N6396
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRC No. 13 OF 2015

PATRICK MOVE
Applicant

- V-

PROVINCIAL POLICE STATION COMMANDER,
POLICE PERSONNEL AND OFFICERS
First Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Kokopo:   Anis AJ
2016: 21 June & 31 August 

HUMAN RIGHTS  – questions of law - whether an applicant commencing a human right proceeding or an enforcement proceeding under section 57 and 58 of the Constitution is required to give a section 5 notice under the Claims By and Against the State Act 1996 - whether it is also necessary to name the tortfeasor - section 5 notice is a requirement - it is not necessary to put down the name of the tortfeasor or the name of the policeman who allegedly committed the breach - distinction between proceedings commenced under the Wrongs (Miscellaneous Provisions) Act and proceedings commenced to enforce constitutional rights discussed

Cases Cited:

Aquila Kunzie v. NCD Police Mobile Squad, Commissioner of Police and the Independent State of Papua New Guinea (2014) N5584
James G Koimo v. The State [1995] PNGLR 535 
Jonathan Paru v. The State (2012) N4572
Linda Kewakali v The State (2011) SC1091
Michael Wafi v. Edward Christian (2015) N6056
Mision Asiki Manasupe Zurenoc (2005) SC 797
Premdas v. The State [1979] PNGLR 329
The State v. Bafe Quati and Ors [1990] PNGLR 57

Counsel:

Mr J Gesling, for the Applicant
Ms E Takaboi, for the Respondents

RULING

31 August, 2016

1.	ANIS AJ:  On 21 June 2016, at the directions hearing of this matter, which was heard together with other human rights proceedings listed, a common legal question came to the Court's attention.  The primary question was this:  Whether a section 5 notice under the Claims By and Against the State Act 1996 (CBASA) was required for proceedings commenced before the Human Rights Court to enforce constitutional rights under the Constitution of Papua New Guinea.  The secondary question that followed was this:  Whether the applicant or similar applicants who commenced enforcement proceedings were required to put down the name of the tortfeasor(s) or the name of the policeman who allegedly committed the breach.

2.	Both counsels were unable to fully assist the Court at that time and it became apparent to the Court that the issues were important and required attention.  I directed parties to prepare submissions on the two issues and present them to the Court.  For various reasons, the applicant's counsel was unavailable on various occasions and the matter was adjourned several times.  Finally, on 1 July 2016, the Court heard submissions from the defendants.  The applicant's counsel was not available that morning.  The Court reserved its ruling and adjourned only to find out later that the matter was originally fixed for hearing at 1:30pm for that day.  The Court recalled the matter back at 1:30pm on the same day on 1 July 2016.  The applicant's counsel appeared.  The defendants' counsel on the other hand did not appear.

3.	The Court set aside its earlier order reserving its decision and re-opened the case to allow or receive submissions from the applicant.  The applicant's counsel however informed the Court that he was still not ready to present his client's written submission on the legal issues.

4.	The Court then issued the following directions:

(1)	The applicant to file his written submission before or by close of business on 8 July 2016.
(2)	The Court reserves its ruling thereafter to a date to be advised.
(3)	Time is abridged.

5.	The applicant filed its written submission on 8 July 2016.

6.	This is my ruling.

APPLICANT'S PROCEEDING

7.	The applicant filed a Human Rights Complaint (HRC) pursuant to Order 23 Rule 7(4) of the National Court Rules.

8.	The applicant filled in a Form 125 which is provided for under Order 23 of the National Court Rules, to commence proceedings in the National Court.  The HRC was filed on 22 May 2014.

ALLEGATION

9.	The applicant is a citizen.  He comes from Ralalar village in Kokopo, East New Britain Province.  He alleged that during the time when he was asked to attend the Kokopo Police Station to discuss a matter on 13 May 2014, he was locked-up in the police cell there without any reason or without being arrested.  He said he was locked up from 13 May 2014 which was on a Wednesday till Saturday 16 May 2014.  He said he was released later that day without being charged or without being granted bail by the police.  He said in total, he was locked-up in the police cell for 72 hours.

SOURCE

10.	Order 23 Rule 7(4) of the National Court Rules states and I read:

(4)	A complaint under Section 42(5) of the Constitution that a person is unlawfully or unreasonably detained may be made by filing a Complaint of Unlawful or Unreasonably Detention, in Form 125...

11.	Section 42(5) of the Constitution states and I read:

Rights of All Persons.
42.	Liberty of the person.
...

(5)	Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained—

(a)	the National Court or a Judge shall inquire into the complaint and order the person concerned to be brought before it or him; and
(b)	unless the Court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit.

SECTION 2 & 5 - CBASA

12.	For this purpose, I think section 2 of the CBASA is also relevant.  I will read both sections, that is, section 2 and 5 herein:

2.	Suits against the State.

(1)	A person making a claim against the State in contract or in tort may bring a suit against the State, in respect of the claim, in any court in which such a suit may be brought as between other persons.

(2)	The provisions of this Act apply to applications for the enforcement against the State of a right or freedom under Section 57 (Enforcement of guaranteed rights and freedoms) of the Constitution and for damages for infringement of a right or freedom under Section 58 (Compensation) of the Constitution.
...

5.	Notice of claims against the State.

(1)	No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this Section by the claimant to—

(a)	the Departmental Head of the Department responsible for justice matters; or
(b)	the Solicitor-General.

(2)	A notice under this Section shall be given—

(a)	within a period of six months after the occurrence out of which the claim arose; or
(b)	where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or
(c)	within such further period as—
(i)	the Principal Legal Adviser; or
(ii)	the court before which the action is instituted,
on sufficient cause being shown, allows.

(3)	A notice under Subsection (1) shall be given by—

(a)	personal service on an officer referred to in Subsection (1); or
(b)	leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).

(Underlining is mine)

TYPE OF PROCEEDING

13.	The applicant's proceeding constitutes enforcement of his constitutional right under section 42(5) of the Constitution, that is, "Liberty of the person".  The section begins with these words "No person shall be deprived of his personal liberty except.." and it sets out the various exceptions or qualifications therein.  Justice Cannings in the case of Jonathan Paru v. The State (2012) N4572 held and I read at paragraph 15 of his judgment, Section 42(5) is an enforcement provision that bolsters the constitutional right to personal liberty, the nature and extent of which is prescribed by Sections 42(1), (2) and (3).

14.	In the present case, the applicant is asking the Court to enforce his basic rights under section 57 of the Constitution, that is, against being unlawfully or unreasonably detained in custody by the police.  In doing so, he has filed a complaint under section 42(5) of the Constitution or more precisely under Order 23 Rule 7(4) of the National Court Rules.  

15.	Let me remind myself of the purpose for creating the Human Rights Court or should I say for creating Order 23 of the National Court Rules.  The purpose is expressly stated therein under sub-rule 2.  It states and I read:

The purpose of these Rules is to facilitate a quick and just resolution of court proceedings instituted under Section 57 and 58 of the Constitution for enforcement of the Basic Rights (also known as "Human Rights") and for enforcement under Section 23 of the Constitution of prohibitions, restrictions or duties imposed by the Constitutional Laws and of related matters.

16.	In my opinion, an applicant could utilise Order 23 in two ways.  The applicant could apply to enforce his or her constitutional rights under section 57 and also claim damages under section 58 of the Constitution, or he or she could only apply under section 57 to enforce his or her constitutional rights.  The actual modes of commencement of proceedings are covered under Rule 7 of Order 23 of the National Court Rules, and an applicant may choose one that suits him or her.

17.	I note that the applicant herein chose to enforce his constitutional rights under section 57 of the Constitution without also invoking section 58.

IS THE APPLICANT REQUIRED TO GIVE A SECTION 5 NOTICE?

18.	The only place to look to it seems, to find out whether the applicant is required to give a section 5 notice would be the CBASA.

19.	Let me begin by considering section 2(2) therein.  It states and I read:

(2)	The provisions of this Act apply to applications for the enforcement against the State of a right or freedom under Section 57 (Enforcement of guaranteed rights and freedoms) of the Constitution and for damages for infringement of a right or freedom under Section 58 (Compensation) of the Constitution.

20.	What this section simply means is that applicants like the applicant herein who intend to commence enforcement proceedings under section 57 of the Constitution must observe the CBASA.  To put it simply, proceedings commenced under Order 23 of the National Court Rules are subject to the provisions of the CBASA.

21.	Section 5 of the CBASA simply states that and I read in part No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this Section by the claimant..  In summary, a claimant is required to give six (6) months notice to the State of his or her intention to sue the State.  The provision sets out the processes for giving such a notice to the State and I note that I have already set them out above in my judgment. 

22.	The case law is settled on point and I need not refer to them all.  The Supreme Court in the case of Mision Asiki Manasupe Zurenoc (2005) SC 797 held on point and I read:

We agree with Injia DCJ’s reasoning in Punangi v Brown, adopt it for the purposes of the present case and find that:

•	the notice requirements of the Claims By and Against the State Act apply only to actions that are founded on contract or tort or a breach of constitutional rights;

(Underlining is mine)

23.	I note that both parties herein have referred to the Supreme Court case of Mision Asiki Manasupe Zurenoc (supra) in their submissions.  Their submissions are similar.  In summary, they say section 5 notice is required herein.

24.	I uphold the parties' submissions on point.  Therefore, in the present case, the applicant, who is enforcing his constitutional rights under section 42(5) of the Constitution, is required to give a section 5 notice under the CBASA.

NAMING TORTFEASOR(S)

25.	I note that the parties have not covered the said issue in their submissions file herein.  Nevertheless, I will address that because it is consistent with this Court's directions.

26.	I firstly note that the source for claims for breaches and damages for enforcement of constitutional rights is derived from sections 57 and 58 of the Constitution.  I think it is important to clarify proceedings that are commenced under section 57 and 58 of the Constitution from proceedings that are commenced under the common law or under the Wrongs (Miscellaneous Provisions) Act Chapter No 297.  Case law states that it is not necessary to name tortfeasors in proceedings commenced to enforce constitutional rights under sections 57 and 58 of the Constitution.  I refer to the case of Aquila Kunzie v. NCD Police Mobile Squad, Commissioner of Police and the State (2014) N5584 [see also the case of Michael Wafi v. Edward Christian (2015) N6056].  Justice Cannings held and I read:

(3)	Though it is desirable it is not necessary in proceedings for enforcement of human rights under Section 57 of the Constitution that are based on alleged human rights violations committed by members of the Police Force, to name and identify the particular member of the Police Force in the originating process and the pleadings and in evidence. The strict rules as to identification of members of the Police Force that have been developed by the Courts are restricted in their application to proceedings in which the cause of action is a tort (as distinct from breach of a human right) and it is necessary to have regard to the Wrongs (Miscellaneous Provisions) Act in order to determine whether the State is vicariously liable.

27.	His Honour referred to the Supreme Court case of Linda Kewakali v The State (2011) SC1091 and to the long line of established case law that states that one must name the tortfeasor or joint-tortfeasors to establish vicarious liability against the State.  His Honour disagreed that the Supreme Court case of Linda Kewakali v The State (supra) was applicable and he drew the distinction therein and I read:

11.     Kewakali is a fairly recent decision and it is consistent with the approach taken in a number of National Court decisions, which have followed the approach of Injia J as he then was in Dalin More v The State (1998) N1736, a case in which the plaintiff proved that she had been raped by two policemen on Police duty but was denied relief as she did not name them as defendants and could not identify them in her evidence.

12.     I always have had difficulty with that approach and I have explained out why, in cases such as William Pattits v The State (2006) N3088, Vincent Kerry v The State (2007) N3127 and Meronas Songkae v Inspector Tony Wagambie Jnr (2012) N4807. I cannot see the justice in refusing relief to an innocent plaintiff who is the victim of Police brutality or some other sort of wrong committed by an employee of the State simply because the plaintiff cannot identify by name the State employee who committed the wrong.

13.     I am bound by the Supreme Court’s decision in Kewakali but I find that it has no application to the present case. I distinguish it as the plaintiff in that case was bringing a common law claim, based on the law of tort, and the Court’s insistence that she be able to identify and name the specific wrongdoers was based on the need to comply with the vicarious liability provisions of the Wrongs (Miscellaneous Provisions) Act.

14.     In the present case the causes of action being prosecuted are not torts but breaches of human rights (or Basic Rights). The National Court has a broad power vested in it directly under Sections 57(3) and 58 of the Constitution to make all such orders and declarations as are necessary and appropriate for the purposes of protecting and enforcing human rights and to compensate persons whose human rights have been infringed. The Constitution does not impose the sorts of limitations that have been developed in relation to common law claims.

...

17.     The inability and failure of the plaintiff to name and identify the members of the Police Force who he alleges were actually responsible for breaching his human therefore does not provide a good reason for summarily dismissing his claim. He still has to prove the factual allegations, however, and he still has to prove that his human rights were actually breached.

(Underlining is mine)

28.	Now there is an earlier National Court decision by Justice Injia as he then was, which I think is directly relevant.  I am referring to the case of James G Koimo v. The State [1995] PNGLR 535.  I note that His Honour Justice Cannings did not refer to that case in his decision in Aquila Kunzie v. NCD Police Mobile Squad, Commissioner of Police and the State (supra).  In my opinion, the Court's decision in James G Koimo v. The State (supra) does not just support the case of Aquila Kunzie v. NCD Police Mobile Squad, Commissioner of Police and the State (supra) but it provides a better understanding or appreciation on a number of things such as:

(i)	the National Court's power and its extent as derived under sections 57 and 58 of the Constitution (see also cases: Premdas v. The State [1979] PNGLR 329; State v. Bafe Quati and Ors [1990] PNGLR 57);
(ii)	the issue of vicarious liability and how it may be construed or applied to, in enforcement proceedings cases under sections 57 and 58 of the Constitution; and
(iii)	creating ad hoc rules to address practice and procedural issues in relation to enforcement proceedings commenced under sections 57 and 58 of the Constitution.

29.	I read from the decision of Justice Injia as he then was where he said:

The National Court has wide powers to enforce constitutional rights: Constitution ss 57 and s 58 (2). The National Court is also empowered by s 185 to make ad hoc rules of practice and procedure where there are no rules of practice and procedure in cases where enforcement of constitutional rights are involved: State v Quati [1990] PNGLR 57. Also see Re Conditions at Buimo Corrective Institution [1988-89] PNGLR 266. I would formulate the following ad hoc rules and related principles in relation to proof of claims for damages on constitutional infringement generally and, in particular, exemplary damages:

1.	The plaintiff bears the evidentiary burden of establishing a prima facie case of proving the infringement of the constitutional right.

2.	The standard of proof is on the balance of probabilities. In cases where actions of policemen are involved, the plaintiff merely has to produce some credible evidence of the infringement of the constitutional right and, where exemplary damages are sought, that the actions of the policemen were "oppressive, arbitrary, or unconstitutional", such that a punitive award of damages is justified. It is not necessary for the plaintiff to show that the police raid was officially sanctioned, directed, approbated, or conducted in pursuance of an official policy of the Police Department or the State. The reason for this is simple. How will ordinary village people be expected to know the scheme or policy and operational system of the police force to be able to give evidence about it? The nature of police work is confidential and secretive.

Almost all village raids involving large number of policemen are planned from the top police hierarchy down, in secret, and carried out without warning. The identity of individual policemen is hardly known to ordinary village people. In many cases, policemen do not co-operate with village people in disclosing information regarding their operations, as was the situation in the instant case. Therefore, the ordinary village people cannot be able to sue the individual policemen. That is why the evidentiary burden is one of merely establishing a prima facie case.

(Underlining is mine)

30.	The Court in James G Koimo v. The State (supra) has clarified, in my view, the second issue herein, which is, whether it was mandatory for an applicant to name a tortfeasor in proceedings commenced under sections 57 and 58 of the Constitution.  In summary and taking into account the two (2) ad hoc rules and principles held by the Court in the case of James G Koimo v. The State (supra), it is my opinion that it is not necessary to actually name the tortfeasor(s) in proceedings commenced under section 57 and 58 of the Constitution or in proceedings that are commenced under Order 23 of the National Court Rules.  I would adopt and apply the principles and reasons as held above by the Court in the case of James G Koimo v. The State (supra) herein.

31.	I note that the National Court's findings in the case of James G Koimo v. The State (supra) and its subsequent findings in the case of Aquila Kunzie v. NCD Police Mobile Squad, Commissioner of Police and the State (supra) are consistent on point or in regard to the second issue herein.

32.	I will adopt and follow these two case authorities to make my findings accordingly in relation to the two (2) legal issues raised by this Court.

SUMMARY

33.	Let me summarise my findings as follows:

(i)	I find that the applicant is required to and must give a section 5 notice under the CBASA.  

(ii)	I find that although desirable, it is not necessary for the applicant to put down the name of the policeman that allegedly detained him or that allegedly breached his constitutional rights under section 42(5) of the Constitution.

WAY FORWARD

34.	I will list this matter together with the other related human rights matters, back onto the Civil Court track list.  With this ruling, the Court will shortly conduct a directions hearing on all the human rights matters to ascertain their status.

ORDERS OF THE COURT

I make the following orders:

1.	The applicant is required to give a section 5 notice under the Claims By and Against the State Act of 1996.

2.	The applicant is not required to put down the name(s) of the individual policeman who was alleged to have breached his constitutional right pursuant to section 42(5) of the Constitution.

3.	The matter is set down for Directions Hearing at 1:30pm on 5 September 2016.

4.	Time is abridged.

________________________________________________________________
Promised Inheritances Consultancy
Legal Services:					Lawyer for the Applicant
Office of the Solicitor-General:			Lawyer for the Respondents