. I have concluded that the application is an abuse of process for four reasons.

(a)	Failure to comply with requirements of Section 5 of the Claims By and Against the State Act 

12. As the plaintiff is seeking damages against the State in a claim based on breach of human rights he had to comply with Section 5 (notice of claims against the State), which states:

(1)	No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this Section by the claimant to—

(a)	the Departmental Head of the Department responsible for justice matters; or

(b)	the Solicitor-General.

(2)	A notice 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.

(3)	A notice under Subsection (1) shall be given by—

(a)	personal service on an officer referred to in Subsection (1); or

(b)	leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 am and 12 noon, or 1.00 pm and 4.06 pm, or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).

13. Section 5 imposes various requirements as to how notice is to be given and on whom it is to be given, which the plaintiff has complied with. However, he has not complied with the time requirement. As this is not a claim for breach of contract (s 5(2)(b)) and no further period has been allowed by the Principal Legal Adviser (s 5(2)(c)(i)) or the Court (s 5(2)(c)(ii)), notice had to be given before commencing the proceedings and "within a period of six months after the occurrence out of which the claim arose" (Paul Tohian & The State v Tau Liu (1998) SC566). 

14. The plaintiff gave notice (on 19 February 2015) before commencing the proceedings (on 11 March 2015). But notice was not given (on 19 February 2015) until nine years, two months, three weeks and four days after the occurrence out of which the claim arose (the alleged breach of human rights constituted by the unlawful cancellation of Madang Cocoa's registration, on 25 November 2005). The notice was eight years, eight months, three weeks and four days, late. Failure to comply with the time requirement of Section 5 renders the proceedings an abuse of process (John Ipidari v Hon Francis Potape (2015) N6041). 

(b)	Failure to comply with requirements for commencement of representative proceedings

15. The plaintiff claims to represent 23 other people. These are representative proceedings or a class action. The leading Supreme Court cases of Simon Mali v The State (2002) SC690 and Tigam Malewo v Keith Faulkner (2009) SC960 show that if a person puts himself forward as a plaintiff acting in a representative capacity for other persons:

•	all intended plaintiffs (those who he claims to represent) must be named in the originating process;

•	each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers or as in this case their personal representative to act for them;

•	any person in whose name proceedings are commenced and who claims to represent other intended plaintiffs must produce an authority to the court to show that he was authorised by them to file proceedings as a class representative.

16. None of those requirements has been met. Therefore the proceedings are an abuse of process (Eddie Tarsie v Ramu Nico Management (MCC) Ltd (2010) N4141, Wilfred Mamkuni & 80 Others v Ly Cuong-Long & Jant Ltd (2011) N4674). 

(c)	Engaging in multiplicity of proceedings, in a piecemeal manner, in different guises

17. This is the third attempt by the plaintiff, Mr Asivo, to gain an award of damages against the Cocoa Board for the unlawful cancellation of Madang Cocoa's registration as a cocoa exporter on 25 November 2005. The first attempt was the judicial review application decided in Madang Cocoa's favour on 23 March 2012, in which the Court refused to award damages (Madang Cocoa Growers Export Co Ltd v Tautea & Cocoa Board (2012) N4584). 

18. The second attempt was the trial of the writ of summons which was on 22 November 2013 dismissed as an abuse of process (Madang Cocoa Growers Export Co Ltd v Tautea & Cocoa Board (2013) N5426). 

19. In this third attempt the plaintiff is, on the surface, formally different (Mr Asivo, rather than Madang Cocoa), as is the cause of action (breach of human rights, rather than statutory illegality). However, I take judicial notice of the fact that Mr Asivo, with the leave of the Court, appeared in Court to represent Madang Cocoa in those cases. He has also appeared in many other cases involving Madang Cocoa. For example: Madang Provincial Government v Madang Cocoa Growers Export Company Ltd (2014) SC1375; Madang Cocoa Growers Export Co Ltd v Tautea & Cocoa Board (2012) N4584; Madang Cocoa Growers Export Co Ltd v National Development Bank Ltd (2011) N4291; Madang Cocoa Growers Export Co Ltd v National Development Bank Ltd (2012) N4682; Madang Cocoa Growers Export Co Ltd v Noilai Gunar (2012) N4703; Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2012) N4881; Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2012) N4956; Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2013) N5324; Madang Cocoa Growers Export Co Ltd v Noilai Gunar (2014) N5500. Except for the Supreme Court case referred to ((2014) SC1375, in which Mr Asivo, a non-lawyer, was refused leave to appear for Madang Cocoa), I have been the Judge in those cases. 

20. By piercing the corporate veil, it can be seen that Mr Asivo is so closely tied to the affairs of the company he frequently represents, that he can be regarded as the personal embodiment of that company: Madang Cocoa. 

21. Furthermore, the difference in causes of action between this case and N4584 and N5426 becomes insignificant when attention is focussed on the underlying facts of each case: cancellation of Madang Cocoa's registration on 25 November 2005. 

22. Commencement of separate proceedings that seek different remedies based on the same cause of action, or the same remedy based on the same facts (though a different cause of action is pleaded) will almost invariably be regarded as an abuse of process. A plaintiff who commences a second or, as here, a third set of proceedings to seek a remedy that could have been sought in earlier proceedings, which have been determined, will be adjudged to have engaged in a multiplicity of proceedings or conducted litigation in a piecemeal manner, which is actively discouraged: Ok Tedi Mining Ltd v Niugini Insurance Corporation [1988-89] PNGLR 425, National Executive Council & Luke Lucas v Public Employees Association [1993] PNGLR 264, Telikom (PNG) Ltd v ICCC & Digicel (PNG) Ltd (2008) SC906, Pruaitch v Manek (2010) N4149. A very good explanation needs to be provided for commencing separate proceedings. No such explanation has been given here.

23. The plaintiff, Mr Asivo, is in effect re-agitating the same cause of action and having a third bite of the cherry, a clear indication of abuse of process (Anderson Agiru v Electoral Commission and The State (2002) SC687, Application by Anderson Agiru (2003) SC704, Kiee Toap v The State (2004) N2766).

(d)	 Inordinate delay in commencement of proceedings 

24. An application for enforcement of human rights is not an action in contract or tort or any of the other types of cause of action caught by the strict limitation periods in the Frauds and Limitations Act, such as the six-year period (commencing on the date on which the cause of action accrued) imposed by Section 16(1) within which an action in contract or tort must be commenced. 

25. However, any plaintiff who proposes to commence civil proceedings has a duty to commence the proceedings within a reasonable time. This requirement is a reflection of the underlying law principles of natural justice and of the right of a defendant to the full protection of the law, which is conferred generally by Section 37(1) of the Constitution and specifically by Section 37(11) of the Constitution. These provisions state:

37(1): 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.

37(11): A determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority prescribed by law or agreed upon by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time. [Emphasis added]

26. What was a reasonable time in this case? In view of the inherent seriousness of an allegation that a person has breached another person's human rights, I suggest that the standard limitation period of six years for many civil actions should be halved. As a rule of thumb, an application for enforcement of human rights should be commenced within three years after the date on which the cause of action accrued. Here the alleged breach of human rights occurred on 25 November 2005. On that approach the present proceedings should have been commenced by 25 November 2008. But the proceedings were not commenced until more than six years later, on 11 March 2015. 

27. Whatever approach is taken, the fact is that the proceedings were not commenced until nine years, two months, three weeks and four days after the date on which the cause of action arose (the alleged breach of human rights constituted by the unlawful cancellation of Madang Cocoa's registration, on 25 November 2005). Even if the standard limitation period of six years for many civil actions were applied, this application has been made after a prolonged and unreasonable period. No satisfactory explanation has been provided for this inordinate delay. 

Conclusion re abuse of process 

28. Each of the above four aspects of this case (breach of Section 5, breach of representative requirements, multiplicity of proceedings, inordinate delay), considered alone, provides a sufficient reason to regard the proceedings as an abuse of process, and to entirely dismiss the proceedings under Order 12, Rule 40(1) of the National Court Rules, which states:

Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a)	no reasonable cause of action is disclosed; or
(b)	the proceedings are frivolous or vexatious; or
(c)	the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings. [Emphasis added.]

29. The combined effect of those four distinct abuses of process is so overwhelming that I am really left with no discretion to exercise. The proceedings must be entirely dismissed. 

LACK OF MERIT

30. If the proceedings were not dismissed as an abuse of process, the plaintiff would still not succeed, for three reasons.

(a)	No breach of Section 48(1) of the Constitution

31. The plaintiff argued that when the Cocoa Board unlawfully cancelled Madang Cocoa's registration, it breached the right to freedom of employment, conferred on him and the 23 people he represents, by Section 48(1) of the Constitution, which is in these terms:

(1)	Every person has the right to freedom of choice of employment in any calling for which he has the qualifications (if any) lawfully required, except to the extent that that freedom is regulated or restricted voluntarily or by a law that complies with Section 38 (general qualifications on qualified rights), or a law that imposes restrictions on non-citizens.

(2)	Subsection (1) does not prohibit reasonable action or provision for the encouragement of persons to join industrial organizations or for requiring membership of an industrial organization for any purpose.

32. It is important to appreciate that Section 48 confers a right to freedom of choice of employment and to protection against imposition of unlawful qualifications on employment. It does not confer a right to employment or to the practice of employment (Premdas v The State [1979] PNGLR 329, Application by Karingu [1988-89] PNGLR 276, National Executive Council and Luke Lucas v Public Employees [1993] PNGLR 264, Allan Pinggah v Margaret Elias (2007) SC888).

33. The Cocoa Board did not interfere with the right of the plaintiff and the other Madang Cocoa employees to their choice of employment in any calling for which they were qualified. 

(b) The Universal Declaration of Human Rights does not create human rights that are capable of direct enforcement under the Constitution

34. The plaintiff argues that the Cocoa Board breached the right to work, conferred on him and the 23 other people he represents by Article 23 of the Universal Declaration of Human Rights, which is in these terms:

(1)	Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

(2)	Everyone, without any discrimination, has the right to equal pay for equal work.

(3)	Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

(4)	Everyone has the right to form and to join trade unions for the protection of his interests.

35. Article 23 appears to confer a broader range of rights than Section 48 of the Constitution. However, any argument about whether those broader rights were breached is largely academic. The Universal Declaration of Human Rights does not create human rights that are capable of direct enforcement under the Constitution. 

36. The Universal Declaration of Human Rights is, in Papua New Guinea, a critical international human rights instrument. It has provided the inspiration and blueprint for the human rights, or Basic Rights, which have been entrenched in and are enforceable under Division III.3 of the Constitution. It is in the special bundle of materials which all PNG courts are invited by Section 39(3) of the Constitution to have regard to "for the purposes of determining whether or not any law, matter or thing is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind" (SCR No 1 of 1980, Re Section 22A(b) of the Police Offences Act [1981] PNGLR 28; Haiveta v Wingti (No 3) [1994] PNGLR 197; SCR No 4 of 2001, Re Validity of NCDC Amendment Acts(2001) SC678; Reference by Dr Allan Marat, In the matter of Prime Minister and NEC Act Amendments (2012) SC1187; Re Alleged Brutal Treatment of Suspects (2014) N5512). 

37. However, breach of a human right recognised by the Universal Declaration of Human Rights does not, in PNG, constitute a cause of action that can be prosecuted in a Court to obtain a remedy (SCR No 1 of 1981, Re Inter–Group Fighting Act [1981] PNGLR 151). To the extent that the plaintiff's application is based on an alleged breach of Article 23 it fails to disclose a reasonable cause of action, warranting dismissal of that part of the application under Order 12, Rule 40(1)(a) of the National Court Rules.

(c) The action of the Board was not so harsh or oppressive as to be unlawful under Section 41 of the Constitution.

38. The plaintiff argued that the Cocoa Board acted so harshly, oppressively and disproportionately when it cancelled the registration of Madang Cocoa, that it acted unlawfully and breached the rights of the plaintiff and the 23 other Madang Cocoa employees to protection against such unlawful acts under Section 41 of the Constitution (proscribed acts), which 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.

39. Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts (Morobe Provincial Government v John Kameku (2012) SC1164, Joe Kape Meta v Constable Paul Kumono (2012) N4598, Kelly Koi v Constable Mathew Anseni (2014) N5580). 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:

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

40. I do not consider that the action of the Cocoa Board in cancelling Madang Cocoa's registration can reasonably be regarded as harsh or oppressive or disproportionate or in any other way unlawful for the purposes of Section 41. 

41. The Board cancelled the registration as it had information that another company was using the registration, or licence, granted to Madang Cocoa and that Madang Cocoa had transferred its registration without authority. The legal errors committed by the Board were that the decision was made by the Chief Executive Officer (who did not have the power to make such a decision) who failed to give Madang Cocoa a right to be heard, thereby breaching the principles of natural justice (Madang Cocoa Growers Export Co Ltd v Tautea & Cocoa Board (2012) N4584). These were serious but simple errors. 

42. The decision was not made for any improper motive or in bad faith or for any personal or vindictive reason. For an unlawful administrative decision to be regarded as a proscribed and unlawful act under Section 41, it must in my view have some element of noxiousness in addition to its unlawfulness. That element is not present in this case.

Conclusion re merits of application 

43. None of the plaintiff's three arguments about breaches of human rights had merit. If the proceedings were not dismissed as an abuse of process, the application for enforcement of human rights would have been dismissed as being without merit, and the plaintiff and the 23 other employees of Madang Cocoa would not have been awarded any damages. 

CONCLUSION

44. The proceedings will be dismissed as an abuse of process. If the Court had not dismissed the proceedings for that reason, the application for enforcement of human rights would have still failed on its merits. 

45. The question of costs is an interesting one. Normally costs follow the event and the party that loses the case pays the costs of the successful party. The plaintiff lost the case but the successful parties – the defendants, the Cocoa Board and the State – are nowhere to be seen. Neither has shown any interest in the case. This is disappointing because despite failing completely, the plaintiff, Mr Asivo, who is not a lawyer, has raised a number of thought-provoking issues, particularly those relating to human rights. The Court would have benefited from the assistance of the defendants' counsel in resolving them. I am tempted to order costs against the defendants, but I have resisted due to the findings of abuse of process against the plaintiff. The parties will bear their own costs. 

ORDER

(1)	The proceedings are entirely dismissed for being an abuse of process.

(2)	The parties shall bear their own costs.

Judgment accordingly,
____________________________