Tolom Abai and 765 Others v The Independent State of Papua New Guinea (1995) N1402

• Jurisdiction: Papua New Guinea
• Judge: Sheehan J
• Judgment Date: 20 December 1995
• Court: National Court
• Citation: (1995) N1402
• Year: 1995
• Judgement Number: N1402

Full Title: Tolom Abai and 765 Others v The Independent State of Papua New Guinea (1995) N1402

National Court: Sheehan J

Judgment Delivered: 20 December 1995

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 819 OF 1994

BETWEEN:

TOLOM ABAI AND 765 OTHERS — Plaintiff

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA — Defendant

Waigani

Sheehan J

20 December 1995

PNG DEFENCE FORCE — Retrenchment — claim for benefits and entitlements — claim for Ex Gratia payment.

Counsel:

Ms E Dirua for the Plaintiffs

Mrs F Wali for the Defendant

JUDGMENT

20 December 1995

SHEEHAN J: Preliminary.

The 766 Plaintiffs are former soldiers of the PNG Defence Force. In these proceedings they assert that there were terminated under a scheme of retrenchment and are now claiming for benefits that are due under their conditions of services as provided by the Defence Force Act ch 74 and the Defence Force Retirement Benefits Act ch 76. They also claim in respect of an ex gratia payments and further compensation for retrenchment awarded to them by direction of the National Executive Council. The Plaintiffs say that the State has failed to pay these and they ask for declarations as to their entitlements as follows:

" (c) A declaration that the Plaintiffs named in Schedule 1 attached to this Writ of Summons are entitled to:

1. Money Owing in Lieu of Recreational Leave Entitlements.

2. Money Owing in Lieu of Furlough Leave Entitlements.

3. Money Owing from the Decision of NEC No 14/91 paragraph 2 authorising Exgratia Payment calculated in accordance with Wagambi and Kupo v Lokingup and Others OS No 58 of 1989 of 7 December, 1990 and the Memorandum of Agreement dated 1 November, 1989 between the Public Service Commission — Public Employees Association paragraph 17 to pay retrenched servicemen an Ex-gratia Payment.

4. Money Owing in the nature of Repatriation Expenses.

5. Money Owing as a result of other Out of Pocket Expenses, as particularised in respect of each Plaintiff in Schedule 4 attached to this Writ of Summons.

6. Money Owing in the nature of Loss of Pay due to premature discharge from the Defence Force.

7. Money Owing from the decision of the NEC No 54/91 paragraph 2 to improve the level of benefit payable by an addition of a Hardship Allowance.

8. Money Owing from the decision of Brown J in Wagambi and Kupo v Lokingup and Others OS No 58 of 1989 of 7 December 1990 and the Memorandum of Agreement dated 1 November 1989 between the Public Service Commission — Public Employees Association paragraph 17, NEC decision No 14/93 paragraph 3, NEC decision No 54/91 paragraph 1 to pay One and a Half Times the Members contributions to the Defence Force Retirement Benefit Fund."

These are set out more specifically in the individual statements of claim found in the Third Schedule to the Plaintiffs' claim.

The State has opposed these claims as follows:

(a) The 334 Plaintiffs named in Schedule 1 annexed hereto have compromised their claims having all been paid in this identical claim under previous Court proceedings, including OS No 58 of 1988 and OS No 58 of 1989 and their claims are therefore re judicata.

(b) The 267 Plaintiffs named in Schedule 2 annexed hereto have claimed in the previous proceedings namely OS No 58 of 1988 and OS No 58 of 1989, but not having been retrenched, were excluded from payment thus, their claims are also res judicata.

(c) The 165 Plaintiffs named in Schedule 3 annexed hereto have no cause of action as their claims are time barred having been discharged between 10 November, 1982 and 14 October 1988.

It was said in the July Ruling in this matter that the basis of a multiple claim such as this, is the underlying presumption that all the Plaintiffs have essentially the same status and cause of action. That is, that each Plaintiff is a retrenched soldior who has not been paid entitlements due to him. Therefore the Court in hearing the claim of one can readily decide the claims of all. But in fact that has turned out not to be the case at all. Although the Plaintiffs' claims in general terms are similar, they are not the same. A decision for one will not necessarily be right for another or any particular group.

During submissions prior to the July Ruling, Counsel for the Plaintiffs told the Court that:

"The purpose of the Plaintiffs in bringing this action in the form of the third schedule was to set out the substance of their claims in a clear manner, to allow the claim to be checked, verified, and adjudicated by an impartial tribunal. Each Plaintiff simply want an impartial tribunal to look at their claims and indicate whether or not each of the Plaintiffs has been properly according to law."

Therefore to avoid the situation where individual claims might be lost in a general decision, the Court, with the close cooperation of Counsel for the Plaintiff and Counsel for the Defence — and their assistants — has looked at each claim one by one.

Having considered the evidence and the submissions of Counsel the Court now proceeds with this judgment which deals with the substance of claims and the law effecting them. A separate, individual, one page summary of judgment will also issue for each Plaintiff. This has been made possible because the 3rd schedule of the Statement of Claim has been transcribed into the Court Records. A copy of each claim annotated with the judgment for each Plaintiff can therefore be printed off.

DECISION

The Plaintiffs claims are made up of two parts. The first of these is the claim for normal termination entitlements prescribed by law. These are the usual entitlements set out in the Manual of Personnel Administration for the Defence Force. A soldier has a lawful right to these and if they are not paid then that soldier has a claim — a cause of action that can be enforced in a Court of law.

The other part of the Plaintiffs claims is for ex gratia payments made by the State in their favour over and above the usual termination entitlements. An ex gratia payment literally means a payment made as a matter of grace or favour. A payment made without any acknowledgement of liability. The ex gratia payments in this case therefore can be described as voluntary grants to be made to eligible retrenched ex serviceman without any legal obligation admitted on the part of the State. In declaring such ex gratia payments therefore the State did not grant rights enforceable in the same way that the statutory termination entitlements can be pursued. It is however open to ex-servicemen to seek declaration that they are eligible for such payments in the terms stipulated by the State.

In fact, the State has conceded the obligation to meet such payments. This is recorded in the judgment of Mr Justice Brown in Jack Wagambi & Ors v Brigadier General Lokinap OS 58 of 1989 where he says:

"Counsel for the State concedes that if I was to categorise those found entitled to share in retrenchment benefits for the relevant period, a third group of ex-members would most probably arise. This group will comprise those ex-members who have been discharged during the relevant period, who are not amongst those who have comprised their claim already and received benefits, or who are the named plaintiffs listed in (these proceedings).

It has been agreed that to bring some certainty to the resolution of the entitlement I should categorise those ex-members who should benefit rather than name and identify each individual. To name and identify each would naturally follow categorisation, for the Defence Force records relating to discharge could be perused and that third group identified. But on judgement today, those not named in (these proceedings) will need to claim seperately. The State Solicitor concedes however that such a third group, capable of distinct identification should be included in entitlement calculations when the State come to assess its total liability." (emphasis added)

The State has not disputed that Defence Force personnel as of right can claim statutory entitlements on termination of service. Likewise it is not disputed that a Government policy of retrenchment was embarked on from 1983 and thereafter a series of ex gratia payments awarded for those retrenched.

Those eligible for such benefits have been already determined by the judgement of Mr Justice Brown in the National Court in OS 58 of 1989 already referred to. By the order of the Court in that decision the ex-servicemen eligible are those:

"who were discharged from the Defence Force during the period 10 November 1982 to 7 April 1989 for reasons assigned in their certificate of discharge other than those reasons listed in Serials 2, 5, 6 and 7 of Annex "A" to ch 58 of Manual of Personnel Administration."

The Serials that result in exclusion are also summarised in the order as being:

"2 Having reached retiring age;

5. Having given false information;

6. Having been convicted of an offence which will render him unfit for services with the Defence Force;

7. Being medically unfit for service."

The verdict in...