Lomot Chauka v Elthy Biang and Thomas Vogusang and Chief Magistrate and The Independent State of Papua New Guinea (2012) N4854

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 31 October 2012
• Court: National Court
• Citation: (2012) N4854
• Docket Number: MP (HR) NO 407 of 2007
• Year: 2012
• Judgement Number: N4854

Full Title: MP (HR) NO 407 of 2007; Lomot Chauka v Elthy Biang and Thomas Vogusang and Chief Magistrate and The Independent State of Papua New Guinea (2012) N4854

National Court: Cannings J

Judgment Delivered: 31 October 2012

N4854

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP (HR) NO 407 0F 2007

LOMOT CHAUKA

Plaintiff

V

ELTHY BIANG

First Defendant

THOMAS VOGUSANG

Second Defendant

CHIEF MAGISTRATE

Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Waigani: Cannings J

2012: 21 June, 31 August, 31 October

TORTS – human rights – alleged negligence by District Court Magistrate resulting in unlawful imprisonment – whether a Magistrate can be liable in negligence – immunity for suit for judicial officers – whether a breach of human rights for an unconvicted person to be treated as a convicted prisoner.

The plaintiff claimed that she was arrested and detained in a correctional institution for 18 days pursuant to an order of the District Court that was made on the false pretext that she had failed to pay money to the first defendant pursuant to an earlier District Court order. The plaintiff claimed that she was detained unlawfully, not having been found guilty of any offence and being detained in inhuman conditions and treated as a convicted prisoner before the errors were corrected by her being released under an order of another Magistrate. She commenced proceedings under Section 57 of the Constitution against the woman (first defendant) whose complaint led to her being arrested and detained, the Magistrate who ordered her arrest and detention (second defendant), the Chief Magistrate (third defendant) and the State (fourth defendant), seeking enforcement of her human rights and also claimed that the Magistrate should be personally liable in negligence. A trial was set down to determine whether any of the second, third and fourth defendants was liable and, if any was liable, to assess damages. The plaintiff adduced affidavit evidence of the train of events and sought total damages of K70,000.00. The defendants adduced no evidence but defended the matter by claiming that the entire proceedings should be dismissed as the plaintiff failed to: give notice of her intention to make a claim against the State in accordance with Section 5 of the Claims By and Against the State Act, comply with the requirements of Part XII (protection of magistrates in execution of their office) of the District Courts Act and plead the elements of her claim in accordance with the National Court Rules.

Held:

(1) 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. Such an estoppel operated here.

(2) The effect of Part XII of the District Courts Act is to confer on Magistrates a substantial immunity from suit (similar to the common law doctrine of judicial immunity) on Magistrates, which requires a person bringing an action to expressly allege and prove that the Magistrate acted maliciously and without reasonable cause. Those requirements were not met here, so the second defendant and the third defendant were immune from suit in these proceedings.

(3) Further, the statement of claim failed to adequately plead the elements of the tort of negligence so no cause of action in negligence could be established.

(4) Despite some deficiencies in the statement of claim, it was sufficiently alleged and proven that the plaintiff had been arrested and detained without proper cause and that a number of her human rights were breached, viz

· right to the full protection of the law (Constitution, Section 37(1));

· right to be treated with humanity and with respect for the inherent dignity of the human person (Constitution, Section 37(17));

· right, as an accused person, to be segregated from convicted persons and to be subject to separate treatment appropriate to her status as an unconvicted person (Constitution, Section 37(18));

· right to protection against harsh or oppressive acts (Constitution, Section 41(1)).

(5) The plaintiff thus established a cause of action for breach of human rights, for which the fourth defendant was held liable.

(6) Damages were assessed at the rate of K250.00 per day for which the plaintiff was unlawfully detained: K250.00 x 18 days = K4,500, 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 5.39 years: K1,940.40, resulting in a total judgment sum of K6,440.40.

Cases cited

The following cases are cited in the judgment:

Gawi & Kari v The State (2012) N4814

Meronas Songkae v Inspector Tony Wagambie Jnr (2012) N4807

Nahkla v McCarthy [1978] 1 NZLR 291

Sirros v Moore [1975] QB 118

Titus Banga v Madang Port Services Ltd (2011) N4302

APPLICATION

This was a trial on liability to determine the plaintiff’s application for enforcement of human rights and an assessment of damages.

Counsel

E Wurr & E Wohuinangu, for the plaintiff

J P Kendy, for the 2nd, 3rd & 4th defendants

31 October, 2012

1. CANNINGS J: This is a trial on liability and an assessment of damages arising out of allegations by the plaintiff, Lomot Chauka, that she was wrongfully arrested and detained in custody unlawfully for 18 days pursuant to an order of the Kavieng District Court that should never have been made.

2. The plaintiff claims that the District Court order, which was made by Magistrate Mr T Vogusang in the form of a warrant for her arrest on 11 June 2007, was based on the false pretext that she had failed to pay money to the first defendant, Elthy Biang, (the former wife of the plaintiff’s husband) pursuant to an earlier District Court order. The plaintiff says that there was a judgment debt due to Ms Biang in the sum of K4,978.00 which was in fact paid on 20 July 2006. The plaintiff says that the warrant for her arrest was executed on 11 July 2007 and that she was immediately taken to Kavieng Jail where she was unlawfully detained, not having been found guilty of any offence and being detained in inhuman conditions and treated as a convicted prisoner before the errors were corrected by her being released under an order of another Magistrate.

3. She commenced proceedings under Section 57 of the Constitution on 1 November 2007 seeking enforcement of her human rights against:

· Ms Biang, the first defendant, whose complaint led to her being arrested and detained,

· Mr Vogusang, the second defendant, the Magistrate who ordered her arrest and detention,

· the Chief Magistrate, the third defendant, and

· the State, the fourth defendant.

4. In September 2011 the National Court directed the plaintiff’s lawyer, the Public Solicitor, to file a statement of claim so that the plaintiff’s grievances could be more clearly articulated. The fourth defendant subsequently filed a defence and the matter has come on for trial to determine whether any of the second, third or fourth defendants is liable and, if any of them is liable, to assess damages. The action in relation to the first defendant has not been pursued.

5. The plaintiff adduced affidavit evidence of the train of events and sought total damages of K70,000.00. The defendants adduced no evidence but defended the matter by claiming that the entire proceedings should be dismissed as the plaintiff failed to: give notice of her intention to make a claim against the State in accordance with Section 5 of the Claims By and Against the State Act, comply with the requirements of Part XII (protection of magistrates in execution of their office) of the District Courts Act and plead the elements of her claim in accordance with the National Court Rules.

6. There are six issues:

(1) Should the proceedings be dismissed due to failure to comply with the Claims By and Against the State Act?

(2) Has there been a failure to comply with the requirements of Part XII of the District Courts Act?

(3) Has there been a failure to plead the elements of the plaintiff’s claim under the National Court Rules?

(4) Has the plaintiff proven the factual allegations?

(5) Has the plaintiff established a cause of action against any of the defendants?

(6) What damages, if any, is the plaintiff entitled to?

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

7. Mr Kendy, for the second, third and fourth defendants, submitted that the plaintiff was late by about a month in giving notice of her intention to make a claim against the State under Section 5 of the Claims By and Against the State Act. He submitted that the Attorney-General granted her leave to file a late notice but she failed to give notice within the extended period; thus there has been a failure...