Macoes (PNG) Ltd v Allan Kundi (PPC)

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 26 January 2012
• Citation: (2012) N4621
• Court: National Court
• Year: 2012
• Judgement Number: N4621

Full : WS NO 305 OF 2008; Macoes (PNG) Limited v Allan Kundi (PPC) and Steven Maliwala and Philip Rui and The Independent State of Papua New Guinea (2012) N4621

National Court: Makail, J

Judgment Delivered: 26 January 2012

N4621

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 305 OF 2008

BETWEEN

MACOES (PNG) LIMITED

Plaintiff

AND

ALLAN KUNDI (PPC)

First Defendant

AND

STEVEN MALIWALA

Second Defendant

AND

PHILIP RUI

Third Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Mount Hagen: Makail, J

2008: 05th September & 2012: 26th January

PRACTICE & PROCEDURE - Cause of action - Pleadings - Claim based on failure by policemen to stop an unlawful raid by villagers - Whether pleadings disclose a reasonable cause of action known to law - Inherent powers of Court to protect itself from abuse - Exercise of

PRACTICE & PROCEDURE - Cause of action - Different common law tortuous actions considered - Negligence - Trespass - Conversion - Detinue - Breaches of constitutional rights - No cause of action arises in respect of non-feasance acts - Various causes of action untenable - Proceedings dismissed - National Court Rules - O 12, r 40.

Facts

The plaintiff commenced proceedings against the defendants seeking damages. It relied on a number of causes of action. One was in negligence. It alleged the defendants, as members of the police force and law enforcement agency, failed in the discharge or performance of their duties when they failed or omitted to prevent villagers and traditional landowners from destroying and looting chattels and coffee trees on its tea plantation at Wara Wau in the Western Highlands Province.

At the hearing of its application for default judgment, the Court raised the issue of cause of action on its own motion and invited parties to make submissions before decision and further determination of the application for default judgment.

Held:

1. The Court in the exercise of its inherent powers, may, on its own motion raise the issue of cause of action with parties and may give the parties opportunity to address it before making a decision. The exercise of the Court’s inherent powers is invoked to prevent abuse of its processes by litigants.

2. At common law, the police owe no duty of care to the public at large. Further, there will be no duty of care if it is against wider policy issues, such as where it may adversely affect the way in which the police carry out their duties for fear of litigation. Hill -v- Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53 followed.

3. The common law is consistent with section 197 of the Constitution where the police have a responsibility for maintaining law and order but are subject to no specific requirement as to the way in which they do it. Therefore, the police owe no duty of care to the public at large and there is no duty of care if it is against public policy.

4. In the present case, the destruction and looting of the plaintiff’s property was done by third parties, namely villagers and traditional landowners of the tea plantation land. The police were not the ones who destroyed and looted the plaintiff’s property. The allegation that the police owed a duty of care to protect its property and should have attended and stopped destruction and looting, does not exist in law because police owe no duty of care to the public at large and it is against public policy.

5. As the plaintiff has failed to establish the existence of a duty of care, there cannot be a breach of that duty by the defendants. It follows the defendants are not liable for damages caused by the enemy tribe.

6. The pleadings in relation to other causes of action in trespass, conversion and detinue were vague and furthermore, mere conjectures because the primary cause of action the plaintiff relied on was in negligence. Thus, the allegations against the third defendant allegedly removing the plaintiff’s property from the tea plantation were made in passing to support the general allegation that the defendants owed a duty of care to protect the plaintiff’s property and breached that duty, hence were negligent.

7. Enforcement of constitutional guaranteed rights is enforceable if the perpetrators’ actions are affirmative.

8. The proceedings was dismissed for failing to disclose a reasonable cause of action and an abuse of process.

9. Each party shall pay their own costs of the proceedings.

Cases cited:

Papua New Guinea cases:

Simon Awaria & 20 Ors -v- Sam Inguba as Commissioner of Police, Electoral Commission & The State (2006) N3044

Titus Wambun -v- The Commissioner of Police & The State (2009) N3787

Keith Reith -v- Murray Hallam and Allcad Pty Ltd (1995) N1337

Catholic Diocese of Wabag Board of Trustees -v- Enga Provincial Government, Gari Baki Commissioner of Police & The State: WS No 1416 of 2008 (Unnumbered & Unreported Judgment of 24th October 2011)

Overseas cases:

Tringali -v- Stewardson Stubbs & Collett Ltd [1965] NSWR 418

Cox -v- Journeaux (No. 2) (1935) 52 CLR 713

Re Majory [1965] 1 Ch 600

Re Bellador Silk Ltd [1965] 1 All ER 667

King -v- Henderson [1898] AC 728

Eg Rendell -v- Assoc Finance [1957] VL 604

Blenheim River Board -v- British Pavements [1940] NZLR 564

Ont -v- Can (1983) 8 DLR (4th ) 676

Le Lievre -v- Gould [1893] 1 QB 491

Donoghue -v- Stevenson [1932] AC 562

Grant -v- Australian Knitting Mills [1936] AC 35

Hill -v- Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53

Crowley -v- Commonwealth of Australia, Australia Capital Territory and Pitkethly [2011] ACTSC 89

Kester Yee -v- Commissioner of the Fiji Police Force [2011] FJHC 38

Douglas Bamleett -v- Inspector Shailesh Kumar & Ors [2011] FJHC 37

Tiara Enterprises Ltd -v- Attorney General [2009] FJHC 155

Wargtaj Seafood Products Ltd -v- Minister of Home Affairs [2000] FJHC 213

Tio -v- Beengo [2003] KIHC 89

Jagroop -v- Sokai & Tonga [2001] TOCA 10

Knightly -v- Johns [1982] 1 All ER 851

Rigby -v- Chief Constable of Northamptonshire [1985] 2 All ER 985

R -v- Metropolitan Police Commander, ex parte Blackburn [1968] 1 All ER 763

R -v- Chief Constable of Devon and Cornwall Constabulary, ex parte Central Electrical Generating Board [1981] 3 All ER 826

Caparo Industries PLC -v- Dickman [1990] 2 AC 605

Sutradhu -v- Natural Environment Research Council [2006] 4 All ER 490

Smith -v- Chief Constable of Sussex Police (2008) EWCA CIV 39

Other References:

Winfield, Present Law of Abuse of Legal Procedure,

John G Fleming, Law of Torts, 9th ed (1998) Sydney, Law Book Co

Counsel:

Mr S Norum, for the Plaintiff

No appearance, for the Defendants

INTERLOCUTORY RULING

26th January, 2012

1. MAKAIL, J: The plaintiff applies by notice of motion filed on 21st July 2008 for default judgment against the defendants for failure to file their notice of intention to defend and defence pursuant to O 12, r 28 of the National Court Rules.

2. The application came before me on 05th September 2008 for hearing and counsel for the plaintiff appeared to prosecute it. No-one appeared for the defendants. I raised an issue with counsel for the plaintiff in relation to whether or not the pleadings in the statement of claim disclosed a reasonable cause of action known in law prior to dealing with the application for default judgment. I did so because it was the third time I had come across a claim of this nature in Mt Hagen and wanted to write a decision on this type of claim for future references. I then issued the following directions:

1. Both parties shall file and serve on each other their written submissions on the question of cause of action by or before Friday 12th September 2008.

2. Decision is reserved to a date for parties to be advised.

3. Pursuant to the directions, the plaintiff through its counsel filed its written submissions on 10th September 2008. The defendants did not. I am satisfied the Court in the exercise of its inherent powers may on its own motion raise the issue of cause of action with parties and may give the parties opportunity to address it before making a decision. The exercise of the Court’s inherent powers is invoked to prevent abuse of its processes by litigants. In another words, it does not have to wait for a party to raise any issues relating to the processes of the Court. It is a power that is exercised and available to the Court and extends to all situations where the justice of the case requires it to be exercised, and is not confined to any closed categories of cases. It is a jurisdiction which the Court has “to ensure that the pursuit of its ordinary procedures by litigants does not lead to injustice…..may be exercised at any stage of the proceedings where it appears to be demanded by the justice of the case.” see Tringali -v- Stewardson Stubbs & Collett Ltd [1965] NSWR 418 at 418, per Else Mitchell, J and also Cox -v- Journeaux (No. 2) (1935) 52 CLR 713 at 720, and Winfield, Present Law of Abuse of Legal Procedure, pp 238-243.

4. Abuse of the process of the Court is an expression used to describe any use of the process or procedures of the Court for an improper purpose or in an...