Kenneth Winston Bromley v Finance Pacific Limited (2001) N2097

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 16 May 2001
• Court: National Court
• Judgement Number: N2097

Full Title: Kenneth Winston Bromley v Finance Pacific Limited (2001) N2097

National Court: Kandakasi J

Judgment Delivered: 16 May 2001

N2097

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS No. 1578 of 2000

KENNETH WINSTON BROMLEY

-Plaintiff-

V

FINANCE PACIFIC LIMITED

— Defendant-

WAIGANI: KANDAKASI, J.

2001: 14, 16 MAY

MASTER AND SERVANT — Employment Agreement — Unlawful termination of — Measure of damages balance of contract period less failure to mitigate loss — Exemplary damages claimed but not proven — No ward for.

PRACTICE & PROCEDURE — Conduct of proceedings by corporation has to be through a solicitor — Lawyer on record for a corporation ceasing — Failure to appoint new lawyer and provide address for service — Defendant failing to attend trial and contest claim despite having notice of hearing — Such failure does not amount to admission of the claim — Court must hear and determine matter — Court may have regard to matters pleaded and on file and the evidence produced in court before judgement.

Cases Cited

Motor Vehicle Insurance (PNG) Trust -v- James Pupune [1993] PNGLR 370

Abel Kopen -v- The State [1998-89] PNGLR 659

Rooney -v- Forest Industries Council of PNG & Anor[1990] PNGLR 407

Anton John Pinzger -v- Bougainville Copper Ltd [1985] PNGLR 160

Counsels

G. Shepherd for the Plaintiff

No Appearance for the Defendant

16th May 2001

KANDAKASI, J.: The Plaintiff is claiming K2, 474, 986.08 plus other damages including, exemplary damages for an unlawful termination of a written contract of employment with the Defendant ("the contract") on the 13th of November 2000. The contract was for a period of four years commencing the 25th of August 1999. The Defendant denies the claim and pleads in the alternative that, the termination was justified because the Plaintiff misconducted and was unable to perform his duties with due diligence and competence. In his reply the Plaintiff denies those allegations.

Issues

Two main issues with some related issues are presented for determination. That is in addition to some preliminary issues, which have to be determined first. The main issues are, (1) was the contract unlawfully terminated and (2) if so, what are the plaintiff's damages. The preliminary issues concern mainly the Defendant's failure to attend at the hearing and before that, file and serve a Notice of Change of Lawyers and Address for Service after determining its lawyers on the record.

Preliminary issues

After the close of pleadings and interrogatories the parties appeared before his Honour, Justice Sevua and had this matter listed for hearing on the 14 and 15th of this month. The Defendant was notified of the hearing dates. Mr. Hartshorn of Blake Dawson Waldron ("BDW") who appeared on my direction confirmed that in court. I directed Mr. Hartshorn's appearance because there was nothing on file to show whether the Defendant was aware of the hearing date and in what circumstances his lawyers ceased to act. Mr. Hartshorn informed that the defendant determined his firm's services after they had appeared at the call over and obtained the hearing dates and they had informed the Defendant of the hearing dates. He also informed that, his firm filed the notice of ceasing to act under Order 2 r. 38 of the National Court Rules 1983 ("the Rules"). I suggested that in future parties should specify in their notice of ceasing to act the rule or rules under which such a notice is being filed to avoid unnecessary confusions. Mr. Hartshorn was then excused from the hearing of the matter as his firm was no longer the lawyers for the Defendant and as such he had no interest in the matter.

Order 7 r. 1(3) of the Rules provide that a corporation can not file a Notice of Intention to Defendant and take any other step in any proceedings except through a solicitor. Initially, the Defendant complied with that requirement. However, when it terminated the services of BDW, it was obliged to file and serve a notice of change of lawyers and its address for service in line with the provisions of O. 6 r. 7 of the Rules but it failed to do that. This conduct was consistent with the plaintiff's lawyers informing the Court that the Defendant was not contesting the case.

What then should be the consequence against the Defendant, which has filed a defence and has otherwise, complied with all the other requirements of the Rules up to the point of listing the matter for hearing?

Order 10 r. 12 of the Rules provides that, the Court could do any of three things. It could (1) order that the trial be not held unless the matter is again listed for hearing and or (2), adjourn the trial and or (3), proceed with the hearing. Given what Mr. Hartshorn told the Court and the Defendant deciding not to contest the claim against it, I ordered the trial to proceed in the absence of the Defendant in the present case. Before arriving at that decision, I also noted that, the Defendant had ample time and opportunity to instruct a new lawyer if it wished, but it did not do that.

Noting that the particular wording in order 10 r. 12(1)(b) says, "proceed with the trial" I decided to conduct a trial and then make a ruling on the claim. I could not proceed to judgement either summarily or in default of the Defendant's non-appearance because if I did that, it could not come within the meaning of the term trial. The term "trial" as used in the rule in my view, means to "test" or "examine" (see Oxford Advanced Learners Dictionary of Current English) the plaintiff's or the defendant's case, as the case may be. That involves the hearing and or receipt of the relevant evidence to form the basis to determine whether or not to uphold a claim. I was also of the view that, the Defendant's failure to turn up at the trial did not amount to an admission of the claim against it. That is why O.10 r.12 (1) is worded in the way it is. The Plaintiff has to establish his claim in the normal way, minus any cross-examination of the Plaintiff's evidence because of the absences of the Defendant.

The Defendants' claim of the Plaintiff being...