Stephen Ian Asivo v Cocoa Board of PNG

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 23 March 2016
• Citation: (2016) N6230
• Court: National Court
• Year: 2016
• Judgement Number: N6230

Full : HRA No 42 of 2015; Stephen Ian Asivo for himself and on behalf of 23 other aggrieved Employees of Madang Cocoa Growers Export Co Limited v Cocoa Board of Papua New Guinea and the Independent State of Papua New Guinea (2016) N6230

National Court: Cannings J

Judgment Delivered: 23 March 2016

N6230

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 42 OF 2015

STEPHEN IAN ASIVO FOR HIMSELF AND ON BEHALF OF

23 OTHER AGGRIEVED EMPLOYEES OF

MADANG COCOA GROWERS EXPORT CO LIMITED

Plaintiff

V

COCOA BOARD OF PAPUA NEW GUINEA

First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Madang: Cannings J

2015: 21 July, 10 August

2016: 23 March

HUMAN RIGHTS – application for enforcement – Constitution, Section 48 (freedom of employment); Section 41 (proscribed acts) – Universal Declaration of Human Rights, Article 23 (right to work).

PRACTICE AND PROCEDURE – whether proceedings were an abuse of process – National Court Rules, Order 12, Rule 40 (frivolity etc).

The plaintiff is the executive director of a company that had its registration as a cocoa exporter unlawfully cancelled by the Cocoa Board (the first defendant). The plaintiff, on behalf of himself and 23 other employees of the company, applied for enforcement of human rights against the Board. He sought damages for breaches by the Board of three human rights: freedom of employment under Section 48 of the Constitution; the right to work under Article 23 of the Universal Declaration of Human Rights; protection against harsh, oppressive or other unlawful acts under Section 41 of the Constitution. The Board and the State (the second defendant) failed to file a defence, failed to attend the trial of the application, which was set down to determine the issue of liability, and failed to adduce any evidence in response to the plaintiff’s evidence. The plaintiff submitted: (1) as a preliminary point, that default judgment should be entered against the defendants due to their failure to defend the case; and in the event that default judgment was refused (2) that the Court should uphold the application for enforcement of human rights and find that the defendants have breached he human rights of himself and those 23 others he represents, and are liable to pay damages, to be assessed at a separate trial.

Held:

(1) The application for default judgment was refused as it was not properly before the Court. Such an application can only be made in proceedings commenced by writ of summons and by notice of motion supported by affidavit, in accordance with Division 12.3 of the National Court Rules.

(2) The proceedings were an abuse of process as the plaintiff had (a) not complied with the notice requirements of Section 5 of the Claims By and Against the State Act; (b) not complied with the requirements for commencement of representative proceedings; (c) engaged in a multiplicity of proceedings, in a piecemeal manner, in different guises, without a satisfactory explanation and (d) inordinately delayed commencement of the proceedings, without a satisfactory explanation.

(3) No breach of human rights was proven in that (a) Section 48(1) of the Constitution confers a right to freedom of choice of employment (not a right to employment), which was not interfered with by the defendants; (b) the Universal Declaration of Human Rights does not create human rights that are capable of direct enforcement under the Constitution; (c) the action of the Board was not so harsh or oppressive as to be unlawful under Section 41 of the Constitution.

(4) The application for enforcement of human rights was accordingly refused, and the proceedings were entirely dismissed.

Cases cited

The following cases are cited in the judgment:

Allan Pinggah v Margaret Elias (2007) SC888

Anderson Agiru v Electoral Commission and The State (2002) SC687

Application by Anderson Agiru (2003) SC704

Application by Karingu [1988-89] PNGLR 276

Eddie Tarsie v Ramu Nico Management (MCC) Ltd (2010) N4141

Haiveta v Wingti (No 3) [1994] PNGLR 197

Joe Kape Meta v Constable Paul Kumono (2012) N4598

John Ipidari v Hon Francis Potape (2015) N6041

Kelly Koi v Constable Mathew Anseni (2014) N5580

Kiee Toap v The State (2004) N2766

Madang Cocoa Growers Export Co Ltd v National Development Bank Ltd (2011) N4291

Madang Cocoa Growers Export Co Ltd v National Development Bank Ltd (2012) N4682

Madang Cocoa Growers Export Co Ltd v Noilai Gunar (2012) N4703

Madang Cocoa Growers Export Co Ltd v Noilai Gunar (2014) N5500

Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2012) N4881

Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2012) N4956

Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2013) N5324

Madang Cocoa Growers Export Co Ltd v Tautea & Cocoa Board (2012) N4584

Madang Cocoa Growers Export Co Ltd v Tautea & Cocoa Board (2013) N5426

Madang Provincial Government v Madang Cocoa Growers Export Company Ltd (2014) SC1375

Morobe Provincial Government v John Kameku (2012) SC1164

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

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

Paul Tohian & The State v Tau Liu (1998) SC566

Premdas v The State [1979] PNGLR 329, Application by Karingu [1988-89] PNGLR 276

Pruaitch v Manek (2010) N4149

Re Alleged Brutal Treatment of Suspects (2014) N5512

Reference by Dr Allan Marat, In the matter of Prime Minister and NEC Act Amendments (2012) SC1187

SCR No 1 of 1980, Re Section 22A(b) of the Police Offences Act [1981] PNGLR 28

SCR No 1 of 1981, Re Inter-Group Fighting Act [1981] PNGLR 151

SCR No 4 of 2001, Re Validity of NCDC Amendment Acts (2001) SC678

Simon Mali v The State (2002) SC690

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

Tigam Malewo v Keith Faulkner (2009) SC960

Wilfred Mamkuni & 80 Others v Ly Cuong-Long & Jant Ltd (2011) N4674

APPLICATION

This was the trial of an application for enforcement of human rights.

Counsel:

S I Asivo, the plaintiff in person

23 March, 2016

1. CANNINGS J: The plaintiff, Stephen Ian Asivo, applies on behalf of himself and 23 other present and former employees of Madang Cocoa Growers Export Company Limited (“Madang Cocoa”) for enforcement of human rights against the Cocoa Board of Papua New Guinea (first defendant) and the State (second defendant).

2. The plaintiff argues that the Board unlawfully cancelled Madang Cocoa’s licence to export cocoa, and in doing so breached the human rights of himself and the other company employees he represents. He seeks damages for breaches by the Board of three human rights:

· freedom of employment under Section 48 of the Constitution;

· the right to work under Article 23 of the Universal Declaration of Human Rights;

· protection against harsh, oppressive or other unlawful acts under Section 41 of the Constitution.

3. Both the Board and the State failed to file a notice of intention to defend or a defence, failed to attend the trial of the application, which was set down to determine the issue of liability, and failed to adduce any evidence in response to the plaintiff’s evidence. The trial has gone ahead without their involvement.

4. The plaintiff has submitted:

(1) as a preliminary point, that default judgment should be entered against the defendants due to their failure to defend the case; and in the event that default judgment is refused

(2) that the Court should uphold the application for enforcement of human rights and find that the defendants have breached he human rights of himself and those 23 others he represents and are liable to pay damages, to be assessed at a separate trial.

(1) SHOULD DEFAULT JUDGMENT BE ENTERED AGAINST THE DEFENDANTS?

5. No. The application for default judgment is not properly before the Court. It is just a preliminary point made in the plaintiff’s submission. Such an application can only properly be made in proceedings commenced by writ of summons and by notice of motion supported by affidavit, in accordance with Division 12.3 of the National Court Rules.

(2) SHOULD THE APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS BE UPHELD?

6. No. I refuse the application, even though it has been undefended, for two reasons: abuse of process and lack of merit.

ABUSE OF PROCESS

7. To appreciate why these proceedings are an abuse of process it is necessary to set out the background. On 27 July 2005 Madang Cocoa was registered by the Board as a permitted exporter of cocoa under the Cocoa Act, allowing it to export until 30 September 2006, and it began the business of exporting cocoa. Less than four months later, on 25 November 2005, its registration was cancelled, and it has never been renewed. Madang Cocoa’s export business ceased. Many of its employees (the people represented by the plaintiff) lost their jobs.

8. In early 2006 it applied to the National Court for judicial review of cancellation of its registration, in proceedings which for...