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Marfu v Gaupu [2020] PGNC 344; N8537 (9 July 2020)

N8537

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO.104 OF 2020

BETWEEN
JEFFRIE MARFU
Plaintiff

AND
BOTO GAUPU –Chief Executive Officer of Cocoa Board of Papua New Guinea
Defendant

Kokopo: Suelip AJ
2020: 20^th March, 8^th May, 16^th June & 9^th July

CIVIL - Practice and procedure - OS filed by plaintiff in person seeking declaration of his alleged termination null and void- OS also seeks order for his entitlements be restored and balance of his contract term completed - Notice of Motion seeking order for defendant be restrained from removing plaintiff from institutional residence until proceedings are finalised - Order 14 rule 10 of the National Court Rules - competency - whether Order 14 rule 10 is the correct source

Papua New Guinea Cases

NKW Holdings Ltd v. Paladin Solutions PNG Ltd -N8135

References

National Court Rules Ch No. 38

Counsel

Natasha Rainol, for the Plaintiff
Paul Yange, for the Defendant

RULING

9^th July, 2020

1. SUELIP AJ: I have a notice of motion filed on 19 March 2020 by the plaintiff seeking to dispense with the requirement for service and for an order that the defendant be restrained from removing the plaintiff from the institutional residence until the finalization of these proceedings.

2. When the matter first came before me on 20 March, I had directed that the originating summons, the notice of motion and all the supporting documents including the Undertaking as to Damages be served on the defendant and for the plaintiff to file an affidavit of service before I can hear the matter. I had then adjourned to 25 March 2020 for hearing.

3. The application was not heard on 25 March for reasons twofold. The first is due to the coronavirus lockdown and the second is because an affidavit of service was not filed. ·

4. The application was then listed on 18 May 2020 however, still no affidavit of service was filed and there was also no appearance by the defendant. I again directed that an affidavit of service be filed, and the defendant be notified of the new hearing date of the plaintiff's application which is on 16 June 2020.
5. The plaintiff’s application was heard on 16 June 2020 and I reserved my ruling.
6. This is now my ruling.

Originating Summons

7. In the originating summons, it states that the plaintiff is a contract officer with Cocoa Board of Papua New Guinea, holding the office of Director Research based at Tavilo, Kerevat in East New Britain Province and was charged on 18 February 2020 on four generalized and unsubstantial charges. He responded to the charges on 20 February 2020. He was then terminated on 6 March 2020 without the defendant adhering to termination procedures provided under Schedule C3 Clause 16 of the plaintiff's Employment Contract signed on 17 December 2018.
8. The plaintiff therefore claims;

(a) A declaration that the purported charges of 18 February 2020 and the subsequent termination of the plaintiff on 06 March 2020 are null and void and of no legal effect.

(b) An order that all entitlements including wages, housing, plus perks and privileges enjoyed under the terms of his employment contract be fully restored to him including privileges and benefits accruing to him by virtue of the office he holds -namely Director Research.

(c) An order that plaintiff returns to his place of work and serve out the balance of his employment contract.

(d) Any order for costs of and incidental to this proceeding.

Motion for restraining order

9. In the plaintiffs notice of motion, he seeks an order that the defendant be restrained from being removed from the institutional residence until this proceeding is finalised.

10. The basis of the application is Order 14 rule 10 of the National Court Rules (NCR) which provide:

ORDER 14 -MISCELLANEOUS POWERS OF THE COURT

Division 2. - Interim preservation, etc ...

Preservation of property. (2812)

(1) In proceedings concerning any property, or in proceedings in which any question may arise as to any property, the Court may make orders for the detention, custody or preservation of the property.

(2) An order under Sub-rule (1) may authorize any person to enter any land or to do any other thing for the purpose of giving effect to the order.
(3) In proceedings concerning the right of any party to a fund, the Court

may order that the fund be paid into Court or otherwise secured
Issue

11. The issue is whether the plaintiff has invoked the correct jurisdictional basis in the relief to render the notice of motion competent?

12. If so, the next issue is whether this is a serious case that warrants the granting of an order restraining the defendant from removing him from the institutional house until these proceedings are finalized.

Competency

13. Before I can delve any further, let me address the competency of the plaintiff’s application. The defendant raised amongst others, issues regarding the competency of the plaintiff’s originating summons and the notice of motion. The defendant submitted that for this Court to find triable issues, it will look at the originating summons where the plaintiff is seeking 1 declaration and 3 consequential orders. The defendant submitted that although, there appears to be quite serious facts and matters, those facts need to be pleaded properly so the defendant has the opportunity to defend adequately. The defendant submitted further that what the plaintiff has alleged is quite general and provides no legal basis for such allegations. He says the plaintiff has not indicated the legal element or ingredient that makes such a determination to be declared null and void. Counsel submitted that there are several cases that show there is a need to properly plead facts, however, he did not specify the cases nor provide copies of those judgments. Counsel further submitted that as it is, the pleadings do not demonstrate a clear case for trial and for the continuation of these proceedings.

14. Counsel for the defendant also submitted that the plaintiff has also alleged that the defendant has failed to establish a disciplinary committee to hear the plaintiff’s case, and he says those are matters that need to be properly pleaded. The defendant counsel submitted that pleadings do not demonstrate a triable issue if this proceeding were to continue.

15. The defendant further submitted that the defendant is not the correct party to be named as he does not own the entity and therefore any restraining orders made against the defendant is ambiguous. The defendant submitted that the orders sought in the notice of motion is not pleaded in the originating summons and therefore lacks foundation for the plaintiff to seek the reliefs he desires in the interim and as such, the proceeding cannot be sustained. Finally, the defendant submitted that this is a case where the plaintiff is alleging breach of contract and the proper form is a Writ of Summons containing a Statement of Claim and in most cases the plaintiff would be entitled to damages where the Court finds there is breach.

16. In response, counsel for the plaintiff submitted that the correct mode was used pursuant to Order 4 rule 7 of the NCR where the plaintiff is seeking relief for interim orders and further seeks a claim for the determination or direction by the Court on any questions surrounding the manner in which the plaintiffs employment contract was terminated. She submitted that what is before the Court is the plaintiff's notice of motion for a restraining order and the Court is to consider it with the evidence presented to make a decision when exercising the Court's discretion and in the interest of justice.

17. The defendant presented some valid legal arguments in his oral submission on the competency of the originating process and the notice of motion. However, what is before me at this juncture is the plaintiffs notice of motion which seeks an order for the defendant to be restrained from removing the plaintiff from the institutional residence. The defendant did not make submission on the jurisdiction of the Court to decide on whether or not to grant the interim orders sought by the plaintiff pursuant to Order 14 rule 10 of the NCR.

18. More importantly, the plaintiff is alleging unlawful termination of an employment contract. He says he was wrongfully terminated for reasons unsubstantiated and from the evidence he has presented so far, there are serious facts and issues to be tried but has he pleaded those facts and issues adequately?

19. In NKW Holdings Ltd v. Paladin Solutions PNG Ltd - N8135, Anis J held that Order 14 rule 10 did not apply in that case as it is a claim to recover debt based on a purported contract. It is not a claim for or concerning preservation of a property.

20. In his originating summons, the plaintiff herein seeks a declaration to nullify the charges against him and his termination. He further seeks orders for his entitlements and for him to serve the balance of his contract, respectively. Clearly, this is does not concern a property, land or a fund.

21. I therefore find the notice of motion incompetent.

Other issue

22. As I have found the plaintiff's notice of motion incompetent, it is not necessary to deal with the other issue.

Summary

23. In the end, I will refuse the plaintiff's notice of motion for being incompetent as it does not seek interim preservation of a property, land or a fund. This is a matter alleging unlawful termination of an employment contract and the plaintiff is seeking an interim order to restrain the defendant from removing him from the institutional residence. The plaintiff did not invoke the correct jurisdiction of this Court to grant the orders being sought and so, I make the following orders:

1. Plaintiffs notice of motion for the restraining order is refused.
2. Costs of and incidental to this application is for the defendant and will be taxed if not agreed to.

_______________________________________________________________________
NatPhil Lawyers: Lawyers for the Plaintiff
Islands Legal Services: Lawyers for the Defendant