Senior Constable Steven Waula v Emmanuel Hela in his capacity as Metropolitan Superintendent, National Capital District and Thomas Taian in his capacity as Legal Officer, National Capital District and Southern Region and Sam Inguba, Commissioner of Police and the Independent State of Papua New Guinea (2020) N8282

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 14 April 2020
• Court: National Court
• Citation: (2020) N8282
• Docket Number: WS No 80 of 2004
• Year: 2020
• Judgement Number: N8282

Full Title: WS No 80 of 2004; Senior Constable Steven Waula v Emmanuel Hela in his capacity as Metropolitan Superintendent, National Capital District and Thomas Taian in his capacity as Legal Officer, National Capital District and Southern Region and Sam Inguba, Commissioner of Police and the Independent State of Papua New Guinea (2020) N8282

National Court: David, J

Judgment Delivered: 14 April 2020

N8282

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS No.80 of 2004

BETWEEN:

SENIOR CONSTABLE STEVEN WAULA

Plaintiff

AND:

EMMANUEL HELA in his capacity as Metropolitan Superintendent,

National Capital District

First Defendant

AND:

THOMAS TAIAN in his capacity as Legal Officer, National Capital District

and Southern Region

Second Defendant

AND:

SAM INGUBA, COMMISSIONER OF POLICE

Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Waigani: David, J

2020: 14 April

DAMAGES – assessment of damages after entry of default judgment – liability in tort of negligence revisited – police owe no duty of care to the public at large - cause of action does not make sense or would make an assessment a futile exercise.

Cases cited:

Banduwara Waranumbo v Hyper Construction Limited (2012) N4882

Catholic Diocese Wabag Board of Trustees v Enga Provincial Government (2011) N4562

Fly River Provincial Government v Pioneer Health Services (2003) SC705

Kiee Toap v The State (2004) N2766

Macoes (PNG) Ltd v Allan Kundi (PPC) (2012) N4621

NCDC v Yama Security Services Pty Ltd (2003) SC707

Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694

Reid v Murray Hallam and Allcad Pty Ltd [1995] N1337

Rupundi Maku v Steven Maliwolo (2011) SC1171

Steven Naki v AGC (Pacific) Ltd (2006) N5015

Teddy Suan v Peter Dumba (2013) N5428

Tigam Malewo & Ors v Keith Faulkner, Ok Tedi Mining Ltd & 3 Ors (2009) SC960

Vailala Purari Investment Ltd v Papua New Guinea Forest Authority (2004) N2594

William Mel v Coleman Pakalia (2005) SC790

Overseas cases cited:

Livingstone v Rawyards Coal Co. (1880) 5 App Cas 25

Bonham - Carter v Hyde Park Hotel (1948) 64 TLR 177

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

Counsel:

Steven Waula, self-represented Plaintiff

Emmanuel Tagu, for the Defendants

JUDGMENT

14 April 2020

1. DAVID, J: INTRODUCTION; This is a decision on a contested trial for assessment of damages.

PLEADINGS AND BRIEF BACKGROUND

1. The plaintiff, a Senior Sergeant in the Royal Papua New Guinea Constabulary (Police Force), commenced these proceedings on 10 February 2004 by way of a writ of summons endorsed with a statement of claim. A notice of intention to make a claim against the State pursuant to Section 5 of the Claims By and Against the State Act 1996 was given on 11 December 2003. He claims that he suffered loss and damage when allegations were made against him that he was involved in a conspiracy to defraud Police Association Credit Fund Limited which he was the Chairman of and which resulted in a police complaint being laid against him and registered in the Occurrence Book on or about 18 June 2003 and subsequently suspended from work on 3 July 2003 with partial pay. The plaintiff resumed work on or after 30 October 2003.

2. The plaintiff was charged for one count of abuse of office under Section 92(2) of the Criminal Code and a count of misappropriation of the sum of K1,550.00 under Section 383A of the Criminal Code: annexures A and B, Exhibit B and annexure A, Exhibit C. The count for abuse of office was dismissed by the Waigani District (Committal) Court on 30 October 2003: annexure D, Exhibit B and annexure B, Exhibit C. On 25 February 2005, on the presentation of an ex officio indictment by the Public Prosecutor after the charge for misappropriation was dismissed by the Waigani District (Committal) Court, the plaintiff was convicted by the National Court of that charge: see Exhibit B.

3. The plaintiff alleges that the defendants were guilty of negligence as:

1. the first defendant, a commissioned officer authorised by the third defendant to suspend members of the Police Force, owed a duty of care which he breached when disciplinary procedures and processes under the Police Force Act 1998 were not observed when disciplinary action was taken against him pending investigation of the complaint;

2. the first defendant denied him the protection of the law under Section 37 of the Constitution by failing to give him the opportunity to state his defence;

3. the second defendant failed in his duty to provide sound advice to the first defendant with regard to observation of disciplinary procedures and processes under the Police Force Act 1998; and

4. The third and fourth defendants failed in their duty to have effective oversight and supervision of their servants or agents in the course of performing their duties.

5. The plaintiff also alleges that the consequences of the actions or omissions of the defendants were; he suffered physically as a result of being suspended from work without pay; his children were forced to be absent from school for nine weeks; he lost his position as Chairman of the Police Association Credit Fund Limited; he lost respect, integrity and reputation as a Senior Constable of the Police Force and in the Public Service; and he lost respect, integrity and reputation as Senior Vice President of the Police Association of Papua New Guinea.

6. The main relief the plaintiff claims against the defendants are general and exemplary damages.

7. On 1 March 2004, the defendants, through the Solicitor-General, filed their notice of intention to defend the action. No defence was filed thereafter.

8. On 21 May 2004, default Judgment on liability was entered against the defendants with damages to be assessed.

9. Following negotiations between the parties, a Deed of Release was entered into between the plaintiff through his lawyer, Harvey Bill Nii and the Solicitor-General for and on behalf of the fourth defendant dated 29 June 2005 for the plaintiff to be paid the sum of K350,000.00 in full and final settlement of his claim (the Deed of Release) and for the plaintiff to discontinue the proceedings: annexure D to Exhibit A.

10. On 24 March 2006, a decision was made by the then Solicitor-General not to give effect to the terms of the Deed of Release.

EVIDENCE

11. Trial was conducted by affidavits. I admitted the affidavits into evidence despite objections from the opposing parties which I overruled.

12. The plaintiff relied on the following affidavits:

1. Affidavit of Raymond Obora sworn and filed on 22 July 2014 (Exhibit A);

2. Affidavit of Steven Waula sworn on 11 September 2014 and filed on 18 September 2014 (Exhibit B);

3. Affidavit of Steven Waula sworn and filed on 13 January 2015 (Exhibit C);

4. Affidavit of Steven Waula sworn and filed on 29 February 2016 (Exhibit D);

5. Affidavit of Steven Waula sworn and filed on 3 May 2016 (Exhibit E).

13. The defendant relied on the affidavit of Johannes Yapi sworn on 20 March 2017 and filed on 21 March 2017 (Exhibit 1).

LEGAL ISSUES

14. The main legal issues that arise in the present case for my consideration and decision are:

1. Whether, despite the entry of default judgment, the issue of liability should be revisited?

2. If not, what are the plaintiff’s damages?

WHETHER, DESPITE THE ENTRY OF DEFAULT JUDGMENT, THE ISSUE OF LIABILITY SHOULD BE REVISITED?

Plaintiff’s submissions

15. The plaintiff representing himself contended that as the issue of liability was determined by the entry of default judgment, the Court was only required to assess the damages sought or in the alternative, pay to him the sum of K350,000.00 pursuant to the Deed of Release.

Defendants’ submissions

16. Mr Tagu for the defendants argued that it is settled law in this jurisdiction for the Court to revisit the issue of liability and dismiss the proceedings on the basis that the pleadings in the plaintiff’s statement of claim do not disclose a cause of action in law. Counsel referred the Court to the Supreme Court decisions in William Mel v Coleman Pakalia and Others (2005) SC790 and Rupundi Maku v Steven Maliwolo (2011) SC1171 to support the proposition.

17. In addition, it was argued that if the cause of action was founded in negligence, which the defendants did not admit, elements of negligence cannot be satisfied in the absence of any duty of care owed to the plaintiff. Counsel relied on Rupundi Maku v Steven Maliwolo (2011) SC1171 which referred to and followed Hill v Chief Constable of West Yorkshire (1987) UKHL 12, (1989) AC 53 where it was held that; at common law, the police owe no duty of care to individual members of the public to identify and apprehend a criminal; and as a matter of public policy, police were immune from actions for negligence in respect of their activities in the investigation and suppression of crime. The Supreme Court observed that the common law is consistent with Section 197 of the Constitution under which the police have a responsibility for maintaining law...