N6445
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 908 OF 2011

BETWEEN:

ORI PAI also known as ORI PUTI
Plaintiff

AND:
TALA OBOKO, in the capacity as The enforcement officer of KAVIENG URBAN LOCAL LEVEL GOVERNMENT
-First Defendant-

AND:
KAVIENG URBAN LOCAL LEVEL GOVERNMENT
-Second Defendant-

AND:
PETER TOBATA, DICKSON SARIMAYA & CHRIS NIMIAN, in their capacities as The members constituting KOPKOP URBAN VILLAGE COURT
-Third Defendant-

AND:
BONNIE CHAN in her capacity as the Clerk of the KAVIENG DISTRICT COURT
-Fourth Defendant-

AND:
ORIM KARAPO in his capacity as the KAVIENG DISTRICT COURT MAGISTRATE
-Fifth Defendant-

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Sixth Defendant-

Kokopo:  Anis, AJ
2016:  7th & 20th September

MOTION – Defendants seek to dismiss the entire proceedings – Order 12 Rule 40(1) of the National Court Rules - defendants allege no reasonable cause of action, frivolity and abuse of the court process - motion contested - first and third grounds sustained - proceeding commenced against the 4th and 5th defendants is dismissed

Facts

The plaintiff filed this proceeding under the Constitution and the common law seeking damages for alleged false arrest and imprisonment, for alleged infringement of his Constitutional rights and for alleged negligence.  The defendants apply to dismiss the proceedings on three (3) grounds namely for want of reasonable cause of action, for frivolity and for abuse of court process.

Held

1.	A plaintiff can commence a writ of summons proceeding directly under sections 57 and 58 of the Constitution apart from proceeding under Order 23 of the National Court Rules.

2.	To plead under the National Court Rules merely requires a plaintiff to state the material facts and not to characterise the legal framework or plead law or plead evidence of alleged facts.

[Cases referred to: Richard Dennis Wallbank and Jeannette Minifie v. The State [1994] PNGLR 78; Ludger Luker Mondo v. Kerenga Ben Okoro, Leo Tualir and Electoral Commission of Papua New Guinea [1992] PNGLR 501; Paul John v. Gerd Lindhardt & Servicom Pty Ltd (1999) N1938]

3.	The plaintiff's mode of commencement of proceeding is in order or is sufficient.

4.	The immunity that is provided to a District Court Magistrate under Part XII of the District Courts Act Chapter No. 40 is also applicable to a District Court clerk.

5.	The plaintiff's cause of action commenced against the 4th and 5th defendants was dismissed for want of reasonable cause of action and for abuse of the Court's process.

Case cited:
Ludger Luker Mondo v. Kerenga Ben Okoro, Leo Tualir and Electoral Commission of Papua New Guinea [1992] PNGLR 501
Mathias Goma v. Protect Security and Communications Ltd (2013) SC1300
Paul John v. Gerd Lindhardt & Servicom Pty Ltd (1999) N1938
PNG Forest Products Pty Ltd and Inchcape Berhad v. The State, Jack Genia, Minister for Forests [1992] PNGLR 85
Richard Dennis Wallbank and Jeannette Minifie v. The State [1994] PNGLR 78

Counsel:
Mr D Wesley, for the Plaintiff
Ms E. Takoboy, for the Applicants/Defendants

RULING ON MOTION

20th September, 2016

1.	ANIS AJ:  This is my ruling on a notice of motion filed by the defendants.  The motion was filed last year on 26 October 2015.  For reasons only known to the parties, it was not moved earlier or soon after it was filed.  On 30 August 2016, the parties set down the motion and it was heard at 9:30am on 7 September 2016.

2.	At the end of the hearing, I reserved my decision to a date to be advised.  I rule on it now.

MOTION

3.	The main relief sought in the motion is and I read:

The entire proceedings be dismissed for being frivolous and vexatious and abuse of the process of the Court pursuant to Order 12 Rule 40 of the National Court Rules;

4.	At the start of the hearing, I asked the defendants' counsel to specify what grounds she intends to rely on.  This was after I had noticed that the source cited in the motion was vague in that it did not specify the sub-rule of Order 12 Rule 40 of the National Court Rules.  In response, counsel submitted that she would be relying on all three (3) grounds under sub-rule (1) of Order 12 Rule 40.  Counsel for the plaintiff did not raise any point or objection concerning the preliminary issue.  I allowed the defendants to proceed on that basis.

ORDER 12 RULE 40(1)

5.	Order 12 Rule 40(1) states and I read:

(1)	Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—
(a)	no reasonable cause of action is disclosed; or
(b)	the proceedings are frivolous or vexatious; or
(c)	the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

EVIDENCE

6.	The defendants rely on the Affidavit of Herald D Papaol filed on 26 October 2015.

7.	The plaintiff on the other hand relies on his own affidavit filed on 28 November 2013.

ISSUES

8.	The issues are as follows:

(i)	Considering the pleading, whether the plaintiff has filed the correct mode of proceeding.

(ii)	If so, whether there is a cause of action against the 4th and 5th defendants.

(iii)	If not, whether the entire proceeding can be maintained.

MATERIAL FACTS

9.	The material facts are not in issue.  Both counsel have re-stated them in their presentations as well as in their written submissions.  The plaintiff is a betel nut vendor in Kavieng.  A law was passed by the Kavieng Urban Local Level Government called the Betel Nut Sale and Chewing Control Law, 1998 (the Regulation).  In August 2008, the plaintiff was charged for illegally selling betel nut at a prohibited area, contrary to the Regulation.  On 13 August 2008, the plaintiff was tried by the third defendant or the Kopkop Urban Village Court (Village Court).  The plaintiff was found guilty and he was fined K100 by the Village Court.  The plaintiff paid the fine on 1 October 2008.  After that, the plaintiff appealed the decision to the District Court on the basis of excess of jurisdiction by the Village Court.  On 2 September 2008, the Kavieng District Court dismissed the plaintiff's appeal.  After this incident and on three (3) separate occasions between 2008 and 2009, the plaintiff was charged with the same offence; he was brought to the same Village Court and fined on these three (3) occasions.  He paid K100 fine totalling K300.

10.	Let me discuss his last fine (i.e., from the three (3) occasions) which is relevant for this purpose.  The plaintiff was charged on 15 April 2009 for breaching the Regulation.  He was summoned to appear before the Village Court on 21 April 2009.  The plaintiff appeared on that date.  He was found guilty by the Village Court and fined with K100.  The plaintiff paid the fine.  The Village Court this time also ordered the plaintiff to stop selling betel nut on the prohibited area.

11.	On 4 May 2009, upon request by the first and second defendants, the Kavieng District Court heard and issued a warrant of commitment against the plaintiff.  The warrant appeared to have been issued against the plaintiff to enforce the Village Court's order that was made on 21 April 2009.

12.	On 7 May 2009, the plaintiff was arrested by the police under the warrant and the plaintiff was imprisoned for ten (10) weeks.  The plaintiff served his prison term and he was released.

PRESENT CLAIM

13.	About two (2) years after the plaintiff had served his prison term, he commenced this proceeding.  The proceeding was filed on 11 August 2011.  The plaintiff pleads two (2) causes of action, namely, alleged breach of constitutional rights and alleged negligence under the common law.  The claims, in my opinion, allege three (3) main things.  The plaintiff's counsel, in his written submission, also highlights these.  I summarise them as follows:

(i)	the plaintiff firstly alleges at paragraph 23 of his statement of claim that he was falsely arrested and imprisoned in breach of his rights under the Constitution (first claim);

(ii)	the plaintiff secondly claims that the various proceedings commenced against him at the lower courts were illegal (part of first claim);

(iii)	the plaintiff' thirdly claims that the defendants owed him a duty of care in regard to the matters pleaded as well as alleged under the first and second claims, and that the defendants had breached that duty of care (second claim).

MODE OF PROCEEDING

14.	I note that during the hearing I queried the plaintiff's counsel regarding the mode of proceeding.  I asked counsel whether the proper mode should have been by way of an appeal, or by way of a judicial review or by way of human rights proceedings as set out under Order 23 of the National Court Rules.  Counsel, in my opinion, did not assist with detail submissions on point.  The plaintiff's counsel in summary said that his client's action was commenced under the common law.  

15.	I note that I have already ruled above in regard to the causes of action, namely, the plaintiff's causes of action are for breach of his constitutional rights and for negligence under the common law. 

16.	Having clarified this, I note that by law, the plaintiff is entitled to claim compensation based on alleged breach of his constitutional rights.  This is expressly provided for under Order 23 of the National Court Rules.  Rule 7 therein sets out the various modes of commencing actions under Order 23.  It states and I read:

7.	Commencement of Proceedings by a Party.

(1)	A human rights proceeding may be commenced by:

(a)	a Writ of Summons, in which case the file reference shall be “WS (HR)”;
(b)	an Originating Summons, in which case the file reference shall be “OS (HR)”;
(c)	filing a Human Rights Enforcement Application in Form 124, in which case the file reference shall be “HRA”.

(Underlining is mine)

17.	I note that the plaintiff did not commence this proceeding under Order 23 of the National Court Rules or under the human rights proceedings.  However, I note that Order 23 is not an exclusive process for one to adopt to commence proceedings for enforcement of or for breach of constitutional rights.  The said rule was created simply to facilitate enforcement of constitutional rights under section 57 and section 58 of the Constitution.  I say this because I note the purpose of Order 23, which is expressly stated under Rule 2.  It states and I read:

2.	Purpose.

The purpose of these Rules is to facilitate a quick and just resolution of Court proceedings instituted under Sections 57 and 58 of the Constitution for enforcement of the Basic Rights (also known as “Human Rights”) and for enforcement under Section 23 of the Constitution of prohibitions, restrictions or duties imposed by the Constitutional Laws and of related matters.

18.	I note that prior to the creation and operation of Order 23 of the National Court Rules, parties have filed proceedings directly under sections 57 and 58 of the Constitution to enforce their rights.  In my opinion, this practice still exists despite the existence of Order 23.  I think that in a statement of claim, as long as the pleading can show such purpose or intention, that should be sufficient, that is, in determining whether the cause of action is one of or include a claim for enforcement of or for breach of constitutional rights under sections 57 and 58 of the Constitution.  The case law on pleading appears settled in this jurisdiction.  For example, I refer to the case Richard Dennis Wallbank and Jeannette Minifie v. The State [1994] PNGLR 78 where the Supreme Court said and I read:

The National Rules do not require a plaintiff to characterise his cause of action within a legal frame work, although he has in fact done that when calling the estates claim as one for "loss of expectation of life". The National Court Rules merely ask that the plaintiff plead the facts on which he seeks to rely. [Order 8 r. 7]. If established, on the evidence at the hearing, the Court may find an award for damages according to any principles of law which have developed whether by common law, statutory effect or development in Papua New Guinea on a case by case basis. There is no need "to put a label on his cause of action".

[See also cases: Mondo v. Okoro [1992] PNGLR 501; Paul John v. Gerd Lindhardt & Servicom Pty Ltd (1999) N1938]

19.	I am therefore satisfied that the plaintiff's claim for breach of his constitutional rights as sought by filing a writ of summons and statement of claim is properly before this Court. 

20.	In regard to the plaintiff's cause of action for negligence, I do not think there can be any valid argument against that.  It is a common law action or tort which is readily available in this jurisdiction [See section 20(1) of the Constitution; section 3(1)(b) of the Underlying Law Act 2000; also the case of Mathias Goma v. Protect Security and Communications Ltd (2013) SC1300].  I am therefore also satisfied that the plaintiff's claim for negligence (together with his alleged claim for breach of his constitutional rights) is properly pleaded using a correct mode of proceeding before the National Court.

IMMUNITY AGAINST THE 4th and 5th DEFENDANTS

21.	The defendants allege that the 4th and 5th defendants are immune to the proceedings.  The defendants also raise the issue of time bar.

22.	In support, the defendants rely on sections 247, 248, 252 and 259 of the District Courts Act Chapter No. 40 (District Courts Act).  I have considered these sections.  I find sections 247, 252 and 259 directly relevant for this purpose.  I read these provisions as follows:

247.	Act not within jurisdiction.

(1)	Subject to this Part, a person injured by an act done by a Magistrate in a matter in which by law he has no jurisdiction or in which he has exceeded his jurisdiction, or by an act done under a conviction or order made or warrant issued by a Magistrate in any such matter, may maintain an action against the Magistrate.

(2)	An action referred to in Subsection (1) is not maintainable for anything done under—
(a)	a conviction or order; or
(b)	a warrant which was issued by the Magistrate to procure the appearance of the person charged, and that has been followed by a conviction or order in the same matter,
until after the conviction or order has been quashed or set aside under this Act.

...

252.	Limitation of actions.

An action shall not be brought against a Magistrate for anything done by him in the execution of his office unless the action is commenced before the expiration of a period of—
(a)	six months after the act complained of was committed; or
(b)	two months after the conviction or order—
(i)	under which the act complained of was done; or
(ii)	that followed on the warrant under which the act was done,
has been quashed or set aside,
whichever is the later.

...

259.	Protection to Clerk.

The provisions of this Act relating to the protection of a Magistrate with respect to an act done by him as such extend and apply, with the necessary modifications, to and in respect of a similar act done by a Clerk under the powers given to or conferred on him by this Act or any other Act.

(Underlining is mine)

23.	When I look at the pleading and evidence filed by the plaintiff, in opposing this motion, it is obvious that:

(i)	the plaintiff has not set aside or dismissed any of the lower courts' orders which he has complained of in his pleading; and

(ii)	the plaintiff's present proceeding was filed on 11 August 2011 which is well over six (6) months from the date of the decisions complained of.

24.	In Court, I note that I tried to get the Plaintiff's counsel to make submissions on these two points.  However, I note that it was without success.  In my opinion, the plaintiff's counsel appeared evasive on these points.  I also note that the plaintiff' tried to cover these at paragraph 17 of his written submission.  Again, the submission therein, with respect, was brief and did not directly address the questions, namely, whether the plaintiff has complied with section 247(2) and section 252 of the District Courts Act.  The plaintiff however seems to imply at paragraph 18 of his submission that sections 247(2), 252 and 259 may apply to the 4th and 5th Defendants only but they did not affect the other defendants and therefore the Court should not dismiss the entire proceeding.

25.	I uphold the defendants' submissions on point.  I find that the plaintiff's action against the 4th and 5th defendants lacks merit and is an abuse of the court process. I find that the proceeding was commenced against the 4th and 5th defendants in direct breach of section 247(2) and section 252 of the District Courts Act.  The reasons are as stated above at paragraph 23 of my judgment.

26.	I note that I make these findings after I have also taken into account and applied section 259 of the District Courts Act.  In brief, section 259, as cited above in my judgment, states that the actions or inactions of a clerk of the District Court are also protected or covered by section 247(2) and section 252 (or Part XII) of the District Courts Act.

WOULD THIS ACTION SURVIVE?

27.	I note that I have found above in my judgment that the plaintiff's action against the 4th and 5th defendants cannot be sustained.

28.	Can the proceeding continue or be maintained against the other defendants?  This issue is of course consequential.

29.	In my opinion, the issue can be addressed by re-visiting the pleading.  When I consider the pleading, it appears to be bundled-up together.  By this, I mean it is difficult to separate the allegations of facts raised against the 4th and 5th Defendants from the allegations of facts that are raised against the other defendants.  I think that in all fairness, and particularly given the Court's main finding which is to exclude the 4th and 5th defendants, that the plaintiff should be allowed to re-visit his pleading.  In my opinion, it would be unjust to simply consider this issue now and decide on it.  It may very well be that the plaintiff may have no cause of action or it may have a cause of action, but at least and in my opinion, time should be allowed for the plaintiff to consider his options.  In support of my ruling, I rely on the decision of Justice Sheehan in the case PNG Forest Products Pty Ltd and Inchcape Berhad v. The State, Jack Genia, Minister for Forests [1992] PNGLR 85 where His Honour held and I read:

1.	A party has a right to have his case heard, as guaranteed by the Constitution and the laws of this country. Such a right cannot be lightly set aside. Hence, the National Court Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the court. For the same reason and in the interest of justice, the rules include prohibitions against abuse of the court process.

30.	For these reasons, I rule now that it is pre-mature or inappropriate for this Court to deal with this issue now.  I also rule that I will instead issue directions as part of the Court's order, to ensure that this issue is addressed later without delay.

SUMMARY
31.	In regard to the first issue that is considering the pleading, whether the plaintiff has filed the correct mode of proceeding, my answer is "yes".  In regard to the second issue that is If so, whether there is a cause of action against the 4thand 5th defendants, my answer is "no".  And in regard to the final issue that is If not, whether the entire proceeding can be maintained, my answer is "it is pre-mature to determine that given the circumstances of the case particularly when noting the pleading as it is now in light of the Court's finding, that is, to remove the 4th and 5th Defendants from the court proceeding".

COSTS

32.	Cost is discretionary.

33.	I will award costs of the motion in favour of the defendants.  I note that I have generally found in their favour.

AND THE COURT ORDERS
I make the following orders:
1.	The plaintiff's cause of action against the 4th and 5th Defendants is dismissed for disclosing no reasonable cause of action and for abuse of the Court's process.
2.	The plaintiff is directed to and shall amend, file and serve his amended statement of claim, upon the remaining defendants within 21 days from the date of this order.  The normal pleading rules under the National Court Rules shall apply thereafter.
3.	The plaintiff shall pay the defendants' costs of the motion on a party/party basis, which shall be taxed if not agreed upon.
4.	Time is abridged.

The Court Orders accordingly.
________________________________________________________________
Donald & Company Lawyers	: Lawyer for Plaintiff
Office of the Solicitor-Generals	:Lawyers for the Defendants