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Paelmo v Sharp [2005] PGNC 125; N2826 (23 February 2005)

N2826

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 13 OF 2005

BETWEEN:

ARTURO PAELMO
Plaintiff/Respondent

AND:

HAMISH SHARP
First Defendant/First Applicant

AND:

BISMARK MARITIME LIMITED
Second Defendant/Second Applicant

Madang: Manuhu, AJ
2005: February 17 & 23.

RULING

INJUNCTIVE RELIEF – master and servant –preservation of status quo – merits of substantive action – balance of convenience.

Case cited in the judgment:
Robinson v National Airlines Commission [1983] PNGLR 476.

Counsel:
Mr. A. Paelmo, for himself.
Mr. Y. Wadau, for the Defendants.

23rd February 2005.

MANUHU, AJ.: This is an application by way of notice of motion by the Defendants praying for orders that:

(a) the substantive proceedings be dismissed for non-compliance with Order 4 Rule 2 of the National Court Rules,

(b) in the alternative, the Plaintiff file and serve a statement of claim with 14 days,

(c) the interim orders made on 13th January 2005 be dissolved,

(d) the plaintiff pay costs of and incidental to compliance by the defendants with orders made on 13th January 2005, and

(e) the first defendant be removed as a part to the proceedings.

The first and last orders sought involve technical issues as they require references to the National Court Rules. The application to dismiss the proceedings, in particular, is largely based on the application of the National Court Rules. The lawyers representing the Plaintiff ceased representation seven days prior to the hearing of this application. The Plaintiff is a lay person. He is not expected to present a legitimate counter argument on the question of compliance with the National Court Rules. All these were explained to the Plaintiff who conceded that the matters concerned should be adjourned to allow him to seek legal assistance. Mr. Wadau did not object to the Plaintiff being permitted to seek legal assistance but insisted that the interim orders of 13th January 2005 be dissolved.

I am only here for circuit which ends in two days time. In the circumstances, I will adjourn some parts of the application, particularly those relating to dismissal of the proceedings and removal of party, to the next call over. I will only deal with the application pertaining to the dissolution of orders of 13th January 2005 and costs incidental to compliance with that order.

The substantive proceeding by the Plaintiff, who was brought into the country as a non-citizen worker, is essentially a claim for entitlements under the Employment of Non-citizen Act following his resignation as workshop manager with the Second Defendant company. The other claims in his originating process are interlocutory in nature. While the substantive matter remains pending, the Plaintiff was granted ex parte interim orders essentially permitting the Plaintiff to continue to be accommodated in the property provided by his former employer, the Second Defendant.

In the meantime, the Plaintiff’s employment visa has been cancelled and has received his repatriation tickets and the passports. He may leave the country at anytime but he wants to stay to settle the issue of his other entitlements, which is disputed, and which is the subject of the substantive proceeding.

The Defendants understand the Plaintiff’s position but argue that the Plaintiff is no longer entitled to continue residing in the property provided by the former employer. The basis for such privilege, it is argued, is already non-existent. The appropriate employment contract between the parties, which formed the basis for the housing privilege, has been terminated by the Plaintiff. The Plaintiff, accordingly, does not have any right to continued possession and occupation of the property.

The defendants rely on the case of Robinson v National Airlines Commission [1983] PNGLR 476, which is also a case involving a foreign employer. In that case, the plaintiff was suing for damages for unlawful termination of employment. In the meantime, he applied to the court for orders that the employer, among other things, be refrained from demanding possession of the company provided accommodation.

The court observed that the purpose for granting orders such as the one sought by the Plaintiff is to preserve the status quo of the parties until such time the substantive dispute is settled. The court went on to say that:

"What the plaintiff must prove is that he has a serious case, not a speculative case which has a real possibility of ultimate success and that he has property or other interests which might be jeopardized if no interlocutory relief were granted. Then it becomes a matter of seeing if, in all the circumstances of the case, the court should nonetheless exercise its discretion by declining to issue an interlocutory injunction.

"In order to determine this, the court must have regard to such factors as the adequacy of damages, the possibilities of alternative remedies, whether there has been any latches and delay, the strength of the grounds of defence suggested by the defendant, what, if any, undertakings the defendant is prepared to give, and most importantly, hardship and the balance of convenience."

In this case, I take into account, firstly, that the substantive claim is based on the provisions of the Employment of Non-citizen Act. Interestingly, the Plaintiff’s claim is not based on any terms of his contract of employment. The Plaintiff specifically prays for "orders that the Defendants pay the Plaintiff all outstanding lawful entitlements forthwith, in accordance with the provisions of the Employment of Non-citizen Act, which entitlements are to be determined by the Court."

Under the Act, the only provision which relates to the substantive proceeding is the provision on repatriation under s. 15, which relevantly provides:

"(2) Where for any reason the employment of a non-citizen is terminated, the employer is liable for the expenses of repatriation of the non-citizen to the place of engagement.

(3) Every non-citizen who is employed in Papua New Guinea and who is ordered to leave Papua New Guinea in accordance with the provisions of any law for the time being in force in Papua New Guinea, shall be repatriated at the expense of the employer to the place of engagement.

(4) Where any dependant of any non-citizen has been brought to the place of employment by the employer or by any person acting on behalf of the employer, such dependant shall be repatriated at the expense of the employer when the non-citizen is repatriated or in the event of his death.

(5) The expenses of repatriation shall include—

(a) travelling and subsistence expenses during the journey; and

(b) subsistence expenses (if any) between the date of termination of the employment and the date of repatriation; and

(c) provision of decent interment and the payment of the reasonable expenses of burial in the event of death of a non-citizen occurring during the course of, or pending, repatriation.

(6) The employer is not liable for subsistence expenses in respect of any period during which the repatriation of the non-citizen has been delayed—

(a) by the non-citizen's own choice; or

(b) for reasons of force majeure,

unless the employer has been able during that period to use the services of the worker.

(7) If the employer fails to fulfil his obligation in respect of repatriation that obligation shall be discharged by or under the directions of the Minister and any sum so expended may be recovered from the employer as a debt due to the State and, notwithstanding any law to the contrary, shall be a first charge on the property of the employer." (my emphasis)

It is apparent from these provisions that first, under subs. (2), the Plaintiff is entitled to repatriation tickets for himself and all of his dependents. In this case, the Defendants have complied with this requirement. The Plaintiff has his tickets and can leave the country at anytime.

Secondly, when the repatriation tickets were not yet raised, the Defendants were required under Subs (5)(b) to provide subsistence expenses between the date of termination of the employment and the date of repatriation. In this case, while the repatriation tickets were being processed, the Defendants were obligated to continue to accommodate the Plaintiff. However, after such tickets are provided, the Defendants are not obliged to provide subsistence expenses. Under subs. (6)(a), the Plaintiff is not entitled to continue to be accommodated by the Defendants after receiving his repatriation tickets. He may remain in the country but at his own expense.

I do not know what else the Plaintiff seeks under the Act as his outstanding entitlement. I cannot find any other provision that is relevant to the Plaintiff’s substantive claim. In other words, I am unable to appreciate the merits of the Plaintiff’s substantive claim. What he is claiming has been accorded to him. There is nothing else outstanding.

I take into account secondly that the Plaintiff’s employment visa has been cancelled and he cannot find another form of employment here whilst awaiting the final outcome of the substantive proceeding. The substantive proceeding, however, as already mentioned, seriously lacks merit. And if the Plaintiff is unlikely to succeed against the Defendants, it is not just for him to keep possession of the Defendants’ property.

I take into account, thirdly, that the Plaintiff is obligated to mitigate his losses. It may well be that he is presently facing hardship in meeting the needs of himself and his family. However, he already has all the repatriation tickets. If he wants to remain in the country to pursue his unmeritorious proceeding, he should mitigate his hardship by sending some or all of his dependents to his country.

Furthermore, the reason for the allocation of the Defendants’ property to the Plaintiff is no longer in existence. The Plaintiff was responsible for terminating his employment with the Defendants. He resigned. Having done so, he has no right to continued possession of the Defendants’ property.

In the final analysis, the Plaintiff has not presented any substantive interest that requires preservation or maintenance of status quo. He wants to keep possession of the property to pursue his claim which is seriously lacking in substance. For this reason, it is not just that the Plaintiff keep possession of the Defendant’s property. His position is similar to that of the plaintiff in the cited case, whose similar request was refused. I will do likewise and refuse the Plaintiff’s request to continue to be accommodated by the Defendants. Accordingly, I will quash the order permitting the Plaintiff to remain in the Defendants’ property.

The Defendants also claims that Plaintiff pay costs of and incidental to compliance by the defendants with orders made on 13th January 2005. I have already stated that the Defendants were obligated to accommodate the Plaintiff until when he is given his repatriation tickets. The Plaintiff was supposed to travel out of the country on 2nd February 2005 but he did not. I will award costs incidental to compliance with the appropriate interim order from 2nd February to today’s date, which is 24th February. For practical and humanitarian reasons, I am permitting the Plaintiff seven days from today to vacate the Defendants’ property.

Orders accordingly.
__________________

Lawyer for the Plaintiff : Nil.
Lawyer for the Defendants : Wadau Lawyers