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Maroba, Mambu and 58 Members of Air Transport Squadron of Papua New Guinea Defence Force v Brigadier General Robert Dademo, Commander of Papua New Guinea Defence Force [1998] PGNC 107; N1799 (6 November 1998)

Unreported National Court Decisions

N1799

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 144 OF 1994
BETWEEN: FRANK MAROBA & PAUL MAMBU & 58 MEMBERS OF AIR TRANSPORT SQUADRON OF PAPUA NEW GUINEA DEFENCE FORCE
PLAINTIFFS
AND: BRIGADIER GENERAL ROBERT DADEMO, COMMANDER OF PAPUA NEW GUINEA DEFENCE FORCE
FIRST DEFENDANT
AND: RUPA MULINA, SECRETARY FOR DEPARTMENT OF DEFENCE
SECOND DEFENDANT
AND: THE STATE
THIRD DEFENDANT

Waigani

Sevua J
27 July 1998
6 November 1998

Counsel

L Kintau for Plaintiffs

H Polume for Defendants

DECISION

6 November 1998

SEVUA J: This is an application for judicial review following the granting of leave by the Chief Justice on 11th May, 1994.

The applicants seek various declaratory orders in respect of a dispute relating to claims for meal allowances which they claim they were entitled to and the Papua New Guinea Defence Force had refused to pay. The facts are contained in the affidavit of Warrant Officer Frank Maroba, one of the appointed plaintiffs in this class action.

The Air Transport Squadron (ATS) is the air element of the Papua New Guinea Defence Force (PNGDF) created in August, 1975. Initially, the ATS was based at Jacksons Airport, Port Moresby. The members of ATS then, either resided at Murray Barracks, or Taurama Barracks, and travelled to work at Jacksons Airport. They were provided with lunch (hot boxes) each day irrespective of their marital status. In 1976, the squadron was relocated to Lae. All aircraft, facilities and personnel were moved to Lae and the members of the squadron were accommodated at Igam Barracks, which is located several kilometres outside Lae city. They had to travel to work at the Lae airport in town.

In about June, 1980, provision of lunches to the married members of the squadron ceased, but unmarried members continued to be provided with hot boxes. No reason was provided for the cessation of hot boxes for the married members of the ATS. In about February, 1991, all married members of ATS submitted claims for casual meal allowance pursuant to Clause 20 of Manual of Personal Administration (MPA). On 10^th March, 1991, two of the members were paid casual meal allowances.

Annexures “A1” and “A2” respectively of the affidavit of Frank Maroba show that on 2^nd October, 1991, 87026 P. Jimbo was paid the sum of K8, 355.00 for casual meal allowances for the period, 14^th February, 1984 to May, 1991. On the same date (2.10.97), 87178 Wararu Rex was paid the sum of K9, 225.00 for the period 4^th November, 1982 to 20^th December, 1990.

After these two payments, the PNGDF HQ, declined to process other claims by other members of ATS, following an order by then Chief of Logistics, Colonel David Takendu. On 31^st October, 1991, then Commanding Officer of ATS, Lt. Col. Ignatius Lai, took issue with this and attempted to interpret what he understood to be the meaning of the provision relating to casual meal allowance. Again on 27^th April, 1992, Lt. Col. Lai, then Director of Air Operations forwarded another communication to PNGDF HQ, once again, attempting to interpret Clause 20 of MPA. Requests for payment of the plaintiffs’ claims for casual meal allowances have been refused. The plaintiffs therefore claimed they are legally entitled to casual meal allowances and they have been unjustly deprived of these monies.

The plaintiffs’ claim in this action raises a legal issue which touches on the correct interpretation of Clause 20 of the Manual of Personal Administration dealing with Casual Meal Allowance. At this juncture, let me say, that despite the fact that the Force has a legal officer, no opinion was sought as to the correct interpretation of Clause 20.

Even then, the State Solicitor has never been asked to provide an opinion on this matter. Whilst I am, in no way, trying to degrade the intellectual capacity of the senior military officers involved in this dispute, I consider that they are not lawyers, therefore they could not correctly interpret the meaning of Clause 20. For that reason therefore, one could not try to interpret Clause 20 in the way it suits him.

Clause 20 of the Manual of Personal Administration provides:

“Casual Meal Allowance

20. & Thiswanco is p is payableyable when a member is required to travel away from his normal place of duty for a period of such duraas toer itactical for him to return to his normal place of abode for meals. RatesRates for for CasuaCasual Meal Allowance are:

These rates have been subsequently increased, however the increases do not remedy the issue in dispute here, except that, the rates may affect each individual’s claim depending on the period the allowance is claimed.

Mr Kintau, counsel for the plaintiff, has submitted that I accept his submission that the operative words in Clause 20 are “render it impractical to return to his normal place of abode for meals.” The basis for that submission, he said, was that the Manual of Personal Administration was drafted on the basis that all military elements are intergrated.

All their operations are together. He illustrated this to the case of a military officer who resides at Murray Barracks and works in the Recruitment Unit at Murray Barracks. He referred to the evidence where the plaintiffs resided in the barracks but had to travel to their operational base at Jacksons Airport and Lae airport. It seems to me that the converse of that submission is the correct interpretation of Clause 20.

From the evidence before me, I find as a fact that, when the Air Transport Squadron was originally located at Jacksons Airport, the members’ “place of abode for meals” were Murray Barracks and Taurama Barracks respectively. When the squadron was relocated to Lae airport, the members “place of abode for meals “ was Igam Barracks. I also find as a fact that the members’ “normal place of duty” was firstly, Jacksons airport then later, Lae airport.

Mr Kintau in his submission said, “in this case the evidence shows that the plaintiffs reside in the barracks with other military personnel but had to travel to their operational base (Jacksons airport, Lae airport) daily to perform their duties, which clearly shows that their place of duty is not the barracks they live in, but a location that is away from the barracks which renders it impractical for them to return to the barracks for lunches”.

That submission is consistent with the interpretation of Clause 20, but I think, Mr Kintau has misconstrued the provision. Of course, the barracks are not their place of duty, but by the same token, travel away from their normal place of duty is not the same as travel between barracks and place of duty. On the evidence before me and findings of facts I have made, I am of the view that the plaintiffs’ application is misconceived. Firstly, the plaintiffs’ travel from Murray Barracks and Taurama Barracks to Jacksons airport is not a travel away from their normal place of duty.

Similarly, their travel from Igam Barracks to Lae airport is not a travel away from their normal place of duty. The barracks where they live is not their place of duty.

I consider that the operative words in Clause 20 are, “required to travel away from his normal duty” and “impractical for him to return to his normal place of abode for meals.” In order for a member of ATS to return to his barracks, which is his normal place of abode, for meal, the impracticability is that he is not at his normal place of duty, but has travelled somewhere else that is not his normal place of duty. For instance, if a member who resides at Taurama Barracks, instead of going to Jacksons airport, is required to travel to Magarida on the east coast of Central Province to work, say from 7 am till 5 pm on a Monday, it would be impractical for him to return to Murray Barracks for lunch. Similarly, if a member who resides at Igam Barracks is required to travel to Ramu or Kainantu for a job until 5 pm that day, it is not practicable for him to return to Igam Barracks for lunch. In both scenario, the member would be entitled to casual meal allowances for the meals he missed.

In my opinion, the two examples adequately provide the correct interpretation and application of Clause 20 of MPA. I consider that members of the ATS are not entitled to casual meal allowances where they merely travel between the barracks they reside in and the airports where they normally work. That is not the intention of Clause 20 of MPA.

I consider that the correct interpretation of Clause 20 of MPA is that, for a member of the ATS to be entitled to casual meal allowance, he must travel from his barracks to a location other than the airport where he normally carries out his duty. Such a duty travel must be for a period that it is not practical for him to return to his barracks for meals.

Travel from the barracks, which is the normal place of abode, to the airport, which is the normal place of duty, does not constitute “travel away from the normal place of duty” therefore entitling members of the ATS to casual meal allowances.

I therefore consider that payment of casual meal allowances by the Papua New Guinea Defence Force or Department of Defence in the past under the circumstances I have adverted to in this judgment, were based on the incorrect construction of this provision, although that is not the issue here.

It would be quite absurd and incongruous to hold that members of the ATS are entitled to be paid casual meal allowances pursuant to Clause 20 of the MPA when they merely travel from their residential barracks to the airport where they usually work. In such a circumstances, they do not travel away from their usual place of work. They therefore cannot claim casual meal allowances and they are not entitled to such an allowance in law.

I therefore conclude that the plaintiffs’ claim is based on an apparent misconceived and incorrect construction of Clause 20 of the Manual of Personal Administration, Chapter 15. I find there is no error on the face of the record. I find no error in the decision of the defendants. There is no procedural error or irregularity in the decision of the defendants, in particular, the first defendant. In my view, if the plaintiffs think that they are owed monies, their claim would be in damages by way of a writ of summons, not a claim for declaratory orders in an originating summons.

It is my view that the plaintiffs claim for declaratory relief is inconsequential. As far as this Court is concerned, the Manual of Personal Administration is part of the Defence Act, thus any breach thereof, particularly in the nature of claims for damages or monetary loss can appropriately be instituted by a writ of summons, not an originating summons.

I dismiss the plaintiffs’ application and order them to pay the defendants’ costs.

Lawyer for Plaintiffs: Joe Wal

Lawyer for Defendants: Acting Solicitor General