Simeon Malai, Obe v Monovi Amani

• Jurisdiction: Papua New Guinea
• Judge: Oli, AJ
• Judgment Date: 18 February 2015
• Citation: (2015) N5872
• Court: National Court
• Year: 2015
• Judgement Number: N5872

Full : WS No. 1333 of 2012; Simeon Malai, Obe v Monovi Amani, the Acting Provincial Administrator, New Ireland Provincial Administration and New Ireland Provincial Government and John Kali, OBE, Secretary, Department of Personnel Management and the Independent State of Papua New Guinea (2015) N5872

National Court: Oli, AJ

Judgment Delivered: 18 February 2015

N5872

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1333 OF 2012

BETWEEN:

SIMEON MALAI, OBE

Plaintiff

AND:

MONOVI AMANI,THE ACTING PROVINCIAL ADMINISTRATOR,

NEW IRELAND PROVINCIAL ADMINISTRATION

First Defendant

AND:

NEW IRELAND PROVINCIAL GOVERNMENT

Second Defendant

AND:

JOHN KALI, OBE, SECRETARY,

DEPARTMENT OF PERSONNEL MANAGEMENT

Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Kokopo: Oli, AJ

2014: October 27th

2015: February 18th

CIVIL JURISDICTION - PRACTICE & PROCEDURE – File action for seeking damages for breach of contract of employment – Plaintiff a former Provincial Administrator his contract of employment was terminated upon him reaching a retirement age at 60 years under the Public Service Management Act - Upon termination final pay out was computed on two option entitlements under the Plaintiff Contract of Employment – submitted to the third defendant for approval either one of them for payment to the Plaintiff – The third defendant elected to approve the lesser calculation from the two, not the higher calculation –Plaintiff being aggrieved file action against the defendants for breach of contract of employment – Find no breach as third defendant

DAMAGES– Plaintiff being aggrieved claims that under his specific terms contract of employment stipulated that upon termination of his contract final pay out would be the greater of the two computed final pay out figures – The third defendant approved the lesser of the two calculations as final pay out legal entitlements according to clause 16.10 - The third defendant in exercising his discretional power approved the lesser of the two calculations as final pay out as legal entitlements for the Plaintiff – The Plaintiff’s action in misconceived and base on wrong clause 16.13 that does not apply to termination through retirement age at 60 years. The action is dismissed forthwith.

Cases Cited:

Public Employees Association of PNG v National Executive Council [1993] N1163;

Papua New Guinea Banking Corporation (PNGBC) –v- Jefe Tole [2002] SC 694.

Ambrose Vakinap v Thaddeus Kambanei (2004) N3094,

Francis Damien v Jerry Tetaga (2005) N2900

Robin Sam v Peter Tsiamalili (2006) N3072

Leo Nuia –v- The Independent State of Papua New Guinea N1986

Feria v Lange (2009) N3574

Holee & 2 Ors –v- Vegogo & 2 Ors (2012) N5101

Counsels:

Mr Orim Kivu, for the Plaintiff

Ms Elsie Takoboy, for 1s t& 2nd Defendants

State Solicitor General Office - No Appearance for 3rd& 4th Defendants

DECISION

20thFebruary, 2015

1. OLI, AJ: The Plaintiff is the former Provincial Administrator of the New Ireland Province and has claimed Orders by way of a Writ of Summons filed on the 20th December 2012 seeking damages for breach of contract. The Plaintiff is claiming a breach of his employment contract on the basis that he was paid out under the incorrect clause for his Final entitlements. The Plaintiff is now seeking to have the Defendants who include the named First and Second Defendants to pay the balance of his final entitlements pursuant to his Contract of Employment with the Third and Fourth Defendants and damages. The Plaintiff was appointed as the Provincial Administrator by virtue of an employment Contract entered between the Plaintiff and the National Executive Council on the 12thJanuary 2009 for a period of four (4) years which would have ceased on the 12th January 2013. By a letter from the Third Defendant to the Plaintiff dated 5th of December 2011, the Plaintiff was advised that the Plaintiff had reached retirement age and would no longer be eligible to hold office.

2. The Human Resource Division of the First and Second Defendants made calculations based on the Employment Contract of the Plaintiff under two options. It then forwarded the calculations to the Department of Personal Management, the Third Defendant who then chose the option which paid under clause 16.10 and finalised and certified one of the two options as the correct option for payment to the Plaintiff and did effect payment. The Plaintiff being aggrieved by being paid under wrong option filed this action and alleges that there was a breach of Contract of Employment by the defendants.

3. The First and Second Defendants filed Notice of Intention to Defend on the 04th February 2013 and filed its particularised Defence on the 21st February 2013 to the Plaintiff’s claim through its legal division before matter briefed out to Namani Lawyers and Associates. The First and Second Defendants disputed liability for the claimed breach on the basis that the decision to pay the Plaintiff’s final entitlements under the option by clause 16.10 was that of the Third and Fourth Defendants alone in accordance with the Contract of Employment between the Plaintiff and the Third and Fourth Defendants.

4. The Third and Fourth Defendants filed their Notice of Intention to Defend and Defence on the 13th June 2013. The Third and Fourth Defendants disputed the Plaintiff’s claim and in their Defence pleaded that the Plaintiff was paid according to the correct clause pursuant to the terms and conditions of Employment Contract.

5. The First and Second Defendants moves an application on the 05th of September 2014 to have them removed as parties and obtain vacant possession of the property that the Plaintiff was in occupation of. On the 12th of September 2014, this Honourable court refused the First and Second Defendants’ application to be removed as a party, however granted the orders for vacant possession. The Court stated that “it is an undisputed fact that the First and Second Defendants have in their custody the special knowledge that allow them to translate the working and mechanics of the right application of [the] Plaintiff’s final entitlement payout under option one and or option two as per the relevant clauses of the Contract of employment per se between the Plaintiff and the State.”

6. The Court further ordered that the matter be set down for pre-trial conference for parties to secure a trial date.

7. On the 14th October 2014 at pre-trial conference the Court went ahead and set a trial date and ordered that the matter would commence Ex Parte in the absence of the Defendants. During the pre-trial conference no formal directions was given for parties to file additional affidavits, and statement, but require the parties to confirm agreed and disagreed facts as part of the pre-trial preparation. Since, there was no statement of agreed and disputed facts proposed by the parties as to what facts are agreed and what facts are in dispute, I confirm that the following facts according to the First and Second Defendants are put forward during the trial on 27th October 2014, as agreed facts. They are as reflected in the facts below.

FACTS

8. The facts in this matter as pleaded by the Plaintiff in his Statement of Claim, but not disputed by defendants are as follows:

1. The Plaintiff Simeon Malai OBE was appointed by the National Executive Council (NEC) as the Provincial Administrator for the New Ireland Provincial Administration for a term of four (4) years tenure in office on the 12th January, 2009.

2. The Plaintiff then signed a Contract of Employment with the State, the Fourth Defendant herein on the 06th May, 2010 for a period of four (4) years commencing on the 12th January, 2009.

3. As per the Contract of Employment executed between the Plaintiff and the Fourth Defendant the contract was due to expire on the 12th January, 2013.

4. It was a condition of the Contract of Employment that made specific referenceas per clause 16.1(g) that subject to the Act and Regulations that one of the grounds on which the National Government could revoke the appointment of the Administrator and hence the Contract was as a result of Early Retirement or Normal Retirement in accordance with the Act, General Orders and Contract.

5. It was also a specific term of the contract under clause 16.13 that:

‘where it is considered by the NEC on recommendation from the Provincial Executive Council on recommendation for the Public Services Commission to be in the interest of the State in accordance with Regulation 7 of 2003 to revoke the appointment of the Administrator, the NEC may revoke the appointment and terminate the employment and the greater of the following two payments shall be made: (emphasis mine)

(a) payment of salary and allowance accrued to the end of the contract period together with all benefits accrued under the contract in relation to recreation leave and long service leave; or

(b) normal public service retrenchment benefits together with other monies and accrued service related entitlements.”

6. It was also a specific terms of the Contract under the following clauses in...