Jeanette Kornet v Dominic Sumala and Jeffrey Simewa, OIC, NCD Barracks and Bryan Pannie, OIC, Games Village Barracks and Gari Baki, Commissioner of Police and the Independent State of Papua New Guinea (2020) N8260

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 08 April 2020
• Court: National Court
• Citation: (2020) N8260
• Docket Number: HRA No 96 of 2019
• Year: 2020
• Judgement Number: N8260

Full Title: HRA No 96 of 2019; Jeanette Kornet v Dominic Sumala and Jeffrey Simewa, OIC, NCD Barracks and Bryan Pannie, OIC, Games Village Barracks and Gari Baki, Commissioner of Police and the Independent State of Papua New Guinea (2020) N8260

National Court: Cannings J

Judgment Delivered: 8 April 2020

N8260

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 96 OF 2019

JEANETTE KORNET

Plaintiff

V

DOMINIC SUMALA

First Defendant

JEFFREY SIMEWA, OIC, NCD BARRACKS

Second Defendant

BRYAN PANNIE, OIC, GAMES VILLAGE BARRACKS

Third Defendant

GARI BAKI, COMMISSIONER OF POLICE

Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

Waigani: Cannings J

2019: 19th, 29th August, 12th November, 20th December

2020: 8th April

HUMAN RIGHTS –decision of Commissioner of Police to evict plaintiff officer from police barracks – complaints against plaintiff of noise pollution, unruly behaviour, threats of violence against neighbour – alleged breach of human rights by Commissioner – right to full protection of law, Constitution, s 37 – proscribed acts, Constitution, s 41 – principles of natural justice, Constitution, s 59.

REMEDIES –whether plaintiff who commences proceedings by filing human rights enforcement application may only be granted relief expressly sought – Constitution, ss 57(3), 155(4) – power of Court to grant remedies.

The plaintiff was a long-serving civilian officer of the Department of Police,authorised to live with her family in a police barracks. After living there for ten years, she was given a copy of a minute from the Commissioner of Police (the fourth defendant) addressed to the Deputy Commissioner (Administration), requiring her eviction forthwith, due to ‘numerous complaints from the public and police members regarding her children’. There had in the preceding three years been a series of conflicts between the plaintiff and her neighbour, the first defendant, who complained to the officers responsible for administration of the barracks, the second and third defendants. Those officers formed the opinion that the plaintiff was at fault and should be evicted. It was apparently on their recommendation that the Commissioner decided that the plaintiff be evicted. The day after she received a copy of the Commissioner’s minute, an eviction exercise was commenced and the plaintiff commenced the current proceedings, an application for enforcement of human rights. The Court granted an interim injunction to restrain her eviction and the matter proceeded to trial. The plaintiff argued that the defendants failed to comply with the principles of natural justice and consequently her human rights were breached. The defendants denied all allegations of human rights breaches and argued that the plaintiff was guilty of flagrant breaches of the standing orders for the barracks and that the proceedings should be dismissed and that the Commissioner’s decision on her eviction should be given immediate effect.

Held:

(1) The plaintiff was a long-term resident of the barracks and a long-serving officer, and was entitled, if it were proposed to evict her, to natural justice under s 59 of the Constitution. Those making decisions regarding her accommodation had to act fairly and be seen to act fairly.

(2) The second, third and fourth defendants failed to act fairly in dealing with the plaintiff in that: the plaintiff was not given formal notice of the first defendant’s complaints or the allegation that she was in breach of the standing orders; (b) there was no impartial or thorough investigation of the complaints; (c) there was no hearing or determination of the complaints or allegations by any impartial and independent decision-maker; (d) she was given no right to be heard; (e) no formal finding of breach of the standing orders was made by any of the defendants; (f) the Commissioner’s decision that the plaintiff’s housing privileges are “hereby forfeited” and that she was to be “evicted forthwith” was made arbitrarily; (g) no formal or direct eviction notice was given to the plaintiff; (h) the plaintiff was given only 24 hours’ notice of her eviction.

(3) The second, third and fourth defendants failed to afford the first plaintiff the full protection of the law under s 37(1) of the Constitution and dealt with her in a manner that was harsh and oppressive and not warranted by the particular circumstances of her particular case contrary to ss41(1)(a) and (b) of the Constitution.

(4) Declared and ordered under ss 57(3) and 155(4) of theConstitution that: the defendants breached the human rights of the plaintiff; the decision that the plaintiff be evicted is null and void and quashed; any further decisions regarding the plaintiff’s accommodation shall be made in accordance with the principles of natural justice; the defendants shall deal with any further conflicts in accordance with the principles of natural justice and mediation; the plaintiff and the first defendant shall preserve the peace of the Barracks; the parties bear their own costs; the proceedings are thereby determined.

Cases Cited

The following cases are cited in the judgment:

Abaina Emos v Dr Sebastian Bagrie & Madang Teachers College (2020) N8166

Boson Wilson v Joseph Kekeya & Divine Word University (2018) N7613

Constitutional Reference No 1 of 1977 Re Effect of non-compliance with Section 42(2) of the Constitution [1977] PNGLR 362

Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598

Morobe Provincial Government v John Kameku (2012) SC1164

Petrus and Gawi v Telikom PNG Ltd (2008) N3373

SC Ref No 1 of 1993 Re Section 365 of the Income Tax Act (1995) SC482

The State v Mana Turi [1986] PNGLR 221

APPLICATION

This was an application for enforcement of human rights.

Counsel

J Kambao, for the Plaintiff

T Mileng, for the Defendants

8th April, 2020

1. CANNINGS J: The plaintiff, Jeanette Kornet, has been a civilian officer of the Department of Police since December 1975. She presently works in the Human Resources Development Directorate. She is aged in her early 60s. She is a widow. She has eight children, some of them adults. She has been living with her family at house #38 at the Games Village Police Barracks, National Capital District, since 2008in accordance with a decision of a Police Housing Allocation Committee. On 27 March 2019 she was given a copy of a minute from the Commissioner of Police (the fourth defendant) addressed to the Deputy Commissioner (Administration), requiring her eviction forthwith, due to ‘numerous complaints from the public and police members regarding her children’.

2. The next day, 28 March 2019, an eviction exercise commenced. Various members of the Police Force arrived at house #38 and forcibly removed the plaintiff’s goods and chattels from the house. The plaintiff filed a human rights enforcement application later that day, and the National Court on the same day granted an interim injunction to restrain her eviction. The injunction remains in place pending the outcome of this trial of the application, in which the plaintiff seeks a permanent injunction to restrain her eviction.

3. The Commissioner’s decision to evict the plaintiff was made after a series of incidents and complaints emanating from conflicts between the plaintiffand her next-door neighbour, Sergeant Dominic Sumala (the first defendant), who has occupied house #39 since 2012. A number of complaints were lodged by the first defendant with officers responsible for administration of the barracks, Chief Sergeant Jeffrey Simewa, the officer-in-charge of all NCD police barracks (the second defendant) and Chief Sergeant Bryan Pannie, the OIC of the Games Village Barracks (the third defendant). Those senior officers, principally the third defendant, formed the opinion that the plaintiff and her adult sons were at fault and should be evicted.

4. The plaintiff’s grievance is that in the numerous neighbourly conflicts that have arisen, it is the first defendant who has been at fault, not her or her sons. Her principal legal argument is that the defendants failed to comply with the principles of natural justice and consequently her human rights were breached in two respects: she was denied the full protection of the law under s 37(1) of the Constitution and dealt with harshly and oppressively contrary to s 41(1) of the Constitution.

5. The defendants deny all allegations of breaches of human rights. They argue that the plaintiff was guilty of flagrant breaches of the standing orders and standards of behaviour of all residents of the barracks and that all relief sought by the plaintiff should be refused, the proceedings should be dismissed, the injunction should be dissolved and the Commissioner’s decision should be given immediate effect.

6. The following issues arise:

(1) What were the complaints against the plaintiff and how were they dealt with?

(2) Was there any breach of the plaintiff’s human rights?

(3) What orders should the court make?

1 WHAT WERE THE COMPLAINTS AGAINST THE PLAINTIFF AND HOW WERE THEY DEALT WITH?

Plaintiff’s evidence

7. The plaintiff and several of her adult sons gave oral...