SC1360

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 87 OF 2010

BETWEEN

CATHERINE POPO
Appellant

AND:

PAPUA NEW GUINEA ELECTRICITY COMMISSION
Respondent

Waigani: Injia .CJ, Davani .J, Gabi .J
2014: 30th June,
4th July,

PRACTICE AND PROCEDURE – pleading – contract – governing statute - need to plead statute governing plaintiff's employment

CONTRACT – Determination – not specifically pleaded – must be pleaded

Facts

The plaintiff /appellant was terminated by the defendant/respondent on charges relating to stealing and false pretence. These charges were laid under the Elcom Determination No. 1 of 1974. He sued for wrongful termination.

The trial Judge, although making an award for damages, was not specific as to whether there was a Contract of Employment and whether it was breached.

The appellant appealed.

Held

1.	The appellant did not plead the Determination as an essential term of the Contract of Employment and so cannot rely on it in this appeal.

2.	The appellant did not plead the statute that he relies on and its relevant provisions governing employment with the respondent because if a plaintiff's cause of action or his entitlement to sue depends on a statute, he must plead all facts necessary to bring him within that statute and to also plead that statute and the relevant provisions.

Cases Cited:

Papua New Guinea cases

Jacob Simbuaken v. Neville Egari (2009) N3824

Overseas Cases

Sear v. Lawson (1881) 16 Ch. D. 121
Read v. Brown (1991) 22 Q.B.D

Counsel:

Ms P. Tamutai, for the appellant
Mrs K. Rema, for the respondent

DECISION
4th July, 2014
 
1.	BY THE COURT: Before the Court for hearing is Notice of Appeal filed on 21st July, 2010 by Tamutai Lawyers which is an appeal from a decision of the National Court, Wabag, delivered on 15th June, 2010, the subject of proceedings WS 943 of 1997.

Background

2.	The appellant in this appeal is the wife of the late Mr Ananias Popo, now deceased, ('Deceased') and who is suing for and on behalf of the Deceased's estate. Although there are some issues in relation to the manner in which the appellant is before the Court, we will not dwell on this because both counsel do not take issue with the manner in which Catherine Popo now appears.

3.	The Deceased is a former employee of the Papua New Guinea Electricity Commission, the respondent ('the Respondent'). He had been in the Respondent's employ since 1983. He was terminated from employment on 6th June, 1996, the reasons being charges of stealing and false pretence leveled against him, which offences were alleged to have occurred on 18th April, 1996. These charges were laid under the Elcom Determination No. 1 of 1974 ('the Determination').

4.	By a Writ of summons and Statement of Claim filed in the National Court, Wabag on 6th October, 1997, the Deceased sought damages for alleged wrongful termination, which damages included the following;

-	payment in lieu of one month's notice.
-	payment in lieu of furlough for 13 years completed service.
-	recreation leave. 
-	sick leave.
-	superannuation benefits 
-	loss of income, a total amount of K114,600.96 together with interest and costs.

5.	By the National Court's decision of 15th June, 2010, the Court made the following orders;

1.	Verdict and Judgment for the plaintiff in the amount of K4,032.12;

2.	Interest payable on the amount of K4,032.12 at the rate of 8% per annum from the date of decision (15th June, 2010 to date of payment);

3.	Each party to pay their own costs of the proceedings;

4.	Abridgment of time, forthwith.

6.	Being aggrieved by this decision, the Deceased filed this appeal, now represented by his wife, upon his demise.

Grounds of Appeal

7.	There are seven grounds of appeal which we summarise as follows;

i.	that the National Court erred when it found that the Deceased was not wrongfully terminated;

ii.	that the trial Judge considered irrelevant and hearsay evidence, contained in the respondent's witness Patricia Kaimulan's affidavit, thereby denying the Deceased natural justice in that the Deceased was not given the opportunity to respond to the allegations and the charges;

iii.	that in reaching his decision, the trial Judge did not apply and consider section 155 (4) of the Constitution and also, failed to invoke certain clauses of the Determination;

iv.	that the trial Judge erred when he did not order the respondent to pay the appellant's because of his finding that the appellant had failed to prove wrongful termination by the respondent.

8.	The orders sought in the appeal are the following;

i.	that that the National Court's orders of 15th June, 2010, be quashed;

ii.	the Supreme Court to find that the appellant was wrongfully terminated by the respondent on 17th June, 1996; 

iii.	the Supreme Court to order the respondent to pay the appellant damages, to be calculated as follows;

-	furlough leave, the sum of K4,033.44

-	reasonable notice period, a sum of K72,826.00

-	recreation leave at K2,029.41

-	8% percent interest to be assessed from the date of the filing of the Writ to the date of the court's order;

-	the respondent to pay the appellant's costs of the proceedings in the National Court and that the costs of this appeal.

Issues

9.	After hearing both counsel, it is apparent that the trial Judge had not addressed very pertinent and important issues in his reasons for decision. We note more particularly the fact that the trial Judge had not put his mind to the issue of wrongful termination, albeit, whether the Deceased was wrongfully terminated by the Respondent. This was due to a lot of factors, the very prominent ones being, the deficient and debilitating manner in which the statement of claim was pleaded. A further ancillary and related aspect is that because the Deceased's lawyers did not properly plead wrongful termination, the Respondent did not plead and respond to and address those very pertinent factors, in its Defence.

10.	Clearly, the trial Judge did not have before him the necessary materials, to assist him in finding and, to then determine the correct issues.

11.	Having heard both counsel and after perusal of the grounds of appeal, submissions and other materials relied on by counsel, including the Determination, we find these to be the issues;

1.	Whether the Determination is a term of the contract of employment and if so, was that breached?

2.	Alternatively, if the deceased's contract was governed by statute, did he properly make a claim for wrongful termination?

3.	If indeed the Court finds that the Determination is a term of the contract of employment and that certain provisions were breached, or alternatively, if the Court finds that the plaintiff's contract was governed by statute and that he did properly make a claim for wrongful termination, can the Court proceed to assess damages or should the Court refer the matter back to the National Court for a hearing in relation to the damages claimed?

Analysis of the Issues 

12.	Below is our discussion and analysis of the issues, which of course incorporates our findings in relation to all the grounds of appeal, summarized above..

First Issue: Is the Determination a term of the contract of employment and if so, was it breached?

13.	Before a party can claim any relief, it must be specifically pleaded. 

14.	In this case, the Writ of Summons and Statement of Claim that was filed in the National Court Registry and which is contained at pages 11 to 18 of the appeal book, does not plead reliance on the Determination as a term of the contract of employment. It is a requirement at law that a Court should not grant a relief that has no foundation in the pleadings, i.e a Statement of Claim or Defence, even if there is evidence of it or agreement (see Bruce v. Oldhams Press Ltd [1936] 3ALER 287; Paul John v. Gerd Linhardt & Servicom Pty Limited (1999) N1938; London Passenger Board v. Moscrop [1942] 1ALLER 97); Simon Puraituk v. the State (2007) N3204).

15.	Because the Determination is not pleaded in the Writ of Summons and Statement of Claim, the appellant cannot rely on it. 

16.	On a further perusal of the Writ of summons and Statement of Claim, we note that the paragraphs that bear any resemblance to a pleading alleging wrongful dismissal are paragraphs 17 and 18 of the Writ of Summons and Statement of Claim and which are very vague and bare. They read;

"17.	The plaintiff alleges that due to both the defendant and its servants and agents or servants failure to provide better and further particulars of the charges before terminating him, the defendant wrongfully dismissed the plaintiff without just cause and without reasonable or any notice on 17th July, 1996.

18.	The dismissal by the defendant without just cause and without reasonable or any notice constituted and arbitrary and for breach of the plaintiff's oral contract of employment with the defendant and a wrongful dismissal of the plaintiff."

17.	These paragraphs denote that the Deceased's lawyers have not particularized the basis for the wrongful dismissal apart from stating generally that there was a failure to provide further and better particulars of the charges and that the dismissal with without just cause.

18.	Because the Determination was not pleaded in the Statement of Claim, in its Defence, the Respondent responded only to what was pleaded, hence there being no reference to the Determination. The only reference to some sort of rules of employment is that referred to in paragraphs 6 and 9 of the Respondent's Defence which read as follows;

"6.	As to paragraph 14 of the statement of claim, the defendant states its manager, Ramu Operations, was in fact correct in administering punishment to the plaintiff after considering the plaintiff's reply "without giving a reply" to the appeal of the plaintiff" which is not a requirement under the defendant's internal rules and procedures.
…

9.	The defendant denies paragraph 18 of the statement of claim and repeats paragraph 8 of this defence and states that the plaintiff's Determination from employment was lawful under defendant's internal disciplinary rules and procedures.

…"

19.	Obviously, when the defendant pleaded the existence of its internal disciplinary rules and procedures, the Deceased's lawyers could have resorted to a request for particulars or discovery by requesting copies of these rules and procedures. However, he did not do so.

20.	Because the Determinations was not pleaded in the Statement of Claim and/or the Defence, that this Court will not refer to and rely on it.

21.	Notwithstanding the lack of specific and adequate pleading, it is clear that the Determination was an essential term of the Contract by virtue of s 10 (4) and section 12 of the Electricity Industry Act Chapter No. 78 consolidated to No. 10 of 2002 ('the Act'). However, these provisions are also not pleaded in the statement of claim. 

22.	The Determination, amongst other things, made provision for a disciplinary process by which an employee of the respondent statutory corporation was processed for disciplinary complaints. These included the laying and service of a charge by the appropriate disciplinary officer; the service and receipt of a response from the employee; the making of a decision by the disciplinary authority; and if aggrieved, the employee's recourse to an appeal process appealing against that decision and finally, a decision on the appeal. The trial judge found that those disciplinary processes were observed. 

Second Issue; Alternatively, if the deceased's contract was governed by statute, did he properly make a claim for wrongful termination?

23.	The statement of claim in the appeal book does not plead the statute, if any, that governs the Deceased's employment with the Respondent. We make this point taking into account the appellant's lawyer's submissions that the Deceased's employment was governed by section 10 (4) and section 12 of the Act. 

24.	 As to the manner in which the statement of claim is pleaded, it only pleads that the Deceased commenced employment with the Respondent on 19th September, 1982 (par. 2 of statement of claim; pg. 13 of appeal book). There is no pleading as to the capacity in which he was employed. (paragraph 3 of the writ of summons and statement of claim) In Pickthall v. MVIT [1991] PNGLR 113 (N971), the trial Judge held that a claim by the plaintiff where he seeks entitlement to monies in excess of K100,000.00 in motor vehicle accident cases means that the plaintiff must specifically plead the provision that allows him to claim the excess, being section 54 (5) of the Motor Vehicles (Third Party Insurance) Act. Further, if a plaintiff's cause of action, or his entitlement to sue depends on a statute, he must plead all facts necessary to bring him within that statute and to also plead that statute (see Jacob Simbuaken v. Neville Egari (2009) N3824; Sear v. Lawson (1881) 16 Ch. D. 121; Read v. Brown (1998) 22 Q.B.D 128). It is imperative that the statutory provision, on which a party relies, is pleaded in either the Defence or the Statement of Claim.

25.	This is similar to the specific pleading of section 1 (1) (a) of the Wrongs (Miscellaneous Provisions) Act Chapter 297 in a case where a plaintiff seeks to show or prove vicarious liability of an employer for a defendant who was purportedly acting in the course of his employment. (see Jacob Simbuaken v Neville Egari (supra) ). Additionally, this is akin to the statutory requirement to specifically plead a Defence e.g section 5 of the Frauds and Limitations Act 1988 as provided in order 8 rule 14 of the National Court Rules (see Angelo Cresseri and Wiwa Korowi v. Halla Resources Corporation [1985] PNGLR 294 (SC 303).

26.	The two above findings in relation to issues one and two are a demonstration of the appellants inability to show, by pleadings, that the Deceased was indeed employed on a contract or, alternatively, that his employment was governed by statute. It also means that we need not consider issue number 3 because that has now become obsolete as a result of our findings.

Trial Judge's reasons

27.	It is also important that we mention the manner in which the trial Judge determined this claim. It is clear to us that the trial Judge was not aware of the existence of the Determination and that as such, proceeded on the basis of what was before him in the Writ of summons and Statement of Claim and the Defence. It is indeed clear to us that counsel, who appeared before the trial Judge, did not point out the existence of the Determination. Without the benefit of the Determination, the trial judge's findings were contradictory and confusing where, on the one hand, he found that the Deceased was not wrongfully terminated, and on the other, found that he was and awarded some damages. Following that finding, he then held that because the Respondent did not provide the particulars sought by the Deceased, that as such, the Respondent was indebted to the Deceased in the amount of K2,002.71 being his accrued recreation leave entitlements. He then found further that because the Deceased suffered some losses as a result of the Respondent's failure to provide the particulars, that he was entitled to a further nominal amount, bringing the total damages awarded to K4,032.12.

28.	Notwithstanding the lack of specific and adequate pleading, and the trial judge's confusion over the statutory basis of the claim, we conclude that it is clear that the Determination was an essential term of the Contract by virtue of s 10 (4) and section 12 of the Act. The Determination, amongst other things, made provision for a disciplinary process by which an employee of the respondent statutory corporation was processed for disciplinary complaints, which included laying and service of a charge by the appropriate disciplinary officer, response from the employee, decision by the disciplinary authority and appeal from the decision and a decision on the appeal. The trial judge found that this disciplinary process was observed. We agree with the Respondent's submission that the trial judge did not err in that respect. Indeed, the Deceased was formally charged and served with the charge, he was given an opportunity to reply to the charge, the Deceased replied in writing, the appropriate officer of the Respondent made a decision and communicated that decision to the Deceased in writing with reasons for decision, the Deceased appealed against the decision, the appeal was dealt with and decision made and communicated to the Deceased in writing with reasons for decision. The appellants arguments before us that the Deceased was deprived of natural justice and reasons for decision, is in our view, without merit. 

29.	We also conclude that the trial judge having correctly found on the one hand, that the contract of employment was not wrongfully breached, constitutes a determination on the issue of liability against the appellant, and that therefore, it was not open for the trial judge to assess damages. 

Conclusion 

30.	Obviously, the appellant has failed to demonstrate or convince us that the trial Judge acted on a wrong principle of law or that he gave weight to extraneous or irrelevant considerations or failed to take into account relevant considerations or even made a mistake as to the facts or that the judgment is unreasonable or plainly unjust. (See Bean v. Bean [1980] PNGLR 307; Curtain Bros (PNG) Ltd v. UPNG (2005) SC 78; and Telikom PNG Limited v. ICCC (2008) SC 906).

31.	For the foregoing reasons, we will dismiss this appeal, with costs.

Formal Orders

The Court's formal orders are;

1.	The appeal is dismissed;

2.	The appellant will pay the respondent's costs of the appeal, to be taxed if not agreed.
___________________________________________
Tamutai Lawyers: Lawyer for the Appellant 
Pang Legal Services: Lawyer for the Respondent