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Air Niugini Ltd v Talum [1992] PGNC 66; [1992] PNGLR 296 (20 November 1992)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 296 - Air Niugini v Elizabeth Talum 

[1992] PNGLR 296

N1130

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

AIR NIUGINI

V

ELIZABETH TALUM

Waigani

Brown J

20 November 1992

JUDGMENTS AND ORDERS - Writ of possession of land - Real prejudice must be shown to delay issue - Relevant principles O 13 r 3 National Court Rules.

REAL PROPERTY - Nature of interest of employee in accommodation provided by employer.

Facts

These are succinctly set out in the judgment.

Held

N1>1.       An employee who occupies accommodation of his employer has no right to remain in occupancy on the termination of his service. He may have a right to damages for unlawful dismissal.

N1>2.       Where an "order" in an earlier motion for injunction to stay eviction action amounts to a judgment for possession, real prejudice must be shown to warrant delay of the owner's right to possession. No real prejudice has been shown.

Cases Cited

Malai v PNG Teachers Association [1992] PNGLR 568.

National Airline Employees' Association of PNG v National Airline Commission (No 2) [1992] PNGLR 291.

Robinson v National Airlines Commission [1983] PNGLR 476.

Counsel

J Sleight, for the applicant.

P Paraka, for the respondents.

20 November 1992

BROWN J: On 6 November 1992, I gave judgment for the National Airline Commission (Commission), dismissing a motion by the National Airline Employees' Association (Association), sought in these terms:

"That the Defendant (Commission) be restrained from evicting members of the plaintiff Union (Association) from their company residences until the claims as to unlawful dismissals and suspensions contained in the W.S. No. 835 of 1992 are finally determined by the Court".

Mr Sleight now comes by way of originating summons for the plaintiff, relying on an affidavit by the Director - Personnel of Air Niugini, seeking that the Commission have a writ of possession of the premises forthwith. The Commission's application is brought pursuant to O 13 r 3, which provides for the enforcement of judgment in relation to possession of land. Pursuant to O 13 r 1(a), judgment is defined to include an order. I find that the order I made on 6 November, having regard to the reasons amounts to a "judgment for possession" for the purposes of r 3 (1).

In the judgment, [1992] PNGLR at 295, I said:

"Further the applicant should give an undertaking as to damages before the Courts will entertain applications which affect proprietary rights. Here the Commission asserts that it owns the premises and, even were the employees still under contract to the Commission, their right of occupation is a permissive occupancy at the option of the Commission. There is no evidence to the contrary".

Now the plaintiff cannot have his order without the leave of the Court. The material considerations are these. A number of the occupants had been served with the summons for possession in time so that the rules relating to service have been complied with. Mr Sleight seeks the Court's leave to deal with 2 which were only served on the occupants last night (OS No 267 Eileen Sariman and OS No 269 Chapau Lomot). He says in fact no prejudice will be occasioned to these particular occupants (the matter of the eviction of these past employees being common knowledge amongst them) for attempts to serve them were made some 5 days ago, without success, and that it is for the particular occupants to show prejudice in that they have some defence to the summons for possession.

I will come back to that question of a defence, but suffice it to say I am satisfied no real prejudice will be occasioned these 2 occupants on the ground alone that they have had short service. I rely to a large extent on the fact that at the time of termination they were given notice to vacate the premises by 19 October 1992, a date subsequently postponed by consent of the Commission. Since 6 November, the occupant's rights, if any, to remain had been extinguished by the terms of my judgment. These proceedings cannot come as a surprise. Still on the question of leave, Mr Sleight says that the plaintiff has a common law remedy (which it has exercised, if I understand correctly, in the period to 6 November 1992) but nevertheless, it has instituted these proceedings and seeks orders. He says also that the continued occupation by the employees is without the leave or licence of the Commission. He relies on the material in the affidavit of Paul Aisa, the Director-Personnel. Mr Aisa deposed to the fact of termination of these particular employees and the giving of the notice to vacate which I have mentioned. He says they were only permitted to occupy the premises during their employment by the Commission and that there was no "lease" or "licence" agreement.

On the strength of various overseas and, more importantly, PNG authorities, an occupier in these circumstances has no right to remain. He may have a right to damages where he succeeds in a claim for unlawful dismissal. Mr Sleight referred me to Robinson v National Airlines Commission [1983] PNGLR 476, for instance, and the case of Malai v PNG Teachers Association [1992] PNGLR 568, which was upheld on appeal to the Supreme Court.

Further, I am satisfied as to who is in occupation of the particular units and that service has been properly effected on those "occupiers". Consequently, the Commission is, as Mr Sleight says, entitled to possession for it has a better right. All those matters are pertinent to leave, but, nevertheless, Mr Paraka for the respondents says that I should not affect the status quo and should refuse leave until the aggrieved employees' claim is finally determined. Frankly, that argument was dealt with in the proceedings for interlocutory relief and failed.

He also urged me to exercise my discretion under s 155(4) of the Constitution and make orders to do justice in a particular case by allowing these persons to remain. I do not consider I need rely on s 155(4). The law expressed in those cases already referred to is clear. The aggrieved employees' rights to sue for breach of contract are unaffected. If it should be shown that their dismissal is unlawful, then damages will follow. No right to remain, however, has been shown here. Further, if Eileen Sariman and Chapau Lomot were concerned, I am sure they would have been here to assert why they should be allowed more time to argue and why, perhaps, they should be treated differently to the others. Mr Paraka has not raised any issue with their status.

In all the circumstances, I am satisfied that leave should be given for writs of possession to issue. Whether they should issue forthwith has not been argued, but the plaintiff seeks that they do. A further 2 weeks has passed from the date of my judgment and no particular facts have been shown to exist which make that order unfair to a particular occupant. When an application is framed as this is, seeking orders which will seriously affect the housing of a respondent, and possibly his well-being, and those orders are sought "forthwith", it is trite to ask for time to seek instructions when the rules relating to notice have been complied with. Five days are allowed and if, as here, the persons likely to be affected take insufficient steps to instruct their lawyer beyond that to seek an adjournment, then no good reasons have been advanced to delay the plaintiff further.

I make orders in terms of paras 1, 2, 3 and 5 of the originating summons in respect of those 7 sets of proceedings consecutively running OS 263 to 269 (inclusive) of 1992.

Lawyer for the applicant: Blake Dawson Waldron.

Lawyer for the respondents: Kirkes.