Andrew Lope v Marril Seeto and Patrick's Transport Pty Ltd (2002) N2281

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 15 August 2002
• Citation: (2002) N2281
• Court: National Court
• Year: 2002
• Judgement Number: N2281

Full Title: Andrew Lope v Marril Seeto and Patrick's Transport Pty Ltd (2002) N2281

National Court: Kandakasi J

Judgment Delivered: 15 August 2002

N2281

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA 3 OF 2000

BETWEEN

ANDREW LOPE

Appellant

v.

MARRIL SEETO

First Respondent

AND

PATRICK’S TRANSPORT PTY LTD

Second Respondent

WAIGANI: KANDAKASI, J.

2002: 15TH AUGUST 2002

Cases Cited:

Gabe v. Clunn [1995] PNGLR 153.

Constitutional Reference No. 1 of 1977 (Sch. 2.3) [1970] PNGLR 295.

The State v. Oa Seseka N921.

The State v. Dobi Ao (No. 2) N2247.

Counsels:

Mr. Mitige for the Appellant.

Mr. Kuman for the Respondents.

This is an appeal from a decision of the Port Moresby District Court given in favour of the Respondents on the 1st day December, 1999. In the District Court the complainant claimed damages for unlawful termination and use of obscene language by the first respondent. The appellant was offered re-employment but he refused to accept the offer. The District Court dismissed the claim despite finding that the respondents admitted to using the alleged obscene language.

When this matter came before me for statutes conference on the 5th of this month, I had directed the parties to closely examine the issues for trial in the appeal prior to the matter returning to me. Pursuant to that direction the appellant has reconsidered its position and decided to abandon all of his grounds of appeal except for the appeal against the decision of the District Court dismissing the claim for damages for the use of obscene language. So the issue before me was whether the learned magistrate erred in dismissing that part of the action.

The relevant part of the appellant’s complaint before the District Court is in paragraph 6 of his Statement of Claim. That reads:

“when accusing him from being away from work or not working, the first defendant called the complainant a ‘stupid ashole, fuck off’ and said this words in very loud voice when there were plenty of customers at the shop doing their Christmas shopping.”

Then in his prayer for relief the complainant claimed in item 3:

“An order that the second defendants pays to the complainant a sum of K10,000.00 being for injuries suffered as a result of the false allegations, offensive comments and remarks and unfair dismissal or being forced off work as a result of the shame, abuses, insult and offensive remarks made to the complainant by the first defendant on behalf of the second defendant.”

The learned District Court magistrate found inter alia that:

“Other (sic) the evidence before the Court, there is no dispute that there was an incident on the 24th of December 1998 at about 3:15 p.m. which lead to the complainant leaving his employment with the defendants. It is admitted by the first defendant that out of frustration and pressure, he told the complainant to have using the commonly used words in “FO.”

…

“I find on the evidence that business managers have the reputation to be aggressive with the words they used. I find that with the complainant’s long association with the defendant, he was family (sic) with them.”

The respondents have accepted this decision or findings. They have not raised any argument as to the correctness or otherwise of those findings. It follows therefore that the learned magistrate correctly found that the defendants admitted to using the offensive words that are complained of. However, the learned magistrate seemed to be saying in the last line of the above quotation that because of the appellant’s long association with the defendants those words were familiar. If that is not what the learned magistrate found then he is saying that either the complainant was part of the family or that the words complained of were part of the defendant’s family. Irrespective of what the later part of the learned magistrate’s reasoning could mean, there is one thing clear. The first respondent used offensive or abusive language against the appellant. Yet he dismissed the claim for damages for that. The Counsel for the respondents Mr. Wagambi conceded to the use of offensive language by his client. He also conceded to the magistrate correctly finding that to be the case in his judgement. Furthermore, he conceded to my suggestion that there should be a consequence for people who use such offensive language, by way of award of damages. In these circumstances, I found that the learned magistrate erred in dismissing the claim for damages for the use of abusive language.

I then asked Counsel for the appellant as to what were his client’s damages. He submitted that his client was injured in his feelings in terms of embarrassment shame and ridicule which lead to his client staying away from work and refusing to be re-employed. Omitting the damages claim for unlawful dismissal, Mr. Mitige argued for damages in the range of K3,000.00 to K5,000.00. He referred to the case of Gabe v. Clunn [1995] PNGLR 153, where an award of K5,000.00 was made for the plaintiff in a case of defamation. He then submitted that a reasonable award of damages for the appellant should be somewhere in the vicinity of K3,000.00 to K5,000.00.

When I asked how could that case be of assistance to his client’s...