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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS NO. 1503 OF 2014 (CC1)
BETWEEN:
JOSEPH KUPO, BENJAMIN BOMA and STEVEN ED for themselves on and behalf of 451 other former members of the Papua New Guinea Defence
Force
Plaintiffs
AND:
MANASUPE ZURENUOC,
Chief Secretary of Papua New Guinea
First Defendant
AND:
LAWRENCE KALINOE, Secretary for
Department of Justice
and Attorney General
Second Defendant
AND:
FAITH BARTON-KEENE,
Solicitor General of Papua New Guinea
Third Defendant
AND:
ANDREW DOPEKE,
Colonel, Chief of Personnel,
Papua New Guinea Defence Force
Fourth Defendant
AND:
JOHN PORTI, Secretary,
Department of Defence Force
Fifth Defendant
AND:
GILERT TOROPO,
Brigadier General,
Papua New Guinea Defence Force
Sixth Defendant
AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant
WAIGANI: BRE AJ
12 DECEMBER 2024; 17 JANUARY 2025
COMPETENCY OF PROCEEDING – time bar – representative capacity - Section 5 CBASA – issues depends on when cause of action arose – action time barred- no evidence of consent to lead plaintiffs – proceeding dismissed.
Cases cited
OS 58 of 1989 26 November 1990, unreported.
Jack Wagambie and Ors v Lokinap [2019] N8104
Kerry Lerro v Philip Stagg & Ors [2006] N3950
Kiee Toap v The Independent State of Papua New Guinea & Another [2004] N2766
Malayeki v Utin [2019] N8040
Mount Hagen Urban Local Level Government v Sek No 15 Ltd [2009] SC1007
Papua Club Inc v Nusaum Holdings Ltd [2002] N2273
PNG Forest Products Pty Ltd and Another v. the State and Genia [1992] PNGLR 85
Simon Mali v The State [2002] SC690
Takori v Yagari [2007] SC905
Tigam Malevo v Keith Faulkner [2009] SC960
Tuwi v Goodman Fielder International Limited [2016] SC1500
Wahune v Barton [2017] SC1636
Counsel
Mr Joseph Kupo, in person, and for the plaintiffs
Mr Alfred Manase with Mr Ismael Opahi for the defendants
DECISION
2. I heard arguments on the competency issues first as its outcome will determine whether the trial on liability proceeds.
3. The plaintiffs seek the principle sum of K27,935,591.32 for alleged retrenchment payments due to them because of the then government’s initiative to downsize the PNGDF which commenced from 1982 to 1989.
4. The lead plaintiff was allowed to proceed after it was confirmed that he was a plaintiff in the proceeding.
5. The defence raised the following issues to contest the competency of the proceedings:
1) Want of section 5 notice
2) Time bar
3) Lack of representation capacity
4) Cause of action
6. Mr Manase for the defendants relied on submissions filed on 22 August 2024. Mr Kupo also relied on his written submissions filed on 19 August 2024. Mr Kupo appeared in several related proceedings in the past, and I found he had good knowledge about the background facts.
7. After hearing submissions from both parties, it became clear to me, that the competency issues depended on the following issues:
1) What is the nature of the cause of action?
2) When did the cause of action arise?
8. The competency issues on Section 5 and time bar depend on when the cause of action arose and the nature of the cause of action. The issue of representational capacity requires documentary evidence.
9. The time and nature of the cause of action is determined from the pleadings as contained in the plaintiff’s statement of claim. Mr Manase singled out several paragraphs of the statement of claim to contend that the pleadings did not clearly disclose a cause of action nor the times when they arose. Counsel emphasised several dates which he submitted could be the dates from which the cause of action arose, and these were:
10. Mr Manase submitted that the pleadings lacked clarity in not pleading the dates of when each of the 451 plaintiffs were retrenched and the various times submitted shows the proceeding is clearly time barred pursuant to the Frauds and Limitation Act which provides claims to be commenced within six years from the date when the cause of action arose for a claim to valid.
On that basis, he submitted that the Section 5 notice served on the State on 24 November 2014 was outside the six months period where the cause of action is found to arose from any of the four dates submitted, the earliest being 1982 and the latest being 31 May 2010. Six months from 31 May 2010 would, he submitted be clearly outside the six months' time limit by four years.
11. Mr Kupo responded that the plaintiff’s claim arose from the judgment of Justice Brown in OS 58 of 1989 decided on 26 November 1990. That following this decision two audits were conducted by the State defendants, to verify eligible ex-servicemen of which some were paid by an NEC decision number 159/2010 of 29 July 2010 from NEC Decision number 159/2010, while the plaintiffs were not paid. He submits that the plaintiffs had tried to negotiate and settle the matter with the State and had submitted a proposal for settlement dated 12 February 2010 to the Solicitor General but there was no positive feedback. After waiting for years, the plaintiffs commenced this proceeding in 2014.
12. On the issue of representative capacity, Mr Kupo relied on the authority granted to him and those in place by the plaintiffs, he submits in an earlier proceeding, but did not specify the proceeding, nevertheless I inferred the earlier proceeding to be OS 58 of 1989. When I inquired about the representational authorities for this proceeding, Mr Kupo responded that it was difficult to obtain the written authorities as most of the plaintiffs were living outside Port Moresby or had died. He mentioned that there were twelve (12) written consents in place as contained in Affidavits filed in the court file in document numbers 28 to 40.
13. Mr Manase responded that the defence affidavits in the Court file document numbers 43 to 54 challenges the dates, places and signatures of the twelve (12) deponents relied on by the plaintiff and no evidential weight should be given to the plaintiffs' affidavits.
14. Mr Kupo concluded his submission by objecting to the competency issues raised by the dependents as having been compromised by reason of their conduct in obtaining the NEC decision despite an ADR order being in place and by excluding the plaintiffs in the NEC decision and in not settling their claims. He also took issue with the defendants' compliance of the trial directional orders of 10 September 2024. However, I disallow this objection, as I clearly indicated at the outset, that the trial would not proceed until the competency issues were addressed.
15. The law on pleadings states that there are two elements that will determine whether the proceeding is competent. These are the legal basis or legal foundation of the claim and the factual allegations that are necessary to prove the legal basis of the claim. See Kiee Toap v The Independent State of Papua New Guinea & Another [2004] N2766, Takori v Yagari [2007] SC905 and Mount Hagen Urban Local Level Government v Sek No 15 Ltd [2009] SC1007.
16. The law on pleadings also states that where the pleadings do not disclose a reasonable cause of action or the pleadings are vague, lack clarity, are difficult to follow, or obviously bad, they must be struck out and the proceeding dismissed. See Wahune v Barton [2017] SC1636, PNG Forest Products Pty Ltd and Another v. the State and Genia [1992] PNGLR 85, and Order 12 rule 40 of the National Court Rules. However, the Court must exercise caution and not summarily dismiss the proceeding so as not to drive the plaintiff from the judgement seat. See Kerry Lerro v Philip Stagg & Ors [2006] N3950 and Takori v Yagari. Where it can, the Court should exercise its discretion to allow the plaintiff to amend its pleadings. See Papua Club Inc v Nusaum Holdings Ltd [2002] N2273.
17. The issue of whether there is a lawful cause of action and if so, when it arose will be decided bearing these principles in mind.
18. I will address first the legal form of the claim as that concerns the legal basis or foundation of the claim from which the factual allegations draw its strength. These factual allegations are then proven in court to the required standard with credible evidence. It is trite law that pleadings drive the evidence See Tole v PNGBC.
19. A perusal of the pleadings shows the plaintiffs’ cause of action arose against the State as their former employer. The plaintiffs plead that they were employed by the State as soldiers in the PNGDF. That the State’s decision in 1982 to retrench them prematurely affected their employment from which they sought proper retrenchment payments.
They plead, the Court ordered mediation through the Alternate Dispute Resolution process of the Court from which negotiations lead to an NEC decision about payment which they did not benefit from.
20. The plaintiffs’ particularise their claim by relying on an agreement with the defendants dated 31 May 2010. That discussions were entered into and the terms of the benefits agreed to. That the outcome of these discussions are contained in the annexure to the writ listing 454 plaintiffs. That the defendants breached this agreement.
21. In considering the submissions, I ask what the legal basis of the claim is. Is the claim for breach of employment terms? If so then, that dispute arose during the retrenchment period of 1982 to 1989.
22. Alternatively, is the claim based on enforcing the Court decision of His honour Brown J made on 26 November 1990 in Jack Wagambie and Joseph Kupo v The Brigadier General Rockus Lokinap OS 58 of 1989 26 November 1990, unreported. If so, this action would be time barred. Or even still, is the claim based on the NEC decision 159 of 2010. If so, then the proper mode would be by judicial review proceedings as NEC is a public decision maker with the passage of time, judicial review proceedings are time barred by now.
23. If the claim is based on breach of an ADR agreement of 31 May 2010 as alleged and particularised, the claim will be within the six year time period stipulated in Section 16 of the Frauds and Limitation Act 1988, but lack competency against the State defendants as the section 5 notice is served outside the 6 months period required to give notice which would have been by 30 November 2010. The section 5 notice was served on 24 November 2014, which would be late and not proper service. Also, there is no evidence of an extension of time by the Attorney General or the Court as required by the CBASA.
24. Still, if I were to consider the merits of the claim based on the purported ADR agreement, the ruling of Justice Anis on 13 November 2019 in Jack Wagambie and Ors v Lokinap [2019] N8104, clearly established that the ADR agreement of 31 May 2010, did not exist. The matter before Justice Anis is proceeding is the same proceeding that was before Justice Brown. OS 58 of 1989 ran a long course. Justice Anis also clarified some factual matters which concern the plaintiffs and Mr Kupo’s representation. His Honour found at [16] that Mr Kupo and the plaintiffs were not party to the proceedings and refused to hear them as he found that they were not proper parties before the Court. This creates an issue in my earlier assumption about Mr Kupo representing the plaintiffs in OS 58 of 1989. It is not clear which proceeding Mr Kupo was authorised by the class in this proceeding to represent.
25. It has now become obvious to me that the plaintiffs have based their claim on the decision of His Honour Brown J concerning the ‘third group’ who were required to be identified for the payment of the ‘ex gratia’ entitlement which Justice Brown found was applicable to the ex-servicemen who were retrenched between the ‘relevant periods’, from ‘7 November 1982’ to the ‘1989 fiscal year’.
However, the evidence of Joseph Kupo (Doc 12) shows that the list of 454 ex-servicemen remained to be confirmed by the State. I ask,
how than can this Court be satisfied that each of the plaintiffs are eligible?
26. When the legal basis of the claim is clarified, the factual allegations as to particulars of times, names, places and value etc, will be clear from the pleadings.
27. As to what the nature of the proceedings or cause of action is, I find that this is clearly a claim based initially on employment law concerning the State employer’s decision to terminate the employment of the plaintiffs and others by retrenchment. The annexure to the Writ shows the list of the plaintiffs and concerns the appropriate amounts of money that they consider should be paid to them.
28. I find the State made attempts to settle and pay the ex-servicemen. That decision is contained in the NEC Decision 159 of 2010. The decision was made after the decision of Brown J in OS 58 of 1989.
29. Mr Kupo’s submissions show that the 454 plaintiffs were not included in this NEC decision 159 of 2010 and they are aggrieved by it. The plaintiffs would have filed judicial review proceedings in 2010. It is too late now to challenge the NEC decision.
30. If there exists a claim in enforcing any ADR orders, the plaintiff must properly plead the particulars of the outcome of the ADR
negotiations and the aspects that they are aggrieved by. That has not been pleaded here. There is also a clear finding by Judge Anis
in Jack Wagambie v Lokinap at [27] that no ADR agreement dated 31 May 2010 exists so a cause of action on a specific ADR agreement of 31 May 2010 would be frivolous
or vexatious.
Mr Kupo appeared and is aware of this finding, he has not clarified that in his submissions. There appears to be no appeal against
Justice Anis's decision, his finding that there was no ADR agreement as alleged would stand.
31. This proceeding appears to be a claim in employment contract, or if it is based on tort, either basis of the claim will become
time bar if it is commenced after six (6) years from the date when the cause of action arose. Section 16 FLA provides:
“16. Limitation of actions in contract, tort, etc.
(1) Subject to Sections 17 and 18, an action–
(a) that is founded on simple contract or on tort; or
(b) to enforce a recognisance; or
(c) to enforce an award, where the submission is not by an instrument under seal; or
(d) to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,
shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.”
(Emphasis is mine)
32. Further, if I accept Mr Kupo’s submission that the plaintiffs claim arose on 12 February 2010, being the date the plaintiff’s submitted their proposal, the pleadings would be defective for lack of clarity on the particulars of the proposal and the legal basis for relying on that proposal. The statement of claim was filed by a law firm not the plaintiffs in person. The pleadings should clarify the cause of action so the defendants so the defendants can adequately defend the claim.
33. I am therefore of the view that the plaintiffs have not clearly pleaded the legal basis of their claim on whether it is a breach of an employment entitlement, or a breach of a mediated agreement or breach of Court orders. In any case, the evidence clearly establishes that the claim is time barred and without legal basis if based on any of the following causes:
(i) a right arising from the 1982 to 1989 retrenchment exercise,
(ii) a claim based on Justice Brown’s orders
(iii) the NEC decision 159 of 2010, or
(iv) the purported ADR Agreement of 31 May 2010.
34. Should the proceeding therefore be summarily dismissed? I am required to be cautious and not drive the plaintiffs from the judgement seat without going to trial. However, I must balance the plaintiffs' interest with the interests of the Court to ensure the parties conduct their cases fairly. This means that there should be no abuse of process. However, I am satisfied after carefully considering the evidence and submissions of both parties that the proceeding is time barred. There is no merit in proceeding to trial, the proceeding therefore must be summarily dismissed.
35. For completeness, I will address the issue of representative capacity. Lawsuits commenced by a group of people with common interests must clearly demonstrate to the Court that all of the individuals who compose the group of intended litigants have consented to commencing the action and have agreed that one or two persons amongst their group will represent them in the legal proceedings and that they collectively authorise a third party such as a lawyer to represent them. See Simon Mali v The State [2002] SC690 and Tigam Malevo v Keith Faulkner [2009] SC960. The approvals must be from each member of the group or class and be in writing and furnished into evidence. The outward display of the class authority is a full list of the names and signatures and the written authority to act. See Malayeki v Utin [2019] N8040.
36. Order 4 rule 20 NCR requires the legal capacity to be endorsed to the Writ and is in the following terms:
“Endorsement as to capacity.
(1) Before a writ of summons is issued it must be endorsed—
(a) where the plaintiff sues in a representative capacity—with a statement of the capacity in which he sues; and
(b) where a defendant is sued in a representative capacity—with a statement of the capacity in which he is sued.”
37. The writ of summons lists 454 individuals detailing their salaries, how much was paid and how much outstanding but does not contain
signatures.
There are only twelve (12) affidavits in evidence attempting to prove that twelve (12) out of the 454 plaintiffs have expressly given
their consent to institute the proceedings and for Mr Kupo to represent them. These affidavits are contested by the defendants. The
plaintiffs have not produced any other authorities. There are no signatures in the annexure to the Writ. That list is not sufficient
to demonstrate legal capacity, prove consent to sue nor authorise the three lead plaintiffs to duly represent 451 plaintiffs.
38. While Mr Kupo may have the consent authorities in an alleged initial proceeding, this proceeding, WS 1503 of 2014, is a separate proceeding and requires fresh consent authorities. Mr Kupo was a plaintiff in related proceedings WS 1507 of 2014 and WS 316 of 2015 but these proceedings have ceased because they have been discontinued or dismissed for want of prosecution. It is not clear whether Mr Kupo in his capacity as a plaintiff has a grievance to the outstanding payment, but his name is on the list attached to the Writ of Summons and confirms him as a plaintiff.
39. Therefore, I find that Mr Kupo nor the other two lead plaintiffs Mr Benjamin Boma and Steven Ed have the required consent authority and legal standing to represent all 451 plaintiffs, to commence this proceeding or represent them. If the proceeding is to continue it will be legally difficult to enforce orders against persons who have not consented to the action. See Tuwi v Goodman Fielder International Limited [2016] SC1500.
40. Further, if some of the plaintiffs are deceased as submitted, they have not been identified and their estates agreements for this action not included. There was sufficient time to correct this anomaly since the proceeding has been on foot for 2018, 8 years. It is too far along in the process to now to grant leave to amend the proceedings.
41. I find that Mr Kupo has no standing to represent the class and the proceeding does not competently disclose sufficient legal capacity from each of the 453 individuals. They have not signed against their names in the annexure to the writ to indicate that they form part of the class action in their individual capacities in order to have sufficient legal standing.
42. The evidence clearly shows the lead plaintiffs only had 12 plaintiffs purportedly give their consent not the full 454. The lead plaintiffs have abused the process by misleading the Court that they have the consent of 451 ex-servicemen and relied on a non-existent 31 May 2014 ADR agreement. These are serious misrepresentations to the Court which amount to abuse of process. I must guard against abuse of process and rule against the plaintiffs. The action is clearly time barred.
43. For all the foregoing reasons, it is my judgement to summarily dismiss the proceedings in their entirety for not disclosing a reasonable cause of action, for being an abuse of process and for being time barred.
44. The State has incurred costs in defending the claim. Such costs are a reasonable part of launching proceedings and may be ordered against the three lead plaintiffs because of the defective pleadings and lack of consent from the 451 ex-servicemen who they purport to represent. However, considering the circumstances of the plaintiffs, I exercise my discretion to make no order for costs.
ORDER:
45. The Court hereby issues following the orders:
Orders accordingly,.
_______________________________________________________________
Lawyers for the defendants: Manase & Co. Lawyers
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