|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Papua New Guinea Law Reports |
[1967-68] PNGLR 136 - Romni-Mond v Robertson
[1967-68] PNGLR 136
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
ROMNI-MOND AND OTHERS
V.
ROBERTSON
Popondetta & Port Moresby
Minogue J
23 August 1967
21 November 1967
MASTER AND SERVANT - Extent of power to withhold deferred wages on termination employment agreement - Equity and good conscience - Exercise of discretion by appellate court - Native Employment Ordinance 1958-1966, ss. 49, 50, 164*[ccxxvi]1 .
Under s. 50 (1) of the Native Employment Ordinance 1958-1966 the District Court had no power to award any sum as liquidated damages. Section 50 did not empower the awarding of any sum in excess of the amount of any additional employer’s out-of-pocket expenses reasonably held to have been caused at the date of the hearing or to be caused in the future by either the wrongful act or default of the employee or the early termination of the agreement. Section 164 merely freed the court procedurally, and did not empower the court to depart from the principles of common law and equity, or to act on no evidence at all, but enabled the court to inform itself in the best way it could of the factual situation with which it was dealing.
The appellants were employed as plantation labourers for a period of two years under the provisions of the Native Employment Ordinance 1958-1966. After one year’s service they refused to work further at the plantation and the respondent, the employer’s manager, sought termination of their agreements and the withholding of portion of their deferred wages as liquidated damages. The employer had at the commencement of the employment incurred expenditure in recruiting and equipping each of the appellants and would incur expenses in returning the appellants to their home district on termination of the agreements, and in particular would incur certain air fares which would not have been incurred if the appellants had completed their full term of service. The District Court at Popondetta ordered that the agreements be terminated and that the sum of $29.00 be withheld from the wages of each appellant as “liquidated damages”.
Held:
(1) The magistrate had erred in law in considering in his assessment (a) amounts which had been expended at the commencement of the employment and which could not be regarded as additional expenses in any way referable to the early termination of the agreement, and (b) portion of the cost of transporting the appellants back to their home area as to which there was no evidence to show this was additional to anything which the employer would have had to pay had the appellants remained for their full term.
(2) The only additional out-of-pocket expenses proved being the air fares which would not have been incurred had the appellants completed their full term of service, the amount thereof was the upper limit of any award under s. 50.
(3) As the magistrate had not reached the stage where he could properly exercise his discretion to fix the amount of any award to the employer under s. 50 the court on appeal could exercise its own discretion and fix the amount within such upper limit according to equity and good conscience.
Scott v. Bye [1824] EngR 886; (1824), 2 Bing. 344, at p. 348: [1824] EngR 886; 130 E.R. 338, at p. 339; Metropolitan Shop Assistants & Warehouse Employees’ Industrial Union v. Foy & Gibson Pty. Ltd. (1912), 23 W.A.L.R. (I.C.) 13; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Co. Ltd. [No. 1] [1914] HCA 15; (1914), 18 C.L.R. 54; Moses v. Parker[1896] UKLawRpAC 7; , [1896] A.C. 245; Walter Reid & Co. Ltd. v. Murphy, [1924] Q.S.R. 1; Ithaca Election Petition; Webb v. Hanlon, [1939] Q.S.R. 90; Ex parte Herman; Re Mathieson (1961), 78 W.N. (N.S.W.) 6, referred to.
Appeals from District Court.
The District Court at Popondetta, upon the complaint of John Cameron Robertson invoking the provisions of ss. 49, 50 of the Native Employment Ordinance 1958-1966, directed that the agreement for the employment of Romni Mond, Kolim Rangaiwa, Misin Rort, Ombun Kokan, Angemb Ning, Kuru Ol, Batri Umbambu, Dai Pok and Nang Rangap be terminated and that $29.00 be withheld from deferred wages due to each employee.
Against this decision each of the employees appealed on the ground that the amount determined to be withheld was too great in all the circumstances. All the relevant facts appear in the reasons for judgment hereunder.
Counsel:
Broadley, for the appellants.
The respondent appeared in person.
Cur. adv. vult.
21 November 1967
MINOGUE J: These are appeals against the decision of the reserve magistrate at Popondetta whereby he decided that the agreement worker class 1 employees’ agreement made by each of the appellants with the respondent’s principal be terminated as at 4th July, 1967, and that the sum of $29.00 be withheld from deferred wages owing to each appellant “for liquidated damages”. The ground taken in each appeal was that the award was too great having regard to all the circumstances of the case.
Each appellant was engaged to serve Mr. Sedgwick, who is apparently the owner of Serovi plantation near Popondetta in the Northern District, as a plantation labourer for a period of two years under what is generally known as the Highland Labour Scheme. The employment is governed by the Native Employment Ordinance 1958-1966 which appears to be designed generally for the protection of native employees and to spell out the rights and obligations both of employers and employees where natives are engaged in employment. The appellants all come from the Minj sub-district in the Western Highlands District and were recruited by a native employment agent. By s. 27 of the Ordinance a person when engaging or attempting to engage a native for employment shall clearly inform the native of the terms and conditions of the employment being offered, and shall satisfy himself that the native understands the terms and conditions being offered, including:
(a) the name of the employer;
(b) the name or names of the plantation or plantations, ship or ships, mine or mines, or other place or places at or on which he is to be or may be employed;
(c) the location of the place or places of employment;
(d) the occupation in which he is to be employed;
(e) the nature of the work involved in such occupation;
(f) the period of service required of an agreement worker;
(g) the cash wage to be paid; and
(h) the manner of paying the cash wages, including the arrangements proposed in respect of deferred wages, if any.
And s. 28 requires the native employment agent when a native has been engaged for employment, to make all necessary arrangements to have the agreement drawn up, sanctioned and attested and to take the native before the employment officer who is nearest to the place of engagement as soon as practicable after engagement. The employment officer is a district officer or a person appointed by the Director of District Administration to be an employment officer for the purposes of the Ordinance (see ss. 5-10). Section 31 sets out a number of requirements in relation to the agreement between the worker and the employer, two of which are that it is to be signed by the employer and employee in the presence of an employment officer and is to have no force or effect until it is sanctioned or attested by an employment officer in accordance with the Ordinance. Sections 36 to 41 relate to the sanction and attestation of such an agreement. Before sanctioning and attesting an agreement an employment officer is directed to satisfy himself that the agreement is in accordance with the Ordinance, that the employer and the proposed employee are competent to enter into the agreement, that the proposed employee understands and intends the conditions of the proposed employment and his rights and duties under the agreement and that the requirements of the Ordinance have been complied with.
I had before me a photostat copy of the agreement entered into by each of the appellants and I am satisfied that they were all duly sanctioned and attested. No allegation was made that any of the appellants did not understand or intend the conditions of his employment. The engagement was for two years, the cash wage in the first year being $39.00 and in the second year $45.50. Deferred wage in the first year was $2.00 per lunar month. The appellants began their employment on 30th June, 1966. On 1st July, 1967, a friend and fellow worker of the appellants was bitten by a snake whilst hunting bandicoot at night. Mr. Robertson, the manager of the plantation, upon this incident being reported to him, took the man to the Popondetta aid post and later to the hospital at Saiho where he died early in the morning of 2nd July. The appellants were all very upset and Mr. Robertson told them to have the Monday (3rd July) off work. On the following day the nine appellants refused to work and told the respondent that they wished to finish and go home. Despite efforts to persuade them to stay they were adamant, stating that they were frightened because one of their friends or clansmen had died there and they did not wish to remain on the property where he had died. Shortly thereafter the respondent procured the attendance of the employment officer from Popondetta and he talked to the appellants for some hours. A further period was suggested for the position to be thought over and on 6th July the employment officer came again to the plantation. The appellants still refused to stay at work and so to perform the balance of their contract, stating that they must go home and straighten the matter out amongst their people at home. Following on this final refusal a complaint was made to the District Court at Popondetta for that the appellants did absent themselves from work without leave or reasonable excuse and application was made for the termination of their agreement and for the sum of $32.00 to be withheld from the deferred wages due, as the complaint put it “as liquidated damages under s. 5 of the Ordinance”.
At the hearing the facts as I have earlier set out were related by Mr. Robertson and the magistrate also heard the evidence of Mr. B. M. Rhodes, the employment officer, who told of his efforts to persuade the appellants to return to duty. According to him he progressed through all the techniques of persuasion that he had used with success on similar occasions with others who wanted to return home following the death of a companion. There was no suggestion of any animosity between the appellants and the employer and the discussions were held in a cordial atmosphere. Mr. Robertson gave evidence before the magistrate of what he described as the repatriation costs of the nine appellants. These he said were made up as follows: Each man was issued with a blanket, a mosquito net and kit bag, the total cost thereof for the nine being $68.85. However, as there had been one year of the contract worked, his out-of-pockets would be half of this amount, that is, $34.43. Attestation fees which had been paid and half thrown away amounted to $4.50 and half the recruiting fees paid to the employment agent which he claimed as also being thrown away amounted to $69.75. In addition the nine men had to be transported by road and ship to Lae at a cost of $31.50 and then from Lae to Mt. Hagen by aircraft at a cost of $221.40. These expenses totalled $361.58. He further stated that there would be losses on the plantation due to the disruption of pest and disease control, the general reduction of maintenance, the training of new staff and the disruption of production. He could not estimate a firm cash figure for these losses, but stated them to be considerable.
The magistrate found for the complainant and held that the agreements be terminated as at 4th July, 1967, and that the sum of $29.00 be withheld from the deferred wages due to each appellant by the employer for liquidated damages. I do not think that he was empowered to award any sum as liquidated damages and looking at the complaint and this finding it seems to me that he had in mind s. 47 of the Native Labour Ordinance 1950, which has been supplanted by Div. V of Pt. XII of the 1958 Ordinance. However, I shall say something about this confusion later when I come to consider what this Court should do.
The magistrate who is also an experienced officer of the Department of District Administration, forwarded a report as he was bound to do by s. 231 of the District Courts Ordinance 1963 in the form of notes on the case. He stated that the circumstances of the case were not unusual both in the experience of the plantation manager, the labour inspector and himself. In his view the manager and the labour inspector handled the affair well and did everything that could be expected of them. He approved of the giving of time for reflection although this always has a calculated risk, for the people who do not wish to continue in their employment may affect the rest of the labour line especially if they are from the same area. In his view the fact that twenty-six men from the same area remained working on the plantation spoke well for the manager’s handling of the situation. He went on to report that on the hearing he explained fully to the men and was convinced that he was understood by them all that the court could award substantial damages against their deferred pay, possibly all of it, if they did not return to work. He then gave them time to discuss the matter amongst themselves but their individual answers were that they were determined and wanted to go home. He stated that he explained the expenses that the company had incurred to them and that even if he halved certain costs in consideration of their having completed half their contract, these costs together with the costs of their repatriation could be well in excess of moneys due to them. He then gave them another opportunity to change their minds but they were adamant. He also reported that in his last five years in Papua it is not very often that a court has had to proceed beyond this point and usually labour has returned to work with the possible exception of the odd malcontent who is usually found to be one who has broken agreements on other plantations. In his view there appeared to be no ring leader or trouble maker and the decision made was the decision of each individual man. The hearing he said took about two and a half hours.
The net result of his award was that each of the appellants received a cash payment of $4.52 being the difference between the deferred wages due to him of $33.52 and the amount of $29.00 ordered to be paid by him.
The appellants are aggrieved because they say that the District Court magistrate made too great an award against each of them. I did not understand Mr. Broadley who appeared for them to argue that there were any special considerations applicable to any one of the appellants as against any other or others and indeed from first to last the matter has been conducted on a seemingly corporate basis. Even the initial complaint is intituled “J. Robertson (Serovi Plantation) v. Romni Mond, Kolim Rangaiwa, . . .” and so on until the ninth appellant’s name is listed. But I do not think I need give any further consideration to the actual verbiage used in this document because it is the substance of the matter that I have been asked to decide upon and that is difficult enough without entering upon questions of form. As I see it I am being asked to exercise a discretion which it is argued rests in me and to substitute my notions of equity and good conscience for those of the magistrate who made the award. To determine whether I can or should do this involves consideration firstly, of the powers conferred upon the magistrate by the Native Employment Ordinance, and then of the extent to which this Court can and ought to interfere with his exercise of these powers.
By s. 49 (1) of the Native Employment Ordinance a District Court may, on the application of the employer, terminate an agreement with an agreement worker on several grounds all except one of which seem to involve some wrongful act or default of the worker in relation to his employment. It is not necessary for me in this case to decide whether each of these grounds does in law involve “a wrongful act or default”. The matter has not been argued before me. In this case the employer, through his agent the complainant Robertson, sought the termination of the agreement with each of the appellants under s. 49 (1)(e) on the ground that he had been absent from work without leave or reasonable excuse. The magistrate found that this ground was made out and his decision on this aspect has not been canvassed before me. By s. 49 (3) the District Court may, on the application of the agreement worker, terminate an agreement on several grounds and by s. 49 (4) the court may on its own motion on such conditions as it thinks just, itself terminate an agreement where, inter alia, termination is in its opinion in the interests of the welfare of the worker or his dependants or for any other reason it considers that the agreement should be terminated.
Section 50 provides:
“(1) Where a court terminates an agreement under the last preceding section on account of a wrongful act or default of the agreement worker, it may award to the employer such amount as it determines of any additional out-of-pocket expenses, as assessed by it, as are reasonably caused or to be caused to the employer by reason of:
(a) the wrongful act or default; or
(b) the early termination of the agreement,
and may, subject to the provisions of Section 52 of this Ordinance, authorise the employer to retain that amount (or such part of that amount as may be retained) out of any deferred or other wages due to the worker.
(2) An amount awarded under this section shall, subject to the next succeeding section, be deemed to be a judgment debt against the worker.”
The section is not well drafted but in my opinion it means that when the court terminates an agreement at the behest of the employer under the provisions of s. 49 (1) it has a discretion to award a sum of money to the employer. Before doing so it must first determine what additional out-of-pocket expenses could reasonably be held to have been caused at the date of the hearing or to be caused in the future to the employer by reason either of the wrongful act or default of the employee or of the early termination of the agreement. This assessment sets the upper limit of what the court may award but as I construe the section the court is at large as to how much of this amount it will decide to award to the employer. Its guide is equity and good conscience for s. 164 enacts that in determining any question (other than in a criminal proceeding under the ordinance) a court shall be guided by equity and good conscience and is not bound by rules of evidence or legal procedure. The ambit of this section has caused me considerable difficulty.
As I understand the appeal to this Court, Mr. Broadley for the appellants was complaining that the award was too great having regard to all the circumstances of the case and was in effect asserting that the magistrate had not been guided by equity and good conscience and he asked this court to substitute its own notions of the effect of these elusive words for those of the magistrate. Sections such as this have appeared in other legislation and have been productive of some diversity of opinion as to the construction to be put upon them. In the Territories of Papua and New Guinea they appear in widely differing contexts. For example, in the Land Ordinance of 1911 of Papua provision existed for the Lieut.-Governor by proclamation to appoint a board or boards to decide all questions as to waste and vacant lands and cases of disputed ownership of land in which a Papuan native was a claimant. The board in giving its decision was to be guided by the principles of equity and good conscience and was not to be bound by rules of evidence or legal procedure (s. 9). A similar provision existed in the Land Ordinance 1922 of New Guinea (see s. 12 (2)). However, as no boards were ever proclaimed or brought into existence under these ordinances no guidance can be obtained from their proceedings or from any appeals to the Central Court of each Territory from their decisions. The Lands Registration Ordinance 1924-1939 of the Territory of New Guinea, by s. 27c which was inserted in 1929, provided that in the determination of any matters referred to it in relation to native rights to land under the Ordinance, the Supreme Court was not to be bound by the principles and rules of common law and equity but could be guided by such principles of right and good conscience as it deemed to be applicable to the matters referred to it, having regard to the tribal institutions, customs and usages of the natives of the Territory and to the conditions existing in the Territory since its occupation by persons other than natives. It will be noted that in this section it is specifically enacted that the court is not to be bound by the principles and rules of common law and equity. Section 80 of the Small Debts Ordinance 1912 of Papua which was a transcription of s. 29 of the Queensland Small Debts Ordinance 1867 enacted that the rules of evidence observed in the Central Court should be applicable to and observed in the trial of questions of fact in the Small Debts Court except in cases under ten pounds which were to be heard and determined according to equity and good conscience. As in Queensland the Small Debts Recovery Act, 1912 (N.S.W.), authorized courts established under that Act “to hear and determine in a summary way, and according to equity and good conscience . . . all actions whatsoever—(a) for the recovery of any debt or liquidated demand not exceeding thirty pounds, whether on balance of account, or after admitted set-off, or otherwise” (s. 7). The Small Debts Courts are the lineal descendants of the old courts of requests or conscience, the first of which seems to have been set up during the reign of Henry VIII. The commissioners of such courts were given power to adjudicate between the parties “as they shall find to stand with equity and good conscience”. Apparently these courts were unfettered by the strict rules of law and evidence. See Best C.J. in Scott v. Bye[ccxxvii]2 where he says: “A party may be examined as a witness and the judgment is to be according to equity and good conscience, that is such as plain men, ignorant of the rules of law, which the judges of that court must be, shall think just . . . can a court, the decisions of which are wisely subjected to fixed rules, be a proper tribunal to correct the proceedings of courts where judges are left to the guidance of their own arbitrary discretion?” And in refusing to remove the judgment of the Court of Requests at Southwark to the Court of Common Pleas under a writ of false judgment he decided that the Court of Common Pleas was not such a tribunal.
The expression “equity and good conscience” has found its way into the industrial legislation both of the Commonwealth and States of Australia. See for example s. 69 (1) of the Industrial Arbitration Act, 1912 (W.A.) which enacts that:
“In the hearing and determination of every industrial dispute the Court or President shall act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms, and shall not be bound by any rules of evidence, but may inform its or his mind on the matter in such a way as it or he thinks just.”
Burnside J. in the Metropolitan Shop Assistants & Warehouse Employees’ Industrial Union v. Foy & Gibson Pty. Ltd.[ccxxviii]3 doubted if the words equity and good conscience were capable of definite meaning. He understood them to mean that the court and the president were to act on their common sense. If they have any meaning it is entirely subjective.
Section 25 of the Commonwealth Conciliation and Arbitration Act 1904-1911 directed the court or conciliation commissioner in the same terms as s. 69 of the West Australian Act. In The Tramways case [No. 1][ccxxix]4 Isaacs J. expressed the view that that section should be read as a procedure section and that it does not except “rules of law” as was the case in Moses v. Parker[ccxxx]5. He went on to say: “The legislature, so far from contemplating the court being free from any rules of law, clearly intends that the rights of the parties shall be fixed by the award, and that those rights are to be enforced by the methods prescribed.” In Moses v. Parker there was an appeal to the Privy Council from the Supreme Court of Tasmania which court had been given jurisdiction for certain purposes in the exercise of which it was to be “guided” by equity and good conscience only and by the best evidence that could or should be procured although not such as would be required or be admissible in ordinary cases; nor was the said court or the clerk of the court to be bound by the strict rules of law or equity in any case or by any technicalities or legal forms whatever. The provision in this case was similar in substance to that which I have already referred to in the Land Registration Ordinance of the Territory of New Guinea in that it contained a specific statement that the court was not to be bound by the strict rules of law or equity. Such verbiage is absent from the other legislation I have been discussing. However in Walter Reid & Co. Ltd. v. Murphy[ccxxxi]6 s. 10 (1) of The Magistrates Courts Act of 1921 of Queensland was in question. That section read:
“Subject to this Act, the rules of evidence observed in the Supreme Court shall be applicable to and be observed in the trial of all questions of fact in the Court: Provided that all actions in which the sum sued for is under ten pounds shall be heard and determined according to equity and good conscience” (cf. the earlier Small Debts Ordinances).
The magistrate’s court had made an award of four pounds to the complainant despite the fact that there was in law no evidence on which the magistrate could decide in favour of the plaintiff. The majority of the Full Court of Queensland dismissed the appeal—McCawley C.J. on the ground that it was impossible to say that the magistrate could not in equity and good conscience reasonably have come to the conclusion that he did, and Shand J. on the ground that no appeal lay in the circumstances from the decision of the magistrate’s court given according to equity and good conscience in a matter involving less than ten pounds, but if an appeal did lie in the present case he was unable to say that the court should interfere with the magistrate’s decision on any ground of equity and good conscience. Lukin J. strongly dissented and would have allowed the appeal on the ground that there was no evidence on which the magistrate could decide in favour of the plaintiff. In 1939 the Full Court of Queensland heard an appeal from a member of the Supreme Court sitting as an elections tribunal (Ithaca Election Petition: Webb v. Hanlon[ccxxxii]7). Section 111 of The Elections Acts, 1915 to 1936 provided that upon the trial of an election, petition or reference, the tribunal should be guided by the real justice and good conscience of the case without regard to legal forms and solemnities and should direct itself by the best evidence it could procure or which was led before it, whether the same was such evidence as the law would require or admit in other cases or not. In deciding that the elections tribunal judge was wrong in finding on the evidence that two persons actively concerned in some election malpractices were agents of the candidate, a majority of the court held this section to be merely a procedure section and not to affect the rules of common law as to onus of proof. Hart A.J. dissented on the ground that the section meant that a judge may in the proper discharge of his duty be satisfied with a degree of proof less than that that would be required in an ordinary civil suit or criminal prosecution. He relied to a large extent on the history of relevant legislation. Blair C.J. founded partly on the passage from the judgment of Isaacs J. which I have quoted, and he also in comparing the “real justice and good conscience” sections in comparative legislation pointed out how a noticeable matter in the enactment under review was the absence of the words “nor shall the court . . . be bound by the strict rules of law or equity in any such case” therefrom. Blair C.J. thought that the right of the appeal given from the elections tribunal to the Supreme Court was the logical sequence from that omission and he went on to hold that the tribunal was not exonerated from obedience “to strict rules of law and equity”. The appellants in this case have the ordinary right of appeal given to aggrieved persons by s. 225 of the District Courts Ordinance 1963. In Ex parte Herman; Re Mathieson[ccxxxiii]8 Kinsella J. held that s. 7 of the Small Debts Recovery Act, 1912-1957 of New South Wales did not give the Small Debts Court power to depart from the established principles of law nor did it give power to dispense justice otherwise than according to law and further that if a tribunal refuses to apply the law and gives judgment on personal views of what is fair and proper it refuses to administer the law and thereby denies natural justice to the litigant who seeks to have his claim determined according to law.
In my opinion the court can only depart from the principles and rules of common law and equity where its power to do so is stated expressly or by the clearest implication. Section 164 of itself, in my view, does not contain that power. All it does is to free the court procedurally. It does not allow the court to act on no evidence at all, although it may inform itself in the best way it can of the factual situation with which it is dealing.
This very case, I think, provides an example of the way in which the section can operate. The complaint would normally be regarded as defective because it purported to join several defendants in the one action in respect of separate and distinct causes of action against each one. Furthermore, it sought to recover a sum as liquidated damages when no right was given by the legislation nor, I rather think in the circumstances, by the common law for such damages. But it is clear that the defendants were all before the court and that they had explained to them as carefully as could be the reason for their attendance, the relief that was sought against them and I have no doubt that each party was able to put such case as he thought he had to the court. Section 164 in my view would prevent any defects in the procedure or course adopted by the magistrate from invalidating the proceedings.
However, s. 50 by permitting the court to “award to the employer such amount as it determines . . .” leaves it at large to be guided by equity and good conscience as directed by s. 164. But before the court reaches that point it has a duty to assess what additional out-of-pocket expenses could reasonably be held to be occasioned the employer by reason of the early termination of the agreement. This, in my view, should only be assessed on the evidence submitted to the magistrate and it is only after he has decided this question according to law that he is then entitled to make a discretionary award and in the making of that award act according to his conceptions of equity and good conscience or perhaps as Burnside J. put it “on his common sense”.
In my opinion the magistrate has erred in law in considering in his assessment the amounts claimed in respect of the issue and cost of blankets, mosquito nets and kit bags, the amount claimed as attestation fees and the amount claimed for recruiting fees, provision of lap laps and some incidental transport expenses on the way to the employment. All these amounts had been expended long before. I cannot regard them as being additional expenses in any way referable to the early termination of the agreement. It would be otherwise if the employer had hired nine additional labourers for the remaining period of one year and had to incur this type of expenditure in relation to them but there was no evidence before the magistrate nor indeed before me, that this was the case. Further, the transport of the nine appellants from Popondetta to Killerton and thence to Lae was not shown either to the magistrate or to me to be additional to anything which the employer would have had to pay had they remained for their full term. The cost of air transport from Lae to Mt. Hagen stands in quite a different category. From the explanation given to me in argument by Mr. Robertson who appeared in person and was not legally represented at the hearing of the appeal, it is clear that the fare $24.60 per man paid for transportation from Lae to Mt. Hagen was an additional out-of-pocket expense. Had the appellants remained for the full term of their engagement they would have travelled along with the other twenty-six men from the same district in the same chartered aircraft. That aircraft has to be chartered for the twenty-six men and there will be no reduction in the charter fee because of the lesser number carried. Accordingly, in my opinion, the figure which the magistrate should have determined on the evidence as being additional out-of-pocket expenses, was $24.60 in respect of each appellant. It was of this amount that there was a duty cast upon the magistrate to determine how much should be awarded to the employer.
In his report he has not referred to the considerations which led him to make the award that he did. As I see it he regarded all the sums claimed by the employer as legitimately claimed and these apportioned amongst the nine appellants would amount to a sum of $40.00 per man. The amount owing in wages to each was of course only $33.52. It is obvious that the magistrate felt that equity and good conscience demanded of him that he should not take away the total amount due as wages to each man and it seems to me that he must have had in mind that he would send the men home with some small sum in cash. In normal circumstances I would remit this case to the magistrate to reconsider the matter in the light of what I have said as to the way in which he should assess the additional out-of-pocket expenses. It may well be that there were in fact other additional out-of-pocket expenses consequent upon a disruption of pest and disease control and of production and of the general reduction of maintenance but no basis was suggested from which the magistrate could quantify these expenses and in my opinion he should have some evidence before he could do so.
But for two reasons I do not feel that I should take this course. The first is that on any view the individual amount awarded to each appellant must be small and the appellants, as I am informed, are now all back in their home areas in the vicinity of Minj in the Western Highlands. It would be unreal to expect them to incur the expense of going back to Popondetta to be present at the hearing of their appeal and to give evidence of any matters which may be material for the exercise of the discretion of the magistrate. Secondly, in my opinion, this is a case where this court is called upon to exercise its own discretion and in so saying, I answer the question which I posed earlier as to the extent to which this court can interfere with the exercise of the magistrate’s powers. The terms of s. 164 itself compel me to this conclusion. Subsection (4) of that section reads: “For the purposes of this section, ‘Court’ means the Supreme Court, a District Court or a Court of Petty Sessions”, so that in determining any question under the ordinance, the Supreme Court is also to be guided by equity and good conscience. The amount to be awarded under s. 50, scil. the sufficiency of that amount, is a question under the ordinance. For myself I am reluctant to determine such a question because I have not the experience of the working of this ordinance that the magistrate has and I may well be unaware of factors of which he would be aware. But as I have said, it would be unreal to send the matter back to him now. This is not a case of my substituting my discretion for that of the magistrate for, in my view, he has not reached the stage where he could properly exercise that discretion. This, I think, is a case where I must do the best I can to exercise my own discretion according to equity and good conscience. The factors I take into account are firstly, the careful explanation which I assume was given to each of the appellants before he entered into his agreement—an explanation in which I must assume the employment officer pointed out all the obligations which the employee was undertaking. I take into account too, the disruption which must be occasioned to the employers plan of work when he is deprived of the services of nine out of a labour line of thirty-five. I am conscious too of the effect that this type of breach of contract might have on the employment of labour for this particular plantation and on the success of the Highland Labour Scheme generally, and of the fact that the employer has incurred expense in obtaining labour for a two year contract when he has only obtained a year’s service.
On the other hand, I think I must assume that these nine men had what to them seemed strong reasons for wanting to leave an area where one of their group or clan had met his death. They all came from an area where death from snake bite is practically unknown and it may well be that the death of their companion induced in each of them a quite reasonable fear of the area. I consider too the fact that each of the appellants had given something over a year’s service and wages were due to him for his labour. The acquisition of cash to take back to his village was, I think, probably the strongest motivating factor in his deciding to leave his area for the unknown. Exercise of a discretion in a particular way and in a particular set of circumstances is not to be and cannot be regarded as laying down any norm to be followed in other circumstances. Doing the best I can I would not regard it as unreasonable for each of these appellants to take home the cash sum of $10.00 to his village. To achieve this result the employer would be entitled to deduct $23.52 from the wages due to each and I would so determine. This means that I allow each appeal and in lieu of the magistrate’s award I assess the amount of additional out-of-pocket expenses incurred by the employer at $24.60 and award to the employer an amount of this sum which I determine at $23.52 and authorize the employer to retain that amount out of the deferred wages due to each appellant.
Appeal allowed. Amount to be retained assessed.
Solicitor for the appellants: W. A. Lalor, Public Solicitor.
[ccxxvi]* The relevant portions of ss. 49, 50 and 164 of the Native Employment Ordinance 1958-1966 provide:
“49(1) A court may, on the application of the employer terminate an agreement with an agreement worker on the ground that the employee, during the term of the agreement:
(a) has been convicted of an offence against or in contravention of this Ordinance or any other law in force in the Territory or a part of the Territory in relation to the employment;
(b) has been imprisoned for a period exceeding seven days;
(c) has been negligent or careless in the discharge of his duties to the employer under the agreement, this Ordinance or any other law in force in the Territory or a part of the Territory;
(d) has disobeyed a lawful order;
(e) has been absent from work without leave or reasonable excuse; or
(f) has committed any act or omission such as would, if committed by a servant, justify the termination of a contract of service by a master.
“50(1) Where a court terminates an agreement under the last preceding section on account of a wrongful act or default of the agreement worker, it may award to the employer such amount as it determines of any additional out-of-pocket expenses, as assessed by it, as are reasonably caused or to be caused to the employer by reason of:
(a) the wrongful act or default; or
(b) the early determination of the agreement,
and may, subject to the provisions of Section 52 of this Ordinance, authorize the employer to retain that amount (or such part of that amount as may be retained) out of any deferred or other wages due to the worker.
(2) An amount awarded under this section shall, subject to the next succeeding section, be deemed to be a judgment debt against the worker.
“164(1) In determining any question (other than in a criminal proceeding) under this Ordinance, a Court shall be guided by equity and good conscience and is not bound by rules of evidence or legal procedure.
(4) For the purposes of this section. ‘Court’ means the Supreme Court, a District Court or a Court of Petty Sessions.”
[ccxxvii][1824] EngR 886; (1824) 2 Bing. 344, at p. 348; [1824] EngR 886; 130 E.R. 338, at p. 339.
[ccxxviii](1912) 23 W.A.L.R. (I.C.) 13.
[ccxxix][1914] HCA 15; (1914) 18 C.L.R. 54, at p. 72.
[ccxxx][1896] A.C. 245.
[ccxxxi][1924] Q.S.R. 1.
[ccxxxii][1939] Q.S.R. 90.
[ccxxxiii] (1961) 78 W.N. (N.S.W.) 6.
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PNGLR/1967/136.html