Peter Kirin and KK Farmers v John Paroda (2004) N2599

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 27 August 2004
• Citation: (2004) N2599
• Court: National Court
• Year: 2004
• Judgement Number: N2599

Full Title: Peter Kirin and KK Farmers v John Paroda (2004) N2599

National Court: Kandakasi J

Judgment Delivered: 27 August 2004

1 APPEALS—PRACTICE AND PROCEDURE—Appeal from District Court—Grounds of Appeal—Pleading of—Must be specific—General or broad ground of appeal stand risk of dismissal—District Courts Act s232.

2 EMPLOYMENT—Informal contract of employment—No contest as to existence of contract—Dispute on terms and conditions of employment—No record of terms noted, kept and produced by employer—Evidence of terms given by employer conclusive—Employment Act (Ch373) s15.

3 AGENCY—Business partner entering into contract with third party—Apparent and ostensible authority—Principle failing to give notice of lack of—Evidence of agency not disputed or rebutted—Agency established—Agents representations binding on principle.

4 David Coyle & 2 Ors v Loani Henao (30/11/00) SC655, State v The Independent Tribunal Ex Parte Sasakila [1976] PNGLR 491, Misima Mines Ltd v Collector of Customs (18/12/03) N2497, Dempsey v Project Pacific Ltd [1985] PNGLR 93, MVIT v James Pupune [1993] PNGLR 370, PNGBC v Jeff Tole (27/09/02) SC694, Jimmy Ono v The State (04/10/02) SC698, Taylor v John Summers & Sons Ltd (1957) 1 WLR 1182 referred to

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N2599

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

APP. NO. 299 OF 2001

PETER KIRIN AND KK FARMERS

Appellants

AND:

JOHN PARODA

Respondent

GOROKA: KANDAKASI, J.

2004: 17th and 27th August

APPEALS – PRACTICE & PROCEDURE – Appeal from District Court – Grounds of Appeal – Pleading of – Must be specific – General or broad ground of appeal stand risk of dismissal – District Courts Act ss. 232.

EMPLOYMENT – Informal contract of employment – No contest as to existence of contract – Dispute on terms and conditions of employment – No record of terms noted, kept and produced by employer – Evidence of terms given by employer conclusive – Employment Act (Chp. 373) s. 15.

AGENCY – Business partner entering into contract with third party – Apparent and ostensible authority – Principle failing to give notice of lack of – Evidence of agency not disputed or rebutted - Agency established – Agents representations binding on principle.

Papua New Guinea Cases Cited:

David Coyle & 2 Ors v. Loani Henao (30/11/00) SC655.

State v The Independent Tribunal Ex Parte Sasakila [1976] PNGLR 491.

Misima Mines Ltd v. Collector of Customs (18/12/03) N2497.

Dempsey -v- Project Pacific Ltd [1985] PNGLR 93.

MVIT v. James Pupune [1993] PNGLR 370.

PNGBC v. Jeff Tole (27/09/02) SC694.

Jimmy Ono v. The State (04/10/02) SC698.

Overseas Cases Cited:

Taylor v. John Summers & Sons Ltd (1957) 1 WLR 1182.

Counsels:

Appellants in Person (Peter Kirin)

Respondent in Person

27th August 2004.

KANDAKASI J: On 30th November 2001, the Goroka District Court entered a K4,050.00 judgment against the Appellants, Peter Kirrin and KK Farmers. That was for alleged unpaid wages or salary on the complaint of the Respondent, Mr Jon Paroda. The District Court found after a trial that, the parties were in an informal employment relationship where the Appellants were the employers and the Respondent was an employee. The District Court also applied the provisions of s.15 of the Employment Act (Ch. 373) and found that it was a term of the contract that the Respondent would be paid K500.00 per fortnight in the absence of the Appellants as employers noting, keeping and producing the relevant records of the terms and conditions of employment.

The decision aggrieved the Appellants and they lodged an appeal to this Court. After all the formalities, the appeal came before me for hearing on 17th August 2004. I heard the appeal on that day and reserved a decision to today.

The Appeal

The Appellants Notice of Appeal pleads three grounds of appeal. These are:

“(i) …[T]here was no credible evidence adduced by the Respondent for the Court to arrive at the conclusion it arrived at.

(ii) …[T]here never existed a legally binding contract between the Appellants and the Respondent for him to be paid K500.00 a fortnight.

(iii) …[T]he calculations made by the Respondents which was upheld by the Court and ordered to be paid by the Appellant were based on wrong principles and the right calculations shall have been based on rates by Department of Labour.”

I am of the view that the first and second grounds require an examination of the evidence adduced before the District Court. I will therefore deal with these grounds together, subject to addressing the issue of competency of the first ground. The third ground is dependant on a decision on the first two grounds. Thus, I will take that up after determining the first two grounds.

(i) First and Second Grounds of Appeal

The first ground of appeal, in my view, is too general. Section 221 (1) requires an appellant to “state the nature of the grounds of appeal”. The law generally requires a party in any Court proceeding to be specific and clear in his or her pleadings. In the case of appeals, the law generally is that, it is not sufficient to allege that the trial judge fell into error. An appellant must state in his statement of the grounds of appeal where and how the trial judge fell into error. The Supreme Court Rules clearly expressed this principle in the context of appeals from the National Court to the Supreme Court.

Order 7 r 8(c) states that a notice of appeal shall “state briefly but specifically the grounds relied upon in support of the appeal”. The next rule, r 9 then states that:

“[I]t is not sufficient to allege that judgment is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law.”

Early judicial pronouncement of this principles appear for example in the case of Taylor v. John Summers & Sons Ltd (1957) 1 WLR 1182. In that case, the notice of appeal simply stated as one of its grounds of appeal that the trial judge misdirected himself. The respondent found it difficult to prepare his case in response and requested further and better particulars. At p. 1184 Jenkins LJ said, referring to counsel’s submission:

“He relies in particular on paragraph 1 of the grounds of appeal:…That the judge misdirected himself in law and on the facts; and he draws an analogy between the particulars required of a motion for a new trial. He has referred us to Pfeiffer v Midland Railway Co.,5 where it was held that:’ A notice of motion for a new trial on the ground of misdirection should state how and in what manner the judge misdirected the jury;’ and it appears from the judgement of Huddleston B. that the only objection stated in the original notice of motion was misdirection. One can appreciate that a general allegation of misdirection, without saying in what respect and the judge misdirected the jury, might well be held (as it was held in that case) to be insufficient.”

His Honour then concluded at p.1185:

“From those authorities it seems to me to be reasonably plain (if authority were needed) that if the only ground alleged in the notice of appeal in the present case had been the first- namely, that the judge misdirected himself in law and on the facts — that, standing alone, would not have been sufficient notice of the grounds of appeal..”

The Supreme Court adopted and applied these...