Lawrence Sausau v Joseph Kumgal—The General Manager PNG Harbours Board and PNG Harbours Board (2006) N3253

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ
• Judgment Date: 19 December 2006
• Court: National Court
• Citation: (2006) N3253
• Docket Number: OS NO. 717 OF 2000(JR)
• Year: 2006
• Judgement Number: N3253

Full Title: OS NO. 717 OF 2000(JR); Lawrence Sausau v Joseph Kumgal—The General Manager PNG Harbours Board and PNG Harbours Board (2006) N3253

National Court: Injia, DCJ

Judgment Delivered: 19 December 2006

N3253

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 717 OF 2000(JR)

BETWEEN:

LAWRENCE SAUSAU

Plaintiff

AND:

JOSEPH KUMGAL – THE GENERAL MANAGER

PNG HARBOURS BOARD

First Defendant

AND:

PNG HARBOURS BOARD

Second Defendant

Waigani: Injia, DCJ

2006: 19 December

JUDGMENT NO. 1

JUDICIAL REVIEW – Ground of review – Denial of natural justice – Disciplinary dismissal –Public employee’s right to be heard by Disciplinary Appeals Panel before dismissal – Denial of right – Dismissal quashed – Appropriate Relief – Contract of Employment for fixed term expired - Damages only.

JUDICIAL REVIEW – PRACTICE AND PROCEDURE – Statement filed under Order 16 r 3 – Purpose of Statement – Pleading of damages – Particulars of damages not required to be pleaded in the Statement – Evidence on damages may be heard at the trial – National Court Rules, O. 16 rr 3, 7; O 8 rr 29, 30, 32, 33, 34 & 36.

JUDICIAL REVIEW – PRACTICE AND PROCEDURE – Grounds of review – breach of s 23, 37, 41 & 48 of the Constitution – Not proper grounds for judicial review.

PNG Cases cited:

Brian Hudson v The Independent State of Papua New Guinea [1985] PNGLR 303;

David Nelson v Patrick Pruaitch (2004) N2536;

Ereman Ragi & Ors v Joseph Maingu [1994] SC 459;

Harding v Teperoi Timbers Pty Ltd [1988] PNGLR 128;

John Kombati v Fun Singin (2004) N2691;

Luke Supro v Telikom PNG Ltd [1997] PNGLR 353;

Lysenko v National Airline Commission trading as Air Niugini [1988 – 89] PNGLR 69;

Malloch v Aberdeen Corporation [1971] 1 WLR 1578 at 1581

MVIT v John Etape [1994] PNGLR 596;

MVIT v James Pupune [1993] PNGLR 370;

National Airline Commission trading as Air Niugini v Lysenko [1986] PNGLR 323;

Sullaiman v PNG University of Technology [1987] N610;

Young Wadau v PNG Harbours Board & Ors [1995] SC 489.

Overseas Cases cited:

Wallace v United Grain Growers Ltd [1997] 152 DLC (4th) 1, at 31

Counsel:

C. Narokobi with V. Narokobi, for the Plaintiff

J. Aisa (Jnr), for the First Defendants

19 December, 2006

1. INJIA, DCJ.: This application for judicial review is made under O.16 r.5(2) of the National Court Rules.

Relief claimed and grounds relied upon:

The Plaintiff seeks orders as follows:

“1. An order in the nature of certiorari to remove into this Honourable Court and quash the decisions made on or about 28th November 1996 by the defendants to terminate the employment of the Applicant.

2. A declaration that the defendants’ action was harsh and oppressive or unlawful within the meaning of s.41 of the Constitution in that the plaintiff was terminated on charges that were never determined and as such null and void.

3. A further declaration that the said decision of the defendants were a denial of natural justice within the meaning of s.59 of the Constitution in that the plaintiff was not given a fair and just hearing relating to the charges laid against him.

4. That the plaintiff was denied the opportunity to appeal the decision of the defendants to terminate his Contract of Employment and in failing to do so was denied his right of protection of law within the context of s.37 of the Constitution.

5. The defendants had powers and duties within the meaning of s.23 of the Constitution and failed to act accordingly.

6. The actions of the defendants have denied the plaintiff his right to freedom of choice (upon) the expiry of the three (3) year term of his contract as stipulated in his Contract of Employment.

7. That the defendants’ action was a breach of contract in that the Plaintiff was terminated before the expiry of the three (3) year term of his contract as stipulated in his Contract Employment.

8. That the defendants’ action was a breach of contract within the meaning of Clause 1.7 of the plaintiff’s Contract of Employment in that he was completely terminated from the PNG Harbours Board’s employment when it was stipulated in Clause 1.7 of his Contract of Employment that the plaintiff would continue employment with the Board in position other than that he occupied on contract, otherwise he was to serve as a redundant officer of the Board.

9. That the first defendant had acted ultra-vires his power in dismissing the plaintiff from his employment in that he had no power to terminate the plaintiff’s Contract of Employment until the charges against the Plaintiff when determined by the Board.

10. That the defendants were biased in their deliberation for the renewal of the plaintiff’s Contract of Employment in that they took into consideration charges that were never determined or null and void.

11. That the defendants had breached the Plaintiffs Contract of Employment in that they failed to pay his entitlements for the balance of the contractual term and or failed to pay the 3 months entitlements in lieu of notice.”

2. The grounds relied on as set out in the Statement filed under O.16 r.3

on 16 January 2001 are as follows:-

“A. Constitution:

(i) That the defendants’ action was harsh and oppressive or unlawful within the meaning of s.41 of the Constitution in that the plaintiff was terminated on charges that were never determined and as such null and void.

(ii) That the defendants’ action breached the principle of natural justice within the meaning of s.59 of the Constitution in that the plaintiff was not given a fair and just hearing relating to the charges laid against him.

(iii) That the plaintiff was denied the opportunity to appeal the decision of the defendants to terminate his Contract of Employment and in failing to do so was denied his right of protection of law within the context of s.37 of the Constitution.

(iii) The defendants had powers and duties within the meaning of s.23 of the Constitution and failed to act accordingly.

(iii) The actions of the defendants have denied the plaintiff his right to freedom of choice of employment within the meaning of s.48 of the Constitution.

B. Contract of Employment:

(vi) That the defendant’s action was a breach of contract in that the plaintiff (was) terminated before the expiry of the three (3) year term of his contract as stipulated in his Contract of Employment

(vii) That the defendants’ action was a breach of contract within the meaning of Clause 1.7 of the plaintiff’s Contract of Employment in that he was completely terminated from the PNG Harbours Board’s employment when it was stipulated in clause 1.7 of his Contract of Employment that the plaintiff would continue employment with the board in position other than that he occupied on contract, otherwise he was to serve as a redundant officer of the Board.

(viii) That the first defendant had acted ultra-vires his power in dismissing the plaintiff from his employment in that he had no power to terminate the plaintiff’s Contract of Employment until the charges against the plaintiff were determined by the Board.

(ix) That the defendants were biased in their deliberation for the renewal of the plaintiff’s Contract of Employment in that they took into consideration charges that were never determined or null and void.

(ix) That the defendants had breached the plaintiff’s Contract of Employment in that they failed to pay his entitlements for the balance of the contractual term and/or failed to pay the 3 months entitlements in lieu of notice.”

3. The relief sought in the Statement are distinct from the grounds relied upon and pleaded in the Statement and unless the Statement is amended to plead additional grounds, the plaintiff is restricted to the grounds and relief pleaded therein: O.16 r.6(2). In the present case, no such amendments were sought and granted. Therefore, the plaintiff is restricted to the grounds pleaded in the Statement. There are some new grounds such as failure to give reasons for decision and lack of delegated power raised in Mr Narokobi written submissions but these grounds are not available to the plaintiff to be pursued in this application.

Evidence:

4. The plaintiff’s evidence consists of his affidavit sworn on 5 July 2000 (Exhibit “A”), his affidavit sworn on 20 February 2006 (Exhibit “B”), affidavit of Bonnie Gelu sworn on 22 February 2006 (Exhibit “C”), affidavit of Bonnie Gelu sworn on 8 March 2006 (Exhibit “D”), affidavit of Kevin Yalkwien (Exhibit “E”), affidavit of the Plaintiff sworn on 16 March 2006 (Exhibit “F”), affidavit of Charles Punaha sworn on 20 June 2001 (Exhibit “G”), and affidavit of Camillus Narokobi sworn on 6 December 2005 (Exhibit “H”). Mr Gelu and Mr Yalkwien gave oral evidence.

5. The defendants’ evidence consist of the affidavit of Tau Vini sworn 6 January 2006 (Exhibit “I”) and affidavit of Waisale Tivuka sworn on 29 November 2005 (Exhibit “J”). Mr Kau Vini gave oral evidence.

Admissibility Issues:

(Ruling delivered on 10 April 2006).

6. At the hearing of the application for judicial review, Mr Aisa objected to the tender of two affidavits deposed to by the Plaintiff’s witnesses and Mr K Yalkwien. The basis for the objection is that the affidavits contain evidence on damages, particulars of which were not pleaded in the statement in support of the application for leave (Statement) filed under O.16 r.3 of the National Court Rules (NCR). Mr Aisa relies on O.16 r.7 and cases such as MVIT v John Etape [1994] PNGLR 596 and MVIT v James Pupune [1993] PNGLR 370 which say that a party cannot lead evidence in a trial...