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Papua New Guinea Harbours Board v Kora [2005] PGNC 122; N2834 (24 February 2005)

N2834

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
[AT WAIGANI PAPUA NEW GUINEA ]

APPEAL NO. 203 OF 2001

Between:

PAPUA NEW GUINEA HARBOURS BOARD
-Appellant-

And:

BRENI KORA
-Respondent-

Waigani : Injia, DCJ
2004: November 10th
2005: February 24th

DISTRICT COURT – Duty to state decisions and reasons for decision in Court record.

DISTRICT COURT – Is a Court of record and it must keep written records of its decision and reasons for decision – Constitution, s.155(1), s.160(2) & s163(2).

DISTRICT COURT – Practice and Procedure – Res judicata – Magistrate granted judgment on liability on fresh complaint on the same cause of action earlier dealt with by another Magistrate in which judgment on liability and quantum was given and already enforced – Fresh action to litigate un-litigated head of damages in first action – Whether fresh action should be stopped - Principles on res judicata discussed and applied – Appeal allowed – Judgment quashed.

Cases cited in the judgment:
Anonga v Jack Were (2001) N2149.
Anton Angra v Oimbo Security Services Pty Ltd v Tony Ina [1996] PNGLR 303;
Bougainville Copper & Masai Levi v Liu [1978] PNGLR 221;
Henry Aisi v Malaita Hoala [1981] PNGLR 1999;
Francis Mabon v Francis Gesa N314(m) (1981);
Lee v Lee [1973] PNGLR 89;
Nerin Neame v Ovia Namba (2000) N2060;
Sam Toni Orani v Benson Tamean N323(m)(1981);

Counsel:
R Rageau for the Appellant
Respondent in person

24th February 2005

INJIA, DCJ: The Appellant appeals against the decision of the District Court held at Port Moresby, made on 17 August 2001. In that decision, the District Court found the Appellant liable in damages for wrongful dismissal. Damage is yet to be assessed.

There are four (4) grounds of appeal but the main ground pursued by the Appellant is that the Magistrate erred in law in failing to find that the Respondent’s claim was res judicata.

The short facts are that the Respondent was employed on 26 January 1995 by the Appellant as a Storage Clerk. On 25 August 1995, he was suspended from duties following laying of criminal drug trafficking charges against him. On 5 October 1995, he was convicted and sentenced to 12 months imprisonment by the District Court. As a result, the Appellant terminated the Respondent’s employment. On appeal, on 17 April 1996, the National Court quashed the conviction and sentence. But he was not re-employed by the Appellant.

On 27 October 1998, the Respondent filed an action for wrongful dismissal in the District Court at Port Moresby. The relief claimed by the Plaintiff were:-

1. K6,747.37
2. Damages

100. Interest

4. Costs
   

The total of K6,747.37 was for unpaid fortnightly wages for seven (7) months twenty (20) days from 25 August 1995 to 14 July 1996 (K5,145.76), unpaid pro-rata leave pay for 84 hours for the same period K321.61) and unpaid housing allowance for the same period (K1,280). On 30 December 1998, the District Court entered judgment in the sum of K6,747.37 plus 8% interest plus costs. No order was made for assessment of further damages as claimed under (b) above. The District Court order states:

"1. The Defendant to pay to the Complainant the sum of K6,747.37.

2. Interest pursuant to Judicial Proceedings (Interest on Debts) Act as 8% per annum.
3. The Complainant costs.
4. Any other Orders."(my emphasis).
   

On 2 March 2000, the Appellant settled the judgment.

On 5 April 2001, the Respondent filed fresh proceedings for wrongful dismissal, in the same District court, claiming "damages together with interests and costs." In the Statement of Claim filed on 4 May 2001, the Respondent claimed damages between K10,000 – K12,000. At para. 8 – 11 of the Statement of Claim, he explained the "damages" claim as follows:

"This claim amounting to K10,000 to K12,000.00 is basically for having been done damages to me and the dependents of four (4) due to wrongful dismissal from employment.

The claim is related to the Court Order of 30th December, 1998, which the salary entitlements were already paid to me. Although damages were mentioned in the statement of claim, the Court was not fully aware due to my Lawyer not mentioning in the court proceedings."

It is clear from the above Statement of Claim that the Respondent took the judgment of 30 December 1998 as disposing of his claim under para. (a), (c) and (d) of the relief sought and the relief sought in (b) is still outstanding, for which he was entitled to commence new proceedings. He blamed his lawyer for not seeking an assessment of further damages from the Court. The Appellant raised the defence of res judicata. The evidence placed before the District Court on the Respondent’s new action was his affidavit sworn on 4 April 2001. The Appellant relied on the affidavit of Timboto Pyapeta, Acting HRD Manager of the Appellant. The Appellant’s counsel also filed a written submissions. Attached to this submission was a written opinion of the Corporate lawyer for the Appellant in relation to the Respondent’s first action. The Respondent also filed a written submissions. The matter was fully argued before the Court. The main issue was res judicata.

On 17 August 2001, the Court handed down its decision. The decision of the Court as appears on the Magistrate’s worksheet is:

"Ct: Findings – Complaint proved. Case adj: to 31/8/01 at 9.30am for assessment of damages".

The first observation I make about this judgment is that it does not give any reasons for decision. I do not know if any reasons for decision were given. If reasons were given orally, a summary of those reasons are not shown in the notes. If the above statement was all that was pronounced at the time of decision, then it is not a judicial decision based on reasons. The need for Magistrate to give reasons for decision has been expressed many times by this Court in many cases: see Lee v Lee [1973] PNGLR 89; Bougainville Copper & Masai Levi v Liu [1978] PNGLR 221; Anton Angra v Oimbo Security Services Pty Ltd v Tony Ina [1996] PNGLR 303; Henry Aisi v Malaita Hoala [1981] PNGLR 1999; Francis Mabon v Francis Gesa N314(m) (1981); Toni Orani v Benson Tamean N323(m)(1981); Nerin Neame v Ovia Namba (2000) N2060; Sam Anonga v Jack Were (2001) N2149.

The District Court is a Court of record. It is implicit in S.160(2) and S.163(2) of the Constitution, when referring to the National Court and the Supreme Court as "Superior" Courts of record, that the District Court is an "interior" Court of record. Both the two Superior Courts and the District Courts are Courts of National Judicial System: Constitution, s.155 (1). As such, the District court must keep written record of its proceedings for appeal and other administrative purposes. The Magistrate’s decision on the case is an integral, if not the most important, part of the case and it must be fully recorded in writing or by some form of audio recording system if such equipment is available. The practice seems to be that the Magistrate’s decision are recorded in a worksheet provide for that purpose. The Court must record its decisions and the reasons for decisions on the Magistrate’s worksheet or in some other written form.

The Court’s decision comprises of a decision or judgment on the claim or action itself and the reasons for that decision. The reasons for decision is indispensable in every case. It may be a summary in note form or verbatim record of the reasons as pronounced in Court. It is not sufficient to say or record statements of the type above, which I must say, I have seen it frequently in appeals before me. It also makes it difficult for the appeal Court to fully deal with the grounds of appeal. It also hinders the preparation and presentation of the appeal by the parties. A party is entitled to rely on the lack of reasons for decision as ground of appeal, and it is a valid ground of appeal. In such cases, if the Magistrate’s decision is under challenge in the appeal, the Court may infer that a decision without reasons is not a good decision and allow the appeal.

In the present case, the Magistrate’s failure to give reasons for decision, if any, is not a ground of appeal. Therefore, I will assess the evidence and make my own findings: S.230(1)(e) of the District Court Act. The same arguments presented before His Worship were presented before me.

The basic principles on the doctrine of res judicata is set out by the common law. They are canvassed by Amet CJ in Titi Christian v Rabbie Namaliu (1995), Unreported, Un-numbered Supreme Court Judgment in OS No. 2 of 1995. Some of those principles have been re-stated and applied in many cases, a number of which Mr Elemi has quoted to me; such as National Airline Commission v Lysenko [1990] PNGLR 266; AGC (Pacific) Ltd v Sir Albert Kipalan (2000) N1944 and Kundu Consultants Ltd v The State (2001) N2128. Four basic principles emerge from these. In summary in order for the defence of res judicata to succeed, a party relying on the doctrine must show:

1. The parties in both cases are the same.

2. The issues(s) in both cases are the same.

3. The previous judgment extinguished the foundation of the claim or the right to set up the action. The result is final and conclusive and it binds every other Court.

4. A Court of Competent jurisdiction made the first decision.

In the present case, I accept Mr Elemi’s submission on the above requirements being met. The parties are the same. The action for damages for wrongful dismissal is the same. The issue on liability is the same. The issues on damages are the same except that in the earlier decision, the Court did not deal with the Respondent’s claim for general damages, that is, damages other than for loss of entitlements. I will come to this aspect latter. The earlier decision was made by a Court of competent jurisdiction and it was final and conclusive insofar as issues of liability and damages, (other than for general damages) interests and costs was concerned.

The only question before me is whether the issue of general damages which was claimed but not assessed due to what the Respondent says was the fault on the part of his lawyer, can now be allowed to be brought and litigated in a fresh action for wrongful dismissal and consequently assess general damages.

Mr Rageau submits that the Respondent had the opportunity to recover general damages in those proceedings but due to his own fault and that of his lawyer, he failed to pursue this category of damages. Therefore, he should not be allowed to pursue this claim as it would amount to an abuse of process of the Court.

The full judgment given on 30 December 1998 is not available before me to see whether the judgment was in fact a final judgment on the question of damages. The wording of Clause (d) of the Court Order however, shows it may not have been a final judgment. The last phrase "Any other Orders" in Clause 4 above seems to me to imply some other orders were still outstanding to be made. It may refer to the relief claimed which was still outstanding, that is, the claim for damages. If that were the intention in this clause, then it can be inferred that the award of "damages" was not final, that His Worship is still seized of the matter and the matter should go before His Worship for assessment of further damages in the form of general damages.

The Respondent is clearly prevented by the doctrine of res judicata, in instituting fresh proceedings on the same cause of action, that is an action for wrongful dismissal, and having the same issue re-tried. It is an abuse of process to institute a fresh action for wrongful dismissal when that issue was already determined. Further, the issue of liability and damages are inseparable in the one action and they cannot be split up into two different causes of action and separate proceedings filed. Therefore, it was not open to the Respondent to file fresh action for wrongful dismissal, for the sole purpose of litigating "damages" which he did not litigate in the first action.

The other question is whether I should make an order for the outstanding claim of general damages to be tried by the same Magistrate who determined the first action. The issue is not properly before me as the Respondent did not appeal that decision.

In any event, the second leg of res judicata stands against exercising my discretion by referring the matter back to the District Court on the original cause of action. The principle of estoppels exists to prevent abuse of the Court process. It is "against public policy, and oppressive to the individual, to re-agitate disputes which have been litigated once and for all to a finish:" Kundu Constultants v The State, supra. A party will not be permitted to split up different heads of damages and seek to recover damages, which he has inadvertently or by design, left out, in the original action, after it has enforced and benefited from the litigated head of damages. The emphasis is on finality and certainty of the judicial decision making process and the decision itself. This is the principle of estoppels which applies to protect the Court process from being abused and protect the other party.

In the present case, the Respondent enjoyed the fruits of the judgment given on 30 December 1998. More than two (2) years after the judgment and after benefiting from the award of damages in lost entitlements, he filed a fresh action. He should not have enforced the judgment if it was his intention to litigate general "damages. He should have then sought assessment of general damages before that Court. Instead, he waited for more than two (2) years and instituted fresh action for damages. I am of the view that the decision had all the ingredients of a final judgment. It was enforced on its own terms without any hint of assessment of further damages pending before the Court. If it was the fault of his lawyer that general damages was not litigated, then he has a cause of action in negligence against his lawyer.

For these reasons, I allow the appeal, quash the Decision of the District Court made on 17 August 2001 and substitute an order dismissing the Complaint. I further order that the question of further damages in the first action be not litigated. The appellant shall have its costs of the appeal.
_______________________________________________________________

Lawyer for the Appellant : Regeau Elemi & Kikira
Respondent in person