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Amaiu v Yalbees [2020] PGSC 133; SC2046 (17 December 2020)

SC2046

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 131 OF 2018

BETWEEN
TOM AMAIU, MANAGING DIRECTOR of MACATA ENTERPRISES LIMITED
First Appellant

AND
MACATA ENTERPRISES LIMITED
Second Appellant

AND
THOMAS YALBEES, WILSON KUYAKO and BEN LUNGA for and on behalf of themselves and 155 others whose names are set out in Schedule One (1) to the Statement of Claim
First Respondents

INSPECTOR PEROU N’DRANOU
Second Respondent

SENIOR CONSTABLE HANSON TOKALI ACTING POLICE STATION COMMANDER OF GORDONS POLICE STATION
Third Respondent

AND
TOM KULUNGA, COMMISSIONER OF POLICE
Fourth Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Salika CJ, Makail and Berrigan, JJ
2020: 27^th August and 17^th December

DECISION ON APPEAL

REPRESENTATIVE PROCEEDINGS – “Class actions” – Sample witnesses - Whether permissible to determine liability on hearing evidence of a sample of witnesses relied upon by the plaintiffs – Squatter’s interest in land – Whether occupants of land without authorisation obtained an equitable interest by virtue of their long- term occupation without opposition - Pleadings – Whether reasonable cause of action in negligence disclosed – Whether duty of care breached – Constitutional rights - Whether manner in which eviction conducted breached the squatters’ rights under ss. 36, 37, 41, 44 and 53 of the Constitution.

The First Respondents were 158 unauthorised but long-term occupants of government land in the National Capital District. The Second Appellant was the registered proprietor of the State Lease over the land. In March 2013 the Second Appellant entered the land, with the assistance of police, and evicted the occupiers, destroying houses and other structures to make way for development of the land. The First Respondents commenced proceedings against the Second Appellant, a company, and the First Appellant, its managing director. Two causes of action were relied upon, namely the tort of negligence and breaches of human rights under the Constitution. The learned trial judge found that whilst the First Respondents were unauthorised squatters, they nonetheless held an equitable interest in the land by virtue of their long-term occupation of it, without active opposition by the registered proprietor. The learned trial judge further found that the Second Appellant, as registered proprietor of the State Lease, owed a duty of care to the First Respondents, as equitable interest holders in the land. Furthermore, that the Second Appellant breached that duty of care when it relied on a National Court order which appeared to but did not actually authorise the eviction. The learned trial judge also found that the manner in which the eviction was conducted constituted a breach of the First Respondents’ rights under ss. 36, 37, 41, 44 and 53 of the Constitution by the Second Appellant, and other unnamed police officers for whom the State was vicariously liable. He dismissed all claims against the First Appellant and the named police officers and the Commissioner of Police. A trial on assessment of damages was ordered in respect of the claims against Macata Enterprises and the State. The State sought leave to appeal against the decision, which was refused. This appeal is brought with leave by the Second Appellant.

Held:

Representative proceedings

(1) Representative proceedings pursuant to Order 5 Rule 13(1) of the National Court Rules allow for one or more persons to sue or be sued on behalf of all persons with the same interest in the proceedings.

(2) Representative proceedings serve a number of important purposes. By reducing the need for a multiplicity of individual actions, representative proceedings promote judicial efficiency and economy by enabling claims concerning the same legal and factual issues to be dealt with together. Representative proceedings also facilitate access to justice for those who might not otherwise have the means to bring their own proceedings. Similarly, they reduce the costs to defendants who might otherwise need to defend multiple claims. Ultimately, such actions also serve the interests of justice by ensuring that actual and potential wrongdoers do not ignore their obligations to the public.

(3) Given the important role that representative proceedings play and the potential for procedural complexities, trial judges must pro-actively address procedural issues on a case by case basis, in a flexible manner, with a view to ensuring the purposes of efficiency and the interests of justice.

(4) Having regard to the interests of both justice and economy, it will often be appropriate for proceedings brought pursuant to Order 5 Rule 13(1) to be conducted in two stages. The first stage will determine whether there is any common basis for liability.

(5) There is no rule of law or practice that every plaintiff in a representative proceeding must personally give evidence for this purpose. What is required is that the evidence led is sufficient to establish the common basis of liability claimed in the pleadings.

(6) In the event that a common basis for liability is upheld, it will then be necessary to move to the next stage of proceedings which would involve an assessment of causation and loss at the individual level. This would require each of the plaintiffs to provide evidence to establish their claims.

(7) There was no error on the part of the learned trial judge in proceeding to firstly determine whether there was a common basis for liability in the representative proceedings, before proceeding to determine individual questions of causation and loss.

(8) Nor was there any error in his decision to hear and determine the common claim for liability on the evidence of a sample of 10 of 158 plaintiffs relied upon by the First Respondents.

Equitable Interest

(9) Squatters or those who occupy land over a long period of time, without authority, but also without objection, acquire an equitable interest in the land, analogous to a licence, entitling them to remain on the land for a reasonable period: Png Ready Mixed Concrete Pty Ltd v PNG & Ors [1981] PNGLR 396.

(10) Here, though the statement of claim did not expressly plead an equitable interest in the land, it was in sufficiently clear terms to define one of the issues for determination and put the Appellants on notice to meet it: Yakasa v Piso (2014) SC1330; Kuman v Digicel (PNG) Ltd (2013) SC1232 applied.

(11) On the evidence the registered proprietor was aware of the presence of the First Respondents for many years before any warnings were given or any attempts made to oppose their occupancy.

(12) There was no error on the part of the learned trial judge in finding that whilst the First Respondents were not authorised to occupy and develop the land, their long-term occupation and development of it without opposition by the registered proprietor, vested in them an equitable interest in the land and an entitlement to be given reasonable notice prior to eviction.

Negligence

(13) Whilst desirable, it is not essential that every element of every cause of action be expressly pleaded in a statement of claim. What is essential is that the statement of claim read as a whole discloses a cause of action in sufficiently clear terms to put the defendant on notice as to the claim that it has to meet: Yakasa v Piso (supra); Kuman v Digicel (PNG) Ltd (2013) SC1232.

(14) Though the duty of care element was not expressly pleaded, the statement of claim was drafted in sufficiently clear terms to put the Second Appellant on notice that it was required to meet a claim in negligence and the elements of that claim: Yakasa v Piso (supra); Kuman v Digicel (PNG) Ltd (2013) SC1232 applied.

(15) There was no error on the part of the learning trial judge finding that the Second Appellant breached its duty of care to the First Respondents to give reasonable notice when it relied upon a National Court order to conduct the eviction when it was, or should have been, aware that the order did not apply to the First Respondents, and in the absence of reasonable notice.

Constitutional Breaches

(16) The manner in which the eviction was conducted involved a breach of human rights under the Constitution, namely ss. 37(1) (protection of the law), 41 (proscribed acts), and 44 (arbitrary search and entry).

(17) The learned trial judge erred in finding that the manner in which the eviction was conducted constituted a breach of s. 36 (protection of the law) on the basis claimed by the First Respondents.

(18) The learned trial judge erred in finding that the Second Appellant compulsorily deprived the First Respondents of their property for the purposes of s. 53 (unjust deprivation of property) of the Constitution. The Second Appellant is neither the State nor an instrumentality of the State but a private company, which is not subject to s. 53 of the Constitution. Its action in seeking to enforce its right to possession may not be characterised as an act of expropriation: png Ready Mixed Concrete Ltd v PNG & Ors (supra); SC Ref No 3 of 1989 Re Forestry (Private Dealings) Act [1990] PNGLR 222; and Donigi v Base Resources Ltd [1992] PNGLR 110 applied.

Cases Cited:
Papua New Guinea Cases Cited:

Png Ready Mixed Concrete Pty Ltd v PNG & Ors [1981] PNGLR 396
John Jivetuo v The Independent State of Papua New Guinea [1984] PNGLR 174
SC Ref No 3 of 1989 Re Forestry (Private Dealings) Act [1990] PNGLR 222
Donigi v Base Resources Ltd [1992] PNGLR 110
Amos Bai as Representative of Lae Squatter Settlements v Morobe Provincial Government Amos Bai and The Independent State of Papua New Guinea [1992] PNGLR 150
MVIT v John Etape [1994] PNGLR 596
Siso Naso v National Housing Corporation (1999) N1947
Koitaki Farms Ltd v Kemoko Kenge and Other Squatters at Itikinumu Plantation (2001) N2143
Koang No 47 Ltd v Monoda Merchants Ltd (2001) SC675
Papua New Guinea Banking Corporation v Tole (2002) SC694
Simon Mali v The State (2002) SC690
Tunn v Independent State of Papua New Guinea (2006) N2973
Tony Yagon for Himself & on behalf of Settlers of Dylup Plantation v Nowra No 59 Ltd trading a Dylup Plantation (2008) N3375
Richard Manui v ANZ Banking Group (PNG) Ltd (2008) N3405
Tigam Malewo v Keith Faulkner (2009) SC960
Nui v Laka (2012) N4698
Kuman v Digicel (PNG) Ltd (2013) SC1232
Yakasa v Piso (2014) SC1330
Mai Corp Ltd v National Airports Corporation (2015) N6031
Philip v Tiliyago (2019) SC1783
Covec (PNG) Ltd v Kama (2020) SC1912

Overseas Cases Cited:

Bedford v Ellis (1901) AC
Donoghue v Stephenson [1932] AC 562
Grant v Australian Knitting Mills Ltd [1936] AC 85
Carter v Hyden Park Hotel Ltd [1948] 64 TLR 177
Carnie v Esanda Finance Corp Ltd [1995] HCA 9, (1995) 182 CLR 398
McMullin v ICI Australia Operations Pty Ltd [1996] FCA 991
Silkfield v Wong [1998] FCA 1488; [1998] 159 ALR 329
Western Canadian Shopping Centre Inc v Dutton [2001] 2 S.C.R. 534, 2001 SCC 46
Matthews v SPI Electricity and SPI Electricity v Utility Services Corporation (Ruling No 5) [2012] VSC 66; 35 VR 615
Ross v Southern Response Earthquake Services Limited (2019) NZCA 431

References cited
Sections 36, 37, 41, 44 and 53 of the Constitution
Order 5 Rule 13(1) of the National Court Rules

Counsel

Mr S. Japson, for the First and Second Appellants
Mr J. Kumura, for the First Respondents
Mr T. Mileng, for the Second to Fifth Respondents

DECISION ON APPEAL

17^th December, 2020

1. BY THE COURT: This an appeal against the decision of the National Court on 2 August 2018 in WS (HR) No. 16 of 2014.
   
2. At the heart of this appeal lies a dispute as to whether the First Respondents, unauthorised but long-term occupants of State land in the National Capital District, held any interest in the land and were therefore entitled to reasonable notice prior to eviction by the registered proprietor of the State Lease, Macata Enterprises Limited (Macata Enterprises). Furthermore, whether Macata Enterprises acted negligently when it evicted the First Respondents, with the assistance of police, destroying houses and other structures to make way for development of the land. Finally, whether the manner in which the eviction was conducted by Macata Enterprises breached the First Respondents’ Constitutional rights.
   

Background

3. The First Respondents were 158 unauthorised but long-term occupants of government land described as State Lease Portion 1564, Volume 23, Folio 89, Granville, Port Moresby in the National Capital District (the land).
   
4. The Second Appellant, Macata Enterprises, was the registered proprietor of the State Lease over the land, which it obtained in the year 2000. The First Appellant, Tom Amaiu, was Macata Enterprises’ Managing Director.
   
5. On 8 September 2011 Macata Enterprises brought proceedings in the National Court, OS No 727 of 2011, against “Kelly Palleyo and Others” (unnamed) seeking orders that he, “his family, relatives or other persons who have illegally settled on the property” ... “remove all illegal structures including houses, trade stores, shelters and makeshifts they have put up on the property and be evicted from the property” within 14 days from the date of service of the orders on Kelly Palleyo.
   
6. On 22 October 2012 a National Court order was entered in those terms together with a further order directing the police to enter the property by force and remove Kelly Palleyo, his family, relatives and “those other persons illegally living on the property with necessary force by demolishing, breaking down and removing any illegal buildings, houses, shelters and makeshifts that have been illegally erected” in the event of non-compliance. On the face of it the order was entered by consent. It was not signed by either party. The seal lacks any visible detail.
   
7. On 28 November 2012 “Ben Lunge for and on behalf of (4000) Waigani Arts Center Settlers who are represented by their Provincial representatives whose names are attached to the lists to this proceedings” commenced separate proceedings, OS No. 704 of 2012, against Macata Enterprises seeking orders that the 4000 Waigani Arts Centre Settlers had equitable and legal rights over the land, that Macata Enterprises be barred from dealing with the land, and that it revert to the State.
   
8. On 29 November 2012 a National Court order was obtained ex parte in proceedings OS No. 704 of 2012 injuncting Macata Enterprises from conducting any forceful eviction, without sufficient notice, together with an order for reasonable compensation in the event of eviction.
   
9. On 19 February 2013 Kariko J dismissed the entire proceedings by Ben Lunge and the Waigani Arts Centre Settlers, set aside the orders of 29 November 2012 and refused the application for interim restraining orders. He did so on the basis that: the motion should have been made returnable for inter partes hearing pursuant to the National Court Rules; the requirements for a representative action had not been met; and the originating process should have been by way of writ of summons.
   
10. In rendering his decision his Honour rejected Macata Enterprises’ argument that the proceedings were also an abuse of process as the consent order of 22 October 2012 had already been entered. In doing so he made it clear that the consent order of 22 October 2012 applied only to Mr Palleyo and not any other settlers who were not parties to the proceedings, or represented by him. This is an important point which we will return to below.
    
11. In March 2013 Macata Enterprises entered the land, with the assistance of police, and conducted an eviction, involving the destruction of houses and other structures to make way for the development of the land.
    
12. The First Respondents, Thomas Yalbees, Wilson Kuyako and Ben Lunga on behalf of themselves and 155 named others commenced proceedings against Macata Enterprises, and its managing director, together with two members of the Royal Papua New Guinea Constabulary (RPNGC) whom they alleged supervised and controlled the eviction exercise, as well as the Commissioner of Police, and the State, seeking damages. Two causes of action were relied upon: the tort of negligence; and breaches of human rights under the Constitution: ss. 36 (freedom from inhuman treatment); 37 (protection of the law); 41 (proscribed acts), 44 (arbitrary search and entry); and 53 (unjust deprivation of property).
    
13. A trial was conducted on the issue of liability. The learned trial judge found that whilst the First Respondents were unauthorised squatters, they nonetheless held an equitable interest in the land by virtue of their long-term occupation of it, without opposition by the registered proprietor. He further found that Macata Enterprises was liable in both negligence and for breaching the Constitutional rights of the First Respondents in conducting the eviction. He found that the State, the Fifth Respondent, was vicariously liable for the breaches of human rights committed by unidentified members of the RPNGC who assisted the Second Appellant in conducting the eviction. He dismissed all claims against the First Appellant and the named police officers and the Commissioner of Police. A trial on assessment of damages was ordered in respect of the claims against Macata Enterprises and the State.
    
14. The State sought leave to appeal against the decision, which was refused. Leave for this appeal was granted on 20 March 2019.
    

Grounds of Appeal

15. The Appellants’ notice of appeal contains six grounds of appeal, together with numerous sub-grounds, all of which have been considered in rendering this decision. The grounds are in many respects repetitious and it was agreed on hearing that there were four main areas of contention, namely that the learned trial judge erred in fact and law in finding:
    
    1. liability in both negligence and breach of Constitutional rights against Macata Enterprises when only ten out of the 158 plaintiffs, now First Respondents, gave evidence;
       
    2. the First Respondents had an equitable interest in the land when it was not pleaded in the statement of claim; and the First Respondents were illegal squatters who had not been invited on to the land;
       
    100. liability against Macata Enterprises in negligence when the Appellants’ duty of care was not pleaded in the statement of claim; the Appellants had no duty of care towards the First Respondents; and the eviction was carried out lawfully by the registered owner pursuant to a National Court order; and
         
    4. liability against Macata Enterprises for breach of Constitutional rights when the evidence established otherwise.
       

Establishing Liability in Representative Proceedings – “Sample Witnesses”

16. The Appellants argue that the learned trial judge erred in fact and law when he found liability in both negligence and breach of Constitutional rights when only ten of the 158 plaintiffs, now First Respondents, gave evidence.
    
17. In refusing to summarily dismiss the proceedings on evidentiary grounds, the learned trial judge held that there is no rule of law or practice dictating that in representative proceedings, in a trial on liability, each plaintiff must give evidence in support of the claim.
    
18. A group of claimants who wish to sue a defendant on the basis of common claims may do so through representative proceedings pursuant to Order 5 Rule 13 (1) of the National Court Rules, which provides (emphasis ours):

“Where numerous persons have the same interest in any proceedings the proceedings may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them”.

19. Order 5 Rule 13(1) allows for one or more persons to sue or be sued on behalf of all persons with the same interest in the proceedings.
    
20. The rule is based upon the practice in the old English chancery courts. As explained by Lord MacNaghten in Bedford v Ellis (1901) AC at 8:
    

“The old rule in the Court of Chancery was very simple and perfectly well understood. Under the old practice the court required the presence of all parties interested in the matter in suit, in order that a final end might be made of the controversy. But when the parties were so numerous that you never could ‘come at justice’, to use an expression in one of the older cases, if everybody interested was made a party, the rule was not allowed to stand in the way. It was originally a rule of convenience; for the sake of convenience it was relaxed.”

21. In this jurisdiction all intended plaintiffs must be named in the originating process, each and every intended plaintiff must give specific instructions, evidenced in writing, to their lawyers to act for them, and any person who commences proceedings and claims to represent other intended plaintiffs must produce an authority to the court to show that he was authorized by them to file proceedings as a class representative: Simon Mali v The State (2002) SC690; Tigam Malewo v Keith Faulkner (2009) SC960; and Philip v Tiliyago (2019) SC1783 at [22].
    
22. Representative proceedings in this country are therefore what might be referred to as “opt-in” proceedings, which require that potential class members join and be named in the proceedings. Those that do not will neither benefit from nor be bound by the final judgement.
    
23. This appears to be the approach which applies to most representative proceedings in England (except since 2015 for claims relating to breaches of competition law) where claimants must elect to join the action in order to be considered a member of the class and share in any damages recovered. A similar approach has also been taken in New Zealand until recently: see Ross v Southern Response Earthquake Services Limited (2019) NZCA 431 (Court of Appeal), which is currently on appeal to that country’s Supreme Court.
    
24. In other similar jurisdictions, including Australia and Canada, there is an “opt-out” model, whereby an action can be pursued on behalf of a class of unnamed and unidentified claimants. All potential claimants who fall within the definition of the class are deemed to have been included in the action whether they are aware of it or not, and whether they are named or not, unless they have specifically opted out. If a class member chooses to opt-out, they will no longer be bound by the outcome of the proceedings and will be able to pursue whatever claim they may have in separate proceedings.
    
25. Regardless of which model applies, representative proceedings, sometimes referred to as “class actions”, serve a number of important purposes. By reducing the need for a multiplicity of individual actions, representative proceedings promote judicial efficiency and economy by enabling claims concerning the same legal and factual issues to be dealt with together. Representative proceedings also facilitate access to justice for those who might not otherwise have the means to bring their own proceedings. Similarly, they reduce the costs to defendants who might otherwise need to defend multiple claims. Ultimately, such actions also serve the interests of justice by ensuring that actual and potential wrongdoers do not ignore their obligations to the public.
    
26. As explained by the Supreme Court in Western Canadian Shopping Centre Inc v Dutton [2001] 2 S.C.R. 534, 2001 SCC 46 at [27] to [29] (footnotes omitted):
    

“Class actions offer three important advantages over a multiplicity of individual suits. First, by aggregating similar individual actions, class actions serve judicial economy by avoiding unnecessary duplication in fact-finding and legal analysis. The efficiencies thus generated free judicial resources that can be directed at resolving other conflicts, and can also reduce the costs of litigation both for plaintiffs (who can share litigation costs) and for defendants (who need litigate the disputed issue only once, rather than numerous times): ...

Second, by allowing fixed litigation costs to be divided over a large number of plaintiffs, class actions improve access to justice by making economical the prosecution of claims that would otherwise be too costly to prosecute individually. Without class actions, the doors of justice remain closed to some plaintiffs, however strong their legal claims. Sharing costs ensures that injuries are not left unremedied: ...

Third, class actions serve efficiency and justice by ensuring that actual and potential wrongdoers do not ignore their obligations to the public. Without class actions, those who cause widespread but individually minimal harm might not take into account the full costs of their conduct, because for any one plaintiff the expense of bringing suit would far exceed the likely recovery. Cost-sharing decreases the expense of pursuing legal recourse and accordingly deters potential defendants who might otherwise assume that minor wrongs would not result in litigation: ...” See also the comments of the Court of Appeal in New Zealand in Ross v Southern Response Earthquake Services Limited (supra) at [52] to [54].

27. A review of authorities in this jurisdiction reveals that most representative proceedings have concerned claims by landowners against resource companies for environmental, contractual or other damage, or by landowners or squatters against police for raids or unlawful evictions.
    
28. Pursuant to Order 5 Rule 13(1), the number of plaintiffs who might bring a representative action is not limited, other than that they be “numerous”. As in the past, claims may be brought by very large numbers of plaintiffs.
    
29. In addition, the kinds of claims that might form the basis of a representative action are limited only by the requirement that claimants share a “common interest” in the proceeding.
    
30. Whilst here claims by landowners or those in possession of land have dominated, common examples in other jurisdictions include proceedings brought by disgruntled shareholders, employees who claim they have been discriminated against, investors who have lost money as a result of poor financial advice, and consumers who have suffered as a result of defective and/or dangerous medical and other products.
    
31. It follows that representative proceedings have by their nature the potential to be very complex, and to affect a great many people on a great many issues of importance.
    
32. In some jurisdictions there are detailed rules governing representative proceedings. To date that has not been necessary in Papua New Guinea and nor may it be desirable. In many respects the diversity and potential complexity of class actions makes it difficult to anticipate all of the procedural complexities that might arise in any given proceeding. What is clear, however, is that in the absence of detailed rules the responsible trial judge must address procedural issues through active case management on a case by case basis.
    
33. Given the important role that representative proceedings serve, this should be done in a flexible manner with a view to ensuring both the purposes of economy and the interests of justice. Of course, parties must assist the court in this process, starting with clarity of pleadings.
    
34. Returning to the present case. There was no dispute that that the plaintiffs had complied with the requirements prescribed in Simon Mali v The State (supra). Nor that the proceedings in the lower court were representative proceedings for the purposes of Order 5 Rule 13(1).
    
35. It was clear that the First Respondents all shared a “common interest” for this purpose. They all raised essentially the same claim requiring resolution of the same issues of fact and law, in particular: was the eviction exercise conducted negligently and/or in breach of the occupants’ Constitutional rights?
    
36. In many respects this was a classic example of a case that should be run as a representative proceeding. As the Federal Court of Australia said in Silkfield v Wong [1998] FCA 1488; [1998] 159 ALR 329 (emphasis ours):
    

“The kind of case that can best be run as a representative proceeding is one arising out of a “mass wrong”, i.e., out of a single act, omission or course of conduct or the same act, omission or course of conduct repeatedly made or engaged in, and thus a case in which one or a handful of representative parties are able themselves to give the evidence necessary to present a large part of the case for all group members.”

37. The learned trial judge proceeded on the basis that the issue of liability should be determined first before proceeding to assess damages.
    
38. Having regard to the interests of both justice and economy, it will often be appropriate for proceedings brought pursuant to Order 5 Rule 13(1) to be conducted in two stages. The first stage will determine whether there is a common basis for liability. If there is no basis for liability, then that would be an end to the matter.
    
39. Nor is there any rule of law or practice that each and every plaintiff in a representative proceeding must personally give evidence in support of the common claim for liability.
    
40. That is not strictly the rule in any case. The issue is always whether there is sufficient admissible and credible evidence to establish the claim on behalf of the plaintiff.
    
41. That is not to say that the finding of a common basis for liability will necessarily resolve all issues of liability at an individual level for those named as plaintiffs in the pleadings. In most cases it will not. If a common basis for liability is upheld it will then be necessary to move to the next stage of proceedings, which would involve an assessment of causation and loss at the individual level. In this case that would require each of the First Respondents to prove that they were among those affected by the eviction, that they suffered loss or damage as a result, and the extent of that loss or damage.
    
42. Or in other words, whilst it might not have been necessary for every plaintiff named in the proceedings to give evidence to establish the nature and extent of the eviction in this case, it would still be necessary for every plaintiff to prove their damage in accordance with the well-established principle in Carter v Hyden Park Hotel Ltd [1948] 64 TLR 177. It is at this stage that individual issues of mitigation might also be relevant.
    
43. This is consistent with the approach that has been taken in a number of matters where default judgement has been entered in similar proceedings. In Lagan v The State (1995) N1369 Injia J (as he then was) conducted a trial on the assessment of damages in favour of 59 plaintiffs following a police raid on a village in Porgera. The plaintiffs called only six witnesses to prove the loss suffered by all. In noting that liability was not in issue as default judgment had been entered, and there was evidence to establish that there was widespread looting and destruction, Injia J adjourned the proceedings to allow those plaintiffs who had yet to do so, to file affidavits, with a view to establishing that they personally were affected by the raid, suffered loss as a result, and the value of that loss. See also Tunn v Independent State of Papua New Guinea (2006) N2973.
    
44. Similar approaches have been taken in other jurisdictions, particularly in complex cases where different defences might be raised in relation to different class members. In Australia, for instance, the witnesses who give evidence on behalf of the class are sometimes referred to as “sample witnesses”.
    
45. In McMullin v ICI Australia Operations Pty Ltd, ICI manufactured and distributed a pesticide that was used on cotton crops, that was subsequently fed to cattle. The pesticide contained a chemical which contaminated the body tissue of cattle leading to rejection of the meat harvested from the slaughtered livestock. Representative proceedings were brought on behalf of six categories of claimants, numbering in total about 500 individuals, including for instance: claimants who were graziers and whose cattle had been contaminated; claimants who were graziers whose cattle had not in fact been contaminated but were placed in detention because of a belief they were or may be affected; and claimants (such as abattoir operators, feed lot operators, stock agents, cattle transporters, meat processors and exporters and the like) who lost business, or suffered reduced profit margins, because of the effect of the controls introduced by the relevant government authorities and others.
    
46. As explained by Forest J in Matthews v SPI Electricity and SPI Electricity v Utility Services Corporation (Ruling No 5) [2012] VSC 66; 35 VR 615:

“At a hearing shortly prior to the commencement of the trial, Wilcox J permitted a number of sample group members to give evidence at the trial, although his Honour did not use such a phrase. He summarised the purpose of this procedure, as submitted by counsel for the claimants, as follows:

“[H]is argument is, and apparently will be at the trial, that if these ingredients are established in connection with some group members, and the factors of general application are also proved, the applicants will be entitled to findings in their favour on liability and it will then be appropriate to move to the next stage of the trial: a one by one examination of the circumstances of each group member, this member being called to prove reliance or causation, as the case may be, and the precise extent of his or her damage.”

47. See also Ross v Southern Response Earthquake Services Limited (supra) at [30].
    
48. We find no error on the part of the learned trial judge in proceeding firstly to determine whether there was any common basis for liability, before proceeding to determine individual questions of causation and loss.
    
49. It was particularly apposite to this case, where it was not in dispute that there had been an eviction exercise and that properties had been destroyed in the process.
    
50. Nor was there any error in his decision to hear and uphold the common claim for liability on the evidence of a sample of 10 of 158 plaintiffs relied upon by the First Respondents.
    

Equitable Interest

51. It was never in dispute that the First Respondents had been evicted from the land by Macata Enterprises, with assistance from police, in 2013.
    
52. Nor was it ever in dispute that at the relevant time Macata Enterprises was the registered proprietor of the land and had been since 2000.
    
53. The critical issue in this case therefore was whether the First Respondents had any interest or right in the land and, if so, the extent and effect of that interest.
    
54. Essential to the learned trial judge’s findings of liability for both negligence and breach of Constitutional rights was his finding that the First Respondents held an equitable interest in the land and were thus entitled to reasonable notice prior to eviction.
    
55. In png Ready Mixed Concrete Pty Ltd v PNG & Ors [1981] PNGLR 396 a group of people started living on State land in about 1969. By 1981 more than 511 people were squatting on the land, had built substantial dwellings, and established an urban settlement. In March 1981 a company, “png Ready Mixed Concrete Pty Ltd”, obtained a lease over the land for 99 years. Both the company and the State were aware of the squatters existence but had taken no action. The company sought immediate vacant possession of the property.
    
56. The National Court, Miles J, held that the squatters had, by virtue of their long occupation, to which no objection had been raised, acquired an equitable interest in the land, analogous to a licence, entitling them to remain on the land for a reasonable period.
    
57. As he explained (emphasis ours):
    

“Once a significant number of persons had taken up residence on the land, built dwelling houses on it, planted trees and the like, it was up to the State if it wished to protect its right to possession of the land to issue some sort of a warning or statement that persons who came on to the land to take up residence and build and plant crops there did so at their own risk. Yet no such warning issued at any time. The result is that those who came took up residence, built houses, planted crops and the like after say 1976 may be regarded as having sufficient interest in the land as to give rise by early 1981 to an equity entitling them to remain on the land despite the State’s legal right to possession. Because the State raised no objection to the large influx after 1976, those who had come on to the land prior to 1976 were entitled to accept and did accept that their presence also was tacitly approved and so they should be regarded as having acquired a similar equitable interest by early 1981.”

58. The Court ordered that the company was estopped from insisting on its full legal rights and allowed the occupants to remain, some for 6 months, and others 12 months, depending on the length of their occupation.
    
59. With respect to the learned trial judge in this case, it is not correct to say that the decision of the National Court in that case was affirmed by the Supreme Court in Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGRL 74. As noted by Kapi DCJ in the latter case, the decision that the squatters had acquired an equitable interest in png Ready Mixed Concrete Pty Ltd v PNG & Ors was never appealed and was therefore not before the Supreme Court for consideration. Instead the appeal before the Supreme Court concerned the title of the company, which had, for the purposes of the matter before Miles J, been assumed.
    
60. Nevertheless, there is a long line of National Court authorities in which the principles outlined in the png Ready Mixed Concrete case have been applied to recognise and protect the equitable interests of squatters and tenants at will. See John Jivetuo v The Independent State of Papua New Guinea [1984] PNGLR 174; Amos Bai as Representative of Lae Squatter Settlements v Morobe Provincial Government Amos Bai and The Independent State of Papua New Guinea [1992] PNGLR 150; Siso Naso v National Housing Corporation (1999) N1947; Koitaki Farms Ltd v Kemoko Kenge and Other Squatters at Itikinumu Plantation (2001) N2143; Tony Yagon for Himself & on behalf of Settlers of Dylup Plantation v Nowra No 59 Ltd trading a Dylup Plantation (2008) N3375; Nui v Laka (2012) N4698; and Mai Corp Ltd v National Airports Corporation (2015) N6031.
    
61. In Koang No 47 Ltd v Monoda Merchants Ltd (2001) SC675 (Amet CJ, Injia and Kandakasi JJ (as they then were) the Supreme Court expressed approval of the principle outlined in png Ready Mixed Concrete but declined to apply it to the circumstances of the case before it concerning a company that claimed a tenancy at will on property it sought to purchase.
    
62. The effect of the principle is that squatters or those who have occupied land over a period of time, without authority, but also without objection, obtain a limited equitable interest in the land, and are entitled to be given reasonable notice by the legal owner before being required to leave.
    
63. In Koitaki Farms Ltd, Kandakasi, J (as he then was) expressed it in the following terms:

"[S]quatters or tenants at will have no right or interest over and above the rights and or interest of a landlord... Subsequent decisions of the National Court as in Jivetuo v The Independent State of Papua New Guinea [1984] PNGLR 174, and Bai v Morobe Provincial Government [1992] PNGLR 150 continue to recognize the right of the State as a landlord to evict people who have for some time squatted on State land. These have been made subject to the squatters limited right in equity to be given notice to vacate within a period that is reasonable and not harsh or oppressive. These again recognises the fact that, a landlord's right and interest cannot be extinguished or overridden by the limited equitable interest of a tenant at will or an illegal squatter."

64. We agree that squatters or those who occupy land over a long period of time, without authority, but also without objection, acquire an equitable interest in the land, analogous to a licence, entitling them to remain on the land for a reasonable period: png Ready Mixed Concrete Pty Ltd v PNG & Ors [1981] PNGLR 396 confirmed.
    
65. In this case the Appellants complain that the learned trial judge erred in fact and in law in finding that the First Respondents held an equitable interest in the land when this was not pleaded in their statement of claim.
    
66. It is well established that unless there is foundation in a plaintiff’s pleadings no evidence, and no damage or relief of matters not pleaded can be allowed: Papua New Guinea Banking Corporation v Tole (2002) SC694. As the Supreme Court explained:

“This position follows on from the objects behind the requirements for pleadings. As the judgement in Motor Vehicles Insurance (PNG) Trust v. James Pupune (supra) at p. 374 said in summary, pleadings and particulars have the object or functions of:

‘1. they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it;

2. they define the issues for decision in the litigation and, thereby, enable the relevance and admissibility of evidence to be determined at the trial; and

3. they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. See Dare v. Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664.’”

67. It is also clear, however, that undue rigidity in the application of procedural requirements should not be allowed to compromise the substantive goal of the Court, which is “to do justice between parties according to law”: Yakasa v Piso (2014) SC1330 (Lenalia, Murray and Logan JJ) at [61] adopting and applying Bomanite Pty Ltd v Slatex Corp Australia Pty Ltd [1991] FCA 536; (1991) 32 FCR 379 per French J (as he then was) at 391.
    
68. As the Court explained in Yakasa v Piso (supra) at [66] (emphasis ours):

“The rules of court with respect to pleadings are directed to the end of achieving procedural fairness but, where it can be seen that, in the circumstances of a particular case, procedural fairness has been achieved, albeit without strict compliance with the rules of court, it would be to elevate form over substance to set aside the resultant relief. The true position is as stated by Mason CJ and Gaudron J in Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286-287:

“The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.), per Isaacs and Rich JJ. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. See, e.g., Browne v. Dunn; Mount Oxide Mines.

Ordinarily, the question whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted. It may be that, in a clear case, mere acquiescence by one party in a course adopted by the other will be sufficient to ground such an inference.””

69. In this regard, where evidence is led without objection, a Court is entitled to make findings on the basis of such evidence provided it is within the general ambit of the plaintiff’s claim: MVIT v John Etape [1994] PNGLR 596 applying Motor Vehicles Insurance (PNG) Trust v Pupane (1993) SC452.
    
70. As summarised by Kandakasi DCJ in Covec (PNG) Ltd v Kama (2020) SC1912:

“In short, these authorities make it clear that unless there is foundation in a plaintiff’s pleadings, no evidence and damages or reliefs of matters not pleaded can be allowed. If, however, at the trial of a matter by the conduct of the parties, they have allowed evidence to be led and not objected to or no issue is taken on matters not pleaded being allowed in, can empower a trial court to grant such reliefs as the justice of the case warrants. For the strictures of pleadings and the rules governing them are only “are a handmaiden of justice, not its master” to use the words of the Court in Maniosa Yakasa v. David Piso (supra).”

71. It was never in dispute that at the relevant time Macata Enterprises was the registered proprietor. This formed part of the First Respondents’ pleading. The First Respondents’ also claimed, however, that they were “genuine settlers who settled on the land” and furthermore, that they been residing on the land “for years before being unlawfully evicted” by Macata Enterprises. In short, the First Respondents claimed a right to be on the land based on their long-term occupation of it despite the legal title of the registered proprietor.
    
72. Accordingly, though the statement of claim did not expressly plead an equitable interest in the land, it was in sufficiently clear terms to define one of the issues for determination and put the Appellants on notice to meet it: Yakasa v Piso (supra) applied.
    
73. The Appellants did attempt to meet that claim, stating in their defence that the First Respondents were “illegal settlers” who were “trespassing on the land and were lawfully evicted”.
    
74. Despite this however, the Appellants did not require for cross-examination any of the First Respondents’ witnesses, who gave evidence that they were long-term residents of the land.
    
75. Moreover, the evidence of the First Appellant, Macata Enterprises’ own managing director, established that Macata Enterprises became registered proprietor in the year 2000. Further, that sometime thereafter he invited one of his relatives, Kelley Palleyo, on to the land as caretaker and that Palleyo had invited family members and others to settle on the land. Whilst the First Appellant said that others settled on the land without Macata Enterprises’ consent, it also appears from his evidence that there was no action taken to oppose any of the occupants presence on the land until at least 2011 when action was taken to remove Kelly Palleyo. There was some dispute about whether any notice was given to the First Respondents prior to the eviction, which is dealt with below. Nevertheless, on the Appellants’ own evidence, the First Respondents had occupied the land, without authority, but also without opposition for many years.
    
76. Nor were the Appellants under any misapprehension as to the First Respondents’ claim. Whilst complaining for the first time on submissions that the First Respondents had failed to plead an “equitable interest”, the Appellants clearly understood the claim that was being made and sought to distinguish the case from previous case authority on the basis that the First Respondents had not been invited onto the land.
    
77. Whilst we agree that there was no evidence to establish that the First Respondents had been invited on to the land, it is clear that Macata Enterprises was aware of their presence for many years before any warnings were given or any attempts were made to oppose their occupancy.
    
78. We note here that it is not invitation as such, but rather a lack of opposition, which creates the expectation to be able to reside on the land and founds the interest. That is not to say that the fact that there has been an invitation will not be highly relevant to determining the extent of any equitable interest. Ultimately that is a matter to be determined on the facts and circumstances of any particular case. Questions of invitation, the period of occupation, the extent of development, and the knowledge and conduct of the legal owner may all be relevant factors in this regard: see Koitaki Farms Ltd v Kemoko Kenge and Others (supra). There is some suggestion that compensation might, in addition to reasonable notice, be appropriate in some circumstances: see Yagon v Nowra (supra) at [16] to [18]. That is a matter beyond the scope of this appeal.
    
79. Accordingly, we find no error in the learned trial judge’s finding that whilst the First Respondents were not authorised to occupy and develop the land, their long-term occupation and development of it without opposition by the registered proprietor, Macata Enterprises, vested in them an equitable interest in the land and reasonable notice prior to eviction.
    

Negligence

80. The learned trial judge found that Macata Enterprises, as the registered proprietor of the State Lease, owed a duty of care to the First Respondents, as occupiers of the land who had an equitable interest in it arising from their long-term occupation. He further found that Macata Enterprises had breached the duty by its negligent “interpretation and publication of the National Court order of 15 October 2012 which appeared to, but did not actually, authorise the eviction that took place in March 2013”. We note here that whilst the learned trial judge referred to the court order as being dated 15 October 2012 it is clear that he is referring to the order of 22 October 2012.
    
81. The Appellants complain that the learned trial judge erred in law and in fact in finding liability in negligence against Macata Enterprises when: the First Respondents failed to plead Macata Enterprise’s duty of care; and the eviction was carried out lawfully by the registered owner pursuant to a National Court order of 22 October 2012.
    
82. The tort of negligence is a common law claim founded on the principle of duty of care. It has long been established that to prove a cause of action in negligence a plaintiff must prove four elements, namely that:
    
    1. the defendant owed a duty of care in law to the plaintiff;
    2. the defendant breached that duty by acting or failing to act in a certain way;
    100. the breach of the duty caused damage to the plaintiff; and
    4. the kind of damage is not so unforeseeable as to be remote.
       

Donoghue v Stephenson [1932] AC 562.

83. The First Respondents’ statement of claim with respect to negligence was in the following terms (emphasis ours):
    

“21. Throughout the course of the eviction the Defendants acted negligently and recklessly and had very little care or, none at all, for the lives and properties of the Plaintiffs and their families including women, children and old and sick people who lived with them.

PARTICULARS OF NEGLIGENCE

(a) The Defendants physically assaulted and verbally abused the Plaintiffs and their families including women and children as they tried to protect their homes and personal properties for being destroyed by policemen.

(b) The entire eviction exercise was conducted without a court order and without lawful reasons.

(c) The remaining eviction exercises were also conducted in breach of a National Court restraining order in place as of 14^th March 2013 which was contemptuous.

(d) The First, Second, Third, Fourth Defendants went on to carry out the eviction exercises even though the Assistant Commissioner of Police sent out Minutes advising the Defendants especially police officers not to evict the Plaintiffs.”

84. A duty of care is a legal obligation to take reasonable care to avoid acts or omissions which could cause foreseeable harm to another person or their property: Donoghue v Stevenson (supra).
    
85. It is important to observe here that the duty in negligence is not simply a duty not to act carelessly; it is a duty not to inflict damage carelessly: see Clerk & Lindsell on Torts, 20^th Edition, 2010, at [8.05]. In the words of Lord Wright in Grant v Australian Knitting Mills Ltd [1936] AC 85 at 103:
    

“It is essential in English law that the duty should be established: the mere fact that a man is injured by another’s act gives in itself no caution of action: if the act is deliberate, the party injured will have no claim in law even though the injury is intentional so long as the other party is merely exercising a legal right: if the act involves a lack of due care, again no case of actionable negligence will arise unless the duty to be careful exists.”

86. Here Macata Enterprises was the registered proprietor of the land. Accordingly, it had a legal right to evict the First Respondents. This right was, however, subject to the First Respondents’ limited equitable interest. Thus in our view the duty of care owed by Macata Enterprises was a duty to avoid causing harm to the First Respondents by evicting them without reasonable notice.
    
87. To be clear, written notice was not necessarily required. Nor as the registered title holder was Macata Enterprises obliged to obtain a court order before evicting persons on its land without authorisation (although for obvious reasons it may be prudent to do so as a general proposition). What was required was reasonable notice.
    
88. In effect the trial judge found that Macata Enterprises breached that duty by relying on the court order of 22 October 2012 as constituting sufficient notice and/or authority.
    
89. It is the case that the First Respondents’ statement of claim did not specifically use the phrase “duty of care” or expressly describe the duty of care in those terms but for the reasons already discussed that of itself may not be fatal. As the Supreme Court observed in Kuman v Digicel (PNG) Ltd (2013) SC1232 (Sakora, Cannings and Collier JJ) when considering an appeal against summary dismissal, at [16] (emphasis ours):
    

“The absence of the specific phrase "duty of care" from the statement of claim raises a technical (albeit important) question of pleading... As the High Court of Australia has observed, the conventional form of pleading in an action of negligence will not necessarily reveal the alleged duty with sufficient clarity for a Court considering an application for summary termination of the proceeding to be sure that all of the possible nuances of the plaintiff's case are revealed by the pleading (Agar v Hyde [2001] HCA 41; (2000) 201 CLR 552). Any finding about duty of care will often depend upon the evidence which is given at trial, of which a Judge in an interlocutory proceeding does not have the full benefit.”

90. Whilst “desirable, it is not essential that every element of every cause of action be expressly pleaded in a statement of claim. What is essential is that the statement of claim read as a whole discloses a cause of action in sufficiently clear terms to put the defendant on notice as to the claim that it has to meet”: Kuman v Digicel (PNG) Ltd (supra) at [14].
    
91. In our view the statement of claim when read as a whole disclosed a duty of care owed by Macata Enterprises to the First Respondents to provide reasonable notice prior to any eviction, having regard to their claim to occupy the land as long-term residents.
    
92. Furthermore, a critical factor in determining whether a duty of care exists is whether it is foreseeable that an absence of reasonable care will cause injury or damage to another or their property. Here the pleadings contained particulars of both the manner in which Macata Enterprises breached the duty, namely by conducting the eviction “without a court order and without lawful reasons”, together with the damage and injury suffered as a result.
    
93. In our view these matters overcome any insufficiency in the explicit pleading of the duty of care. Here we adopt the observations of Gavara-Nanu J in Richard Manui v ANZ Banking Group (PNG) Ltd (2008) N3405 at [27]:

“[T]here were further particulars provided by the plaintiff regarding (the) defendant's alleged negligence. Thus the defendant had been fully informed of the claim of negligence against it and the basis of such claim. This overcomes any insufficiency in pleading negligence in the statement of claim by the plaintiff.”

94. In addition, the Appellants concede that no complaint was made about a lack of pleading at any stage in the lower court proceedings.
    
95. Furthermore, it was the Appellants’ contention, both in their defence in the lower proceedings and on this appeal, that the eviction was lawful as Macata Enterprises was the “owner of the property” and the eviction was “based on the Court Order of 22^nd of October 2012”. It was the Appellants who led evidence in support of this contention. Thus the issue was squarely before the lower court.
    
96. In our view there was no error on the part of the learned trial judge in finding that a reasonable cause of action had been disclosed by the statement of claim.
    
97. Nor was there any error on the part of the learned trial judge in finding that Macata Enterprises had breached its duty of care by relying on the National Court order of 22 October 2012.
    
98. The National Court order of 22 October 2012 was made in respect of the parties to the proceedings OS No 727 of 2011, named as Macata Enterprises (as plaintiff) and “Kelly Palleyo & Others” (as defendants). On the face of it, the order stated that “if the defendant ... and other persons illegally living on the property” did not vacate it and remove their structures within 14 days, the Police were authorised to enter the property by force and remove “the defendant, including his family, relatives and those other persons illegally living on the property...”.
    
99. The learned trial judge found, however, that the order did not apply to the First Respondents in the lower court proceedings as they were not named as parties to those proceedings, OS No. 727 of 2011. That is correct. No “Others” were named in those proceedings.
    
100. As the learned trial judge also correctly observed this was made clear in the decision of Kariko J on 19 February 2013, referred to in paragraph 9 above, when dismissing the proceedings brought by Ben Lunge against Macata Enterprises in OS No. 704 of 2012, when he said at [12] of his decision of 19 February 2013:
     

“The other Settlers were not a party to that proceeding nor did Mr Palleyo represent them, which means that the consent order cannot apply to the present plaintiffs.”

101. As a party to those proceedings, Macata Enterprises must be taken to have been, or at least should have been, aware of the ruling that the order did not apply to anyone other than Mr Palleyo.
     
102. Furthermore, it cannot be said that the First Respondents had notice of the proposed eviction as a result of the order of 22 October 2012.
     
103. Whilst it appears that at least some of the First Respondents, for instance Ben Lunge (assuming Ben Lunge and Ben Lunga are one and the same), Thomas Yalbees and Wilson Kuyako, were also parties to the proceedings OS No. 704 of 2012, and therefore might have been aware of the court order of 22 October 2012, for similar reasons they might also be assumed to have been aware of Kariko J’s ruling that the order did not apply to them. As for the other First Respondents there is no evidence that they were aware of the court order in the first place. Nor did it authorise their eviction.
     
104. There was evidence from the Second Appellant that he had made some attempts to warn residents that they should move out but in his own words he “told them to move out at their own time” whilst a fence was being erected. He also asked police to do some “awareness”. According to the evidence of the Third Respondent, Chief Sergeant, Hanson Tokali, building of the fence commenced sometime in January 2013 and was halfway complete by the time of the eviction on 7 March 2013. There was no direct evidence of any awareness being conducted by police but according to the evidence of the Second Respondent, Inspector Perou N’Dranou, the Acting Police Station Commander for Gordons and his members had been conducting awareness a few weeks prior to the eviction.
     
105. In the circumstances we agree with the learned trial judge’s finding that whilst at least some of the First Respondents were aware that their continued occupation was in jeopardy, they were caught by surprise by the eviction.
     
106. None of the First Respondents’ witnesses were required for cross examination to challenge this, which for the reasons outlined above, was not inconsistent with the Appellants’ own evidence and that of the Second and Third Respondent in any case. At most the First Respondents had been told a couple of months earlier that they could move out in their own time whilst a fence was being erected, which was still under construction at the time of the eviction. Even accepting that there was some awareness conducted by police, this happened only a few weeks prior to the eviction. That was not sufficient notice given their long-term occupation of the land.
     
107. Accordingly, we find no error in his Honour’s finding that the Second Appellant, Macata Enterprises, breached its duty of care to the First Respondents to give reasonable notice when it relied upon the order of 22 October 2012 to conduct the eviction in March 2013 when it was, or should have been, aware that the order did not apply to the First Respondents, and in the absence of reasonable notice.
     

Constitutional breaches

108. The learned trial judge found that the manner in which the eviction was conducted constituted breaches of the First Respondents’ Constitutional rights. This is clear from page 10 of his decision at which he said:
     

“I accept the evidence of the plaintiffs as to the manner in which the eviction exercise was conducted. I further find that the manner in which the eviction exercise was conducted involved a breach of human rights under the Constitution Sections 36 (freedom from inhuman treatment), 37 (protection of the law), 41 (proscribed acts), 44 (arbitrary search and entry) and 53 (unjust deprivation of property)”.

109. The fact that it was the manner in which the eviction was conducted must also follow from his finding that the named police officers and the State could not be held responsible for the conduct of the eviction itself as they were entitled to rely on the terms of the court order of 22 October 2012 on its face.
     
110. The Appellants complain that the learned trial judge fell into error when he found that there had been breaches of the First Respondents’ Constitutional rights when the evidence established otherwise.
     
111. In what was otherwise a very carefully reasoned decision, the learned trial judge omitted to provide detailed reasons for his findings in respect of each alleged breach of the Constitution. We will deal with each of the purported breaches in turn.
     
112. Before doing so it is important to understand his Honour’s finding as to when the eviction took place.
     
113. It was the First Respondents’ case that the eviction commenced on 8 March 2013 and continued from 16 March through April despite an interim injunction that was obtained against Macata Enterprises on 14 March 2013, in yet a further set of National Court proceedings, OS No. 121 of 2013, on this occasion brought by Thomas Yalbees, Wilson Kuyako, Graham Wambu, Ken Irabe and 754 others against Macata Enterprises.
     
114. The First Appellant’s case, however, was that the eviction was completed on 7 March 2013 and that the company took no action at all on the land following the 14 March injunction until December that year.
     
115. His honour explicitly found the evidence of the First Appellant, and the Second and Third Respondents, namely Macata Enterprises’ Managing Director, together with that of Inspector N’Dranou and Senior Constable Tokali “as to the timing of the eviction exercise more persuasive than the plaintiffs’ evidence”, and that the eviction exercise took place from 7 to 11 March 2013 and was completed before the 14 March 2013 National Court injunction. This is significant because the First Respondents’ affidavits as to the conduct of the eviction were largely concerned with events that occurred after service of the restraining order on 16 March 2013.
     
116. In particular, it was the First Respondents’ submission in the lower court that they had been subjected to various acts of assault constituting inhuman treatment for the purposes of s. 36(1).
     
117. Section 36 (freedom from inhuman treatment) of the Constitution provides:

“(1) No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person."

118. In the circumstances, without reasons, we can only assume that the learned trial judge found s. 36 to have been established on the basis of assault as alleged in the First Respondents’ statement of claim. There is, however, no evidence of any assault from the First Respondents during the eviction between 7 and 11 March 2013. In fact other than evidence from Inspector N’Dranou that the eviction involved the destruction of property, there is no evidence as to the manner in which the eviction took place.
     
119. Accordingly, we find that his Honour erred in finding that the manner in which the eviction took place breached the First Respondents’ rights under s. 36 of the Constitution.
     
120. It is also unclear on what basis the learned trial judge found that the manner in which the eviction had been conducted by Macata Enterprises constituted a breach of s. 37 (protection of the law).
     
121. Section 37(1) of the Constitution creates a right to protection of the law. It is not limited to cases in which the person is in custody or charged with an offence. It is a substantive right standing by itself and capable of being enforced: In Special Reference Pursuant to Constitution Section 19; Section 365 of the Income Tax Act (1995) SC482.
     
122. As above, the evidence established that the company failed to afford the First Respondents the protection of the law they were entitled to prior to eviction in accordance with their equitable interest, namely reasonable notice. To that extent we find no error in his Honour’s finding.
     
123. Section 41 (proscribed acts) of the Constitution provides that:
     

(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—
(a) is harsh or oppressive; or
(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or
(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, is an unlawful act...”

124. It is the case that s. 41 of the Constitution has been used to protect squatters from forced evictions in the past.
     
125. In Bai as Representative of Lae Squatters Settlement v Morobe Provincial Government and The State [1992] PNGLR 150 for instance notices to quit were issued to squatters under the Land Act by the State giving them two weeks’ notice to vacant the land. Having regard to png Ready Mixed Concrete v PNG & Ors (supra) and Jivetuo v The Independent State of Papua New Guinea (supra), Doherty J found that while two weeks’ notice might be legal and valid under the Land Act, it was still be harsh and oppressive, relying on the words of Bredmeyer J who said (at 178):

"Assuming then that the notices to quit are valid, on the facts before me the plaintiff has been on the land for 12 years and has a house there and many others of the class he represents have also been there for a long time and live there. It is not easy to get other land in Papua New Guinea and I can take it that many of the plaintiff's class are poor and cannot easily buy a property elsewhere. The notices to quit which were served gave about fourteen days to quit. I consider that, although done under a valid law, it is harsh and oppressive to the plaintiff to leave within two weeks and I consider that that contravenes s 41 of the Constitution. I propose to enforce and protect that fundamental right under s 57 of the Constitution."

126. It is unclear what “valid law” the learned trial judge had in mind in this case. There was no notice to quit issued under any legislation. The Appellants relied on the National Court order of 22 October 2015, which did not apply to the First Respondents in any event. However, the appellants relied on the right of Macata Enterprises as registered proprietor under s. 33 of the Land Registration Act to hold free from all encumbrances. To that extent we agree that despite Macata Enterprise’s legal title to the land under the Act, it was harsh and oppressive to evict the First Respondents and destroy their property without reasonable notice.
     
127. Section 44 of the Constitution protects against freedom from arbitrary search and entry. We find no error in his Honour’s finding that Macata Enterprises breached s. 44 when it entered what, without reasonable notice, might be regarded as the First Respondents’ premises, without an order for that purpose. We note, however, that the application of the provision in the context of a lawful eviction is beyond the scope of this appeal.
     
128. Finally, it is our view that s. 53 (protection from unjust deprivation of property) of the Constitution has no application in this case.
     
129. In png Ready Mixed Concrete Pty Ltd v The State (supra) the National Court said at page 409:

“The Constitution, s 53, carries the heading: ‘Protection from the unjust deprivation of property’. The detailed provisions of the section itself vary markedly from the recommendations of the Constitution Planning Committee. However, Ch 5, paras 85-91 of the Committee’s Final Report (Part I) make it clear that what the Committee was concerned with was the limitation on the power of government to distribute wealth by means of the compulsory acquisition of property from citizens. In its final form in the legislation the provision as to acquisition of property was widened to include forfeiture, extinction or determination of any right or interest in property. The key word is ‘compulsorily’ which I think implies the exercises of some power conferred by statute on the State or an instrumentality of State. In my view the section is not directed at the decision of the court which adjudicates, declares or determines pre-existing rights. The word ‘deprivation’ in the heading sheds further light to the subject. A person is not deprived of property unless he is stripped of something to which he is entitled. The judgment of a court which determines that a person’s claim to be entitled to possession is not recognised at law or is recognised only to a limited extent (for instance until the happening of some supervening event such as a contrary claim by someone with a better right) does not deprive a person of that interest. On the other hand, the powers exercisable under legislation such as the Land Acquisition Act 1974 (to which the Constitutional Planning Committee referred) do have the effect of stripping the landowner of the land to which he is entitled, and of substituting that right to land with a right to compensation. Thus, it is that s 53(2) provides for just compensation to be made by the appropriating authority. It is quite inapposite to consider the applicant company as being in any way an ‘authority’. It’s action in seeking to enforce its right to possession may not be characterised as an act of expropriation. For these reasons, I conclude that s 53 of the Constitution is inapplicable to the present case.”

130. This case was affirmed by the Supreme Court in SC Ref No 3 of 1989 Re Forestry (Private Dealings) Act [1990] PNGLR 222. At page 3 the Court said:

“It follows from our reasoning that the provisions of the Forestry (Private Dealings) Act do not deal with compulsory acquisition or possession of any property. Section 53 of the Constitution has no relevance and application to this Act. There are three main components to s 53:

1. It deals with compulsory acquisition of property, interest in or right over property in accordance with an Organic Law or an Act of Parliament.

2. Such acquisition must comply with s 53(a) and (b).

3. Just compensation must be made on just terms by the expropriating authority.

As to the first matter, Miles J in Ready Mixed Concrete Pty Ltd v The Independent State of Papua New Guinea [1981] PNGLR 396 at 409, said:

“The key word is “compulsorily” which I think implies the exercise of some power conferred by statute on the State or an instrumentality of the State.

As we have stated, the Forestry (Private Dealings) Act does not deal with compulsory acquisition of any property, interest in or right over property. It simply provides for a procedure by which the customary owners of timber may be able to deal with other persons for the purposes of selling the timber. This is a private matter and they may choose to enter into an agreement to sell timber.

As to the second matter, it could not be argued that the Forestry (Private Dealings) Act authorises compulsory acquisition which is required for either a public purpose or for a reason that is reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind.

As to the third matter, it is even quite inappropriate to consider that an agent appointed under the Forestry (Private Dealings) Act is an expropriating authority for the purposes of just compensation.”

131. This position was again affirmed in Donigi v Base Resources Ltd [1992] PNGLR 110. The applicant applied to the Supreme Court under s 155(2)(b) of the Constitution for a review of a decision of the National Court. In the National Court proceeding, he claimed Base Resources Ltd was contractually bound to transfer a percentage of its petroleum licence interest to a company in which he held a substantial interest. He claimed that Base Resources Ltd had unjustly deprived him of property contrary to s. 53 of the Constitution. The action was struck out on the ground, inter alia, that it disclosed “no cause of action”. After having lost his right of appeal, the applicant applied for a review of the decision. The Supreme Court dismissed his application for review as having no merit, confirming the trial judge’s finding that s. 53 had no applicability as there was no deprivation of the applicant’s property by the State.
     
132. In this case it is our view that Macata Enterprises did not compulsorily deprive the First Respondents of their property for the purposes of s. 53. Macata Enterprises is neither the State nor an instrumentality of the State but a private company, which is not subject to s. 53 of the Constitution. It’s action in seeking to enforce its right to possession may not be characterised as an act of expropriation: png Ready Mixed Concrete Pty Ltd v The State (supra) applied.
     

Conclusion

133. For the above reasons we conclude that there was no error on the part of the learned trial judge in finding the Second Appellant, Macata Enterprises, liable in negligence for the eviction conducted between 7 and 11 March 2013, with assistance from police, when it was aware, or should have been aware, that the order did not apply to the First Respondents, and in the absence of reasonable notice.
     
134. Nor was there any error on the part of the learned trial judge in finding that the manner in which the eviction was conducted involved a breach of human rights under the Constitution, namely s. 37 (protection of the law), s. 41 (proscribed acts), and s. 44 (arbitrary search and entry) of the Constitution.
     
135. His Honour did err, however, in finding that the manner in which the eviction was conducted constituted a breach of s. 36 (protection of the law) and s. 53 (unjust deprivation of property) of the Constitution.
     

Orders

136. The orders are:
     
     1. The appeal is upheld in part.
        
     2. The findings of liability against the First Appellant, Macata Enterprises Limited, in the order of the National Court of 2 August 2018 for breaches of ss. 36 (protection of the law) and 53 (unjust deprivation of property) of the Constitution are quashed.
        
     3. The appeal is otherwise dismissed.
        
     4. Proceedings WS(HR) No. 16 of 2014 is to be listed for directions hearing on the next available to fix a date for trial on the assessment of damages before another judge.
        
     5. Each party shall bear their own costs of the appeal.

______________________________________________________________
Japson & Associates: Lawyer for the Appellants
Kumura Lawyers: Lawyer for the First Respondents
Solicitor General: Lawyer for the Second, Third, Fourth and Fifth Respondents