N3823

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

W.S. NO. 1349 OF 2003

BETWEEN:

PHILIP LELI TAKORI, For and on behalf of Himself and on behalf of BEN KOMAE, JEFF LITA, TAPUKAI LI LITA, YAS LAKAIN, TOM AIPI, DAVID TIMON, PAULUS PALIRO, WILLIAM ROBERT, ANDREW MALIPU.
Plaintiffs

AND:

SIMON YAGARI, as The Commander and the Member of Police Mobile Squad 5 & 6
First Defendants

AND:

GARI BAKI, COMMISSIONER OF POLICE
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPA NEW GUINEA
Third Defendant

Waigani: Davani .J
2009: 16th July
2010: 4th January

PRACTISE AND PROCEDURE – Application for summary judgment – police raid – policemen involved not named in Writ as defendants – only the State is named.

PRACTISE AND PROCEDURE – Policemen must be identified and named – must utilize discovery process before suit – O.3, RR. 1, 2, 3 and 4 of the National Court Rules.

PRACTISE AND PROCEDURE – Summary judgment – should not be entered where alleged wrongdoers not named – vicarious liability not established – s.1 of Wrongs (Miscellaneous Provisions) Act Chapter 279

Facts

The plaintiffs are applying for summary judgment because the defendant State has not filed a Defence. The issue of whether the State is vicariously liable for the actions of its servants and agents arises. But the State's servants and agents, in this case, policemen, who were allegedly involved in the police raid, are not named. 

Issue
Should the alleged wrongdoers be named?

Reasoning
For the nexus to be established between the wrongdoers and the named employer, the wrongdoers must be named, before a claim for vicarious liability can succeed.

Counsel

J. Kama, for the Plaintiffs/Applicants
No appearance for and on behalf of all defendants

DECISION

4th January, 2010

1.	DAVANI, J: Before me for hearing are the following motions:

(i)	Notice of motion filed by Phillip Leli Takori on 22nd July, 2008 seeking summary judgement;

(ii)	Amended Notice of Motion filed by Phillip Leli Takori on 9th July, 2008 seeking default judgment;

(iii)	Notice of Motion filed by the office of the Solicitor-General on 11th June, 2002 seeking leave to file Defence out of time.

2.	On 16th July, 2009, the plaintiff withdrew his motion for default judgement.

Preliminary Background

3.	When the motions were first mentioned before me on 8th July, 2009, Ms. S. Kikala of the Solicitor-General's Office was in attendance. She informed the Court that she will be opposing the application by the plaintiff and will also be moving her application for leave to file all Defendants' Defence out of time. I then adjourned all motions to 16th July, 2009 for hearing as a special fixture.

4. I also noted that the case has a long history which briefly, is as follows;

(i)		18.04.03	Original Writ of Summons and Statement of claim filed by J.B. Nanei Lawyers for and on behalf of the named plaintiffs.	
(ii)		19.12.09	Notice of intention to Defend filed by the Solicitor-General's office.	
(iii)		17.06.04	Notice of Intention to Defend filed by Paul Paraka Lawyers.	
(iv)		24.06.04	Notice of Motion filed by Paul Paraka Lawyers seeking dismissal of the proceedings for the principal plaintiff's lack of authority to bring the action and generally, for the proceedings not disclosing a cause of action.	
(v)		09.07.04	Notice of Motion filed by principal plaintiff Phillip Takori, seeking summary judgment or alternatively, that Paul Paraka's motion be struck out.	
(vi)		16.07.04	All the motions were moved before David AJ (as he then was).	
(vii)		17.09.09	David, AJ handed down his ruling/decision, dismissing the whole proceedings and for the plaintiffs to pay the costs of the whole proceedings.	
(viii)		26.10.09	The Plaintiffs lodged an appeal in the Supreme Court appealing David, AJ's decision albeit, that it be quashed and that the National Court proceedings continue;	
(ix)		20.03.06	The Supreme Court heard the appeal;	
(x)		29.02.07	The Supreme Court handed down its decision upholding the appeal;	
5.	The Supreme Court made the following orders;

"1. The appeal is upheld;

2. WS1349 of 2003 between Philip Takori & Ors and Simon Tagari & Ors is reinstated; 

3, The notice of motion filed by the Respondents / Defendants in WS 1349 of 2003 on 24 June 2004 is dismissed for abuse of the process of the Court; 

4. The defence filed by the Respondents / Defendants in WS 1349 of 2003 on 22 December 2003 is struck out for abuse of the process of the Court; 

5. The Appellants/Plaintiffs in WS 1349 of 2003 shall file and serve within 30 days from today an amended statement of claim, clearly pleading; :

(a) the capacity and authority with which Mr. Philip Takori is suing;;

(b) particulars of each and every plaintiff Mr. Takori is representing and those plaintiffs' approving the issuing and maintaining of the proceedings;

(c) details and particulars of each of the plaintiff's loss and damage; and

(d) if the plaintiffs' wish to name the police commissioner as a party, name the incumbent;

6.	Costs to the Appellants to be paid by the Respondents and such costs shall be agreed if not taxed."

(xi)	26.03.08	The plaintiffs filed amended Writ of Summons and statement of claim.	
(xii)	22.07.08	The plaintiffs filed Notice of Motion seeking orders for summary judgement.	
(xiii)	11.06.09	Notice of Motion filed by Solicitor-General's office seeking leave to file Defence and of time.	
(xiv)	09.07.09	Notice of Motion filed by the plaintiffs seeking default judgement.	

This Application

A.	 Solicitor- General's appearance

6. At the hearing of this application for summary judgement, Ms Kikala of the Solicitor–General's office was not in Court. I found that odd because she was in Court on 8th July, when I adjourned to 11th July and so was aware that the matter was diarised, to proceed as a contested hearing. With no advice from either her or her colleagues, as to the reasons for her absence in Court or more particularly, the State's representation, I then proceeded to hear Mr. Kama, counsel for the plaintiff, in the absence of representation for the State.

B.	Statement of Claim.

7. Firstly, I must determine whether the plaintiffs have complied with the Supreme Court's orders of 29th February 2009. The plaintiffs were to have filed an amended statement of claim "… clearly pleading," the capacity and authority with which Mr. Phillip Takori is suing" (see par.5 of Supreme Court's Orders). "The plaintiffs were to also clearly plead in the amended state of claim "particulars of each and every plaintiff Mr. Takori is representing and those plaintiffs approving the issuing and maintaining of the proceedings " (see par.5(b) of Supreme Court's Orders). The State did not challenge the adequacy or not of these pleadings, only filing an application for leave to file Defence out of time, which it did not move, because Ms Kikala chose not to attend the hearing.

8. The pleadings remain as they are, its adequacy or not, not having been tested. As far as the plaintiffs are concerned, they have complied with the Supreme Court's orders. I have on reviewing the Court file, noted several signed consents and authorities, authorising Philip Takori to represent the persons giving the consents and authorities, in this case. As these have not been contested by the State, I will accept them as sufficient authorisation.

9. I must also add further that apart from it being odd that Ms. Kikala chose not to be in Court that afternoon, as I saw it, that this is another claim, which when handled by Paraka Lawyers, was strenuously defended and dismissed but when it reverted to the Solicitor-General's office, the lawyer with carriage of the matter chose not to defend the application which she obviously is aware, is a claim which may be in excess of K1 million. I do not know of the administrative steps usually taken by the Solicitor-General in relation to the disciplining of a lawyer who flagrantly and purposely fails to perform his or her duties, but Ms. Kikala in my view, should be disciplined by the Solicitor-General for not performing her duties which is to protect the interests of the Independent State of Papua New Guinea, without fear or favour.

C. Summary judgment

10. The plaintiffs Notice of Motion filed on 22nd July, 2008 moves that "summary judgment be entered in favour of the plaintiffs pursuant to Order 12 Rule 38 of the National Court Rules where the defendants have failed to file a Defence."

11. O.12 r.38 of the National Court Rules ('NCR') reads;

 "Summary Judgement (13/2)

(1) Where, on application by the plaintiff in relation to any claim for relief or any part of any claim for relief of the plaintiff –

(a) There is evidence of the facts on which the claim or part is based; and

(b) There is evidence given by the plaintiff or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed,

the Court may, by order, direct the entry of such judgment for the plaintiff on that claim or part as the nature of the case requires.

(2) Without limiting sub-rule (1) of this Rule, the Court may under that sub-rule direct the entry of judgment for the plaintiff for damages to be assessed.

(3) In this rule, "damages" includes the value of goods".

12. Since the filing and service of the amended statement of claim upon the office of the Solicitor-General, the defendants have not filed a Defence. Although it filed a notice of motion seeking leave to file Defence out of time, its employed lawyer did not appear to move its motion. 

13. But should the plaintiffs have moved the application for summary judgement in the manner that they did? I say this because it appears, based on the supporting affidavits filed by the defendants, that the plaintiffs did not give the defendants, notice of their intention to apply for summary judgement. What does the evidence say?

14. The affidavit in support by Phillip Takori sworn on 21.7.08 deposes that since service of the amended statement of claim upon the State, that the State did not file its Defence. The affidavit deposes further that the Supreme Court 'dismissed' the defendants Notice of Intention to Defend and Defence. Did the Supreme Court do that?

15. The Supreme Court discusses at length the fact that the defendants were out of time when they filed their Notices of Intention to Defend. That they should have sought leave of the Court before filing their Defence. The Supreme Court did not dismiss the Notice of Intention to Defend but it struck out the Defendants' Defence filed on 22nd December, 2003. Therefore, in these amended proceedings, the Defendants should have re-filed and re-served a Defence. They did not have to file Notice of Intention to Defend.

16. Based on that scenario in the pleadings, the plaintiffs should have given the Solicitor-General's Office, notice of the application for summary judgment. The Supreme Court in its published reasons (Philip Takori and Ors v. Simon Yagari and 2 ors SCA 151 of 2004 dated 29.02.08 (SC905)), eloquently admonished the manner in which Paraka Lawyers moved the application to dismiss, remonstrating Paraka Lawyers for not firstly giving notice of the application and suggesting that Paraka Lawyers could have pursued other alternatives, rather than applying to dismiss. In my view, because the Office of the Solicitor-General is on record as acting for the defendants by the Notice of Intention to Defend it filed, that the plaintiffs should have put it on Notice that they would be filing a motion for summary judgment. The process in a court action, is not one of ambush, but one of ensuring fair play by all involved. If a plaintiff wants to have his day in Court and instigates an action, then he must be prepared to withstand the many adversities he will encounter along the way. The processes in litigation are there to enable and ensure transparency and eventually, justice. The Court process must not be hijacked for personal attainment and self-satisfaction and the Court must be vigilant in ensuring, that these processes are followed. In my view, the plaintiffs should have given the defendants notice of their intended application for summary judgment, rather then file, without first giving notice. I also hold the view that because the Office of the Solicitor-General is on record as acting for the defendants, by the filing of its Notice of Intention to Defend, that the plaintiffs must fore warn the Solicitor-General's Office of their intention to apply for summary judgment which is the same practice exercised in applications for default judgment. (See Practise Direction NCR 1/87 and Mapmakers Pty Ltd v. Broken Hill Proprietary Company Limited (N588)). The application for default summary judgment will fail on that basis alone.

17. Rather than stop here, I will go one step further by assessing whether summary judgement can be entered on the pleadings in the amended statement of claim? I ask this because it is what is pleaded in the Statement of Claim that will determine whether the applicants are entitled to what they seek.

18. The plaintiffs plead that the third defendants are, "viciously" liable for the first and second defendants' actions (par. 9&10 of amended statement of claim). But I note this is probably a typing error because the plaintiffs correctly spell "vicariously" at par. 4 of the amended statement of claim.

19. Although the defendants have not filed a Defence to the claim, the court is still entrusted with the responsibility of ensuring that summary or default judgment is entered on a properly pleaded statement of claim. This is so because when summary or default judgment is entered on a claim of this nature, the Court is saying that the following have been established;

(i)	That the State's servants and agents are known to the plaintiffs and have been named;

(ii) That the State's servants and agents are named as defendants in the proceedings;

(iii) That the identified servants and agents were acting in the course of their employment when the alleged incident/accident/illegal event occurred;

(iv) That the State's instrumentality had authorised its named servants or agents, to carry out those activities;

(v) And that therefore, the State is vicariously liable for the actions of its servants and agents.

20. To establish liability in a claim where vicarious liability is alleged, the persons the plaintiffs claim to be involved in the "illegal" activity must be named. (my emphasis). This is to enable or allow them to plead in the statement of claim, the alleged 'illegal' activities or activity, done by the named defendants. Additionally, they would have to plead whether these named defendants performed these 'illegal' activities whilst in the course of their employment with the State (my emphasis). And of course, the employer must be named as well. The pleading in relation to the named defendant employer will be that it had authorised the named employees' actions, that they were authorised to carry out these activities and were acting in the course of their employment with the State agency when the alleged incidents occurred.

21. The state of the plaintiffs' statement of claim does not do that. To further consolidate and reinforce what I am saying, I refer to cases in this jurisdiction which I randomly selected, where the Courts in assessing damages after entry of default or summary judgment in claims for damages against the State, could not award exemplary damages because the State's servants or agents were not identified and named. What the Courts in these cases said, demonstrates the necessity for the servants and agents to be named. I am of the view that if they are not named, then default or summary judgment should not be entered and should not have been entered in the first place. Or even if it is entered, the trial judge hearing the assessment, should revisit the aspect of liability because of that very significant legal anomaly. (See Coecon Ltd (Receiver/Manager Appointed) v. National Fisheries Authority (2002) N2182). I set out below, cases where the Courts were faced with this dilemma.

i.	Bale Karopo v. Provincial Police Commander of New Ireland Province (2003) N2472 dated 03.07.03. 

In that case, on the hearing of an application for enforcement of Human Rights as a result of alleged assaults by policemen, the trial judge said this;

"I have a strong view that the State cannot be made a scapegoat to bear exemplary damages unless it is proven by evidence that the State officially sanctioned, directed or approbated such brutal attacks in the circumstances of these cases and in other cases like police raids and so forth; James G. Koimo v. The Independent State of Papua New Guinea [1995] PNGLR 535. The State must not be held liable for wrongful actions of protagonists..."

 (my emphasis)

ii.	Steven Kirino v. The State [1998] PNGLR 351 (N1816) dated 25.06.98

This is a case where default judgment was entered where policemen allegedly involved were not named in the Summons. The Court proceeded to assess and award damages. On the question of who was to pay exemplary damages, the trial judge said this;

"As it is, I do not consider that the State should be punishable for an act that it did not authorise or sanction. Consequently, I would not award exemplary damages."
 (my emphasis)

iii.	In the matter of an application for enforcement of Human Rights; and in the matter of an application of Michael Xystus Tataki [1996] PNGLR 90 (N1439).

This was an application for enforcement of human rights for alleged destruction of property by policemen. The plaintiff commenced proceedings by MP. The Court was faced with the dilemma of what process the pleadings should take considering the National Court Rules do not provide for a process in MP proceedings. The trial judge held, amongst others, that the applicant must properly identify the person or persons who infringed his rights and freedoms and so refused to find for the plaintiffs on the question of liability.
(my emphasis)

iv.	Toglai Apa and Bomai Siune and Others v. The State (1995) PNGLR 43

The matter went before the trial judge for assessment of damages after entry of default judgment. It was a claim by villagers for alleged destruction of their properties by policemen in a raid upon their village. The Court proceeded to award damages but said this in relation to exemplary damages;

"It would be more appropriate in cases such as this to join the responsible offenders as parties to the proceedings so that, in the event that such claims succeed, then damages, including exemplary damages, if considered appropriate, can be awarded against those responsible…"
 (my emphasis)

22. I have referred to these cases to complement my earlier views that default or summary judgment should not be entered where the servants or agents of an employer are not named on the Writ. If they are not named, then there is no nexus between the named employer and the employee. Then, judgment should not be entered. In any other claim, not a police raid claim, where plaintiffs rely on the fact that whilst in the course of his/her employment, the employee committed the wrong, his claim cannot succeed if he does not name the employee who drove the truck or was the pilot of an aircraft or the captain of a boat or the doctor, who performed the operation etc, etc. (see South Pacific Brewery Limited v. Steamships Limited trading as East West Transport WS 819 of 2007 dated 21.9.09). 

23. As with police raid cases in the cases set out above, the trial judges could not award exemplary damages because the policemen who allegedly perpetrated the assaults, etc, had not been named as parties in the proceedings. In my view, judgment should not have been entered in the first place, with that existing serious anomaly.

24. I should go one step further by saying that because the Courts have allowed the entry of judgment on such deficient pleadings, there have been instances where claimants have succeeded in receiving large payouts from the State for false claims. These payouts would have been avoided if the Courts had insisted on compliance with the process of the law, in this case, the naming of employees or perpetrators in alleged wrong-doings. 

25. It is a known fact, that those who commence litigation are those who venture out of the usual village settings and almost always, secure the services of lawyers. The lawyer must then, explore all legally available avenues, to identify the policemen, allegedly involved. The Courts cannot continue to espouse the view that because the plaintiffs are villagers, that they are not in a position to identify the policemen involved. 

26. In my view, the discovery process is there to assist litigants. That process must be explored and utilized as is applicable to all other litigants in other claims. The Police Headquarters or the police station will hold records of officers on duty that day or night. The litigants should discover these records, then name the alleged wrong doers. Discovery before suit is provided for at O.3 R.1, 2, 3 and 4 of the National Court Rules. That process must be explored first.

27. As for this case, the Plaintiffs should seriously consider amending their statement of claim to include the names of policemen involved in the raid. The named first defendant is only the Commander of the Squad that allegedly attacked the village. The policemen under his command that night must be named as defendants.

28. I will refuse the application for summary judgement. In relation to the possible application to amend, I leave that to the plaintiffs to do in their own time, after they obtain the necessary information through either normal enquiries or the interlocutory process.

29. In relation to costs, I order that each party pay their own costs of the application because the State did not appear to oppose the application.

Formal Orders

1. The application for summary judgement moved by Notice of motion filed by Phillip Leli Takori on 22 July, 2008, is dismissed.

2. All parties are to pay their own costs of the application. 

Saulep Lawyers: Lawyer for the plaintiffs/applicants
No appearance for and by the defendants