N10059 

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 430 OF 2021

BETWEEN

DANIEL SIMON
Plaintiff

AND

PHILIPPE MONDADA
First Defendant

AND

SIMON ROBINSON
Second Defendant

AND

COCA-COLA AMATIL LIMITED
Third Defendant

Lae:  Dowa J
2022:    09th & 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:
PNG Forest Products v State [1992] PNGLR 85
Ronny Wabia v BP Exploration Co. Ltd [1998] PNGLR 8
Wabia v BP Petroleum (2009) N4337
National Provident Fund Board v Maladina & Others (2003) N2486
Ruhuwamo v PNG Ports Corporation (2019) N8021

Counsel

In Person
Ms Bue, for the Defendant
RULING
17th March, 2022
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 Rule 25 & 27 of the National Court Rules.
Defendant’s Notice of Motion 
3. 	The Defendants apply for dismissal of proceedings pursuant to Order 12 Rule 40(1) of the National Court Rules for being frivolous and vexatious.
Brief Facts
4. 	The Plaintiff is a former employee of the third Defendant.  He was employed as a mixer operator.  On 12th April 2021 he was terminated from employment.  He was dismissed for smuggling a small quantity of waste sugar from the factory.  Although he was paid his final entitlements on termination, the Plaintiff alleges he was unfairly treated and instituted the current proceedings for unlawful termination.

Issues
5. 	The issues for consideration are:
a)	Whether the Plaintiff is entitled to default judgment.
b)	Whether the proceedings be dismissed for being frivolous and vexatious and for an abuse of the process.
Plaintiff’s Application
6.	The Plaintiff seeks default judgment by Notice of Motion filed 25th November 2021.  The matter was last mentioned on 4th March 2022.  The Plaintiff appeared in person.  It was adjourned and fixed for hearing on 9th March 2022.  The Court advised the Plaintiff to appear on 9th March 2022 to prosecute his Motion and defend the Notice of Motion filed by the Defendants either by himself or through a lawyer.  The Plaintiff did not turn up in Court on 9th March 2022 to prosecute his Notice of Motion.  The Plaintiff’s Notice of Motion is therefore dismissed for want of prosecution.  I would also dismiss the Plaintiff’s Notice of Motion for other reasons as well.  I note from the affidavit of service filed by the Plaintiff on 24th August 2021 that all the Defendants were not properly served copies of the writ of summons.  A copy of the writ of summons was served on the Human Resources Manager of the third Defendant on 14th July 2021 only. This renders service on the Defendants irregular.  Despite that the Defendants filed their defence on 30th August 2021.  It would be about 2 days short.  Even then, the Plaintiff gave no warning to the Defendants of his intention to file an application seeking default judgment.  For these reasons, I dismiss the Plaintiff’s Notice of Motion filed 25th November 2021.
The Defendants’ Application
7.	The Defendants seek dismissal of the Plaintiff’s proceedings under Order 12 Rule 40(1) of the National Court Rules for being frivolous and vexatious.  The Defendants rely on the Affidavit of Nicka Pitoi who deposes that the Plaintiff was terminated from employment on 12th April 2021 for committing theft. It is alleged the Plaintiff smuggled 2.5kg of “waste sugar” (being an industrial waste), the property of the third Defendant.  On 3rd May 2021, the Plaintiff wrote to the third Defendant admitting that he attempted to take some waste sugar home. The conduct of stealing is a breach of the third Defendant’s Management of Performance and Conduct Policy. Clauses 4.2(a) and (b) categorises theft and dishonesty as gross misconduct which entitles the third Defendant to terminate the contract of employment. The third Defendant therefore summarily dismissed the Plaintiff from employment. The Defendants say the Plaintiff does not have a cause of action and that the proceedings are frivolous and vexatious.

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 applications under Order 12 Rule 40(1) of the National Court Rules is settled. 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. In that case, the Court also said the Court has a discretionary power to dismiss if the proceedings are an abuse of the Court process.

10.	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)N4337andNational Provident Fund Board v Maladina & Others(2003)N2486. 

11.	InNPF v Maladina,Kandakasi J, (as he then was) said:
“The law on pleadings generally is settled in our jurisdiction. A clearest statement of the law is by the Supreme Court inMotor Vehicles Insurance (PNG) Trust v. John Etape,in these terms:
"‘besides requiring that certain matters be pleaded specifically, the rules also contain a number of provisions which require a party to furnish in or with his pleadings, particulars of his claim or defence or other matter pleaded.The function of particulars is ‘to let (a party) know what case he will have to meet and to enable him to know what evidence he ought to be prepared with’. The object is ‘to ensure as far as is practicable, that proceedings between parties would result in a determination of the rights of the parties according to law and to limit if not eradicate the number of cases in which technologies can cause the proceedings to miscarry. Generally speakingjustice will be more readily and speedily attained if each party is fully aware of the precise nature of the allegations made by the other’.
Particulars are in fact an extension of the pleadings — they control the generality of the pleadings. InPilato -v- Metropolitan Water Sewerage and Drainange Board,McClemens J said at 365 – ‘Pleadings define the issues in general terms. Particulars control the generality of the pleadings and restrict the evidence to be led by the parties at the trial and give the other party such information as may enable him to know what case he will be met with at the trial and prevent surprise. Evidence enables the tribunal within the ambit of the general definition of the issues, affected by the pleadings and limited by the particulars, to decide where the truth lies’."
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. 

        Submissions of parties

13.  Ms Bue, counsel for the defendants, submits that the Plaintiff’s pleadings do not disclose a cause of action. The Plaintiff has not pleaded how the termination of employment by the third defendant was unlawful. Ms Bue submits further that the Plaintiff admitted stealing the waste sugar and this entitled the third defendant to terminate the contract of employment. The Plaintiff submits that although he admitted taking some waste sugar, he did not take them home. The security guards took them back. Secondly, he alleges that other senior officers were seen taking waste industrial sugar from time to time, and no one questioned them. It was unfair that he was the only one questioned and eventually terminated and therefore he be allowed to prosecute the case.

         Reasons for Decision

14.   I have carefully considered the submissions of parties. The common and admitted facts is that the Plaintiff was caught smuggling 2.5 kg of waste sugar, the property of the third defendant. The Plaintiff admitted stealing the waste sugar from the third defendant in paragraph 2 of the statement of claim. Again, he admitted the theft in paragraph 7 of his Affidavit sworn and filed 25th November 2021 where he annexed a letter admitting the theft. The Plaintiff says he took the sugar which was just a waste. He observed others especially his superiors taking home waste sugar, so he did likewise. Therefore, he was unfairly singled out and terminated. However, the Plaintiff did not plead clearly how and why his termination of employment by the defendants was wrongful.

15.   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 S 36, 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.”

16.	The Plaintiff’s contract of employment with the defendant is in writing. The evidence shows the Plaintiff was initially employed by the third Defendant as a Production worker commencing 13th March 2014. The terms of his employment contract were in writing in a letter dated 13th March 2014, which the Plaintiff signed on 18 March 2014. The contract document contains four (4) pages and sets out employment terms and conditions.  The contract contains a termination clause at page 3, which reads as follows:

“Cross Misconduct

The company reserves the right to instant dismissal for gross misconduct and may
terminate a Contract of Service without notice or payment instead of notice,

a)	Where the employee:-

(i)	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; or
(ii)	is guilty of a fraud or dishonesty; or
(iii)	is habitually neglectful of his duties; or
(iv)	is imprisoned for a period exceeding seven days; or
(v)	in continually absent from his employment without leave or reasonable excuse; or
(vi)	is convicted of an offence or contravention of the employment Act or any other law relating to employment.

b)	On any other ground on which the company would be entitled to terminate the contract without notice at common law.”

17.	This clause 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.:”
18.	The evidence shows the Plaintiff was caught smuggling waste sugar out of the Company premises. Although it would seem unfair that others who took waste sugar out of the premises were not dealt with, the Plaintiff was cited for stealing. That is the third defendant’s discretion. Stealing from the employer is a gross misconduct. A breach of the policy would result in termination and that is exactly what happened to the Plaintiff.

19.	In my view, the Defendant had a reason to terminate the Plaintiff in accordance with the terms and conditions of his employment. The Plaintiff has admitted to stealing. He was terminated for stealing as the law and the terms of his employment allow. 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. 

20.	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. 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 can not 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.

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

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

Orders

23.      The Court orders that:

1.	The Plaintiff’s Notice of Motion is dismissed.
2.	The Plaintiff’s entire proceedings is dismissed
3.	Cost awarded to the Defendants.  
4.	Time be abridged

___________________________________________________________
Plaintiff In Person: 	Lawyer for the Plaintiff
David & Davids Lawyers	:	Lawyer for the Defendant