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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS 355 OF 1996
BETWEEN
JOHN BAULANA - PLAINTIFF
AND
THE POST & TELECOMMUNICATION CORPORATION - DEFENDANT
Lae & Goroka
Sawong J
23 August 1996
23 September 1996
PRACTICE & PROCEDURE - National Court - Motion to strike out proceedings - Grounds - Proceedings frivolous and vexatious - National Court Rules Order 12 Rule 40.
PRACTICE & PROCEDURE - National Court - Motion to stricke out proceedings - Wrong party named in proceedings.
Cases Cited
PNG Forest Product Pty Ltd & Inchape Berhad v The State [1992]PNGLR 85
Counsel
Mr D Poka for the Applicant/Defendant
Mr S Tedor for the Respondent/Plaintiff
23 September 1996
SAWONG J: By a e of Motion dated the the 16th day of July 1996, the applicant sought the following orders:
1. & T60;proe edines in thion hion hearing be dismissed for frivolity.
2. &##160; The plai tiffthay efendantndant costs of toceed
alsoht anry and consequentiaential rell relief.&ief. #160; In support of the Note Notice of Motion, Mr Poka filed an affidavit. The releparag of tfidavitdavit are are set oset out in paragraphs 4, 5 & 6 inclusive:“4. ټ Ou perofal of the ithe ing of the Plaintiff, it appears that the Plaintiff is suing the Defendant for failure to p to prepare and to lodge relevant documenth theic Ofs Superannuation Fund (‘POSF̵’) t7;) to enao enable the Plaintiff to refund his contributions or entitlements made to the POSF. The Plaintiff shat due to e to the failure as alleged, he claims the sum of K33,600.00 being the alleged contribution or entitlements invested with POSF. The Defendant deniesg liab liable to the Plaintiff for the amount of K33,600.00 as alleged by the Plaintiff. Furthee Defendant says thas that the Plaintiff should make his claim against POSF and not against/p>
5. #160;  0; If m o view and veri verily believe that if the Plaintiff is saying that the Defendant, for some reason or other, has failed to lodge relevant documentation with POSF to facilitate refunding or repayment of his contributions or entitlements, then his appropriate remedy is to seek an order of mandatory nature from the Court compelling the Defendant to carry out its duties as required under the law to do so. However, for thentiff to s to seek a relief for damages against the Defendant in this sort of situation is inappropriate. If the plaintiff̵laim laim is for refund or repayment of his contribution ortlements, the claim really ally should have made against POSF.
6. In the mircucetantha, ng oing on foot in the proceeroceedings herein against the Defendant is frivolous and vexatious in
that it discloses no cause of actionnst tfendad accgly ttion d be dism dismissedissed.R.”
Mr T>Mr Tedor appeared for the Respondent/Plaintiff and objected to relief sought. He relied on his own affidavit of the 6th of August,
1996. I have read it. The main s in his affidaviidavit is that the plaintiff has done all he can but the PTC has not done anything
about it. The facts as I find from all those affts arse. The Plaintiff/Respondent was employed byed by they the applicant/defendant (hereinafter
referred to as ‘PTC’). He was employed by the defendant in 1974 until he left the employee of defendant in 1993. Whil
was employed by the dthe defendant he has alleged to have joined the State Service and Superannuation Fund Board. My research ates
that no s no such orgaion existed as at that time. Howeverublic Officefficersicers’ Superannuation Board (POSF) was created
by the Public Offic8217; Superannuation Act Chapter No 66 (the “Act̶”). This Act came into existence i3.
.
Be that as it may, the tifintiff/respondent alleges that he contributed to the POSF whilst and during the course of his employment
with the aant/dant. In his statement of claim in the writ writ of s of summons the plaintiff claims that beca because the defendant has not complied with
its statutory obligations he has been deprived of receiving his contributions that he has contributed to the POSF. The specific allegation
against the defendant is that the defendant has not despite, requests and undertakings, filed the required documents with POSF.
He has therefiled the writ writ claiming some K28,000 being his contributions to the POSF and interest of K5,600, a total of K33,600
from the defendant. SUBMISSIONS Mr Poka has submitted that the whole proceedings should be dismissed on the basis that the claim is frivilous. Heitted, that the
essence ence of the plaintiff’s claim is for monies he contributed to the POSF whilst employed by PTC. Mr’s argument
is thas that, as the plaintiff has contri to the POSF the proceedingedings should be made against POSF and not PTC. Alternatively
the approprrate relief would be for thintiff/respondent to seek oeek orders to compel the defendant to attend to filing the relevant
documents. Mr Poka submits thatcause of action as shown in the Write of Summons is frivoloivolous and vexatious as it discloses no cause of action.
Consequent submitted that that the whole proceedings ought to be dismissed pursuant to Order 12 Rule 40 of the National Court Rules
which : “40. olity. (13/5)
( (1) &<; Wh0; Where inre 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)ـ҈& no reao reasonabsonable cause of action is disclosed; or
(b) e proceedings are frivofrivolous or vexatious; or (c) ; the proceedines are an aban abuse of the process of the Court, the Court mder the prings ayed or dismissed generally olly
or in r in relatrelation tion to any claim for relief in the proceedings. (2) The Court may receive evi ence on the hearing of an application for an order under Sub-rule (1).” Mr Tedor on the other submiat, a appl/defe has not complied with its Statutory obligations unns under tder the Ache Act, plt, plaintiaintiff/respondent
cannot make a claim against the POSF. He referredections 27 to 3 to 36 of that Act as mandatory requirements on the part of the
applicant/defendant to compile the necessary documents and submit them to the POSF to enable the plaintiff to claim his contributions
from the POSF. He further submitted that under Section 36 of the Act no refund will be made until certain conditions are met. Mr Tedor in essence submitted that as the applicant/defendant had failed to file the relevant documents and comply with its statutory
obligations it was negligent and consequently the plaintiff’s cause of action was based on negligence. He submitted thatplaintiffntiff’s
claim was not frivolous and that the motion should be dismissed. RULING I have read onsidered carefully the evidence and the submissions. The issueether the cause ouse ouse of action set out it the statement
of claim is frivolous or vexatious. In my judgement the relevant paragraph of the statement of claim are paragraphs 3 to 7 inve
which read: ̶“3. The Plaintiff joined the State Services & Statutory Authoritieerannuation Fund Board in J in January 1974,
and remained therein a member of the State Services & Statutory Authorities Superannn Funrd unecember, 1993, wh3, when then the
Defe Defendant ceased paying him his wages. Thus the Plaintiff’s period of membership with the State Services & Statutory
Authorities Superannuation Fund Board is nineteen (19) years which continued uninterrupted until thintiff left the Defendant’s
employment. 4.. ҈ I60; In the ninetee) (19r year period of membership with the State Services & Statutory Authorities Superannuation
Fund Board, the Plaintiff accumulated contributionallin,000.p> 5. #160; By t Byvihe vire e ofue of the Public Officers Superannuation Fund Board Act of 1993 amended, the Defendant is required
to file with the State Services & Statutory Authorities Superannuation Fund Board documents comparison of an Application for
Pension Form, a Separation Authority, Salary History Card and Marriage & Children’s Birth Certificates, if applicable. 6. &ـ T6e Defe Defendantndant, despite advises and undertaking to the Plaintiff of due compliance with its statutory obligation
to the Plaintiff under the Public Officers Superannuation Fund Board Act, aforesaid, has not filed the required documents with the
State Services & Statutory Authorities Superannuation Fund Board, thereby causing the Plaintiff to suffer loss of his contributions. Particulars: Accumulated contributions to the State Services & Statutory Authorities Superannuation Fund Board for the period between January,
1974, and December, 1983 = K28,000.00. Interest due for the period between December 1993, to March 30th, 1996, calculated at 8% per annum = K5,600.00. Total = K33,600.00. 7. ; T60t deapite requests by s by the Plaintiff for the Defendant to comply with his obligations under the Public Officers Superannuation
Fund Board Act, 1993 amended, the Defendant has neglected, failed and or refused to comply with the Act thereby denying the Defendant
his due contributions. And the Plaintiff claims: (a) ҈ K33,6003,600.00; (6) Interests pursuant eo thicJudicial Proceedings (Interest on Debts and Damages) Act, Cr No p> Orde>Order 12 r 12 Rule 40 has been judicially considered in PNG, in PNG Forest Pts Pt and ape B v the State [1992] PNGLR 85. Ttional Court there here cere consiconsidereddered amon amongst other things, when and on what grounds the Court can properly exercise
its discretion under this Rule. The brief facts from the head notes is as follows. The plaintiff’s motion by way of a Writ of Summons sought the continuance
of an exparte order made on 20 December 1991 restraining the defendants from further dispositions of timber and logging rights which
were the subject matter of their spending (substantive) case, in which they claimed specific performance and damages under a contract
they entered into. The defendant’s, in response, sought motions that the plaintiff’s statement of claim be struck out on the ground that
if failed to disclose a cause of action. In his considerations on Or 12 Rule 40, Sheehan J said this at 87 - 88: “The protection of the law guaranteed by the constitution and lawsapua New Guinea, cea, carry with them the right for persons
to present petitions and actions before the courts of this country for the protection of rights and resolution of disputes with othe160;
In short, a party has has the right to have his case heard. Those rights cannot be lightly set aside.” The Rules of Court in particular the Rules of the National Court are designed to enhance those rights and to ensure the prompt and
fasposal of matters coming before court. For the same rame reason iand in the interests of justice, the rules include prohibitions
against abuse of the court process. Thus O 12 r 40 reads: “(1)  re inproceeroceedings ings pears to the Court that in t in relation to the proceedings generally or in relation to
any claim for relief in the proceedings: (b) he proceedings are frivofrivolous or vexatious; or (c) ـ the proneedings ares are an abuse of the process of the Court, thet mayr tha procgs be stayed or dismissed gend generallerally or y or in rein relation to any claim for relief in the proceedings. (2) ـ The Couyt may receireceive evidence on the hearing of an application for an order under sub-rule (1) of this Rule.”
There is a long and very full history of decided cases where one party or another has sought to strike out the proceedings of an opponent to obviate the need for trial. As loo as 1887 in Republicublic of Peru v Peruvian Guano Company Chitty J said:
“if, notwithstanding defects in the pleading...the Court is of the view that a substantial case is presethe Court should, I think dink decline to strike out that pleading: but when the pleading discloses a case which the Court is satisfied will not succeed, then it should strike it out and put a summary end to the litigation.”
This line of reasoning was followed in the decision of the Court of Appeal in Hubbuck and Sons Ltd v Wilkinson, Heywood & Clerk Ltd [1898] UKLawRpKQB 176; (1899) 1 QB 86 at 91, where Lord Lindley MR was emphasising the distinction between seeking to have action decided on a preliminary point of law and moving to have it stuck out for want of a reasonable cause of action:
“Two courses are open to a defendant who wishes to raise the question whether, assuming a statement of claim to be proved, it entitled the plaintiff relief. Oneod is to raise the ques question of law as directed by Order XXV, r 2; the other is to apply to strike out the statement ofm undder XXV, r 4. The first method propriaopriaopriate to cases requiring argument and cand careful consideration. The second and summary proy procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once tha statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff tiff to what he ask.”
My research over the short period of time discloses there does not exists such a body called State Services and Statutory Authorities Fund Board. There is in exie the PubliPublic Officers’ Superannuation Fund Board. Thard is created by statuttatute, namely by the Public Officers’ Superannuation Act Chapter No 66.
Mr Tedor relied heavily on the provisions of Secti7 to 36 inclusive of the Act during submissions. I se I set outull the prov provisions of those sections.
“27. ҈ Exclusion of certaiertain declared persons
The Minister may, on the recommendation of the Public Services Commi, decthat a person is n is not entitled to contribute, to the Fund.
28. #160; ical examinationstions
(1) &##160;; Subjectbject to Suto Subsections (2) and (3), a person is not entitled to contribute, and shall not contri to tnd unhe Bos satd, after receiving ving a repa report fort from a medical practitioner approved bved by they the Board, that his health and physical condition are such as to to justify his being accepted as a contributor for full benefits under this Act.
(2) ;ټ Subsectbsection (1on (1) does not apply to a person who was, immediately before the commencement date:
(a) ;ټ&#a contributor to r to the Retirement Benefits Fund; or
(b)   beremf the Policee.
(3) ـhere tere the Boae Board is not satisfied, as required bred by Subsection (1), as to the health ansicalition perso is wise ble to be a co a contribntributor,utor, the the person may nevertheless elect to cont contributribute to the Fund for reduced benefits as set out in Part VI.2.
29. Marrieenwom> 160;&160; Thition does not apply to y to or in relation to women who are heads of families for the purposes of:
(a) & IX ofPu ofPublivice Act, or
(b)&##160; Part XI ofXthe the the Tthe TeachTeaching Service Act, or
(c) ټ Part IVrt IV e Polorce /p>
(2);ټ&##160; A m; A marriearried womd woman who became after the commencement ment date,date, or b or becomes, employed by the State or an aed auty isentitletitled to contribute, and shall not contriontribute bute to the fund.
(3) &##160;; For ther the purpopurposes of this Act, a female contributor who married after the commencement date, or marries, shall be deemed to have resigned on the of hrriage.
30. & Commencemencemencement annt and cessation of contributions
(1) ҈ Subjectbject to Section 3c, except as otherwise provided by this Act a contributor shall contribute to the Fund as from the commencement date ofrom rescrdate, whichever is the later.
(2
(2) ; For tFor the puhe purposerposes of Subsection (1), the prescribed date is:
(a)  the ase of a person wson who became a contributor by virtue of Section 26 tte ofnoticer that sect section; ion; and
(b) ټ&#in the the case oase of any other person the date of his appointment.
(3) &##160;ectbjo Seto Section tion 41 (4), the contributions of a contributor cease to be payable immediately after the last fortnighaymensalar before the last anniversary of his initial contribution before he atta attains tins the aghe age of retirement.
31. ټ Rate of contrcontributions
A contributor shall contribute to the Fund at the rate of 6% of his salary.
360; & Deduction of contriontributions
(1) & S60; Subject of Subsectioection (2) and to Section 35 contributions of a contributor shall be deducted from his salary at the time of each paymepayment of salary.
(2) ;ere tole or part part of a of a contrcontribution is not deducted from salary in accordance with Subsection (1), the arrears may be:
(a);ټ&##160; paid by the contributor; or
(b) d60; deductedufted from anom any amounts subsequently payable to the contributor in such amounts and during such periods as the Board determines.
33.  me incr costions
SubjeSubject toct to Sect Section 34, where the salary of a contributor is increased, contributions payable by him in respect of hireaseary ayable from the date from which the incr increasedeased sala salary is payable.
34. ;yments from from pay-dpay-days
Where the date from which any amount of contribution would be payable under this Division is not a pay-day, the amounpayabom the next pay-day.
35. #160;  Contributions on cn leave (1) &##160;; Where aere a contrcontributor is granted leave without pay, or at a rate less than the full rate of pay, on account
of illness, the Bmay, plicaby the contributor, dir, direct that the contributions payable bble by himy him during the period of the
leave be paid in such amounts and during such period as the Board determines. (2) & re: (a)&#(a) ;contributorbutor is gris granted leave without pay otherwise than on account of illness; and (b) the peof thve istedaas pf t of his service for the purposes of his emps employmeloyment,
the contributor (c) l,tal peseof Act,eemedave rave received the sahe salary lary that that he wohe would huld have received if he had not been
absent on the leave; and (d)&##160;;ټ ible t the contributions ions that that he wohe would huld have pave paid if he had not been so absent, in such
amounts and during such period as the Board determines. 36. dates at elections > (1) ;ere a contrcontributorbutor who is: (a)  officer or employee ofee of the Public Service; or (b0;҈& a memb the Teaching Servicervice; or (c) 
& memberember of the Poli Police Force, retires or resigns from his employme order to become a candidate for election to the Parliamentament, he shall, for the purposes of
this Act, be deemed to be on leave without pay until: (d) &##160;s e ictedected; or
(e) &##160; he beco becomes agapn emd oyed by the State otherwise than as a casual, exempt or temporary employee; or (f) ټ he beco becomes engaged in employotherthan ecifiedified in Paragraph (e); or (g)  the f tho period of two mowo months after the detion e resf the ethe election, whichever first occurs. (2 (2)  ersop to whom Subsectisection (1) (d), r (g)ies s for the purposesposes of t of this Ahis Act, be deemed to have retired
or resigned as from: (a) e date s ele; or (b)&>(b) &160; #160; & the;date on whon which hech he becomes engaged in employment as specified in Subsection (1) (f); > 160;&ـhe enthe period referrederred to i to in Subsection (1) (g), as the case maye may be. (3)p>(3) A person to whom Subsection(1) (e) applies shall, for the purposes of this Act, be deemed to have ceased to be on leave
without pay as the on whe is yed b State as specified in that paragraph. (4)&#(4) &160;   Subj Subject to Subse (5), (5), a contributor who has retired or resigned in order to become a candidate
for election to the Parliament and who: (a) ;ټ&#is not declared, red, on the day of nomination under the Orhe Organicganic Law on National Elections, to be a candidate;
or (b) ҈& withdraws hiws his nomination after that day, shall, for the purposes of Subsecubsection (1), be deemed to have failed
tolected. (5) ; In a case ref rred to in o in Subsection (4), t4), the period referred to in Subsection (1) (g) commences to run on the day
of nomination or, if the nomination is withdrawn after the day of nomination, the day on which it is withdrawn. (6) ere a person is deemed emed under his section to be on leave without pay for any period, he is not he Fund in respect of
that period.” I have read sections 27 to 36 and I am of the view that Sections 27 to 36 are not relevant because those provisions deal with the
exclusion, or commencement and cessation of contributions, rate of contributions, deductions of contributions, payment from paydays,
contributions on certain leave and candidate and elections. He emphasised Section 3thes the mandatory provision. Sn 36 relates
to candidateidates or contributors who retires or resigns from his employment der to become a candidate for elections to the Parliament.
It does neate obligatligatligations on the employer. I consider that thevant annt and the applicable provisions in regard to the
refund of contributions to a contributor is Section 42, 43 and 44 e Act0; Section 42, 432, 43 and 44 read as follows: “Section 42 INVALIDITY PITY PENSIONS Where the services of a contributor are terminated on the ground of invalidity or physical or mental incapacity to perform his duties,
not due to his own wilful action, he is entitled, as from the date of termination, to receive a pension equal to fifty percent of: (a) the average s lary hhatece received during the three years’ immediately before the termination; or (b) ҈ where here he had less thrn three years’ service before termination, the average salary that he received g his
service. Section 43 BENEFITS ON RETRENCHMENT (1) A contribuho iw retrenchednched before he attains the age of 55 years is entitled to receive: (a) ـ lump lump sum equm equal to 2.5 tthe a of tntribs paihim; or (b)&>(b) #160; 
& at ; at the dihe discretion of the contributor, a pension certified b actu member of the Bohe Board tard
to be the actuarial equivalent of that sum. Section 41 applies to and in relation to a contributor who is retrd after he reaches the age age of 55 years as though he had retired
on the date of his retrenchment. Section 44 REFUNDS OF CONTRIBUTIONS (1) A contributor who rssign r is retired or is dismissed in circumstances other than those referred to in the preceding provisions
of this Division shall be paid an amount equal to the amount of the ibutiaid b. (2) 
&##16;& Where a contributorbutor who has received a refund under Subsection (1) again becomes a contributor,
he shall contribute t the Fund as required by this act but is not entitled to any further benefit in respect of his previous service.” It is quite clear that Section 42 relates to payment of contributions to an invalid. Section 43 relates tontribntributor who is retrenched
before he attains age of 55 years. And Section 44 refers to refund of contributions to a ibutor. I consider that Mr Tedor’s submissions are misconceive and misleading.ding. Consequently I do not accept his subons and I reject
them. The provs of the Act he r he r he relied on do not create any statutory obligations on the Defendant all. Furthermore, in
my judgement even upon reading the statement of claim it is not based on negligence. I accept Mr Poka’s submissions. I am of thw that the causecause of action is frivolous and vexatious. I cer that the appropriateriate
course of action would have been for the plaintiff to seek orders to compel the defendant applicant to furnish him with the relevanuments
to enable him to complete it and sign it and have thve the relevant authority or authorised person from the defendant organisation
to do its part and have the documents forwarded to the POSF for payment of his contributions. I consider that the proceedings are misconceived. There is nothing in the Act which prohibits the contributor from suing the POSF
if the POSF refuses to refund his contributions. I am of the view that the proper cause of action does not lie against the applicant/deft
but would lie against thet the POSF. Of course if the applicant/defendant failed to do its part to enable the contributor to the
necessary documents wits with the board, then an appropriate cause of action may filed against the applicant/defendant. In ircumes
I consider thar thar that the whole of the proceedings against the applicant/defendant is frivolous and vexatious. Constly Ild the
applicatiocation and dismiss the proceedings. I order that the plaintiffntiff/respondent pay the applicant’ss, such costs are to be agreed, if not to be taxed. Lawyers for the applicant/defendefendant: Milner & Associates Lawyers for the respondent/plaintiff: S Tedor
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