N2492

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT MT HAGEN]

WS 678 OF 1997

BETWEEN:

MALI PYALI
suing for and on behalf of himself and other members of the Maken Tribe
First Plaintiff

AND:

JIM KAIYA
suing for and on behalf of himself and other members of the Miki Tribe
Second Plaintiff

AND:

CHIEF INSPECTOR LEO KABILO
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Mt Hagen: Davani .J
2003: 16, 17 December 2003

RULING
(Applications to dismiss and others)

Counsel:
J. Kunai for Defendants/Applicants
J. Kolkia for the Plaintiffs/Respondents

Practice and Procedure – Vicarious liability of State for torts allegedly committed by policemen – policemen not named on writ – liability to be proven by evidence – Statement of claim properly pleaded.

Practice and Procedure – Vicarious liability – Denial by State that raid ever occurred – onus on Plaintiffs to prove vicarious liability – Statement of claim properly pleaded.
s. 1(4) of Wrongs Miscellaneous Proceedings Act Chapter 297

Practice and Procedure – Notice of Intention to Defend – filing of Notice of Intention to Defend by Defendant is proof of personal service of originating process
O. 6 R. 2 (3) of National Court Rules

Cases cited:
General Accident Fire and Life Assurance v Illimo Farm (1990) PNGLR 331
Umba Waink and Martin Umba Sambai v Motor Vehicles Insurance (PNG) Trust & The State 1991 (Unreported) N1630.
Eriare Lanyat and others v George Wagulo and the State [1997] PNGLR 253
Panga Coffee Factory Pty Ltd, Highlands Coffee Export Pty Limited and Kum Farming and Trading Pty Limited, Coffee Industry Corporation Limited SCA 22 of 2001 by Los, Injia and Davani, JJ
Puk Num v the Independent State of Papua New Guinea WS 44 of 1996 dated 12.9.03

Other texts cited:
• Crown Proceedings Act of 1947 (United Kingdom) 
• Crown Proceedings Act of 1950 (New Zealand)
• Crown Proceedings Act 1958 of Victoria
• Liability of the Crown in Australia, New Zealand and the United Kingdom by Peter W. Hogg (1971)
• Wrongs Miscellaneous Proceedings Act Chapter 297 (‘Wrongs Act’) 

17 December 2003

DAVANI .J:	The Defendants/Applicants (‘Applicant’) move by Notice of Motion filed on 15.9.03 seeking orders to dismiss the proceedings. They rely on several grounds in moving this application, which I set out below. The Applicants do not rely on any affidavit material, only making submissions on the law which is set out on written submissions dated 16.12.03 and filed in court.

The Applicants Notice of Motion reads;

"1.	The proceedings be dismissed for want of prosecution pursuant to Order 4 Rule 3(i) and Order 10 Rule 4 of the National Court Rules;
2.	In the alternative, the within proceedings be dismissed pursuant to Order 12 Rule 40 of the National Court Rules;
3.	In the alternative the Writ of Summons and Statement of Claim be struck out pursuant to Order 8 Rule 27 of the National Court Rules;
4.	Further or in the alternative, the claims for other members of the Maken tribe and Mike tribe apart from Mali Yiyali and Miki Kaiya, be struck out pursuant to Order 8 Rule 27 of the National Court Rules (‘NCR’);
5.	Further in the alternative, the Defendants to be given leave to file a Request for Further and Better Particulars of the Statement of Claim;
6.	Costs be in the cause;
7.	Any other Orders this Honourable Court deems fit."

A threshold issue I raise at this time is that once a Notice to Set Down for Trial is filed, the court should not entertain any interlocutory applications by either party and that the matter should proceed to trial, unless of course counsel either seeks leave of the court, or parties agree to the application proceeding or parties agree that the matter is not ready for trial. However, because I heard extensive argument, I will consider them in full.

I deal with all the orders sought together because the same issues in relation to the dismissing or striking out of proceedings arise.

1.	Applicants submission on O. 4 R. 13 and O. 10 R. 5 of the NCR

The Applicant moves on the above orders in their application to dismiss for want of prosecution. These orders read;

- O. 4 R. 13
"13.	Validity for service
a.	For the purpose of service, an originating process shall be valid for two years from the date on which it is filed.
b.	The Court shall not extend the period of two years mentioned in sub-rule (1).
c.	This rule does not prevent the plaintiff from commencing fresh proceedings by filing another originating process."

- O. 10 R. 5
"5.	Want of Prosecution
Where a plaintiff does not, within six weeks after the pleadings are closed, set the proceedings down for trial, the court on motion by any other party, may, on terms, dismiss the proceedings or make such other order as the Court thinks fit."

The Writ of Summons and statement of claim was filed on 25.7.97. Both counsel have not filed affidavit material setting out a chronology of the pleadings filed to date. In fact the Applicants lawyer relies only on his argument that six weeks after the filing of the ‘Notice to Set Down for Trial’ on 27.2.97 by the plaintiffs lawyer, that pleadings effectively closed and that the matter should have been set down for trial. The Applicant submits that a period of 5 years is inordinate and inexcusable delay. I note from the documents in the court file that the last document filed by the Plaintiffs lawyer is a ‘Consent to Act’ dated 20.6.03. Prior to that, the plaintiffs lawyer filed several affidavits during the period 1999 and 2000.

The Plaintiffs lawyer deposes in his affidavit that because Mount Hagen has only one resident judge, that this has also contributed to the back log of cases awaiting the allocation of trial dates and that this case is one of them. He does not set out in that affidavit the actual steps he took since 27.2.98, in relation to securing another trial date. I should state at the outset that the Applicants present lawyers had no direct dealings with the Plaintiffs present lawyer until 22.4.03 when they filed ‘Notice of Change of Lawyers’. In fact, the Applicants former lawyers took no steps at all since their filing of a Reply on 23.12.97. Lawyers must come to court with clean hands. If they both did not conduct the matter in an efficient manner, then they both cannot say the other did not do anything but sit on the file. (see Panga Coffee Factory Pty Ltd, Highlands Coffee Export Pty Limited and Kum Farming and Trading Pty Limited, Coffee Industry Corporation Limited SCA 22 of 2001 delivered on 26.4.01 by Los, Injia and Davani, JJ).

I should also state here that lawyers should not come to court and blame the administration of the courts for their own inefficiency as done by Plaintiffs counsel. They should set out in affidavit material the steps they have taken since the filing of the Summons. General statements in affidavit materials is not good evidence. That practice should stop.

The law on application to dismiss for want of prosecution is clear as established in many cases. This power to dismiss should be exercised only "where the Plaintiffs default has been intentional, contumelious or …inordinate and inexcusable." (see General Accident Fire and Life Assurance v Illimo Farm [1990] PNGLR 331; a Supreme Court Appeal).

I have also read the authorities cited by counsel for the Applicant in his written submissions and refer to the matter of Umba Waink and Martin Umba Sambai v Motor Vehicles Insurance (PNG) Trust & The State 1991 (Unreported) N1630. In that case, Lenalia .J ruled that the court can dismiss proceedings for want of prosecution on the same principles as held in General Accident Fire and Life Assurance (supra).

In General Accident Fire and Life Assurance (supra), the Appellant failed to provide an explanation to the Supreme Court as to why the appeal was not progressed. The Supreme Court held that "…the absence of an explanation is fatal to a respondent to an application for dismissal where an explanation could quite properly be expected." (pg 334). In this case, the Applicant does not provide an explanation as to why no action was taken on the matter since 23.12.97. The affidavit filed by the Applicant only depose to an explanation in relation to the administrative problems encountered by the courts. That is insufficient explanation of the reasons why judgment was allowed to be entered by default. Fortunately, I have the benefit of the pleadings on the court file which show me that the latest document filed by the Plaintiff’s lawyer was on 20.6.03, being the Consent to Act. So, as far as I can tell, there is no inordinate or inexcusable delay by the Plaintiff.

In relation to arguments raised under O. 4 R. 13 of the NCR, that the Originating Summons was not personally served on the first defendant within 2 years from 25.7.97 when the Writ of Summons was filed, that it is now not a valid writ, I find that argument should fail because O. 6 R. 2(3) is clear in that it states;

"6.	Service of Documents
2.	Originating process (9/2)
…
(3)	Where a defendant to any originating process serves a notice of intention to defend under Order 7, the originating process shall be taken to have been served on him personally on the date on which that notice is filed on or such earlier date as may be proved."

That provision speaks for itself in that once a defendant serves a Notice of Intention to Defend, the originating process is taken to have been served on him personally, in this case, on the date the Notice of intention to Defend was filed by the first defendant i.e on 22.12.04.

2.	Applicants submissions on O. 12 R. 40 (1) (e) and O. 8 R. 27 of the NCR.

These orders read;

- O. 12 R. 40 (1);

"40.	Frivolity, etc.

(1)	Where in any proceeding it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings –

(a)	no reasonable cause of action is disclosed; or
(b)	the proceedings are frivolous or vexatious; or
(c)	the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

(2)	The Court may receive evidence on the hearing of an application for an order under Sub-rule (1)."

- O. 8. R. 27 of the NCR;

"27.	Embarrassment, etc.

(1)	Where a pleading –

(a)	discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(b)	has a tendency to cause prejudice, embarrassment or delay in the proceedings; or

is otherwise an abuse of the process of the court the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.

(2)	The Court may receive evidence on the hearing of an application for an order under Sub-rule (1)."

The Applicant submits that the proceeding should be dismissed because the Plaintiffs have not pleaded the particulars of negligence; that the particular defendants involved in the raids have not been named on the statement of claim and that therefore, the pleadings do not disclose a cause of action.

In submitting the above, the Applicant also relies on s. 1(2) of the Wrongs (Miscellaneous Provisions) Act Chapter 297 (‘Wrongs Act’). This section reads;

"1.	General liability of the State in tort.
…
(2)	Proceedings do not lie against the State by virtue of Subsection (1) (a) in respect of an act or omission of a servant or agent of the State unless the act or omission would, apart from this Division, have given rise to a cause of action in tort against the servant or agent or his estate."

The Applicant submits that the police officers involved in the raid must be named as the "primary" defendants because the cause of action against him or her must be established first to then connect or establish a nexus between the Independent State of Papua New Guinea and the named officer. Counsel for the Applicant did not refer me to authorities to support that point, relying only on s. 1(2) of the Wrongs Act. Does that section support the Applicants arguments? Should the individual policemen be named? For me to answer these questions, I have had recourse to the common law Doctrine of Vicarious Liability and the history of or the background to the Wrongs Act. The text "Liability of the Crown in Australia, New Zealand and the United Kingdom", by Peter W. Hogg published in 1971 discuss this. I set out below certain extracts from this text that will to an extent, answer this query. 

Firstly, a brief historical perspective. This is provided at pg. 64 of the Hogg text which reads;

"Direct and Vicarious Liability

Definitions

It is now generally recognized that a master's liability in tort arising out of acts or omissions of his servants may be either direct or personal. Or it may also be vicarious. But this distinction is relatively new. Originally the liability of the Master for a Tort committed by his servant was seen as depending upon the fiction that the master had impliedly commanded his servant to commit the tort. On this basis, it was natural to impute the act of the servant to the master and to treat the tort of the servant as the tort of the master…The Masters tort theory is therefore generally rejected now as an unnecessary fiction.

…The Masters tort theory does not distinguish the Masters liability…which depends on the commission of a tort by a servant acting in the course of his employment… In some jurisdictions, the liability of the crown in tort cannot be understood without drawing this distinction. I therefore propose to describe the former kind of liability as ‘direct’ and the latter as ‘vicarious’. In the context of negligence, direct liability involves the breach of a duty of care owed to the plaintiff by the Master himself, whereas vicarious liability involves the breach of a duty of care owed to the plaintiff by the servant; in the case of direct liability, it is immaterial whether or not a servant owed a duty of care to the plaintiff, and in the case of vicarious liability it is immaterial whether or not the master owed a duty of care to the plaintiff." (pgs 64, 65, 66 of "Liability of the Crown in Australia, New Zealand and the United Kingdom").

The text explains that vicarious liability in tort in various Commonwealth jurisdictions is imposed by statute. New Zealand and the United Kingdom impose liability for "Torts committed by its servants or agents" (see s. 6 (1) (a) of the Crown Proceedings Act of 1950 (New Zealand) and s. 2 (1) (a) of the Crown Proceedings Act of 1947 (United Kingdom). These clauses govern vicarious liability by the Crown unlike the Sate of Victoria, which imposes liability "for the torts of any servant or agent of the Crown or Independent Contractor employed by the Crown". (see s. 28 of the Crown Proceedings Act 1958 of Victoria). These Acts may have been amended but I refer to them here only for comparison purposes. The New Zealand and United Kingdom Acts are similar to PNG’s s. 1(1)(a) of the Wrongs Act which states "… the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject – 
a) in respect of torts committed by its servants and agents;" (my stress)

In relation to parties to be sued, the same article states at pg. 112 that:

"Now that the Crown itself is liable vicariously for the torts of its servants, the law has lost a good deal of its former hardship. In practice, it is the Crown who is sued; the liability of the servant is established simply to fasten vicarious liability on the Crown. And there seems no more hardship in holding the Crown liable than in any other case of vicarious liability: the losses caused by unauthorized and tortuous governmental action must be regarded as one of the costs of governing society to be paid for by the society and not by the individuals upon whom the losses happen to fall." (my stress).

The common law speaks for itself, that in some cases, it is the Crown or in this case the State who is sued, not the servant. The vicarious liability of the State and the servant is established on the evidence to be proven, of the unauthorized and unlawful actions of the servant. (see s. 1(4) of the Wrongs Act). I discuss this further in the latter part of this ruling.

I now review the contents of the Statement of Claim and Defence to then decide whether the Plaintiffs should plead as suggested by the Applicants.

The first defendant is pleaded as the Chief Inspector based at Mount Hagen then, when the alleged raid was conducted on 30.7.91 at the various villages named in the Statement of Claim. It is pleaded that various policemen under the first Defendants command conducted this raid. At paragraph 3 of the Statement of Claim, the Plaintiff pleads the second defendant to be "vicariously liable".

In the prayer for relief, the Plaintiff seeks the following orders which it submits the State should pay for, based on the principle of vicarious liability;

"1.	General damages in the sum of K1,030.977.00;
2.	Damages for breach of Constitutional rights;
3.	Exemplary Damages;
4.	Interest at 8% pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 	Chapter 52;
5.	Costs of this action."

All Defendants Defence filed on 18.12.97 deny the Plaintiffs allegations and in relation to the issue of vicarious liability, state that the first defendant did not command or order that the raid or any raid be conducted or carried out on the various villages named in the Statement of Claim.

Clearly, the Defendants are saying in their Defence that;

1.	Policemen were not authorized to carry out a raid;
2.	That the first defendant did not issue any orders to carry out a raid that day.

This in my view means that the plaintiffs must now prove, on the balance of probabilities, that an unlawful and unauthorised raid was conducted that day. The onus is on the Plaintiff to prove its case by the various processes available to it, that there were other policemen involved and that they were authorized to carry out the raid, for the issue of vicarious liability to then succeed. I say this because unlike a scenario where police are called to quell a tribal fight involving hundreds of tribesman, and which in itself is an action authorized by law, and where this court has held that the onus is on the State to prove that the deliberate destruction of property was not authorized by law, this is a case where the Defendant denies that the raid occurred, at all. (see Eriare Lanyat and others v George Wagulo and the State [1997] PNGLR 253). In Eriare Lanyat (supra) the Plaintiffs allege in their Statement of Claim that policemen for no reason, destroyed their properties. However, in this case, the Defendants in their filed Defence deny that policemen were involved and that the destruction to the plaintiffs properties was caused by warring clansmen and not the police. Unlike Eriare Lanyat (supra), the situation is now reversed where the onus is shifted to the Plaintiff to prove that policemen were on authorized patrol when the destruction occurred for vicarious liability to succeed.

Further, I refer to the case of Puk Num v the Independent State of Papua New Guinea WS 44 of 1996 decided on 12.9.03 by Salika .J, a dependency claim where Salika .J held that the Plaintiffs need not name the policemen who allegedly assaulted a young man, who subsequently died as a result of the injuries received. The matter proceeded to trial on liability and quantam and the court found on the evidence that although the individual policemen were not named, that there was overwhelming evidence to find that the policemen were acting within the scope of their employment as policemen and that as such, the State was vicariously liable. Whether they are vicariously liable or not is also best qualified by the evidence given to satisfy the requirements under s. 1 (4) of the Wrongs Act, that the State will be vicariously liable in damages for civil wrongs such as Torts committed by its employees or agents, provided the wrongful action was committed whilst performing or purporting to perform such functions "as they would have been if the functions had been conferred or imposed widely by virtue of instructions lawfully given by the Government." (see s. 1 (4) of Wrongs Act).

So I find the Plaintiff need not name the policemen allegedly involved, for the argument on vicarious liability to succeed. That to me is a misconception of the law.

I also order that counsel for Plaintiff file a fresh Notice to Set Down for Trial which must be endorsed with the Defendants lawyers consent, showing that the matter is in fact ready for trial. If counsel for Defendant does not endorse the Notice to Set Down for Trial, then obviously, the matter is not ready to proceed to trial.

I dismiss the Applicants motion in its entirety and order that they pay the Plaintiffs reasonable costs of the application. I also order that the next step should not be taken by either party unless and until these costs are paid.
___________________________________________________________________
Lawyer for the Plaintiff/Respondent	:	Kunai & Company Lawyers
Lawyer for the Defendant/Applicant	:	Paraka & Company Lawyers