Lahui Magini v The Central Provincial Government (2003) N2468

• Jurisdiction: Papua New Guinea
• Judge: Sakora J
• Judgment Date: 26 September 2003
• Court: National Court
• Citation: (2003) N2468
• Year: 2003
• Judgement Number: N2468

Full Title: Lahui Magini v The Central Provincial Government (2003) N2468

National Court: Sakora J

Judgment Delivered: 26 September 2003

N2468

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 353 of 2000

BETWEEN

LAHUI MAGINI

Plaintiff

AND

THE CENTRAL PROVINCIAL GOVERNMENT

Defendant

Waigani : Sakora J

2002 : 21 February

2003 : 26 September

Employment Law – Contrast of Employment – Oral – Draft written contract – Terms and Conditions of – Non-payment – Employment Act –Public Services (Management) Act – National Court Rules ; O. 4, r. 31.

J B Nanei for Plaintiff.

J Goava for the Defendant.

26 September 2003

SAKORA J: This matter came before me on 21 February 2002 as an application pursuant to a Notice of Motion filed with an Originating Summons on 4 July 2000 seeking orders in respect of a claim for payment of certain entitlements under terms and conditions of an oral contract of employment. There is no dispute as to the existence of an oral agreement between the parties for the plaintiff to be engaged to provide professional services of a specified kind to the defendant government for reward. The only issue here is as to whether or not the allowances the plaintiff claims here were in fact part of his entitlements in the agreed terms and conditions of employment.

The plaintiff is an architect by profession having graduated from the University of Technology, Lae, on 25 November 1983 with the degree of Bachelor of Architecture and Building. He is duly registered as a practising architect under the Architects (Registration) Act 1989. On 6 April 1998 the plaintiff commenced employment with the defendant as a Provincial Architect at Architect Class 4 level. Before being thus engaged, an interview for the position was conducted by two senior officers of the defendant: the Manager of Works and the Provincial Administrator.

The plaintiff’s claim is for accommodation entitlement and transport allowance under the agreed terms and conditions of his employment. He claims that he had been paid K200 per week allowance for accommodation until this was ceased on 30 June 1999; transport allowance was never paid as agreed at the rate of K100 per week. Thus he claims entitled to be paid the sums of K14,600.00 and K11,400.00 respectively due and owing up to 30 November 2000, the date upon which he took up a new position with the National Public Service.

It would appear that after the plaintiff filed this proceedings on 4 July 2000, the defendant had served on him on 21 August 2002 notice of termination of services dated 2 August 2000. The termination was to take effect from close of business 25 August 2002. I return to these events later in any judgment.

When the matter came before me the Originating Summons did not appear to me to demonstrate any cause of action, but merely sought declaratory order and what appeared to be an order in the nature of mandamus. A perusal of the file indicated that the defendant’s lawyers filed a Notice of Motion seeking directions and orders under O. 4, r. 31 of the National Court Rules (NCR) for pleading the case. The application was not proceeded upon and determined. Nevertheless, the plaintiff had filed on his behalf his Statement of Claim with detailed claims in anticipation of orders for pleading.

I have considered what has and has not happened in relation to progressing the plaintiff’s application and, under the circumstances I am satisfied, firstly, that with the Originating Summons and its defects (absence of a cause of action), a Court properly seized of jurisdiction would have directed the plaintiff to “convert” (take necessary action to) the Originating Summons into a process demonstrating a proper cause of action such as would be done in, for instance, a writ of summons. Then, pursuant to such orders and directions under O. 4, r. 31 NCR, the case could have proceeded to be heard and determined.

So I make or give those directions and orders now, and accept the plaintiff’s Statement of Claim filed 2 May 2001 as sufficient compliance with those directions pursuant to O. 4, r. 31 (1), (2) and (3) NCR. And pursuant to O. 4, r. 31 (3) (b), I direct further that the parties file any affidavits not already filed in respect of their cases and that evidence in this case will be given by affidavits and orally (only where notice of intention to cross-examine a deponent has been duly filed and served).

The Evidence

In support of the plaintiff’s case, four (4) affidavits have been filed and relied on. These are affidavits sworn by the plaintiff himself and identified as follows:

· Exhibit “A” – sworn 30 June and filed 4 July 2000;

· Exhibit “B” – sworn and filed 22 August 2000;

· Exhibit “C” – sworn and filed 8 December 2000; and

· Exhibit “D” – sworn 2 and filed 5 February 2001.

The defendant has had two (2) affidavits filed on its behalf. These are identified as follows:

· Exhibit “A”- sworn by Buga Gulaga on an undated day and filed 7 August 2000.

· Exhibit “B” – sworn by Buga Gulaga on 20 and filed 22 September 2000.

The plaintiff’s case is that the position was verbally offered and accepted on the following terms and conditions:

· Salary at K20,800.00 per annum;

· Accommodation allowance at K200.00 per week; and

· Vehicle/transport allowance at K100.00 per week.

He asserts that the oral contract was for an initial period of two (2) years, renewable thereafter on a two (2) year basis. Subsequently the plaintiff was given a draft written contract by the defendant, and this was returned after perusal for the final draft. But nothing further took place on the draft. In the meantime, all other terms and conditions of the employment agreement were being honoured by the defendant with the exception of the K100.00 per week allowance for transport. It is further asserted that the housing allowance ceased at the end of June 1999 without any reasons or explanations being offered to him.

The plaintiff’s initial period of two (2) years employment expired on 6 April 2000, and as agreed he went onto his second two (2) year term without any changes. As noted earlier it was on this second term that he instituted legal proceedings in respect of the two allowances. In support of his claim the plaintiff has annexed to his affidavit (Exhibit “A” supra) Annexure “B” which is a letter from the Provincial Administrator (Mr Vari Fore) to the Acting Provincial Administrator dated 24 May 1999 in respect of the engagement of the plaintiff, the contract of employment that had not been finalised, with what appears to be the final instruction or directive in the following terms:

Mr L. Magini should be paid his entitlements as if he has signed the contract because he has been providing the services. (underlining mine)

This letter had copies minuted to the following officers/persons: Manager Division of Human Resources Development; Provincial Legal Officer; and the Secretary, Department of Personnel Management. The letter was in relation to the plaintiff’s rental accommodation, referring to it as:

In that contract he was to have received accommodation allowance.

There was no mention of any entitlement to transport or vehicle allowance in that letter. The plaintiff’s Exhibit “B” is his affidavit sworn 22 August 2000. This affidavit deposes to the termination of his employment pursuant to the service on him on 21 August 2000 of a copy of the notice of termination of service dated 2 August 2000 under the hand of Dr Sibona Kopi, the Provincial Administrator.

Plaintiff’s Exhibit “C” is his own affidavit also sworn and filed 8 December 2000. He deposes that on 30 November 2000 he took up a new employment with the Public Service, thereby ceasing his employment with defendant provincial government. His new appointment is described as Provincial Architect Grade 12 (Annexure “A” to the affidavit is a letter dated 21 November 2000 from the defendant’s Assistant Manager – SDT in the Human Resource Management). Annexure “A” confirms the permanent appointment within the defendant provincial government. Further confirmation is offered by the defendant’s lawyers in their 23 November 2000 letter to the plaintiff’s lawyer (Annexure “B”).

Evidence put before the Court and relied upon in support of the defence consists of the two affidavits by Buga Gulaga (supra). The deponent is the Manager of the Division of Human Resources Development, directly responsible for employment and personnel matters of the defendant. His depositions confirm much of what the...