Willie Gawi and Olga Kari v The Independent State of Papua New Guinea (2012) N4814

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Cannings J
• Judgment Date: 08 October 2012
• Citation: (2012) N4814
• Judgment Number: N4814
• Year: 2012
• Docket Number: MP (HR) NOS 333 & 334 of 1998

Full Title: MP (HR) NOS 333 & 334 of 1998; Willie Gawi and Olga Kari v The Independent State of Papua New Guinea (2012) N4814

National Court: Cannings J

Judgment Delivered: 8 October 2012

N4814

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP (HR) NOS 333 & 334 0F 1998

WILLIE GAWI

First Plaintiff

OLGA KARI

Second Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

Waigani: Cannings J

2012: 21, 28 June, 8 October

HUMAN RIGHTS – enforcement – trial on liability and damages

PRACTICE AND PROCEDURE – failure to give notice of intention to make a claim against the State – whether National Court can, after originating process filed, allow a further period to give notice to the State: Claims By and Against the State Act, Section 5

The plaintiffs claimed that their houses (and in the case of the second plaintiff, her store) and contents were burned and destroyed by members of the Police Force. They commenced proceedings under Section 57 of the Constitution seeking enforcement of human rights. A trial was set down to determine whether the State, in its capacity as employer of the police, was liable for the alleged breach of human rights and, if it was, to assess damages. The plaintiffs adduced affidavit evidence of the incident. The State adduced no evidence but defended the matter by claiming that the entire proceedings should be dismissed as the plaintiffs had failed to give notice of intention to make a claim against the State in accordance with Section 5 of the Claims By and Against the State Act. In the alternative the State claimed that the court should decline to enter judgment against the State as the plaintiff’s evidence was unreliable and uncorroborated and even if it were accepted the inference must be drawn that the police officers concerned acted so far outside their lawful duties as to prevent the State being vicariously liable for their wrongful actions. The State further argued that in the event that liability was established no damages should be awarded as there was no corroboration of the plaintiffs’ evidence.

Held:

(1) The court can waive the requirement for a plaintiff to give notice under Section 5 of the Claims By and Against the State Act prior to commencement of proceedings, by allowing, on sufficient cause being shown, a further period to give such notice, which may be a date after the date of commencement of the proceedings.

(2) If the State fails to apply to have proceedings dismissed despite obvious grounds for doing so and allows a matter to be progressed to trial, it is by its conduct and as a matter of equity and justice estopped from relying on alleged breaches of the Claims By and Against the State Act or other procedural irregularities as a defence at trial.

(3) Here, 14 years after the proceedings had commenced, the court allowed a further period, setting a specific date by which the plaintiffs could give notice to the State. The plaintiffs failed to file an affidavit of service and failed to prove that the court’s directions were complied with. Despite those procedural irregularities the State failed to apply to have the proceedings dismissed and allowed the matter to progress to trial. An equitable estoppel operated against it, and the court proceeded to determine the question of liability on the merits.

(4) The plaintiffs adduced credible evidence that the police raided the settlement in which they lived and burned down houses and a store and terrorised the residents.

(5) A number of the plaintiffs’ human rights were breached, viz

· right to the full protection of the law (Constitution, Section 37(1));

· protection against harsh or oppressive acts (Constitution, Section 41(1));

· freedom from arbitrary search and entry (Constitution, Section 44); and

· protection against unjust deprivation of property (Constitution, Section 53(1)).

(6) The plaintiffs established causes of action for breach of human rights. The State was vicariously liable for the breaches as the members of the Police Force were acting within the scope of their police employment and the State failed to discharge the onus of showing that what they did was totally removed from the domain of their authorised actions.

(7) Damages were assessed at K12,000.00 (first plaintiff) and K16,000.00 (second plaintiff); and interest was awarded at a rate of 8 per cent per annum from the date on which the cause of action accrued to the date of judgment, a period of 14.77 years: K14,179.20 (first plaintiff) and K18,905.60 (second plaintiff).

Cases cited

The following cases are cited in the judgment:

Albert Baine v The State (1995) N1335

Eriare Lanyat v The State [1997] PNGLR 253

John Kami v Department of Works (2010) N4144

Jonathan Mangope Paraia v The State (1995) N1343

Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274

Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331

Mark Tunugu Kale v Kutubu Ipata & Ors (2012) N4806

Olympic Stationery v The State (2001) N2194

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

Peter Wanis v Fred Sikiot and The State (1995) N1350

The State v David Wari Kofowei and Others [1987] PNGLR 5

Wama Kints v The State (2001) N2113

William Wrondimi v Alphonse Vokene (2007) N3148

Yooken Paklin v The State (2001) N2212

APPLICATION

This was a trial on liability to determine the plaintiffs’ application for enforcement of human rights and an assessment of damages.

Counsel

E Wurr, for the plaintiffs

R K Gelu, for the defendants

8th October, 2012

1. CANNINGS J: Willie Gawi and Olga Kari are applying for enforcement under Section 57 of the Constitution of their human rights, which they claim were breached by members of the Police Force who raided the community in which they lived at 8-Mile, National Capital District on 22 December 1997. They claim that their houses (and in the case of the second plaintiff, her store) and contents were burned and destroyed by police. They seek damages under Section 58 of the Constitution against the State, which is alleged to be vicariously liable as employer of the police for the human rights breaches that occurred.

2. The plaintiffs adduced affidavit evidence of the incident, which they believe was fuelled by an allegation that persons living amongst them were responsible for the rape of a policeman’s wife.

3. The State adduced no evidence but defended the matter by claiming that the entire proceedings should be dismissed as the plaintiffs had failed to give notice of intention to make a claim against the State in accordance with Section 5 of the Claims By and Against the State Act. In the alternative the State claimed that the court should decline to enter judgment against the State as the plaintiffs’ evidence was unreliable and uncorroborated and even if it were accepted the inference must be drawn that the police officers concerned acted so far outside their lawful duties as to prevent the State being vicariously liable for their wrongful actions. The State further argued that in the event that liability was established no damages should be awarded as there was no corroboration of the plaintiffs’ evidence.

4. There are five issues:

(1) Should the proceedings be dismissed due to failure to comply with the Claims By and Against the State Act?

(2) Have the plaintiffs proven the factual allegations?

(3) Have the plaintiffs established causes of action for breach of human rights?

(4) Is the State liable?

(5) What damages, if any, are the plaintiffs entitled to?

1 SHOULD THE PROCEEDINGS BE DISMISSED DUE TO FAILURE TO COMPLY WITH THE CLAIMS BY AND AGAINST THE STATE ACT?

5. To appreciate the State’s position it is necessary to set out the procedural history of the case. The proceedings were commenced on 1 July 1998 by each plaintiff filing in the Waigani Registry of the National Court a form entitled ‘application for enforcement of human rights and/or freedoms pursuant to s 57 Constitution’. The matters remained dormant until 2011 when soon after commencement of the Human Rights Rules 2010, on 1 July 2011, publicity was given to old matters such as these and matters were listed for summary determination. The plaintiffs appeared in person and the court made the decision not to dismiss the proceedings and the Public Solicitor undertook to represent them. Directions hearings were held on 8 August and 20 December 2011. It soon became apparent that the proceedings had been commenced in 1998 without prior notice to the State under Section 5 of the Claims By and Against the State Act. On 20 December 2011, I allowed, upon motion by the plaintiffs, a further period to 23 January 2012 for the plaintiffs to give notice and to file an affidavit of service. A further directions hearing took place on 24 January 2012 (when it was ordered that the two proceedings be tried jointly) and the matters were set down for trial on 21 February 2012. The matters did not proceed on that date and were adjourned to 26 April and then to 15 June 2012...