Lucy Valentina Paru v Milinda Kotigama

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 01 October 2015
• Citation: (2015) N6089
• Court: National Court
• Year: 2015
• Judgement Number: N6089

Full : HRA NO 194 OF 2015; Lucy Valentina Paru v Milinda Kotigama, National Sales Manager, Bmobile-Vodafone and Bmobile-Vodafone (2015) N6089

National Court: Cannings J

Judgment Delivered: 1 October 2015

N6089

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 194 OF 2015

LUCY VALENTINA PARU

Plaintiff

V

MILINDA KOTIGAMA,

NATIONAL SALES MANAGER, BMOBILE-VODAFONE

First Defendant

BMOBILE-VODAFONE

Second Defendant

Waigani: Cannings J

2015: 29 September, 1 October

PRACTICE AND PROCEDURE – application for dismissal of proceedings – National Court Rules, Order 12, Rule 40 (frivolity etc) – whether an application for enforcement of human rights disclosed no reasonable cause of action, was frivolous or vexatious or an abuse of process.

The defendants applied for dismissal of a human rights enforcement application by the plaintiff, who argued that the defendants terminated her employment in a way that infringed a number of her human rights.

Held:

(1) The defendants failed to prove that the proceedings failed to disclose a reasonable cause of action or that the proceedings were vexatious or an abuse of process.

(2) However, the application was upheld and the entire proceedings were dismissed as the proceedings were “frivolous”, for the purpose of Order 12, Rule 40(1)(b) of the National Court Rules, in the sense that the plaintiff had no reasonable prospects of success, and the continuance of the proceedings would have no practical utility.

(3) It is conceivable that in an extreme case of maltreatment of a dismissed employee by an employer, the dismissed employee would be able to prove a breach of human rights, in particular the right of protection against harsh or oppressive or other proscribed acts under Section 41 (proscribed acts) of the Constitution. However, in this case, the allegations of the plaintiff as to how she was dealt with, even if sustained, are not capable of supporting a finding of a breach of Section 41 or of any other human right recognised by the Constitution.

Cases cited

The following cases are cited in the judgment:

Kiee Toap v The State (2004) N2731

Petrus and Gawi v Telikom (2006) N3373

Rex Tomara v Ok Tedi Mining Ltd (2014) N5821

Ronny Wabia v BP Exploration Co Ltd and Others [1998] PNGLR 8

Counsel

L V Paru, the plaintiff, in person

J Brooks, for the Defendants

1st October, 2015

1. CANNINGS J: This is a ruling on a motion filed on 4 September 2015 by the defendants, Milinda Kotigama and Bmobile-Vodafone, by which they seek dismissal of the entire proceedings.

2. The proceedings were commenced by the plaintiff, Lucy Valentina Paru, as an application for enforcement of human rights. Ms Paru was employed by Bmobile-Vodafone as an account executive from 21 May 2014 to 1 June 2015 when her employment was terminated.

THE PLAINTIFF’S CLAIMS

3. She alleges that in terminating her employment, Bmobile-Vodafone and its national sales manager, Milinda Kotigama, breached her human rights, in particular:

· right to life (Constitution, s 35);

· freedom from inhuman treatment (Constitution, s 36);

· protection of the law (Constitution, s 37);

· liberty of the person (Constitution, s 42);

· freedom of conscience, thought and religion (Constitution, s 45);

· freedom of expression (Constitution, s 46);

· freedom of employment (Constitution, s 48);

· freedom of information (Constitution, s 51);

· equality of citizens (Constitution, s 55).

4. She claims, through her human rights enforcement application form and in a supporting affidavit and in oral testimony given at the hearing of the motion for dismissal of the proceedings, that the defendants dealt with her harshly, abruptly and terminated her employment without notice or explanation or good reason. She was performing her duties exceptionally well. She says that she is a single mother of four children and the termination of her employment and the manner in which she was treated has left her stressed, emotionally and financially. She is greatly concerned about the welfare of her children.

5. She says that she was called in to see the human resource adviser, Christopher Taukuro, at 3 pm on 1 June 2015 and he told her bluntly her services were no longer required. She was given no notice. She was not told she had done anything wrong. She was not charged. She had no chance to respond to the proposal that her employment be terminated. She also claims that she was not employed under a proper contract of employment and that no fixed term of employment was specified when she commenced employment. The defendants delayed by some months paying her contractual entitlements, and this added to the hardship she has endured.

MOTION FOR DISMISSAL

6. The motion is brought under Order 12, Rule 40(1) (frivolity etc) of the National Court Rules, which states:

Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) no reasonable cause of action is disclosed; or

(b) the proceedings are frivolous or vexatious; or

(c) the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

7. The defendants assert that all of the grounds of dismissal prescribed by Order 12, Rule 40(1) apply. These proceedings:

· disclose no reasonable cause of action;

· are frivolous;

· are vexatious; and

· are an abuse of process.

8. Mr Brooks, for the defendants, submits that, though the plaintiff feels genuinely aggrieved by what has happened to her, she has been dealt with lawfully and fairly by the defendants. No breach of the contract of employment has been committed, and none has actually been alleged. The plaintiff’s concern is as to breach of her human rights, but any objective assessment of the facts will reveal that the defendants have not come close to breaching her human rights.

9. In any event, Mr Brooks submitted, the termination of any person’s contract of employment is governed by private law rights and obligations, which are found in the underlying law and in statutes such as the Employment Act, not in the provisions of the Constitution that create and provide for the enforcement of human rights. Mr Brooks also asked the court to take into account the parlous financial status of the second defendant, evidence of which was given in the oral testimony of the company’s regulatory and compliance manager, Angin Wape, and the adverse publicity of these proceedings on social media, which has the potential to destroy the company’s viability and the future of its proposed joint venture with the Vodafone corporation.

DO ANY GROUNDS FOR DISMISSAL EXIST?

10. The defendants have not proven that the proceedings fail to disclose a reasonable cause of action as an alleged breach of any human right specified in Division III.3 of the Constitution is a cause of action recognised by Section 57(1) of the Constitution. The plaintiff has alleged a breach of nine discrete rights. That is sufficient.

11. The proceedings are not vexatious. Proceedings are vexatious where the case amounts to harassment of the defendant is being improperly put to the trouble and expense of defending proceedings which are either a sham or which cannot possibly succeed (Ronny Wabia v BP Exploration Co Ltd and Others [1998] PNGLR 8). This is not such a case.

12. The proceedings are not an abuse of process. An abuse of process occurs when a party uses a wrong court process or acts improperly by trying to use court proceedings for an improper purpose. Here the plaintiff is an individual citizen with a genuine grievance who has filled out and filed in the National Court Registry a form, and thereby commenced a human rights enforcement application. She has done exactly as people in her position are encouraged to do by the making of the Human Rights Rules by the Judges in 2010. She is not abusing the Rules of Court. I reject Mr Brooks’ submission that the law as to termination of employment is governed only by private law and legislation such as the ...