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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
HRA NO 96 0F 2013
JOYCE AVOSA
Applicant
V
RENE MOTRIL & ANNE SAMIENTA
Respondents
Madang: Cannings J
2014: 21 July, 9, 17 September
HUMAN RIGHTS – enforcement – protection against proscribed acts – liberty of the person – protection from unjust deprivation of property
The applicant conducted a business in premises managed and controlled by the respondents. She claimed that she was put under pressure by the respondents to sign a new tenancy agreement and that when she sought more time to consider her position the respondents became aggressive, locked her out of her business, brought dogs onto the premises to harass her, at one stage locked her inside the premises for two hours and then locked up the equipment inside, all in an attempt to intimidate her. She commenced proceedings under Section 57 of the Constitution seeking enforcement of her human rights. The respondents argued that the application should be dismissed as this was a simple contractual dispute, involving no human rights issues, and the applicant should have commenced the proceedings by writ of summons.
Held:
(1) The characterisation of the dispute as contractual or commercial in nature did not mean that an application for enforcement of human rights was an improper mode of commencement of proceedings. The preliminary argument of the respondents was dismissed.
(2) The applicant adduced credible evidence. The respondents did not adduce any evidence. The court found that the gist of the allegations was proven and made findings of fact accordingly.
(3) Three of the applicant's human rights were breached, viz
- protection from proscribed acts, including harsh or oppressive acts (Constitution, s 41(1));
- liberty of the person (Constitution, s 42(1));
- protection from unjust deprivation of property (Constitution, s 53(1)).
(4) The applicant established a cause of action for breach of human rights, with damages to be assessed.
Cases cited
The following cases are cited in the judgment:
Joe Kape Meta v Kumono, Kulunio & The State (2012) N4958
Petrus and Gawi v Telikom PNG Ltd (2008) N3373
APPLICATION
This was a trial on liability to determine whether an application for enforcement of human rights should be upheld.
Counsel
V Amoko, for the applicant
B W Meten & D F Wa'au, for the respondents
17th September, 2014
1. CANNINGS J: Joyce Avosa, the applicant, is applying for enforcement of her human rights under Section 57(1) of the Constitution, which she claims were breached by the respondents, Rene Motril and Anne Samienta, during 2012 and 2013. The applicant says that in 2003 she started a hair and beauty salon business in premises at Section 11, Allotment 15, Dal Crescent, Madang, in accordance with an arrangement made with the person who then managed the premises. The respondents took over management of the premises in 2011 and increased the rent on two occasions. The applicant says that she paid those increases, but then in 2012 and 2013 her business relationship with the respondents soured.
2. The applicant alleges that she was put under undue pressure by the respondents to sign a new tenancy agreement and when she sought more time to consider her position, the respondents:
all in an attempt to intimidate and embarrass her.
3. She argues that by engaging in such intimidating and malicious conduct the respondents breached her human rights. She seeks compensation. The respondents deny that they have breached any human rights. Mr Meten submitted that the application should be dismissed as this was a simple contractual dispute, involving no human rights issues, and the applicant should have commenced the proceedings by writ of summons.
4. There are four issues:
1 SHOULD THE PROCEEDINGS BE SUMMARILY DISMISSED?
5. No. The characterisation of the dispute as contractual or commercial in nature does not mean that an application for enforcement of human rights is an improper mode of commencement of proceedings. The applicant used a proper mode of commencement by filling out a Human Rights Enforcement Application form under Rule 7(1)(c) and Form 124 of the Human Rights Rules (Order 23 of the National Court Rules). The respondents' preliminary argument is dismissed.
2 HAS THE APPLICANT PROVEN THE FACTUAL ALLEGATIONS?
6. I have considered two affidavits by the applicant and affidavits by three of her customers, who attest to the events at the applicant's business premises in 2012 and 2013. The respondents have not given any evidence and have not denied the factual allegations of the applicant. I consider that the applicant's evidence is not incredible, it is believable. The fact that the applicant went to the trouble of filing a human rights enforcement application on 23 September 2013 and gave an account of events in similar terms to that set out in her evidence, supports the truthfulness of the allegations.
7. I find that the applicant has proven on the balance of probabilities that the gist of her allegations is true. The respondents locked her out of her business premises on several occasions in the period from May 2012 to July 2013 and this was done as the respondents became impatient with her request to consider the draft tenancy agreement that she was asked to sign. On one occasion, which I find was in July 2012, the respondents came to the premises with two dogs and this put the applicant in a state of fear and anxiety. The purpose of bringing the dogs was to intimidate and harass the applicant. The respondents were responsible for locking the applicant in the premises on 15 June 2013 and this also caused her fear and anxiety. She has been locked out of the premises since 22 July 2013 and her equipment has been locked in.
3 HAS THE APPLICANT ESTABLISHED A CAUSE OF ACTION FOR BREACH OF HUMAN RIGHTS?
8. When the applicant filled out her Human Rights Enforcement Application form she ticked the following boxes, which indicated the human rights she alleged had been breached:
9. At the trial Ms Amoko focussed on the alleged breaches of Sections 32, 36 and 53. I agree with Mr Meten that even if the applicant's allegations of fact are sustained – and they have been – most of the alleged human rights breaches cannot be proven. Most, but not all. I consider that three human rights breaches have been established:
(a) protection from proscribed acts, including harsh or oppressive acts (Constitution, s 41(1));
(b) liberty of the person (Constitution, s 42(1));
(c) protection from unjust deprivation of property (Constitution, s 53(1)).
(a) Protection against proscribed acts
10. Section 41 of the Constitution 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.
11. Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts (Petrus and Gawi v Telikom PNG Ltd (2008) N3373; Joe Kape Meta v Kumono, Kulunio & The State (2012) N4958). Even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case:
12. Under Section 41(2) the burden of showing that another person has committed an act falling within one of the seven categories of acts proscribed by Section 41(1) is on the party alleging it. The applicant has discharged that burden in relation to all seven categories of proscribed acts by proving that the respondents engaged without justification in a course of conduct over a period of 18 months aimed at intimidating and harassing her over what should have been a simple and straightforward issue of sorting out a tenancy agreement.
(b) Liberty of the person
13. Section 42 of the Constitution confers the right of personal liberty on all persons in Papua New Guinea but provides that a person can be deprived of that right in certain circumstances. It is a qualified right. Section 42(1) states:
No person shall be deprived of his personal liberty except—
(a) in consequence of his unfitness to plead to a criminal charge; or
(b) in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or
(c) by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law; or
(d) upon reasonable suspicion of his having committed, or being about to commit, an offence; or
(e) for the purpose of bringing him before a court in execution of the order of a court; or
(f) for the purpose of preventing the introduction or spread of a disease or suspected disease, whether of humans, animals or plants, or for normal purposes of quarantine; or
(g) for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes; or
(h) in the case of a person who is, or is reasonably suspected of being of unsound mind, or addicted to drugs or alcohol, or a vagrant, for the purposes of—
(i) his care or treatment or the protection of the community, under an order of a court; or
(ii) taking prompt legal proceedings to obtain an order of a court of a type referred to in Subparagraph (i);
(i) in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare under the order of a court or with the consent of his guardian.
14. The occasion on which the respondents locked the applicant in the premises for a period of two hours falls into none of the exceptions permitted by Section 42(1). It was on that occasion that the respondents breached the applicant's right to personal liberty.
(c) Protection from unjust deprivation of liberty
15. Under Section 53(1) of the Constitution every person has the right to be protected against compulsory taking or acquisition of their property unless the taking or acquisition occurs in accordance with the requirements set out in other provisions of Section 53. Section 53(1) states:
Subject to Section 54 (special provision in relation to certain lands) and except as permitted by this section, possession may not be compulsorily taken of any property, and no interest in or right over property may be compulsorily acquired, except in accordance with an Organic Law or an Act of the Parliament, and unless—
(a) the property is required for—
(i) a public purpose; or
(ii) a reason that is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind, that is so declared and so described, for the purposes of this section, in an Organic Law or an Act of the Parliament; and
(b) the necessity for the taking of possession or acquisition for the attainment of that purpose or for that reason is such as to afford reasonable justification for the causing of any resultant hardship to any person affected.
16. The effect of the respondents' locking out the respondent and locking in her equipment (which falls within the meaning of "property" in Section 53) was to prevent her having access to it. This amounted to compulsory taking of the property in a way that is not permitted by Section 53. The respondents unjustly deprived the applicant of her property and breached her right under Section 53(1).
Conclusion as to cause of action
17. The applicant has established a cause of action under Section 57(1) of the Constitution for breach of her human rights conferred by Sections 41(1), 42(1) and 53(1) of the Constitution.
4 WHAT ORDERS SHOULD BE MADE?
18. As this trial was confined to the issue of liability, no assessment of damages will be made. The case will proceed to an assessment of damages or compensation at a separate trial. As to costs, 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) The application for enforcement of human rights is upheld.
(2) The applicant has established a cause of action for breach of human rights, in particular the rights in Sections 41(1), 42(1) and 53(1) of the Constitution, against the respondents.
(3) The question of assessment of damages shall be determined at a separate trial.
(4) The respondents shall pay the applicant's costs of the proceedings to date, on a party-party basis, which shall if not agreed be taxed.
Judgment accordingly.
__________________________________________________________
Public Solicitor: Lawyer for the Applicant
Meten Lawyers: Lawyers for the Respondents
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