Tau Gumu v Papua New Guinea Banking Corporation Limited (2002) N2251

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2002) N2251
• Date: 26 April 2002
• Year: 2002

Full Title: Tau Gumu v Papua New Guinea Banking Corporation Limited (2002) N2251

National Court: Gavara–Nanu J

Judgment Delivered: 26 April 2002

1 PRACTICE AND PROCEDURE—Application by way of notice of motion to strike out defence—Material evidence in an affidavit sworn by a defence witness effectively rendering the defence frivolous and vexatious—To allow such defence to proceed to trial would amount to abuse of process by the defendant.

2 PRACTICE AND PROCEDURE—The Court has inherent power to strike out a defence which is frivolous and vexatious.

3 PRACTICE AND PROCEDURE—Requirements under O12 r37(1)(c) of the National Court Rules—Employee claiming damages against the employer for the employer's failure to notify the Registrar of the Workers' Compensation Tribunal of the plaintiff's injury as required by s42(1) of the Workers' Compensation Act 1978—Such claim being based on the employer's failure to comply with a statutory duty is not prohibited by O12 r37(1)(c).

4 PRACTICE AND PROCEDURE—Criteria under O12 r38(1) of the National Court Rules—Plaintiff deposing in his affidavit that in his belief, the defendant has 'no valid defence'—Second criteria in O12 r38(1)(b), satisfied.

5 WORKER'S COMPENSATION ACT 1978—Duty of the employer to give notice of the employee's injury under s42(1) of the Act—Employee is deemed to have given notice to his employer of his injury as required under s41(1) and (5) of the Act, where the employer is fully made aware of such injury by the employee and where the employer already has records of the personal particulars of the employee.

6 PNG Forest Products Pty Ltd v The Independent State of Papua New Guinea [1992] PNGLR 85, Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112, Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 310, Akipa v Lowa [1990] PNGLR 502, Eton Pakui v The State [1995] PNGLR 321, Waters v Sunday Pictorial Newspaper Ltd [1961] 1 WLR 967, Davey v Bentinck [1893] 1 QB 185 and Wenlock v Moloney [1965] 1 WLR 1238 referred to

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Gavara–Nanu J: The plaintiff by notice of motion applies for the defendant's defence to be struck out and summary judgment be entered for him for assessment of damages.

The plaintiff's ground for the application is that, the defendant's main defence which was based on time bar, was dismissed by Kandakasi J on 7 December 2001; and the remaining part of the defence is a general denial which is prohibited by O8 r28 of the National Court Rules, therefore it should also be struck out.

The plaintiff issued these proceedings on 23 October 2000. The claim for damages arose out of the defendant's failure to comply with its statutory duty under s42(1) of the Workers' Compensation Act 1978, to notify the Registrar of the Workers' Compensation Tribunal of the plaintiff's injury in time so that the plaintiff could claim compensation for the injury, which he allegedly suffered while working for the defendant in 1979.

Factual Background

The brief factual background to the plaintiff's claim is this—The plaintiff started working with the defendant in 1975. In 1978, he started experiencing pains in his right knee. He was getting medical treatments for the pain. In 1979, while trying to remove coin boxes from one section of the bank to the vault, during work, the plaintiff fell and landed on the right knee. The fall was witnessed by other staff. The fall aggravated the condition in his knee and on the next day, he told his superiors and took time off from work to seek medical treatment.

From 1979 to 1992, the plaintiff regularly sought medical attention . He also took time off from work on regular basis with the approval of the defendant due to the worsening condition in his right knee. The condition in the knee got worse in the 1990s and on 12 October 1993, his right leg was amputated from above the knee. In 1994, he was sent to Brisbane by the defendant for an artificial leg to be fitted on his right leg. The defendant met the expenses for the trip including accommodation in Brisbane and the cost of...