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Tupa v Manning [2023] PGNC 321; N10482 (29 September 2023)

N10482

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 179 OF 2023

CHIEF SERGEANT PETER TUPA ON BEHALF OF HIMSELF AND EIGHT (8) OTHER POLICE RETIREES AND FORMER MEMBERS OF THE ROYAL PAPUA NEW GUINEA CONSTABULARY
Plaintiffs

-V-

DAVID MANNING - COMMISSIONER OF POLICE
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Carey J
2023: 20^th & 29^th September

POLICE ACT 1998 – Sections 94, 95 and 96 of the Police Act 1998 - Interpretation

PENSION– Whether Plaintiff entitled to Pension under Section 96 of the Police Act 1998

Held:

1. The plaintiffs are not entitled to pension.
2. This proceeding is dismissed.
3. The plaintiffs shall pay both defendants’ costs of and incidental to this proceeding, to be taxed if not agreed.
   

Cases Cited:
Papua New Guinean Cases

Nil

Overseas Cases

Warburton v SAS Trustee Corporation [2003] NSWSC 81

Legislation Cited

Police Act 1998
Public Officers Superannuation Fund Board Act 1990
Superannuation Regulation 2002
Superannuation (General Provision) Act 2000

Counsel:

D. Dotaona, for the Plaintiffs
P. Ohuma, for the Defendants

JUDGMENT

29^th September 2023

1. CAREY J: The plaintiffs are retired Police Officers who sought orders to establish that they are entitled to a pension per section 96 of the Police Act 1998.

2. The plaintiffs relied on a series of opinions and interpretation of section 96 of the Police Act 1998 in their submission to support their claim that they should be paid a pension in addition to a Superannuation for which they had claimed previously.

3. The defendants take issue with the assertion that a pension should be paid based on the fact that the plaintiffs were a part of a Superannuation and had elected to join the Superannuation and could not do both Superannuation and Pension but had to choose one.

4. Neither plaintiffs nor defendants provided case law to support arguments raised at the trial.

5. The plaintiffs contend that as sections 3 to 8 of the Public Officers Superannuation Fund Board Act 1990 (POSFB) has been repealed, section 94 of the Police Act 1998 which provides that an election in accordance with the provision of the POSFB would not be relevant.

6. The plaintiffs indicate that section 96 of the Police Act 1998 is a stand-alone provision which entitles them to be paid a pension.

7. The defendants do not accept that the assertion in paragraph 6 is correct and indicate that the legislation should be read in line with Superannuation (General Provision) Act 2000 and Superannuation Regulation 2002.

(1) WHETHER OR NOT THE PLAINTIFFS’ FORMER EMPLOYER, THE ROYAL PAPUA NEW GUINEA CONSTABULORY AND THE STATE HAD CONTRIBUTED ITS COMPONENT/SHARE TO NAMBAWAN SUPER FOR EACH OF THE PLAINTIFFS?

8. The defendants indicated that it was contributing its component of the employer contribution to the Superannuation Fund for each of the plaintiffs.

9. The defendants also submitted that the plaintiffs raised mere allegations with no evidence to support their claim that payments were not made to the Superannuation Fund by the plaintiffs.

10. The defendants acknowledged that it is mandatory for the employee and employer to contribute to the Superannuation Fund.

11. The plaintiffs stated that there is a difference between a pension and superannuation payment.

12. The plaintiffs’ submission as to why a pension should be paid above the superannuation payments made to them were based on non-legal concepts but altruistic ideals.

13. I find that the plaintiffs’ argument that the defendants did not make contributions to the Superannuation Fund to be erroneous and without merit as there is evidence to the contrary.

14. The defendants submitted that the Superannuation Fund keeps a record of all contributions of the State to each and every member.

15. By deductive reasoning, the plaintiffs would be able to request a record of their contributions and that of the defendants in order to properly quantify any shortfalls, if any and should there be any breach in relation to contributions, the appropriate remedy could be sought.

(2) WHETHER THE PLAINTIFFS ARE ENTITLED TO A PENSION UNDER SECTION 96 OF THE POLICE ACT 1998?

16. The plaintiffs argument centres around statutory interpretation (Warburton v SAS Trustee Corporation [2003] NSWSC 81).

17. The plaintiffs’ position that they should be paid a pension because it “acknowledges appreciation for their dedicated service, and that they play an important role in maintaining law and order” are noteworthy but not of legal persuasion to vitiate the submission of the defendants that they are not entitled to a pension under section 96 of the Police Act 1998 because they elected to join the Superannuation fund.

18. The plaintiffs’ argument that in addition to receiving superannuation payment they are entitled to a pension under section 96 of the Police Act 1998 fails because there is no lawful basis for which such a position can be confirmed.

19. The Court recognizes the value and importance of the police to ensuring a safe and functioning society that is consistent with the rule of law for the preservation of peace and good order.

20. As an aside, it would have been helpful to have case law or legal authority provided by counsel to assist the Court in arriving at the decision for which is enunciated now.

21. The assertion of a legal position without case law is often times referred to as an opinion.

22. Opinions are helpful to give context, however, within the framework of decision making in Courts, they may be of little value to support arguments in the absence of case law.

23. Therefore, in my view, the plaintiffs’ argument on the difference between a pension and superannuation payment is irrelevant primarily due to the fact within the context of this matter, the superannuation fund was a matter for which the plaintiffs elected to join and therefore the plaintiffs cannot claim both a pension and superannuation payment from the same employer.

24. Unless it was expressly stated that the plaintiffs could join the superannuation fund for which the defendants would contribute while also joining the pension for which the very same defendants would have contributed the argument that section 96 of the Police Act 1998 should operate a standalone provision without regard to the section 94 of the Police Act 1998 is without merit.

ORDER

25. It is ordered that:

1. The plaintiffs are not entitled to pension.
2. This proceeding is dismissed.
3. The plaintiffs shall pay both defendants’ costs of and incidental to this proceeding, to be taxed if not agreed.

________________________________________________________________
Dotaona Lawyers: Lawyers for the Plaintiffs
Office of the Solicitor General: Lawyers for the Defendants