N8171

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 8 OF 2019

JOSEPH KUPO
Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Waigani: Cannings J
2019: 1st, 29th November
2020: 30th January

HUMAN RIGHTS – application to removal from office of statutory office-holder – Constitution, Sections 36 (freedom from inhuman treatment); 37 (protection of the law);41 (proscribed acts); 48 (freedom of employment); 59 (principles of natural justice).

PRACTICE AND PROCEDURE – defences against civil claims –res judicata – whether a prior deed of release protects the defendant – whether statement of claim offends against the rule that evidence not be pleaded – whether proceedings time-barred. 

STATE SERVICES – Police Force – whether removal from office of Commissioner of Police effects removal from Police Force – status of decision of National Executive Council directing redeployment of person removed from office.

The plaintiff was appointed Commissioner of Police on 1 November 2001. He was removed from office on 12 September 2002. In the decision effecting his removal the National Executive Council directed that the plaintiff be redeployed in the Public Service within three months. On 12 December 2002 the plaintiff was removed from the payroll. He was not redeployed in the Public Service or the Police Force or in any other public office. On 13 December 2002 he commenced proceedings against the State, claiming damages for (a) unlawful removal from office (breach of contract) and (b) unlawful denial of livelihood for the period extending to the retirement age of 60 years. On 3 March 2003 he and the Solicitor-General (on behalf of the State) executed a deed of release under which the State agreed to pay him K2,676,687.71 as a compromise of claim (a). The State failed to pay all of that amount in a reasonable time, so the plaintiff in 2006 amended the statement of claim, to seek the balance owing. He obtained a default judgment on liability. A trial on assessment of damages resulted in a judgment in his favour on 5 January 2011 in the sum of K1,890,176.39, plus interest. Those amounts totalling K3,293,261.50 were paid to him by 2013. In early 2019 the plaintiff commenced fresh proceedings, as an application for enforcement of human rights, in respect of the State’s continuing failure to redeploy him in the Public Service or the Police Force or in some other public office. The plaintiff pleaded that the State had breached the direction of the National Executive Council that he be redeployed and breached his right to continued employment arising under the Police Act 1998 and the Constitution, and therefore breached his human rights under the Constitution, ss 36(freedom from inhuman treatment),37 (protection of the law), 41 (proscribed acts), 48(freedom of employment) and 59(principles of natural justice) and were liable in damages. The State denied liability, pleading that the proceedings ought to be entirely dismissed as the plaintiff’s claim was (1) contrary to the National Court Rules, Order 8, Rule 8; (2) prohibited by the terms of the 3 March 2003 deed of release; (3)res judicata (as his claims had been resolved by the 5 January 2011 order and he had been fully paid by 2013); (4) time-barred under the Frauds and Limitations Act 1988; and (5) without merit. A trial was conducted on the issue of liability.

Held:

(1)	The statement of claim pleaded some evidence and was in breach of Order 8, Rule 8 of the National Court Rules in some respects, but the want of compliance with the Rules was minor. The Order 8, Rule 8 defence failed. 

(2)	The deed of release was a compromise of only one cause of action in the proceedings in respect of which the deed was executed. The cause of action prosecuted in the present proceedings is separate and distinct from the cause of action compromised by the deed of release. The deed of release defence failed. 

(3)	The 5 January 2011 order of the National Court was a final determination of only one cause of action in the proceedings in which that order was made. The cause of action prosecuted in the present proceedings is separate and distinct from the cause of action determined by the 5 January 2011 order. The res judicata defence failed. 

(4)	As the plaintiff pleaded his case as a breach of human rights, there was no specific limitation period applicable under the Frauds and Limitations Act. However he was obliged to commence proceedings within a reasonable time, say three years, after the date on which the cause of action accrued. That date could reasonably be regarded as no later than 31 October 2014. Three years after that is 31 October 2017. The plaintiff did not commence these proceedings until 8 January 2019. He did not commence the proceedings within a reasonable time; and in all the circumstances, there was an abuse of process due to the multiplicity of proceedings. Though the pleaded limitations period defence failed, the proceedings were nonetheless dismissed as an abuse of process. 

(5)	In any event the plaintiff’s case was without merit as, although the Police Act is silent on the issue, it must be reasonably inferred that the effect of removal of a person from the office of Commissioner of Police is dismissal from the Police Force. The direction of the National Executive Council that the plaintiff be redeployed was not given under any law and must be regarded as a policy or administrative instruction, not capable of creating legally enforceable rights or obligations. 

(6)	The plaintiff failed to establish a cause of action for breach of human rights and the proceedings were entirely dismissed. The parties were ordered to pay their own costs. 

Cases cited

The following cases are cited in the judgment:

Bluewater International Ltd v Mumu (2019) SC1798
Keka v Yafaet (2018) SC1673
Mataio v August (2014) SC1361
Napanapa Landowners Association v Gaudi Logae (2016) SC1532
National Executive Council & Luke Lucas v Public Employees Association [1993] PNGLR 264
Ok Tedi Mining Ltd v Niugini Insurance Corporation [1988-89] PNGLR 425
Telikom (PNG) Ltd v ICCC & Digicel (PNG) Ltd (2008) SC906
Titi Christian v Rabbie Namaliu (1996) SC1583

APPLICATION

This was a trial on liability to determine the plaintiff’s claim for damages for breach of human rights.

J Kupo, the Plaintiff, in person
C Kuson, for the Defendant

30th January, 2020

1.     CANNINGS J: The plaintiff, Joseph Kupo, was appointed Commissioner of Police on 1 November 2001. He was removed from office on 12 September 2002. On 21 January 2019 he commenced the present proceedings against the State, in which he claims damages of more than K12 million for breaches of human rights arising from the failure of the State to redeploy him in the Public Service or in the Police Force. He claims that the State was obliged to redeploy him and pay him remuneration commensurate with a Commissioner of Police salary package until he reached the retirement age of 60 years, on 31 October 2014. That, in short, is the plaintiff’s case.

2.     Quite a bit has happened from 2002 to 2019. In the decision of 12 September 2002 that led to the plaintiff’s removal from office, the National Executive Council directed the Department of Personnel Management to, within three months,redeploy him in the Public Service “or other areas where his services may be required”. On 12 December 2002 the plaintiff was removed from the payroll. He has never at any time up to the time of this trial in late 2019 been redeployed in the Public Service or the Police Force or in any other public office. 

3.     On 13 December 2002 he commenced proceedings against the State, WS No 1634 of 2002, claiming damages, as pleaded in the statement of claim, for (a) unlawful removal from office (breach of contract) and (b) unlawful denial of livelihood for the period extending to the retirement age under the Police Act 1998, of 60 years. 

4.     On 3 March 2003 he and the Solicitor-General (on behalf of the State) executed a deed of release under which the State agreed to pay him K2,676,687.71 as a compromise of claim (a). 

5.     The State failed to pay all that amount in a reasonable time, so the plaintiff in 2006 amended the statement of claim, to seek the balance owing. He obtained default judgment on liability. A trial on assessment of damages was conducted by Justice Hartshorn and on 5 January 2011 his Honour ordered judgment in the sum of K1,890,176.39, plus interest(Joseph Kupo v The State (2011) N4285). 

6.     Those amounts totalling K3,293,261.50 were paid to the plaintiff by 2013. On or about 31 October 2014 the plaintiff attained the age of 60 years. 

7.     On 21 January 2019 the plaintiff commenced the present proceedings, as an application for enforcement of human rights. Upon being directed by the Court to file a statement of claim, he pleaded that the State had breached the direction of the National Executive Council that he be redeployed and breached his right of continued tenure as a member of the Police Force arising under the Police Act and the Constitution, and therefore breached his human rights under the following provisions of the Constitution:

•	s 36 (freedom from inhuman treatment); 

•	s 37 (protection of the law); 

•	s 41 (proscribed acts); 

•	s 48 (freedom of employment); and 

•	s 59 (principles of natural justice).

8.     The plaintiff seeks damages, including exemplary damages. The State denies liability, pleading that the proceedings ought to be entirely dismissed as the plaintiff’s claim is:

(1) contrary to the National Court Rules, Order 8, Rule 8; 

(2) prohibited by the terms of the 3 March 2003 deed of release; 

(3) res judicata (as his claims had been resolved by the 5 January 2011 order and he was fully paid by 2013); 

(4) time-barred under the Frauds and Limitations Act 1988; and 

(5) without merit. 

A trial has been conducted on the issue of liability.

ISSUES 

9.     I will first deal with the various defences, as the State argues that upholding any of them will result in dismissal of the proceedings. I will then deal with the substantive merits of the case. The issues are:

1.	Should the proceedings be dismissed under the National Court Rules, Order 8, Rule 8?

2.	Are the proceedings prohibited by the terms of the 3 March 2003 deed of release?

3.	Does the defence of res judicataapply? 

4.	Are the proceedings time-barred?

5.	Does the plaintiff’s case have merit? Has he proven breach of any human rights? 

1 	SHOULD THE PROCEEDINGS BE DISMISSED UNDER THE NATIONAL COURT RULES, ORDER 8, RULE 8?

10.     Order 8, Rule 8 (facts, not evidence) states:

(1)	A pleading of a party shall contain only a statement in a summary form of the material facts on which he relies, but, subject to these Rules, not the evidence by which those facts are to be proved.

(2)	Sub-rule (1) has effect subject to this Division and to Order 4 Division 2(originating process) and to Division 2 (particulars).

11.     The State argues that the plaintiff’s case should be entirely dismissed because of breach of this rule. I am not impressed. This is more of a gripe than a serious defence. It is true that the statement of claim pleads some evidence and is in breach of Order 8, Rule 8 of the National Court Rules in some respects, but the want of compliance with the Rules is minor. The statement of claim is convoluted and prolix but it ultimately pleads an identifiable cause of action. The breach of the Rules does not warrant dismissal of the proceedings. In any event, Order 8, Rule 8 does not provide for dismissal of proceedings. The defence based on it fails. 

2 	ARE THEPROCEEDINGS PROHIBITED BY THE TERMS OF THE 3 MARCH 2003 DEED OF RELEASE?

12.     No. The deed of release was drafted with sufficient clarity to make it clear that it was a compromise of only one cause of action (relating to breach of contract and unlawful removal from the office of Commissioner of Police) pleaded in WS 1634 of 2002. 

13.     The cause of action pleaded in the present proceedings is separate and distinct from the cause of action compromised by the deed of release. The deed of release defence fails. 

3 	DOES THE DEFENCE OF RES JUDICATA APPLY? 

14.     The State argues that the present proceedings are res judicata vis-à-vis the final order of Hartshorn J in WS 1634 of 2002 of 5 January 2011. It is settled law, according to a long line of Supreme Court authority including Titi Christian v Rabbie Namaliu (1996) SC1583 and Napanapa Landowners Association v Gaudi Logae (2016) SC1532, that for a case to be regarded as res judicata the following questions must be answered in the affirmative:

(i)	was the earlier decision a judicial decision?
(ii)	was the judicial decision pronounced?
(iii)	did the judicial tribunal have competent jurisdiction?
(iv)	was the judicial decision final?
(v)	did the judicial decision involve a determination of the same question?
(vi)	are the parties the same?  

15.     All except (v) are answered without contention in the affirmative. However, the 5 January 2011 order of Hartshorn J was a final determination of only one cause of action (relating to breach of contract and unlawful removal from the office of Commissioner of Police) in WS 1634 of 2002. The cause of action pleaded and prosecuted in the present proceedings is separate and distinct from the cause of action determined by the 5 January 2011 order. The res judicata defence fails. 

4 	ARE THE PROCEEDINGS TIME-BARRED? 

16.     The State argues that the proceedings are time-barred by Section 16(1) (limitation of actions in contract, tort, etc) of the Frauds and Limitations Act, which states:

Subject to Sections 17 and 18, 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.

17.     Ms Kuson pointed out in her submission for the State that the plaintiff has pleaded in his statement of claim that his cause of action accrued on 12 September 2002, the date of his removal from office as Commissioner of Police. So he should have commenced the proceedings by 12 September 2008. 18.     He didn’t commence them until 21 January 2019. So he was out of time by more than ten years. 

19.     I reject the State’s argument that s 16 applies as the plaintiff’s action is not founded on simple contract or tort or any other form of action covered by Section 16(1) of the Frauds and Limitations Act.The plaintiff’s case is based on alleged breaches of human rights. An application for enforcement of human rights is not caught by any of the statutory limitation periods in the Frauds and Limitations Act. 

Proceedings must be commenced within reasonable time

20.     However, as I pointed out in Asivo v Cocoa Board (2016) N6230, any plaintiff who proposes to commence civil proceedings has a duty to commence the proceedings within a reasonable time. This requirement is a reflection of the underlying law principles of natural justice and of the right of a defendant to the full protection of the law, which is conferred generally by Section 37(1) of the Constitution and specifically by Section 37(11) of the Constitution, which state: 

37(1): Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

37(11): A determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority prescribed by law or agreed upon by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time. [Emphasis added.]

21.      What was a reasonable time in the present case? I adopt the same approach I took in Asivo. In view of the inherent seriousness of an allegation that a person has breached another person’s human rights, I suggest that the standard limitation period of six years for many civil actions should be halved. As a rule of thumb, an application for enforcement of human rights should be commenced within three years after the date on which the cause of action accrued. 

22.      When did the cause of action accrue? I appreciate Ms Kuson’s point that the plaintiff has pleaded it to be 12 September 2002. However, I do not think he should be held to that date as the rest of the statement of claim makes it clear that in fact the cause of action being pleaded accrued on a date much later than that. 

23.     Reading the statement of claim as a whole, I have decided that the cause of action is most appropriately to be deemed to have commenced accruing on 13 December 2002 (as that is the date by which the plaintiff ought to have been redeployed according to the 12 September 2002 decision) and continued to accrue until 31 October 2014, the date on which the plaintiff attained the age of 60 years. Three years after that is 31 October 2017. The plaintiff did not commence these proceedings until 21 January 2019. He therefore did not commence the proceedings within a reasonable time.

Abuse of process

24.     What is the consequence of that finding? I consider that, in all the circumstances of this long-running saga, in which the plaintiff has commenced these proceedings (on 21 January 2019, 16 years after commencement of the earlier proceedings (WS 1634 of 2002, on 13 December 2002), and eight years after conclusion of the earlier proceedings (on 5 January 2011), this amounts to an abuse of process due to:

•	the prolongation of the plaintiff’s grievances;

•	the unreasonable delay in commencement of the present proceedings; and 

•	the plaintiff engaging in a multiplicity of proceedings. 

25.      On the last point, it needs to be emphasised that a plaintiff who commences a second set of proceedings to seek a remedy that could have been sought in earlier proceedings, which have been determined, will in the absence of a very good explanation, be adjudged to have engaged in a multiplicity of proceedings or conducted litigation in a piecemeal manner, and abused the processes of the Court (Ok Tedi Mining Ltd v Niugini Insurance Corporation [1988-89] PNGLR 425, National Executive Council & Luke Lucas v Public Employees Association [1993] PNGLR 264, Telikom (PNG) Ltd v ICCC & Digicel (PNG) Ltd (2008) SC906). 

26.     The plaintiff could have prosecuted his present claims as part of his first case. He actually pleaded the present case in the statement of claim in WS 1634 of 2002, but didn’t pursue it. No good explanation has been provided for pursuing his grievances in this piecemeal manner. 

Proceedings can be dismissed on Court’s own motion

27.     The abuse of process is clearly apparent, which means that the proceedings can be entirely dismissed under Order 12, Rule 40(1) of the National Court Rules, which states:

Where in any proceedings 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. [Emphasis added.]

28.     I have hesitated before making the decision to dismiss the proceedings as Order 12, Rule 40(1)(c) has not been expressly pleaded in the defence. However, the delay in commencement of the proceedings and the issue of multiplicity of proceedings have been alluded to in the defence, and have been raised by Mr Kuson in her submissions and the plaintiff has had the opportunity to respond to them. 

29.     I rely on the Court’spower to control proceedings and protect its processes against abuse. I can dismiss the proceedings on my own motion – without the issue being expressly raised by the defendant – as “it appears to the Court” that the proceedings are an abuse of the processes of the Court (Keka v Yafaet (2018) SC1673; Bluewater International Ltd v Mumu (2019) SC1798). 

30.    I take into account my obligation to ensure that the proceedings are conducted fairly.I must ensure that the plaintiff is not ambushed and that he has been given the opportunity to be heard on the issue on which I propose to dismiss the proceedings (Mataio v August (2014) SC1361). 

31.     I am satisfied that the plaintiff has been given the opportunity to be heard on whether the delay in commencement of the proceedings and the multiplicity of proceedings amount to an abuse of process and should result in dismissal of the proceedings. I see no unfairness in taking this course of action. I think it is in the interests of justice to do so. I will exercise the discretion of the Court under Order 12, Rule 40(1)(c) to dismiss the entire proceedings. 

Summary of issue 4

32.    Though I have rejected the specific defence raised under 16 of the Frauds and Limitations Act, the arguments raised by the State have led to a consideration of the delay in commencement of proceedings and the multiplicity of proceedings. Having considered those issues and been satisfied that the plaintiff had the opportunity to be heard on them, I will dismiss the proceedings as an abuse of process. 

5 	DOES THE PLAINTIFF’S CASE HAVE MERIT? HAS HE PROVEN BREACH OF ANY HUMAN RIGHTS? 

33.     This issue is now academic. However, I think that it will be useful if I comment on it. The plaintiff’s case is built on two fundamental propositions. First the plaintiff argues that the State had an obligation arising from the terms of the National Executive Council decision of 12 September 2002 to redeploy him in the Public Service or the Police Force or elsewhere in the public sector, and keep him gainfully employed on a remuneration package commensurate with that of the Commissioner of Police, in the period from 13 December 2002 to 31 October 2014 (the date on which he attained the age of 60 years). 

34.     Secondly, the plaintiff argues that though he was removed from the office of Commissioner of Police, he was not removed from the Police Force, of which he had been a member since 1976. He had the right to continued employment as a member of the Force under the Police Act and he had the right to proper and long-term remuneration as a former Commissioner of Police under s 223 (general provision for constitutional office-holders) of the Constitution.

35.     I consider both those propositions to be flawed. First, the National Executive Council decision on redeployment was not made under any law. It can only be regarded as a policy or administrative instruction, which is not capable of giving rise to legally enforceable rights or obligations. 

36.     Secondly, though the Police Act is silent on the issue, it must be reasonably inferred that the effect of removal of a person from the office of Commissioner of Police is dismissal from the Police Force. Although the office of Commissioner of Police is established by s 198 (Commissioner of Police) of the Constitution, it does not fall within the discrete class of public offices defined by s 221 (definitions) of the Constitution to be constitutional office-holders. Neither an incumbent nor a former Commissioner of Police obtains the protections and benefits (including guaranteed suitable further employment or retirement benefits) available to constitutional office-holders under s 223 of the Constitution. 

37.      As both of the propositions on which the plaintiff’s case of breach of human rights is based, are flawed, it follows and I find that:

•	he has not been tortured or subject to inhuman treatment for the purposes of s 36(freedom from inhuman treatment) of the Constitution; 

•	he has not been denied the full protection of the law under s 37 (protection of the law)of the Constitution;

•	he has not been the subject of harsh or oppressive action or any other proscribed action under s 41(1) (proscribed acts)of the Constitution; 

•	he has not been denied freedom of choice of employment under s 48 (freedom of employment) of the Constitution; and 

•	he has not been denied the right to be treated fairly under s 59 (principles of natural justice) of the Constitution.

CONCLUSION 

38.     The plaintiff’s case is dismissed for two reasons. First, the proceedings have been unreasonably delayed and the plaintiff has engaged in a multiplicity of proceedings, resulting in an abuse of process. Secondly, the substance of his case is without merit. 

39.      As to costs, as most of the defences raised by the State have failed, it is appropriate that the parties bear their own costs.

ORDER

(1)	The proceedings are entirely dismissed.

(2)	The parties shall bear their own costs of the entire proceedings.

(3)	The proceedings are thereby determined and the file is closed.

Judgment accordingly.
_______________________________________________________________
Solicitor-General:  Lawyer for the Defendant