Public Officers Superannuation Fund Board v Sailas Imanakuan (2001) SC677

• Jurisdiction: Papua New Guinea
• Judge: Amet CJ, Gavara–Nanu J, Kandakasi J
• Judgment Date: 09 November 2001
• Citation: (2001) SC677
• Docket Number: SCA No 107 of 1999
• Court: Supreme Court
• Year: 2001
• Judgement Number: SC677

Full Title: SCA No 107 of 1999; Public Officers Superannuation Fund Board v Sailas Imanakuan (2001) SC677

Supreme Court: Amet CJ, Gavara–Nanu J, Kandakasi J

Judgment Delivered: 9 November 2001

SC677

PAPUA NEW GUINEA

[In the Supreme Court of Justice in Waigani]

SCA NO. 107 of 1999

BETWEEN:

PUBLIC OFFICERS SUPERANNUATION

FUND BOARD

-Appellant-

AND:

SAILAS IMANAKUAN

-Respondent-

WAIGANI : AMET CJ, GAVARA-NANU, KANDAKASI, JJ.

2001 : FEBRUARY 23rd

NOVEMEBR 9th

NATIONAL COURT — PRACTICE & PROCEDURE — Application for substitution not on formal notice of motion — Dispensation of requirements of the Rules to do justice — Provisions of s.155 of the Constitution are in addition to powers to dispense under the Rules — Purpose of the Rules is to facilitate fair and prompt determination of disputes — No injustice to party which knew of the basis for the application — Failure to apply for substitution of a party following death of original party does not entitle party liable to a dismissal of action — Constitution s. 155 — National Court Rules (Chp. 38) O.5 rr. 10(1), 11(1)and (2) and 12(1) and (2), O.1 r. 7.

Notice to Admit facts and authenticity of documents critical for the case in the possession of party required to answer — Answer to denying but admit in defence and undertake to produce at trial — National Court Rules (Chp. 38) O. 9 r. 29 and 32.

Notice of Discovery — List of documents omitting documents admitted in defence — Default within the meaning and purpose of rules on discovery — No need to apply for orders for specific or further discovery — Purpose of the Rules of the Court is to facilitate a fair and prompt determination of disputes — Judgement in default properly entered on the issue of liability but not for undamages not liquidated — National Court Rules (Chp. 38) O. 9 r. 15 and O.12 r. 38.

APPEALS — Appeals to the Supreme Court — Hearing de novo — Power to make such orders as the National Court would have but on the records — Conduct of Appellant amounting to abuse of process and most unfair — Ordered to pay all the costs of the other party on solicitor-client basis for both the National and Supreme Court proceedings — Appellant directed to settle claim

CONDUCT OF PARTIES — Purpose and function of the Appellant considered — Established to facilitate prompt pay outs to contributors ceasing employment — Technicalities should not be allowed to step in the way of contributors right to prompt pay outs unless fully explained to the satisfaction of the contributors of the technical requirements and they understand them — Any document signed in ignorance of the technical and or legal requirements can not operate against the contributor

STATUTORY INTERPRETATION — Public Officers Superannuation Fund Act — Established to provided for prompt payment on retirement or ceasing employment.

CONTRACT — Contract between a Statutory Corporation and an individual — Parties on unequal bargaining power — Party with more power obliged to ensure disadvantaged party fully understands the terms of the agreement and effects of words used — A failure to discharge that obligation operates against that party

Cases Cited:

Anthony John Polling -v- Motor Vehicle Insurance (PNG) Trust & Others [1986] PNGLR 228

The South Pacific Post Pty Ltd -v- Ephraim Ikenna Maduabuchi Nwokolo [1984] PNGLR 38

Andrew Kimberi of Paulus & Dowa Lawyers -v- The State SC 545

Aisip Duwa -v- Ronald Moyo Senge [1995] PNGLR 140

Credit Corporation (PNG) Ltd -v- Gerald Jee [1988-89] PNGLR 11

Elkum v- The State and Genbi v. The State [1988-89] PNGLR 662

Kora Gene v. Motor Vehicles Insurance (PNG) Trust [1995] PNGLR 344

Bruce Tsang -v- Credit Corporation (PNG) Ltd [1993] PNGLR 122

Counsels

Mr. A.MacDonald for the Appellant

Mr. S. Tedor, for the Respondent

9th NOVEMBER, 2001

BY THE COURT: This is an appeal by the Appellant ("the Fund") against orders of the National Court in Lae given on the 20th October 1999. The National Court ordered a substitution of the then named plaintiff, Mrs. Taelabuo Imanakuan ("the contributor") by her husband, Mr. Sailas Imanakuan for himself and on behalf of the contributor's children following her death. It also ordered a strike out of the Fund's Notice of Intention to Defend and Defence and ordered judgement in the sum of K48, 658.50. Also interest at 8% per annum (or K10.66 per day), from the date of the issue of the writ (28th May 1997) to the satisfaction of the judgement together with costs were awarded. That was for failure to give full and proper discovery. The failure principally was this. Documents asked to be admitted by a notice to admit facts, which were denied but subsequently admitted in the fund's formal defence with an undertaking to produce them at the trial, were not listed in the list of documents for discovery in answer to a notice of discovery.

No formal or written judgment with reasons for the judgement and or orders was delivered. A transcription of the oral judgment appears at page 124 — 125 of the Appeal Book. It is very brief and is only a restatement of the formal orders. Thus, it is necessary to set out the nature of the case and the chronology of events and facts to appreciate the appeal and the background to it as well as the judgement or orders appealed against.

Nature of the Case and Chronology Events

The contributor was a teacher employed by the Teaching Services Commission ("TSC"). She made contributions from the 14th of February 1974, to the Fund initially to the predecessor to the Fund and later the Fund upon succeeding from its predecessors which were abolished and replaced by the Fund. She ceased contributing in January 1997 when she ceased her employment with the TSC. She rendered about 25 years of service to the TSC and contributed to the Fund during the currency of her employment. Her employment ended because of medical conditions and on the basis of medical advice for her to retire or be retrenched. Soon after ceasing her employment, she lodged a claim with the Fund for a reimbursement or pay out of her entitlements consisting of her own contributions, the State's contributions and the interest accrued on those funds. She made a claim for K48,658.50, which was inclusive of K7, 753.55 being her contributions and the State's contribution plus interests accrued on those funds.

At the time of lodging her claim, she furnished all the relevant documents including the medical reports and or advises recommending her to retire or be retrenched dated 1st May 1996, by Dr. Alphonse B. Rongap. She also included a letter from the TSC dated 29th October 1996, which indicted that she resigned from her teaching position because of her serious medical condition. The Fund took a strict and technical approach coupled with delays caused either by deliberate design or inadvertence. Her case was treated as merely a case of a contributor resigning. That was almost in total disregard of the fact that her medical condition forced her to leave her employment and a publication in the Post Courier on the 22nd of June 1994 ("the 1994 publication") that retirement in situations similar to hers would be regarded as invalid pension. This was significant because the formula to calculate the pay out would be similar to that of a normal retirement which is higher than an early resignation.

The Fund paid a sum of K3, 126.39, which it calculated as the amount the contributor had contributed to the Fund and refused to entertain any other claims save for the State's contribution of about K2, 263.00. Failing an out of court settlement, the contributor issued National Court proceedings to recover what she claimed was her contributions and what was due to her from the State and the Fund in terms of interest on the amounts due and owing.

On the 28th of May 1997, the contributor filed her writ of summons claiming a total of K48, 658.50. The writ of summons was served on the Fund on the 2nd of June 1997. The Fund filed its Notice of Intention to Defend on the 19th June 1997. The Contributor then filed a Notice to Admit Facts and Authenticity of Documents on the 4th July 1997 ("Notice to Admit") and served it on the Fund. The Notice to Admit listed and attached mainly copies of documents, which were lodged with the Fund in early 1997 and the Fund's 1994 publication. On the 23rd July 1997, the Fund filed a Notice Disputing the Authenticity of Documents ("Notice Disputing"). Then some 22 days after the expiry of the time limits for filing of its defence, the Fund filed its...