Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Kuima Security Services Ltd v Bomai [2017] PGNC 212; N6882 (22 September 2017)

N6882

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 14 OF 2015

KUIMA SECURITY SERVICES LIMITED
Appellant

V

ROSE BOMAI
Respondent

Madang: Cannings J

2016: 9^th December,
2017: 22^nd September

APPEALS – from District Court to National Court – whether decision of District Court was against the weight of the evidence.

The appellant appealed against a judgment of the District Court in the total sum of K10,568.09 in favour of the respondent, its former employee, who had succeeded at a trial in obtaining an award of unpaid entitlements upon resignation of K8,315.59, interest of K1,330.50 and costs of K922.00. There were two grounds of appeal, that the District Court erred in fact and law by (a) accepting the evidence of the respondent against the evidence of the appellant, and (b) finding in favour of the respondent when there was insufficient credible evidence to prove the respondent’s claim.

Held:

(1) The two grounds of appeal can be reduced to one argument: that the decision of the District Court was against the weight of the evidence

(2) The District Court properly highlighted that the respondent’s claim turned on the evidence before the Court, carefully set out the competing evidence before the Court, assessed the credibility of the respondent’s evidence and determined that it was of high probative value as it was corroborated by the Department of Labour and Employment, remarked on the gaps in the evidence presented by the appellant, which failed to support the contention that the respondent was not continuously employed, and reached a considered finding, supported by the evidence, that the respondent had been continuously employed for four years, 10 months. That finding was not against the weight of the evidence.

(3) Both grounds of appeal were rejected, the appeal was dismissed and the order of the District Court was affirmed.

Cases cited:

There are no cases cited in the judgment.

APPEAL

This was an appeal against a decision of the District Court awarding the respondent a fixed sum of money for unpaid employment entitlements, interest and costs.

Counsel:

S Kesno, for the appellant
J Morog, for the respondent

22^nd September, 2017

1. CANNINGS J: Kuima Security Services Ltd appeals against an order of the Madang District Court, constituted by Senior Provincial Magistrate, her Worship Rosie Johnson, of 3 February 2015, awarding the respondent Rose Bomai, a former employee of the appellant, the total sum of K10, 568.09.
   
2. The respondent had succeeded at a trial in obtaining an award of unpaid entitlements upon resignation of K8, 315.59, interest of K1, 330.50 and costs of K922.00.
   

GROUNDS OF APPEAL

3. There were two grounds of appeal, that the District Court erred in fact and law by:
   

(a) accepting the evidence of the respondent against the evidence of the appellant, and

(b) finding in favour of the respondent when there was insufficient credible evidence to prove the respondent’s claim.

DETERMINATION

4. I consider that the two grounds of appeal can be reduced to one argument: that the decision of the District Court was against the weight of the evidence, which according to the submissions of Mr Kesno, for the appellant, supported a finding of fact that the respondent was not employed for a continuous period of 4 years, 10 months as she claimed, but rather, for broken periods totalling 1 year 11 months.
   
5. It was agreed that the respondent commenced employment on 8 February 2008, that she was engaged as a static guard at the RD Tuna plant near Madang and that she resigned on 14 December 2012. The point of contention was whether she was continuously employed in that period (as claimed by the respondent) or whether the period of employment was broken as a result of the respondent leaving for long periods and coming back on several occasions (as claimed by the appellant). This was the critical question of fact to be determined by the District Court.
   
6. It should be noted that the appellant takes no issue with the method of calculation of unpaid entitlements undertaken by the Madang branch of the Department of Labour and Employment – which was relied on by the District Court. It is only the period of employment underpinning the calculation, with which the appellant takes issue.
   
7. It is significant that the learned trial Magistrate prepared a concise and easy-to-read written judgment. Her Worship properly highlighted that the respondent’s claim turned on the evidence before the Court, carefully set out the competing evidence before the Court, assessed the credibility of the respondent’s evidence and determined that it was of high probative value as it was corroborated by the Department of Labour and Employment, remarked on the gaps in the evidence presented by the appellant, which failed to support the contention that the respondent was not continuously employed, and reached a considered finding, supported by the evidence, that the respondent had been continuously employed for four years, ten months.
   
8. It cannot properly be concluded that her Worship’s finding of fact on the critical issue of the period of employment – that there was a continuous period of employment of four years, ten months – was against the weight of the evidence. Both grounds of appeal are therefore rejected.
   

WHAT ORDERS SHOULD BE MADE?

9. The appeal will be dismissed and the order of the District Court will be affirmed, subject to a variation regarding the time within which the judgment sum shall be satisfied. Such orders can be made under Section 230 (power of National Court on appeal) of the District Courts Act, which states:
   

(1) On the hearing of an appeal, the National Court shall inquire into the matter, and may—

(a) adjourn the hearing from time to time; and

(b) mitigate or increase a penalty or fine; and

(c) affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and

(d) remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and

(e) exercise a power that the Court that made the conviction, order or adjudication might have exercised; and

(f) make such further or other order as to costs or otherwise as the case requires.

(2) An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.

ORDER

1. The appeal is dismissed.
   
2. The orders of the Madang District Court in GFC 05/2014 of 5 February 2015 are pursuant to Section 230(1)(c) of the District Courts Act Chapter No 40 affirmed and for the avoidance of doubt substituted by this order: the appellant shall pay the respondent the total sum of K10,568.09 being outstanding employment entitlements, interest and costs assessed and awarded by Madang District Court, within one month from the date of service of this order of the National Court on the appellant.
   
3. The parties shall bear their own costs of the appeal.

________________________________________________________________

Kesno Lawyers: Lawyers for the Appellant
Public Solicitor: Lawyer for the Respondent