Joyce Avosa v Rene Motril

• Jurisdiction: Papua New Guinea
• Citation: (2014) N5732
• Date: 17 September 2014
• Court: National Court
• Year: 2014

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

National Court: Cannings J

Judgment Delivered: 17 September 2014

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 s57 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, s41(1));

• liberty of the person (Constitution, s42(1));

• protection from unjust deprivation of property (Constitution, s53(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.

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...