Mark Ankama v Papua New Guinea Electricity Commission (2002) N2362

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 23 October 2002
• Court: National Court
• Citation: (2002) N2362
• Year: 2002
• Judgement Number: N2362

Full Title: Mark Ankama v Papua New Guinea Electricity Commission (2002) N2362

National Court: Kandakasi J

Judgment Delivered: 23 October 2002

1 PRACTICE AND PROCEDURE—Proper mode of commencement of proceedings—Writ of Summons mode used to seek reinstatement by dismissed employee—Reinstatement not an available remedy subject to specific legislation—Dismissal effected after all administrative procedures exhausted—Judicial review of decision to terminate could have been appropriate remedy subject to leave being granted—No application for review and leave for review sought—Only remedy to sue for damages for unlawful or wrongful dismissal.

2 PRACTICE AND PROCEDURE—All issues in a case should be dealt with together to minimise cost, time and inconvenience of parties and witnesses—The practice of separate trials should not be encouraged except in very complex cases—Parties should settle all matters out of court and go to trial only on succinct issues—Counsel should assist the Court with a good opening to get the Court to stay focused.

3 EMPLOYMENT CONTRACT—Termination of employment contract—Dishonesty ground for dismissal—Dishonestly claiming and receiving higher duty allowances without proper authorisation—Prior record of dishonestly applying employer's property to own use—Employment lawfully terminated—Action dismissed—s36 Employment Act 1978—s12 Electricity Commission Act 1961.

4 Robinson v National Airlines Commission [1983] PNGLR 476, Gideon Barereba v Margaret Elias (2002) N2197, Public Officers Superannuation Fund Board v Sailas Imanakuan (2001) SC677, Ome Ome Forests Ltd v Ray Cheong (2002) N2289, National Airline Commission, trading as Air Niugini v Lysenko [1986] PNGLR 323, Yooken Pakilin and Alvis Kandai v The Independent State of Papua New Guinea (2001) N2212 and Bank of Hawaii (PNG) Ltd v PNGBC (2001) N2095 referred to

___________________________

N2362

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 955 OF 1999

BETWEEN:

MARK ANKAMA

Plaintiff

AND:

PAPUA NEW GUINEA ELECTRICITY COMMISSION

Defendant

KANDAKASI, J.

2002: 23rd August

23rd October

PRACTICE & PROCEDURE – Proper mode of commencement of proceedings – Writ of Summons mode used to seek reinstatement by dismissed employee – Reinstatement not an available remedy subject to specific legislation – Dismissal effected after all administrative procedures exhausted – Judicial review of decision to terminate could have been appropriate remedy subject to leave being granted – No application for review and leave for review sought – Only remedy sue for damages for unlawful or wrongful dismissal.

PRACTICE & PROCEDURE – All issues in a case should be dealt with together to minimize cost, time and inconvenience of parties and witnesses – The practice of separate trials should not be encouraged except in very complex cases – Parties should settle all matters out of court and go to trial only on a succinct issues – Counsel should assist the Court with a good opening to get the Court stay focused.

EMPLOYMENT CONTRACT – Termination of employment contract – Dishonesty ground for dismissal – Dishonestly claiming and receiving higher duty allowances without proper authorisation – Prior record of dishonestly applying employer’s property to own use – Employment lawfully terminated – Action dismissed – s.36 Employment Act 1978 – s. 12 Electricity Commission Act 1961.

Cases Cited:

Robinson v. National Airline Commission [1993] PNGLR 476.

Gideon Barereba v Margaret Elias (Unreported judgement delivered on 15/02/02) N2197.

Public Officers Superannuation Fund Board v. Sailas Imanakuan (Unreported judgement) SC 677.

Ome Ome Forest Ltd v. Bill Garey & Ors (2002) N

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

Yooken Pakilin and Alvis Kandai v. The Independent State of Papua New Guinea (2001) N2212.

Bank of Hawaii (PNG) Ltd v PNGBC (2001) N2095.

Counsel:

Mr. D. Uyassi for the Plaintiff.

Ms. L. Maru for the Defendant.

23rd October 2002

KANDAKASI, J: This is a claim in damages for an alleged unlawful dismissal of the plaintiff (Mr. Ankama) by the defendant (ELCOM) following disciplinary actions allegedly for receiving higher duty allowances unlawfully.

Preliminary

Initially, Mr. Ankama was seeking reinstatement of his employment with ELCOM on the basis that his employment with ELCOM was unlawfully terminated. At the outset of the trial, I inquired with Mr. Ankama’s counsel as to whether, his client was entitled to such a relief. I proceeded on the well-established legal principle that subject only to specific legislation reinstatement is not an available remedy once an employment relationship has ended. Andrew J in Robinson v. National Airline Commission [1993] PNGLR 476 succinctly stated the relevant principles at 478:

“It is true that the rights of the plaintiff lie at law by way of an action for wrongful dismissal, assuming the dismissal to be unlawful. In a suit between master and servant in which the servant seeks to prevent the master suspending or dismissing him, the Court will not interfere. If it is a suit for a declaration that the service continues, again in the case of an ordinary relationship of master and servant, the Court will not interfere. Equity will not compel either master or servant to continue a personal relationship which has become noxious to either one of them: See Howes v. Gosford Shire Council [1962] NSWR 58.”

These principles have been adopted and applied in many judgements with the latest by my brother Justice Sevua in Gideon Barereba v Margaret Elias (Unreported judgement delivered on 15/02/02) N2197.

Counsel for Mr. Ankama decided to abandoned the claim for reinstatement and instead proceed with the trial for a claim in damages instead. In view of the law on point the plaintiff’s lawyer was correct in abandoning his client’s claim for reinstatement.

The trial therefore, proceeded only on the issue of liability. Prior to that happening, neither of the counsels informed me that, that was the case. I proceeded under the impression that both the issue of liability and damages were being tried. This highlights a practice by some lawyers these days of not presenting the Court with an opening address and separating trials on liability and damages when there is no real need for it.

As the Supreme Court said in Public Officers Superannuation Fund Board v. Sailas Imanakuan (Unreported judgement) SC 677 at p. 24, all disputes and or conflicts between people are capable of settlement out of Court. Thus only matters that can not settle after all serious efforts toward that should go to the Courts with agreement on almost everything except of the points in real contest. This should produce succinct issues for trial in the Courts. A good opening would then be able to assist the Court to focus its mind on the real issues for trial and come up with a judgement on it. No doubt, this would save a lot of time, money and inconvenience for all of the parties involved, including the Courts.

It should necessarily follow from this that, unless a matter is so complex and complicated which requires much more time, energy and effort to resolve, both the issues of liability and damages should be dealt with together. This would help eliminated duplication of costs for the parties, recalling of all or some of the witnesses and taking up of more judicial time and eliminate the need for two judgements on the one matter.

Issue

The only issue for me to determine in this case is whether Mr. Ankama was lawfully disciplined and eventually terminated? If I find that he was lawfully disciplined and terminated, that will be the end of the matter. If I find to the contrary, then the parties will take up the issue of damages themselves with a view to settling out of Court.

Evidence

The parties agreed to a trial by affidavit mainly with only one cross-examination. The cross-examination was that of Mr. Ankama by ELCOM. The affidavits before me by consent of the parties are the affidavits by:

1. Mr. Ankama sworn on 3rd July 2001;

2. Mr. Ankama sworn on 12th November 2001;

3. Mr. Ankama sworn on 12th November 2001;

4. Mr. Ankama sworn on 12th November 2001;

5. Maera Raepa sworn 27th June 2000;

6. Rex Ila sworn 11th October 2001;

7. Gime Saga sworn 24th October 2001;

8. Numana Kila sworn 15th October 2001;

9. Gabriel Waiut sworn 16th October 2001; and

10. Gabriel Waiut sworn 8th November 2001.

Facts

From these evidences the facts are these. Until his termination on 13th November 1998, Mr. Ankama was an employee of ELCOM. He was...