Guise Kula v President Public Employees Association (PEA) of Papua New Guinea and Others

• Jurisdiction: Papua New Guinea
• Judge: Bre, AJ
• Judgment Date: 12 April 2024
• Neutral Citation: N10721
• Citation: N10721, 2024-04-12
• Counsel: Ms E Weada, for the Plaintiff,Ms G Dusava, for the First and Second Defendants
• Docket Number: WS 1016 OF 2018
• Hearing Date: 13 October 2023,12 April 2024
• Court: National Court

N10721

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 1016 OF 2018

Between:

Guise Kula

Plaintiff

v.

President Public Employees Association (PEA) of Papua New Guinea

and

Helen Saleu in her Capacity as the Industrial Registrar

First Defendant

and

Independent State of Papua New Guinea

Second Defendant

Waigani: Bre, AJ

2023: 13^th October

2024: 12^th April

NEGLIGENCE — elements considered — whether the Industrial Registrar owes a duty of care — common law duty of care distinct from statutory duty of care

BREACH OF STATUTORY DUTY — elements considered — whether statutory obligation exists — provisions of the Industrial Organisations Act and Registrar's duties considered — liability depends on construction of the Act — Industrial Organisations Act provides no statutory duty of care or actionable right to the plaintiff.

INDUSTRIAL LAW — Industrial Registrar has discretionary power to accept or refuse amendments to the rules of Industrial Organisations pursuant to s48 of the Industrial Organisations Act — Industrial Registrar has duty to industrial organisations to communicate her decision on acceptance or rejection of rules to its constitution — the proper channel for disputes regarding past rule is to seek interpretation before the National Court as provided by section 49 of the Industrial Organisations Act or resolve at a meeting of the industrial Organisation.

Facts

The plaintiff alleges that the Industrial Registrar was negligent in discharging her statutory duties which led to his dismissal from employment by the PEA.

Held

The Industrial Registrar does not owe the plaintiff any duty of care in statute or general negligence. The Registrar had, nevertheless, responded to the plaintiff's queries. Liability has not been established.

Cases Cited:

Papua New Guinean Cases

Faiteli v Kula (2019) SC1757

Goma v Protect (2013) SC1300

Kula v Faiteli (2017) N6594

Kuman v Digicel (PNG) Ltd (2019) SC1851

Overseas Case

Donoghue v Stevenson (1932) AC 562

Legislation

1ndustrial Organisations Act Chapter 173, ss 4,5,6,33,36,37,38,39,48 and 49

References

Claims By and Against the State Act 1996

Wrongs and (Miscellaneous Provisions) Act

Counsel

Ms E Weada, for the Plaintiff

Ms G Dusava, for the First and Second Defendants

Public Solicitor: Lawyers for the Plaintiff

Solicitor General: Lawyers for the Defendants

JUDGMENT

12^th April 2024

1. Bre AJ: INTRODUCTION: Guise Kula is the former General Secretary of the Public Employees Association of Papua New Guinea (‘PEA’) from 2013 to 2015. He alleges that the Industrial Registrar breached her statutory duties which led to his dismissal from employment.

2. The defendants deny the allegation and contend that the Industrial Registrar does not owe any duty to the plaintiff and that the plaintiff contributed to his own termination by being insubordinate to his superiors.

PLAINTIFF'S CLAIM

3. The plaintiff's primary cause of action is against the Industrial Registrar and the State as nominal defendant alleging vicarious liability for the Industrial Registrar's alleged breach of statutory duties. The plaintiff claims the Industrial Registrar was negligent when she failed to respond to his letter of 16 May 2013 and 10 February 2015. The plaintiff's employment as General Secretary was terminated on 19 August 2015, on grounds of insubordination for raising the issues directly to the Industrial Registrar without first discussing them with the Executive Committee of the PEA. The issue raised by the plaintiff concerned defects in the constitution of the PEA concerning the qualification of the appointment and term of the President. The plaintiff pleads in his statement of claim filed 28 August 2018, vicarious liability of the State at paragraph 4 and negligence at paragraphs 20 and 21 as follows:-

“20. The plaintiff's termination of employment was as a result of the Second Defendant's negligence by failing to carry out her statutory duties as the person responsible for interpretation and application of the laws under which all unions operate including the Public Employees Association.

21. As a result of the negligence of the Second Defendant, the plaintiff has suffered loss and damage and continues to suffer loss and incredible stress since 18 May 2015.

Particulars

a) The plaintiff has no paid income to support his family since 18 May 2015.

b) The plaintiff has suffered from stress induced recurring medical conditions particularly severe gouty arthritis as diagnosed by a qualified Cardiologist Dr Jack Amana at the Port Moresby General Hospital on 30 November 2027.

c) The plaintiff has with these recurring medical conditions instituted legal proceedings in the National Court (OS No. 301 of 2017) seeking interpretation of the law which the first defendant failed to attend to and to right the wrong caused by the President of PEA in unlawfully terminating him.

d) The plaintiff's unlawful termination (as found in OS No. 301 of 2017) would have the natural and ordinary meaning to the general public that:

i) The plaintiff is a corrupt person;

ii) The plaintiff is not a fit and proper or trust worthy person to hold the position General Secretary of PEA;

iii) The plaintiff is a bad person who is guilty of misconduct involving the Office of the General Secretary of PEA

e) The plaintiff's unlawful termination has injured his credit and reputation and has been brought into public sandal, odium and contempt.”

22. By letter dated 21 January 2018 addressed to the Office of the Solicitor General, the Plaintiff gave to the third defendant Notice pursuant to Section 5 of the Claims By and Against the State Act 1996 of his intention to make this claim against the defendants and in particular against the third defendant on a vicarious liability basis pursuant to Section 1 and 4 of the Wrongs and (Miscellaneous Provisions) Act by Letter dated 22 May 2018 the Acting Solicitor General Ms Faith Barton-Keene advised that notice was given within the time limited of six (6) months to sue the third defendant and its agents.

And the Plaintiff claims:

1) General damages

2) Special damages

3) Damages for frustration and stress

4) Interest at 8% per annum

5) Cost of entire proceedings

6) Any further orders the court deems appropriate.

DEFENDANT'S CLAIM

4. The defendants filed their Notice of Intention to Defend on 03 October 2018 and Defence on 28 November 2018. The Industrial Registrar contends that the plaintiff's queries were responded to and he was informed that the matters he raised should be discussed internally. She also relies on Section 6 of the 1ndustrial Organisations Act Chapter 173, to claim statutory immunity from lawsuits for matters done or omitted in the course of her duties.

5. The defendants contend that the plaintiff is not an employee of the Industrial Registrar, nor the State and his employment is under the authority of the PEA, which they do not have authority over and should not be held responsible for his termination.

6. The State denies vicarious liability on the basis that the Industrial Registrar was not negligent in her duties and entitled to the protection of statutory immunity under Section 6 of the 1ndustrial Organisations Act Chapter 173 (‘IOA’).

PARTIES EVIDENCE

7. The plaintiff relies on his own affidavits as follows:-

a) Affidavit by Guise Kula sworn on 20 January 2023 and filed 01 January 2023 tendered and accepted as an exhibit marked ‘P1’

b) Affidavit by Guise Kula sworn 27 January 2023 and filed 30 January 2023 tendered and accepted as an exhibit marked ‘P2’

c) Affidavit in response by Guise Kula sworn and filed 04 April 2023 tendered and accepted as an exhibit marked ‘P3’

8. The first and second defendants (the defendants) rely on the Affidavit of Helen Saleu, the Industrial Registrar, sworn and filed on 21 March 2023.

SUBMISSIONS

Plaintiff's submission

9. Ms Waeda submits the plaintiff's dismissal from employment is a result of the Industrial Registrar failing in her duties under the IOA to respond to the plaintiff's letters which raised vital defects regarding the president's standing and the PEA's constitution. The plaintiff's claim is that the industrial Registrar has the statutory duty under the IOA to ensure Industrial Organisations rules which contravene the Act are neglect, which she failed to do. That because of her failure to respond his queries, his employment was terminated by the PEA for being insubordinate in raising the issues direct to the Industrial Registrar. Ms Waeda relies on this Court's decision reported in Kula v Faiteli (2017) N6594 where the Court held that rule 30(a) of the PEA constitution offended s39(1)(b) IOA and the Industrial Registrar failed in her duties under s48(6) IOA to reject rule 30(a). Counsel submits that the Court's decision in Kula v Faiteli (2017) N6594 should prevail in the absence of a written Supreme Court decision. She further submits that the statutory protection under s6 IOA does not apply where the Industrial Registrar is negligent in carrying out her duties.

Defendants' Submission

10. The defendants submit that the Industrial Registrar did respond to the queries of the plaintiff and his claim against the Industrial Registrar is remote. The defendant submits there was a Manus resolution of the PEA congress on or about 10 and 12 April 2015 which the plaintiff as the General Secretary failed in his duties to raise to the Industrial Registrar (‘IR’) within the statutory time limit of 21 days. It was for this reason that he was terminated. That the plaintiff raised points of law that should have been raised within the PEA first before proceeding to the Industrial Registrar.

11. The defendants further submits that Section 6 IOA protects the Industrial Registrar...