Papua New Guinea Harbours Board v Breni Kora (2005) N2834

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ
• Judgment Date: 24 February 2005
• Docket Number: Appeal No 203 of 2001
• Citation: (2005) N2834
• Court: National Court
• Year: 2005
• Judgement Number: N2834

Full Title: APPEAL No. 203 of 2001; Papua New Guinea Harbours Board v Breni Kora (2005) N2834

National Court: Injia, DCJ

Judgment Delivered: 24 February 2005

N2834

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

[AT WAIGANI PAPUA NEW GUINEA ]

APPEAL NO. 203 OF 2001

Between:

PAPUA NEW GUINEA HARBOURS BOARD

-Appellant-

And:

BRENI KORA

-Respondent-

Waigani : Injia, DCJ

2004 : November 10th

2005 : February 24th

District Court – Duty to state decisions and reasons for decision in Court record.

District Court – Is a Court of record and it must keep written records of its decision and reasons for decision – Constitution, s.155(1), s.160(2) & s163(2).

District Court – Practice and Procedure – Res judicata – Magistrate granted judgment on liability on fresh complaint on the same cause of action earlier dealt with by another Magistrate in which judgment on liability and quantum was given and already enforced – Fresh action to litigate un-litigated head of damages in first action – Whether fresh action should be stopped - Principles on res judicata discussed and applied – Appeal allowed – Judgment quashed.

Cases cited in the judgment:

Anonga v Jack Were (2001) N2149.

Anton Angra v Oimbo Security Services Pty Ltd v Tony Ina [1996] PNGLR 303;

Bougainville Copper & Masai Levi v Liu [1978] PNGLR 221;

Henry Aisi v Malaita Hoala [1981] PNGLR 1999;

Francis Mabon v Francis Gesa N314(m) (1981);

Lee v Lee [1973] PNGLR 89;

Nerin Neame v Ovia Namba (2000) N2060;

Sam Toni Orani v Benson Tamean N323(m)(1981);

R Rageau for the Appellant

Respondent in person

24th February 2005

INJIA, DCJ: The Appellant appeals against the decision of the District Court held at Port Moresby, made on 17 August 2001. In that decision, the District Court found the Appellant liable in damages for wrongful dismissal. Damage is yet to be assessed.

There are four (4) grounds of appeal but the main ground pursued by the Appellant is that the Magistrate erred in law in failing to find that the Respondent’s claim was res judicata.

The short facts are that the Respondent was employed on 26 January 1995 by the Appellant as a Storage Clerk. On 25 August 1995, he was suspended from duties following laying of criminal drug trafficking charges against him. On 5 October 1995, he was convicted and sentenced to 12 months imprisonment by the District Court. As a result, the Appellant terminated the Respondent’s employment. On appeal, on 17 April 1996, the National Court quashed the conviction and sentence. But he was not re-employed by the Appellant.

On 27 October 1998, the Respondent filed an action for wrongful dismissal in the District Court at Port Moresby. The relief claimed by the Plaintiff were:-

a) K6,747.37

b) Damages

c) Interest

d) Costs

The total of K6,747.37 was for unpaid fortnightly wages for seven (7) months twenty (20) days from 25 August 1995 to 14 July 1996 (K5,145.76), unpaid pro-rata leave pay for 84 hours for the same period K321.61) and unpaid housing allowance for the same period (K1,280). On 30 December 1998, the District Court entered judgment in the sum of K6,747.37 plus 8% interest plus costs. No order was made for assessment of further damages as claimed under (b) above. The District Court order states:

“1. The Defendant to pay to the Complainant the sum of K6,747.37.

2. Interest pursuant to Judicial Proceedings (Interest on Debts) Act as 8% per annum.

3. The Complainant costs.

4. Any other Orders.”(my emphasis).

On 2 March 2000, the Appellant settled the judgment.

On 5 April 2001, the Respondent filed fresh proceedings for wrongful dismissal, in the same District court, claiming “damages together with interests and costs.” In the Statement of Claim filed on 4 May 2001, the Respondent claimed damages between K10,000 – K12,000. At para. 8 – 11 of the Statement of Claim, he explained the “damages” claim as follows:

“This claim amounting to K10,000 to K12,000.00 is basically for having been done damages to me and the dependents of four (4) due to wrongful dismissal from employment.

The claim is related to the Court Order of 30th December, 1998, which the salary entitlements were already paid to me. Although damages were mentioned in the statement of claim, the Court was not fully aware due to my Lawyer not mentioning in the court proceedings.”

It is clear from the above Statement of Claim that the Respondent took the judgment of 30 December 1998 as disposing of his claim under para. (a), (c) and (d) of the relief sought and the relief sought in (b) is still outstanding, for which he was entitled to commence new proceedings. He blamed his lawyer for not seeking an assessment of further damages from the Court. The Appellant raised the defence of res judicata. The evidence placed before the District Court on the Respondent’s new action was his affidavit sworn on 4 April 2001. The Appellant relied on the affidavit of Timboto Pyapeta, Acting HRD Manager of the Appellant. The Appellant’s counsel also filed a written submissions. Attached to this submission was a written opinion of the Corporate lawyer for the Appellant in relation to the Respondent’s first action. The Respondent also filed a written submissions. The matter was fully argued before the Court. The main issue was res judicata.

On 17 August 2001, the Court handed down its decision. The decision of the Court as appears on the Magistrate’s worksheet is:

“Ct: Findings – Complaint proved. Case adj: to 31/8/01 at 9.30am for assessment of damages”.

The first observation I make about this judgment is that it does not give any reasons for decision. I do not know if any reasons for decision were given. If reasons were given orally, a summary of those reasons are not shown in the notes. If the above statement was all that was pronounced at the time of decision, then it is not a judicial decision based on reasons. The need for Magistrate to give reasons for decision has been expressed many times by this Court in many cases: see Lee v Lee [1973] PNGLR 89; Bougainville Copper & Masai Levi v Liu [1978] PNGLR 221; Anton Angra v Oimbo Security Services Pty Ltd v Tony Ina [1996] PNGLR 303; Henry Aisi v Malaita Hoala [1981] PNGLR 1999; Francis Mabon v Francis Gesa N314(m) (1981); Toni Orani v Benson Tamean N323(m)(1981); Nerin Neame v Ovia Namba (2000) N2060; Sam Anonga v Jack Were (2001) N2149.

The District Court is a Court of record. It is implicit in S.160(2) and S.163(2) of the Constitution, when referring to the National Court and the Supreme Court as “Superior” Courts of record, that the District Court is an “interior” Court of record. Both the two Superior Courts and the District Courts are Courts of National Judicial System: Constitution, s.155 (1). As such, the District court must keep written record of its proceedings for appeal and other administrative purposes. The Magistrate’s decision on the case is an integral, if not the most important, part of the case and it must be fully recorded in writing or by some form of audio recording system if such equipment is available. The practice seems to be that the Magistrate’s decision are recorded in a worksheet provide for that purpose. The Court must record its decisions and the reasons for decisions on the Magistrate’s worksheet or in some other written form.

The Court’s decision comprises of a decision or judgment on the claim or action itself and the reasons for that decision. The reasons for decision is indispensable in every case. It may be a summary in note form or verbatim record of the reasons as pronounced in Court. It is not sufficient to say or record statements of the type above, which I must say, I have seen it frequently in appeals before me. It also makes it difficult for the appeal Court to fully deal with the grounds of appeal. It also hinders the preparation and presentation of the appeal by the parties. A party is entitled to rely on the lack of reasons for decision as ground of appeal, and it is a valid ground of appeal. In such cases, if the Magistrate’s decision is under challenge in the appeal, the Court may infer that a decision without reasons is not a good decision and allow the appeal.

In the present case, the Magistrate’s failure to give reasons for decision, if any, is not a ground of appeal. Therefore, I will assess the evidence and make my own findings: S.230(1)(e) of the District Court Act. The same arguments presented before His Worship were presented before me.

The basic principles on the doctrine of res judicata is set out by the common law. They are canvassed by Amet CJ in Titi Christian v Rabbie Namaliu (1995), Unreported, Un-numbered Supreme Court Judgment in OS No. 2 of 1995. Some of those principles have been re-stated and applied in many cases, a number of which Mr Elemi has quoted to me; such as National Airline Commission v Lysenko [1990] PNGLR 266; AGC (Pacific) Ltd v Sir Albert Kipalan (2000) N1944 and Kundu Consultants Ltd v The State (2001) N2128. Four basic principles emerge from these. In summary in order for the defence of res judicata to succeed, a party relying on the doctrine must show:

1. The parties in both cases are the same.

2. The issues(s) in both cases are the same.

3. The previous judgment extinguished the foundation of the claim or the right to set up the action. The result is final and conclusive and it binds every other Court.

4. A Court of Competent...