Brian Yombon Copio v William Dihm and Others

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 19 November 2024,31 October 2022
• Neutral Citation: N10838
• Citation: N10838, 2024-11-19,2022-10-31
• Counsel: Mr Solomon Wanis, for Plaintiff,Mr Russel Uware, for Defendants
• Docket Number: WS NO. 543 OF 2014
• Hearing Date: 13 December 2022,07 June 2024
• Court: National Court

N10838

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 543 OF 2014

Between

Brian Yombon Copio

Plaintiff

v.

William Dihm, Acting Secretary for Foreign Affairs & Trade

First Defendant

and

National Executive Council

Second Defendant

and

The Independent State of Papua New Guinea

Third Defendant

Waigani: Makail, J

2022: 13^thDecember

2024: 7^thJune

LIABILITY — Breach of contract of employment — Head of Mission — Wrongful dismissal from employment — Dismissal on ground of insubordination — Serious disciplinary offence — Claim of denial of right to response to disciplinary charge — Claim of no service of disciplinary charge in prescribed form — Breach of right to be heard — Proof of — Liability not established — Proceedings dismissed

Cases Cited:

Papua New Guinean Cases

Leo Niu v. The State(2000) N1986

Overseas Cases

Ridge v. Baldwin[1963] UKHL 2; [1964] AC 40

Counsel:

Mr Solomon Wanis, for Plaintiff

Mr Russel Uware, for Defendants

Solomon Wanis Lawyers: Lawyers for Plaintiff

Acting Solicitor General: Lawyers for Defendants

JUDGMENT

7^th June 2024

1.Makail, J: It must be stated at the outset that this is one of the many long outstanding matters in the Civil Court Track 1, the writ of summons, having been registered in the Court filing system on 29^th May 2014. For different reasons, one of them been negotiations for out of court settlement, it was not listed for trial and the plaintiff had been frequenting the Court for directions hearing as noted from the numerous Court file endorsements dating back to 4^th December 2014. It was not until the pre-trial conference and listings on 13^th December 2022 that the Court took the initiative to put to counsel for parties and it was agreed that the trial of the matter be on paper with written submissions to be filed. A decision on liability, and if any, assessment of damages is to follow suit.

Brief Background Facts

2. This is the judgment. By this proceeding, the plaintiff sues the defendants for wrongful dismissal from employment as Papua New Guinea High Commissioner to Solomon Islands with concurrent accreditation to the Republic of Vanuatu and seeks special damages for lost salary and allowances, general damages for distress, hardship and frustration, interests and costs. The cause of action is one of breach of contract of employment.

Parties' Evidence

3. The plaintiff relies on the following:

(a) His affidavit sworn and filed 19^th November 2014, and

(b) His affidavit sworn and filed 31^st October 2022.

4. The defendants rely on a sole affidavit by Magdalene Mo-He sworn and filed 30^th July 2021.

Undisputed Facts

5. From the affidavits, the following are the undisputed facts, the plaintiff was appointed by the second defendant through its decision number 35/2011 on 2^nd March 2011 as Papua New Guinea High Commissioner to Solomon Islands with concurrent accreditation to the Republic of Vanuatu for a period of four years effective from the date of the second defendant's decision number 35/2011.

6. The plaintiff took up the appointment at the High Commission in Honiara, Solomon Islands on 22^nd April 2011 and returned to sign his Head of Mission contract of employment (“Contract”) on 17^th April 2012.

7. By a letter dated 20^th November 2012 the former Acting Secretary of the Department of Foreign Affairs (“acting Secretary”) directed the plaintiff to cease attending the Melansian Spearhead Group (“MSG”) meeting in Port Moresby and return to Honiara. This letter was in response to a letter by the plaintiff dated 14^th November 2012 requesting approval for him to attend the Melanesian Spear Head Group (“MSG”) meeting and another meeting in Port Moresby from 22^nd – 23^rd November 2012 and his complaint about the acting Secretary not responding to his request for approval.

8. It is abundantly clear from the letter by the acting Secretary that the acting Secretary determined that it was not necessary for the plaintiff to attend the MSG meeting and the other meeting, especially the MSG meeting because “The Government sees so much duplication of functions and activities by MSG in many areas including security, customs, police, aviation, taxation and so forth………..which have been adequately serviced by existing arrangements/mechanism.”

9. Secondly, “………the Department is greatly hampered by resources especially human resources capacity constraints at HQ level” and “………the HQ does not have the luxury of time to attend to non-vital/critical commitments.”

10. Finally, the plaintiff was reminded of the “……instructions concerning deployment of HOMs in the region and travel away from point of accreditation” and was further informed that “……. your request to travel was neither necessary nor did it require any response,” and that he was “……directed to immediately cease from continuing attendance of the current MSG meetings and return to Honiara.”

11. Despite the directive to return to post, in a letter to the acting Secretary dated 26^th November 2012 the plaintiff expressed his disappointment in relation to the directive for him to return to Honiara and complained about the manner in which he was being treated by the acting Secretary and the officers of the Department. Also, he outlined his reasons for attending the MSG meeting, one of which was, “in the MSG SOM and FMM in Fiji held from 15 – 30 March this year, you have also denied my attendance claiming that my colleague in Fiji and Headquarters staff would cover the meetings. While your priority was on coverage, my concern was on appropriate representation and active participation when I was determined to participate given my understanding of PNG's interest in Solomon Islands and Vanuatu.”

12. Significantly, the plaintiff explained to the acting Secretary that “…………the MSG has recently increased its core functions given the contemporary issues, concerns and questions confronting the region. Whilst the primary objectives of MSG are beneficial to member states, its values should be extended beyond traditional boundaries to attract reciprocal relationship with similar regional bloc and has significant influence over other smaller islands states. The traditional conduct of international relations and diplomacy has penetrated into multidimensional areas.”

13. By letter dated 26^th November 2012, the acting Secretary advised the plaintiff that he was suspended from performing any duties on behalf of the State because he “…….. had caused a situation of insubordination to occur when [he] did not return immediately to Honiara when [he was] instructed to do so……..” Also, the acting Secretary informed the plaintiff that “Consistent with Section 24.1, (b), of the same Terms and Conditions of Employment, you are required to respond in writing within seven (7) days of the date of this letter. The matter will be brought to the Foreign Minister's attention as stipulated by the same Terms and Conditions of your Employment upon receipt of your response.”

14. Upon receipt of the letter from the acting Secretary, the plaintiff provided his response in a letter dated 27^th November 2012. He informed the acting Secretary that he did respond to the letter from the acting Secretary dated 19^th November 2012 which was served on him by Ms Julie Wapo on Tuesday 20^th November 2012 at 5:00 pm at Airways Hotel in Port Moresby and “As instructed, I ceased to attend FMM but remained in the capital and received my host Prime Minister and concluded several important consultations. As indicated, I did an appropriate response on 26 November expressing my disappointment on several issues (refer attached).”

15. Finally, the plaintiff informed the acting Secretary that “……Port Moresby – Honiara Air Niugini sector is only scheduled on Fridays and Sundays. As a result, I could not return to post on any other days I returned on Sunday (25/11/2012) as ticketed.”

16. By a letter dated 3^rd December 2012, the acting Secretary informed the plaintiff that he remained suspended, and his matter was referred to the Minister for Foreign Affairs. He will be informed in due course of the decision and direction of the Minister. Despite this, the plaintiff sent an email to the acting Secretary dated 5^th December 2012 and questioned his...