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Lopa v Air Niugini Ltd [2017] PGNC 312; N6972 (6 October 2017)

N6972

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 681 OF 2017

BETWEEN:
BENJAMIN LOPA, VINCENTIA TONGIA, JOSEPH KUMASI, BORIS AGEDA, NORMAN DANIEL, ELIJAH YANGI, ABEL KANEGO AND DAVID SEKEN
First Plaintiffs

AND
NATIONAL AIR PILOTS UNION (NAPU)
Second Plaintiffs

AND
AIR NIUGINI LTD
Defendant

Waigani: Polume-Kiele J

2017: 7, 29 September & 6 October

CIVIL LAW - Master and Servant – Written Employment Contract –National Airline Commission Act (Ch. No. 244); Industrial Relations (Ch. No. 174)

ESTOPPEL - Res judicata — Termination of employment contract unlawful - Claim for reinstatement — Claim determined - Whether claim for reinstatement estopped

EMPLOYMENT LAW — Contract of employment — Construction and effect — employment clause — Airline pilots - Terms of employment — Usual terms

Cases cited:
Papua New Guinea Cases

Alan Stevens v Kopi Larapa (2013) N5425
Central Bank of PNG v Gabriel Tugiau (2009) SC1013
Curtain Brothers (QLD) Pty Ltd & Kinhill Kramer Pty Ltd v The Independent State of Papua New Guinea [1993] PNGLR 285
Divine University v George Podas (2015) SC 1414
Igiseng Investments Limited v. Starwest Constructions Limited and Igiseng–Okmanip Business Group Inc (2013) N2498
Lysenko v. National Airline Commission [1988 – 89] PNGLR 69
National Airline Commission v Lysenko [1990] PNGLR 226
Odata Ltd v. Ambusa Copra Oil Mill Ltd (2001) N2106
Pama Anio v Aho Baliki (2004) N2719.
Papua New Guinea Forest Authority v. Concord Pacific Limited, Paiso Company Limited and The Independent State of Papua New Guinea (N0.2) (2003) N2456.
Porgera Joint Venture Manager Placer (PNG) Ltd v Robin Kami (2010) SC 1060
Placer (PNG) Ltd v Alois Kawa (2008) SC 919
Telikom PNG Ltd v ICCC (2008) SC906
Wilson Thompson v NCDC (2004) N2686

Overseas’ cases cited:

Bank of New Zealand v. Simpson [1900] UKLawRpAC 6; [1900] AC 182 at 187
Horsfall v.Braye [1908] HCA 85; (1908) 7 CLR 629
Marginson v Blackburn Borough Council [1939] 2 KB 426

Counsel:

Mr O. Dekas, for the Plaintiffs
Mr I. Shepherd, for the Defendant

Interlocutory Ruling

6^th October, 2017

1. POLUME-KIELE J: The first plaintiffs by a motion filed on the 23^rd of August 2017 sought order for interim injunctive relief; firstly to restrain the Defendant from taking action to evict them from company provided accommodation and secondly that the decision made by the defendant in September 2016 to terminate their respective employment with the Defendant be stayed.
   

Background Facts

2. The First Plaintiffs, at the time of filing these proceedings are still current members of the National Air Pilots Union but former employees of the Defendant. The First Plaintiffs were employed under an individual 2015 Contract of Employment until on or about September 2016 when they were terminated from their employment for misconduct under the 2015 Contract.
   
3. The Plaintiffs challenged the decision taken by the Defendant to terminate them in the National Court in OS (JR) No. 632-637, 648 & 649 of 2016. These proceedings were filed on the 23^rd of September 2016 seeking Leave to review the decision of the Defendant to terminate their employment. Leave was refused to review the decision.
   
4. The plaintiffs appealed this decision to the Supreme Court in SCM No. 8-10 of 2017. The Supreme Court dismissed the appeal on 7^th February 2017.
   
5. In an unrelated proceedings, OS No. 6 of 2015 (Clark Piokole v Air Niugini). The National Court per the decision of his Honour Kandakasi J delivered on the 21^st of April 2017; the Court declared the Individual Air Niugini Pilots Contract 2015 unlawful, invalid and void ab initio.
   
6. The First Plaintiffs are now coming back to court claiming that they are covered under the decision in OS No. 6 of 2015 (decision subject to appeal before the Supreme Court – SCA No. 83 of 2017). The First Plaintiffs say that due to the declaration by the Court that the Individual Air Niugini Pilots Contract 2015 is null and void ab initio; the defendant cannot effect their termination under the terms of the said purported Individual Air Niugini Pilots Contract 2015. The reason being the purported action taken by the Defendant to terminate them was based on an illegal contract, therefore their termination is also deemed unlawful, invalid and void ab initio.
   
7. Consequently, the First Plaintiffs seek interim orders to restrain the defendant from evicting the First Plaintiffs from company provided accommodation and for the continuation of payment of rental of the property for the plaintiffs, Vincentia Tongia, Boris Ageda and Norman Daniel pending the outcome of the proceedings SCA No. 83 of 2017.
   
8. I note that the First Plaintiffs are not parties to OS No. 6 of 2015 or SCA No. 83 of 2017. Their interest in these proceedings is by way of their being members of the Second Plaintiff (National Air Pilots Union).
   

Relevant Law

Air Niugini Pilots Contract 2015 (the 2015 Contract)
Industry Based Agreement (the 2012 Agreements)
National Airlines Commission Act 1973 (Ch. No. 244)

The Plaintiffs Submission

9. The First Plaintiffs say that they had each entered into the same purported contract (“Individual Air Niugini Pilots Contract 2015”) that had been declared null and void in the proceedings (Clark Piokole v Air Niugini - OS No. 6 of 2015). Consequently they are entitled to the same remedy as the Plaintiff (Clark Piokole) in OS No. 6 of 2015. They say further that the Defendant’s action to terminate them pursuant to the terms of the Individual Air Niugini Pilots Contract 2015 is therefore null and void ab initio. Therefore their employment as employees of the Defendant should continue as per the terms of the Industry Based Agreement (the 2012 Agreements) that they entered into as members of the PNG National Airline Pilots Union (NAPU) and the Airline Pilots Association (APA).
   
10. Whilst noting the First Plaintiffs’ argument, there is presently no copy of the Individual Air Niugini Pilots Contract 2015 or the Industry Based Agreement (the 2012 Agreements) before the Court.
    

The Defendant’s Submission

11. The Defendant opposes the application and says that the First Plaintiffs have no cause of action against the Defendant. The First Plaintiffs are former employees of the defendant and were each employed pursuant to an Employment Agreement, known as the Air Niugini Pilots Contract 2015 (the “2015 Contract”) which were terminated in about early September 2016.Upon being terminated, the first plaintiffs sought judicial review of the decision. The judicial review application was dismissed by the National Court on the 4^th of August 2017. The First Plaintiffs did not challenge the validity of the 2015 Contract.
    
12. The Defendant says that this is a case where the First Plaintiffs being unsuccessful in their claim in review proceedings, they have now embarked on this current proceeding. The First Plaintiffs’ first challenge was the decision to terminate their employment services in the judicial proceedings which has been finally determined in SCM No.3 of 2017.
    
13. The First Plaintiffs are now challenging the same decision and in these circumstances, the principle of res judicata and issue estoppel apply. The First Plaintiffs in the judicial review proceedings sought re-instatement and this is the same relief sought in this proceedings.
    
14. The Defendant says that the First Plaintiffs claim is in damages for alleged wrongful dismissal (which is denied), the measure of which is the period of notice of termination or if there is a disciplinary procedure in the contract, within such reasonable period within which the disciplinary proceedings would be commenced and concluded as held in the following cases: Central Bank of PNG v Gabriel Tugiau (2009) SC 1013; Porgera Joint Venture Manager Placer (PNG) Ltd v Robin Kami (2010) SC 1060; Divine Word University v George Podas (2015) SC 1414; Placer (PNG) Ltd v Alois Kawa (2008) SC 919; Wilson Thompson v NCDC (2004) N2686; Pama Anio v Aho Baliki (2004) N2719. These cases all relate to termination of employment for cause as is this current case.
    

Issue

15. There are at least two matters for determination. These being:
    

(i) Are the plaintiffs’ as former employee of Air Niugini (or the National Airline Commission) under a contract of service, entitled to remain on company provided accommodation upon their termination of employment?

(ii) Should a stay be granted for a course of action that has already been determined?

Analysis of the merits of the application

16. There is no dispute that, the First Plaintiffs employment, prior to termination was based on their individual written contract of employment (Air Niugini Pilots Contract 2015 (the 2015 Contract)) with the Defendant.
    
17. Whilst evidence of the contract has not been tendered in any of the affidavits filed into court, a number of case authorities relating to a written contract of employment including that of Pama Anio v Aho Baliki (supra); Igiseng Investments Limited v. Starwest Constructions Limited and Igiseng–Okmanip Business Group Inc (2013) N2498 are taken into consideration in determining this application. In Igiseng Investments Limited v. Starwest Constructions Limited and Igiseng–Okmanip Business Group Inc (supra) where the Court stated:
    

“It is settled law that, generally where parties have reduced their agreement in case of an agreement into writing the document should be allowed to speak for itself. No extrinsic evidence can be allowed to add to, subtract from or contradict what is stated in the document. The same goes for any other written record”.

18. The case authority on point is the Supreme Court judgment in Curtain Brothers (QLD) Pty Ltd & Kinhill Kramer Pty Ltd v The Independent State of Papua New Guinea [1993] PNGLR 285 which is cited with approval in numerous cases including in Odata Ltd v. Ambusa Copra Oil Mill Ltd (2001) N2106; Papua New Guinea Forest Authority v Concord Pacific Limited, Paiso Company Limited and The Independent State of Papua New Guinea (N0.2) (2003) N2456. Given that this rule is general; extrinsic evidence can be admitted to help resolve any ambiguity in a written document or record. Lord Davey in the Privy Council stated this principle in these terms:
    

‘Extrinsic evidence is always admissible, not to contradict or vary the contract: but to apply it to the facts, which the parties had in their minds and were negotiating about: Bank of New Zealand v Simpson [1900] UKLawRpAC 6; [1900] AC 182 at 187; Horsfall v.Braye [1908] HCA 85; (1908) 7 CLR 629’

19. Whilst the Court does not prevent a party from seeking redress through the Courts, the Court does have discretion to prevent abuse of its processes. This is where the issue of multiplicity of proceedings and issue of estoppel arises. In Telikom PNG Ltd v ICCC (2008) SC906, the Supreme Court had determined amongst others, the issue of res judicata – whether applicable if a previous decision on issues before a court has been made by an administrative tribunal – whether tribunal had determined the merits of the issues before the court. The Supreme Court held by a majority decision that:
    
    • (1) A party commencing a multiplicity of legal proceedings concerning the same issues will commit an abuse of process unless very good reasons are shown to justify it.
    • (2) ...
      
    • (3) The doctrine of res judicata operates when the issues between the parties have already been finally determined by a court or tribunal having lawful authority to do so.

The Court held that Telikom was guilty of an abuse of process and that res judicata applied. The grounds of appeal concerning those issues were accordingly dismissed.

20. In contrast, in National Airline Commission v Lysenko [1990] PNGLR 226, a proceedings for damages for breach of contract in the National Court (affirmed by the Supreme Court in National Airlines Commission trading as Air Niugini v Lysenko [1986] PNGLR 323), the pilot was held entitled to redundancy pay under Cl 12. In further proceedings by the pilot for damages for breach of contract arising out of neglect and refusal to re-employ him pursuant to the terms of Cl 12 (Lysenko v National Airlines Commission trading as Air Niugini [1988-89] PNGLR 69) the pilot was held not to be estopped from litigating the further proceedings by operation of the principles of res judicata. The circumstances of this case however are not applicable to the First Plaintiffs here.
    

Consideration of the application of the Law

21. The relevant law applicable to this case is the National Airline Commission Act (Ch. No. 244) which establishes the National Airline Commission (“the Commission”). The Commission is responsible for the management of the National Airline, (Air Niugini Limited).
    
22. Part V of this Act established the “Service of the Commission” and Section 24 provides that the Regulations made under the Act shall prescribe the terms and conditions of employment of all employees. Section 38 of the Act empowers the Commission to enter into written Contracts under seal and gives legal effect to such contracts as in the current 2015 Contract which is the subject of contention between the parties. Section 38 (2) provides for variation of terms of written contracts to be “in writing under seal.”
    
23. In this case, the First Plaintiffs being unsuccessful in the Judicial Review proceedings, are now coming before this Court, seeking the same relief of reinstatement but indirectly claiming that as members of the Second Plaintiffs they are entitled to the protection of the decision handed down on the 21^st of April 2017 in OS No. 6 of 2015 which decision is however subject to appeal.
    
24. This current application is challenging the same decisions in OS (JR) No.632-637, 648 & 649 of 2016 and SCM No. 8-10 of 2017. This challenge is untenable. The principle of res judicata and issue of estoppel applies.
    
25. In Alan Stevens v Kopi Larapa (2013) N5425, his Honour Poole J which I adopt; cited the definition of res judicata in Spencer Bower and Handley (4th Edition) as:
    

“res judicata- gives effect to the policy of the law that parties to a judicial decision should not afterwards be allowed to re-litigate the same decision even though it is wrong.” In his discussion, he made reference to the case of Marginson v Blackburn Borough Council [1939] 2 KB 426, which sets out the 6 elements to consider in questions of res judicata.

These are:
1. The decision must be judicial
2. The decision must, in fact, be pronounced

3. The tribunal must have had jurisdiction over the parties and the subject matter

4. The decision was final and on its merits

5. The decision determined the same question as that raised in later litigation; and

6. The parties to the later litigation were parties to the earlier litigation.

26. Applying that principle to this case, the Court is satisfied that all six of the requirements outlined above are present in this case. In that, the matter which is the subject of the proceedings has already been determined in OS (JR) No.632-637, 648 & 649 of 2016 and SCM No. 8-10 of 2017. Both these proceedings involved the same parties. Both the National and Supreme Court had jurisdiction over the parties and the subject matter; heard and determined the merits of the case. A judicial pronouncement has been made which is final involving the same parties in this current proceeding. This proceeding is in fact seeking the same relief sought in the earlier proceedings OS (JR) No.632-637, 648 & 649 of 2016 and SCM No. 8-10 of 2017 which has been determined and dismissed.
    
27. In addition, there is no current proceedings upon which an order for stay can be obtained. I therefore accept the argument of the Defendant that the principle of res judicata and issues of estoppel applies to this proceeding. The issues for determination are the same and the parties the same. This same issue has been determined by a tribunal of competent jurisdiction over the parties and the same subject matter in a previous proceeding.
    
28. Consequently, I reject the arguments raised by the First Plaintiffs in support of the relief being sought in the Notice of Motion. Events have since superseded the declaration on the validity of the Air Niugini Pilots Contract 2015 (the “2015 Contract”) in OS No.6 of 2015 Clark Piokole v Air Niugini Ltd. The First Plaintiffs’ claim for reinstatement has been determined in OS (JR) No. 632-637, 648 & 649 of 2016 and SCM No. 8-10 of 2017.
    
29. There is no pending matter before the court warranting an application for stay of termination from taking effect or eviction processes being taken by the Defendant.
    
30. The reliefs sought by the First Plaintiffs are not available in law or in equity. The application lacks merits and is an abuse of the process of the Court and is declined.
    
31. Costs are in the cause.
    

Orders accordingly,

______________________________________________________________
Murray & Associates: Lawyers for the Plaintiffs
Ashurt Lawyers: Lawyers for the Defendant