N10058

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 915 OF 2020
BETWEEN

LUCAS BOWEX
Plaintiff/Respondent

AND

PNG POWER LTD
Defendant/Applicant

Lae:  Dowa J
2022:    04th March & 17th March

PRACTICE AND PROCEDURE – application for default judgment-failing to meet the prerequisites of default judgment-application refused. 
PRACTICE AND PROCEDURE- application for dismissal of proceedings for disclosing no reasonable cause of action-pleadings fail to disclose reasonable cause of action-on admitted facts case is untenable if allowed to proceed to trial-proceedings summarily dismissed 
EMPLOYMENT LAW -simple employment contract governed by Employment Act- principles applicable in termination of simple contract of employment.

Cases Cited:
Mt Hagen Urban Local level Government v Sek No.15(2009) SC1007 
PNG Forest Products v State [1992] PNGLR 85
Ronny Wabia v BP Exploration Co. Ltd [1998] PNGLR 8 
Wabia v BPPetroleum (2009) N4337 
National Provident Fund Board v Maladina & Others (2003) N2486
Ruhuwamo v PNG Ports Corporation (2019) N8021

Counsel
Plaintiff In Person
Mr Sirigoi (Inhouse Lawyer), for the Defendant

17th March, 2022
RULING
1.	DOWA J:	This is a ruling on two competing applications by the parties.
Plaintiff’s Notice of Motion
2.	The Plaintiff applies to the Court, seeking default judgment under Order 12 Rules 25 & 27 of the National Court Rules.
Defendant’s Notice of Motion 
3. 	The Defendant applies for dismissal of proceedings pursuant to Order 12 Rule 40(1) of the National Court Rules.
Brief Facts
4. 	The Plaintiff is a former employee of the Defendant.  The Plaintiff has been in employment with the Defendant for about 20 years. On 3rd April 2018 he was terminated from employment.  He was dismissed for abandoning employment for more than three months. He was absent from duty because he was locked up in jail for a serious criminal charge. He appealed the decision to the Chief Executive Officer of the Defendant. The Chief Executive Officer considered the appeal and upheld the original decision for termination. The Plaintiff says although he was away from duty for three months, he maintains he did no wrong to the Defendant and alleges he was unfairly treated. He instituted the current proceedings seeking damages for unlawful termination.

Issues
5. 	The issues for consideration are:
a)	Whether the Plaintiff is entitled to default judgment.
b)	Whether the Plaintiff’s proceedings be dismissed for being frivolous and vexatious and for disclosing no reasonable cause of action. 
Plaintiff’s Application
6.	The Plaintiff seeks default Judgment, by Notice of Motion filed 1st February 2022.  The matter was heard on 4th March 2022 along with the Defendant’s Notice of Motion.    I note from the affidavit of service filed by the Plaintiff on 24th November 2020 that the Defendant was not properly served the writ of summons.  A copy of the writ of summons was served on one Nelson Lending of the PNG Power office in Lae on 20th November 2020.  Despite that, the Defendant filed its defence on 10th February 2021.  Allowing for the Court vacation period from 20th December 2020 to 31st January 2021, it appears the defence was filed in time. The Plaintiff has not filed any evidence to show how the defendant defaulted. Even then, the Plaintiff gave no warning to the Defendant of his intention to apply for default judgment especially after the defendant has filed its Notice of Intention to Defend, which was filed in time on 30th November 2020, see Mapmakers -v- BHP (1987) PNGLR 78).  For these reasons, I will dismiss the Plaintiff’s Notice of Motion filed 1st February 2022. 
The Defendant’s Application
7.	The Defendant seeks dismissal of the Plaintiff’s proceedings under Order 12 Rule 40(1) of the National Court Rules for disclosing no reasonable cause of action and for being frivolous and vexatious.  The Defendant relies on the Affidavit of Collin Koi who deposes that the Plaintiff was terminated from employment on 3rd April 2018 for being absent from duty for three (3) months, that is, from 14th December 2017 to March 2018.  On 6th April 2018, the Plaintiff wrote to the Defendant admitting being absent but explained that he was locked in jail on allegations of a crime which he eventually got discharged. The defendant viewed the lengthy absence from duty was a gross misconduct under section 36 (1) (a) (vi) of the Employment Act and terminated the Plaintiff from employment.  The Defendant pleaded that it is entitled to summarily dismiss the Plaintiff. The defendant submitted that the Plaintiff did not plead how and why his termination by the defendant was unlawful. 

The Law

8.	Order 12 Rule 40(1) of the National Court Rules reads:
“Frivolity, etc. (13/5)
(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-
•	(a) No reasonable cause of action is disclosed; or
•	(b) The proceedings are frivolous or vexatious; or
•	(c) The proceedings are an abuse of the process of the Court,
The Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”
9.	The law on Order 12 Rule 40 of the National Court Rules is well settled in the Supreme Court in Mt Hagen Urban Local level Government v Sek No.15(2009) SC1007 where the Court stated in paragraphs 27-30:
“27. The terms “vexatious”, “frivolous”, “abuse of the process of the court” and “reasonable cause of action” under O.12 r.40 of the National Court Rules have been judicially considered, defined and expounded in a number of decisions in both the National and Supreme Courts. These cases include Ronny Wabia v. BP Exploration Co. Limited & 2 Others [1998] PNGLR 8 (N1697); PNG Forest Products Pty Ltd and Another v. The State and Genia [1992] PNGLR 85; Gabriel Apio Irafawe v. Yauwe Riyong (1996) N1915; Eliakim Laki and 167 Otheres v. Maurice Alulaku and Others (2002) N2001; Kiee Toap v. The Independent State of Papua New Guinea & Another (2004) N2766; Kerry Lerro trading as Hulu Hara Investments Limited v. Phillip Stagg, Valentine Kambori & The State (2006) N3050; Phillip Takori & Others v. Simon Yagari & 2 Others (2008) SC 905. These cases say the same thing.
28.	The law with regard to an application for dismissal of proceedings based on O.12 R.40 is settled in our jurisdiction. We note that the principles are succinctly set out in Kerry Lerro’s case (supra) and which has more recently been approved and applied by the Supreme Court in Phillip Takori’s case (supra).

29.	The phrase ‘disclosing a reasonable cause of action’ consists of two parts: cause of action and form of action. A cause of action is defined as a legal right or form of action known to law whereby a plaintiff in a statement of claim must plead all necessary facts and legal elements or ingredients to establish or prove his claim. The principles stated by these cases can be summarized as follows:
o	(i) A plaintiff or claimant should not be driven from the judgment seat in a summary manner and that the Court should be cautious and slow in exercising its discretionary power.
o	(ii) The Court has an inherent jurisdiction to protect and safeguard its processes from abuse.
o	(iii) The purpose of O.12 r.40 is to give the court power to terminate actions or claims which are plainly frivolous or vexatious or untenable.
o	(iv) A frivolous claim is one that is characterized as a claim that is plainly and obviously untenable, that cannot possibly succeed and bound to fail if it proceeds to trial.
o	(v) A vexatious claim is on that is said to be a sham and cannot succeed where it seeks to merely harass the opposing party and put that party to unnecessary trouble and expense is defending or proving the claim.

30.	In an application under O.12 R.40 of the NCR, the Court may dismiss a proceeding or action where it is satisfied that the pleading in the statement of claim is seriously wanting where a necessary fact or legal element has not been pleaded.”

10. 	A Plaintiff’s case should not be prematurely terminated unless it is untenable. In the case, PNG Forest Products v State (1992) PNG LR84-85 the Court adopting some English Court phrases stated that a court be slow and cautious in entertaining applications for dismissal of proceedings on the grounds of a party disclosing no reasonable cause of action. A Plaintiff should not be driven from the judgment seat unless the case is “unarguable” or the cause of action is “obviously and almost incontestably bad, or plainly untenable. 

11.	On the other hand, there are other string of cases that developed the principle that, where the case is vexatious or frivolous and that it is unlikely to succeed, the case can be summarily determined. Ronny Wabia v BP Exploration Co. Ltd (1998) PNGLR 8, and Wabia v BP Petroleum (2009) N4337 and National Provident Fund Board v Maladina & Others (2003) N2486. 

12.	In my view, the purpose of Order 12 Rule 40(1) of the National Court Rules is to provide for summary determination of the Plaintiff’s proceedings where it is plain and clear based on the pleadings that no triable cause of action is disclosed or where some common and proven facts show that the proceedings will not succeed if it proceeds to trial.  Where common and proven facts show that the claim is untenable, no amount of evidence, or amendment to the pleadings will cure or improve the facts on which the claim is based.  It is in the interest of all parties to terminate the proceedings early to avoid cost of a prolonged and winding litigation.  The Court should not give the impression that the factual situation will change with the passing of time or that the Plaintiff’s chances of success will improve with more litigation. After all, the Court has a duty to protect itself from abuse of the Court process by entertaining unmeritorious claims which will only consume time and resources.

        Present Case

13.  In the present case, Mr Sirigoi, counsel for the defendant submitted that the Plaintiff’s pleadings do not disclose a cause of action. The Plaintiff has not pleaded how the termination of employment by the defendant was unlawful. Mr. Sirigoi submitted further that the Plaintiff admitted staying away from work for three months thereby abandoning his employment. The absence from duty without lawful leave was a gross misconduct breaching section 36 (1)(a) of the Employment Act, and this entitled the Defendant to terminate the contract of employment.

14. 	The Plaintiff submitted that although he was absent from duties for three months, he had a good reason. He was charged for a crime he did not commit. He was locked away in jail for three months until he was exonerated by the Court. He submitted that the alleged offence was not against the Defendant, his employer. It involved the death of his wife. He submits he has faithfully served the defendant for more than 20 years and the defendant was inconsiderate and unfair in terminating his employment and therefore he be allowed to prosecute the case.
         
         Reasons for Decision

15    I have carefully considered the submissions of the parties. The common and admitted facts is that the Plaintiff was absent from duty for more than three months without leave of absence. He was locked up in jail for a criminal offence. He was charged with murder and eventually got discharged according to his evidence filed in Court. When he returned to resume employment, he was terminated by the Defendant for being absent without authorized leave. Although the Plaintiff provided an explanation for his prolonged absence the defendant did not consider the reasons good and valid. 

16.  The law on termination of simple employment contract is settled in this jurisdiction.  In Ruhuwamo v PNG Ports Corporation (2019) N8021, Thompson J said this at paragraph 17-19 of her judgment.
	“Relevant Law
17. 	It is well settled by a long line of case authorities in PNG, that an employer has the right to hire and fire his employees and does not have to give reasons for his decision. If this is done in breach of the terms of a contract, the measure of damages is what the employee would have received for his salary and other entitlements if the contract had been lawfully terminated. (see Jimmy Malai v PNG Teachers Association (1992) PNG LR 568, Paddy Fagon v Negiso Distributors Pty Ltd (1999) N 1900, New Britain Palm Oil Ltd v Vitus Sukuramu (2008) SC 946, and Porgera Joint Venture Manager Placer (PNG) Ltd v Robin Kami (2010) PGSC 11).
18. 	This is consistent with the provisions of the Employment Act. Under S 34, a contract of employment may be terminated at any time, with the length of notice being either as specified in the contract, or dependent on the length of the employment. If an employee has been employed for over five years, the length of notice shall be not less than four weeks. Under S 35, the termination may be by notice, or by payment in lieu of notice.
19. 	Under S36, the employer may terminate without notice or payment in lieu, if the employee, inter alia, willfully disobeys a lawful and reasonable order or misconducts himself by an act of omission or commission that is inconsistent with the due and faithful discharge of his duties.”
17.	The details of the Plaintiff’s contract of employment with the defendant are not pleaded and are unknown except that he says he worked for the defendant for more than 20 years. The defendant submitted they have an employment policy which provides that where an employee absents himself without authorized leave is deemed to have abandoned employment.

18.	This policy is identical to section 36 (1) of the Employment Act which provide certain grounds for summary dismissal. Section 36(1) reads and I quote:
              
 “GROUNDS FOR TERMINATION OF CONTRACT.
(1) 		An employer may terminate a contract of service without 			notice or payment instead of notice–
	(a) where the employee–
		(i) 	wilfully disobeys a lawful and reasonable 					order; or
		(ii) 	misconducts himself by an act of omission or 				commission that is inconsistent with the due 					and faithful discharge of his duties; or
		(iii) 	is guilty of a fraud or dishonesty; or
		(iv) 	is habitually neglectful of his duties; or
		(v) 	is imprisoned for a period exceeding seven 					days; or
		(vi) 	is continually absent from his employment 					without leave or reasonable excuse; or
		(vii) 	is convicted of an offence or contravention of 				this Act or any other law relating to 						employment; or
	(b)	on any other ground on which he would be entitled 			to terminate the contract without notice at common 			law.:”
19.	The undisputed evidence shows the Plaintiff was absent from work for three months. The Plaintiff says he had a good reason for being absent and that his absence did not adversely affect his employment with the defendant. In my view his arguments are misconceived. The Plaintiff’s continuous absence was viewed by the defendant as abandoning his employment and the reasons he offered were considered not valid. That is the defendant’s discretion. Being continuously absent from duty for three months without leave or valid reasons is a gross misconduct and would result in termination and that is exactly what happened to the Plaintiff.  

20.	In my view, the Defendant had a reason to terminate the Plaintiff in accordance with the terms and conditions of his employment as the law allows. This is allowed by Section 36(1) of the Employment Act.  He has not demonstrated in his pleading how the termination was wrongful. There is no clear statement in the pleadings that the defendant breached the terms of the contract of employment in some material form or manner. 

21.	The Court is mindful that the Plaintiff should not be driven from the judgment seat early in the proceedings. However, in my considered view, this is a clear case where the Plaintiff is unlikely to succeed if the matter proceeds to trial. The Plaintiff has admitted to being absent from duty for three consecutive months. He was terminated for being continuously absent from duty as the law and the terms of his employment allow. As I said earlier in this judgment, the Court should not give the impression that the factual situation will change with the passing of time or that the Plaintiff’s chances of success will improve with more litigation. The common and undisputed facts show the Plaintiff’s proceedings are frivolous. They are plainly and obviously untenable and cannot possibly succeed and is bound to fail if it proceeds to trial. It is in the interest of all parties to end the matter now to avoid further cost of unnecessarily prolonged litigation.

22.	For the foregoing reasons, I will grant the Defendants’ application and dismiss the Plaintiff’s proceedings.

23.	I will reserve ruling on costs until I hear from parties.

Orders

24.      The Court orders that:

1.	The Plaintiff’s Notice of Motion is dismissed.
2.	The Plaintiff’s entire proceedings is dismissed.
3.	Court will hear parties on cost.
4.	Time be abridged.
_______________________________________________________________
The Plaintiff In Person
PNG Power In-House Lawyers:	Lawyer for the Defendant