Mathias Goma and 703 Others v Protect Security & Communication Limited (2013) SC1300

• Jurisdiction: Papua New Guinea
• Judge: Injia CJ, Davani & Cannings JJ
• Judgment Date: 29 November 2013
• Docket Number: SCA NO 73 0F 2010
• Court: Supreme Court
• Judgement Number: SC1300

Full Title: SCA NO 73 0F 2010; Mathias Goma and 703 Others v Protect Security & Communication Limited (2013) SC1300

Supreme Court: Injia CJ, Davani & Cannings JJ

Judgment Delivered: 29 November 2013

SC1300

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 73 0F 2010

MATHIAS GOMA AND 703 OTHERS

Appellants

V

PROTECT SECURITY & COMMUNICATION LIMITED

Respondent

Waigani: Injia CJ, Davani & Cannings JJ

2013: 27 August, 29 November

TORTS – breach of statutory duty – whether breach by an employer of its statutory obligation to remit employer and employee contributions to an authorised superannuation fund gives rise to a private right of an action – elements of tort of breach of statutory duty.

STATUTORY INTERPRETATION – constitutional principles – National Goals and Directive Principles; Basic Rights; Basic Social Obligations; Rule of Law; dispensation of justice to be paramount consideration.

COURTS AND JUDGES – obiter dictum: meaning of term – circumstances in which a decision of law of the Supreme Court is binding on other Courts – Constitution, Schedule 2.9.

This was an appeal against the decision of the National Court to dismiss the claims of the appellants who alleged that they suffered losses due to the failure of their former employer, the respondent, to comply with its statutory obligations to remit employer and employee contributions to an authorised superannuation fund. The National Court held that breaches of the statutes that imposed such obligations, in particular the National Provident Fund Act Chapter 377 and the Superannuation (General Provisions) Act 2000, are not intended to be enforceable by private right of action. Hence the appellants were not entitled to relief even if any of them was able to prove that he was an employee of the respondent, that the respondent breached its statutory obligations and that his claim was not statute-barred. The two grounds of appeal were that the National Court erred in law by (1) finding that it was not intended that breaches of the statutes in question are enforceable by private right of action and (2) not following the decision of the Supreme Court on the same point of law in Anave Ona v National Housing Corporation (2009) SC995, which decision, if followed, would have resulted in a finding that the appellants had an enforceable cause of action.

Held:

Per Injia CJ and Cannings J:

(1) The cause of action known as breach of statutory duty is a tort that formed part of the common law in force in England immediately before Independence Day, 16 September 1975. It is therefore part of the underlying law of Papua New Guinea by virtue of Section 20(1) of the Constitution and Section 3(1)(b) of the Underlying Law Act 2000.

(2) The elements of the tort of breach of statutory duty are that: (a) a statute imposed an obligation on the defendant; (b) the obligation was breached by the defendant; (c) the purpose of the statute was to protect a particular class of persons; (d) the plaintiff was a member of that class of persons; (e) the plaintiff suffered damage as a result of the breach; and (f) the Parliament intended to create a private right of action for breach of the statutory obligation.

(3) There was evidence before the National Court of five of the elements of the cause of action. The trial Judge correctly identified that the critical issue was whether there existed a parliamentary intention to create a private right of action.

(4) In determining whether there was such a parliamentary intention the Court is required to have regard to the purpose of the statutes and the principles of statutory interpretation provided for by the Constitution, some of which are unique to Papua New Guinea. It must: give effect to the National Goals and Directive Principles (Constitution, s 25), the Basic Rights, including the right of all persons to the full protection of the law (Constitution s 37) and the Basic Social Obligations (Constitution s 63), exercise the judicial authority of the People, which entails upholding and enforcing the Rule of Law (Constitution, s 158(1)) and give paramount consideration to the dispensation of justice (Constitution, s 158(2)).

(5) The interests of justice require that persons for whose benefit statutory obligations exist do not have to wait for some other person or authority to take action to enforce those obligations.

(6) The National Provident Fund Act Chapter 377 and the Superannuation (General Provisions) Act 2000 both sufficiently evince an intention on the part of the National Parliament to create a private right of action on the part of employees or former employees for breach of the statutory obligations. The National Court erred in law by drawing the opposite conclusion.

(7) Obiter dicta are statements of law or other observations made by a Judge or a Court, either orally or in a written judgment, which are not necessary to the disposition or final decision in the case. Statements of law that are obiter dicta are not binding authority but can be of persuasive authority.

(8) The Supreme Court in Anave Ona v National Housing Corporation (2009) SC995 decided that former employees who are adversely affected by the failure of their former employers to comply with statutory obligations to remit contributions to an authorised superannuation fund have a private right of action in tort. That decision of law was not obiter dictum, it was binding on the National Court, which erred in failing to follow it.

Per Davani J (dissenting):

(9) The trial judge properly exercised his discretion by deciding to consider as a threshold issue whether the appellants could mount a private right of action, where the statute has already provided a remedy.

(10) The appellants were given the opportunity to address all relevant issues at the trial.

(11) The observations of the Supreme Court in Anave Ona v National Housing Corporation (2009) SC995 were obiter dicta and therefore not binding on the National Court.

(12) Parties are confined to their pleadings and must make a clear case for relief before the Court. The appellants’ statement of claim in the National Court was confusing and their lawyer failed to assist the National Court (or the Supreme Court) in determining what was the actual cause of action.

(13) The appellants without obtaining the leave of the Court attempted to raise issues in the Supreme Court that were not argued in the National Court.

(14) The trial judge did not err and the appeal should be dismissed.

Per Injia CJ and Cannings J (Davani J dissenting):

(15) Both grounds of appeal were upheld, the appeal was allowed, the order of the National Court was quashed and the National Court proceedings were reinstated.

Cases cited

The following cases are cited in the judgment:

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

Application by Gabriel Dusava (1998) SC581

Byrne v Australian Airlines Limited [1995] HCA 24 (1995) 185 CLR 410

Constitutional Reference No 1 of 1977 [1977] PNGLR 362

Eddie Tarsie v Ramu Nico Management (MCC) Ltd (2010) N4005

Enforcement Pursuant to Constitution s 57; Application by Gabriel Dusava (1998) SC581

Ginson Goheyu Saonu v Bob Dadae (2004) SC763

Haiveta v Wingti (No 3) [1994] PNGLR 197

Hon Patrick Pruaitch MP v Chronox Manek (2010) SC1052

Inakambi Singorom v John Kalaut [1985] PNGLR 238

Isidore Kaseng v Rabbie Namaliu & the Independent State of Papua New Guinea (No 1) [1995] PNGLR 481

MAPS Tuna Ltd v Manus Provincial Government (2007) SC857

Mathias Goma & 703 Others v Protect Security and Communication Ltd (2010) N4046

Norman v Barnet Council [1978] WLR 220

Placer Holdings Pty Ltd v The State [1982] PNGLR 16

PLAR No 1 of 1980 [1980] PNGLR 326

Premdas v The State [1979] PNGLR 329

Raymond Groves v Airlink Pty Ltd (2002) WS 1156 of 1995, unreported

Re Application by Anderson Agiru (2001) SC671

Re Application by Herman Joseph Leahy (2006) SC855

Re Public Prosecutor’s Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011

Reference by Dr Allan Marat, In the matter of Prime Minister and NEC Act 2002 Amendments (2012) SC1187

Ruth Kaurigova v Dr Russo Perone (2008) SC964

SC Ref No 1 of 2008, Reference by the Ombudsman Commission (2010) SC1058

SCR No 6 of 1984; Re Provocation [1985] PNGLR 31

Telikom PNG Ltd v ICCC (2006) SC906

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

Timothy Bonga v Justice Maurice Sheehan [1997] PNGLR 452

Timothy Lim Kok Chuan v Simon Goh Say Beng (2004) N2753

Titi Christian v Rabbie Namaliu (1996) OS No 2 of 1995, 18.07.96

Whisprun Pty Ltd v Dickson (2003) 200 ALR 447

X (Minors) v Bedfordshire [1995] UKHL 9

APPEAL

This was an appeal against dismissal of proceedings by the National Court.

Counsel

N Kiuk, for the appellants

E Hampalekie, for the respondent

29th November, 2013

1. INJIA CJ: Background: The circumstances pertaining to this appeal are canvassed in the judgment of Justice Cannings which I adopt. For...