National Court of Papua New Guinea

(2)  Thr Couy maeivecevidence ence on the hearing of an application for an order under Sub-rule (1)".

14. Tfendan support ofrt of the the MotioMotion rely on two affidavits by Mr. Philip Aeava, Chief Legal Officer with the Defendant and Mr. Asher Waffi, a Legal Officer with the Defendant's Counsel's Law firm Namani & Associates Lawyers.
    

ISSUE

The pertinent legal issue is whether the Plaintiff is estopped from further claim or legal action against the defendant under the DEED OF RELEASE signed between the Plaintiff and the Defendant on 30th April 2010 upon the Plaintiff's accepting retrenchment final pay out by defendant.

15. The Defendant's Defence Counsel files an extract submission in support of the motion relying squarely on the strength and validity of the Deed of Release as complete indemnities against the defendant in any future action initiated by Plaintiff against the defendant. However. the Plaintiff's Counsel submit in support of the action provided a inventory list of accountable documents the Plaintiff rely on and made reference to in his substantive affidavit dated 14th November 2013. The Plaintiff's Counsel submit that the Plaintiff's action is a valid claim as he signed the Deed of Release dated 30th April 2010 for (8) itemized inventory list pertaining to Notice of Retrenchment Entitlements upon which computation of final pay out figure was calculated as K58, 958.58, and it did not include outstanding Home Ownership Scheme accrued legal entitlement due and available to the Plaintiff as the Defendant's employee before his retirement through the retrenchment exercise.
    
16. The Defendant's Counsel in his submission in support of the motion seek relief under Order 12 Rule 40 (1) of the National Court Rules 1983 to dismiss the entire proceedings for being frivolous and vexatious and for failing to disclose a reasonable cause of action against the defendant/applicant. The Defendant plead that the Plaintiff's claim against the Defendant is frivolous and vexatious and failed to disclose any reasonable cause of action and is based basically on the premise that the accountable document called "DEED OF RELEASE" document has estopped or barred the Plaintiff from any future action against the defendant. For purposes of completeness, I have the opportunity to see the said document on file marked annexure "A" and have the liberty to reproduce the said Deed of Release document hereunder.
    

DEED OF RELEASE

THIS DEED OF RELEASE is made on the .......30th ......day of April 2010.

BETWEEN: MICAH WAMGON of C/- P O Box 6775, BOROKO, National Capital District (hereinafter called "the Releasor") of the first part.

AND: TELIKOM PNG LIMITED of P O Box1349, BOROKO, National Capital District, (hereinafter called "the Releasee") of the second part.

WHEREAS:

1. Prior to the execution of this Deed, the Releasor was an employee of the Releasee, working as a Senior Property Officer, Regional Operations based at Kokopo.
   
2. The Releasor commenced employment with the Releasee on 1st February 1984. He has been retrenched effective on 25th February 2010.
   

100. The Releasee has offered to pay to the Releasor the sum of FIFTY EIFGT THOUSAND NINE HUNDRED FORTY EIGHT KINA AND FIFTY ONE TOEA (K58,958.58) by cheque # 369002 dated 23rd April 2010 being the Releasor's final retrenchment entitlements due after tax and other deductions, details of which are attached hereto.
     

4. The Releasor has agreed to accept the above payment as his full and final entitlements.
   

NOW THIS DEED WITNESSETH and it is hereby agreed and declared between the parties that:

In consideration of the payments and benefits set out herein, the receipt of which is hereby acknowledged without any admission of liability by the Releasee and in complete settlement, satisfaction, compromise and discharge of all actions, claims proceedings, accounts, demands, costs and expenses whatsoever which the Releasor DOES HEREBY FOREVER RELEASES AND DISCHARGES the Releasee, its servants, employees or agents from same covenants to indemnity and to keep indemnified at all times the Releasee, its servants or employees against all actions, suits, claims, costs and demands by the Releasor, his heirs, Executors or Agents whatsoever and howsoever arising in respect of the abovementioned cessation of employment.

IN WITNESS WHEREOF the Parties have executed this DEED OF RELAEASE on the day and year first hereinafter mentioned.

SIGNED by the said Releasor )

In the presence of: ) ) signed..................................

) MICAH WAMGON

signed................................................. )

WITNESS ) )

)

Name:

SIGNED for and on behalf of )

TELIKOM PNG LIMITED by its )

Duly authorized officer in the )

)

presence of: ) signed..................................

) ARUA. G. TARVATU

) Head of Corporate Services

)

)

signed................................................... )

WITNESS )

)

Name: )

17. The Plaintiff's Counsel in a brief respond did admit that the Plaintiff did sign the Deed of Release document on 30th April 2010, but claims that it was applicable for the Retrenchment Final Entitlement Pay out only and did not include the accrued Legal Entitlement from Telecommunication Workers Union in-house Home Ownership Scheme (HOS). When the Plaintiff expressed his interest and intention to be retrenched under the Telikom PNG Limited administrative re-arrangement and re-organization of the management structure initiative, the Plaintiff request and decide to sever the Plaintiff's employment with the Defendant Company effective on 25th February 2010 under Part A 2.2 Section 28 (a) (v) of the Enterprise Business Agreement (EBA) of 2004. On 11th December 2009 the acting Head of Human Resources Mr. Paul Tevlone with the Defendant Company wrote to the Plaintiff advising the Plaintiff of his final entitlements on personal emoluments of salaries and allowances from Telikom Retrenchment Provisions under this declaration as follows. They are:
    
    1. Pro-rata Recreational Leave Pay – Leave (MILOL);
    2. Pro-rata Recreational Leave Pay – Furlough (MILOF);
    3. Four (4) Months Money in lieu of Notice (MILON);
    4. Ex-gratia Payments based on the number of years of service;
    5. Payment of NSF contributions, subject to NSF policies;
    6. Repatriation cost for you and your declared dependents to your home village/province as per 2004 EBA Clause 12.2 (b);
    7. Settling and other Allowance, and;
    8. Freight Cost for your personal effects of up to 700kg.

The Plaintiff was further advice that the final severance entitlements will be paid as soon as the attached Clearance Certificate is duly completed and promptly returned to Team Leader Payroll by the Plaintiff.

18. Whilst I did have the opportunity to look at the itemized list of entitlements referred to above in the Notice of Retrenchment Final pay out document, I did not have the benefit to see what a "Clearance Certificate" document looks like and what its contents are and what purpose it serves as there is no attachment of a copy of the said document referred to as "Clearance Certificate" by parties. However, it was a very useful piece of document because upon its completion by the Plaintiff and return to Team Leader Payroll, this triggered off the computation of the final Retrenchment Entitlements and eventual final payment to the Plaintiff. I am of the view that Clearance Certificate document may refer to eight (8) itemized lists of Retrenchment Entitlements that form part and parcel of the Deed of Release that the Defendant refer to that indemnified them from any future unpaid outstanding monetary claim by the Plaintiff.
    

APPLICATION OF LAW TO THE FACTS

19. The Defendant from the outset submit and mount the first legal argument based on the grounds that the plaintiff has relinquished his right to the legal entitlement under Home Ownership Scheme when he voluntarily signed the Deed of Release on 30th April 2010 from any future claims against the defendant. The defendant's counsel did cover quite substantively the precise legal definition of what the words "Deed" and "Release" means under the Osborn's Concise Law Dictionary and made some comparative analysis and reference to a case law on this point, in the case of Polume v Benny (2008) PGNC 61: N3350 (24th April 2008) Kirriwom J, said that:
    

"Deed of Release is a legal document that everyone knows that once executed, a party is bound by what the deed is committing them to. It does not exclude other claims arising out of that accident such as loss of business..."

In the above case the Plaintiff's vehicle was involved in an accident with the defendants'. The defendants' vehicle had a private insurance to cover this sort of incidents. The defendant instructed his insurers (Tower Insurance) and Plaintiff was paid out the maintenance cost of his vehicle of sum of K15,000.00 upon signing of a Deed of Release.

The Plaintiff later filed proceedings against the defendant claiming loss of business as a result of the accident. In the pleadings, the plaintiff did not disclose the fact that he had received payment from the defendant's insurer upon signing of a Deed of Release.

The Court upon being made aware said that the Plaintiff was not coming to Court with clean hands because he failed to disclose the fact that he had received payment from the defendants' insurers and secondly and most importantly "the deed of release is quite explicit in its purport and effect".

20. In respect to the Deed of Release signed by the Plaintiff upon his retirement from active service with the defendant through Retrenchment exercise was in respect to the (8) itemized inventory list pertaining to his computated final pay out monetary entitlements. If the Plaintiff is taking issue for improper computed figures as under payment from any one of the (8) itemized inventory list, it would be proper for the defendant to object in this motion. That would be in order as per the Deed of Release per se. I take the contrary view to the defendants blanket approach under Deed of Release to bandage the Plaintiff's accrued legal entitlement under the defendant's Home Ownership Scheme (HOS) rightfully earned and available to him. Hence the issue in this matter is:
    
    1. Whether the Plaintiff is estopped from further claim or legal action against the defendant under the DEED OF RELEASE signed between the Plaintiff and the Defendant on 30th April 2010 upon the Plaintiff's accepting retrenchment pay out by the defendant.
       
21. The defendants gave Notice of Retrenchment to the Plaintiff that comprise and consist of (8) Human Resource and accounts charted itemized list of inventory final pay out headings comprised of:
    
    1. Pro-rata Recreational Leave Pay – Leave (MILOL);
    2. Pro-rata Recreational Leave Pay – Furlough (MILOF);
    3. Four (4) Months Money in lieu of Notice (MILON);
    4. Ex-gratia Payments based on the number of years of service;
    5. Payment of NSF contributions, subject to NSF policies;
    6. Repatriation cost for you and your declared dependents to your home village/province as per 2004 EBA Clause 12.2 (b);
    7. Settling and Allowance, and;
    8. Freight Cost for your personal effects of up to 700kg.
       
22. The Deed of Release in its preamble states:
    
    1. Prior to the execution of this Deed, the Releasor was an employee of the Releasee, working as a Senior Property Officer, Regional Operations based at Kokopo.
       
    2. The Releasor commenced employment with the Releasee on 1st February 1984. He has been retrenched effective on 25th February 2010.
       
    100. The Releasee has offered to pay to the Releasor the sum of FIFTY EIFGT THOUSAND NINE HUNDRED FORTY EIGHT KINA AND FIFTY ONE TOEA (K58,958.58) by cheque # 369002 dated 23rd April 2010 being the Releasor's final retrenchment entitlements due after tax and other deductions, details of which are attached hereto.
         
    4. The Releasor has agreed to accept the above payment as his full and final entitlements.
       
23. The clause "D" in the Deed of Release dated 30th April 2010 clearly provides a total bar against the defendant for any future monetary claim against the defendant in respect to the (8) itemized Human Resource charted accounts headings on the retrenchment entitlements, if in the event of miscalculations under payment of any one of the (8) itemized list of charted accounts. It is my humble view, that Home Ownership Scheme is a standalone program and it was made available to approved employees including the Plaintiff as well, and it is up to the Plaintiff to forget about it upon receipt of his retrenchment package or further progress his right to have access and enjoy the benefit from the Home Ownership Scheme like the other employees, who had already benefited upon their retirement. The Plaintiff, since expressing his interest to participate in the Home Ownership Scheme was denied by the Defendant through its inaction to make a registered land title under his name available to him, apart from numerous administrative initiatives by letters on the subject matter to release the property title situated at Section: 39 Lot: 64 at Kenabot to him. The Plaintiff did not access the Home Ownership Scheme before his retrenchment. It was indeed, not due to his own fault but due to the defendant's constructive negligent that contributed to this unfortunate outcome which the Plaintiff had no other option but to seek redress before a Court of law. Hence, this action on foot now before this Court. The Deed of Release, on its preamble is very clear and precise in its intended purpose as reflected in the main body of the document in respect to itemized list of Retrenchment Entitlements and I intend to reproduce it hereunder to reflect parties intention and commitment contain therein and it reads:
    

"NOW THIS DEED WITNESSETH and it is hereby agreed and declared between the parties that:

In consideration of the payments and benefits set out herein, the receipt of which is hereby acknowledged without any admission of liability by the Releasee and in complete settlement, satisfaction, compromise and discharge of all actions, claims proceedings, accounts, demands, costs and expenses whatsoever which the Releasor DOES HEREBY FOREVER RELEASES AND DISCHARGES the Releasee, its servants, employees or agents from same covenants to indemnity and to keep indemnified at all times the Releasee, its servants or employees against all actions, suits, claims, costs and demands by the Releasor, his heirs, Executors or Agents whatsoever and howsoever arising in respect of the abovementioned cessation of employment." (underline emphasis is mine)

24. The main body of the Deed of Release comprise of three (3) main parts. Firstly the Deed of Release confirms parties' commitments to the event that the parties are voluntarily agreeing and committing themselves into. For an E.g. NOW THIS DEED WITNESSETH and it is hereby agreed and declared between the parties that: In consideration of the payments and benefits set out herein and the receipt of which is hereby acknowledged by the plaintiff. The payment is in regard to final payments and benefits set out herein and refer to as eight (8) specific itemized entitlements charted accounts headings. The second part to this Deed of Release is that the Plaintiff's confirmed payments from the defendant is final and complete settlement and releases the defendant from any future claim by the Plaintiff or its agents and servants etc. The third (3) part to the Deed of Release, in my view, is the total release by Plaintiff of any future conceivable short fall in consideration of the payments and benefits set out in the Notice of Retrenchment as eight (8) itemized charted accounts headings refer to in this Deed of Release signed between the Plaintiff and the Defendant.
    
25. The other issue that surface in this action is the Defendant's inability to deal with its own employee on double dipping over entitlement in the same Home Ownership Scheme program by Mr. Blaise Malagau, whose action has disadvantaged the Plaintiff's accrued legal entitlement under the Home Ownership Scheme program. The Plaintiff therefore has no other option but to seek Courts intervention to progress his accrued legal right under the scheme and maintain the integrity of the Defendant's in-house Home Ownership Scheme. That is, the Home Ownership Scheme by the Defendant is not abused by one person who may benefit twice in the same program; like in the case of employee namely Mr. Blaise Malagau. There is sufficient evidence that shows that Mr. Blaise Malagau has access, the subject property here in Kokopo and also uses the same program to acquire another property in Kimbe. Since, he has used the same scheme and acquired a property in Kimbe, the property in Kokopo should be released to the Plaintiff as formally endorsed by the Defendant Executive Management team and this is evidence through voluminous letters by the defendant's Management team to Mr. Blaise Malagau to surrender the property title at section 39 allotment 64, Kenabot Kokopo but these initiatives were to no avail until the Plaintiff got retrenched.
    
26. The Plaintiff under the defendant's Home Ownership Scheme program suffered quite substantively for what is legally due to him as his legal entitlement and not as a hand out. The Plaintiff missed out on Suspensory Loan provided by BSP Bank under the scheme and also totally missed out on the defendant's land allocation under the Home Ownership Scheme is not the Plaintiffs own making by default but by the Defendant Management Team and another employee namely Mr. Blaise Malagau's lack of professional cooperation with the Defendants Management Team. What the Defendant has failed to do is to seek the Courts intervention through a Court Order against Mr. Blaise Malagau to surrender the title to section 39 allotment 64 to the Defendant to have it surrendered to Registrar of Titles with the Department of Lands & Physical Planning (DLPP) to re-issue a new title to the Plaintiff as new proprietor of section 39 allotment 64 Kenabot, Kokopo to comply with the said in-house Defendant's Home Ownership Scheme policy.
    
27. The second Defendant's legal argument in support of the motion that the defendant based its legal defence on the ground that the Plaintiff's claim has no cause of action at law against the defendant. Hence, it renders the claim vexatious and frivolous. The Defendant referred to the case of State v Painke [1976] PNGLR 210 where O'Leary AJ said the following:
    

"Abuse of the process of the court is an expression used to describe any use of the process or procedures of the court for an improper purpose or in an improper way. It encompasses a wide range of situations. Thus, in civil actions, to commence or pursue proceedings which disclose no cause of action or which are frivolous or vexatious is an abuse of process of the court".

The court went on further and said;

"The steps which the court may and will take to prevent an abuse of the process must vary from one situation to another. The most usual ones are those of staying or dismissing proceedings and of striking out pleadings or part of pleadings"

28. On the second ground of the Defendant's Counsel's submission why the matter should be dismissed purely based on its frivolity and vexatious nature or action borders on abuse of process. On this point of law the Defendant's Counsel made reference to the case of Wabia v BP Exploration Co Ltd [1998] PNGLR 8, Sevua J, said the following:
    

"Pursuant to Order 12 r 40 of the National Court Rules and the Courts inherent powers, the Court has a duty to protect its process by ensuring vexatious litigants do not abuse the Court process by instituting frivolous and vexatious suits. If the proceedings are considered an abuse of the Courts process, the Court has a duty to protect its dignity and integrity, and can use its inherent powers to dismiss such frivolity, vexatious or abuse."

29. I am indebted to the Defendant's Counsel's further submission to define the two terms on Frivolous and Vexatious in the following manner and restate the two terms as follows:
    

"Frivolous" by its ordinary meaning means 'not worth serious attention as manifestly futile.' Proceedings which disclose no reasonable cause of action as well as proceedings which are otherwise unsustainable are frivolous in this sense."

"Vexation"by its ordinary meaning means 'causing vexation or harassment.' It is used to describe the harassment of a defendant being put to the trouble and expense of defending proceedings which are either a mere sham, or which cannot possibly succeed".

His Honour Sevua J, (as he then was) finally concludes that the proceedings which disclose no reasonable cause of action or which are frivolous or vexatious amount to an abuse of the process of the court. Order 12 r. 40(1) of the National Court Rules confers power on the court to dismiss such proceedings".

30. In view of the Defendant's legal proposition that the action by the Plaintiff should be dismissed for its frivolity and vexatious nature and being an abuse of court process, I must state here that I do differ from Defence Counsel's legal proposition in that the Plaintiff's action is based on accrued legal entitlement during the currency of his official legal engagement with the Defendant until his retrenchment. The Plaintiff neither forfeits his legal entitlement nor he consent to it to forego it as the Defendant appears to claim in the retrenchment exercise Deed of Release document. The Plaintiff's legal entitlement was created during the currency of his employment and that legal entitlement never realized upon his retrenchment. The Plaintiff was however, denied of his right to have access and benefit under the Home Ownership Scheme before his retrenchment from active public service with the Defendant. There is sufficient documentary evidence on file that the Defendant can be commended for doing everything possible for the Plaintiff to have the said property located at Lot: 64 Section: 39 Kenabot, however, all these administrative initiatives and effort went begging, when the Defendant was not able to dispossessed the Title from the Titleholder and have it surrendered to the Registrar of Titles for re-issue of a new title to the Plaintiff through the Office of the Registrar of Titles with Department of Lands & Physical Planning (DLPP). This was never done to this date, hence this action by the Plaintiff now before this court is to enforce his accrued employees'legal right and to acquire his legal entitlement under the Defendants Home Ownership Scheme.
    
31. The number of relevant case laws provided by the Defendant's counsel have provided some persuasive legal assistance on the second legal issue referred to; but I do hold a contrary view and differ from their application in this case because, I am of the view, that the Plaintiff's legal entitlement created under the standalone benefit derived from Enterprise Business Agreement that provided the legal framework for the creation of Defendant's Home Ownership Scheme for its approved employees, do create a legal cause of action at law that was acquired during the currency of the Plaintiffs employment with the Defendant. This is further demonstrated by the parties conduct in this matter to the time of the Plaintiff's final retrenchment from the Defendant's employment. I hold a firm view, that this was a standalone program available to the entire Defendant's employees that they will have access to and use the Home Ownership Scheme to facilitate their transition out from the Defendant's institutional accommodation and walk into their own accommodation under the Home Ownership Scheme upon their retirement/retrenchment. The Defendant's master plan for all its employees under the Home Ownership Scheme was the Defendant's future Institutional vision as a package upon retirement/retrenchment for all and this was a legal entitlement to the Plaintiff but slipped out of his hand because the Defendant's Management Team has denied the Plaintiff of his legal entitlement and opportunity went begging and the Plaintiff is still stuck in the Defendant's institutional accommodation through no fault of his own.
    
32. It is my humble view, that if the Defendant has honoured its' legal obligation and commitment during the currency of the Plaintiff's active employment period before his retirement, the Plaintiff would not have landed in the unfortunate situation that he is in now, after his retrenchment. What was really lacking from the Defendant's Management Team is the lack of performance of its legal duty and obligation under its Home Ownership Scheme and was to be proactive and take constructive legal action rather than just mere lip service that culminated into voluminous internal administrative memos and letters exchanging from seniors officers corridors within the Defendant's organization. These administrative actions or inactions have turned out to be very disastrous for the Plaintiff upon taking on his retrenchment journey after an active public service life with the Defendant.
    

CONCLUSION

33. I have the liberty to reflect briefly and provide a succinct summation on the Plaintiff's unfortunate dilemma under the Home Ownership Scheme provided by the Defendant for its employees. It is an undeniable fact that the scheme was legally available to all employees. In this case, if the defendant has honoured its legal commitment as planned under the Home Ownership Scheme, the Plaintiff would not have been disadvantaged as is the case now. I take time to look at the conduct of parties in respect to Home Ownership Scheme provided by the defendants and have some appreciation of parties intention on the subject matter; though the parties commitment was very positive, but lacks real and proactive action by the responsible officers with the Defendant, hence, the Plaintiffs dream was never realized. This was as a direct result of the defendant's responsible officers' lack of positive action to dispose the titleholder Mr. Blaise Malagau of Section: 36&Lot: 64 Kenabot that was legally allocated to the Plaintiff.
    
34. However, the plaintiff before retrenchment was never given the title to the property by the Defendant until he was retrenched as an option to pursue his unaccomplished accrued legal entitlement after his retrenchment from active service. I am of the view that the plaintiff's legal entitlement does not diminish on the face of the Retrenchment Entitlement Final Payment Deed of Release because Home Ownership Scheme was never part of the Retrenchment Deed of Release (8) itemized final entitlement pay out package. And so the Plaintiff has the option to further pursue his accrued legal interestas accrued employee entitlement or he has a choice to forget all about it once and for all.
    
35. In this case the Plaintiff decided to further pursue his accrued legal entitlement because the defendant has given notice for him to vacate the Institutional house since he has retired from the defendant's employment, which is the legal option available to the defendant. The defendant did have a vision for its' employees future after their active service with the defendant as a Government agent, hence, the Home Ownership Scheme for its approved employees in the communication service industry to have a home upon their retirement with the defendant is a standalone program.
    
36. The Plaintiff's legal entitlement on Home Ownership Scheme, in my view, is not diminished upon Retrenchment Final Entitlements pay out when the Plaintiff signed the DEED OF RELEASE. The said Deed of Release is only applicable to the Plaintiff's legal personal emoluments chartered accounts on eight itemized headings where the Plaintiff's final Retrenchment Entitlement payments was computed and paid. The Plaintiff is entitled to realize his accrued legal entitlement under the Home Ownership Scheme provided by the defendant under the Enterprise Business Agreement. The defendant by not revoking and re-issuing the Section 36: Allotment: 64, Kenabot allocated to former employee Blaise Malagau is in breach of the spirit of the Home Ownership Scheme, in particular one suspensory loan to one property not two property out of one legal entitlement. It is my humble view that it does not take two wrong to make one right, Hence, this action is to correct that wrong for bad precedent. It is indeed quite contradictory to the spirit of the Home Ownership Scheme that an employee like Mr. Blaise Malagau who could benefit from the Scheme twice by default has a registered title to Section 39 &Lot 64 Kenabot and still was allowed by the Defendant to access his suspensory loan to secure another property at Kimbe under the same Defendant's Home Ownership Scheme. The Defendant's Management Team did not take legal action to dispossess the Title over section 39 and allotment 64 Kenabot, Kokopo from Mr. Blaise Malagau and transfer it to the Plaintiff but indirectly allowed the Plaintiff to suffer until his retrenchment.
    
37. In view of the matters as alluded to in my foregoing deliberations and brief summation in my conclusion remarks, I am compelled by the justice of the case and public policy considerations and public interest dictates that legal and equity consideration swings the justice pendulum in favor of the Plaintiff. The Court refuses the motion by defendant with cost.

ORDER

38. The Court accordingly makes the following orders:
    
    1. The Court refuses the motion by the defendant with cost in favor of the plaintiff, if not agreed to be taxed.
       

2. Matter adjourned for parties to advice on a trial date.

________________________________________
Motuwe Lawyers: Lawyers for the Plaintiff
Namani Lawyers: Lawyers for the Defendant