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Balbe v Agat [2024] PGNC 382; N11052 (24 October 2024)

N11052

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 166 OF 2020

ANDREW BALBE
Plaintiff

V
STELLA AGAT IN HER CAPACITY AS PRINCIPAL OF LUTHERAN SCHOOL OF NURSING
First Defendant

FUA SINGIN IN HIS CAPACITY AS CHAIRMAN OF LUTHERAN SCHOOL OF NURSING GOVERNING COUNCIL
Second Defendant

LUTHERAN SCHOOL OF NURSING
Third Defendant

Madang: Narokobi J
2024: 16th May, 24th October

HUMAN RIGHTS – Whether Causes of Action Founded on Breach of Human Rights are Subject to s 16 of the Frauds and Limitation Act 1988 – Whether the Defence of Res Judicata Applies - Whether Plaintiff is precluded in the interests of justice to making a claim for breach of human rights from the same set of facts which he relied on successfully in a previous proceeding concerning the same parties to obtain a judgment sum in his favour from a different cause of action.

The Plaintiff has filed a case against the Defendants alleging breach of human rights. The Third Defendant, his former employer is the Lutheran School of Nursing. The Plaintiff was employed as a tutor from February 2006 to March 2011. He left work to take up studies in Auckland, New Zealand. The Third Defendant in Resolution No. 7 of 2013 at the meeting of the Governing Council of the Lutheran School of Nursing on 22 November 2013 had resolved to keep the Plaintiff on payroll while he was studying. Contrary to the undertaking the Plaintiff was not kept on salary. On his return he successfully initiated proceedings against the Defendants in OS 658 of 2018 and the Third Defendant was ordered to pay him monies as it had resolved to. On the same set of facts, he now claims breach of human rights in this proceeding.
Held:

(1) Section 39 of the Constitution, “Reasonably Justifiable in a Democratic Society Etc” is not a stand-alone provision capable of being enforced under ss 57 and 58 of the Constitution. It is an interpretive provision. Whenever the phrase “reasonably justifiable in a democratic society...” is used in any provision of the Constitution, s 39, especially s 39(3) comes to the aid of the question of what is reasonably justifiable by listing the materials the court can have regard to such as the National Goals and Directive Principles and Basic Social Obligations. It is a misunderstanding of the law to claim s 39 as a right capable of being enforced under ss 57 and 58 of the Constitution.

(2) Causes of action founded on breach of human rights are not subject to the statutory limitation of six (6) years imposed on causes of action founded on simple contracts and torts in s 16 of the Frauds and Limitation Act 1988.

(3) The Defence of Res Judicata does not apply in the present proceeding as the issues are different from the earlier proceeding.

(4) The Plaintiffs relies on the same set of facts in a previous proceedings with the same parties, to institute a claim for a different cause of action, and considering that the Plaintiff had the opportunity to raise this claim in the previous proceeding, but chose not to, the Court declines the claim as it would be contrary to the interests of justice under s 155(4) of the Constitution.

Cases Cited
Telikom PNG Limited v Independent Consumer and Competition Commission (2008) SC906

Legislation Cited
Constitution

Counsel
Mr D Wa’au, for the Plaintiffs
Mr K Lonot, for the Defendants

JUDGMENT

24th October 2024

1. NAROKOBI J: The Plaintiff has filed a case against the Defendants alleging breach of human rights. The Third Defendant, his former employer is the Lutheran School of Nursing. The Plaintiff was employed as a tutor from February 2006 to March 2011. He left work to take up studies in Auckland, New Zealand. The Third Defendant in Resolution No. 7 of 2013 at the meeting of the Governing Council of the Lutheran School of Nursing on 22 November 2013 had resolved to keep the Plaintiff on payroll while he was studying. Contrary to the undertaking the Plaintiff was not supported in his studies. On his return the Plaintiff successfully initiated proceedings against the Defendants in OS 658 of 2018 and the Third Defendant was ordered to pay him monies as it had resolved to. On the same set of facts, he now claims breach of human rights in this proceeding.
   
2. In the Plaintiff’s statement of claim, he pleads the breach of four (4) of his rights under the Constitution. These rights are - s 37(1), “Protection of the Law”, s 39, “Reasonably Justifiable in a Democratic Society,” s 41, “Proscribed acts,” and s 51(1), “Right to Freedom of Information”.
   
3. The issue is whether the Plaintiff has established a cause of action for breach of his human rights under ss 37, 39, 41 and 51 of the Constitution?
   
4. The Plaintiff’s allegations of the breach of his human rights by the Defendants can be found in paragraph 11 of his statement of claim filed on 15 September 2021:
   
   • (a) Section 37(1) of the Constitution – Protection of the Law. The Plaintiff as a citizen of Papua New Guinea was abandoned by the Defendants in New Zealand by putting him off all financial support.
   • (b) Section 39 of the Constitution - reasonably justifiable in democratic society. The Defendants’ decision to terminate the plaintiffs financial support was made in contravention of the basic requirement of reasonableness.
   • (c) Section 41(1)(a)(b)(c) of Constitution - Proscribe acts. The Defendants acted harsh and oppressively towards the Plaintiff by terminating him without proper notice and forewarning.
   • (d) Section 51(1) of Constitution - Right to Freedom of Information. The Plaintiff was offered no reason and the defendants withheld all information forcing him to travel at his own expenses to attend to the problem in Madang.
     
5. I will attend to s 39 of the Constitution first. This provision is not a stand-alone provision capable of being enforced on its own. It is an interpretive provision. Whenever the phrase “reasonably justifiable in a democratic society...” is used in any provision of the Constitution, s 39, especially s 39(3) comes to the aid of the question of what is reasonably justifiable by listing the materials the court can have regard to such as the National Goals and Directive Principles and Basic Social Obligations. It is a misunderstanding of the law to claim s 39 as a right capable of being enforced under ss 57 and 58 of the Constitution.
   
6. Two preliminary objections raised by the Defendants must be attended to first before the question of breach of ss 37, 41 and 51 of the Constitution can be considered. If the proceedings survive these objections, then I will look at the pleadings and the evidence to determine whether liability for breach of human rights has been established. I turn to these objections now.
   
7. The first objection is that the proceedings are statute barred under the Frauds and Limitations Act 1988. The Defendants say that the cause of action accrued over six years ago, and it relates to a simple contract and therefore the proceedings have been filed out of time (s 16). Submitting in opposition, the Plaintiff acknowledges that the cause of action indeed occurred more than six (6) years ago but contends that this case is founded on breach of human rights, and is outside the scope of the Frauds and Limitation Act. The answer to the question can be found in the statement of claim. The Plaintiffs pleads causes of action purely for breach of human rights. They are not claims based on torts or from a simple contract. I therefore find that the proceedings are outside the scope of the Act and the proceedings are not statute barred.
   
8. The second objection that the Defendants put forward that the matter is res judicata is a compelling one. In my view, given that there were two prior proceedings filed in relation to the same set of facts, warrants closer attention to this objection. The first proceeding filed was WS No. 1193 of 2017; Andrew Balbe v Vitus Amugar and Others. This case was dismissed for want of prosecution. The second proceeding filed was OS No. 658 of 2018; Andrew Balbe v Vitus Amugar and Others. I will need to consider in detail these proceedings, especially OS No. 658 of 2018 as the Plaintiff succeeded in that case.
   
9. At this juncture, it is necessary to remind myself of the requirements of res judicata. I have regard to the case submitted by the Defendants, that is Telikom PNG Limited v Independent Consumer and Competition Commission (2008) SC906. The considerations are:
   
   • The parties in both matters are the same.
   • The issues in both matters are the same.
   • The previous claim extinguishes the basis of any future claim.
   • A court of competent jurisdiction made the order.
     
10. It is not disputed that the parties are the same. The question is really whether the issues are the same? In the Originating Summons filed in OS No. 658 of 2018 the Plaintiff sought the following orders:
    
    1. An order that the Defendants specifically perform the Board Resolution No. 02/2013 and calculate and pay the Plaintiff for 2 years salary entitlements as agreed and approved under the resolution being while on study leave in New Zealand as per Resolution No. 7 of 2013.
    2. An order that the Defendants specifically perform the Board Resolution No. 7 of 2013 and consider the Plaintiffs application for re - employment as Tutor at the Second Defendant institution and exhausting all application process approved under the Resolution.
    3. Costs of this proceeding.
    4. Any other Orders.
       
11. On 8 February 2020 the court ordered the Defendants to pay special damages to the Plaintiff, amongst a number of other orders:
    
    1. Pursuant to Section 155(4) of the Constitution the Court having found that it is necessary in the circumstances of this particular case to do justice orders that the Defendants shall pay the plaintiff the sum of K31, 796.92 being the amount the Defendants resolved to pay the Plaintiff under Resolution No. 7 of 2013 at the meeting of the Governing Council of the Lutheran School of Nursing on 22 November 2013 by 10 March 2020.
    2. The other relief sought in the originating summons is declined.
    3. The defendant shall pay the cost of the proceedings in the fixed sum of K5, 000. 00 payable by 10 March 2020.
    4. This proceeding to return to check compliance on 12 March 2020 at 4:00pm.
       
12. The primary cause of action of the Plaintiff for breach of human rights in the present proceeding is based on Resolution No. 7 of 2013 at the meeting of the Governing Council of the Lutheran School of Nursing on 22 November 2013. The issue of giving effect to the Resolution was before the Court in OS No. 658 of 2018. The Plaintiff succeeded and the Defendants were ordered to pay him K31,796.92. The court considered the circumstances in which the Plaintiff was treated before it proceeded to make the orders under s 155(4) of the Constitution. Importantly the present proceeding is founded on breach of human rights and is distinct from the claim in OS No. 658 of 2018. For this reason, the defence of res judicata does not apply.
    
13. Does it therefore mean that I should now proceed to determine if the Plaintiff has established a cause of action for breach of human rights? I do not think so. It is not appropriate for public policy reasons for a Plaintiff who had the opportunity to raise an issue, yet chose not to do so, should now raise the claim given the passage of so many years. After the Plaintiff had enjoyed the benefit of judgment in OS No. 658 of 2018, he has come back to court to use the same set of facts to claim breach of human rights against the same Defendants. In my view, it would not be in the interests of justice to entertain this claim. When a Plaintiff had the opportunity to raise a cause of action from the same set of facts, chooses not to, and subsequently returning to court, to agitate a separate cause of action on the same set of facts, should not have these claims sanctioned by the Court. It will disrupt finality of litigation in all matters before the courts, and place an onerous responsibility of costs on the Defendant. For this reason, I will decline the claim on the basis that it is not in the interests of justice to do so under s 155(4) of the Constitution. Each party will bear their own costs.
    
14. The formal orders of the Court are in these terms:
    
    1. The Plaintiffs relies on the same set of facts in a previous proceedings with the same parties, to institute a claim for a different cause of action, and considering that the Plaintiff had the opportunity to raise this claim in the previous proceeding, but chose not to, the Court declines the claim as it would be contrary to he interests of justice under s 155(4) of the Constitution.
    2. Each Party will bear their own costs.
    3. Matter is considered determined, and the file is closed.
    4. Time is abridged.

Judgment and orders accordingly.
________________________________________________________________
D.F.W Lawyers: Lawyers for the Plaintiff
GOR Lawyers: Lawyers for the Defendants