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 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.
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
| Conduct | Right |
|---|---|
| Beating, mistreatment in custody | s 36 — freedom from inhuman treatment |
| Denial of a fair process; failure to charge or bring before a court | s 37 — protection of the law |
| Conduct lawful in form but excessive in the case | s 41 — proscribed acts |
| Unlawful arrest; detention without proper basis | s 42 — liberty of the person |
| Raid or search without lawful authority | s 44 — freedom from arbitrary search and entry |
| Destruction or taking of property | s 53 — protection from unjust deprivation of property |
| Death resulting from the conduct | s 35 — right to life |
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
(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.
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
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 5 — no 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.
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
- Give the section 5 notice immediately — before anything else.
- 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.
- Where a person is in custody, use Form 125, lodgeable with a District Court clerk.
- 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.
- Allow the State 60 days to file a defence — section 9, not the ordinary 14.
- 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.
- 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.
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
- National Court Rules 1983 — O 4 r 2; O 8 rr 21, 33; O 23 (Human Rights Rules 2010) rr 5–10; Forms 124, 125, 127
- Constitution — ss 35–37, 41, 42, 44, 53, 57, 58, 177
- Claims By and Against the State Act 1996 — ss 2, 5, 7, 9, 13, 14
- Wrongs (Miscellaneous Provisions) Act (Chapter 297); Police Act 1998
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.