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Mamtirin v Donnelly [2019] PGSC 125; SC1889 (19 December 2019)

SC1889

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 96 OF 2018

BETWEEN:
NUG MAMTIRIN
For and on behalf of Himself as well as 271 retrenched employees of Telikom PNG Limited, in his capacity as President of PNG Communication Workers Union
First Appellant

AND:
MICHAEL LANGOGO
For and on behalf of Himself as well as 271 terminated employees of Telikom PNG Limited, in his capacity as Treasurer of PNG Communication Workers Union
Second Appellant

AND:
LYDIA DAVID
For and on behalf of Herself as well as 271 terminated employees of Telikom PNG Limited, in her capacity as Women’s Representative of the PNG Communication Workers Union
Third Appellant

AND
PNG COMMUNICATION WORKERS UNION
In its corporate capacity, for and on behalf of the members, as a Party to the Enterprise Bargaining Agreement 2010, for and on behalf of the 271 terminated employees of Telikom
Fourth Appellant

AND:
MICHAEL DONNELLY as CEO of Telikom PNG Limited
First Respondent

AND:
MAHESH PATEL
Chairman of the Board of Directors of Telikom PNG Limited
Second Respondent
AND:
TELIKOM PNG LIMITED
Third Respondent

Waigani: Manuhu, Makail, Polume-Kiele, JJ.
2019: 28^th August 19^th & December

PRACTICE AND PROCEDURE – Res judicata – Representative proceedings –Multiplicity of interlocutory proceedings – Summary dismissal of proceeding for lack of authorization

PRACTICE AND PROCEDURE – Summary disposal of proceeding for want of authorization –Obiter ruling on substantive merits of the proceedings

Cases Cited:

Simon Mali v The State (2002) SC 690

Goma v Protect Security & Communication Ltd [2013] SC1300

Telikom PNG Limited v ICCC and Digicel (PNG) Limited (2008) SC906

Counsel:

John N Napu, for the Appellants
Simon Ketan, for the Respondents

19^th December, 2019

1. BY THE COURT: This was an action by the former employees of the Third Respondent who were affected by a redundancy exercise that was carried out between 2015 and 2016. The gist of their claim is that at the time of the redundancy exercise, the terms of the governing agreement, namely the Enterprise Bargaining Agreement 2010 was not followed resulting in the appellants being underpaid their retrenchment entitlements.

2. The proceeding was summarily dismissed following a substantive hearing after the trial Judge accepted the submission of the respondents that the proceeding was an abuse of process in that the requirements for commencement of representative proceedings had not been complied with. See Simon Mali v The State (2002) SC 690. The trial Judge found that the 271 former employees had not authorized the commencement of the proceedings.

3. The principal ground of appeal is basically that the issue of consent or want of authorization had already been heard and dismissed on its merits. Therefore, the trial Court was “seized of its jurisdiction to make further finding on the same issue” and the respondents “were barred by operation of law on res judicata.”

4. The appellants argued that the question of authorization had been determined twice previously and dismissed. The first motion was filed on 26 April 2016. It sought orders that the proceeding be dismissed for being frivolous and vexatious and or alternatively for “want of authority” pursuant to Order 5 Rule 13 and Order 4 Rule 20 of the National Court Rules. This motion was heard and dismissed on 29 April 2016.

5. The second motion was filed on 16 May 2016 which sought to have the proceeding dismissed pursuant to Order 12 Rule 40 (1) of the National Court Rules for disclosing no reasonable cause of action, for being frivolous and vexatious and or for being an abuse of process. This motion was heard and dismissed on 29 May 2016. The Court specifically ruled that “the motion to dismiss the proceedings for want of instructions from the affected employees was dealt with on 29^th April 2016, and has been dealt with and was dismissed on its merit.”

6. Despite the earlier ruling, the trial judge summarily dismissed the proceeding for these reasons:

“In spite of the fact that this issue was raised prior to the trial by the defendants, and I nevertheless permitted the trial to proceed, the issue was not determined conclusively and always remained open to the hearing of the final submissions at the trial. Having heard those submissions I conclude that failure to comply with these requirements is fatal. I consider that the only proper exercise of discretion in the circumstances – though the proceedings have progressed to trial and a substantive body of evidence has been presented and full submissions have been made on the merits of the plaintiff’ claims – is to dismiss the proceedings as an abuse of process.”

7. The doctrine of res judicata essentially is that a particular matter should not be raised again between the same parties to ensure that the court’s time is not wasted, to avoid the potential for multiplicity of rulings on the same natter and to avoid injustice to a party. See Telikom PNG Limited v ICCC and Digicel (PNG) Limited, SC906 (28 March 2008).

8. In this case, we are of the view that the trial judge, with due respect, erred when he ruled that the issue was not determined conclusively when he had ruled on 29^th May 2016 that the issue “has been dealt with and was dismissed on its merit.” The subsequent ruling clearly contradicted the previous ruling. The contradiction has resulted in a miscarriage of justice in that it deprived the appellants the protection under the doctrine of res judicata. In addition, after the second application was dismissed, the appellants were entitled to think that the same issue would not resurface but it did to their detriment.

9. We are satisfied therefore that the trial judge committed an error that is serious enough for this court to quash the order to dismiss the proceeding on the basis of lack of authorization.

10. The other two grounds of appeal relate to the obiter rulings of the trial judge. Is it necessary to appeal against the obiter rulings?

11. An obiter is an observation,opinion or remark made by a judge which does not form a necessary part of the court’s decision. In the case of Goma v Protect Security & Communication Ltd [2013] SC1300, it was held that obiter dicta are “statements of law or other observations made by a judge or a Court, either orally or in a written judgment, which are not necessary to the disposition of final decision in the case.”

12. In this case, on page 7 of the written judgment, the trial judge said:

“... as there was substantial evidence and argument on other issues, I will give my opinion on them obiter dictum, as it might be that some of the plaintiffs will have a cause of action worth pursuing individually or in a regularized representative proceeding.”

13. The trial judge stated that “some plaintiffs will have a cause of action worth pursuing”, a clear indication that the obiter rulings were merely his Honour’s opinion to guide the parties to resolve their disputes, if they could and they may take further action if they so desire. It is clear that the obiter ruling had no bearing on the dismissal of the proceeding and did not conclusively determine the merits of the substantive claim.

14. It was not necessary therefore for the appellant to appeal against the obiter findings of the trial judge.

15. The fourth and final ground of appeal relate to the trial Judge’s order for the parties to bear their own costs. The order made by the trial judge was clearly dictated by the dismissal of the proceeding. A reinstatement of the proceeding will have a bearing on the order for costs.

16. In the circumstances, we make the following orders:

(1) The appeal is upheld.
(2) The decision of the trial judge to summarily dismiss the proceeding is quashed and set aside.
(3) The decision of the trial judge on cost is quashed and set aside.
(4) The matter is remitted for rehearing before another Judge on the substantive merits of the claim.
(5) Cost is awarded to the appellants.

________________________________________________________________
Napu & Company Lawyers: Lawyer for the Appellants
Ketan Lawyers: Lawyer for the Respondents