N8260
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 96 OF 2019

JEANETTE KORNET
Plaintiff

V

DOMINIC SUMALA
First Defendant

JEFFREY SIMEWA, OIC, NCD BARRACKS
Second Defendant

BRYAN PANNIE, OIC, GAMES VILLAGE BARRACKS
Third Defendant

GARI BAKI, COMMISSIONER OF POLICE
Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Cannings J
2019: 19th, 29th August, 12th November, 20th December
2020:  8th April

HUMAN RIGHTS –decision of Commissioner of Police to evict plaintiff officer from police barracks – complaints against plaintiff of noise pollution, unruly behaviour, threats of violence against neighbour – alleged breach of human rights by Commissioner – right to full protection of law, Constitution, s 37 – proscribed acts, Constitution, s 41 – principles of natural justice, Constitution, s 59. 

REMEDIES –whether plaintiff who commences proceedings by filing human rights enforcement application may only be granted relief expressly sought – Constitution, ss 57(3), 155(4) – power of Court to grant remedies. 

The plaintiff was a long-serving civilian officer of the Department of Police,authorised to live with her family in a police barracks. After living there for ten years, she was given a copy of a minute from the Commissioner of Police (the fourth defendant) addressed to the Deputy Commissioner (Administration), requiring her eviction forthwith, due to ‘numerous complaints from the public and police members regarding her children’. There had in the preceding three years been a series of conflicts between the plaintiff and her neighbour, the first defendant, who complained to the officers responsible for administration of the barracks, the second and third defendants. Those officers formed the opinion that the plaintiff was at fault and should be evicted. It was apparently on their recommendation that the Commissioner decided that the plaintiff be evicted. The day after she received a copy of the Commissioner’s minute, an eviction exercise was commenced and the plaintiff commenced the current proceedings, an application for enforcement of human rights. The Court granted an interim injunction to restrain her eviction and the matter proceeded to trial. The plaintiff argued that the defendants failed to comply with the principles of natural justice and consequently her human rights were breached. The defendants denied all allegations of human rights breaches and argued that the plaintiff was guilty of flagrant breaches of the standing orders for the barracks and that the proceedings should be dismissed and that the Commissioner’s decision on her eviction should be given immediate effect. 

Held:

(1)	The plaintiff was a long-term resident of the barracks and a long-serving officer, and was entitled, if it were proposed to evict her, to natural justice under s 59 of the Constitution. Those making decisions regarding her accommodation had to act fairly and be seen to act fairly.

(2)	The second, third and fourth defendants failed to act fairly in dealing with the plaintiff in that: the plaintiff was not given formal notice of the first defendant’s complaints or the allegation that she was in breach of the standing orders; (b) there was no impartial or thorough investigation of the complaints; (c) there was no hearing or determination of the complaints or allegations by any impartial and independent decision-maker; (d) she was given no right to be heard; (e) no formal finding of breach of the standing orders was made by any of the defendants; (f) the Commissioner’s decision that the plaintiff’s housing privileges are “hereby forfeited” and that she was to be “evicted forthwith” was made arbitrarily; (g) no formal or direct eviction notice was given to the plaintiff; (h) the plaintiff was given only 24 hours’ notice of her eviction. 

(3)	The second, third and fourth defendants failed to afford the first plaintiff the full protection of the law under s 37(1) of the Constitution and dealt with her in a manner that was harsh and oppressive and not warranted by the particular circumstances of her particular case contrary to ss41(1)(a) and (b) of the Constitution.

(4)	Declared and ordered under ss 57(3) and 155(4) of theConstitution that: the defendants breached the human rights of the plaintiff; the decision that the plaintiff be evicted is null and void and quashed; any further decisions regarding the plaintiff’s accommodation shall be made in accordance with the principles of natural justice; the defendants shall deal with any further conflicts in accordance with the principles of natural justice and mediation; the plaintiff and the first defendant shall preserve the peace of the Barracks; the parties bear their own costs; the proceedings are thereby determined. 

Cases Cited

The following cases are cited in the judgment:

Abaina Emos v Dr Sebastian Bagrie & Madang Teachers College (2020) N8166
Boson Wilson v Joseph Kekeya & Divine Word University (2018) N7613
Constitutional Reference No 1 of 1977 Re Effect of non-compliance with Section 42(2) of the Constitution [1977] PNGLR 362
Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598
Morobe Provincial Government v John Kameku (2012) SC1164
Petrus and Gawi v Telikom PNG Ltd (2008) N3373
SC Ref No 1 of 1993 Re Section 365 of the Income Tax Act (1995) SC482
The State v Mana Turi [1986] PNGLR 221

APPLICATION

This was an application for enforcement of human rights.

Counsel

J Kambao, for the Plaintiff
T Mileng, for the Defendants

8th April, 2020

1.      CANNINGS J: The plaintiff, Jeanette Kornet, has been a civilian officer of the Department of Police since December 1975. She presently works in the Human Resources Development Directorate. She is aged in her early 60s. She is a widow. She has eight children, some of them adults. She has been living with her family at house #38 at the Games Village Police Barracks, National Capital District, since 2008in accordance with a decision of a Police Housing Allocation Committee. On 27 March 2019 she was given a copy of a minute from the Commissioner of Police (the fourth defendant) addressed to the Deputy Commissioner (Administration), requiring her eviction forthwith, due to ‘numerous complaints from the public and police members regarding her children’.

2.     The next day, 28 March 2019, an eviction exercise commenced. Various members of the Police Force arrived at house #38 and forcibly removed the plaintiff’s goods and chattels from the house. The plaintiff filed a human rights enforcement application later that day, and the National Court on the same day granted an interim injunction to restrain her eviction. The injunction remains in place pending the outcome of this trial of the application, in which the plaintiff seeks a permanent injunction to restrain her eviction.

3.     The Commissioner’s decision to evict the plaintiff was made after a series of incidents and complaints emanating from conflicts between the plaintiffand her next-door neighbour, Sergeant Dominic Sumala (the first defendant), who has occupied house #39 since 2012. A number of complaints were lodged by the first defendant with officers responsible for administration of the barracks, Chief Sergeant Jeffrey Simewa, the officer-in-charge of all NCD police barracks (the second defendant) and Chief Sergeant Bryan Pannie, the OIC of the Games Village Barracks (the third defendant). Those senior officers, principally the third defendant, formed the opinion that the plaintiff and her adult sons were at fault and should be evicted. 

4.     The plaintiff’s grievance is that in the numerous neighbourly conflicts that have arisen, it is the first defendant who has been at fault, not her or her sons. Her principal legal argument is that the defendants failed to comply with the principles of natural justice and consequently her human rights were breached in two respects: she was denied the full protection of the law under s 37(1) of the Constitution and dealt with harshly and oppressively contrary to s 41(1) of the Constitution. 

5.      The defendants deny all allegations of breaches of human rights. They argue that the plaintiff was guilty of flagrant breaches of the standing orders and standards of behaviour of all residents of the barracks and that all relief sought by the plaintiff should be refused, the proceedings should be dismissed, the injunction should be dissolved and the Commissioner’s decision should be given immediate effect. 

6.     The following issues arise: 

(1)	What were the complaints against the plaintiff and how were they dealt with?

(2)	Was there any breach of the plaintiff’s human rights?

(3)	What orders should the court make? 

1	WHAT WERE THE COMPLAINTS AGAINST THE PLAINTIFF AND HOW WERE THEY DEALT WITH?

Plaintiff’s evidence

7.     The plaintiff and several of her adult sons gave oral testimony and were subject to cross-examination. They conceded that sometimes alcohol was consumed on the premises and music was played, but stressed that alcohol was consumed in moderation and music was not played loudly. It was the first defendant, with his bad attitude, who was creating problems in the neighbourhood, not them. This version of events is supported in an affidavit by Chief Sergeant Purai Poiou, the 2IC of NCD Barracks administration, himself a resident of the Games Village Barracks. He deposes that the ongoing conflict between the plaintiff and the first defendant has been poorly managed and allowed to get out of hand due to a failure on the part of others to properly investigate complaints and to follow the chain of command, which resulted in the issue being referred unnecessarily to the Commissioner and the plaintiff being evicted unfairly. 

8.     The plaintiff gave evidence and did not deny that there had been several incidents of conflict with the first defendant over the years. However, she denied that it was always her sons who caused the incidents. She is able to control her sons and has educated them on the need to show respect for all their neighbours. The first defendant often comes home drunk and disturbs the peace of the community and fights with his wife. 

Defendants’ evidence 

9.     The first, second and third defendants gave oral testimony and were subject to cross-examination, as was the first defendant’s wife. The first defendant said he complained about the behaviour of the plaintiff and her adult sons to the second and third defendants on a number of occasions in the period from 2016 to 2019. He and his wife and children were the subject of numerous threats and intimidation, which were made in response to his reasonable requests for the plaintiff to adhere to the standing orders for the Barracks, which require residents to preserve the peace and quiet of the Barracks and constrain the consumption of alcohol. 

10.     he first defendant gave evidence of numerous incidents in which the plaintiff’s house has been used as the venue for noisy drinking parties involving the plaintiff’s adult sons and their friends. Whenever he approached them to ask them to lower the volume, he would be met with abuse. His evidence was corroborated by his wife, who said that her young children had difficulty sleeping because of the noise, as their house is only five metres from the plaintiff’s house. Whenever her husband went near their house to ask them to reduce the noise, they would abuse him and want to fight.

11.     The first defendant gave evidence of an incident of 20 August 2016 when the plaintiff’s son, Police Constable Kornet Ogera, shouted at the first defendant and threatened to rape his wife and kill his family by sorcery. The first defendant testified that he was the target of the plaintiff’s son’s rage as he (the first defendant) was the only member of the Barracks community willing to stand up to the plaintiff’s sons, who are widely regarded as rebellious and disrespectful troublemakers. 

12.     The second defendant, Chief Sergeant Jeffrey Simewa, is OIC of all police barracks in the National Capital District. He has been aware of the problems at the Games Village Barracks. There were numerous complaints received as to the conduct of the plaintiff’s sons. 

13.     The third defendant, Chief Sergeant Bryan Pannie, has been the OIC of the Games Village Barracks since 2011. Though he does not live there himself (he resides at Tasion Barracks) he is directly responsible for discipline and order at the Games Village Barracks. He gave evidence of numerous complaints against the plaintiff and her adult sons, going back to 2014. He gave the plaintiff a number of warnings but the plaintiff did not heed them. She was consistently in breach of the standing orders. She is a civilian officer who should not be residing in the barracks. She has abused the privilege allowed to her. She never apologised for the unruly behaviour of her sons, which continued, despite the warnings, over a long period. The third defendant gave evidence that the incident of 20 August 2016 was very serious and resulted in Constable Ogera being administratively charged. There was also an attempt to conduct a mediation, which was unsuccessful. 

Findings of fact

14.     There have been many incidents of conflict between the plaintiff and the first defendant, particularly in the period from 2016 to 2019. These incidents have resulted from the first defendant’s attempts to ask the plaintiff or her sons to lower the noise created by playing of music and social gatherings at the plaintiff’s house. The first defendant has become frustrated by the reception he receives and this has resulted in him complaining to the third defendant, who it seems, has made informal attempts to resolve the complaints and the conflict.

15.     However it is clear that no formal and systematic attempt has been made to resolve any of the conflicts. No formal record of the complaints has been made. No written warnings have been given to the plaintiff. No written notice was given to the plaintiff that she was at risk of being evicted prior to her being given on 27 March 2019 the minute from the Commissioner of Police (the fourth defendant), addressed to the Deputy Commissioner (Administration) dated 12 March 2019, expressed in the following terms:

SUBJECT 	DISTURBANCES AT GAMES VILLAGE (BARRACKS) BY CHILDREN OF CIVILIAN STAFF JANET KORNET

Refer NCD OB entry 2170/19 of 11th March 2019.

There has been numerous complaints from the public and police members living at Games Barracks regarding the children of civilian staff member Janet Kornet. Her housing privileges are hereby forfeited.

Have her evicted forthwith from the police house at the Games Village barracks.

Gari L Baki, CBE, CStJ, DPS, QPM
Commissioner of Police

12 March 2019

cc 	Deputy Commissioner Operations
	Assistant Commissioner Human Resources
	FAS Finance & Administration
	Metropolitan Superintendent NCD

16.     The lack of a formal or systematic approach to managing the conflicts between the plaintiff and the first defendant was alluded to in a minute from Acting Deputy Commissioner and Chief of Operations David Manning (the present Commissioner) addressed to the ACP Human Resources, dated 19 July 2019, expressed in the following terms:

SUBJECT 	UNPROFESSIONAL AND CRIMINAL CONDUCT BY CONSTABLE [SIC] DOMINIC SUMALA

Whilst complaint bearing above caption was laid at the Internal Affairs Directorate, there seems to exist a prolonged conflict between the staffs of the Human Resource Division, Senior Constable Dominic Sumala of Manpower Section and Janet Kornet at Human Resource Development. 

The Barracks authorities as I understand are dysfunctional especially in NCD Barracks to control, manage and resolve such issues, the conflict remains outstanding. 

Criminal and administrative discipline should be the last resort but all other avenues must be exhausted.

I suggest that the Human Resources Division Hierarchy must intervene to call the parties together and try to resolve their differences. 

For your attention please.

David Manning, MBE, DPS, QPM
Acting Deputy Commissioner of Police
Chief of Operations 

19July 2019

cc 	Acting DCP Administration
Divisional Commander NCD/Central
	MetSupt NCD
	Director Human Resource Management
	Director Human Resource Development 

2	WAS THERE ANY BREACH OF HUMAN RIGHTS?

17.      Mr Mileng for the defendants submitted that the plaintiff was at fault as she had failed over a long period to control her sons’ unruly behaviour and was in flagrant breach of the standing orders controlling the conduct of the barracks residents. 

18.      I agree that there was a case to be made that the plaintiff was at fault, but that does not mean that she could lawfully be the subject of an arbitrary decision-making process without the need to apply minimum standards of procedural fairness. Much was at stake here. A decision was being mooted that would affect the plaintiff and her family in a very significant, physical and emotional way. Such decisions must be made in a careful and methodical way and only after giving the person affected a right to be heard (Boson Wilson v Joseph Kekeya & Divine Word University (2018) N7613, Abaina Emos v Dr Sebastian Bagrie & Madang Teachers College (2020) N8166). 

19.     I uphold the submissions of Ms Kambao that the plaintiff, as a long-term resident of the barracks and a long-serving officer of the Department of Police who had been allocated official accommodation in accordance with a decision of a housing allocation committee, was entitled to protection of the principles of natural justice under s 59 of the Constitution if it were proposed to evict her, especially if she was to be evicted ‘for cause’, ie for doing something wrong or breaching some law or code of behaviour (such as the standing orders for the Barracks). Section 59 states:

(1)	Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2)	The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

20.      Those making decisions regarding her accommodation had to act fairly and be seen to act fairly.I find that the second, third and fourth defendants failed to act procedurally fairly in dealing with the plaintiff in that: 

(a)	the plaintiff was not given formal notice of the first defendant’s complaints or the allegation that she was in breach of the standing orders; 

(b)	there was no impartial or thorough investigation of the complaints; 

(c)	there was no hearing or determination of the complaints or allegations by any impartial and independent decision-maker; 

(d)	she was given no right to be heard on the question of whether she was in breach of the standing orders and the separate question, if she was in breach, whether she ought to be evicted; 

(e)	no formal finding of breach of the standing orders was made by any of the defendants; 

(f)	the Commissioner’s decision of 12 March 2019 that the plaintiff’s housing privileges are “hereby forfeited” and that she was to be “evicted forthwith” was made arbitrarily;

(g)	no formal or direct eviction notice was given to the plaintiff as she was only given a copy of the Commissioner’s minute of 12 March 2019, which was not addressed to her; and 

(h)	the plaintiff was given only 24 hours’ notice of her eviction, which in itself was harsh and oppressive. 

21.     The second and third defendants and in particular, the fourth defendant, also failed in their duty under s 59 of the Constitutionto be seen to act fairly. These findings of the Court have immediate consequences under two other human rights provisions of the Constitution: s 37(1) (protection of the law) and s 41(1) (proscribed acts). 

22.     Section 37(1) states: 

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.

23.      Section 37 applies in all situations in which a person in authority, exercises power in relation to the rights or interests of others. Those exercising public power, of a legislative, executive or judicial nature, are duty-bound to ensure that the person whose rights or interests are affected, is given the full protection of the law. The duty exists in all situations and is not limited to cases in which the person, whose rights or interests are affected, is in custody or charged with an offenceConstitutional Reference No 1 of 1977 Re Non-compliance with Section 42(2) of the Constitution[1977] PNGLR 362, University of Papua New Guinea v Uma More [1985] PNGLR 48, The State v Mana Turi [1986] PNGLR 221, SC Ref No 1 of 1993Re Section 365 of the Income Tax Act (1995) SC482).

24.      Section 41(1) states: 

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.

25.      Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts (Morobe Provincial Government v John Kameku (2012) SC1164, Petrus and Gawi v Telikom PNG Ltd (2008) N3373; Joe Kape Meta v Kumono, Kulunio &The State (2012) N4598). 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:

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

26.     Under s 41(2) the burden of showing that another person has committed an act falling within one of the seven categories of acts proscribed by s 41(1) is on the party alleging it. 

27.      I find that the plaintiff has discharged that burden. It has been proven that the Commissioner, by failing to adhere to the principles of natural justice, infringed the plaintiff’s human rights by: 

•	failing to afford to her the full protection of the law under s 37(1) of the Constitution; and 

•	acting in a manner that was harsh and oppressive and not warranted by the particular circumstances of the particular case contrary to ss 41(1)(a) and (b) of the Constitution.

3	WHAT ORDERS SHOULD THE COURT MAKE?

28.    The plaintiff seeks a declaration that her human rights have been breached and a permanent injunction to restrain the defendants from evicting her. This relief is sought in Ms Kambao’s submissions, but there is no formal court process to that effect. Theproceedings were commenced by the plaintiff herself without legal assistance by filing a human rights enforcement application form (in accordance with Order 23, Rule 7(1)(c) and Form 124 of the National Court Rules). That was the originating process. The Public Solicitor assisted the plaintiff soon afterwards, which have been progressed without the court requiring the plaintiff to file a statement of claim or other document such as a notice of motion, pleading the relief being sought. Does that mean that the court is constrained in what orders it can make? There is a view in some quarters that parties are only eligible for relief that they formally seek. Or even that the Court should not, and even cannot, make orders that are not sought. Such approaches fail in my view to give effect to, and actually undermine, two powerful and illuminating remedial provisions of the Constitution: s57(3) (enforcement of guaranteed rights and freedoms) and s 155(4).

29.     Section 57(3) states: 

A court that has jurisdiction under Subsection (1) [Supreme Court or National Court] may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

30.     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.

31.     I have no difficulty, despite the absence of formality in the prayer for relief,making declarations that the plaintiff’s human rights were breached by the defendants. However, it is neither necessary nor appropriate to issue a permanent injunction. 

32.      The plaintiff has no right to permanent occupation of the barracks, which is best regarded as a privilege conferred on her as a reflection of her status as a very long-term officer of the Department of Police. It is better that the Court makes an order that will guide and educate all parties as to how they should act in future, if similar conflicts between neighbours or other residents arise. I consider it appropriate to draft a special sort of order, to enforce the human rights of the plaintiff, and that such an order is necessary to do justice in the circumstances of this case.

33.     All persons, however strong the case against them appears to be, must be treated fairly and with respect and with dignity. Eviction of a person from their employer-provided accommodation is an immensely significant decision for any person in a position of authority to make. Such decisions must be made fairly, and the decision-maker must be seen to act fairly. The full protection of the law must be made available to those affected. Decisions of this nature must not be made harshly or oppressively.

34.     The plaintiff and the first defendant must be encouraged to settle their differences and live together in harmony. If that proves an impossible task, those in authority must still make their decisions in a way that meets the human rights requirements of the Constitution. 

ORDER 

35.     It is declared and ordered under ss 57(3) and 155(4) of the Constitution that: 

(1)	The second, third and fourth defendants, in recommending and/or deciding that the plaintiff be evicted from her residential accommodation at Games Village Police Barracks, National Capital District, breached the human rights of the plaintiff by failing to adhere to the principles of natural justice enshrined in s 59 of the Constitution and thereby failing to afford her the full protection of the law under s 37(1) of the Constitution and dealing with her in a manner that was harsh and oppressive and not warranted by the particular circumstances of her particular case contrary to ss41(1)(a) and (b) of the Constitution.

(2)	The decision of the fourth defendant that the plaintiff be evicted from her residential accommodation at Games Village Police Barracks, National Capital District, recorded in the minute dated 12 March 2019, was an unlawful act for the purposes of s 41(1)(a) and (b) of the Constitution, and is null and void and is quashed.

(3)	Any further decisions regarding the plaintiff’s occupancy of residential accommodation at Games Village Police Barracks, National Capital District, shall be made in accordance with the principles of natural justice.

(4)	The second, third and fourth defendants shall ensure that any further conflicts between the plaintiff and the first defendant are dealt with in accordance with the principles of natural justice and the principles of mediation and consensus and that all decisions are made in a systematic and fair manner. 

(5)	The plaintiff and the first defendant shall, for as long as they continue to reside in proximity to each other in residential accommodation at Games Village Police Barracks, National Capital District, preserve the peace of the Barracks and respect each other and make a genuine attempt to reconcile and live together in the Barracks in harmony. 

(6)	The parties shall bear their own costs. 

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

Judgment accordingly.
________________________________________________________________
Public Solicitor:  Lawyer for the Plaintiff		
Solicitor-General: Lawyer for the Defendants