Kila Tutura v Joseph Ng and Econ Investment Limited (2005) N2924

• Jurisdiction: Papua New Guinea
• Judge: Gavara–Nanu J
• Judgment Date: 21 October 2005
• Court: National Court
• Citation: (2005) N2924
• Docket Number: WS 844 of 2001
• Year: 2005
• Judgement Number: N2924

Full Title: WS 844 of 2001; Kila Tutura v Joseph Ng and Econ Investment Limited (2005) N2924

National Court: Gavara–Nanu J

Judgment Delivered: 21 October 2005

N2924

PAPUA NEW GUINEA

[National Court of Justice at Waigani]

WS 844 of 2001

BETWEEN

KILA TUTURA

Plaintiff

AND

JOSEPH NG

First Defendant

AND

ECON INVESTMENT LIMITED

Second defendant

Waigani: Gavara-Nanu, J

2002: 8th August

2004: 20th & 22nd October

2005: 21st October

CIVIL LAW – Practice & Procedure – Default judgment – Default judgment entered against defendants – Liability not an issue – Defendants raising and relying upon matters relating to the issue of liability – Plaintiff not objecting to such matters – Power of the Court to exclude such matters from being considered - Defendants effectively having no defence – Plaintiff’s claim effectively undefended – Damages awarded in full upon proof.

Cases cited :

Jonathan Mangope Paraia -v- Jacov Yansuan & 3 Ors N134.

K.L Engineering & Constructions (PNG) Ltd -v- Damasara Forest Products (PNG) Limited & Others N2250.

Keith Reid -v- Murray Hallam and Allcad Pty Limited N1337.

Komaip Trading -v- George Wagulo and The State [1995] PNGLR 165.

Lalip and Ors -v- Fred Sekiot and The State N1457.

Pande Manase -v- Peter Andan and The State N2408.

Papua New Guinea Banking Corporation -v- Jeff Tole S.C 694.

MVIT -v- James Pupune [1993] PNGLR 370.

MVIT -v- Salio Tabanto [1995] PNGLR 214.

Uma More –v- University of Papua New Guinea [1985] PNGLR 401.

Counsel:

Ms A. Nambau for plaintiff.

Mr D. Keta, for defendants.

GAVARA-NANU, J: This case first came before me on 8th August, 2002, for assessment of damages after a default judgment was entered against the defendants on 12th December, 2001. However, the case was part-heard when it was discovered that some of the figures provided by the Department of Labour for plaintiff’s overtime claims required verification.

At the hearing, the plaintiff gave evidence and her two affidavits were also tendered. Mr Herman Gire of the Department of Labour also gave evidence for the plaintiff and it was during his evidence that it was discovered that there were possible errors in the figures put forward for the plaintiff’s overtime claims. The Court therefore directed the parties to go back and discuss the figures and have them verified by the Department of Labour with a view that the parties may settle. The case was adjourned generally and the parties were directed to advise the Court when they were ready. The case was eventually tried fully on 20th October, 2004, after the parties failed to reach a settlement.

Liability is not an issue before the Court as a default judgment was obtained against the defendants. The plaintiff’s claim is for unpaid overtime wages by the defendants. The first defendant is the Managing Director of the second defendant which is a company duly incorporated in Papua New Guinea.

The plaintiff claims that she was employed by the defendants in their VIP Lounge Club in Port Moresby from 18th April, 1996, to 28th November, 1999, when she was terminated.

The plaintiff claims that during her employment, she did overtime work on public holidays, weekends and at nights but she was not paid for her overtime. Thus upon her termination, she filed a complaint with the Department of Labour Industrial Relations Office. That Office subsequently assessed her claims based on the rates prescribed under s. 52 of the Employment Act, 1978. It was determined that the defendants owed the plaintiff K12,646.92?, in unpaid overtime wages. This is the amount the plaintiff is claiming.

It is noted that on 08th April, 2002, the defendants filed a Notice of Motion seeking Orders for the default judgment to be set aside and the matter proceed to trial. That Notice of Motion was filed after the Notice to Set Down for Trial was signed by both parties and filed on 13th February, 2002. I note from the Notice of Motion that it was filed by the first defendant. The reason appears to be that the defendants’ lawyers who at that time were Namaliu and David Lawyers had ceased to act for them on 03rd April, 2002. The defendants never prosecuted that Notice of Motion. The next activity in the case was on 08th August, 2002, when the matter came before me for assessment of damages. The trial was set for half day, but the trial could not be completed because of the reasons given.

It is trite law that although a default judgment was obtained against the defendants, the plaintiff still has to prove her claims. See, Komaip Trading -v- George Wagalo and The State [1995] PNGLR 165, Lalip and Ors -v- Fred Sekiot and The State N1457; K.L Engineering and Constructions (PNG) Ltd -v- Damansara Forest Products (PNG) Timbers and Others N2250; Jonathan Mangope Paraia -v- Jacob Yansuan and 3 Ors N1343 and Pande Manase -v- Peter Andan and The State N2408.

The defendants filed two affidavits, one by the first defendant and the other by a Mr. David Philip. Both affidavits were sworn on 10th October, 2004.

I note from paragraph 17 of the affidavit sworn by the first defendant that he received a letter from the Department of Labour containing outstanding entitlements for the plaintiff. That letter was annexed to his affidavit as Annexure ‘C’. I note in the letter which was dated 5th May 2000, that the amount determined by the Department of Labour was K307.08t, being for the period from 18th April, 1996, as the date the plaintiff commenced her employment with the defendants to 28th November, 1998, as the date of her termination. I further note from the letter that the amount was for plaintiff’s unpaid leave entitlements and some unpaid ordinary wages. It did not include plaintiff’s overtime entitlements.

The letter was addressed to the second defendant and was made attention to the first defendant. The first defendant confirms in his affidavit that he paid the K307.08? to the plaintiff.

On 30th April, 2002, a Notice of Change of Lawyers was filed by Mr. David Keta, who is the current lawyer for the defendants.

The affidavits sworn by the first defendant and Mr. Phillip deny that the plaintiff commenced her employment with the defendants on 18th April, 1996. They also deny that the plaintiff was ever employed by the second defendant. In other words, they say the second defendant has been wrongly joined as a party in these proceedings. The defendants raised and relied upon these materials and the materials are before the Court because no objections were raised by the plaintiff against them. However, these are clearly matters which relate to the issue of liability which is not an issue before the Court as that issue was settled when the default judgment was entered against the defendants on 12th December, 2002. See, Keith Reid -v- Murray Hallam and Allcad Pty Limited N1337. Thus in the exercise of the Court’s inherent powers, the two affidavit materials are excluded from being considered by the Court because they have no relevance to the issues before the Court.

The first defendant and Mr. Phillip also gave oral evidence and that evidence is similar to the matters they deposed in their affidavits. In other words, they raised matters which were relevant to the issue of liability which is not an issue before the Court. Again for the reasons given, this evidence is also excluded from being considered by the Court. Apart from the affidavit and oral evidence by the first defendant and Mr. Phillip being excluded on the basis that they are irrelevant to the issues before the Court, the other reason for their exclusion is that these are matters which were never pleaded by the defendants as no defence was filed by them. As a general rule, matters which have not been pleaded cannot be raised and relied upon, however relevant they might be to the facts in issue. See, Uma More -v- University of Papua New Guinea [1985] PNGLR 401; MVIT-v- Salio Tabanto [1995] PNGLR 214; MVIT -v- James Pupune [1993] PNGLR 370 and Papua New Guinea Banking Corporation -v- Jeff Tole S.C 694.

In any case, it would make no difference because the defendants have by their conduct conceded the two matters they took issue on, namely, the date the plaintiff commenced her employment with them and that the plaintiff was employed by the second defendant. The defendants’ concession of these two matters can be seen from Annexure ‘C’ to the affidavit sworn by the first defendant, which is a letter by the Department of Labour to the first defendant to which I adverted earlier. That letter contained outstanding entitlements for the plaintiff for K307.08t for the period from 18th April, 1996, as being the date the plaintiff commenced her employment with the defendants to 28th November, 1998, as the date of her termination. As noted, the first defendant confirmed in his affidavit that he paid the K307.08? to the plaintiff. Thus by agreeing to pay the amount for the period stated above, the defendants have conceded and acquiesced that the plaintiff was employed and terminated on the above dates. The defendants therefore cannot turn around now and deny that the plaintiff commenced her employment with them on 18th April, 1996. The date of her termination is not in dispute. Also by paying those outstanding entitlements, the defendants, in particular the second defendant had conceded liability to those claims as plaintiff’s employers. The...