Agnes Millia Okona-Meten v Leslie B Mamu

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 30 January 2019
• Citation: (2019) N7668
• Court: National Court
• Year: 2019
• Judgement Number: N7668

Full : OS (HR) NO 23 OF 2018; Agnes Millia Okona-Meten v Leslie B Mamu, Public Solicitor of Papua New Guinea (2019) N7668

National Court: Cannings J

Judgment Delivered: 30 January 2019

N7668

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NO 23 OF 2018

AGNES MILLIA OKONA-METEN

Plaintiff

V

LESLIE B MAMU, PUBLIC SOLICITOR OF PAPUA NEW GUINEA

Defendant

Cannings J

Madang: 3 January 2019

Waigani: 30 January 2019

HUMAN RIGHTS – Constitution, Section 41 (proscribed acts) – whether a failure to provide accommodation to an officer of a constitutional institution can amount to a breach of human rights – proving that an act is harsh, oppressive or otherwise proscribed by Section 41 – whether plaintiff given unequal, unfair or discriminatory treatment.

The plaintiff is a lawyer in the Office of Public Solicitor, engaged as solicitor-in-charge of a provincial branch under a three-year written contract of employment. She brought proceedings against the Public Solicitor (the defendant) claiming that his refusal to make arrangements for payment of her residential accommodation or for provision of institutional accommodation was harsh, oppressive and in other ways a proscribed act and therefore amounted to a breach of her human rights under Section 41 of the Constitution. Provision of accommodation was not a contractual entitlement. However the plaintiff argued that, as lawyers in other parts of the country holding equivalent positions and doing the same job as her were provided accommodation, she was left out and given unequal and unfair treatment resulting in her and her family enduring financial hardship and stress which the defendant failed to take into account in his decision-making. The plaintiff sought a declaration that the defendant’s refusal to provide or pay for her accommodation was in the circumstances of her case harsh, oppressive etc, and an order that the defendant pay her rent back-dated to the date (five years before trial) that she commenced her engagement as solicitor-in-charge and continuing to the end of her present contracted period of employment.

Held:

(1) Section 41 of the Constitution creates rights, freedoms and protections (and thereby imposes obligations) in the same way as other human rights provisions of Division III.3 of the Constitution. It is open to a person employed under a written contract of employment to establish a cause of action for breach of human rights by proving that acts of their employer are harsh, oppressive or otherwise proscribed and unlawful under Section 41.

(2) Section 41(2) provides that the burden of showing a breach of human rights under Section 41 of the Constitution rests on the person alleging it and may be discharged on the balance of probabilities.

(3) The plaintiff’s case, which was based on the allegation that the defendant provided accommodation to other officers throughout the country holding the equivalent position to hers and that she was missing out and treated differently, unequally or unfairly, was not supported by the facts, as of the 17 equivalent officers in the country, the defendant directly provided accommodation for only three of them.

(4) The plaintiff was unable to show that she was missing out on a privilege conferred on others doing the same job as her, or being treated unequally or unfairly or that the defendant’s refusal to provide accommodation was the result of bad faith or discrimination or some other improper motive.

(5) The plaintiff failed to show that the actions of the defendant were harsh or oppressive or in any other way proscribed by Section 41(1). All relief sought by the plaintiff was refused and the proceedings were entirely dismissed.

Cases cited

The following cases are cited in the judgment:

Application by Tom Ireeuw [1985] PNGLR 430

Bank of Papua New Guinea v Muteng Basa [1992] PNGLR 271

Curran v The State (1994) N1259

David Simon v Michael Koisen (2018) N7075

Department of Works v International Construction (PNG) Ltd (2008) N5896

James Geama v OTML Shares In Success Ltd (2011) N4269

Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598

Joyce Avosa v Rene Motril (2014) N5732

Kamit v Aus-PNG Research & Resources Impex Ltd (2007) N3112

Max Umbu v Steamships Ltd (2004) N2738

Morobe Provincial Government v John Kameku (2012) SC1164

Nowra No 8 Pty Ltd v Kala Swokin [1993] PNGLR 498

Paru v Kotigama & Bmobile-Vodafone (2015) N6089

Petrus & Gawi v Telikom PNG Ltd (2008) N3373

Raz v Matane [1985] PNGLR 329

Re Ricky Yanepa [1988-89] PNGLR 166

Tarere v ANZ Bank [1988] PNGLR 201

APPLICATION

This was an application for enforcement of human rights.

Counsel

S Phannaphen, for the Plaintiff

T M Ilaisa, for the Defendant

30th January, 2019

1. CANNINGS J: The plaintiff, Agnes Millia Okona-Meten, is a lawyer in the Office of Public Solicitor, engaged as solicitor-in-charge of the Madang branch. She has commenced proceedings against the defendant, Leslie B Mamu, the Public Solicitor of Papua New Guinea, claiming that his refusal to make arrangements for payment of her residential accommodation or for provision of institutional accommodation is harsh, oppressive and in other ways a proscribed act and therefore amounts to a breach of her human rights under Section 41(1) of the Constitution.

2. The plaintiff’s home province is Morobe. She had been living in Madang for four years when on 3 January 2008 she was recruited locally and commenced employment as a senior legal officer with the Office of Public Solicitor. On 3 January 2014 she was promoted to her current position of solicitor-in-charge under a three-year written contract of employment. She was re-engaged under another three-year contract on 3 January 2017.

3. Provision of accommodation is not and never has been a contractual entitlement. However the plaintiff argues that, as lawyers at the defendant’s offices in other parts of the country holding the position of solicitor-in-charge and doing the same job as her are provided accommodation, she has been left out and given unequal and unfair treatment. This, she alleges, has resulted in her and her family enduring financial hardship and stress which the defendant has failed to take into account in his decision-making.

RELIEF SOUGHT BY PLAINTIFF

4. The plaintiff seeks a declaration that the defendant’s refusal to provide or pay for her accommodation is in the circumstances of her case harsh, oppressive etc, and an order that the defendant pay her rent back-dated to the date (3 January 2014) that she commenced her engagement as solicitor-in-charge and continuing to the end of her present contracted period of employment (3 January 2020).

5. Formally the amended originating summons filed on 19 November 2018 seeks two substantive remedies:

1. A declaration under Section 57 of the Constitution that the defendant’s refusal to provide accommodation rentals for the plaintiff who is the solicitor-in-charge, Madang branch of the Public Solicitor’s Office, since 2014, whilst providing rented accommodation for [the] rest of his officers holding similar positions nationwide, is contrary to the plaintiff’s protected rights under Section 41 of the Constitution and therefore is:

1) harsh;

2) oppressive;

3) not warranted by the requirements of the particular circumstances;

4) disproportionate to the requirements of the particular circumstances;

5) not warranted by the requirements of the particular case;

6) disproportionate to the requirements of the particular case; and

7) otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.

2. An order therefore that the defendant shall provide rentals for the plaintiff’s accommodation backdated to 3 January 2014 to date, and for the remainder of her contracted term as the solicitor-in-charge of Madang branch of the Public Solicitor’s Office.

THE DEFENDANT’S RESPONSE

6. The defendant refutes the allegations that he is treating the plaintiff unequally or unfairly or that she is missing out on something (accommodation) that is provided to others. The defendant asserts that the plaintiff’s case is based on the premise that all other lawyers holding the same position and doing the same job as her are provided with accommodation, which is simply untrue. The defendant asserts that all relief sought by the plaintiff should be refused and the proceedings should be entirely dismissed.

SECTION 41 AND WHAT IS NOT IN DISPUTE

7. Before examining the issues that are in dispute it is worthwhile spending some time on what is not in dispute. It is an interesting aspect of this case that the parties agree on some things that have not been agreed in other cases. Section 41 of the Constitution is a very special and potentially powerful provision because of its apparently all-embracing terminology. But it is also a controversial and contentious provision. Forty-three years after Independence there are still sharply divergent judicial views as to what it means and how it...