N10062

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 552 OF 2021

BETWEEN

SEEADLER GENBILL
Plaintiff

AND

ROY MOORE
First Defendant

AND

SAMARAI PLASTIC LIMITED
Second Defendant

Lae:  Dowa J
2022:    11th & 23rd March

PRACTICE AND PROCEDURE- application for dismissal of proceedings for disclosing no reasonable cause of action-pleadings fail to disclose reasonable cause of action-on admitted facts case is untenable if allowed to proceed to trial-proceedings summarily dismissed 
EMPLOYMENT LAW -simple employment contract governed by Employment Act- principles applicable in termination of simple contract of employment
 
Cases Cited:
Mt Hagen Urban Local Level Government v Sek No.15(2009) SC1007 
PNG Forest Products v State [1992] PNGLR 85
Ronny Wabia v BP Exploration Co. Ltd [1998] PNGLR 8
Wabia v BPPetroleum (2009) N4337 
National Provident Fund Board v Maladina & Others (2003) N2486
Ruhuwamo v PNG Ports Corporation (2019) N8021

Counsel

No Appearance by the Plaintiff
Ms Bue, for the Defendants
RULING
23rd March, 2022
1.	DOWA J:	This is a ruling on an interlocutory application by the Defendants. 

2. 	The Defendants apply for dismissal of proceedings pursuant to Order 12 Rule 40(1) of the National Court Rules for being frivolous and vexatious.
Brief Facts
3. 	The Plaintiff is a former employee of the 2nd Defendant.  He was employed as a forklift operator.  On 18th February 2021 he was terminated from employment.  He was dismissed for being negligent in the performance of his duties. The Plaintiff alleges he was unfairly treated and instituted the current proceedings for unlawful termination.
       The hearing
4.    The Defendant’s application was first mentioned on 11th February 2022. It was adjourned to 4th March 2022. On both occasions the Plaintiff made no appearance. The Defendant’s lawyers were directed to notify the Plaintiff through the office of the Public Solicitors office in Lae being the official and last known address of the Plaintiff. Although the Public Solicitor filed a Notice of Ceasing to Act, there is no evidence that the lawyers at the Lae office have notified the Plaintiff of their decision. That being the case the Public Solicitor remains the lawyer for the Plaintiff. Despite being advised by the Defendant’s lawyers and by the Court Registry the Plaintiff and his lawyers did not turn up in Court to defend the application.

Issues
5. 	The issue for consideration is whether the proceedings be dismissed for being frivolous and vexatious and for abuse of the process.
The Defendants’ Application
6.	The Defendants seek dismissal of the Plaintiff’s proceedings under Order 12 Rule 40(1) of the National Court Rules for being frivolous and vexatious.  The Defendants rely on the Affidavit of Lillian Kori who deposes that the Plaintiff was terminated from employment for negligent driving of the forklift which caused injury to a fellow worker and damage to goods(boats). The defendants considered the Plaintiff’s negligence a gross misconduct especially when it is a repeated offence. The Plaintiff was previously warned in a similar incident. The second Defendant therefore summarily dismissed the Plaintiff from employment. The Defendants say the Plaintiff does not have a cause of action and that the proceedings are frivolous and vexatious.

The Law

7.	Order 12 Rule 40(1) of the National Court Rules reads:
“Frivolity, etc. (13/5)
(1)	 Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-
•	(a) No reasonable cause of action is disclosed; or
•	(b) The proceedings are frivolous or vexatious; or
•	(c) The proceedings are an abuse of the process of the Court,
The Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”
8.	The law on applications under Order 12 Rule 40(1) of the National Court Rules is settled. In the case, PNG Forest Products v State (1992) PNG LR84-85 the Court adopting some English Court phrases stated that a court be slow and cautious in entertaining applications for dismissal of proceedings on the grounds of a party disclosing no reasonable cause of action. A Plaintiff should not be driven from the judgment seat unless the case is “unarguable” or the cause of action is “obviously and almost incontestably bad, or plainly untenable. In that case, the Court also said the Court has a discretionary power to dismiss if the proceedings are an abuse of the Court process.

9.	On the other hand, there are other string of cases that developed the principle that, where the case is vexatious or frivolous and that it is unlikely to succeed, the case can be summarily determined. Ronny Wabia v BP Exploration Co. Ltd (1998) PNGLR 8, and Wabia v BP Petroleum (2009) N4337. And National Provident Fund Board v Maladina & Others (2003) N2486. 

10.	In NPF v Maladina, Kandakasi J, (as he then was) said:
“The law on pleadings generally is settled in our jurisdiction. A clearest statement of the law is by the Supreme Court in Motor Vehicles Insurance (PNG) Trust v. John Etape, in these terms:
"‘besides requiring that certain matters be pleaded specifically, the rules also contain a number of provisions which require a party to furnish in or with his pleadings, particulars of his claim or defence or other matter pleaded. The function of particulars is ‘to let (a party) know what case he will have to meet and to enable him to know what evidence he ought to be prepared with’. The object is ‘to ensure as far as is practicable, that proceedings between parties would result in a determination of the rights of the parties according to law and to limit if not eradicate the number of cases in which technologies can cause the proceedings to miscarry. Generally speaking justice will be more readily and speedily attained if each party is fully aware of the precise nature of the allegations made by the other’.
Particulars are in fact an extension of the pleadings — they control the generality of the pleadings. In Pilato -v- Metropolitan Water Sewerage and Drainange Board, McClemens J said at 365 – ‘Pleadings define the issues in general terms. Particulars control the generality of the pleadings and restrict the evidence to be led by the parties at the trial and give the other party such information as may enable him to know what case he will be met with at the trial and prevent surprise. Evidence enables the tribunal within the ambit of the general definition of the issues, affected by the pleadings and limited by the particulars, to decide where the truth lies’."
        Submissions of parties

11.  Ms Bue, counsel for the defendants submits that the Plaintiff’s statement of claim does not disclose a reasonable cause of action. The Plaintiff has not pleaded how the termination of employment by the defendants was unlawful. Ms Bue submitted further that the Plaintiff admitted causing the accident and this entitled the defendants to terminate the contract of employment. The Plaintiff did not attend Court to make any submissions in response. 

         Reasons for Decision

12.   The Defendant’s application for dismissal is made pursuant to Order 12 Rule 40 (1) of the National Court Rules. In my view, the purpose of Order 12 Rule 40(1) of the National Court Rules is to provide for summary determination of the Plaintiff’s proceedings where it is plain and clear based on the pleadings that no triable cause of action is disclosed or where some common and proven facts show that the proceedings will not succeed if it proceeds to trial.  Where common and proven facts show that the claim is untenable, no amount of evidence, or amendment to the pleadings will cure or improve the facts on which the claim is based.  It is in the interest of all parties to terminate the proceedings early to avoid cost of a prolonged and winding litigation. The Court should not give the impression that the factual situation will change with the passing of time or that the Plaintiff’s chances of success will improve with more litigation. After all, the Court has a duty to protect itself from abuse of the Court process by entertaining unmeritorious claims which will only consume time and resources. 

13.  Although the Plaintiff has not made any submissions in person, he has filed an affidavit on 6th October 2021 which I will consider. Basically, the Plaintiff deposes that although he caused the accident, it was accidental. He was asked to resign which he refused because he needed the job. He was eventually terminated and was not paid his entitlements. The common and admitted facts is that the Plaintiff caused the accident while operating a forklift at the workplace. The Plaintiff admitted the incident in paragraphs 6-11 of his Affidavit sworn and filed 6th October 2021. The Plaintiff says the incident was accidental and not intentional. However, the Plaintiff did not plead clearly how and why his termination of employment by the defendants was wrongful. He did not plead particulars of his employment, that is whether his employment contract was in writing or verbal, the period of employment, his salary, and entitlements. Although the Plaintiff says he was not paid his entitlements, he did not particularise the amounts claimed.

14.   Although the Plaintiff did not provide sufficient facts in his pleadings, what is clear and common to both parties is that the Plaintiff’s contract of employment was terminated for causing an industrial accident. The defendant considered the actions of the Plaintiff as neglect of duty especially a breach of the Work, Health and Safety Regulation which formed part of the employment terms of the workers including the Plaintiff and terminated the employment. 

15. The law on termination of simple employment contract is settled in this jurisdiction.  In Ruhuwamo v PNG Ports Corporation (2019) N8021, Thompson J said this at paragraph 17-19 of her judgment:
	“Relevant Law
17. 	It is well settled by a long line of case authorities in PNG, that an employer has the right to hire and fire his employees and does not have to give reasons for his decision. If this is done in breach of the terms of a contract, the measure of damages is what the employee would have received for his salary and other entitlements if the contract had been lawfully terminated. (see Jimmy Malai v PNG Teachers Association (1992) PNG LR 568, Paddy Fagon v Negiso Distributors Pty Ltd (1999) N 1900, New Britain Palm Oil Ltd v Vitus Sukuramu (2008) SC 946, and Porgera Joint Venture Manager Placer (PNG) Ltd v Robin Kami (2010) PGSC 11).

18. 	This is consistent with the provisions of the Employment Act. Under S 34, a contract of employment may be terminated at any time, with the length of notice being either as specified in the contract, or dependent on the length of the employment. If an employee has been employed for over five years, the length of notice shall be not less than four weeks. Under S 35, the termination may be by notice, or by payment in lieu of notice.

19. 	Under S 36, the employer may terminate without notice or payment in lieu, if the employee, inter alia, willfully disobeys a lawful and reasonable order or misconducts himself by an act of omission or commission that is inconsistent with the due and faithful discharge of his duties.”

16.	In the absence of any clear terms of employment contract, the minimum terms under the Employment Act apply. It appears the defendant’s decision is based on section 36 of the Employment Act. Section 36 (1) of the Employment Act provides certain grounds for summary dismissal which reads, and I quote:

                     “GROUNDS FOR TERMINATION OF CONTRACT.
(1) 	An employer may terminate a contract of service without 					notice or payment instead of notice–
	(a) 	where the employee–
		(i) 	wilfully disobeys a lawful and reasonable 					order; or
		(ii) 	misconducts himself by an act of omission or 			commission that is inconsistent with the due 				and faithful discharge of his duties; or
		(iii) 	is guilty of a fraud or dishonesty; or
		(iv) 	is habitually neglectful of his duties; or
		(v) 	is imprisoned for a period exceeding seven 					days; or
		(vi) 	is continually absent from his employment 					without leave or reasonable excuse; or
		(vii) 	is convicted of an offence or contravention of 				this Act or any other law relating to 						employment; or
	(b) 	on any other ground on which he would be entitled 			to terminate the contract without notice at common 			law.:”
17.	The evidence shows the Plaintiff was negligent in the performance of his duty which caused injury to a fellow worker and damage done to property. The Plaintiff admitted the incident. Although it would seem the defendants were harsh, they have a duty to provide a safe workplace to its employees and others and the Plaintiff’s action was a breach of those safety protocols. A breach of the policy would result in termination and that is exactly what happened to the Plaintiff.

18.	In my view, the Defendant had a reason to terminate the Plaintiff in accordance with the terms and conditions of his employment and in accordance with the Employment Act. The Plaintiff has not demonstrated in his pleading how the termination was wrongful. There is no clear statement in the pleadings that the defendant breached the terms of the contract of employment in some material form or manner. 

19.	The Court is mindful that the Plaintiff should not be driven from the judgment seat early in the proceedings. However, in my considered view, this is a clear case where the Plaintiff is unlikely to succeed if the matter proceeds to trial. As I said earlier in this judgment, the Court should not give the impression that the factual situation will change with the passing of time or that the Plaintiff’s chances of success will improve with more litigation. The common and undisputed facts show the Plaintiff’s proceedings are frivolous. They are plainly and obviously untenable and can not possibly succeed and is bound to fail if it proceeds to trial. It is in the interest of all parties to end the matter now to avoid further cost of unnecessarily prolonged litigation.

20.	For the foregoing reasons I will grant the Defendants’ application and dismiss the Plaintiff’s proceedings.

21.	I will reserve my ruling on costs until I hear from parties.

Orders

22.    The Court orders that:

1.	The Plaintiff’s entire proceedings is dismissed
2.	Court will hear parties on cost
3.	Time be abridged

_______________________________________________________________
Seedler Genbill: 	Plaintiff in person 
David & David Lawyers:	Lawyer for the Defendant