William Yano Kapi v Kambang Holdings Limited trading as Lutheran Shipping (2011) N4451

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 18 November 2011
• Court: National Court
• Docket Number: WS NO 1288 of 1999
• Citation: (2011) N4451
• Year: 2011
• Judgement Number: N4451

Full Title: WS NO 1288 of 1999; William Yano Kapi v Kambang Holdings Limited trading as Lutheran Shipping (2011) N4451

National Court: Cannings J

Judgment Delivered: 18 November 2011

N4451

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1288 OF 1999

WILLIAM YANO KAPI

Plaintiff

V

KAMBANG HOLDINGS LIMITED

TRADING AS LUTHERAN SHIPPING

Defendant

Madang: Cannings J

2011: 20 May, 17 June, 18 November

TORTS – malicious prosecution – elements – whether a complaint of criminal conduct to police by defendant was made without reasonable and probable cause – whether defendant motivated by malice or any other improper purpose.

Two months after the plaintiff resigned from his job with the defendant the defendant made a written complaint to the police alleging theft of its property by the plaintiff during his period of employment. The plaintiff was subsequently subject to a criminal investigation, arrested, detained in custody for 55 days and tried on a charge of theft. The case was dismissed two years and nine months after the defendant’s complaint had been made. The plaintiff commenced proceedings against the defendant claiming damages for malicious prosecution.

Held:

(1) The elements of the tort of malicious prosecution are that (a) the defendant is responsible for institution of proceedings against the plaintiff; (b) the defendant instituted the proceedings without reasonable and probable cause; (c) the defendant was motivated by malice or some other improper purpose; and (d) the criminal proceedings were resolved in favour of the plaintiff.

(2) Elements (a) and (d) were established but not (b) or (c). The plaintiff failed to prove that the defendant complained to the police without an honest and reasonable belief in the allegations against him (element (b)) and that the defendant acted out of spite or ill-will towards him or was motivated by anything other than carrying the law into effect (element (c)).

(3) Liability was not established and the proceedings were dismissed.

Cases cited

The following cases are cited in the judgment:

Joe Hesingkeoc Nayos v Roy Gawi (2008) N3484

Justin Tkatchenko v National Capital District Commission (2002) N2196

Lucas Roika v Peter Wama and Others (1995) N1373

Mahara Ignote v Abraham Hualupmomi and the State [1996] PNGLR 308

Pius Nui v Mas Tanda (2004) N2765

Titus Wambun v Inspector D Yasmsombi (2009) N3787

TRIAL

This was a trial on liability for malicious prosecution.

Counsel

W Y Kapi, the plaintiff, in person

J Napu, for the defendant

18 November, 2011

1. CANNINGS J: The plaintiff, William Yano Kapi, was employed as a marine engineer with the defendant, Lutheran Shipping, for ten years before resigning. Two months after he resigned, the defendant’s operations manager reported to the police that a large quantity of diesel fuel had gone missing from the ship on which the plaintiff had been working and alleged that the plaintiff was responsible and requested that the police commence an investigation. The plaintiff was subsequently subject to a criminal investigation, arrested, detained in custody for 55 days and tried in the District Court on a charge of stealing under Section 372(7)(b) of the Criminal Code. The case was dismissed two years and nine months after the defendant’s complaint had been made.

2. The plaintiff then commenced proceedings against the defendant claiming damages for the tort of malicious prosecution. He also sued the police officers responsible for his arrest, detention and prosecution and the Commissioner of Police and the State, pleading that his constitutional rights had been breached as he was denied access to a lawyer and family members, denied the right to seek bail and detained unlawfully in poor conditions for a long period. He filed the proceedings in 1999 soon after the criminal proceedings against him were dismissed but the case has taken a long time to be tried. Part of the delay was caused by the plaintiff living a long way from the place of trial. He comes from and now lives in Southern Highlands Province (he says he was the first Southern Highlander to be a marine engineer) and he was employed and lived in Madang when he worked on the ship, MV Totol, from which he was alleged to have stolen the fuel. The complaint was made to the police in Madang and the place of trial is Madang. In 2010 he discontinued the proceedings against the police officers, the Commissioner and the State after he was alerted to the fact that he had not given notice of his intention to make a claim against the State within six months after the occurrence out of which the claim arose in accordance with Section 5 of the Claims By and Against the State Act. A trial has been held to determine whether the defendant is liable in the tort of malicious prosecution. The question of damages will only be addressed if liability is established.

THE ELEMENTS

3. The elements of the tort of malicious prosecution are that:

(a) the defendant is responsible for institution of proceedings against the plaintiff;

(b) the defendant has instituted the proceedings without reasonable and probable cause;

(c) the defendant was motivated by malice or some other improper purpose; and

(d) the criminal proceedings have been resolved in favour of the plaintiff.

(See generally Lucas Roika v Peter Wama and Others (1995) N1373, Mahara Ignote v Abraham Hualupmomi and the State [1996] PNGLR 308, Justin Tkatchenko v National Capital District Commission (2002) N2196; Pius Nui v Mas Tanda (2004) N2765; Joe Hesingkeoc Nayos v Roy Gawi (2008) N3484, Titus Wambun v Inspector D Yasmsombi (2009) N3787; and J G Fleming The Law of Torts 5th edition The Law Book Company Ltd © 1977.)

4. The fact that the defendant made a formal complaint in writing and requested that the police conduct a criminal investigation is sufficient to regard the defendant as being responsible for institution of proceedings against the plaintiff. Element (a) is thus satisfied. The fact that the District Court ‘dismissed’ (that being the term used by the court) the case against the plaintiff means that he was acquitted, so the proceedings were resolved in his favour. Element (d) is satisfied. The issues to be decided are whether the defendant instituted the proceedings without reasonable and probable cause (element (b)) and whether it was motivated by malice or some other improper purpose (element (c)).

DID THE DEFENDANT INSTITUTE THE PROCEEDINGS WITHOUT REASONABLE AND PROBABLE CAUSE?

5. This element requires the plaintiff to prove that there was no good reason for the defendant making the complaint to the police. Specifically the plaintiff must prove either or both of two things: that the defendant did not honestly believe that the plaintiff was guilty of an offence or that, if the defendant did hold such a belief, it was not based on reasonable...