1 v Issac Lupari in his Capacity as Chief Secretary to the Government and National Executive Council and Others

• Jurisdiction: Papua New Guinea
• Judge: Bre, AJ
• Judgment Date: 12 April 2024
• Neutral Citation: N10717
• Citation: N10717, 2024-04-12
• Counsel: Mr A Furigi, for the Plaintiffs,Ms P Yom, for the First, Second and Third Defendants
• Docket Number: WS 727 OF 2018
• Hearing Date: 09 October 2023,12 April 2024
• Court: National Court

N10717

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 727 OF 2018

Between:

1,360 Pngdfesm Association Incorporation Comprising Retrenched Servicemen of PNG Defence Force as listed in the Schedule

Plaintiffs

v.

Issac Lupari in his Capacity as Chief Secretary to the Government and National Executive Council

First Defendant

and

Brigider General Gilbert Toropo in his Capacity as Commander of the PNG Defence Force

Second Defendant

and

The Independent State of Papua New Guinea

Third Defendant

Waigani: Bre, AJ

2023: 09th October

2024: 12th April

TORTS — breach of statutory duty — elements considered.

PRIME MINSTER AND NATIONAL EXECUTIVE COUNCIL ACT — literal interpretation applied — no statutory duty created on the Chief Secretary to protect any class of persons from non-implementation of NEC decisions by the National Public Services — intent of Act is to create State offices that support the top-level Executive arm of Government being the Prime Minister and the NEC.

NEC DECISIONS — caution to be applied in interpreting — nature of NEC decision considered — no resolution approving housing and hardship allowances on the face of the record of the decision.

DAMAGES — Distress and anxiety — plaintiffs misled — but made aware of the State's position in 2013 — no medical evidence — 50% of nominal damages awarded.

Facts

The plaintiffs allege the Chief Secretary has a statutory duty under the PM & NEC Act to ensure that the defendants implemented three NEC decisions. That the NEC decisions approved additional allowances totaling K60,000.00 to be paid to each of the 1360 plaintiffs on their retrenchment and discharge from the PNGDF between the period 2001 to 2007. That because they were not paid the allowances, the Chief Secretary failed his statutory duty and as a result they have a cause of action for damages.

Held

The three NEC decisions did not contain any resolutions specifically approving the housing and hardship allowances as part and parcel of the plaintiff's retrenchment benefits.

The defendants have not failed to implement the NEC's decisions.

Nevertheless, the plaintiffs are entitled to nominal damages for distress and anxiety from being misled prior to 2013.

Cases Cited:

Papua New Guinean Cases

Anave Ona v National Housing Corporation & Nambawan Supa Limited (2009) SC995

Behori Incorporated Land Group v Sirinumu Development Company (2016) N6862

Golu v National Executive Council (2011) N4425

Kunai v Papua New Guinea Forest Authority (2018) N7570

Koim v O'Neil and NEC (2016) N6558

Lo v Hevilift Aviation Ltd (2023) N10413

Madring v Santi Forestry (PNG) Ltd (2015) N5908

Marshall Lagoon Investment Company Pty Ltd v Ding Company Ltd (2008) N3650

Mathias Goma v Protect Security & Communication Ltd (2013) SC1300

Singorom v Kalaut [1985] PNGLR 238

State v Downer Construction (PNG) Ltd (2009) SC979

Walup v National Housing Corporation (2019) N806

Wereh v Wamuk (2023) SC2487

Overseas Cases

Philips v Britannia Hygienic Laundry [1923] 2 K.B 832

Legislation

Constitution s100

Claims by and Against the State Act 1996

Prime Minister and National Executive Council Act 2002, preamble, s18, sch1 item 11, ss 20, 21, 22

Wrongs Miscellaneous Provisions Act Chapter 297.

References

Christopher Walton Charlesworth & Percy on Negligence, Sweet & Maxwell, 2010.

COUNSEL

Mr A Furigi, for the Plaintiffs

Ms P Yom, for the First, Second and Third Defendants

Furigi Lawyers: Lawyers for the Plaintiffs

Solicitor General: Lawyers for the Defendants

JUDGMENT

12^th April 2024

1. Bre AJ: INTRODUCTION: The plaintiff Association represents 1360 PNG Defence Force ex-servicemen who were retrenched between 2001 and 2007. They claim they are each owed K50,000.00 in housing allowances and K10,000.00 in hardship allowances which were to be paid to them as part of their redundancy payments after it was approved by the National Executive Council on three occasions, once in 1996 and twice in 2001. The total amount claimed is K81.6million.

2. A preliminary matter concerns the State's representation at trial. The State's lawyer attended late and sought adjournment because the lawyer who had carriage was not available and the lawyer in attendance was not prepared to proceed with the trial. I refused the adjournment. My reasons for the refusal are; there was sufficient time for the State to be prepared, the plaintiff was ready for the trial and the adjournment was not properly sought by filing an affidavit to justify why the trial date should be vacated. The State counsel has a duty to its client the State, and the Court to be prepared. Their conduct is unbecoming and unprofessional.

PLAINTIFF'S CLAIM

3. The plaintiffs were made redundant and retrenched between 2001 to 2007 in nine batches as part of the government's initiatives in 2001 to downsize the PNGDF to 2000 men. Three Cabinet decisions were made in NEC decision number 26 of 1996, NEC decision number 213 of 2001 and NEC decision number 239 of 2001. The plaintiffs allege these NEC decisions approved housing allowance of K50,000 and hardship allowance of K10,000.00 per personnel which was to be paid to their group as part of their retrenchment benefit. These allowances were not factored in their final calculations and have not been paid to them and remain outstanding.

4. The plaintiffs allege that the Chief Secretary failed in his duty to ensure that the Brigadier General and the relevant State agencies implemented the NEC decisions to pay them the allowances on their retrenchment or immediately after.

5. The plaintiff incorporated an association for the purpose of pursuing their claim and its 1360 members have appointed retired PNGDF ex-serviceman Godfrey Aisi to be the association's chairman. He is authorised to pursue this claim on behalf of the ex-servicemen. After numerous unsuccessful attempts with the defendants to settle their claim, they commenced this proceeding on 25 June 2018.

6. Relevant parts of the Statement of Claim are reproduced below:-

Writ of Summons and Statement of Claim filed 25 June 2018

“7. On 20 January 1996 the Defence Force Council tabled a policy submission seeking the National Government's approval of a comprehensive and up to date retrenchment policy specifically for the Defence Force.

8. PNGDF opted to use the Public Service 1982 Redundancy Agreement with some changes to recognise the special circumstances of the military personnel and their families particularly those who participated in the Bougainville crisis.

9. On 26 February 1996 the NEC approved the PNGDF retrenchment terms and conditions detailed in the same submission and the retrenchment benefits formular which were in line with other State Services for inclusion in the PNGDF's Manual of Personnel Administration (MPA).

10. On 22 November 2001 the NEC:

a) endorsed the application of its policy decision of 26 February 1996, and

b) approved the application of all retrenchment benefits contained in the Retrenchment Benefits Calculation Form taken from the MPA with the inclusion of the entire range of redundancy and retrenchment benefits which included housing and hardship allowances.

11. With the inclusion of housing and hardship allowances being added for all retrenched members, brought the total benefits serials to nine (9) to be paid as follows:

a) Money in lieu of Notice	d) Ex gratia payment	g) Housing allowance – K50,000.00
b) Money in lieu of leave	e) Re-settlement allowance	h) Hardship allowance K10,000.00
c) Money in lieu of Furlough	f) Repatriation expenses	i) Contract Gratuity

12. Between 2001 and 2007 the Plaintiff by its members were paid all their other entitlements except for housing and hardship allowances.

13. It is therefore alleged that the Defendants collectively through their respective servants, agents and associates have breached their mandatory statutory obligations under the PNG Constitution, Prime Minister and National Executive Council Act 2002 (No. 23 of 2022) and the Defence Force Act 1975.

Particulars

a) Failed to ensure that the decisions, lawful directives and policies of the NEC referred to at paragraph 6 above were implemented by the National Public Service and by public bodies; and in particular for the inclusion of housing and hardship allowances for the retrenched members.

b) Failed to ensure that the Defence Force Council and the Department of Defence facilitate for inclusion housing and hardship allowances in the MPA

14. Accordingly, the Defendants failed to address the issue of housing and hardship allowances despite numerous promises by the National Government to settle their grievances to date.

15. The Plaintiff further alleges that:

a) NEC's 1996 and 2001 policy decisions particularly that of which concerns aspects of housing and hardship allowances remain valid for all intents and purposes and further remain unrevoked.

b) The issues concerning housing and hardship allowances under those NEC policy decisions remain outstanding and unresolved.

d) The Defendants collectively through their servants, agents and associates within the National Public Service have deliberately and inordinately delayed addressing any of the Plaintiffs' grievances to date.

Particulars

Numerous meetings were held on end at various levels of government offices and with political heads at various times but neither the National Public Service nor political heads displayed any interest whatsoever over the Plaintiff's grievances and to provide any appropriate relief to date.

16. As a result of the breachers of the mandatory statutory obligations the Plaintiff by its members and their families each and severally have suffered substantial losses and damages.

17. Therefore, the Plaintiffs claim the benefits under the NEC determinations or decisions as contained in the Retrenchment Benefits Calculation Form – DFRET 1...