Joseph Kupo v The Independent State of Papua New Guinea (2020) N8171

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 30 January 2020
• Court: National Court
• Citation: (2020) N8171
• Docket Number: HRA No 8 of 2019
• Year: 2020
• Judgement Number: N8171

Full Title: HRA No 8 of 2019; Joseph Kupo v The Independent State of Papua New Guinea (2020) N8171

National Court: Cannings J

Judgment Delivered: 30 January 2020

N8171

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 8 OF 2019

JOSEPH KUPO

Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

Waigani: Cannings J

2019: 1st, 29th November

2020: 30th January

HUMAN RIGHTS – application to removal from office of statutory office-holder – Constitution, Sections 36 (freedom from inhuman treatment); 37 (protection of the law);41 (proscribed acts); 48 (freedom of employment); 59 (principles of natural justice).

PRACTICE AND PROCEDURE – defences against civil claims –res judicata – whether a prior deed of release protects the defendant – whether statement of claim offends against the rule that evidence not be pleaded – whether proceedings time-barred.

STATE SERVICES – Police Force – whether removal from office of Commissioner of Police effects removal from Police Force – status of decision of National Executive Council directing redeployment of person removed from office.

The plaintiff was appointed Commissioner of Police on 1 November 2001. He was removed from office on 12 September 2002. In the decision effecting his removal the National Executive Council directed that the plaintiff be redeployed in the Public Service within three months. On 12 December 2002 the plaintiff was removed from the payroll. He was not redeployed in the Public Service or the Police Force or in any other public office. On 13 December 2002 he commenced proceedings against the State, claiming damages for (a) unlawful removal from office (breach of contract) and (b) unlawful denial of livelihood for the period extending to the retirement age of 60 years. On 3 March 2003 he and the Solicitor-General (on behalf of the State) executed a deed of release under which the State agreed to pay him K2,676,687.71 as a compromise of claim (a). The State failed to pay all of that amount in a reasonable time, so the plaintiff in 2006 amended the statement of claim, to seek the balance owing. He obtained a default judgment on liability. A trial on assessment of damages resulted in a judgment in his favour on 5 January 2011 in the sum of K1,890,176.39, plus interest. Those amounts totalling K3,293,261.50 were paid to him by 2013. In early 2019 the plaintiff commenced fresh proceedings, as an application for enforcement of human rights, in respect of the State’s continuing failure to redeploy him in the Public Service or the Police Force or in some other public office. The plaintiff pleaded that the State had breached the direction of the National Executive Council that he be redeployed and breached his right to continued employment arising under the Police Act 1998 and the Constitution, and therefore breached his human rights under the Constitution, ss 36(freedom from inhuman treatment),37 (protection of the law), 41 (proscribed acts), 48(freedom of employment) and 59(principles of natural justice) and were liable in damages. The State denied liability, pleading that the proceedings ought to be entirely dismissed as the plaintiff’s claim was (1) contrary to the National Court Rules, Order 8, Rule 8; (2) prohibited by the terms of the 3 March 2003 deed of release; (3)res judicata (as his claims had been resolved by the 5 January 2011 order and he had been fully paid by 2013); (4) time-barred under the Frauds and Limitations Act 1988; and (5) without merit. A trial was conducted on the issue of liability.

Held:

(1) The statement of claim pleaded some evidence and was in breach of Order 8, Rule 8 of the National Court Rules in some respects, but the want of compliance with the Rules was minor. The Order 8, Rule 8 defence failed.

(2) The deed of release was a compromise of only one cause of action in the proceedings in respect of which the deed was executed. The cause of action prosecuted in the present proceedings is separate and distinct from the cause of action compromised by the deed of release. The deed of release defence failed.

(3) The 5 January 2011 order of the National Court was a final determination of only one cause of action in the proceedings in which that order was made. The cause of action prosecuted in the present proceedings is separate and distinct from the cause of action determined by the 5 January 2011 order. The res judicata defence failed.

(4) As the plaintiff pleaded his case as a breach of human rights, there was no specific limitation period applicable under the Frauds and Limitations Act. However he was obliged to commence proceedings within a reasonable time, say three years, after the date on which the cause of action accrued. That date could reasonably be regarded as no later than 31 October 2014. Three years after that is 31 October 2017. The plaintiff did not commence these proceedings until 8 January 2019. He did not commence the proceedings within a reasonable time; and in all the circumstances, there was an abuse of process due to the multiplicity of proceedings. Though the pleaded limitations period defence failed, the proceedings were nonetheless dismissed as an abuse of process.

(5) In any event the plaintiff’s case was without merit as, although the Police Act is silent on the issue, it must be reasonably inferred that the effect of removal of a person from the office of Commissioner of Police is dismissal from the Police Force. The direction of the National Executive Council that the plaintiff be redeployed was not given under any law and must be regarded as a policy or administrative instruction, not capable of creating legally enforceable rights or obligations.

(6) The plaintiff failed to establish a cause of action for breach of human rights and the proceedings were entirely dismissed. The parties were ordered to pay their own costs.

Cases cited

The following cases are cited in the judgment:

Bluewater International Ltd v Mumu (2019) SC1798

Keka v Yafaet (2018) SC1673

Mataio v August (2014) SC1361

Napanapa Landowners Association v Gaudi Logae (2016) SC1532

National Executive Council & Luke Lucas v Public Employees Association [1993] PNGLR 264

Ok Tedi Mining Ltd v Niugini Insurance Corporation [1988-89] PNGLR 425

Telikom (PNG) Ltd v ICCC & Digicel (PNG) Ltd (2008) SC906

Titi Christian v Rabbie Namaliu (1996) SC1583

APPLICATION

This was a trial on liability to determine the plaintiff’s claim for damages for breach of human rights.

J Kupo, the Plaintiff, in person

C Kuson, for the Defendant

30th January, 2020

1. CANNINGS J: The plaintiff, Joseph Kupo, was appointed Commissioner of Police on 1 November 2001. He was removed from office on 12 September 2002. On 21 January 2019 he commenced the present proceedings against the State, in which he claims damages of more than K12 million for breaches of human rights arising from the failure of the State to redeploy him in the Public Service or in the Police Force. He claims that the State was obliged to redeploy him and pay him remuneration commensurate with a Commissioner of Police salary package until he reached the retirement age of 60 years, on 31 October 2014. That, in short, is the plaintiff’s case.

2. Quite a bit has happened from 2002 to 2019. In the decision of 12 September 2002 that led to the plaintiff’s removal from office, the National Executive Council directed the Department of Personnel Management to, within three months,redeploy him in the Public Service “or other areas where his services may be required”. On 12 December 2002 the plaintiff was removed from the payroll. He has never at any time up to the time of this trial in late 2019 been redeployed in the Public Service or the Police Force or in any other public office.

3. On 13 December 2002 he commenced proceedings against the State, WS No 1634 of 2002, claiming damages, as pleaded in the statement of claim, for (a) unlawful removal from office (breach of contract) and (b) unlawful denial of livelihood for the period extending to the retirement age under the Police Act 1998, of 60 years.

4. On 3 March 2003 he and the Solicitor-General (on behalf of the State) executed a deed of release under which the State agreed to pay him K2,676,687.71 as a compromise of claim (a).

5. The State failed to pay all that amount in a reasonable time, so the plaintiff in 2006 amended the statement of claim, to seek the balance owing. He obtained default judgment on liability. A trial on assessment of damages was conducted by Justice Hartshorn and on 5 January 2011 his Honour ordered judgment in the sum of K1,890,176.39, plus interest(Joseph Kupo v The State (2011) N4285).

6. Those amounts totalling K3,293,261.50 were paid to the plaintiff by 2013. On or about 31 October 2014 the plaintiff attained the age of 60 years.

7. On 21 January 2019 the plaintiff commenced the present proceedings, as an application for enforcement of human rights. Upon being directed by the Court to file a statement of claim, he pleaded that the State had breached the direction of the National Executive Council that he be redeployed and breached his right of continued tenure as a member of the Police Force arising under...