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How Does a Human Rights Case Against Police Work?

It goes on the Human Rights List. Order 23 Rule 5(e) places there any claim for a tort allegedly committed by a member of a disciplined force where the cause of action might reasonably be regarded as a breach of one or more of the Basic Rights — however the claim is pleaded.

The National Court practice series, no. 160 · Human rights proceedings · 5 min read

Claims arising from the conduct of police and other disciplined forces are among the most common matters on the Human Rights List. Order 23 of the National Court Rules 1983 deals with them expressly.

Order 23 Rule 5(e)

The category

The following proceedings shall be placed on the Human Rights List — proceedings where a claim is made by the plaintiff for any relief or remedy for any tort allegedly committed by a member of a disciplined force, where the cause of action might reasonably be regarded as a breach of one or more of the Basic Rights.

The pleading label does not decide it

Rule 5(e) reaches a claim for any tort — assault, false imprisonment, trespass, conversion — provided the cause of action might reasonably be regarded as a breach of one or more of the Basic Rights.

That works with the opening words of Rule 5(a), which reach proceedings that are, in substance, irrespective of whether expressly so described, for enforcement. A claim pleaded purely in tort still goes on the Human Rights List if it has that character.

And under Rule 10(1), the Registrar or his delegate decides listing irrespective of whether such a request is made. A decision on review of that listing is final and not subject to appeal.

Which sections to plead

Basic Rights commonly engaged by police conduct
ConductRight
Beating, mistreatment in custodys 36 — freedom from inhuman treatment
Denial of a fair process; failure to charge or bring before a courts 37 — protection of the law
Conduct lawful in form but excessive in the cases 41 — proscribed acts
Unlawful arrest; detention without proper basiss 42 — liberty of the person
Raid or search without lawful authoritys 44 — freedom from arbitrary search and entry
Destruction or taking of propertys 53 — protection from unjust deprivation of property
Death resulting from the conducts 35 — right to life
Identify the sections

Rule 7(3) requires the originating process to as far as is practicable identify with precision, by reference to relevant provisions of the Constitution, the right infringed and the relief sought. See the Basic Rights.

Section 41 is worth pleading alongside the others: an act done under a valid law that is, in the particular case, harsh or oppressive or disproportionate, is an unlawful act — and under section 41(2) the burden is on the party alleging it, on the balance of probabilities.

Constitution section 58

Sections 58(3) and (4)

(3) Damages may be awarded against any person who committed, or was responsible for, the infringement.

(4) Where the infringement was committed by a governmental body, damages may be awarded against a person referred to in Subsection (3), or against the governmental body to which any such person was responsible, or against both, in which last case the court may apportion the damages between them.

Name the officers, the office holder and the State

Because liability may fall on the individual, on the governmental body, or on both with apportionment, the usual course is to join all three — the officers involved, the relevant office holder, and The Independent State of Papua New Guinea.

Vicarious liability is separately governed by the Wrongs (Miscellaneous Provisions) Act (Chapter 297), and the Police Act 1998 governs the Force itself.

Note the limited defence in section 58(5): damages shall not be awarded against a person who was responsible to a governmental body if the action was made unlawful only by section 41(1) and was genuinely believed by that person to be required by law — the burden of that belief being on the person asserting it. It protects only the individual; the governmental body remains liable under 58(4)(b). See compensation.

The step most often missed

Claims By and Against the State Act 1996

Section 2(2) applies the Act to applications for the enforcement against the State of a right or freedom under Section 57 and for damages for infringement under Section 58.

Section 5no action to enforce any claim against the State lies unless notice is given to the Departmental Head of the Department responsible for justice matters or the Solicitor-General, within six months after the occurrence out of which the claim arose, or such further period as allowed on sufficient cause being shown.

Six months from the incident

A person injured in a police raid rarely obtains legal advice within six months. This is the single most common reason such claims fail.

Where the period has passed, Order 23 Rule 5(j) places on the Human Rights List an application under section 5(2)(c)(iii) to allow a further period in which to give notice, where the claim relates to enforcement of a Division III.3 right. See late section 5 notices and section 5 notices generally.

Practical sequence

Seven steps
  1. Give the section 5 notice immediately — before anything else.
  2. Choose the mode. A substantial damages claim goes by writ, reference WS (HR). Where the object is enforcement — stopping continuing conduct, securing release — Form 124 is free and immediate.
  3. Where a person is in custody, use Form 125, lodgeable with a District Court clerk.
  4. Serve properly. The State is served under section 7 of the Claims Act, on the Departmental Head or the Solicitor-General, within the statutory hours.
  5. Allow the State 60 days to file a defence — section 9, not the ordinary 14.
  6. Plead and prove the loss. Order 8 Rule 33 requires full particulars where personal injuries are claimed, and under Rule 21(3) damage and quantum are taken to be traversed unless specifically admitted.
  7. Expect a different enforcement route. There is no execution against the State; satisfaction follows the statutory certificate process. See how a judgment against the State is paid.
And the Court may act without you

Where a person cannot bring proceedings themselves, Rule 6(b) allows another to act on their behalf, and Constitution section 57(1) permits that whether or not by his authority. Any member of the public may deliver a Form 127 Statement to the Registrar, who must forward it to a Judge within one day — and the Judge may direct the Public Solicitor to provide legal aid, advice and assistance. See Court-initiated proceedings.

Sources

Check the section yourself

Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.

Disclaimer: This article provides general information about Papua New Guinea law and does not constitute legal advice. Laws may change, and their application depends on individual circumstances. You should obtain professional legal advice for your specific situation. Read the full disclaimer.