William Patitts for and on behalf of Sasaovia Business Group v The Independent State of Papua New Guinea (2006) N3088

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Cannings J
• Judgment Date: 29 September 2006
• Citation: (2006) N3088
• Judgment Number: N3088
• Year: 2006
• Docket Number: WS No 27 of 1999

Full Title: WS No 27 of 1999; William Patitts for and on behalf of Sasaovia Business Group v The Independent State of Papua New Guinea (2006) N3088

National Court: Cannings J

Judgment Delivered: 29 September 2006

N3088

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 27 OF 1999

WILLIAM PATITTS

FOR AND ON BEHALF OF SASAOVIA BUSINESS GROUP

Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

Buka: Cannings J

2006: 18 August, 29 September

JUDGMENT

DISCIPLINED FORCES – Defence Force – trespass to chattel – commandeering of privately owned truck, without payment, for Defence Force purposes – Bougainville Crisis – trial on liability and damages.

DAMAGES – special damages – damages representing loss of profit-earning chattel – plaintiff awarded special damages, plus interest and costs.

The plaintiff is the personal legal representative of a business group that operated a PMV truck as a business venture. The plaintiff claimed that during the Bougainville Crisis a Defence Force detachment commandeered the truck, on the pretext that the business group was sympathetic to the BRA, and then used it, without payment and without the owner’s consent, for Defence Force purposes. The plaintiff brings a common law action against the State, which, he claims, is vicariously liable for the unlawful actions of the Defence Force.

Held:

(1) The plaintiff’s case is poorly and vaguely pleaded in the statement of claim but nevertheless sufficiently particularised for the cause of action to be properly regarded as an action based on the tort of trespass to a chattel, the business group’s truck.

(2) The elements of that tort were satisfied by the evidence adduced by the plaintiff; it being clear that the truck had been commandeered by the Defence Force, without payment and without the owner’s consent.

(3) The State is liable to pay special damages of K20,000.00 and damages for loss of profit of K60,000.00; being a total of K80,000.00.

(4) The plaintiff was awarded interest of K58,880.00, being a total judgment sum of K138,880.00; plus costs.

Cases cited

The following cases are cited in the judgment:

Albert Baine v The State (1995) N1335

Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24

Dalin More v The State & Others N1736

Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331 Peter Wanis v Fred Sikiot and The State (1995) N1350

STATEMENT OF CLAIM

This was an action in which the plaintiff sought damages for trespass to a chattel.

Counsel:

T R Tamusio, for the plaintiff

T P Potoura, for the defendant

INTRODUCTION

1. CANNINGS J: The plaintiff is the personal legal representative of a business group that operated a PMV/goods truck as a business venture. The plaintiff claimed that during the Bougainville Crisis a Defence Force detachment commandeered the truck, on the pretext that the business group was sympathetic to the BRA, and then used it, without payment and without the owner’s consent, for Defence Force purposes, especially for giving driving lessons to soldiers. The plaintiff brings a common law action against the State, which, he claims, is vicariously liable for the unlawful actions of the Defence Force.

BACKGROUND

Alleged incident

2. The plaintiff says that on 16 April 1996, the Defence Force contingent at Selau, North Bougainville, under the command of Major Bill Nande, commandeered his business group’s Dyna truck and used it for Defence Force purposes, for more than 15 months. The Defence Force never actually returned the truck, he claims. Rather, it was found abandoned on a road on north-west Bougainville on 27 July 1997, in a bad state of disrepair.

Statement of claim

3. On 13 January 1999, T R Tamusio & Associates, Lawyers, of Buka, filed a writ of summons on behalf of the plaintiff. The State was originally the second defendant, with the Secretary of the Department of Defence as the first defendant. However, the State is now the sole defendant.

4. The plaintiff seeks the following remedies:

· special damages of K24,661.29;

· loss of profits (K300.00 per day x 403 days) = K120,900.00;

· being a total claim of K145,561.29.

PLAINTIFF’S EVIDENCE

5. Mr Tamusio, for the plaintiff, tendered two affidavits by consent.

The affidavits

6. Column 1 of the table below gives the exhibit number, column 2 describes the deponent and date of the affidavit and column 3 summarises the contents.

TABLE 1: SUMMARY OF AFFIDAVITS

TENDERED BY PLAINTIFF

Exhibit Description Content

A William States that Major Nande’s troops impounded the truck, which
Patitts, had been used for carrying cocoa bags to Buka wharf and
Plaintiff, return plus passengers, as they claimed that the plaintiff’s
09.09.05 people were supporting BRA elements. Average daily takings
for the truck were K400.00. The truck was retrieved by the
plaintiff on 27 July 1997 at Siara Army Camp. He itemises
the repair costs and annexes invoices from Ela Motors.

B Peter Peris, States that he is one of the group leaders for Sasaovia
Group leader, Business Group. He verifies the statements made by the
plaintiff in exhibit A.
06.09.05

DEFENDANT’S EVIDENCE

7. Mr Potorua, for the defendant, called no evidence.

THE CAUSE OF ACTION

8. The statement of claim does not expressly state the cause of action. However, given that it is a claim for damages for unlawful commandeering of a chattel – the Dyna truck – the cause of action is reasonably to be regarded as a common law action for trespass to a chattel. (See J G Fleming, The Law of Torts, 9th edition, LBC Information Services, © 1998, chapter 4, Intentional Interference with Chattels.) The action has been brought within the statutory framework of the Wrongs (Miscellaneous Provisions) Act (Chapter 297). The common law of trespass to chattels has been adopted as part of the underlying law of Papua New Guinea. It continues to be applicable and appropriate to the circumstances of the country, except to the extent it is inconsistent with or has been modified by a written law. It applies in this case by virtue of Section 20 of the Constitution and Sections 3(1)(b), 3(3), 4(1), 4(3)(b), 4(4), and 5 of the Underlying Law Act 2000.

9. I have checked the statement of claim and I am satisfied that it adequately pleads the facts to support the elements of the tort relied on.

THE LIABILITY ISSUE

10. Though no evidence was presented by the defendant, the State, it flatly denies liability. Mr Potoura submits that the State cannot be liable for two reasons. First, no member of the Defence Force has been joined as a party. Secondly, the evidence in support of the plaintiff’s main contention about the commandeering of the truck is weak, vague and unreliable.

11. In support of the first proposition, Mr Potoura relies on Dalin More v The State & Others N1736 (National Court, Injia J) in which it was held that the State could not be held vicariously liable for rapes committed by unidentified police officers.

12. As for the second proposition, Mr Potoura relies on a plethora of cases that say that it is no good for plaintiffs simply to come to court with a list of itemised claims. Even when default judgment has been entered, plaintiffs must prove their losses with sufficient evidence to establish the elements of their cause of action on the balance of probabilities. Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia AJ.) The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)

13. As for the first proposition, I reject Mr Potoura’s submission as the dicta in Dalin More has been taken out of context. The facts are to be distinguished as in the present case the plaintiff has in his evidence identified the personnel who he claims commandeered the business group’s truck. Dalin More does not stand for the proposition that the particular tortfeasor must be named as a party to the proceedings.

14. As for the second proposition, it is very difficult to sustain as the State has adduced no evidence. The central claims being made by the plaintiff – that his business group’s truck was seized, impounded, then deployed to Defence Force purposes – do not seem to me to be unbelievable, outlandish or beyond what was apparently the normal course of events during the Bougainville Crisis.

15. There is a strong argument to say that all of the Defence Force operations on Bougainville after the end of the state of emergency in the early 1990s were unconstitutional, as there was no proper call-out in aid of the civil power and it is not the role of the Defence Force to engage in civil war against this country’s citizens. Besides that, the ill-discipline of the Defence Force has been well documented in other quarters; indeed the widespread breach of human rights perpetrated by all sides of the conflict has been recognised and reflected in the Bougainville Peace Agreement, the Bougainville Constitution and the amendments to the National Constitution made as part of the resolution of the crisis.

16. What the plaintiff says happened to his business group’s Dyna truck sounds an entirely plausible story. He has deposed to what happened and how the truck was found abandoned and what has been done to try and make...