Joyce Avosa v Rene Motril

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 17 September 2014
• Citation: (2014) N5732
• Court: National Court
• Year: 2014
• Judgement Number: N5732

Full : HRA NO 96 of 2013; Joyce Avosa v Rene Motril & Anne Samienta (2014) N5732

National Court: Cannings J

Judgment Delivered: 17 September 2014

N5732

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 96 0F 2013

JOYCE AVOSA

Applicant

V

RENE MOTRIL & ANNE SAMIENTA

Respondents

Madang: Cannings J

2014: 21 July, 9, 17 September

HUMAN RIGHTS – enforcement – protection against proscribed acts – liberty of the person – protection from unjust deprivation of property

The applicant conducted a business in premises managed and controlled by the respondents. She claimed that she was put under pressure by the respondents to sign a new tenancy agreement and that when she sought more time to consider her position the respondents became aggressive, locked her out of her business, brought dogs onto the premises to harass her, at one stage locked her inside the premises for two hours and then locked up the equipment inside, all in an attempt to intimidate her. She commenced proceedings under Section 57 of the Constitution seeking enforcement of her human rights. The respondents argued that the application should be dismissed as this was a simple contractual dispute, involving no human rights issues, and the applicant should have commenced the proceedings by writ of summons.

Held:

(1) The characterisation of the dispute as contractual or commercial in nature did not mean that an application for enforcement of human rights was an improper mode of commencement of proceedings. The preliminary argument of the respondents was dismissed.

(2) The applicant adduced credible evidence. The respondents did not adduce any evidence. The court found that the gist of the allegations was proven and made findings of fact accordingly.

(3) Three of the applicant’s human rights were breached, viz

· protection from proscribed acts, including harsh or oppressive acts (Constitution, s 41(1));

· liberty of the person (Constitution, s 42(1));

· protection from unjust deprivation of property (Constitution, s 53(1)).

(4) The applicant established a cause of action for breach of human rights, with damages to be assessed.

Cases cited

The following cases are cited in the judgment:

Joe Kape Meta v Kumono, Kulunio & The State (2012) N4958

Petrus and Gawi v Telikom PNG Ltd (2008) N3373

APPLICATION

This was a trial on liability to determine whether an application for enforcement of human rights should be upheld.

Counsel

V Amoko, for the applicant

B W Meten & D F Wa’au, for the respondents

17th September, 2014

1. CANNINGS J: Joyce Avosa, the applicant, is applying for enforcement of her human rights under Section 57(1) of the Constitution, which she claims were breached by the respondents, Rene Motril and Anne Samienta, during 2012 and 2013. The applicant says that in 2003 she started a hair and beauty salon business in premises at Section 11, Allotment 15, Dal Crescent, Madang, in accordance with an arrangement made with the person who then managed the premises. The respondents took over management of the premises in 2011 and increased the rent on two occasions. The applicant says that she paid those increases, but then in 2012 and 2013 her business relationship with the respondents soured.

2. The applicant alleges that she was put under undue pressure by the respondents to sign a new tenancy agreement and when she sought more time to consider her position, the respondents:

· became aggressive,

· locked her out of her business premises on several occasions,

· brought dogs onto the premises to harass her on one occasion,

· locked her inside the premises for two hours on one occasion, and then

· permanently locked her out of the premises and locked up the equipment inside the premises,

all in an attempt to intimidate and embarrass her.

3. She argues that by engaging in such intimidating and malicious conduct the respondents breached her human rights. She seeks compensation. The respondents deny that they have breached any human rights. Mr Meten submitted that the application should be dismissed as this was a simple contractual dispute, involving no human rights issues, and the applicant should have commenced the proceedings by writ of summons.

4. There are four issues:

1 Should the proceedings be summarily dismissed?

2 Has the applicant proven the factual allegations?

3 Has the applicant established a cause of action for breach of human rights?

4 What orders should be made?

1 SHOULD THE PROCEEDINGS BE SUMMARILY DISMISSED?

5. No. The characterisation of the dispute as contractual or commercial in nature does not mean that an application for enforcement of human rights is an improper mode of commencement of proceedings. The applicant used a proper mode of commencement by filling out a Human Rights Enforcement Application form under Rule 7(1)(c) and Form 124 of the Human Rights Rules (Order 23 of the National Court Rules). The respondents’ preliminary argument is dismissed.

2 HAS THE APPLICANT PROVEN THE FACTUAL ALLEGATIONS?

6. I have considered two affidavits by the applicant and affidavits by three of her customers, who attest to the events at the applicant’s business premises in 2012 and 2013. The respondents have not given any evidence and have not denied the factual allegations of the applicant. I consider that the applicant’s evidence is not incredible, it is believable. The fact that the applicant went to the trouble of filing a human rights enforcement application on 23 September 2013 and gave an account of events in similar terms to that set out in her evidence, supports the truthfulness of the allegations.

7. I find that the applicant has proven on the balance of probabilities that the gist of her allegations is true. The respondents locked her out of her business premises on several occasions in the period from May 2012 to July 2013 and this was done as the respondents became impatient with her request to consider the draft tenancy agreement that she was asked to sign. On one occasion, which I find was in July 2012, the respondents came to the premises with two dogs and this put the applicant in a state of fear and anxiety. The purpose of bringing the dogs was to intimidate and harass the applicant. The respondents were responsible for locking the applicant in the premises on 15 June 2013 and this also caused her fear and anxiety. She has been locked out of the premises since 22 July 2013 and her equipment has been locked in.

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

8. When the applicant filled out her Human Rights Enforcement Application form she ticked the following boxes, which indicated the human rights she alleged had been breached:

· right to freedom (s 32);

· right to life (s 35);

· freedom from inhuman treatment (s 36);

· protection of the law (s 37);

· proscribed acts (s 41);

· liberty of the person (s 42);

· freedom from arbitrary search and entry (s 44);

· freedom of conscience, thought and religion (s 45);

· freedom of expression (s 46);

· freedom of assembly and association (s 47);

· freedom of employment (s 48);

· right to privacy (s 49);

· right to freedom of movement (s 52);

· protection from unjust deprivation of property (s 53);

· equality of citizens (s 55).

9. At the trial Ms Amoko focussed on the alleged breaches of Sections 32, 36 and 53. I agree with Mr Meten that even if the applicant’s allegations of fact are sustained – and they have been – most of the alleged human rights breaches cannot be proven. Most, but not all. I consider that three human rights breaches have been established:

(a) protection from proscribed acts, including harsh or oppressive acts (Constitution, s 41(1));

(b) liberty of the person (Constitution, s 42(1));

(c) protection from unjust deprivation of property (Constitution, s 53(1)).

(a) Protection against proscribed acts

10. 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.

11. 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 &...