Macoes (PNG) Ltd v Kundi (PPC) [2008] PGNC 301; N4621 (26 January 2008)

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PRACTICE & PROCEDURE - Cause of action - Pleadings - Claim based on failure by policemen to stop an unlawful raid by villagers - Whether pleadings disclose a reasonable cause of action known to law - Inherent powers of Court to protect itself from abuse - Exercise of

PRACTICE & PROCEDURE - Cause of action - Different common law tortuous actions considered - Negligence - Trespass - Conversion - Detinue - Breaches of constitutional rights - No cause of action arises in respect of non-feasance acts - Various causes of action untenable - Proceedings dismissed - National Court Rules - O 12, r 40.

The plaintiff commenced proceedings against the defendants seeking damages. It relied on a number of causes of action. One was in negligence. It alleged the defendants, as members of the police force and law enforcement agency, failed in the discharge or performance of their duties when they failed or omitted to prevent villagers and traditional landowners from destroying and looting chattels and coffee trees on its tea plantation at Wara Wau in the Western Highlands Province.

At the hearing of its application for default judgment, the Court raised the issue of cause of action on its own motion and invited parties to make submissions before decision and further determination of the application for default judgment.

1. The Court in the exercise of its inherent powers, may, on its own motion raise the issue of cause of action with parties and may give the parties opportunity to address it before making a decision. The exercise of the Court's inherent powers is invoked to prevent abuse of its processes by litigants.

2. At common law, the police owe no duty of care to the public at large. Further, there will be no duty of care if it is against wider policy issues, such as where it may adversely affect the way in which the police carry out their duties for fear of litigation. Hill -v- Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53 followed.

3. The common law is consistent with section 197 of the Constitution where the police have a responsibility for maintaining law and order but are subject to no specific requirement as to the way in which they do it. Therefore, the police owe no duty of care to the public at large and there is no duty of care if it is against public policy.

4. In the present case, the destruction and looting of the plaintiff's property was done by third parties, namely villagers and traditional landowners of the tea plantation land. The police were not the ones who destroyed and looted the plaintiff's property. The allegation that the police owed a duty of care to protect its property and should have attended and stopped destruction and looting, does not exist in law because police owe no duty of care to the public at large and it is against public policy.

5. As the plaintiff has failed to establish the existence of a duty of care, there cannot be a breach of that duty by the defendants. It follows the defendants are not liable for damages caused by the enemy tribe.

6. The pleadings in relation to other causes of action in trespass, conversion and detinue were vague and furthermore, mere conjectures because the primary cause of action the plaintiff relied on was in negligence. Thus, the allegations against the third defendant allegedly removing the plaintiff's property from the tea plantation were made in passing to support the general allegation that the defendants owed a duty of care to protect the plaintiff's property and breached that duty, hence were negligent.

7. Enforcement of constitutional guaranteed rights is enforceable if the perpetrators' actions are affirmative.

8. The proceedings was dismissed for failing to disclose a reasonable cause of action and an abuse of process.

Simon Awaria & 20 Ors -v- Sam Inguba as Commissioner of Police, Electoral Commission & The State (2006) N3044
Titus Wambun -v- The Commissioner of Police & The State (2009) N3787
Keith Reith -v- Murray Hallam and Allcad Pty Ltd (1995) N1337
Catholic Diocese of Wabag Board of Trustees -v- Enga Provincial Government, Gari Baki Commissioner of Police & The State: WS No 1416 of 2008 (Unnumbered & Unreported Judgment of 24th October 2011)

Winfield, Present Law of Abuse of Legal Procedure,
John G Fleming, Law of Torts, 9th ed (1998) Sydney, Law Book Co

1. MAKAIL, J: The plaintiff applies by notice of motion filed on 21st July 2008 for default judgment against the defendants for failure to file their notice of intention to defend and defence pursuant to O 12, r 28 of the National Court Rules.

2. The application came before me on 05th September 2008 for hearing and counsel for the plaintiff appeared to prosecute it. No-one appeared for the defendants. I raised an issue with counsel for the plaintiff in relation to whether or not the pleadings in the statement of claim disclosed a reasonable cause of action known in law prior to dealing with the application for default judgment. I did so because it was the third time I had come across a claim of this nature in Mt Hagen and wanted to write a decision on this type of claim for future references. I then issued the following directions:

1. Both parties shall file and serve on each other their written submissions on the question of cause of action by or before Friday 12th September 2008.

3. Pursuant to the directions, the plaintiff through its counsel filed its written submissions on 10th September 2008. The defendants did not. I am satisfied the Court in the exercise of its inherent powers may on its own motion raise the issue of cause of action with parties and may give the parties opportunity to address it before making a decision. The exercise of the Court's inherent powers is invoked to prevent abuse of its processes by litigants. In another words, it does not have to wait for a party to raise any issues relating to the processes of the Court. It is a power that is exercised and available to the Court and extends to all situations where the justice of the case requires it to be exercised, and is not confined to any closed categories of cases. It is a jurisdiction which the Court has "to ensure that the pursuit of its ordinary procedures by litigants does not lead to injustice.....may be exercised at any stage of the proceedings where it appears to be demanded by the justice of the case." see Tringali -v- Stewardson Stubbs & Collett Ltd [1965] NSWR 418 at 418, per Else Mitchell, J and also Cox -v- Journeaux (No. 2) [1935] HCA 48; (1935) 52 CLR 713 at 720, and Winfield, Present Law of Abuse of Legal Procedure, pp 238-243.

4. Abuse of the process of the Court is an expression used to describe any use of the process or procedures of the Court for an improper purpose or in an improper way. It encompasses a wide range of situations. In civil actions, to commence or pursue proceedings which disclose no reasonable cause of action or which are frivolous or vexatious is an abuse of the process of the Court. But the expression extends far beyond that, for example in Re Majory [1965] 1 Ch 600, the Court said at pp 623 and 624 that "...... court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused." see also Re Bellador Silk Ltd [1965] 1 All ER 667.

5. In relation to this case, it is important to keep in mind what Lord Watson said in King -v- Henderson [1898] AC 728 at 731: "... mere motive, however reprehensible, will not be sufficient" (to constitute abuse of process) "it must be shown that, in the circumstances in which the interposition of the Court is sought, the remedy would be unsuitable, and would enable the person obtaining it fraudulently to defeat the rights of others, whether legal or equitable." The steps which the Court may and will take to prevent an abuse of its process must vary from one situation to another. The most usual ones are those of staying or dismissing proceedings and of striking out pleadings or parts of pleadings.

6. That being said, the question of cause of action requires a consideration of the pleadings in the statement of claim. Do the facts pleaded disclose a reasonable cause of action known in law? The statement of claim is set out in full below:

"1. The Plaintiff is a nationally owned company and is registered under the laws of Papua New Guinea and it has got perpetual rights to sue and be sued in its registered name, style and capacity as such.

2. The First Defendant was at all material times in the years 2002 - 2003 and was the Provincial Police Commander at Mount Hagen Police station Head Quarters and is capable of suing and being sued in his personal capacity and name.

3. The Second Defendant was at all material times in the years 2002 - 2004, was Station Commander at Kagumuga Police Station and was the Rural Zones Commander and is capable of suing and being sued in his personal capacity and name.

4. The Third Defendant was at all material times in the years 2002 - 2004, as the policeman and was attached to Kagumuga Police Station and was looking after Wara Wau Tea Estate and with him were three other policemen and all of them were working under the command/control of the Second Defendant and are able to sue and be sued in their natural names.

5. The Third Defendant together with three other policemen were given houses/accommodation at the plantation premises and were using a white land cruiser given to them because they were not given houses by their Police Department and were policing all plantations in the Western Highlands Province including the Wara wau Tea Estate.

6. The Fourth Defendant is being used under the Wrongs (Miscellaneous) Provisions Act and is also in conjunction with the Claims By and Against the State Act Chapter No. 297 and is vicariously liable for the conduct of the policemen, its servants/agents who were at the material times and place purportedly executing police duties or inaction/omission or negligent in the discharge of given duties as Police Officers of Royal Papua New Guinea Constabulary.

7. The Plaintiff Company is the registered proprietor/owner of Wara Wau Tea Estate is acquired from Warren Tea Estate Company in 2002 as a going concern. The Tea Estate is about 895 acres of land and it seats on Portion 55, Fourmil Ramu, Western Highland Province and is located about 4 kilometers south of the Kagamuga Police Station (Mt. Hagen) in which the Second Defendant was Officer In- Charge and the Third Defendant report to and work.

8. The infrastructure of the Plantation was already developed by the former Land Lord some 30 years ago which saw the erection of 201MQ houses for its staff, 10 high covenant houses for its senior staff, a big factory for processing tea, a big workshop and general machinery to work the Estate. It had a labour capacity of two thousand (2000) men and women both skilled and unskilled.

9. After the Company was acquired in the year 2002, it operated for some months and then the traditional land owners led by one Alphonse Put Yaimp from the Lati tribe and Thomas Rokpil from the Ronni tribe organized a land owners pressure group to pressure the Plaintiff Company to give 20% equity share holding in the Tea Estate without having to pay for it.

10. The Management of the Plaintiff Company refused to entertain such a request because nothing is free these days.

11. The so called traditional land owners did not get what they bargained for so they organized the village people living around the Tea Estate and caused trouble for the Plaintiff for many months. Then towards the end of 2003, they moved into the Estate and uprooted 10 acres of newly planted coffee trees and got aggressive and started to destroy company's properties etc.

12. The General Manager, Mr Rum Kumar and his Assistant Manager Mr Thomas Jim then reported this incident to the Third Defendant and others on the Estate, the Kagamuga Police Station and also reported this to Mount Hagen Police and advised that Mr Alphonse Put Yaimp and Thomas Rokpil have organized criminals and they have caused/trespassed into the Tea Estate and have uprooted coffee trees worth tens of thousand of kina and damages to the company's property and they need to be arrested and charged.

13. The police personnel from both within the Estate and the stations did not respond/attend to this complaint.

14. Some months in mid 2004 later, Alphonse Put Yaimp and his sons came to the General Manager's house and harassed him and his wife and cut/chopped his dog in front of him with a bush knife. The incident was then reported to the Third Defendant who was living in a company house next to the General Manager's house and also the other police personnel on the Estate, Kagamuga and Mount Hagen Police but nothing was done to have the criminals arrested.

15 Then towards the end of August 2004, Alphonse Put Yaimp and Thomas Ropkil threatened the work force with physical harassment/violence and so the labours did not go to work for two weeks. Same got reported to the police on the Estate, Kagamuga and Mt. Hagen Police but still there was no response.

16. During those two weeks of stop work, one of the young girls got raped by Thomas Ropkil's tribe and that matter got reported but still no police action.

17. The community around then realized that nothing was happening or was likely to happen, the stealing on the company's property increased and law and order there was a complete break down and further Alphonse Put Yaimp and Thomas Ropkil organized young boys from the areas and removed a Bailey bridge put there by the company at a cost of K180,000.00. The company had lost access to the Estate so it had to break the tea garden and come through the back of the garden/estate.

18. Thus, the Management of the Plaintiff Company convened a meeting between the police and the traditional land owners and they should resolve the law and order problem.

19. In mid September 2004, the First Defendant and the Second Defendants together with the police from the Estate, Kagamuga Police Station, the Community Task Force normally referred to has the "221" and the Community Relations Police Personnel went over to solve the problems of law and order.

20. On that day the people in the area did not come/turn up but Thomas Rokpil and Alphonse Put Yaimp turned up and advised the police that violence would not stop until and unless the 20% share "not negotiable" issue is addressed.

21. Whilst the police were there, the Assistant General Manager showed them the uprooted coffee trees and the damages done on the Estate by the two ring leaders, the bridge that was removed and access was only possible through the back of the Tea Estate. But the First, the Second and the Third Defendant did not act on that or instruct his/their men to arrest the two leaders and even to date the two men are still are large.

22. Before the policemen left, the General Manager and Assistant General Manager, Thomas Jim told the police at the Plantation that the Plantation will get into the hands of the wrong people and it is important that they provide security and guard the Tea Estate and they should arrest those responsible as a warning to the other people in the community.

23. The Defendants then told the two managers and the labourers that they will do something about the law and order and have Alphonse and Thomas arrested and charged for destroying company property worth substantial amount of money.

24. After a week of that meeting nothing had happened as promised by the PPC, First Defendant and there onwards, the criminals had moved onto the Tea Estate and started to break and enter into company's houses and have removed furniture like TV, chairs, generators and got timber from the house to build their own houses etc. In front of the helpless labourers and the Managers during broad day light.

25. The matter was then reported to the Police again for the 10th or so time but nothing was done or no police help was likely forthcoming. The unskilled labour force left the Plantation and the managers have left too, and the entire Estate was gone to the hands of looters and every thing was totally destroyed and stock/goods taken home for their own use.

26. It was at that time mid October, 2004 when the law and order problem was escalating to its highest peak, the Third Defendant together with other policemen in a purported execution of police duties:-

27. Because there was no police presence, the community then realized that the policemen were removing things/assets away from the Estate, it took two weeks for the Lati and Ronnie Tribe to remove all valuable assets like generators, TV's, fencing wire, water tanks, factory equipments etc for their own use or for sale on street markets for money.

28. The Kagamuga Police Station is just about a stones throw from the Tea Estate and the looting of the Estate at Wara Wau was local knowledge but not even one police vehicle/or police personnel acted upon the knowledge to prevent such a nice Estate worth millions of kina from going to the wrong hands and eventually to bare land.

29. In the circumstances, the three Defendants and the Fourth Defendant through the First, Second and Third Defendants were under a statutory duty to take care in giving instructions or commands to policemen under their care/control and command and to over see that they provided security badly need to guard the safety of the Plaintiff's property worth millions of kina but they failed and let alone helping themselves with whatever property they could lay their hands on. Since the Tea Estate had gone to the criminal's hands, there has never been any one charged and arrested for the looting/stealing etc.

30. Thus, since there was no police presence or present but no police action for the duration of 4-5 weeks, the following properties were removed/stolen, broken or damaged beyond repair.

Set below is a schedule showing each individual items/properties that have got lost or stolen during the absence or present but action and or inaction of police at Wara Wau Tea Estate.

1. IMQ Houses
2. High Covenant Houses
3. TVs
4. Generators
5. Tea Factory with full machinery
6. Freezers
7. Assortments of household items (will be provided at time of trial)
8. Trucks
9. Tractors
10. Backhoe and front hand loader
11. Tea Harvesters
12. Chemicals

Weedicides (will be provided at time of trial)
Fertilizers (will be provided at time of trial)

13. Other items not mentioned will be mentioned at time of trial.

50
20
15
6
1
10

8
2
1
15

Full prices and particulars of items are matters for evidence and will be provided at the time of trial.

31. Further or in the alternative and said damages and loses were occasioned by reason of negligence on the part of the First, Second and the Third Defendants.

32. Further and or in the alternative the Plaintiff claims that the manner in which the First Defendant, Second Defendant, Third Defendant and the Fourth Defendant through the actions/and or omissions of the First, Second and Third Defendants and other policemen in handling the law and order situations at Wara Wau Tea Estate were;

33. By reason of matters aforesaid, the Plaintiff Company's rights to full protection of the law as provided for under the National Constitution have been infringed.

34. By reason of the matters aforesaid, the Plaintiff Company hold the Fourth Defendant vicariously liable for damages under Section 1 (1)(2) and (4) of the Wrongs (Miscellaneous Provisions) Act chapter No. 297 and also under section 58 of the National Constitution of Papua New Guinea and for exemplary damages.

e) Interest pursuant of the Judicial Proceeding (interest on debts and damages Act Chapter No. 52.

7. The allegations of fact in the statement of claim are very long but from my reading of it, it is clear the plaintiff claims it is the registered proprietor of a State lease where a tea plantation is situated. The tea plantation is located at Wara Wau, south east of the town of Mt Hagen in the Western Highlands Province. It alleges it has suffered substantial monetary loss as a result of the actions or omissions of the defendants. But what is interesting and a matter of further discussion here too is that the alleged substantial monetary loss arose from actions of third parties, namely villagers and traditional landowners of the land on which the tea plantation is located.

8. The plaintiff alleges that these people converged on the tea plantation and either removed or destroyed its chattels and coffee trees. It appears the plaintiff is suing the defendants in negligence, trespass, conversion, detiune and enforcement of its constitutional rights. Except for the enforcement of its constitutional rights, the rest are different types of causes of action in tort but may have some features that overlap each other.

9. To bring an action in tort, it is very important that the pleadings in the statement of claim must set out clearly the nature of the cause of action known to law giving rise to the kind of reliefs a plaintiff seeks. In the absence of a cause of action known to law, there is no basis for the reliefs. With these rational of pleadings in mind, let us examine the different kinds of causes of action pleaded by the plaintiff in its statement of claim below.

10. First is negligence. From the pleadings, the material facts giving rise to the defendants' alleged negligent actions are found at paragraphs 1 to 31 of the statement of claim. In summary, the plaintiff alleges the defendants as police officers of the State (fourth defendant) failed in their duties to prevent villagers and traditional landowners of the tea plantation from removing and destroying its chattels and coffee trees. The cause of action is premised in a way where the plaintiff is alleging that the defendants, as members of the police force owed a duty of care to it in that, as members of a law enforcement agency, they failed to protect it from the destruction and looting of its chattels and coffee trees by third parties or prevent third parties from either destroying or removing chattels and coffee trees from its tea plantation.

11. The particulars of negligence are set out at paragraph 31(a)-(i) of the statement of claim. There, the plaintiff alleges the defendants in the discharge of their duties failed to keep a proper look out for villagers and traditional landowners as it was a volatile law and order situation at the tea plantation at the material time, and when villagers and traditional landowners converged on the tea plantation and removed and destroyed its chattels and coffee trees, the defendants failed in the discharged of their duties to prevent or stop them.

12. At pp 2-4 of his written submissions, counsel for the plaintiff submits that the plaintiff's action is based on negligence. He bases his submission on the "actions" and "omissions" of the defendants. At p 2 of his written submissions, he submits and I quote:

"The defendants' Actions that caused the damages suffered by the plaintiff/applicant is most certainly rifled (sic) in the third defendant and three (3) other policemen's conduct. The third defendant and others actions involved were:-

(i) Taking the applicant's property, the white goods especially from the house that was allocated to him/them for otherwise the reason of protecting the applicant's property and employees. They were acting in a very unprofessional and most certainly criminal manner. For more details see the pleading in the statement of claim.

(ii) Their actions give (sic) the so called landowners and other criminals the initive (sic) and opportunity to destroy and loot the Applicants properties. The third defendant and three (3) policemen induced the stealing, looting and destruction by fragrantly and actively taking part in this (sic) activities. In fact he was too busy stealing and forcefully taking the applicant's property that he obviously and inexcusably failed to carry out his rightful professional duties.

The Omissions of the defendants refers specifically to the ignorance and lack of Action by the first and second defendants. It is clear from the pleadings that the management of the applicant company reported the imminent threat and initial brewing troubles to the first and second defendants on numerous occasions.

They were even taken to the plantations to witness the situation and mediate at the some stage. Although they were well informed, they totally and shamefully ignored the situation. The defendant did absolutely nothing to protect the applicants property from the criminal activity conducted on the applicants property by the landowners with the aid and support of the third defendant.

They protected and harboured the perpetrators. It was obvious that the applicant company was loosing millions of kina worth of property at the hands of the hooligans and the defendants did not lift a hand to protect the property and its employees.

Being mindful of the fact that this plantation was a registered state lease and the applicant was the registered proprietor, they would have been aware of the fact that they had ultimate jurisdiction especially on the plantation because of the legal position as to ownership, they treated the issue like one of traditional landowner problems and miserably failed to protect state property.

If the defendants have acted in time and suppressed the vandalism and looting much of the property would have been saved and the applicant would have not suffered such exhorbant (sic) financial losses.

Worse still, the vandalism, looting and destruction of properties on the plantation was happening over a period of time. The defendants at the material time were aware of this fact yet they ignored the plight of the applicant and its managers. It is said that the applicant could not rely on the defendants' assistance to protect its property. The defendants just watched and allowed the atrocities that were being committed by the so called landowners on the applicant's property.

Ultimately, it was the first and second defendants' failure as commanding officers to direct their subordinates to act accordingly and prevent the landowners that caused the applicant to suffer destruction and damage of property resulting in the economic loss that it suffered.

We submit that the defendants' omissions and inactions resulted in plaintiff/applicant's unfortunate predicament. The defendants were well informed and knowledge of the crisis suffered by the applicant and they have had amply (sic) time to carry out their professional duties however, the defendants did not act accordingly.

The pleadings ultimately show that the defendants are a third party to this proceedings; however their actions, inactions and unprofessional conduct had resulted in serious economic set backs suffered by the applicant. If the defendants had executed their rightful duties with diligence and without fear or favour, the applicant would not have been severely prejudiced." (Underlining mine).

13. From these submissions of counsel for the plaintiff, one matter that stands out is that, the plaintiff seeks to hold the defendants liable for the actions of third parties, namely the villagers and traditional landowners after the villagers and traditional landowners led by their ring leaders, Alphonse Put Yaimp and Thomas Rokpil's demand for 20% shareholding participation in the tea plantation was ignored or rejected by the management of the plaintiff. Counsel emphasises this point at p 3 of his written submissions, where he refers to the third parties involvement as criminals and their actions criminal in nature.

14. The defendants played a passive role in the removal and destruction of the plaintiff's chattels and coffee trees from the tea plantation because they did not stop or prevent the third parties from doing what they did. The allegations of removal and destruction of chattels and coffee trees of the plaintiff were leveled against third parties, namely the villagers and traditional landowners. The importance of specifically making reference to actions of third parties here is that, can the defendants be liable for the actions of third parties in an action in negligence?

15. The tort of negligence is conduct falling below the standard demanded for protection of others against unreasonable risk of harm. The standard of conduct is ordinarily measured by what the reasonable person of ordinary prudence would do in the circumstances. The general standard of conduct required by law is a necessary complement of the legal concept of "duty". Negligence does not entail liability unless the law exacts a "duty" in the circumstances to observe care. A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them: see Le Lievre -v- Gould [1893] UKLawRpKQB 27; [1893] 1 QB 491 at 497 per Lord Esher MR. "Duty" may therefore, be defined as an obligation, and recognised by law, to avoid conduct fraught with unreasonable risk of danger to others: see John G Fleming, Law of Torts, 9th ed (1998), Sydney, Law Book Co at pp 117 & 149.

(a) The existence of a duty of care which is owed by the defendants to the plaintiff;

(b) The duty was breached by the defendants by failing to exercise the standard of care required by law; and

17. Lord Atkin's famous statement in Donoghue -v- Stevenson [1932] AC 562 at 580 is now accepted as establishing the principle on duty of care in the law of negligence where His Lordship said:

"The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyers question, 'Who is my neighbour' receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts and omissions which are called in question."

18. Lord Wright four years later in Grant -v- Australian Knitting Mills [1936] AC 35 said:

"All that is necessary as a step to establish the tort of actionable negligence is to define the precise relationship from which the duty to take care is to be deduced. It is, however, 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 cause 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 lack of due care, again no cause of actionable negligence will arise unless the duty to be careful exists."

19. Professor John G Fleming in his book, The Law of Torts (supra) at pp162-163 said, "Negligence is commonly defined to include both acts and omissions involving an unreasonable risk of harm, and for most purposes such generalizations provide an adequate working rule. In some respects however, it is still important to advert to the distinction, deeply rooted in the common law and common sense casual notions, between misfeasance and non-feasance, between active misconduct working positive injury to others and passive inaction, failing merely to take positive steps to benefit others or to protect them from some impending harm". (Underlining mine).

20. In this case, the plaintiff alleges that the defendants owed a duty of care to protect its chattels and coffee trees. As a result of the failure by the defendants to exercise the standard of care in preventing or stopping the third parties, the third parties destroyed or removed them and it suffered loss.

21. In respect to the discharge or performance of their duties, at common law, the police owe no duty of care to the public at large. Further, there will be no duty of care if it is against public policy and contradicts wider policy issues, such as where it may adversely affect the way in which the police carry out their duties for fear of litigation. These principles were formulated in the leading House of Lords decision in Hill -v- Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53. As it is a post independence decision, it is does not have binding effect on this Court, but is of persuasive value.

22. The facts of the Hill's case are these, Peter Sutcliff committed 13 murders and 8 attempted murders between 1975 and 1980 in Yorkshire, United Kingdom. His last victim was Jacqueline Hill. Ms Hill's mother claimed that the police should reasonably have inferred that the previous 20 offences were committed by the same person and that, if not caught, he would re-offend. Accordingly, the police were argued to have owed a duty to use 'their best endeavours and exercise all reasonable care and skill to apprehend the perpetrator of the crimes and so protect members who might otherwise be his future victims'. Ms Hill alleged the police failed to properly collate information in their possession that would have identified Sutcliffe as a likely suspect, failed to give due weight to certain information and accorded excessive weight to other information.

23. Lord Keith delivered the leading judgment with which all other justices agreed. Lord Keith summarised the key question as being whether police officers "in the course of carrying out their functions of controlling and keeping down the incidence of crime, owe a duty of care to individual members of the public who may suffer injury to person or property through the activities of criminal, such as to result in liability in damages on the ground of negligence, to anyone who suffers such injury by reason of breach of that duty.

24. In upholding the decision of the Court of Appeal to strike out the claim as disclosing no cause of action, Lord Keith established the principle of immunity from negligence claims in the following terms which I find relevant in this case and respectfully quote thus:

"Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure - for example that a police officer negligently tripped and fell while pursuing a burglar - others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to
be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted. I therefore consider that Glidewell L.J., in his judgment in the Court of Appeal in the present case [1988] Q.B. 60, 76, was right to take the view that the police were immune from an action of this kind on grounds similar to those which in Rondel v. Worsley [1969] 1 A.C. 191 were held to render a barrister immune from actions for negligence in his conduct of proceedings in court."

25. The Hill decision has been interpreted in other common law jurisdictions, including United Kingdom, Australia, Fiji, Kiribati and Tonga as establishing a common law immunity from negligence actions for police when they are involved in the suppression and investigation of crime. The immunity has been extended to cases where the claim is for police "inaction". see for example: Crowley -v- Commonwealth of Australia, Australia Capital Territory and Pitkethly [2011] ACTSC 89; Kester Yee -v- Commissioner of the Fiji Police Force [2011] FJHC 38; Douglas Bamleett -v- Inspector Shailesh Kumar & Ors [2011] FJHC 37; Tiara Enterprises Ltd -v- Attorney General [2009] FJHC 155; Wargtaj Seafood Products Ltd -v- Minister of Home Affairs [2000] FJHC 213; Tio -v- Beengo [2003] KIHC 89 and Jagroop -v- Sokai & Tonga [2001] TOCA 10.

26. The immunity is founded on public policy grounds in that, it should be an operation determination for the police force as to how, when and where it deploys is resources. The reasoning for this principle is that the deployment of police resources is constrained by many factors, some of which I cite as examples are:

27. The public policy reasons for the immunity and consequent non-existence of a cause of action for police inaction is that it is not appropriate for the Courts to dictate the circumstances when police should act to investigate or suppress crime. The Court is not in a position to deliberate on the range of operational matters that impact on the ability for the police to investigate, suppress or solve crime. But it should be made very clear that the immunity is not a blanket immunity for police from all liability.

28. Lord Keith in Hill's case acknowledged that there was "no question" police were liable to those injured as a "direct result" of negligent acts or omissions. He cited as examples a case in which a police motor cyclist caused a traffic accident in the case of Knightly -v- Johns [1981] EWCA Civ 6; [1982] 1 All ER 851, and another case in which police were found liable for a fire started when he fired a gas canister into premises under siege in the case of Rigby -v- Chief Constable of Northamptonshire [1985] 2 All ER 985. The immunity more readily applies where the "cause of action" comes from third parties who remain at large after alleged criminal activity.

29. In PNG, there has not been a decided case on point although there have been at least two cases that I have come across in my research that vaguely reached the same conclusion as in the Hill's case. The first case is Simon Awaria & 20 Ors -v- Sam Inguba as Commissioner of Police, Electoral Commission & The State (2006) N3044 and the other is Titus Wambun -v- The Commissioner of Police & The State (2009) N3787.

30. In Simon Awaria's case, Mr Awaria representing himself and 20 other plaintiffs sued the police and the State for damages arising from destruction and looting of property at Kapola village, Kagua District in the Southern Highlands Province on 29th July 2002. The incident happened during the National-General elections as people had gathered to vote and Mr Awaria was contesting the Kagua-Erave open seat. After sometime and before commencing of voting, the people became violent and started fighting. The fight led to a raid on the plaintiffs' village where houses, domesticated animals, personal items and other items of value were destroyed and looted.

31. The defendants applied to dismiss the proceedings for failing to disclose a reasonable cause of action and abuse of process under O 12, r 40 of the National Court Rules. They argued there were no police officers or polling officers present at the polling area to then establish a nexus between the fight that occurred and the absence of the policemen and polling officials. The destruction and looting of the plaintiffs' property were done by third parties. The issue was, should the defendants be liable for damages because they were not there at that time and could have prevented the raid?

32. Davani, J noted the action was one of negligence and in order for the plaintiffs to succeed on the claim, not only must they plead the material facts establishing the elements of negligence such as the defendants owing a duty of care, breach of the duty and damages arising from the breach, but must also lead evidence in support of them. Her Honour held there was no reasonable cause of action and the proceeding was an abuse of process because, among other reasons, the defendants were not responsible for causing the fight, destruction and looting of the plaintiffs' property. This is how she reasoned it:

"........that a Tort should firstly be committed by a policeman or policemen or electoral official/s in compliance with a lawful order which would then make the State vicariously liable for their actions. This is where s. 1(4) of the Wrongs Act is especially relevant. The only time the State can assume liability is if its officer '......commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed by virtue of instructions lawfully given by the Government' (my emphasis). In this case, there is no nexus or connection between the government officials' actions and the fight because the policemen and polling officials were not at the scene of the fight."

33. In Titus Wambun's case, Mr Wambun was charged and indicted for wilful murder. He was subsequently convicted of manslaughter. The conviction was later quashed by the Supreme Court. He sued the police and the State for malicious prosecution. He obtained default judgment against the police and the State after they failed to file a defence. The matter went before Manuhu, J for directions hearing and his Honour fixed the matter for trial. After his Honour adjourned, he noticed counsel for the police and the State had already signed a statement of agreed and disputed facts and took no issue with the facts pleaded in the statement of claim even though Mr Wambun had not filed any affidavit in support of the substantive claim. His Honour recalled the matter and enquired with counsel for parties in relation to how Mr Wambu could sue the arresting officer for malicious prosecution when he was committed by the committal Court and convicted by the National Court. This was the cause of action issue.

34. Although his Honour called for submissions on the issue, neither counsel made submissions and his Honour was left to determine it on his own. His Honour held that Mr Wambun could not maintain an action against the police and the State because in the first instance, the arresting officer must have relied on witnesses' statements to arrest and charge him and then he was brought before the committal Court and based on the evidence, and not on who was the arresting officer, committed him to stand trial in the National Court. The National Court then, based on the witnesses' evidence, and not on who was the arresting officer, convicted him for manslaughter and imprisoned him. For these reasons, his Honour found that the claim for malicious prosecution was inherently flawed and dismissed the entire claim. A relevant feature of the case is that, there must be a cause of action and the facts pleaded in the statement of claim must disclose a cause of action.

35. I think that point was the very point the then Deputy Chief Justice late Sir Mari Kapi was making in Keith Reith -v- Murray Hallam and Allcad Pty Ltd (1995) N1337, when commenting on the effect of a default judgment. This is what his Honour said:

"What then is the effect of a default judgment? A Writ of summons should disclose a cause of action in law. That is to say it should allege matters of fact which gives rise to a cause of action in law. In this case the statement of claim alleges a valid contract of employment, breach of that contract and claims damages based in the terms of the contract.

Where default judgment is entered in an unliquidated demand (as in this case) the fact which gives rise to the question of liability are settled. The effect of default judgment in this case is that there was a valid contract of employment and that there was a breach of that contract. All the facts and legal issues relating to liability are no longer in issue.

Assessment of damages involves consideration of the terms of the contract and assessing the damages that flow from the breach of the terms of the contract." (Emphasis added).

36. Very recently in October 2011, actions against police for failure or inaction in the performance of their functions was decided by the National Court in the case of Catholic Diocese of Wabag Board of Trustees -v- Enga Provincial Government, Gari Baki Commissioner of Police & The State: WS No 1416 of 2008 (Unnumbered & Unreported Judgment of 24th October 2011) by Thompson, AJ. That was a case where the plaintiff sued the defendants for damages arising from a tribal fight between two warring tribes, the Ambulin and Wapukins in Wapenamanda, which spread to include the Sinkin, Mangalya and Kumbakin tribes in 2007. The plaintiff alleged it owned a Mission Station, Girls Vocational School and Primary School where were on Sikin and Mangalya land. The plaintiff further alleged the Ambulin tribesmen completely looted and burned down the buildings and their surrounding gardens. As a result, it lost buildings worth nearly K7 million, and contents and personal effects worth about K700,000.00.

37. Although the plaintiff alleged the loss was caused by the Ambulin tribesmen, it did not sue them. Instead, it sued the Enga Provincial Government, the Police and the State. The plaintiff alleged the defendants were negligent, and as a result, the property was destroyed. Her Honour referred to Hill's case, R -v- Metropolitan Police Commander, ex parte Blackburn [1968] 1 All ER 763, R -v- Chief Constable of Devon and Cornwall Constabulary, ex parte Central Electrical Generating Board [1981] 3 All ER 826, Caparo Industries PLC -v- Dickman [1990] UKHL 2; [1990] 2 AC 605, Sutradhu -v- Natural Environment Research Council [2006] EWHC 3083; [2006] 4 All ER 490 and Smith -v- Chief Constable of Sussex Police (2008) EWCA CIV 39 and noted that these cases held that the police owe no duty to the public at large and so cannot be liable to a person who suffers loss by their failure to act.

38. These cases reaffirmed the common law position that the police owe no duty of care to the public at large. Further, there will be no duty of care if it is against wider policy issues, such as where it may adversely affect the way in which the police carry out their duties for fear of litigation.

39. The common law is consistent with section 197 of the Constitution where the police have a responsibility for maintaining law and order but are subject to no specific requirement as to the way in which they do it. The common law in England prior to Independence is applicable where appropriate in PNG as part of the underlying law pursuant to Schedule 2.2 of the Constitution. In my view, these principles developed in Hill's case and adopted by the Courts of other common law jurisdictions such as Australia, Fiji, Kiribati, Tonga and very recently, PNG, are sound, appropriate and consistent with the Constitution and I would adopt and apply them in this case.

40. These principles are sound, appropriate and consistent with the Constitution because if the law were to impose or create specific duty of care on the police in the discharge or performance of their duties, it will result in all manner of litigation against them and the State. It is common knowledge the police force has inadequate manpower and resources to maintain law and order in the country. Time and again, police manpower and resources have been stretched to the limit, and in my view, it would be unwise and inappropriate to impose or subject them to specific requirements as to the way they discharge or perform their duties.

41. In the present case, the destruction and looting of the plaintiff's property was done by third parties, namely villagers and traditional landowners of the tea plantation land. The police were not the ones who destroyed and looted its property. The allegation that the police owed a duty of care to protect its property and should have attended and stopped the destruction and looting, does not exist in law because the police owe no duty of care to the public at large and it is against public policy. As it has failed to establish the existence of a duty of care, there cannot be a breach of that duty by the defendants. It follows the defendants cannot be liable for the damages caused by the third parties.

43. In his written submissions, the plaintiff's counsel further submitted the plaintiff's further cause of action is trespass. The pleadings in relation to this cause of action are vague in so far as they relate to the defendants. The best one can work out from the pleadings and as noted in detail above, the alleged acts of trespass were by third parties, namely villagers and traditional landowners of Wara Wau tea plantation land. Further to that and of most significance is that, the allegations against the defendants for trespassing on the plaintiff's property are mere conjunctures because the primary cause of action the plaintiff relies on is negligence. Thus, allegations at paragraph 26 of the statement of claim in relation to the third defendant allegedly removing the plaintiff's water catchment tank, TV, freezers and furniture are made in passing to support the general allegation that the defendants, as members of the police force, owed a duty of care to it and breach that duty, hence were negligent. Accordingly, I find the allegations supporting the cause of action in trespass untenable and dismiss it.

44. The plaintiff's further cause of action is based on conversion. For the same reasons I have expressed above, I dismiss it.

45. The plaintiff's other cause of action is detinue. For the same reasons I have expressed above, I dismiss it.

46. Finally, the plaintiff seeks enforcement of various rights under the Constitution. From paragraphs 32-34 of the statement of claim, the plaintiff pleads breaches of constitutional rights under sections 41, 57 and 58 of the Constitution. Section 41 provides that any act done under a valid law is an unlawful act if:

(b) it is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c) it is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.

47. There are two difficulties with these pleadings under the Constitution. The first is, there are no affirmative acts alleged against the defendants that would be seen as breaching those rights in the Constitution. Generally, the plaintiff has pleaded the defendants have failed or omitted to prevent or stop third parties from destroying or removing chattels and coffee trees from its tea plantation. Enforcement of constitutional guaranteed rights is enforceable if the perpetrators' actions are affirmative.

48. Secondly, the plaintiff has not pleaded that it is a foreign owned company. The lack of it contradicts and does not support the plaintiff's claim that the defendants' actions and omissions were racially motivated or dictated. What the Court knows is that, at paragraph 1 of the statement of claim, the plaintiff alleges it is a nationally owned company and registered in Papua New Guinea. I infer therefore, it is owned by Papua New Guineans citizens, thus rendering its claim of racial discrimination absurd.

49. For these reasons, I find the plaintiff's claim for enforcement of its constitutional rights untenable and dismiss it.

50. I find no cause of action arise in respect of non-feasance acts. Thus, the allegations of police inaction as the basis of the various actions are untenable. And so, having heard from the plaintiff in respect of the issue raised by the Court, and in the exercise of the Court's inherent powers to protect itself from abuse, I dismiss the proceedings for failing to disclose a reasonable cause of action and an abuse of process under O 12, r 40 of the National Court Rules.

1. The proceedings is dismissed for failing to disclose reasonable cause of action and an abuse of process.

3. Time for entry of these orders be abridged to the date of settlement by the Registrar which shall take place forthwith.
____________________________________________________________
Simon Norum & Co Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the Defendants

National Court of Papua New Guinea

Macoes (PNG) Ltd v Kundi (PPC) [2008] PGNC 301; N4621 (26 January 2008)