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Aiyango v Kiap [2012] PGNC 201; N4651 (30 March 2012)

N4651

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 893 of 2010

BETWEEN:

LELESI AIYANGO
Plaintiff

AND:

HONK KIAP – THE CHAIRMAN
NATIONAL CAPITAL DISTRICT COMMISSION
STAFF APPEALS TRIBUNAL
First Defendant

AND:

LESLIE ALU, THE MANAGER,
NATIONAL CAPITAL DISTRICT COMMISSION
Second Defendant

AND:

NATIONAL CAPITAL DISTRICT COMMISSION
Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Gavara-Nanu J.

2011: 19& 21 October
2012: 30 March

JUDICIAL REVIEW – Plaintiff not charged with any disciplinary offence – No formal termination – Purported termination unlawful – Plaintiff's appeal against purported termination not heard for over nine years – Plaintiff's appeal dismissed on irrelevant grounds – Plaintiff out of employment for over twelve years. Plaintiff not given an opportunity to be heard on her appeal.

JUDICIAL REVIEW – Plaintiff to be reinstated to her former substantive position or to an equivalent position – Issues of good administration within the employer considered – National Court Rules, Order 16 r 4 (1) and (2) – Plaintiff's lost salaries and entitlements to be reimbursed – Such reimbursements to be for period equal to seven years.

PRACTICE & PROCEDURE – Costs – Employer dragging the plaintiff to Court – Plaintiff incurring unnecessary costs – All of employer's defences are a sham – Plaintiff's costs to be paid on a Solicitor and Client basis.

Cases cited:

Benny Daniel v. Walter Kapty (2011) N4361
Comcord Pacific Ltd v. Thomas New [2000] PNGLR 47.
Don Pomb Pulie Poyle v. Jimson Sauk Papaki [2000] PNGLR 166
Gideon Barereba v. Margeret Elias (2002) N2197
Gulf Provincial Government v. Baimuru Trading Pty Ltd [1998] PNGLR 311
Jeffrey Afojah v. The Police Commissioner (2008) N3300
John Magaidimo v. Commissioner of Police (2004) N2752
Mission Asiki v. Manasupe Zurenuoc (2005) SC797
Paul Saboko v. Commission of Police (2006 N2975
Peter Bon v. Mark Nakgai and Others – N3023
Tau Gumu v. PNGBC (2002) N2251
Salvation Army (PNG) Property Trust v. Jorgen and Rex Vagi N1644

Counsel:

K. Kepo, for the plaintiff
L. Kila, for the defendants

30 March, 2012

1. GAVARA-NANU J: This is an application by the plaintiff for the review of the decision made by the first defendant on 18 March, 2010, to uphold the decision purportedly made by the second defendant to terminate the plaintiff from her permanent position as Administration Clerk Grade 4 within the third defendant in early 2001.

2. According to the Agreed and Disputed Facts, following facts are not in dispute and the Court accepts them as common grounds:-

(i) The plaintiff was made permanent to the above mentioned position by a letter of appointment dated 18 August, 2000, and the appointment was made effective from 2 February, 2000. The plaintiff's position was No. 055662.

(ii) The plaintiff appealed against her purported termination to the City Manager by a letter dated 21 May, 2001. Her main ground of appeal was that, her termination was unlawful.

(iii) On 23 April, 2008, the plaintiff filed claims for damages against the defendants in WS proceedings 428 of 2008. That proceeding was struck out by the Court for the failure by the plaintiff to give notice to the State of her claims as required under s. 5 of the Claims By and Against State Act, 1996 (CBAS Act).

(iv) On 19 March, 2010, the National Capital District Commission (NCDC) appeals tribunal dismissed the plaintiff's appeal on the basis that the plaintiff's claim for damages against the defendants in WS 428 of 2008, had been struck out by the Court for failure by the plaintiff to comply with s. 5 of CBAS Act. In other words, the dismissal of plaintiff's appeal was made purely on the grounds that the plaintiff failed to give s. 5 of CBAS Act, notice to the State in WS 428 of 2008, and that those proceedings had been struck out. The effect of this is that the parties have agreed that the plaintiff's appeal against her termination was not dismissed on its merits.

3. The plaintiff is seeking orders in the nature of certiorari to quash the decision of the first defendant to uphold her purported termination by the second defendant. She is also seeking orders in the nature of mandamus to order the defendants to pay her lost salaries and entitlements from the date she was taken off the NCDC payroll to the date of the judgment and that, she be reinstated to her substantive position.

4. The parties have tendered affidavits at the hearing, two by the plaintiff and one by the defendants. These affidavits are marked as Exhibits A, B and C. These affidavits are same as those already included in the Review Book.

5. There is evidence that the permanent appointment of the plaintiff to the position of Administration Clerk Grade 4 within the NCDC staff structure was made after a full performance appraisal of the plaintiff by the relevant authorities in the NCDC. The plaintiff's performance appraisal is Annexure 'A' to plaintiff's affidavit in reply sworn on 9 May, 2011. According to this appraisal, the plaintiff's ratings were either 'A' or 'B' which equaled 'outstanding' or 'very good'.

6. There is no evidence from the defendants either disputing or denying that no disciplinary charges were laid against the plaintiff before her purported termination. In other words, there is no dispute that the plaintiff was not charged with any disciplinary offence or offences before her purported termination. The plaintiff still does not know why she was terminated, and she was not heard at all by the NCDC staff appeals tribunal on her appeal.

7. In regard to her purported termination, it is noted that the plaintiff was verbally informed by her work colleagues that she had been terminated from her work, this happened after she returned from her approved recreational leave. When she inquired about the reasons for her termination and asked for copies of any disciplinary charges that had been laid against her, there were no responses by the defendants. She inquired with the City Manager in writing about the reasons for her purported termination but she did not receive any response to her letter from the City Manager. According to plaintiff's evidence, when she inquired with the Legal Division of the NCDC about the reasons of her termination, she was told that her termination was illegal. This evidence has not been disputed or denied by the defendants.

8. It is noted that, in an inter-office memo to the Senior Employee Relations Officer of the NCDC dated 27 August, 2001, the Career Planning Development Officer with the NCDC, Mr Myron Mulungu, recommended that the plaintiff be reinstated because her termination was illegal. Mr Mulungu also pointed out in the memo that the plaintiff was a good worker and proper procedures were not followed by the defendants before her purported termination. That inter-memo was apparently written after Mr Mulungu had discussed plaintiff's termination with the Senior Employee Relations Officer of NCDC and after the latter had asked Mulungu for a detail briefing on plaintiff's purported termination. There was no response to that memo by the defendants.

9. According to plaintiff's affidavit evidence, the NCDC appeals tribunal was supposed to have heard her appeal on 22 February, 2002, but after convening to hear the plaintiff's appeal, the tribunal was not able to hear the plaintiff's appeal because the documents needed for the hearing which included plaintiff's employment status, charges laid against her if any, and termination notice if any, were not made available to the tribunal. The tribunal did not reconvene any time after that to hear the plaintiff's appeal. As a result, the plaintiff sought assistance from the Public Employees Association Legal Division.

10. The defendants have affirmed through the affidavit of Mrs Lari Kila of counsel for the defendants sworn on 2 May, 2011, that the plaintiff's appeal was not heard on its merits, it was dismissed on the basis that the plaintiff's claim for damages against the defendants in WS 428 of 2008 proceedings were struck out for the failure by the plaintiff to give the relevant notice to the State under s. 5 of the CBAS Act.

11. At the hearing, the plaintiff gave evidence, her evidence was consistent with her affidavit evidence.

12. The defence called one witness; namely Paul Wiwi, this witness's evidence did not in any way contradict the plaintiff's evidence, he in fact corroborated the plaintiff's evidence, including the evidence that although the NCDC appeals tribunal convened on 22 February, 2002, to hear her appeal, the tribunal did not hear the appeal because the relevant documents for the tribunal to hear the appeal were not made available to the tribunal. The only communication from the NCDC to the plaintiff since her purported termination in early 2001, was on 24 September, 2010, when the plaintiff was advised in a letter by the City Manager that her appeal was unsuccessful following a decision by the tribunal on 19 March, 2010 to dismiss her appeal. The letter is Annexure 'J' to plaintiff's affidavit sworn on 21 December, 2010. This confirms that the plaintiff's appeal was not heard on 22 February, 2002.

13. After considering all the materials before the Court including submissions by counsel, I have come to a conclusion that the plaintiff's purported termination is unlawful. There is over whelming evidence to make this finding, for instance, there is no evidence that the plaintiff was charged for any disciplinary offence or offences before her purported termination. The plaintiff was also not given an opportunity to be heard before her purported termination, thus there was a clear breach of the rules of natural justice by the first three defendants. These are fundamental errors by the defendants which must render the plaintiff's purported termination unlawful. In this regard, I accept the plaintiff's evidence that she was never charged nor was she served with termination notice or letter. This evidence is not disputed or denied by the defendants.

14. The defendants have also argued that these proceedings are time barred. I reject this argument for the reason that although the plaintiff lodged her appeal on 21 May, 2001, the appeal was not determined until 19 March, 2010. That is the decision the plaintiff is challenging in these proceedings, the proceedings are therefore not time barred. The calculation of any time bar must be calculated from 19 March, 2010: Tau Gume v. PNGBC (2002) N2251. In any case, if the defendants are basing their argument under s. 16 of the Frauds and Limitations Act, 1998, that provision has no relevance to this case because these are judicial review proceedings. The relevant provision the defendants should be raising is Order 16 r 4 of the National Court Rules (NCR), but even that provision would not assist the defendants because these proceedings were instituted within four months from the date of the decision that is being reviewed. The other argument raised by the defendants is that these proceedings are res judicata because the plaintiff's appeal was dismissed on 19 March, 2010. I also reject this argument because the plaintiff's appeal was not dismissed on its merits, thus the fact of the matter is that the plaintiff's appeal has hitherto never been heard and determined by the NCDC appeals tribunal, thus the issue of res judicata does not arise. The fact that the plaintiff's WS 428 of 2008 proceedings were dismissed is not a bar to these proceedings. Neither can those proceedings be regarded as amounting to multiplicity of proceedings, which is another point raised by the defendants because they are different from these proceedings. The delay in the determination of plaintiff's appeal is the fault of the defendants especially the first three defendants because they could not produce copies of the charges laid against the plaintiff and other relevant documents such as the termination notice before the tribunal. These proceedings are also not an abuse of process which is another issue raised by the defendants. The plaintiff had the right to file these proceedings to challenge the decision of the tribunal which had grieved her. In the result, I reject all the arguments raised by the defendants.

15. Thus I find that the plaintiff's purported termination is unlawful.

16. The next pertinent question that arises is - Is the plaintiff entitled to the relief she is seeking, i.e to be reinstated to her substantive position to Administration Clerk Grade 4 within NCDC and to order the third defendant to pay all her lost salaries and entitlements from the date she was taken off the NCDC payroll to the date of judgment.

17. Firstly, in regard to the issue of whether the plaintiff should be reinstated to her substantive position within NCDC, the first thing to be stressed is the fact that she was never charged with a disciplinary offence, which means the plaintiff's purported termination has no basis at all. That also means that these proceedings have been totally occasioned by the defendants' unlawful actions, especially the first three defendants.

18. The defendants had no defence whatsoever to these proceedings or action by the plaintiff, any defences they have put up is clearly a sham. Clearly, it would have been in the defendants' interest had they settled out of Court by reinstating the plaintiff, I hold this view because according to the plaintiff's uncontroverted evidence, the Legal Division of the NCDC told her during her inquiries about her termination that her termination was unlawful. This evidence has not been disputed let alone denied by the defendants. Furthermore, in an internal memo by the Career Planning Development Officer of the NCDC, Mr. Myron Mulungu, it was strongly recommended that the plaintiff be reinstated to her former job because her termination was unlawful. No action was taken by the defendants on that recommendation. It is also noted that the plaintiff's letter asking for reinstatement dated 21 May, 2001, to the Acting City Manager, because her termination was unlawful, was never replied. The only letter from the City Manager to the plaintiff is the letter dated 24 September, 2010, in that letter the City Manager told the plaintiff that her appeal was dismissed by the NCDC appeals tribunal because the Court had struck out her claims for damages against the defendant in WS 428 of 2008. There is no evidence that the City Manager had responded to the plaintiff's earlier letter of 21 May, 2001, in which she asked to be reinstated.

19. No one in the NCDC including the City Manager has hitherto explained to the plaintiff the reasons for her purported termination, probably because no disciplinary charges were laid against the plaintiff before her purported termination.

20. I appreciate that in cases where reinstatement is sought as a relief, the Court must consider the length of time the plaintiff has been out of the position to which the plaintiff seeks reinstatement and decide whether the reinstatement would affect the good administration of the employer which in this case is the NCDC. This indeed is a matter which the Court has to consider under Order 16 r 4 (1) and (2) of the National Court Rules. So preservation of good administration within the plaintiff's former employer is a determinative factor. The issue of reinstatement in the instant case is an important issue because the plaintiff has been out of her position for over 12 years. Thus, to properly address the issue, I should look at the approaches taken by the Court in similar cases, as a guide.

21. In Peter Bon v. Mark Nakgai and Others – N3023, the plaintiff was a pharmacist employed by the State at the Boram General Hospital in Wewak, East Sepik Province. He was terminated for chewing betelnut within the hospital premises after a circular was issued by the hospital authorities banning chewing of betelnuts within the hospital premises. The plaintiff was terminated on 26 March, 1999. He had been employed for 22 years at the time of his termination and was the OIC of the Boram General Hospital dispensary unit.

22. The Public Services Commission after investigating the plaintiff's termination recommended that the plaintiff be reinstated to his former position without loss of salary and other entitlements. After the Boram General Hospital authorities refused to reinstate the plaintiff, the plaintiff instituted judicial review proceedings, on 28 May, 2001, the Court found the plaintiff's termination unlawful and ordered his reinstatement. The plaintiff was out of his position for two years four months. It is to be noted also that the plaintiff was investigated and charged with disciplinary offences before his termination.

23. The instant case presents a unique situation because the plaintiff has never been charged with any disciplinary offence or offences and no termination notice or letter was served on her. This is therefore a case where the first to third defendants for unknown reasons simply refused to allow the plaintiff back to her job and removed her from the NCDC payroll after her recreation leave.

24. Before her purported termination, the plaintiff went on three weeks approved recreation leave starting from 14 December, 2000, she was to have resumed duties on 31 December, 2000, but due to transport difficulties from her village to Port Moresby she returned to work late on 5 January, 2001. She spent her leave in Southern Highlands which is where she comes from.

25. In the circumstances of this case, I am of the firm view that the plaintiff should be reinstated and the reinstatement should be to a position equivalent to Administration Clerk Gr. 4 within the NCDC staff structure, if she cannot be reinstated to her former position. I do not believe the plaintiff's reinstatement to her former position or such other position will affect the good administration of the third defendant (NCDC). I think a position equivalent to the one she occupied before her purported termination should not be difficult for the third defendant to find within its staff structure if she cannot be reinstated to her former position. I order that plaintiff's reinstatement be effected by the third defendant (NCDC) as soon as possible.

26. I am aware that the order for plaintiff's reinstatement is being made twelve years after her purported termination. But I am of the firm view that the Court having found that the plaintiff's termination was unlawful and without any basis at all, I consider that reinstating the plaintiff to her former position or to a position equivalent to her former position with equal salary range is the only fair and reasonable remedy for the plaintiff. The evidence shows that the defendants are fully responsible for the plaintiff's current predicament, thus they must account fully for their actions by reinstating the plaintiff to her substantive position or to such equivalent position.

27. The related question is should the plaintiff's lost salaries and entitlements be reimbursed to her, and if so, what is the appropriate and fair period for which such lost salaries and entitlements should be reimbursed? In considering these questions, the underlying fact to bear in mind is that the plaintiff was never terminated from her employment as no notice or letter of termination was served on her nor was she charged with any disciplinary offence or offences.

28. Thus given that the plaintiff was never formally terminated from her employment with the NCDC, the essence of the Court order is for the plaintiff to be put back on the NCDC's payroll against her substantive position as Administration Clerk Grade 4 or to an equivalent position with equivalent salary range. I am also of the firm view that her lost salaries and entitlements should be reimbursed to her.

29. Thus the next question is, for what period should the plaintiff's lost salaries and entitlements be reimbursed? To decide this question, I will as a guide, look at some cases in which this question has been addressed by the Court.

30. In Peter Bon v. Mark Nakgai and Ors (supra) the plaintiff was out of his position for two years four months when the Court ordered his reinstatement without loss of salary and other benefits. In Paul Saboko v. Commission of Police (2006) N2975, the plaintiff was dismissed from the Police Force on 25 September, 1998. The case was tried on 4 November, 2004, the judgment of the Court was delivered on 21 February, 2006. The Court found the plaintiff's dismissal unlawful and ordered his reinstatement to his former position, the Court also ordered reimbursement of his lost salaries and entitlements for a period of just over one year. The plaintiff was out of his position for over seven years. It should be noted that in that case investigations were conducted which led to the plaintiff being charged and eventually dismissed. In John Magaidimo v. Commissioner of Police (2004) N2752, the plaintiff was a Sergeant in the Police Force. He was charged and dismissed from the Police Force on 28 September, 2000. The Court found inter alia that the defendant acted beyond his powers when he dismissed the plaintiff. The Court delivered its judgment in favour of the plaintiff on 20 September, 2004 and ordered his reinstatement. The plaintiff was out of his position for almost four years. The Court ordered that the plaintiff be reinstated without loss of salary and entitlements. In Jeffrey Afojah v. The Police Commissioner (2008) N3300, the plaintiff was charged and dismissed from the Police Force on 28 February, 2001, he was taken off the payroll on 26 September, 2000. The Court inter alia found that there was breach of the rules of natural justice by the defendant when dismissing the plaintiff who held the rank of a Senior Constable. The Court ordered that the plaintiff be reinstated and ordered that plaintiff's lost salaries and entitlements calculated from 1 January, 2004 to 7 April, 2008, be reimbursed to him. So the period for which plaintiff's lost salaries and entitlements were ordered to be reimbursed was just over four years three months. The plaintiff was out of his position for just over seven years. In that case, the Court relied on Mision Asiki v. Manasupe Zurenuoc (2005) SC797. In Benny Daniel v. Walter Kapty (2011) N4361, the plaintiff was first suspended without pay on 5 May, 2005, he was subsequently dismissed on 12 July, 2005. The plaintiff was charged before his dismissal but the Court found that no proper investigations were done before the charges were laid which led to plaintiff's termination. The Court consequently found that the plaintiff's dismissal was unlawful and ordered his reinstatement. The judgment of the Court was delivered on 26 July, 2011, in which the Court ordered that plaintiff's lost salaries and entitlements calculated from the date of his suspension without pay, which was 5 May, 2005, to the first scheduled trial date which was vacated by consent of the parties, which was 19 June, 2006, be paid to the plaintiff. So the period determined for the reimbursement of plaintiff's lost salaries and entitlements was just over one year one month. The plaintiff was out of his position for just over 6 years. In a much earlier case of Gideon Barereba v. Margeret Elias (2002) N2197, the plaintiff who had been a public servant for twenty four years was dismissed on 19 August, 1987. He was charged with disciplinary offences on 28 May, 1987, after investigating the plaintiff's termination, the Public Services Commission on 10 March, 1997, recommended that plaintiff be reinstated to his former position without loss of salary and entitlements, however, he was not reinstated. The plaintiff then sought judicial review of his termination, in finding that the plaintiff was unlawfully terminated, the Court after referring to a number of case law authorities and principles applied in those cases, refused to reinstate the plaintiff but found that the plaintiff was entitled to damages for a period of five years. The Court delivered its judgment on 15 February, 2002. The plaintiff in that case claimed lost salaries and entitlements for a period of fourteen years. In arriving at five year period as a reasonable period for such reimbursements, the court said the plaintiff who had been out of his position for almost fifteen years should seek damages. The Court therefore ordered the plaintiff to file a Statement of Claim for damages for a period equivalent to five years. I must say that I do not necessarily agree with the approach adopted by the Court in regard to the type of relief granted to the plaintiff in such a judicial review case, but I refer to the case to highlight the five year period the Court determined as being reasonable for purposes of calculating the plaintiff's damages for his unlawful termination after twenty years as a public servant.

31. These cases demonstrate that it is within the wide discretion of the Court to decide the period for which lost salaries and entitlements of a plaintiff should be reimbursed.

32. In the instant case, I have decided that the plaintiff should be reinstated and her lost salaries and entitlements, which includes K1.30 housing allowance per fortnight as shown in her letter of appointment dated 18 August, 2000, which is Annexure 'A' to plaintiff's affidavit sworn on 9 May, 2011, be reimbursed to her. As to the period for which such lost salaries and entitlements should be reimbursed, the delay in her appeal being finally dealt with by the NCDC appeals tribunal on March, 2010, is a relevant factor to take into account. In so doing, I do not think the plaintiff should be blamed for such a delay in her appeal being determined by the NCDC appeals tribunal because the real cause of the delay was that the plaintiff was not charged with any disciplinary offence before her purported termination and no notice of termination was served on the plaintiff, thus, the defendants could not make a case against her before the appeals tribunal. So the delay was caused by the defendants and such delay also shows the defendant's inefficiency, impropriety and lack of good faith in plaintiff's purported termination. Further, the fact that the plaintiff unsuccessfully tried to claim damages against the defendants in WS 428 of 2008, is not a matter for which the plaintiff should bear blame. In my view, she took that action because of the long delay by the defendants to deal with her appeal which she lodged in 2001. The other point to note is that the NCDC appeals tribunal dealt with the plaintiff's appeal only after the plaintiff's claim for damages was struck out and used that to dismiss her appeal, had it not been for that, there is good reason to infer that the plaintiff's appeal might have either been delayed further or might not have been dealt with at all.

33. This case is clearly distinguishable from the cases I have cited above because in those cases the plaintiffs were investigated, charged and formally terminated. This did not happen in plaintiff's case as dismissed above.

34. In regard to the period for which the plaintiff should be paid her lost salaries and entitlements, whilst I have found that the defendants are totally responsible for plaintiff's current predicament, including the delay in her appeal being determined, I take into account the fact that in the cases I have cited above in which lost salaries and entitlements for the plaintiffs were ordered to be reimbursed to the plaintiffs for periods ranging from one year to five years, it is also noted that in each of those cases the plaintiffs had been employed for many years. The plaintiff in this case started employment with the NCDC as a Probation Officer/Administration Clerk on 14 December, 1999. In less than a year on 18 August, 2000, she was confirmed to the position of a receptionist. Then on 16 November, 2000, she was permanently appointed to the position of Administration Clerk Grade 4, the appointment was made effective from 2 February, 2000.

35. On 21 October, 2000, she applied for three weeks recreation leave. That leave was approved, she took her leave on 14 December, 2000, when she returned from that leave, she found out from her work colleagues that she had been terminated.

36. It can be seen from this that the plaintiff was employed by NCDC for just one year.

37. Thus having regard to the facts and circumstances of the case, including possible contingencies and the approaches taken by the Court in the cases cited above, I consider that the period for which the plaintiff's lost salaries and entitlements should be calculated and reimbursed is seven years and there must be a starting and a cut off point for this period. I therefore order that the seven year period for which the plaintiff's lost salaries and entitlements are to be calculated and reimbursed is from 1 February, 2001 to 1 February, 2008.

38. After finding in favour of the plaintiff, I invited counsel to make submissions on the issue of costs. After hearing counsel, I have decided that not only costs will follow the event but the defendants should pay the plaintiff's costs on solicitor and client basis. The reason for coming to this view is that the plaintiff was forced to institute these proceedings by the defendants and had unnecessarily incurred costs. As I alluded to earlier, this is a case where the defendants should have opted to settle out of Court because the plaintiff was never charged nor was she terminated. Furthermore, every defence the defendants raised is a sham. They had no defence to these proceedings: Gulf Provincial Government v. Baimuru Trading Pty Ltd [1998] PNGLR 311; Don Pomb Pulie Poyle v. Jimson Sauk Papaki [2000] PNGLR 166; Salvation Army (PNG) Property Trust v. Jorgen and Rex Vagi N1644; Comcord Pacific Ltd v. Thomas New [2000] PNGLR 47.

39. Thus the Court makes following orders:-

1. The plaintiff's termination is unlawful.

2. The plaintiff be reinstated either to her former position of Administration Clerk Grade 4 or to an equivalent position with the NCDC staff structure.

3. The plaintiff's lost salaries and entitlements which include K1.30 per fortnight housing allowance be reimbursed to the plaintiff and that such lost salaries and entitlements be calculated for a period of seven years from 1 February, 2001 to 1 February, 2008.

4. The defendants to pay plaintiff's costs and incidentals to these proceedings on a solicitor and client basis.

39. Orders accordingly.

Public Employees Association Legal Division: Lawyers for the Plaintiff
NCDC Legal Division: Lawyers for the Defendants