N11709
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

HRA NO. 222 OF 2020

ISSAC NILAK AUR
Plaintiff

V

TELIKOM PNG LIMITED
Defendant

KIMBE: ANDELMAN J
4 DECEMBER 2025; 13 FEBRUARY 2026

DAMAGES – assessment – after entry of default judgement – human rights claim – voluntary redundancy – eviction – incorrect payment of redundancy entitlements – delayed payment of repatriation costs – underpayment of superannuation

The plaintiff agreed to accept voluntary redundancy. At the time he understood that taxation would not be deducted from the redundancy payment based on a decision of the National Executive Council. However, when he received the redundancy payment, the amounts were subject to taxation. The plaintiff was provided with housing as part of his employment, for which he paid rent deducted from his salary. The plaintiff was initially employed in Mount Hagen and was later transferred to Kimbe. The respondent failed to pay his repatriation costs for over a year and a half. The respondent attempted to forcibly evict the plaintiff and his family following the end of the employment but prior to the payment of repatriation costs and without a court order. The defendant was granted an eviction notice which was stayed by this court on 21 August 2020. The plaintiff also made claims that other entitlements were incorrectly calculated. He also claimed damages. The defendant failed to file a defence within time and default judgment on liability was entered against them on 25 October 2024. 

Held:
(1)	The defendant is to pay K10,145 to the plaintiff directly or into his Nasfund Retirement Savings account.
(2)	The defendant is to pay interest at 8% from the date the proceeding commenced on 11 August 2020 until the payment is made in full. 
(3)	The rest of the proceeding is dismissed.
(4)	I decline to award any damages for any breaches of the Constitution.
(5)	The defendant is to pay 10% of the plaintiff’s costs as agreed or assessed.
(6)	The Order made on 21 August 2020 to stay the District Court Eviction Order of 20 June 2020 is set aside.

Cases cited

Cholai v Jant Ltd [2014] PGNC 10; N5506 
Doworop v Yartie [2025] PGNC 343; N11495
Madang Timbers Ltd v Matthew [2025] PGSC 53; SC2749
Nealy v Eki [2024] PGSC 27; SC2556
Patrick Liri & Ors v Commissioner for Police & Anor [2025] N11341
Special Reference Pursuant to Constitutional Section 19 Section 365 of the Income Tax Act [1995] PGSC3; SC482

Counsel

Mr B Takua, for the plaintiff

1.	ANDELMAN J: This is a decision on assessment of damages for a claim alleging breaches of ss 36, 37, 41, 49, 53 and 59 of the Constitution. Compensation is sought pursuant to s 58 of the Constitution. On 25 October 2024 this court entered default judgement in respect of the matters pleaded in the plaintiffs’ statement of claim filed on 2 December 2021 due to the defendant’s failure to file a defence.

Statement of Claim

2.	The plaintiff pleaded the following matters in the statement of claim:
a.	the plaintiff was employed by the defendant from 1980 to 2012;
b.	 on 30 November 2012 the plaintiff was voluntarily retrenched under the defendant’s redundancy scheme called Voluntary Exit Scheme (VES);
c.	 the defendant illegally omitted to pay 50% off the plaintiff’s final entitlement pay out through the use of wrong calculation method by omitting to use total salary per annum and instead used base salary per annum in calculating the final entitlements. Based on total salary per annum the plaintiff was entitled to receive his final entitlement payout in the amount of K427,738.15 instead the plaintiff received K142,748.03 the outstanding balance is K284,990.12;
d.	of the outstanding balance the defendant deducted 40.333% in K87,223.08 as tax on what was left on the plaintiff’s final settlement even though tax was exempt by the National Executive Council decision number 107/2011. The defendant was ordered to pay back the deducted portion to the plaintiff by the National Court which was affirmed by the Supreme Court in SCA 35 of 2015 and in SCR 84 of 2017;
e.	 the defendant deducted K70,217.26 as accommodation rental fees but later reimbursed the plaintiff; 
f.	after retrenchment the plaintiff failed to repatriate the plaintiff with his family back to his home province and the plaintiff had to wait for 477 days that's 1 1/2 years before receiving repatriation tickets from the defendant; 
g.	by the time the repatriation tickets arrived the defendant was yet to pay the court ordered amount of K87,223.08 as affirmed by the Supreme Court decision which remains unpaid by the defendant;
h.	the defendant failed to make statutory contributions to Nasfund Retirement Savings during his employment period from 2005 to 2006 in breach of the Superannuation Act 2000 in which the plaintiff would have been paid K10,145.00;
i.	 the plaintiff was not paid back his annual contribution for recreational leave airfares in the total sum of K4,998.00 for years 2011 to 2012; and
j.	 the plaintiff suffered from harsh and oppressive treatment because of the approach and conduct of the defendant towards him and his family whilst awaiting repatriation and outstanding entitlements.

3.	 The particulars of the human rights breaches are that:

a.	 the plaintiff and his family were left struggling to live in Kimbe without any form of income for 1 1/2 years;
b.	 the defendant obtained an eviction order dated 20 June 2019 in the District Court in Kimbe;
c.	 the plaintiff suffered from threat of eviction and intimidation from agents and servants of the defendant who claimed that the plaintiff was illegally occupying the company premises after all his entitlements were paid; 
d.	the defendant engaged his servants and policemen who went to the plaintiff’s premises and harassed the plaintiff with his family and demanded that they vacate the company accommodation without fully settling the plaintiff’s entitlements; and
e.	the plaintiff has incurred living cost expenses of K57,220 in Kimbe since his retrenchment from 30 November 2012 for a period of 1 1/2 years.

4.	The plaintiff claimed:

a.	 total outstanding retrenchment entitlement of K284,990.12; 
b.	Nasfund Retirement Savings payable at K10,145;
c.	 annual recreational leave airfares contribution of K4,998; 
d.	special damages for cost of living for a year and a half of K57,240; 
e.	damages for breach of human rights K10,000; 
f.	general damages; and 
g.	costs.

The Evidence

5.	The plaintiff relied on three affidavits sworn by himself. I record the outline of the evidence according to different claims made.

Redundancy – discrepancies in the payment

6.	The plaintiff’s evidence was that his employment ceased on the 30 December 2012 at which time he was a Team Leader. He was employed for 32 years, commencing in Mt Hagen and transferred first to Goroka and later to Kimbe. 

7.	The plaintiff stated that the position he occupied came with a ‘Total Remuneration Package’.

8.	He agreed to accept a voluntary redundancy on the basis of a scheme called Voluntary Exit Scheme (VES). Under the scheme the National Executive Council (NEC) in its meeting No 20/2011 made a decision that all employees under the VES would be exempt from paying taxation on the redundancy payment. There were a large number of people who accepted redundancy under the VES.

9.	However, the defendant incorrectly deducted taxation at 40.3329% to the value of K87,223.08.

10.	The plaintiff asked the Human Resources Manager about the taxation component and was informed that he would receive it later.

11.	A number of ex employees who accepted redundancy through the VES made a class action claim in the National Court in Waigani Court Order No OS 219 of 2014 dated 30 July 2014. Although the plaintiff contributed to be part of the class action, he was listed in the unconsented list.

12.	The defendant has not complied with the National Court order. On 7 February 2024 the defendant sought government intervention to refund payments for 213 plaintiffs involved in the National Court proceedings.

Other entitlements

13.	The plaintiff claimed calculation errors. First, that the redundancy was to be calculated based on gross salary plus allowance, the correct rate was K3,157.27 per fortnight but the calculation was on a net amount. The plaintiff calculated this amount of underpayment to be K197,758.04.

14.	The plaintiff claimed that recreational leave airfares were deducted from his salary and should have been refunded to him. The plaintiff calculated this amount to be K4,998.

Payment for accommodation

15.	The plaintiff claimed that he was entitled to free accommodation because he was transferred from Mt Hagen yet he paid for accommodation through fortnightly deductions in the amount of K33,570.

16.	From 2008 the defendant required the plaintiff to select a portion of his salary package for the payment of accommodation and that he paid K3,120 in 2009, K4,000 in 2020, K6,500 in 2021 and K9,000 in 2022. 

17.	On termination the defendant deducted rental and rental areas from the final payout entitlement in the amount of K16.000 as tax exempt items.

Repatriation

18.	The plaintiff’s evidence was that the failure of the company to repatriate him and his family for over a year and a half caused him tremendous distress. The employer provided accommodation which was unhealthy and caused some health conditions that required medical attention. He had to pay for travel expenses to attend a funeral service for the families dead relatives.

Superannuation

19.	The offer of employment required the defendant to pay the plaintiff superannuation at 8.4% of gross salary on an annual basis. The print out for the payment of superannuation demonstrated that some payments were skipped and that the defendant was obligated to pay superannuation pursuant to the Superannuation Act 2000. The plaintiff calculated this amount to be K10,145.

Attempted eviction

20.	The defendant issued the plaintiff with an eviction notice to vacate the residential property within seven days on the 8 July 2014 and sometime thereafter sought to forcibly evict him. However, the plaintiff continued to reside at the property.

Eviction order

21.	On 20 June 2019 the defendant obtained an eviction order from Kimbe District Court to evict the plaintiff and his family from his employer provided residence. On 21 August 2020 the National Court stayed the eviction order until further order of this court.

22.	The impact of the eviction meant that the plaintiff and his family fell into poverty. He could not afford to pay his children's school fees and other school requirements. and this caused him great worry and distress. He felt that he could not guarantee his family’s safety. 

23.	The plaintiff relied on the following documents:

a.	Final payment calculations approved on 21 January 2013 that demonstrated that:
i.	The final payment was K60,365.18;
ii.	Deductions for rental was K70,217.48; and
iii.	Tax deduction was K87,223.08
b.	Final payment calculations which are purported to apply the correct rate of taxation which show that:
i.	The final payment being K427,738.15;
ii.	Tax deduction of zero; and
iii.	Deduction for rental of zero.
c.	Enterprise Agreement 2010, Part A2.2 Redundancy Agreement, s 56 that on retrenchment all benefits and entitlements under this Agreement must be paid to him at the end of notice. Section 55 states that: ‘All allowances shall be paid to dislocated employees during the first two fortnights from the date of redundancy not thereafter, otherwise phases of employment compensation damages against lost pay for two months or a compensation percentage of 10% will be added to the overall payment amount.’;
d.	Decision of the Supreme Court; Telikom (PNG) Limited v Rava and Ors SCR 84 of 2017 SC1694; 
e.	National Court order in the proceeding OS No. 219 of 2014, order two reads; ‘judgement is entered in favour of the first defendants (Telikom PNG Limited) in the sum of K12,571,914.23 based on the formula set out in the decision by Cannings J OS No 195 of 2014 Roselyn Yanoda & Ors v Telikom & The State;
f.	Legal fee contributions made by the plaintiff to the law firm acting for ex Telikom workers in the National Court claim;
g.	A list of people including the plaintiff titled ‘unconsented list’;
h.	Letter from the defendant dated 7 February 2024 to a solicitor acting for ex Telikom employees asking for a copy of the judgement and orders in Rava v Telikom (PNG) Ltd OS 219 of 2014 ‘awarding judgement in your client’s favour’;
i.	Plaintiff’s offer of appointment dated 20 February 2008. Relevantly to this claim, the offer states that accommodation and recreational leave airfares were not part of the package and that superannuation was payable at 8.4% of gross salary;
d.	A letter written by the plaintiff to the defendant dated 18 June 2013 that he was still waiting, after seven months, for payment of his airfares home and correct redundancy payments;
e.	A letter written by the plaintiff to the defendant dated 14 April 2024 concluding with  a claim that K87,223.08 tax was removed from the final payment;
f.	A letter written by the plaintiff to the defendant dated 7 October 2013 that he was still waiting, after eleven months, for payment of his airfares home and correct redundancy payments;
g.	Payroll advice signed by the plaintiff on 9 January 2012;
h.	Email dated 5 February 2014 that payment had been made for air and freight tickets;
i.	A letter from the defendant to the plaintiff dated 8 July 2014 giving him 7 days notice to vacate the accommodation, failure of which would result in forceable eviction;
j.	District Court Order dated 20 June 2019 for eviction within 30 days;
k.	Email chain from 31 January 2013 to 1 February 2013 regarding refund of rental rebate;
l.	Superannuation calculations from 22/12/2004 to 3/1/2008;
m.	Letters written by the plaintiff to the defendant concerning the unpaid superannuation entitlements in 2014 and 2016;
n.	Invoice for medical expenses in numerous amounts; and
o.	Invoice for air travel for Ms Monica Aur and Ms Alicia Aur from Lae to Kimbe on 28/1/14.

Submissions

24.	The plaintiff submitted that he has complied with all requirements to notify the defendant of the hearing and served all of his documents on them.

25.	The following submissions were made as to the Constitutional claim

Section 36

26.	The plaintiff submitted that he had been subject to mental torture and inhumane treatment as a result of the defendant’s attempts to forcibly evict him by police and others without a court order in circumstances where it was aware that his redundancy and repatriation entitlements had not been met.

27.	The defendant was required to pay for the plaintiff’s repatriation because he was engaged from Mt Hagen.
28.	The defendant was required to pay the plaintiff’s entitlements prior to seeking to evict him or seeking an order in the District Court for eviction.

Section 37

29.	The plaintiff relied on the Enterprise Agreement as the ‘law’ for the payment of repatriation costs. The plaintiff also made mention of the Employment Act.

30.	The plaintiff relied on the decision in Abote v Raphael (2015) PNG 68; N5842.

31.	As to the Telikom (PNG) Limited v Rava and Ors SCR 84 of 2017 SC1694 the plaintiff relied on it for the following propositions:

i.	 the defendant is liable to pay him the final redundancy entitlements without taxation, 
ii.	the defendant did deduct taxation from the relevant redundancy payments
iii.	 the National Executive Council made a decision prior to the redundancy that the defendant was not to deduct taxation from the relevant redundancy payments; and 
iv.	the National Court on 6 March 2015 made orders that certain employees part of a class action were to be paid their final entitlements without taxation.

32.	So much is set out in the background to the judgement of Hartshorn J at [7]-[10].

33.	The proceeding before the Supreme Court was an application for a review of the decision of the National Court. The Supreme Court found that the application was an abuse of process as the appellant had prior filed an appeal of the National Court but failed to prosecute it and it was dismissed on 1 September 2017 [13]. The Supreme Court therefore did not deal with the merits of Telikom’s claims.

Consideration

34.	I am satisfied that the defendant was notified of the hearing and was served with the relevant documents based on the affidavit of service sworn on 1 December 2025. The evidence was that the plaintiff served the lawyer of the defendant at its office in Waigani with the notice of hearing and court order of 26 November 2025.

35.	As to the assessment of damages following entry of default judgement, in William Mel v Coleman Pakalia & Ors (2005) SC790 Los, Jalina and Cannings JJ stated that a trial judge assessing damages following default judgement should:

make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity;

 if it is reasonably clear what the facts and cause of action are, liability should be regarded as proven;

only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability.

36.	In Thomas Wapi v Sergeant Koga Ialy (2014) SC1370 Batari, Hartshorn and Sawong JJ stated at [12] that:
... we are of the view that where a judgment, be it default or otherwise, has been entered, and a primary judge determines, after concluding a hearing to assess damages, that the plaintiff has not sufficiently proved his loss or that no cause of action is disclosed in the statement of claim or that the pleadings are defective or that the claim is frivolous or vexatious or is an abuse of process, he is entitled to refuse to make an award of damages. This is in accord with him being able to consider the question of liability for the damages claimed. To dismiss the entire proceeding however, in the absence of any application to set aside, as in this case, the effect of which is to review the decision to enter judgment and to set such judgment aside, is in our respectful view, to fall into error.

37.	Default judgement was entered on 25 October 2024 on the basis of Or 12 r 25(a) of the National Court Rules as no defence had been filed. At this time, there was no consideration of evidence and submissions as to the substantiation of the allegations in the statement of claim that there has been a breach of ss 36, 37, 41, 49, 53 and 59 of the Constitution warranting damages and payment of outstanding entitlements.

38.	Further evidence was filed as to the assessment of damages and oral submissions were made at the hearing on 4 December 2025. With the benefit of the pleadings, evidence and submissions I consider whether the plaintiff has sufficiently proved his loss; whether there is a cause of action disclosed in the statement of claim or whether the pleadings are defective or that the claim is frivolous or vexatious or is an abuse of process. 

39.	The plaintiff relied on a claim of compensation for breach of ss 36, 37, 41,49, 53 and 59 of the Constitution. I make the following initial observations as to ss 37, 41 and 59 of the Constitution.

40.	In Special Reference Pursuant to Constitutional Section 19 Section 365 of the Income Tax Act [1995] PGSC3; SC482, Amet CJ, Kapi DCJ and Los J held that s 37 of the Constitution on its own is not capable of providing any particular remedy and that one has to consider the particular provision in the ‘law to determine the precise nature of the protection.’

41.	In Madang Timbers Ltd v Matthew [2015] PGSC 53; SC2749, Collier, Carmody and Crowley JJ at [33] held that a breach of s 41 does not attract compensation pursuant to s 58 of the Constitution. 

42.	In Doworop v Yartie [2025] PGNC 343; N11495, Narokobi J held that no compensation pursuant to s 58 of the Constitution flows from a contravention of s 59 of the Constitution on the basis that s 59 comes under Division 4 and is not a Basic Right within Division 3 of the Constitution. With respect, I agree with this finding.

43.	I deal with the remainder of the alleged breaches of ss 36, 49 and 53 of the Constitution. 

44.	Section 36 is relevantly in the following terms:

No person shall be submitted to torture whether physical or mental or to treatment or punishment that is cruel or otherwise inhuman or is inconsistent with respect for the inherent dignity of the human person.
45.	In SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PGSC 13; [1984] PNGLR 314 the Supreme Court dealt with two questions as the Constitutional validity of mandatory sentencing provisions in the Criminal Code. Question one involved the interpretation of s 36 of the Constitution. Each of the Justices gave separate judgements. The majority found that the mandatory sentencing provisions in the Criminal Code did not infringe s 36(1) of the Constitution. Kidu CJ commenced from the proposition that the theme of s 36 is to protect the inherent dignity of the human person. All of the judges found that s 36 must be given a wide interpretation that extends to punishment and treatment.

46.	The word ‘treatment’ in the context of the section was required to be of a certain character, treatment that is cruel or inhuman. Another description used was ‘degrading’. Kidu CJ found that treatment ‘that is inconsistent with respect for the inherent dignity of the human person is prohibited by s. 36(1)’ Kidu CJ and Kapi DCJ both held that the intention of section 36 is to prohibit cruel, degrading and inhuman treatment which features pain and suffering caused to the human person either physically or mentally.

47.	The judges made reference to the Constitution of Planning Committee Report, in which it was stated that:
We recommend that the section in the Ordinance which prohibits torture, and treatment or punishment that is cruel, inhuman or degrading, be incorporated in this chapter of the Constitution. Some of our people are well aware of instances of torture and other inhuman treatment which has been meted out by successive colonial administrations, and in traditional society also. We firmly believe that these practices should be specifically outlawed in the Constitution.
48.	The judges gave various examples of what the treatment or punishment may involve. The conduct included serious physical and psychological assault. 

49.	In Yasause v Keko [2017] PGNC 183; N6853, Cannings J observed that s 36 is in similar terms to Article 5 of the Universal Declaration of Human Rights 1948 and Article 7 of the International Covenant on Civil and Political Rights 1966 (ICCPR), which states:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
50.	PNG ratified ICCPR on 21 July 2008 and while decisions and commentary made under ICCPR are not binding on PNG, should not be necessarily adopted and care must be exercised in considering the difference between the words used, the reasoning may assist in interpreting s 36 of the Constitution.

51.	In Sarah Joseph & Melissa Castan’s International Covenant on Civil & Political Rights: cases, materials and commentary 3rd edition OUP Oxford 2013 at [9.01] the authors define torture as:

For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
52.	For torture to occur, there must be a deliberate cause and very serious and cruel pain and suffering. 

53.	Inhuman treatment or punishment is treatment which causes intense physical or mental suffering and degrading treatment means treatment that is extremely humiliating and undignified.

54.	Under ICCPR, inhuman or degrading treatment has been found to include serious psychological abuse and threats of torture if the threat is real and immediate. There have also been findings that in determining whether the ill treatment reaches the level of inhuman or degrading conduct requires the consideration of numerous factors including the duration of the treatment, the physical or mental effects, the sex, age, vulnerability and health of the victim; Vuolanne v Finland (265/87) referred to at International Covenant on Civil & Political Rights 9.29. In that case, the Committee determined that the applicant failed to prove that there was severe pain or suffering, whether physical or mental, inflicted upon him. 

55.	The Committee expressed the view that for punishment to be degrading, the humiliation or debasement involved must exceed a particular level and must, in any event, entail other elements beyond the mere fact of deprivation of liberty; International Covenant on Civil & Political Rights at 9.29, 9.2.
56.	The authors consider that no specific definition of ‘inhuman’ has emerged under the ICCPR but the requirements for severity and intention is at a lesser level than torture and that the inhuman treatment could be caused by neglect.

57.	As to mental torture or treatment, in Quinteros v Uruguay (107/81) the Committee found that a mother’s complaint of inhuman treatment was proved in circumstances where her daughter was abducted by security forces and her fate was unknown; International Covenant on Civil & Political Rights [9.70].

58.	Eviction cases have been found to breach Article 16; see [9.39]. In those cases, there were findings of deliberate burning and destruction of houses, physical violence and racist abuse.

59.	Turning back to authority in PNG, in Baisom Konori v Jant Ltd (2015) N5868, Cannings J expressed the view that, to amount to torture or otherwise inhuman treatment of another person, a defendant’s conduct must satisfy two criteria. The first being that the conduct is committed without the consent of the recipient; and secondly that the conduct must be done with the intent and effect of treating the recipient as less than human. This approached was followed in Sila v State & Ors [2024] PGNC 321; N10976 per Narokobi J.

60.	From a consideration of the commentary and decisions on ICCPR and other human rights provisions such as Article 3; Freedom from torture and inhuman or degrading treatment of the Human Rights Act 1998 (UK), there is some doubt that inhumane treatment must be done with intent, that is, that there must be a finding of some subjective motivation or intention on the person carrying out the treatment.

61.	It may be that the reference in Konori is to a finding by the court that on an objective basis that the person’s purpose or intent in carrying out the treatment was to cause the effect of less than human treatment. In the absence of any submissions on this question, I respectfully follow the statements in Konori and Sila.

62.	The evidence of the alleged ‘mental torture’ and ‘inhuman treatment’ was that the plaintiff was notified in writing on 8 July 2014 that he was required to vacate the employer provided accommodation within 7 days otherwise he would be forcibly evicted.

63.	The plaintiff described the conduct as:
Evicting me and my family from occupying its property when it's still owning me my tax refund and without properly repatriating me back to my home province being harassed and mistreated by Kimbe police in the eviction process are unfair, unfair and discriminatory in breach of me and my family's human rights.
64.	I accept at this time the defendant was aware that there was an NEC decision that required it to not deduct taxation from the redundancy payment, that the defendant did deduct taxation, that the plaintiff was recruited from Mr Hagen, that he was entitled to repatriation entitlements which had not been paid to him at that time.

65.	The plaintiff’s employment ended on 30 December 2012. At the time and during his employment he resided at the defendant’s residential property for which he paid rent. He continued to reside in the defendant’s residential property following the redundancy without the payment of rent. On 8 July 2014, the defendant wrote to the plaintiff that it had been noted that he continues to reside at the property, and that he had no legal basis for the continued occupation. He was advised to vacate the property within 7 days and that failure to vacate would result in the defendant evicting the plaintiff and his family by force.

66.	I assume from the plaintiff’s evidence although the specific date is not pleaded or in evidence that the defendant with the assistance of the police attempted to evict the plaintiff without success sometime in 2014.

67.	On 20 June 2019 the defendant secured an order to evict the plaintiff from the District Court. On 11 August 2020 the plaintiff commenced proceedings in this court. He filed a Human Rights Enforcement Application in which he stated that he continued to reside at the defendant’s residential property because the defendant had not complied with the terms of the National Court Order requiring the payment of his unpaid entitlements and he sought a stay order of the eviction notice. On 20 August 2020 the plaintiff filed a Notice of Motion for a stay application of the eviction notice until the defendant complied with National Court judgement in DC No 105 of 2019. On 21 August 2020 this court made an order staying the eviction notice until further order of the National Court.

68.	The plaintiff submitted that the defendant’s conduct in attempting to evict the plaintiff and his family from the defendant’s residential property was ‘emotional torture’ or ‘inhumane treatment’. I am not satisfied that this is the case. I do not consider that the evidence rises to the level required to prove that the attempted eviction including the presence of police following written notice was conduct that can be described as treatment that is cruel or inhuman that is inconsistent with respect for the inherent dignity of the human person.

69.	I decline to award any damages under s 36 of the Constitution.
70.	Section 49 is relevantly in the following terms:
(1)	Every person has the right to reasonable privacy in respect of his private and family life, his communications with other persons and his personal papers and effects except to the extent that the exercise of that right is regulated or restricted by law that complies with section 38.

71.	I understood the plaintiff’s submission to allege that the plaintiff’s right to privacy was breached as the defendant engaged security and police to encroach into the plaintiff’s house, intimidate him and demand eviction. No date was given for this conduct. There was no corroborating evidence and no documentary evidence.

72.	The right to privacy is not absolute, it is a right to ‘reasonable privacy’. It broadly provides protection against unwanted intrusion. The word ‘reasonable’ takes its colour from the surrounding text. In this context it may refer to balance or proportionality. No submissions were made as to its meaning. Each case must be assessed on its merits. 

73.	In Patrick Liri & Ors v Commissioner for Police & Anor [2025] N11341, Canning J found that the police created fear and terror and issued verbal assaults on the plaintiffs, threatened physical violence, killed pigs, confiscated bags of betel nut and mustard intended for sale, fired teargas and gunshots indiscriminately, looted trade stores, destroyed market tables, stole market goods and cash and in one instance sexually assaulted one of the plaintiffs and generally damaged and/or destroyed the plaintiffs’ properties.

74.	On those facts, it was found that there was a breach of s 49 based the police’s arbitrarily entry into the plaintiffs’ property.

75.	In this claim, there is no evidence that the defendant or the police entered inside the house. The entry onto the property was not arbitrary as the plaintiff was forewarned in writing and the property belonged to the defendant. There is no allegation that his personal papers or effects were disturbed. The evidence as to the attempted eviction is very vague, is not corroborated or supported by contemporaneous documents. On these facts, I decline to award any damages pursuant to s 49 of the Constitution.

76.	Section 53 of the Constitution protects the plaintiff from unjust deprivation of property. Section 53(1) refers to compulsory acquisition of the person’s property, interest in or right over the property.’ 

77.	On the plaintiff’s evidence, no eviction actually occurred. Secondly, there is no pleading or suggestion that the plaintiff had any actual or equitable interest or right over the property. At its highest the plaintiff submitted that he should be able to continue living at the property, without paying rent until his employment entitlements were fully paid.

78.	In this proceeding, there is no evidence that the defendant or the police entered inside the house. The entry onto the property was not arbitrary as the plaintiff was forewarned in writing and the property belonged to the defendant. On these facts, I decline to award any damages pursuant to s 53 of the Constitution.

Breach of Contract – failure to pay superannuation
79.	The plaintiff did not plead a breach of contract claim but did plead in paragraph 5 of the statement of claim that he was aggrieved that the defendant omitted to make statutory contributions to make statutory contributions to Nasfund Retirement Savings account from 2005 to 2016 in breach of the Superannuation Act 2000 to the value of K10,145.

80.	 I find that the claim for unpaid superannuation has been identified clearly by the plaintiff.

81.	In evidence is a copy of the plaintiff’s offer of employment, statements of superannuation paid to the plaintiff by the defendant and calculations for unpaid superannuation.

82.	I am satisfied that the plaintiff had a contractual entitlement to be paid 8.4% of gross salary and that this did not occur in 2005 to 2006 to the value of K10,145.

83.	I will award interest on this unpaid entitlement.

Other entitlements
84.	There is no contractual right to support other claims. As to the plaintiff’s claim that money for recreation leave airfares were paid by him during his employment and should be returned, there is no evidence as to that fact or the specific amount. I find based on the offer of employment that the plaintiff was not entitled to free accommodation as he alleged as the offer of employment explicitly states that accommodation is at his expense.

85.	As to the claim for the refund of taxation deducted from the redundancy payment, the plaintiff is not a party in the National Court proceedings in OS No. 219 of 2014. The decision is not before the Court. This is not a proceeding seeking enforcement of any decision. 

86.	The plaintiff has not established a contravention of any provision of the Constitution that would warrant this court ordering the defendant to pay the plaintiff an amount of taxation it remitted to the Internal Revenue Commission, even if I accept that the remission occurred erroneously.

Costs

87.	The plaintiff has been successful in a small part of his claim and I consider that it is appropriate for the defendant to pay 10% of the plaintiff’s costs.

Orders
88.	I make the following Orders:
a.	The defendant is to pay K10,145 to the plaintiff directly or into the Nasfund Retirement Savings account.
b.	The defendant is to pay interest at 8% from the date the proceeding commenced on 11 August 2020 until the payment is made in full. 
c.	The rest of the proceeding is dismissed.
d.	I decline to award damages for any breaches of the Constitution.
e.	The defendant is to pay 10% of the plaintiff’s costs as agreed or assessed.
f.	The Order made on 21 August 2020 to stay the District Court Eviction Order of 20 June 2020 is set aside.
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Lawyers for the plaintiff: Takua Lawyers