N3002
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1261 OF 2005

TONY KAMBAN AMBUAL
Plaintiff

V

PETER TUPA
First Defendant

LEO KAIKAS
Second Defendant

MADANG : CANNINGS J

25 NOVEMBER, 14 DECEMBER 2005

Practice and procedure – application to dismiss proceedings for being time-barred and disclosing no reasonable cause of action – writ of summons and statement of claim filed more than six years after incident – Frauds and Limitations Act, Section 16 – identification of date on which cause of action accrued – National Court Rules, Order 8, Rule 27.

The plaintiff commenced proceedings against two police officers who he claimed shot him in the ankle, on 29 June 1999. He was hospitalised for three months. He filed a writ and statement of claim on 12 August 2005, which was more than six years after the date he was shot. The defendants filed a motion to dismiss the proceedings on the grounds that the six-year limitations period in the Frauds and Limitations Act 1988 was breached and that the proceedings failed to disclose a reasonable cause of action and were an abuse of process.

Held:

(1)	The proceedings were filed after the expiry of the six-year period set by Section 16(1) of the Frauds and Limitations Act. However, the plaintiff was under a disability for three months from the date on which the cause of action accrued and this was an appropriate case in which to invoke Section 22 of the Act to extend the commencement of the six-year period. The plaintiff had until 29 September 2005 to commence the proceedings and he was within time.

(2)	There was no failure to disclose a reasonable cause of action. Nor was there an abuse of process. Therefore the motion failed.

Cases cited

The following cases are cited in the judgment:

Angelo Cresseri and Wiwa Korowi v Halla Resources Corporation [1985] PNGLR 294
Sanage Kuri v MVIL (2004) N2759

NOTICE OF MOTION

This was an application to dismiss the proceedings.

Y Wadau for the plaintiff
K Isari for the defendants

CANNINGS J: This is a ruling on an application by the defendants to dismiss the entire proceedings that have been commenced by the plaintiff on the grounds that the proceedings are time-barred and/or fail to disclose a reasonable cause of action.

The plaintiff was a resident of Indapu village, Wosera-Gawi District, East Sepik Province. The defendants are police officers. The plaintiff claims that on 29 June 1999 the defendants unlawfully searched his house in the village and shot him in the right ankle; that he was seriously injured; that they took him to Ambunti Health Centre at 5.00 pm; that he was hospitalised at Boram Hospital for three months; and that he was never charged with any offences. On 12 August 2005 the plaintiff filed a writ of summons, naming Peter Tupa and Leo Kaikas as the only two defendants. He is seeking damages. The causes of action pleaded are:

•	trespass and unlawful search;
•	assault and battery;
•	slander and ridicule;
•	unlawful arrest; and
•	detention without charge.

On 13 September 2005 Hodges Ette, Principal Police Legal Officer, filed a notice of intention to defend and a defence for both defendants. Those documents were served on the plaintiff’s lawyer the same day, 13 September 2005. On 24 October 2005 the defendants filed and served notice of the motion presently before the court. It was supported by an affidavit of Kingston P Isari of the Police Legal Branch deposing to his belief that the plaintiff’s statement of claim is statute-barred by Section 16 of the Frauds and Limitations Act 1988.

On 1 November 2005 the plaintiff filed a cross-motion, seeking orders that the defendants’ motion be dismissed as an abuse of process; that the plaintiff’s right of claim be extended under Section 22 of the Frauds and Limitations Act or Sections 41 or 155(4) of the Constitution. The cross-motion was supported by two affidavits.

The first affidavit was by Michael Wambun, a friend of the complainant. He is also from Indapu. He said he took photographs of the plaintiff’s wounds when the plaintiff was admitted to hospital. He wrote to various officials, including the Commissioner of Police, asking for an investigation into the shooting of the plaintiff. In September 1999 he received a response from the Commissioner, saying that he would be informed of the result of the inquiries. He has waited since then but has not been informed of any investigation or its results. The second affidavit was by the plaintiff who explains the steps he took in 1999 to get his ankle fixed and to assist the police in their investigation of the incident in which he had been shot. He eventually made his way to Madang to consult his present lawyers.

On 16 November 2005 the plaintiff was arrested and charged with various offences allegedly committed in 1999: the unlawful wounding of Jacob Kasa and unlicensed possession of a rifle and ammunition.

On 17 November 2005 the second defendant, Leo Kaikas, swore an affidavit deposing to the circumstances in which the police searched the plaintiff’s house in June 1999. The plaintiff was suspected of being responsible for the wounding of a schoolteacher, Jacob Kasa. He claims that the plaintiff went into hiding after being discharged from hospital in September 1999. On 17 November 2005 Kingston Isari swore an affidavit deposing to enquiries he had made into the physical condition of the plaintiff and his periods of hospitalisation.

On 24 November 2005 the plaintiff swore a supplementary affidavit, deposing that he went to Madang General Hospital on 23 November 2005 to obtain a medical report regarding the injury to his right ankle, which still gives him pain.

THE MOTION

The defendants seek an order that the entire proceedings be dismissed on two grounds:

•	statute-barred by Section 16(1) of the Frauds and Limitations Act 1988;
•	disclose no reasonable cause of action and are an abuse of process, pursuant to Order 8, Rule 27 of the National Court Rules.

The plaintiff’s cross-motion seeks the opposite of what is sought by the defendants and it was probably unnecessary for it to be filed. I will focus on the defendants’ motion.

THE DEFENDANTS’ SUBMISSIONS

As to the first ground of the motion, Mr Isari submitted that the plaintiff’s claim is foreclosed by Section 16(1) of the Frauds and Limitations Act. There is no provision in that Act which confers any discretion on the National Court to let matters proceed to trial despite the claim being time-barred. The only situation in which a person might be permitted to commence proceedings more than six years after the cause of action accrued is if they are under a disability, as defined by Section 21, of the Frauds and Limitations Act. Section 21 states that a person is under a disability if he or she is under 21 years of age or suffering from a mental disability. Neither of those situations applies here, argued Mr Isari. The cause of action was the date of the incident in which the plaintiff says he was shot by the defendants: 29 June 1999.  He had until 29 June 2005 to file the writ. He did not file it until 12 August 2005. He was 44 days late. The law is very clear.  Claims must be filed within six years after the date the cause of action accrued.

As to the second ground, abuse of process, Mr Isari asserted that the plaintiff has failed to disclose what law he is relying on to bring his claim. He has also not disclosed the extent of the disabilities and injuries he claims to have sustained. Furthermore, the plaintiff has incorrectly sued two persons who are police officers in their individual capacities when he should have joined the State as a defendant under the Wrongs (Miscellaneous Provisions) Act.

PLAINTIFF’S SUBMISSIONS

The plaintiff’s counsel, Mr Wadau, admitted that the writ was filed late but submitted that the defendants had themselves failed to comply with the law by the manner in which they were seeking to have the proceedings dismissed. He relied on Order 8, Rule 14 of the National Court Rules, which requires that a defence specifically plead any statute of limitations as a defence. The defendants have not pleaded the limitations period in their defence. Therefore they cannot raise it in a notice of motion. He referred to the decision of the Supreme Court in Angelo Cresseri and Wiwa Korowi v Halla Resources Corporation [1985] PNGLR 294 in support of that proposition. Mr Wadau submitted that the term “disability” in Section 21 of the Frauds and Limitations Act should include a situation where a person is physically inconvenienced or disabled. In the alternative the court should invoke either Sections 41 or 155(4) of the Constitution to alleviate the injustice that would be occasioned by stopping the plaintiff pursuing his grievance on the technical ground that he was 44 days late in filing his writ.

RELEVANT LAW

There are three sets of statutory provisions of direct relevance.

Constitution

Section 41 (proscribed acts) states:

(1)	Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—

(a)	is harsh or oppressive; or
(b)	is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or
(c)	is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

(2)	The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3)	Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.

Section 155(4) (the national judicial system) states:

Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

Section 158 (exercise of the judicial power) of the Constitution states:

(1)	Subject to this Constitution, the judicial authority of the People is vested in the National Judicial System.

(2)	In interpreting the law the courts shall give paramount consideration to the dispensation of justice.

Frauds and Limitations Act

Part III (limitation periods for actions in contract, tort etc) contains Sections 16 to 20. Section 16(1) is the key provision. It states:

Subject to Sections 17 and 18, [which are not relevant to the present case] an action—

(a)	that is founded on simple contract or on tort; or
(b)	to enforce a recognisance; or
(c)	to enforce an award, where the submission is not by an instrument under seal; or
(d)	to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

The defendants rely on Section 16(1) to assert that the present proceedings are time-barred.

Section 16(1) must be read in the context of Part IV (disabilities), which contains Sections 21 and 22. 

Section 21 states:

For the purposes of this Part a person shall be deemed to be under a disability—

(a)	if he is under the age of 21 years; or
(b)	if he is of unsound mind within the meaning of Part VIII (mental disorders and treatment) of the Public Health Act (Chapter 226).

Section 22(1) states:

(1)	Subject to the provisions of this section, [which are not relevant to the present case] where—

(a)	a right of action in respect of which a period of limitation is specified by this Act accrues to a person; and
(b)	on the date when the right of action accrues the person is under a disability,

the action may be brought at any time before the expiration of six years commencing on the date when the person ceases to be under the disability, notwithstanding that the period of limitation has expired.

National Court Rules

Order 8, Rule 27 (embarrassment etc) states:

(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
(c)	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).

Order 8, Rule 14 (matters for specific pleading) states:

In a defence or subsequent pleading the party pleading shall plead specifically any matter, for example, performance, release, any statute of limitation, fraud, or any fact showing illegality—

(a)	which he alleges makes any claim, defence or other case of the opposite party not maintainable; or
(b)	which, if not pleaded specifically, may take the opposite party by surprise; or
(c)	which raises matters of fact not arising out of the preceding pleadings.

ISSUES 

I will deal with the issues in the following order:

•	Are the defendants prevented from raising the statute of limitations as a defence at this stage of the proceedings?
•	Has the limitations period in Section 16 of the Frauds and Limitations Act lapsed?
•	Does Part IV (disabilities) of the Frauds and Limitations Act apply?
•	Can this court extend the limitations period under Sections 41 or 155(4) of the Constitution?
•	Does the statement of claim fail to disclose a reasonable cause of action?
•	Are the proceedings an abuse of process?
•	Should the court make orders for the further conduct of the case?

ARE THE DEFENDANTS PREVENTED FROM RAISING THE STATUTE OF LIMITATIONS AS A DEFENCE AT THIS STAGE OF THE PROCEEDINGS?

No. I do not consider that the case relied on by Mr Wadau – Cresseri v Halla – supports the proposition he advances. The facts are quite different. The defendants in that case sought to rely in a trial on a statutory defence, that a guarantee should  be in writing, which was not pleaded in their defence. Order 8, Rule 14 of the National Court Rules requires that such defences be specifically pleaded. To that extent Mr Wadau’s submission is sound. However, the rule and the case relied on do not prevent a defendant from relying on a statutory defence for the purposes of a pre-trial application to strike out the proceedings. Statutory defences are often raised by a notice of motion even though not pleaded in a defence, eg when the State applies (often successfully) to strike out proceedings for failure to comply with Section 5 of the Claims By and Against the State Act. I therefore will entertain the defendants’ motion.

HAS THE LIMITATIONS PERIOD IN SECTION 16 OF THE FRAUDS AND LIMITATIONS ACT LAPSED?

Yes. The plaintiff’s cause of action is founded on tort. Section 16(a) applies. The cause of action arose on the day the plaintiff says he was shot: 29 June 1999. I accept Mr Isari’s submission that the plaintiff was obliged to file the writ within six years, ie by 29 June 2005. He filed it late.

DOES PART IV (DISABILITIES) OF THE FRAUDS AND LIMITATIONS ACT APPLY?

Section 22 of the Frauds and Limitations Act allows the six-year limitations period to be extended if a person is under a disability on the date when their cause of action accrues.

Mr Wadau submits that the term “disability” should be interpreted broadly. Mr Isari, on the other hand, relies on Section 21 of the Frauds and Limitations Act, which is a deeming provision. Section 21 contains an exhaustive description of the circumstances in which a person will be deemed to be under a disability. He emphasised that the plaintiff was not under the age of 21 years. Nor was of unsound mind. He was shot in the foot, not in the head.

I am inclined to the view that the proper interpretation of “disability” is somewhere between those alternative submissions. Section 21 seems, actually, to give an inclusive definition of disability. If a person is under the age of 21 years or of is of unsound mind then he or she will definitely be deemed to be under a disability. Section 21 leaves open the possibility that a disability might be due to some other cause or condition, such as a physical impairment. This is a view I expressed in a recent Mt Hagen case (Sanage Kuri v MVIL (2004) N2759) and I propose to follow it in the present case. By doing so I am discharging my obligation under Section 158 of the Constitution to give paramount consideration to the dispensation of the justice when interpreting the law.

The evidence before the court is that the plaintiff was hospitalised at Wewak until 29 September 1999. That is the date when he ceased to be under a disability. Therefore the six-year limitation period ran, per force of Section 22(1) of the Frauds and Limitations Act, to 29 September 2005. The plaintiff filed the proceedings on 12 August 2005, seven weeks within the statutory period.

CAN THIS COURT EXTEND THE LIMITATIONS PERIOD UNDER SECTIONS 41 OR 155(4) OF THE CONSTITUTION?

It is unnecessary to address this issue in view of my conclusion on the previous issue.

DOES THE STATEMENT OF CLAIM FAIL TO DISCLOSE A REASONABLE CAUSE OF ACTION?

No. I consider that the statement of claim adequately articulates various causes of action.

ARE THESE PROCEEDINGS AN ABUSE OF PROCESS?
 
Mr Isari’s submission is that the State should have been joined as a defendant and the failure to do so means that the plaintiff is abusing the processes of the court. I partly agree. It would have been desirable, but not necessary, for the State to be joined. The failure to make the State a defendant does not prevent the plaintiff from commencing proceedings against the particular police officers he claims are responsible for shooting him.

SHOULD THE COURT MAKE ORDERS FOR THE FURTHER CONDUCT OF THE CASE?

I raise this as an issue in view of my agreement with Mr Isari’s submission that the State should have been made a defendant in this case. I will order that:

•	the State be added as a defendant, pursuant to Order 5, Rule 8 of the National Court Rules;
•	the plaintiff be allowed one month after the date of this order to give notice to the Solicitor-General of his claim against the State, sufficient cause having been shown to this court pursuant to Section 5(2)(c)(ii) of the Claims By and Against the State Act 1996.

ORDER

The order of the court is:

1	the defendants’ application to dismiss the proceedings is refused;

2	the State shall be added as a defendant, pursuant to Order 5, Rule 8 of the National Court Rules;

3	the plaintiff shall be allowed one month after the date of this order to file and serve on all defendants an amended writ and statement of claim, which names the Independent State of Papua New Guinea as the third defendant;

4	the plaintiff be allowed one month after the date of this order to give notice to the Solicitor-General of his claim against the State;

5	the parties shall bear their own costs of the hearing of this motion.

Orders accordingly.
_____________________________

Lawyers for the plaintiff			:	Young Wadau Lawyers
Lawyer for the defendants		:	Hodges Ette