SC2713

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 32 OF 2020

BETWEEN:
JOSEPH KUPO
Appellant

AND:
INDEPENDENT STATE PAPUA NEW GUINEA
Respondent

WAIGANI: BATARI J, MURRAY J, NUMAPO J
12 DECEMBER 2022; 21 MARCH 2025

CIVIL APPEAL – human rights action – dismissal of – delay – whether action instituted within reasonable time – “reasonable time” – application of where no time limit is given in human rights action – proceedings – multiplicity of – human rights action instituted at end of civil suits for damages – whether multiplicity of proceedings – case merit – whether cause of action disclosed – no cause of action disclosed – no error in dismissing claim.

Held: 

1)	Where the time limit for the doing of an act or task is not defined by legislation or rule of practice, we consider the phrase, “within a reasonable time” refers to doing an act without going beyond what is considered judicious or acceptable in the circumstances and nature of the case.

2)	The court doing the best it can in the exercise of judicial discretion, will decide, what period may constitute, “within a reasonable time” to perform the act or complete the task, under the circumstances and nature of the case.

3)	That applications for enforcement of human rights against the State be commenced within three years of the date the cause of action arose, is consistent with the intentions of the Constitution, the Claims By and Against the State Act and for good administration.

4)	A human rights claim instituted at the end of multiple civil suits for damages for unlawful termination of employment amounted to multiplicity of proceedings and an abuse of court process.

5)	In the upshot, the appeal is dismissed as the appellant failed to show reasonable explanation for bringing a human rights application within a reasonable period of three years and for abuse of the court process in instituting multiplicity of proceedings. 

Cases cited
Asivo v Cocoa Board of Papua New Guinea [2016] PGNC 55; N6230
National Executive Council & Luke Lucas v Public Employees Association [1993] PNGLR 264
Ok Tedi Mining Ltd v Niugini Insurance Corporation [1988-89] PNGLR 425
Telikom (PNG) Ltd v ICCC & Digicel (PNG) Ltd (2008) SC906
Telikom (PNG) Ltd v ICCC & Digicel (PNG) Ltd (2008) SC906
Pruaitch v Manek (2010) N4149

Counsel
Mr H. Maliso for the appellant
Ms P. T. Ohuma for the respondent 

DECISION

1.	BY THE COURT: This is an appeal against a judgment of the National Court dismissing a proceeding for abuse of process and for want of merit. The appellant’s contentions are that the primary court erred in the exercise of its discretion on several procedural and factual aspects in dismissing his claim.     

Background

2.	The appellant, Joseph Kupo was a former Police Commissioner. He was appointed by the National Executive Council (NEC) on 1 November 2001. After some 10 months, NEC rescinded his appointment and directed him to be redeployed in the Public Service. He then sued for unlawful termination and instituted further proceedings under the auspicious of human rights claim against the State for failure to redeploy him in the Public Service in compliance with the NEC directives. The primary court dismissed his claims, resulting in this appeal. 

3.	The appellant’s case is better appreciated in this chronology of events: 

•	1/11/2001 – NEC appointed Joseph Kupo (JK) as Commissioner of the Royal Papua New Guinea Constabulary (RPNGC).
•	12/9/2002 – NEC terminated JK’s appointment and directed that JK be redeployed in the Public Service within three months.
•	Three months passed without NEC directives being implemented.
•	12/12/2002 – Appellant removed from the payroll.
•	13/12/2002 – JK instituted proceedings for: unlawful termination, and unlawful denial of income to retirement age.
•	State conceded and agreed to settle JK’s claims.
•	 3/3/2003 – JK executed Deed of Release with Solicitor General to settle his claim at K2,676,687.71.
•	2003 to 2006 – State only part-settled the K2,676,687.71 amount.
•	2006 – JK obtained default judgment for the balance owing to him.
•	5/1/2011 – the court awarded K1,890,176.39 plus interests.
•	2013 – State finally settled the outstanding claim at K3,293,261.50.
•	31/10/2014 – JK turned 60 years, the retirement age.
•	20/1/2019 – JK commenced human rights proceedings for State’s failure to redeploy him in the Public Service as directed by NEC. 

4.	In dismissing the appellant’s human rights claim, the primary court held:

1)	The appellant failed to commence his breach of human rights proceeding within a reasonable time, and further that he abused court process due to the multiplicity of proceedings.

2)	The claim for human rights abuse has no merit as, the effect of the NEC direction for the appellant’s redeployment following his dismissal from the office of Commissioner of Police and the Police Force must be regarded as a policy or administrative instruction not given under any law and was not capable of creating legally enforceable rights or obligations. 

Grounds of appeal

5.	The numerous grounds of appeal may be summed up under two main concerns. The first part alleges, the primary court committed errors of law and fact in that:

a)	An action for enforcement of human rights has no legal or constitutional time limitation and for the court to nominate a time restriction amounted to a proscribed act under Constitution s. 41.

b)	The action for human rights enforcement did not amount to multiplicity of proceedings and abuse of the court process because the special nature and circumstance of the case involving recurring damages were beyond the appellant’s fault and each case is different from the next. 
 
6.	The second part concerns the merits of the arguments to be raised before the primary court under three primary points, that:

a)	The matters to be argued raise important legal and constitutional issues under the Police Act and the Constitution on whether the appellant can remain in the RPNGC after removal from the Office of Commissioner.

b)	 The primary judge erroneously dismissed the claim when under s. 91 (2) of the Police Act, the appellant did not retire or resign from the RPNGC despite being removed as Commissioner of Police.      

c)	The primary judge erred in dismissing the appellant’s cause when there was a serious question on whether the contract of employment between the State and the appellant was irregular and void from the start.  

What are the Issues?

7.	The issues to be decided can be fairly stated as follows: 

1)	Whether the primary court erred in dismissing JK’s human rights case for abuse of process under the principles of multiplicity of proceedings and for not being filed with a reasonable time.

2)	Whether the primary court fell into error in its findings that the action for enforcement of human rights has no merit.

Considerations and reasoning for decisions 
Time limitation and abuse of process
8.	The first set of grounds has two components to it – the failure to file proceedings within a reasonable time and multiplicity of proceedings.
 
9.	The failure to file proceedings within a reasonable time arose from the appellant’s propositions that the primary judge acted without jurisdiction in nominating the three-year period as a reasonable time limit to commence a human rights enforcement proceeding. Counsel, Mr. Maliso, submitted that the inhibition period of three years placed by the primary court on the time limit to initiate a human rights claim has no constitution or legislative basis and further, that there was no substance to support the conclusion of there being an unreasonable delay by the appellant to commence the human rights proceedings.

10.	The second aspect of the abuse of process argument is concerned with multiplicity of proceedings. The appellant’s contentions in support of this arose from the appellant’s proposition, that a human rights claim has a continuing effect of breach of right and hence, it can be raised under its own circumstances at any time independently of any other cause that are open to the appellant to pursue.

11.	The appellant argued that the decision of the primary court to unjustly limit the time for his cause of action and to deny him the option to purse his human rights application amounted to a proscribed act under s. 41 of the Constitution.

12.	The two issues in disputes are in connection with the primary judge’s dismissal of the appellant’s action for breach of human rights because it was time barred and it amounted to multiplicity of proceedings. The primary court held:
        
1)	The plaintiff was obliged but failed to commence his breach of human rights proceeding within a reasonable time, and further that in all the circumstances, there was an abuse of process due to the multiplicity of proceedings.

2)	The plaintiff’s case has no merit as, the effect of removal of a person from the office of Commissioner of Police is dismissal from the Police Force and that the direction of the National Executive Council for redeployment of the plaintiff must be regarded as a policy or administrative instruction not given under any law and was not capable of creating legally enforceable rights or obligations. 

13.	Standing alone or taken together, the issues of time limitation and multiplicity of proceedings could fall within the ambit of abuse of the court proceedings. The appellant’s case before the primary court was bound to be dismissed on one or both threshold issues.
    
14.	We are persuaded by the respondents’ arguments that the first ground of the appeal has no merits.
 
15.	But first, the issue of breach of s. 41 of the Constitution is unsubstantiated. Subsection (1) prohibits and makes it unlawful for the doing of any act under a valid law that is harsh and oppressive, or is not warranted by, or is disproportionate to, the circumstance of the case, or is not, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind. Under Subsection (2), the burden of showing on the balance of probabilities, the existence of any of those proscribed acts under Subsection (1) is on the party alleging it. The party that complains of a proscribed act must provide credible evidence on the nature of, the when, how, where and what effect the alleged proscribed act had on the complainant’s person or property.
 
16.	In this case, the absence of evidence to support the assertions of the primary court acting unlawfully against the appellant makes the complaint of proscribed act baseless and mere assumptions.

17.	Furthermore, the arguments in support of the proscribed act were based on the view that the enforcement of constitutional rights is open-ended, to the extent that a human right claim has an ongoing effect and the issue of reasonable time is determined only under the circumstances of each case. Hence, that entitled the appellant to still sue the State after some seven years of procrastination and at the end of multiple civil suits with impunity.
       
18.	In our view, the appellant’s contentions are misconceived and mischievous. It is not based on any sound reasoning and runs counter to legal and common-sense appreciation of time limits for doing an act to enforce a right or an obligation within a reasonable time.
 
19.	The phrase, “within a reasonable time” in relation to court proceedings has its origin in Constitution s 37 which provides in Subsection (3), that a person charged with an offence must be afforded a fair trial within a reasonable time by an impartial court. In relation to enforcement of civil rights or obligation, s 37 (11) also provides for proceedings for such determination to be heard within a reasonable time.
  
20.	As to the time limit for the doing of an act or task, this is not defined by legislation or rule of practice. Generally, the idiom “within a reasonable time” refers to doing an act without going beyond what is considered judicious or acceptable. We consider that in the legal context, “within a reasonable time” commonly refers to completing whatever is required to be done, within a period, or time that is necessary, conveniently, to do as soon as the circumstances permit, to complete a task or fulfill an obligation. What is reasonable time will vary from case to case. It is not open-ended.
 
21.	Depending on the nature of the obligation or right which arises, a reasonable time within which to do an act may be short in a matter of days because of urgency or complexity of the case, or it may be for weeks, months or years as might be fair, appropriate and convenient under the circumstances of the case. The onus is on the person who intends to commence civil proceedings to institute a proceeding within a reasonable time or show reasonable cause for the delay in taking the necessary and appropriate action to preserve his right to seek remedy. The court doing the best it can in its exercise of judicial discretion, will decide the question of performing the act or completing the task, “within a reasonable time” under the circumstances and nature of each case.
     
22.	In this case, there is no legislative time limit or rule of law restricting the time within which a cause of action may be instituted to enforce a constitutional right. This nature of civil suit does not come within the ambit of actions arising out of a contract or tort or other causes that are restricted by time limitations under the Frauds and Limitations Act, the Wrongs and Miscellaneous Act and other legislations and rules that impose timelines.

23.	With respect, the primary judge correctly considered the relevant provisions of the Frauds and Limitations Act and applying the time limitations therein as a guide, nominated three years as a reasonable time within which to institute a claim for enforcement of human rights claim. His Honour Cannings J relied on his earlier decision in, Asivo v Cocoa Board of Papua New Guinea [2016] PGNC 55; N6230 (23 March 2016) where he stated:

“In view of the inherent seriousness of an allegation that a person has breached another person's human rights, I suggest that the standard limitation period of six years for many civil actions should be halved. As a rule of thumb, an application for enforcement of human rights should be commenced within three years after the date on which the cause of action accrued. Here the alleged breach of human rights occurred on 25 November 2005. On that approach the present proceedings should have been commenced by 25 November 2008. But the proceedings were not commenced until more than six years later, on 11 March 2015.”

24.	We agree with the rationale his Honour Cannings J adopted in propagating that an application for human rights enforcement should commence within three years after the date on which the cause of action accrued.
  
25.	In Asivo v Cocoa Board, the proceedings commenced over nine years after the date on which the cause of action arose, namely an alleged breach of human rights constituted by the unlawful cancellation of Madang Cocoa’s registration. The court concluded that even if the standard limited period of six years for civil matters were applied, the application by Madang Cocoa was made after a prolonged and unreasonable period without a satisfactory explanation offered for the inordinate delay.

26.	The primary judge in this case was faced with the same situation of inordinate delay by the appellant in commencing proceedings within a reasonable time. The extent of the delay was set out in Appeal Book Volume 2 at page 377 as follows:

“the cause of action is most appropriately deemed to have commenced accruing on 13th December 2002 (as that is the date by which the Plaintiff ought to have been redeployed according to the 12th September 2002 decision) and continued to accrue until 31st October 2014, the date by which the plaintiff attained the age of 60. Three years after that is 31st October 2017. The Plaintiff did not commence this proceeding until 21st January 2019.”
  
27.	The length of delay the primary court was faced with was some 17 years after the cause of action arose. It is apparent that the appellant sat on his right, preferring to pursue other civil suit options. He decided to belatedly pursue a human rights cause after an exorbitantly long and protracted period without providing any satisfactory explanation for the delay.
 
28.	We agree with the primary judge that the three-year period is a reasonable time within which to commence a human rights action. It is also convenient and appropriate that claims against the State in human rights cases commence within three years for good administration and in line with the intents and purpose of the Claims By and Against the State Act in requiring the six months’ notice of intention to make a claim. We conclude that the primary court did not commit any error of fact or law in finding that there was unreasonable delay in commencing the human rights case. The ground of appeal against time limitation is without merit.

29.	The second aspect of the first ground of appeal concerns multiplicity of proceedings. The appellant’s contention is that his proceeding for enforcement of his rights did not constitute multiplicity of proceedings as each of the cases filed by the appellant involved distinct and separate issues that warrant judicial determination on their own nature and circumstances.

30.	The principles governing multiplicity of proceedings and its effect as an abuse of the court process is well settled.  The courts have strongly spoken against   conducting litigation in a piecemeal manner: see, Ok Tedi Mining Ltd v Niugini Insurance Corporation [1988-89] PNGLR 425, National Executive Council & Luke Lucas v Public Employees Association [1993] PNGLR 264, Telikom (PNG) Ltd v ICCC & Digicel (PNG) Ltd (2008) SC906, Pruaitch v Manek (2010) N4149.
 
31.	In Asivo v Cocoa Board, the Court referred to these authorities in the following observations on the issue of multiplicity of proceeding amounting to abuse of the Court process which we adopt and follow:

“Commencement of separate proceedings that seek different remedies based on the same cause of action, or the same remedy based on the same facts (though a different cause of action is pleaded) will almost invariably be regarded as an abuse of process. A plaintiff who commences a second or, as here, a third set of proceedings to seek a remedy that could have been sought in earlier proceedings, which have been determined, will be adjudged to have engaged in a multiplicity of proceedings or conducted litigation in a piecemeal manner,….”

32.	In this case, the issue of multiplicity of proceedings was captured in the decision of the primary court at Appeal Book Volume 2 page 378. The appellant initially commenced proceeding in WS 136-4 of 2002 against the State claiming damages for (a) unlawful removal from office and (b) unlawful denial of livelihood for the period extending to retirement age of 60 years. He then commenced another proceeding in WS 1634 of 2002 but for some reason, left it, in abeyance without progressing it. In HRA No. 8 of 2019 case, the appellant pursued the same cause and relief in the earlier proceeding in WS 1634 of 2002.

33.	The appellant could have saved time, effort and expenses for his human rights claim had he pursued that in the earlier proceeding but decided to belatedly pursue the same grievance on a piece meal fashion. As to what gives rise to the notion and effect of multiplicity, we affirm and adopt the position taken in Telikom (PNG) Ltd v ICCC & Digicel (PNG) Ltd (2008) SC908, that:

“It’s the very existence of 2 or more proceedings involving the same subject matter that is noxious and gives rise to the presumption of rebuttal of abuse of process”

34.	We also support the view, that avoidance of multiplicity of proceeding would safe guard against abuse of court process, and save on unnecessary costs and time wastage. The ground of appeal is misconceived and without merit.

Whether the action for enforcement of human rights has merit.

35.	The appellant’s contention is that the primary judge erroneously dismissed his human rights claim as having no merit when to the contrary, his claim raises serious questions of law under the Constitution and the Police Act for determination on whether the appellant was barred to continue in the Police Force after his removal from the Office of Commission of Police. Mr. Maliso referred to certain provisions of the Constitution and the Police Act in support of his submissions that where the appellant was removed for a reason not of his own doing, he had a right to continue employment on the immediate lower rank of Deputy Commissioner or Assistant Commissioner.

36.	We have considered the provisions of sections 9, 10, 11 and 91 of the Police Act and Sections 193, 198, 212A, 222 and 223 of the Constitutions relied on by the appellant. It is clear, counsel relied on irrelevant and misconceived perception of the law based on the proposition that:

1)	The State has an obligation arising from the terms of the NEC decision of 12/9/2002 to redeploy him in the Public Service or the Police Force or elsewhere in the Public sector, and keep him gainfully employed on a remuneration package equal with that of the Commissioner of Police, in the period from 13/12/2002 to 31/10/20214 (the date on which he attain the age of 60 years); and

2)	 Though he was removed from the office of the Commissioner of Police, he was not removed from the Police Force, of which he had been a member since 1976. He had the right to continue employment as a member of the Force under the Police Act and he had the right to proper and long-term remuneration as a former Commissioner of Police under section 223 (general provision of Constitutional Office-holders).

37.	The primary court found those propositions to be flawed because the NEC Decision could only be regarded as a policy or administrative instructions which are not capable of giving rise to legally enforceable rights and obligations.

38.	We respectfully agree with the trial judge that the NEC Decision on redeployment did not have the same effect as an appointment to a position in the Public Service or Police Force or under any law where a right of enforcement would accrue. As the primary court held, the appellant’s removal from the office of the Office of the Police Commissioner amounted to removal from the Police Force. We are persuaded by the respondent’s submissions that s.133 (7) of the Police Act provides that where a contract of employment under Subsection (2) terminates or is terminated and is not renewed and that person is not reappointed as a member of the Police Force, his status as an appointed member of the Police Force terminates.

39.	In this case, the appellant was dismissed by the NEC, it being the appointing authority. The NEC did not appoint him to any other position in the Force or in the Public service. So, under s.133(7) of the Police Act, he was deemed to have been terminated and had ceased to be a member of the Force as if his Contract was not renewed.
 
40.	Common sense also dictates that once a departmental head a constitutional office-holder is terminated, it would be absurd and untenable to assign or appoint him to a position of the same or of a lower ranking.

41.	The grounds of appeal on the merit of the case is misconceived. It is dismissed.

42.	In the upshot, the appeal is dismissed as the appellant failed to show reasonable explanation for bringing a human rights application within a reasonable period of three years and for abuse of the court process in instituting multiplicity of proceedings. 

Orders of the Court

1)	The appeal is dismissed.
2)	Each Party will bear his costs arising out of and incidental to this appeal.
________________________________________________________________
Lawyers for the appellant: Niuage Lawyers
Lawyers for the respondent: Solicitor General