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Menguru v Altus [2005] PGDC 116; DC486 (19 October 2005)

DC486

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2176 OF 2005

Between

Wesley Menguru
Complainant

V

Steven Altus
First Defendant

Goodman Fielders International (PNG) Ltd
Second Defendant

Port Moresby: Bidar, PM
2005: 19th October

District Court – Practice and Procedure - Application by Notice of motion for leave to amend proceedings – Cross motion to refuse leave and dismissal of proceedings generally – pursuant to Order 12 R 40 (1) National Court Rules

Case cited

Counsel
Rima for Complainant
Diweni for Defendants

RULING

19th October 2005,

BIDAR, PM: On the 29th September 2005, Complainant filed a Notice of Motion seeking the following orders:

"1. That leave be granted for the Complainant to amend his statement of claim pursuant to Order 8, Rule 50 of the National Court Rules

2. .Costs be in the cause

On the 30th September 2005, the Defendants filed a cross motion seeking these orders:

‘1 The application contained in plaintiffs Notice of Motion filed on 29^th September 2005 be refused pursuant to order 8 Rule 56 of the National Rules.

2. That the whole of the proceedings be dismissed generally pursuant to Order 12 Rule 46 of the National Court Rules.

3. That the Complainant pay the Defendants costs incidental to these Proceedings."

To understand the orders sought in both motions it is appropriate to state the background to these proceedings.

On the 07th July 2005, complainant filed summons upon complaint against the Defendants claiming damages for unlawful or wrongful termination of his employment with the second defendant. In relation to these proceedings the defendants filed their notice of intention to defend and defence on 13th July 2005.

On 8th August 2005 Defendants filed and served Complainant’s lawyer Notice to provide Further and Better particulars of statement of claim and affidavits in reply.

Complainant did not provide further and better particulars but after filing two affidavits in reply to the Defence, filed an amended statement of claim on 29th September 2005 and seeks courts leave to proceed with the amended statement of claim. Counsel verbally sought withdrawal of the replies to the defence by way of affidavits.

This means that the Defendants defence remains as well as their request for better and further particulars.

The amended statement of claim appears to be wholesale and would obviously prejudice the Defendants on their defence filed. It would put Defendants to expense to amend their defence.

As far as the actual claim is concerned, it is one for wrongful or unlawful termination of Complainant’s employment. Complainant was initially suspended on full pay and after investigation he was terminated from his employment and was paid his full entitlements.

Reverting to the motions, the complainant’s motion is supported by affidavit of Mr. Tau Rima of counsel for complainant filed on 20th September2005, who deposed to matters, which do not go to support the orders sought. In respect to the cross motion; which is supported by affidavit of Ralph Diweni of counsel for Defendants, Mr. Diweni deposed to matters which go to justify the orders Defendants seek.

I have considered the matters relied on by both parties and having heard both counsel, I am not convinced with the reasons advanced by complainant, as the amended statement of claim is a wholesale approach, which clearly prejudices Defendants’ defence.

In respect to the substantive claim, prima facie, it does not look impressive and chances of success do not appear that great.

In all the circumstances, I refuse the application by complainant. I would however grant the cross motion by the Defendants:

I make the following orders:

1. The application by Complainant for leave to amend statement of claim is refused.

2. That the whole proceedings be dismissed generally.

3. Defendant’s costs shall be paid by complainant, which are to be taxed if not agreed to:

Tau Rima: Complainant
Blake Dawson: Defendant