N4854
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP (HR) NO 407 0F 2007

LOMOT CHAUKA
Plaintiff

V

ELTHY BIANG
First Defendant

THOMAS VOGUSANG
Second Defendant

CHIEF MAGISTRATE
Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Cannings J
2012: 21 June, 31 August, 31 October

TORTS – human rights – alleged negligence by District Court Magistrate resulting in unlawful imprisonment – whether a Magistrate can be liable in negligence – immunity for suit for judicial officers – whether a breach of human rights for an unconvicted person to be treated as a convicted prisoner.

The plaintiff claimed that she was arrested and detained in a correctional institution for 18 days pursuant to an order of the District Court that was made on the false pretext that she had failed to pay money to the first defendant pursuant to an earlier District Court order. The plaintiff claimed that she was detained unlawfully, not having been found guilty of any offence and being detained in inhuman conditions and treated as a convicted prisoner before the errors were corrected by her being released under an order of another Magistrate. She commenced proceedings under Section 57 of the Constitution against the woman (first defendant) whose complaint led to her being arrested and detained, the Magistrate who ordered her arrest and detention (second defendant), the Chief Magistrate (third defendant) and the State (fourth defendant), seeking enforcement of her human rights and also claimed that the Magistrate should be personally liable in negligence. A trial was set down to determine whether any of the second, third and fourth defendants was liable and, if any was liable, to assess damages. The plaintiff adduced affidavit evidence of the train of events and sought total damages of K70,000.00. The defendants adduced no evidence but defended the matter by claiming that the entire proceedings should be dismissed as the plaintiff failed to: give notice of her intention to make a claim against the State in accordance with Section 5 of the Claims By and Against the State Act, comply with the requirements of Part XII (protection of magistrates in execution of their office) of the District Courts Act and plead the elements of her claim in accordance with the National Court Rules.

Held:

(1)	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. Such an estoppel operated here.

(2)	The effect of Part XII of the District Courts Act is to confer on Magistrates a substantial immunity from suit (similar to the common law doctrine of judicial immunity) on Magistrates, which requires a person bringing an action to expressly allege and prove that the Magistrate acted maliciously and without reasonable cause. Those requirements were not met here, so the second defendant and the third defendant were immune from suit in these proceedings.

(3)	Further, the statement of claim failed to adequately plead the elements of the tort of negligence so no cause of action in negligence could be established.

(4)	Despite some deficiencies in the statement of claim, it was sufficiently alleged and proven that the plaintiff had been arrested and detained without proper cause and that a number of her human rights were breached, viz

•	right to the full protection of the law  (Constitution, Section 37(1));
•	right to be treated with humanity and with respect for the inherent dignity of the human person (Constitution, Section 37(17));
•	right, as an accused person, to be segregated from convicted persons and to be subject to separate treatment appropriate to her status as an unconvicted person (Constitution, Section 37(18));
•	right to protection against harsh or oppressive acts (Constitution, Section 41(1)).

(5)	The plaintiff thus established a cause of action for breach of human rights, for which the fourth defendant was held liable.

(6)	Damages were assessed at the rate of K250.00 per day for which the plaintiff was unlawfully detained: K250.00 x 18 days = K4,500, 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 5.39 years: K1,940.40, resulting in a total judgment sum of K6,440.40.

 Cases cited

The following cases are cited in the judgment:

Gawi & Kari v The State (2012) N4814
Meronas Songkae v Inspector Tony Wagambie Jnr (2012) N4807
Nahkla v McCarthy [1978] 1 NZLR 291
Sirros v Moore [1975] QB 118
Titus Banga v Madang Port Services Ltd (2011) N4302

APPLICATION

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

Counsel

E Wurr & E Wohuinangu, for the plaintiff
J P Kendy, for the 2nd, 3rd & 4th defendants

31 October, 2012 

1.      CANNINGS J: This is a trial on liability and an assessment of damages arising out of allegations by the plaintiff, Lomot Chauka, that she was wrongfully arrested and detained in custody unlawfully for 18 days pursuant to an order of the Kavieng District Court that should never have been made.

2.     The plaintiff claims that the District Court order, which was made by Magistrate Mr T Vogusang in the form of a warrant for her arrest on 11 June 2007, was based on the false pretext that she had failed to pay money to the first defendant, Elthy Biang, (the former wife of the plaintiff’s husband) pursuant to an earlier District Court order. The plaintiff says that there was a judgment debt due to Ms Biang in the sum of K4,978.00 which was in fact paid on 20 July 2006. The plaintiff says that the warrant for her arrest was executed on 11 July 2007 and that she was immediately taken to Kavieng Jail where she was unlawfully detained, not having been found guilty of any offence and being detained in inhuman conditions and treated as a convicted prisoner before the errors were corrected by her being released under an order of another Magistrate.

3.     She commenced proceedings under Section 57 of the Constitution on 1 November 2007 seeking enforcement of her human rights against:

•	Ms Biang, the first defendant, whose complaint led to her being arrested and detained,

•	Mr Vogusang, the second defendant, the Magistrate who ordered her arrest and detention,

•	the Chief Magistrate, the third defendant, and

•	the State, the fourth defendant.

4.     In September 2011 the National Court directed the plaintiff’s lawyer, the Public Solicitor, to file a statement of claim so that the plaintiff’s grievances could be more clearly articulated. The fourth defendant subsequently filed a defence and the matter has come on for trial to determine whether any of the second, third or fourth defendants is liable and, if any of them is liable, to assess damages. The action in relation to the first defendant has not been pursued.

5.     The plaintiff adduced affidavit evidence of the train of events and sought total damages of K70,000.00. The defendants adduced no evidence but defended the matter by claiming that the entire proceedings should be dismissed as the plaintiff failed to: give notice of her intention to make a claim against the State in accordance with Section 5 of the Claims By and Against the State Act, comply with the requirements of Part XII (protection of magistrates in execution of their office) of the District Courts Act and plead the elements of her claim in accordance with the National Court Rules.

6.     There are six issues:

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

(2)	Has there been a failure to comply with the requirements of Part XII of the District Courts Act?

(3)	Has there been a failure to plead the elements of the plaintiff’s claim under the National Court Rules?

(4)	Has the plaintiff proven the factual allegations?

(5)	Has the plaintiff established a cause of action against any of the defendants?

(6)	What damages, if any, is the plaintiff entitled to?

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

7.     Mr Kendy, for the second, third and fourth defendants, submitted that the plaintiff was late by about a month in giving notice of her intention to make a claim against the State under Section 5 of the Claims By and Against the State Act. He submitted that the Attorney-General granted her leave to file a late notice but she failed to give notice within the extended period; thus there has been a failure to comply with the Act and the proceedings as against the State should be dismissed.

8.     I reject this submission for two reasons. First it is not supported by any evidence. It is a substantial application, which should have been made by notice of motion supported by affidavit. Secondly, as I recently stated in Gawi & Kari v The State (2012) N4814 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, especially if it acquiesces in obtaining directions for trial (as it has done in this case), 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.

2	HAS THERE BEEN A FAILURE TO COMPLY WITH PART XII OF THE DISTRICT COURTS ACT?

9.     Part XII (protection of magistrates in execution of their office) of the District Courts Act confers on Magistrates a substantial immunity from suit, similar to the common law doctrine of judicial immunity under which judges are not personally liable in a civil suit for decisions that they make in the exercise of their jurisdiction. The rationale is that the immunity strengthens the independence of the judiciary, allowing a judge to focus on the issues at hand without fear or favour (Nahkla v McCarthy [1978] 1 NZLR 291). As Lord Denning stated in Sirros v Moore [1975] QB 118 ‘the judge who knows the immunity is there will not be turning the pages of the books with trembling fingers, fearing personal liability in damages if a wrong step is taken’.

10.     Part XII does not say that a person cannot sue a Magistrate for a civil wrong, such as negligence. Nor does it say that a Magistrate can never be civilly liable for decisions made in the exercise of his or her judicial functions. Quite the contrary. Section 247(1) states:

Subject to this Part, a person injured by an act done by a Magistrate in a matter in which by law he has no jurisdiction or in which he has exceeded his jurisdiction, or by an act done under a conviction or order made or warrant issued by a Magistrate in any such matter, may maintain an action against the Magistrate. [Emphasis added.]

11.     However, there are significant restrictions on the circumstances in which a Magistrate can be held liable, including those imposed by Section 256 (magistrate only liable in case of malice, etc), which states:

In an action against a Magistrate for an act done by him in the execution of his duty as such or in his capacity as such, it must be expressly alleged in the statement of claim or plaint that the act was done maliciously and without reasonable and probable cause, and if the allegations are denied and at the trial of the action the plaintiff fails to prove them, judgment shall be given for the defendant. [Emphasis added.]

12.     Thus the plaintiff was required to expressly allege and prove that the Magistrate acted maliciously and without reasonable cause. Those requirements have not met here, so the second defendant, his Worship Mr Vogusang, and therefore the third defendant, the Chief Magistrate, are immune from liability in these proceedings.

3	HAS THERE BEEN A FAILURE TO PLEAD THE ELEMENTS OF THE PLAINTIFF’S CLAIM UNDER THE NATIONAL COURT RULES?

13.     Mr Kendy submitted that the plaintiff’s amended statement of claim filed on 1 February 2012 failed to comply with the pleading requirements of the National Court Rules, Order 8, Rules 29 and 32. A substantial part of the plaintiff’s case was built on the claim that the second defendant committed the tort of negligence by issuing the warrant for her arrest without a proper basis, yet the statement of claim was vague and short on particulars and did not even plead the elements of the tort of negligence (Titus Banga v Madang Port Services Ltd (2011) N4302).

14.     I uphold this submission. The statement of claim fails to adequately plead the elements of the tort of negligence so no cause of action in negligence can be established against the second defendant.

4	HAS THE PLAINTIFF PROVEN THE FACTUAL ALLEGATIONS?

15.     The effect of my determination of issues (2) and (3) is that the proceedings against the second and third defendants will be dismissed. Liability cannot be against them due to the failure to comply with the requirements of Part XII of the District Courts Act and the pleadings requirements of the National Court Rules. The liability of the State remains to be determined. As I have refused the argument that the case against the State should be dismissed it is necessary to determine whether the plaintiff has proven the factual allegations on which her claims of breaches of human rights are based.

16.     Having considered the evidence of the plaintiff and taking into account that no contrary evidence has been adduced I find that she has proven on the balance of probabilities the factual allegations on which her claim is based. The warrant of arrest should not have been issued. It had no factual or legal basis. It was indeed based on a false pretext that she had failed to pay money due under a previous District Court order to the first defendant. The warrant of arrest was made as an ex parte order of the District Court and I find that the plaintiff was not given notice of the hearing. She was denied the opportunity to explain her position. She was arrested by the police on 11 July 2007 and taken to Kavieng Jail and detained there until 29 July 2007, a period of two weeks four days. I accept the plaintiff’s evidence that she was treated as a convicted prisoner, not as a remandee. She was given a prison uniform and required to do work (light duties) as a convicted female prisoner would normally be required to do. The conditions of detention were poor and may fairly be described as inhuman.

5	HAS THE PLAINTIFF ESTABLISHED A CAUSE OF ACTION AGAINST ANY OF THE DEFENDANTS?

17.     Despite some deficiencies in the statement of claim, I consider that it has sufficiently alleged and proven that the plaintiff was arrested and, in particular, detained without proper cause and that a number of her human rights were breached as a consequence, viz

•	right to the full protection of the law  (Constitution, Section 37(1));
•	right to be treated with humanity and with respect for the inherent dignity of the human person (Constitution, Section 37(17));
•	right, as an accused person, to be segregated from convicted persons and to be subject to separate treatment appropriate to her status as an unconvicted person (Constitution, Section 37(18));
•	right to protection against harsh or oppressive acts (Constitution, Section 41(1)).

18.     It is appropriate that the State bears responsibility for the conduct of its officers and functionaries which allowed those breaches to occur. I find that the plaintiff has established a cause of action for breach of human rights, for which the fourth defendant is liable.

6	WHAT DAMAGES, IF ANY, IS THE PLAINTIFF ENTITLED TO?

19.     The plaintiff seeks four categories of damages:

(a)	general damages for negligence, K25,000.00;
(b)	damages for breach of constitutional (human) rights, K15,000.00;
(c)	exemplary damages, K20,000.00;
(d)	special damages, K10,000.00.

20.     As to (a) there can be no award as no cause of action in negligence has been established.

21.     As to (b) damages will be assessed at the rate of K250.00 per day for which the plaintiff was unlawfully detained: K250.00 x 18 days = K4,500.00. This is in accordance with the approach I recently took in Meronas Songkae v Inspector Tony Wagambie Jnr (2012) N4807.

22.     As to (c) the claim for exemplary damages has not been well articulated. And I make the same comment in relation to (d) special damages. Nothing will be awarded.

23.     To sum up damages are assessed as:

(a)	negligence, 0;
(b)	breach of constitutional rights, K4,500.00;
(c)	exemplary damages, 0;
(d)	special damages, 0.

Total K4,500.00.

INTEREST

24.     Interest will be awarded at the rate of 8 per cent per annum on the amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest is calculated from the date of the incident, 11 July 2007, to the date of judgment, a period of 5.39 years, by applying the following formula:

D x I x N = A

Where:

•	D is the amount of damages assessed;
•	I is the rate of interest per annum;
•	N is the appropriate period in numbers of years;
•	A is the amount of interest.

Thus:

•	K4,500.00 x 0.08 x 5.39 = K1,940.40.

COSTS

25.     The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.

ORDER

(1)	Damages are payable by the fourth defendant to the plaintiff in the sum of K4,500.00;

(2)	Interest is payable by the fourth defendant to the plaintiff in the sum of K1,940.40;

(3)	Being a total judgment of K6,440.40;

(4)	Costs of the proceedings shall be paid by the fourth defendant to the plaintiff on a party-party basis, which shall if not agreed be taxed.

Judgment accordingly.
___________________________________
Public Solicitor: Lawyer for the Plaintiff			
Solicitor-General: Lawyer for the 2nd, 3rd & 4th Defendants