SC1635
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 67 OF 2014

IKIAN LYANGA
Appellant

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Cannings J, Geita J, Ipang J
2017: 1, 9 November

PRACTICE AND PROCEDURE – death of trial judge following hearing of evidence and submissions – decision given by another judge – principles of natural justice   

CIVIL CLAIMS AGAINST THE STATE – vicarious liability – whether necessary to name actual wrongdoer as defendant, in the originating process or in evidence

The appellant appealed against the decision of the National Court to dismiss proceedings he commenced against the State regarding an alleged Police raid of his business premises, which he claimed led to property damage. The decision appealed against was made by a Judge who did not conduct the trial, which took place ten years earlier. The original trial judge died after hearing the evidence, including oral evidence, before delivering judgment. The judge who dismissed the proceedings did not allow the parties to make fresh submissions and based his decision on the affidavits tendered in the earlier trial and did not consider the oral evidence and relied on a Supreme Court decision which was made seven years after the trial. There were two main grounds of appeal: (1) procedural unfairness and (2) improper application of the principles of vicarious liability. 

Held: 

(1)	It is, subject to compliance with natural justice principles, a proper and lawful procedure for a Judge who has not heard a case, to ‘take over’ the case and give judgment, due to the inability of the judge who actually heard the case to give judgment due to his or her death or otherwise ceasing to be a judge or for any other reason being unable to perform his or her judicial functions. 

(2)	A judge contemplating taking over a case from another judge should adhere to certain due process requirements,  including: parties to be notified of the contemplated course of action and given the opportunity to not consent; the judge should devise a procedure to bring into evidence the previous proceedings; the judge should ensure that all of the evidence and submissions before the previous judge is clarified and obtain a transcript of the original proceedings; the judge should give parties the opportunity to apply to bring fresh evidence and to make fresh submissions.

(3)	The second Judge did not adhere to those procedural requirements and consequently arrived at the decision to dismiss the proceedings in a procedurally unfair manner. 

(4)	The ground of appeal as to procedural unfairness was upheld and the decision under appeal was quashed. There was sufficient material before the Supreme Court on which it could under Section 16(1)(c) of the Supreme Court Act determine the question of liability.  

(5)	Judgment was entered for the appellant and the proceedings were remitted to the National Court for assessment of damages.  

Cases cited

The following cases are cited in the judgment:

Ikian Lyanga v The State, WS No 1085 of 1996, 09.04.14, unreported
Jeff Joe Lome v Katu Sele, Commissioner of Police & The State (2017) N6854
Lina Kewakali v The State (2011) SC1091
Philip Nare v The State (2017) SC1584

APPEAL

This was an appeal against a decision of the National Court, dismissing civil proceedings commenced against the State. 

Counsel

P Tamutai, for the Appellant
R K Gelu, for the Respondent

9th November, 2017 

1.      BY THE COURT: Ikian Lyanga, the appellant, appeals against the decision of the National Court, constituted by Justice Poole, to dismiss proceedings he commenced against the respondent, the State. In those civil proceedings, WS No 1085 of 1996, the appellant claimed damages for an unlawful Police operation at Liop village, Enga Province, which, he claimed, resulted in his trade store being destroyed and other property losses.

2.     Justice Poole’s decision was made in unusual circumstances. His Honour did not conduct the trial. It was conducted by Justice Hinchliffe, who died after hearing the case and before delivering judgment. 

BACKGROUND 

3.     The alleged Police operation took place on 7 December 1990.  The appellant filed the proceedings in the Mt Hagen Registry of the National Court on 11 November 1996. A defence and a reply were subsequently filed. 

4.     The trial was conducted on 25 March 2004 by Hinchliffe J. Four affidavits by the appellant’s witnesses were admitted into evidence and those witnesses gave oral testimony and were subject to cross-examination. A senior Police officer gave evidence for the respondent and was subject to cross-examination. His Honour asked counsel to file written submissions and adjourned the case to 8 April 2004. It is not clear from the material in the appeal book whether the case was called on that day and whether there was any other hearing. Justice Hinchliffe died in 2009 without delivering judgment.

5.     When Poole J was posted to Mt Hagen in 2013 his Honour took over a number of unresolved matters from Hinchliffe J’s docket, and this was one of them.

6.     The matter was mentioned before Poole J on at least two occasions, on 14 and 20 March 2014, when his Honour gave a general indication that he intended to give a decision in due course. 

7.     On 9 April 2014 his Honour gave judgment, dismissing the proceedings and publishing a written judgment, Ikian Lyanga v The State, WS No 1085 of 1996, 09.04.14, unreported. His Honour considered some, not all, of the affidavits admitted into evidence by Hinchliffe J. His Honour had no regard to any of the oral testimony before Hinchliffe J. His Honour evidently did not obtain a transcript of the proceedings before Hinchliffe J. His Honour dismissed the proceedings for two main reasons:

•	There was no credible direct evidence of how the plaintiff’s property was damaged.  

•	The alleged tortfeasors were not named as defendants, they were not pleaded in the statement of claim and there was no evidence as to what squad or police station the unnamed tortfeasors came from. This meant that, based on the (then) leading Supreme Court case of Lina Kewakali v The State (2011) SC1091, the nexus between the tortfeasor (the employee) and the State (the employer),  which was required to make the State vicariously liable for the actions to the tortfeasor, was not established.  

GROUNDS OF APPEAL 

8.     The notice of appeal contains four grounds of appeal but they are to some extent repetitious and can be reduced to two:

(1) lack of procedural fairness; and 

(2) improper application of the principles of vicarious liability. 

1	PROCEDURAL FAIRNESS

9.     Ms Tamutai for the appellant submitted that Poole J’s decision was made unfairly as his Honour did not give the parties the opportunity to make submissions on any aspect of the case when he took it over in 2014 and did not consider any of the oral testimony that was given before Hinchliffe J in 2004. Further, that his Honour gave no indication that he was considering dismissing the proceedings by applying the principles in Kewakali’s case, which is an issue on which the parties should have been given the opportunity to make submissions, as it was a 2011 Supreme Court decision, which post-dated the 2004 trial by seven years.

10.     The submissions of Mrs Gelu, for the State, focussed on the issue of vicarious liability and the need for the actual tortfeasors to be named. No effective response was made to the appellant’s claims of lack of procedural fairness, which we find quite persuasive. 

The scenario

11.     This is certainly an unusual case, but it is not, we feel, unprecedented as there have been occasions in the past when Judges who have heard a case have died or become ill or retired or for some other reason have not handed down a decision on a case they have heard, before being unable to carry out their judicial functions. However we have been unable to locate any reported case in which this scenario has been faced. No relevant cases, either local or overseas, were brought to our attention by counsel.

Due process

12.     It is a scenario that inevitably will arise from time to time, so in determining this appeal and in particular the complaint of procedural unfairness, we have decided to go back to ‘”first principles” and consider two important constitutional provisions, which lay down minimum due process requirements for any civil case.

13.     Section 37(11) (protection of the law) of the Constitution states:

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.

14.     Section 59 (principles of natural justice) of the Constitution 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.

15.     As we are grappling with a scenario in which there are no clearly defined written laws to call upon, we have also had regard to Section 60 (development of principles) of the Constitution states:

In the development of the rules of the underlying law in accordance with Schedule 2 (adoption, etc, of certain laws) particular attention shall be given to the development of a system of principles of natural justice and of administrative law specifically designed for Papua New Guinea, taking special account of the National Goals and Directive Principles and of the Basic Social Obligations, and also of typically Papua New Guinean procedures and forms of organization.

Procedural fairness

16.    At the outset, we state that it is, in principle, a proper and lawful procedure for a Judge who has not heard a case, to ‘take over’ the case and give judgment, due to the inability of the judge who actually heard the case to give judgment due to his or her death or ceasing to be a judge or for any other reason being unable to perform his or her judicial functions. 

17.     However, given the constitutional requirements that every civil case be fairly heard, in compliance with the principles of natural justice – which means the principles of procedural fairness and due process – and in compliance with typically Papua New Guinean forms of consultative decision making, including making decisions as much as possible by consensus, we suggest that a judge contemplating taking over a case from another judge should adhere to the following procedural guidelines:

1.	the parties must be notified of the contemplated course of action and given time to prepare their position on what the Judge has in mind;

2.	each party should be given the opportunity to object or to not consent to the proposed course of action, in the same way that parties in Supreme Court appeals can, if one of the judges hearing the appeal is unable through illness or any other cause to exercise his or her functions as a judge, under Section 3 (continuation of appeal notwithstanding absence of judge) of the Supreme Court Act, elect to not agree to the remaining judges continuing to hear the appeal (in which case it would generally be the case that the contemplated course of action should be abandoned and the judge should order that the previous trial is aborted and order a retrial); 

3.	if the parties consent to the proposed course of action, the judge should, having consulted the parties, and if necessary heard submissions on the point, devise a procedure to bring into evidence the previous proceedings (or determine that such action is not necessary); 

4.	the judge should ensure that all of the evidence and submissions before the previous judge is clarified and made available to the parties;

5.	the judge should obtain a transcript of the original proceedings, even if this means, such as in the present case, going back ten years or more to locate the audio recording of the original trial (this should not be difficult as it is now well recognised that Papua New Guinea has a world class court reporting system); and

6.	the judge should give the parties the opportunity to apply to bring fresh evidence and to make fresh submissions.

This case

18.     It is clear that the present case was not the only matter dealt with in the way it was by Poole J. The transcript of the proceedings before his Honour records his remark that there were many matters “left behind” due to the death of Justice Hinchliffe. His Honour added, in response to a question from counsel as to the status of this matter: “I am working my way through them in addition to the normal work of the court. Counsel need to be patient or you will go to the end of the list.”

19.     It is also clear that Poole J was doing what he thought was the best thing to do to “clear the decks” and determine a long list of unresolved matters. Any criticism we make of the way in which his Honour dealt with the present matter is heavily qualified by those observations. 

20.     Having reflected on what we consider, with all the benefits of hindsight, to have been the desirable course of action to take in the unusual and difficult circumstances that confronted Poole J, we have found, with respect, that his Honour did not adhere to all the procedural safeguards we have set out above. We find that: 

1.	having announced the contemplated course of action, his Honour did not allow the parties the opportunity to not consent to it; 

2.	there was no procedure devised for bringing into evidence the previous proceedings; 

3.	his Honour did not set out and clarify the material (the evidence and the submissions) on which he would base his decision;

4.	his Honour did not obtain a transcript of the original proceedings;

5.	his Honour did not give the parties the opportunity to apply to bring fresh evidence or to make fresh submissions; and 

6.	his Honour based his decision on the rule in Kewakali (a decision made seven years after the trial before Hinchliffe J) without giving the parties the opportunity to make submissions on its application in the present case.

We conclude, with respect that his Honour arrived at the decision to dismiss the proceedings in a procedurally unfair manner, without considering all the evidence. We uphold the first ground of appeal.

VICARIOUS LIABILITY 

21.     The appellant argues that Poole J misapplied the principles in Kewakali’s case, which until recently was the leading case on vicarious liability of the State in cases where plaintiffs alleged unlawful actions of an employee of the State, such as a member of the Police Force. Kewakali stood as authority for the proposition that if a plaintiff is suing the State on the basis of vicarious liability for a tort or other civil wrong committed by members of the Police Force, the member of the Police Force who is alleged to have done wrong must be named as a party to the proceedings and named in the pleadings and must be identified in the evidence.

22.        We consider that, given the finding of fact made by his Honour that no particular member of the Police Force was identified in the evidence and there was no evidence even about the squad or police station from which the alleged wrongdoers came, his Honour did not err in his application of the Kewakali principles. 

23.      We hasten to add, however, that his Honour’s finding of fact was made without the benefit of the oral testimony. An examination of the transcript (which has been prepared and made available to this Court and the parties for the purposes of the appeal) reveals that in fact two witnesses in their oral testimony identified and named at least one senior member of the Police Force as being present and involved. They also described the police vehicles which they said belonged to a mobile squad then based in Enga Province. They testified that a number of the men involved in the operation were in Police uniform.  

24.     Our determination of the second ground of appeal is largely academic, however, for two reasons. First, we have decided that as a result of our upholding ground 1 of the appeal, the decision of Poole J cannot stand. It was affected by error and must be quashed. Secondly, the decision in Kewakali has recently been overruled by the decision of the Supreme Court in Philip Nare v The State (2017) SC1584. 

25.      Nare was an appeal against the decision of the National Court to refuse a claim for damages, arising from an unlawful Police raid of a village. The Kewakali principles were thoroughly examined and regarded as not being good law. The Court in Nare consisted of five Judges: Injia CJ, David J, Ipang J, Higgins J and Neill J. In Kewakali the Court consisted of three Judges (Davani J, Kariko J and Sawong J). Clearly, the Kewakali principles are no longer good law. 

26.     As Cannings J pointed out in Jeff Joe Lome v Katu Sele, Commissioner of Police & The State (2017) N6854, the decision in Nare is very significant. It stands as authority for the following propositions, applicable in proceedings in which a person sues the State, claiming that it is vicariously liable for the torts or other civil wrongs including human rights breaches committed by members of the Police Force or any other employees of the State:

1.	it is not necessary to name the specific tortfeasor or wrongdoer as a defendant;

2.	it is not necessary to name the specific tortfeasor or wrongdoer in the statement of claim or other originating process;

3.	it is not necessary to name or identify the specific tortfeasor or wrongdoer in the evidence; and 

4.	it is not necessary to plead or prove that the tortfeasor or wrongdoer committed the breach of human rights while on duty and acting within the lawful scope of his or her duties as an employee of the State, eg as a member of the Police Force; it is sufficient to prove that the tortfeasor or wrongdoer was acting or purporting to act in the course of his or duties.  

In those circumstances it is unnecessary for us to formally determine the second ground of appeal. 

CONCLUSION 

27.     We have upheld the ground of appeal regarding procedural unfairness and declined to formally determine the second ground of appeal concerning the principles of vicarious liability.

28.     As we have upheld the appellant’s primary ground of appeal, the issue now arises as to what orders should be made to determine the appeal. In a civil appeal the Court’s discretion is exercised under Section 16 (decision etc on appeal) of the Supreme Court Act, which states:

On the hearing of an appeal, the Supreme Court shall inquire into the matter and may—

(a)	adjourn the hearing from time to time; or
(b)	affirm, reverse or modify the judgment; or
(c)	give such judgment as ought to have been given in the first instance; or
(d)	remit the case in whole or in part for further hearing; or
(e)	order a new trial.

29.     Further, under Section 6(2) of the Supreme Court Act, for the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.

30.     We will exercise the powers in Sections 6(2), 16(c) and 16(d). We will quash the decision of Poole J. We have all the evidence before us to determine the issue of liability. We disregard the principles in Kewakali and apply the principles in Nare. There is ample evidence on which to find that the appellant’s trade store and properties were destroyed and/or damaged in a raid on the appellants’ village on 7 December 1990 by members of the Police Force who were purporting to carry out Police functions. The State is therefore vicariously liable. We will allow the appeal and enter judgment on liability for the appellant. Costs will follow the event.

ORDER 

(1)	The appeal is allowed.

(2)	The order of the National Court of 9 April 2014 in WS No 1085 of 1996 is quashed.

(3)	The proceedings, WS No 1085 of 1996, are reinstated and, for the purposes of those proceedings, pursuant to Section 16(c) of the Supreme Court Act, liability is entered in favour of the plaintiff, and, pursuant to Section 16(d) of the Supreme Court Act, the case is remitted to the Mt Hagen Registry of the National Court for trial on assessment of damages.

(4)	The respondent shall pay the appellant’s costs of the appeal on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly.
________________________________________________________________
Tamutai Lawyers:  Lawyers for the Appellant 
Solicitor-General:  Lawyer for the Respondent