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Mariboi Rubber Ltd v Yago [1976] PGLawRp 615; [1976] PNGLR 158 (7 May 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 158 - Mariboi Rubber Ltd v Imian Yago�

[1976] PNGLR 158

SC95

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

MARIBOI RUBBER LIMITED

V

IMIAN YAGO

Waigani

Frost CJ Williams Saldanha JJ

4-5 March 1976

7 May 1976

MASTER AND SERVANT - Agreement under Native Employment Act 1958 - Abandonment of employment by worker - Employer�s liability for payment of repatriation expenses at expiration of agreement �Expiration� - Native Employment Act 1958 s. 49[cxcvii]¹, s. 62 (1)[cxcviii]².

APPEAL - Supreme Court of Justice - Powers of - Appeal from National Court of Justice confirming order of District Court Magistrate - Power to exercise jurisdiction of District Court - District Courts Act 1963, s. 236 (1) (e) - Supreme Court Act 1975 s. 7 (2), s. 15.

An agreement worker under the Native Employment Act 1958 who abandons his employment before the date of expiration has no right to repatriation expenses under s. 62(1) of the Native Employment Act 1958, which provides that the employer is responsible for, and for the expenses of, the return of the agreement worker ... �at the expiration of the agreement to such of the homes of the worker as is specified in the agreement�. The word �expiration� therein is to be given the ordinary meaning of effluxion of the period of service under the agreement.

Where an order of a District Court Magistrate being invalidly made is confirmed on appeal to the National Court of Justice which has power under s. 236(1)(e) of the District Courts Act, 1963 on appeal to �exercise a power which the court which made the conviction order or adjudication might have exercised�, the Supreme Court of Justice, on appeal therefrom, (per Frost C.J.) having power under s. 15 of the Supreme Court Act 1975, to give such judgment as ought to have been given in the first instance, (and per Williams J.) having under s. 7(2) of the Supreme Court Act 1975 for the purposes of hearing appeals all the powers, authority and jurisdiction of a judge exercising the jurisdiction of the National Court, has power to make any order that could have been validly made by the District Court magistrate.

Appeal

This was an appeal against a decision of Prentice Dep. C.J., dismissing an appeal against an order made by the District Court at Port Moresby on 26th August, 1974 relating to the termination of an employment agreement between the appellant and the respondent under the Native Employment Act 1958. Full details of the history of the matter including all grounds of appeal are set out in the reasons for judgment hereunder of Williams J., at pp. 165-169.

Counsel

J. A. Griffin and N. A. Malik, for the appellant.

M. F. Campbell, for the respondent.

Cur. adv. vult.

7 May 1976

FROST CJ:� This is an appeal against the decision of Prentice Dep. C.J., dismissing an appeal against an order made by the District Court at Port Moresby on 26th August, 1974, relating to an employment agreement between the appellant and the respondent under the Native Employment Act 1958.

The proceedings in the District Court were taken as a test case arising out of an incident at Mariboi Estate, a rubber plantation in the Bereina sub-province maintained by the appellant, when 107 Wabag agreement workers of whom the respondent was one abandoned their employment by walking off the estate following the death by violence of another of their line.

When the deceased was first missed on Thursday, 9th May, 1974, the Wabag men immediately assumed not only that the man had been killed but also that the men responsible were from a large group of agreement workers from the Southern Highlands who were also employed on the plantation.

The Wabag men planned not to inform their employer if it transpired that the deceased had in fact been killed, but immediately to attack the Southern Highlanders in payback. The plan failed when the plantation manager became aware on the following morning that the deceased�s body had been found. The police were called in and arrived at the plantation. Inspector Tak warned the men against embarking on a �payback�. When he left to take the body back to Port Moresby, he thought the men�s attitude showed no signs of resort to argument or violence and that there would be no trouble. The plantation manager at this stage formed the view that the labourers were not in physical danger. Earlier, however, the men had told him that they wanted to go home like the Doa boys. This was a reference to a similar incident which had recently occurred on Doa, an adjoining plantation, after which the labourers had been sent home presumably at the employer�s expense. The men left the plantation during the weekend, fearing that a payback by them would lead to further violence or, if no such action was taken on their part, to a repetition of violence with some of their number being picked off one by one.

The course taken by the appellant was to apply to the District Court under the Native Employment Act 1958, s. 49 (1), for orders that the agreement between the appellant and the respondent be terminated on the ground that the respondent had been absent from work without leave or reasonable excuse, for relief against the obligation to repatriate the respondent, and for recovery of $108.36 for additional out-of-pocket expenses alleged to have been caused by the respondent�s wrongful act or the early termination of the agreement. The respondent also applied by way of counterclaim for termination of the agreement under s. 49 (3), but this Court was informed that it was not proceeded with. The magistrate found that the men had reasonable excuse for leaving the plantation, which went further than was necessary for the issue before him was merely whether the appellant had satisfied him that the men had left without reasonable excuse. Although this was a finding against the appellant and thus meant that the employer�s application failed an order was made that the agreement be terminated as from 11th May, 1974, when the respondent ceased work, and further relief was given in favour of the respondent for the magistrate went on to order that the appellant was liable to repatriate the respondent from the plantation to his home in the Enga Province, and that the respondent should not bear the additional out-of-pocket expenses claimed.

The magistrate�s positive finding in favour of the respondent also did not constitute a ground for an order under s. 49 (3). The appeal judge�s view that negligence on the part of the employer could be inferred from the circumstances so as to justify an order under s. 49 (3) (c) was not supported by counsel for the respondent, and in my opinion correctly. The only way the respondent�s counsel sought to uphold the magistrate�s order before us was under s. 49 (4) (b) and (d). But such a submission plainly fails because the magistrate did not direct his mind to or make any finding upon the issues whether the termination was in the interests of the respondent under (b), or for any other reason the agreement should be terminated under (d).

It is convenient first to consider the ground of appeal added by leave at the hearing, that the appeal judge erred in law (to which the ground of error was confined) in confirming the magistrate�s decision, so that, the appellant contended, an order should have been made on the employer�s application that the agreement be terminated as from 11th May, 1974, pursuant to s. 49 (1) of the Act.

For the ground of appeal to succeed it was necessary for it to be shown that there was no evidence or no sufficient evidence to support the magistrate�s finding. For the purposes of the appeal the finding must be taken as a finding that the respondent had not absented himself from work without reasonable excuse. No authorities upon this ground were cited before this Court. The rule to be applied is that the magistrate�s finding should be set aside only if there was no reasonable evidence to support it, or unless the Supreme Court is satisfied that a reasonable man must have come to a different conclusion (see the cases cited in Paul�s Justice of the Peace, 2nd ed., Nash, pp. 334-335, and The Justices Act (Queensland), 3rd ed., Kennedy Allen, pp. 496-497).

The case argued by the appellant�s counsel was that if any absence by the respondent was justified it was only a temporary absence pending police investigation or, if required, the peace negotiations which traditionally occur between opposing lines, and that on all the facts the respondent and the other Wabag men were using the incident as a pretext to abandon their contracts upon which, as they believed from the Doa case, they became entitled to their expenses for the return home. Appellant�s counsel also relied on a decision of the House of Lords in a wrongful dismissal case, in which it was held that an order by a master to his servant to remain in a place within the area of his employment is a lawful order unless it involved immediately threatening danger by violence or disease � Bouzourou v. The Ottoman Bank [cxcix]³. It was then submitted that the magistrate�s reasons for judgment that the men �were in fear of their lives, their future liberty (a reference apparently to the possibility of them being held criminally responsible for reprisals) and they had excellent reason for leaving the plantation�, did not amount to any finding that the respondent was in immediate danger. However, the question before the magistrate whilst analogous to that before the House of Lords, is not to be expressed in such absolute terms, but simply whether in all the circumstances the appellant had shown absence of reasonable excuse. It seems to me that the magistrate was expressing the view that the facts as known to the respondent supported the inference that the other line was responsible for the killing, and there was sufficient risk in the future of other Wabag men being killed to constitute excuse in the circumstances for any Wabag men to leave. The case was a difficult one and I do not say that I would have reached the same decision. But I am not prepared to hold that no conclusion other than a finding in favour of the employer was reasonably open on the evidence. This ground of appeal therefore fails.

The second main ground of appeal was that the respondent�s abandonment of his contract did not entitle him to be repatriated at the appellant�s expense.

It is necessary now to examine the Native Employment Act 1958. The Act is concerned to make comprehensive provision for the employment of natives (in the then current usage) as an agreement worker under Pt. VI (s. 30), or without an agreement as a casual worker, Pt. VIII (s. 67). Thus so far as agreement workers are concerned the Act provides for such matters as the form and contents of an agreement and the specific terms thereof including deferred wages (ss. 31, 33), the period of agreement which is not to exceed two years (s. 31 (3)), medical examination prior to employment and also at the time of termination (ss. 37, 56), provision for a continuing agreement to be entered into on the termination of the initial agreement (s. 34), the agreement to be sanctioned and attested before an employment officer (s. 31 (1) (f)), procedure for variation and transfer of the agreement (Division 3, 4), the termination of agreements upon a joint application of employer and worker before an employment officer (s. 48 (1))[cc]⁴�or by the court on the application of the employer (s. 49 (1))[cci]5, of the agreement worker (s. 49 (2)) or by the court at any time whether on its own motion or otherwise (s. 49 (4)), the award of expenses, upon the court terminating the agreement, to the employer or the employee (ss. 50, 51), the procedure for the pay-off of the worker upon the termination of the agreement (Division 6), the repatriation of the worker (Division 7), which is one of the basic issues in this case, and detailed conditions of service (Pt. X). The crucial provision in this case is that the employer is responsible for, and for the expenses of, the return of an agreement worker, at the expiration of the agreement, to the home of the worker specified in the agreement (s. 62 (1)).[ccii]⁶

Appellant�s counsel submitted that expiration meant the effluxion of the period of service of the agreement, so that the respondent in the present case had no right to repatriation. It has been held in an early case that the meaning of that word is not to be so restricted in relation to a lease for a term of years, a transaction perhaps analogous to an employment contract � Wrotesley v. Adams [cciii]⁷. But the submission is supported by the use of the term �expiration� in s. 33 (4) and s. 48 (1) in relation to the period of the agreement, and s. 64 (3) (a) in relation to a stated period of time. It is also supported by the substitution of the term �termination� for the event upon which the employer�s responsibility for the return is to arise in the case of a continuing agreement under s. 62 (2), indicating that the legislature intended a different and it would appear necessarily narrower meaning to be attributed to the word �expiration� in sub-paragraph (1). Different considerations apply under s. 62 (2) in view of the detailed provision for the refunding of amounts deducted from wages for repatriation upon the agreement worker entering into a continuing agreement, s. 34 (7).

The respondent�s counsel argued that �termination� was used in the Act interchangeably with �expiration�. Support for this argument is found in the express reference elsewhere in the Act to the employer�s obligation under s. 62 as arising on the �termination� of the agreement. I refer to the definition of �place of pay-off�, s. 5, and also to ss. 40 (3) and 41 (a). But �termination� in other sections of the Act appears to mean �expiration� in the sense of effluxion of the period of service under the agreement (s. 33 and Division 6), or that meaning alternatively with termination as ordered under ss. 48 or 49. (Mariboi Rubber Ltd. v. Painyebe Kabale [cciv]⁸). Also, for the respondent to be entitled to repatriation in the present case independently of any order under s. 49 it is necessary for him to go further and show that �expiration� includes the agreement being brought to an end prior to the effluxion of the period of service, that is, upon discharge at common law which, for practical purposes, means by breach or frustration. But that meaning would appear to be excluded having regard to provisions such as s. 58 (2) which provides the procedure for an employer to pay amounts payable to the worker at the termination of the agreement where the worker is absent and cannot be located or found, for the continuation of the agreement for the purposes of the Act is thereby recognized even after an event capable of supporting a discharge by breach. I refer also to s. 56.

On the whole I have come to the conclusion that �expiration� in s. 62 (1) does mean effluxion of the period of service under the agreement. Such a conclusion is consistent with the scheme of Pt. VII which provides, as I have said, comprehensively and without the necessity for recourse to the common law for the operation of the agreement, and, in my opinion, envisages the agreement being brought to an end or terminated for the purposes of the Act on two events only, that is to say, due performance by the worker of the period of service under the agreement or pursuant to termination by an employment officer on the joint application of the employer and the agreement worker under s. 48 (1) or by the court under s. 49. It is supported also by the merits of the situation, because if �termination� includes discharge by breach, then discharge by reason of the default of the worker would be included, and it is unlikely that the legislature intended that on the abandonment of the contract, which could take place within a matter of weeks, without any default by the employer, the latter should be responsible for the additional expense of the return over and above the deductions made from wages. An award of additional expenses under s. 50 (1) may prove to be barren indeed.

The respondent accordingly had no right to repatriation under s. 62 (1).

As the magistrate�s order, as I have indicated, cannot be supported, the question remains as to the manner in which the case should be determined. The answer I consider is to be found in the Court�s power to give such judgment as ought to be given in the first instance (Supreme Court Act 1975, s. 15) which in turn enables resort to the jurisdiction of the National Court to exercise a power which the District Court could have exercised (District Courts Act 1963, s. 236 (1) (e). It is thus open to this Court to make an order for the termination of the agreement under s. 49 (4) (b) or (d). In the circumstances of this case where the agreement has long ceased to have operation that consideration provides a sufficient reason under s. 49 (4) (d) for such an order to be made.

The final matter is the claim by the appellant for the recovery of certain items of expenditure, which in the end were confined to the cost of replacement of the respondent by another labourer which included the cost of air travel and the sum of $22.50 paid for rations pending the respondent�s departure for his home. The claim for loss of equipment was extraneous to the abandonment of the agreement. These items cannot now be recovered under s. 51 as the magistrate�s order negatived any wrongful act or default on the part of the worker. However, the applicant may be entitled to some measure of relief under s. 49 (4) which empowers the Court to attach such conditions as it thinks just where it makes a termination order, or under s. 53 (2) which empowers the Court to make such further order as it considers desirable. An order under these sections takes effect notwithstanding anything to the contrary contained in the Act, (s. 53 (1)).

A matter to be taken into account is the payment into court of the respondent�s deferred wages under an agreement made pending the court hearing between the parties, the effect of the agreement being that the appellant agreed to repatriate all agreement workers except the respondent and several required as witnesses, but without any admission of liability. Presumably the respondent and the witnesses have also since been returned to their home at the expense of the appellant. The magistrate took cognizance of the agreement which he ordered to be filed in the court records. The payment into court was clearly outside the provisions for payment into court which are set out in the District Courts Regulations 1965, regs. 30-35 inclusive, and can be justified only under reg. 47 which enables the District Court to supply any deficiency in the Regulations in such manner as may be just and proper. No doubt the magistrate took into account the delay likely to be caused in the disposal of the case consequent upon appeals.

The terms of the agreement have some bearing on this matter because whilst the appellant was expressly not admitting responsibility to repatriate the workers, it is not clear to me that the respondent could have understood that if the appellant failed to obtain the particular order sought in the complaint � which is the effect of the appeal � the respondent could be made personally responsible to reimburse the appellant for the balance of the fare after setting off the deferred wages. Such a situation could not arise upon a payment into court pursuant to the Regulations which set out specifically the parties� rights.

In all the circumstances of this case the only further order I would make is for the payment out to the appellant of the moneys paid into court in part-repayment of the expense incurred by the appellant for repatriating the respondent. The appellant is of course also entitled to retain the deductions made from wages for repatriation.

In my opinion the appeal should be allowed. In lieu of the order of the District Court an order for termination of the agreement should be made under s. 49 (4), and a further order for payment out to the appellant of the moneys paid into court in part-repayment of the repatriation expenses.

WILLIAMS J:� On the 12th June, 1974 a complaint was made in the District Court under the provisions of the Native Employment Act 1958-1971 wherein it was alleged that the present respondent was a native employed by the present appellant under an agreement made pursuant to the said Act and that he did without leave or reasonable excuse absent himself from work since the 11th May, 1974. In the complaint orders were sought that the agreement be terminated as from the 11th May, 1974, that the appellant be relieved of the obligation to repatriate the respondent and that the respondent be ordered to pay the sum of $108.36, being additional out-of-pocket expenses caused or to be caused to the appellant by reason of the respondent�s wrongful act or default.

On the 25th June, 1974 a document headed �Defence and Counter-claim of the defendant� was filed. In this document it was admitted that the respondent was a native employed under an agreement between himself and the appellant, and that he had been absent from work since the 11th May, 1974. It was, however, denied that he was absent from work without leave or reasonable excuse. It was further denied that the appellant had suffered the expenditure of any out-of-pocket expenses and that the appellant should be relieved of the obligation to repatriate the respondent. Paragraph 7 of the document contained a counter-claim whereby the respondent sought an order that the agreement between the parties be terminated pursuant to s. 49 (3) of the said Act. In a document dated 3rd July, 1974 the appellant joined issue with the respondent upon his defence and his counter-claim.

The matter came before the District Court on the 27th June, 1974 wherein certain agreements between the parties were recorded. It appears that this was regarded as a test case the decision in which would affect a number of other workers on the appellant�s plantation. It was agreed, inter alia, that the appellant without any admission of liability on its part should repatriate a number of its agreement workers except the respondent and several others whose presence in Port Moresby was necessary for the purpose of giving evidence on the hearing of the complaint, and that all deferred wages be paid into court before the hearing of the complaint.

The matter duly came on for hearing and after hearing evidence and the submissions of counsel on behalf of the parties the District Court magistrate found that the respondent and others left their employment with reasonable excuse in that they were in danger of their lives and ordered that the agreement be terminated as from the 11th May, 1974, that the appellant be responsible for the repatriation of the respondent and that moneys paid into court pursuant to the agreement previously referred to be held pending any appeal.

From this decision the appellant appealed to the then Supreme Court. In its notice of appeal it was contended that:

N2>(1)����� The magistrate erred in holding that the appellant was responsible for the repatriation of the respondent in circumstances in which the agreement was terminated by the court under s. 49 of the Native Employment Act.

N2>(2)����� That the decision was wrong in law in that the magistrate erred in holding that s. 62 (1) of the Act rendered an employer liable to repatriate an employee in circumstances where the contract had not run for its full period but where the court had terminated the contract pursuant to s. 49 of the Act.

N2>(3)����� That the magistrate erred in holding that it was a proper case in which the appellant should be ordered to repatriate the respondent since there was no fault on the part of the appellant.

N2>(4)����� That in the circumstances the magistrate wrongly exercised his discretion or alternatively failed to exercise his discretion in refusing or failing to order that the respondent pay the appellant the amount claimed as being additional out-of-pocket expenses.

The appeal to the then Supreme Court came on for hearing on the 24th April and the 27th May, 1975 and on the latter date judgment was given and orders made confirming the magistrate�s order for termination of the agreement at the employee�s behest and overruling the magistrate�s decision that the respondent had a right to be repatriated under s. 62 of the Act. It was further declared that the appellant was responsible for payment of the cost of repatriating the respondent to the extent that that cost exceeded the total of the amounts deducted from wages under s. 61b of the Act as being an expense reasonably incurred by the respondent as a result of the fault of the appellant.

From that decision the appellant appealed to this Court. The grounds of the appeal are that:

N2>(1)����� The appeal judge erred as a matter of law or alternatively as a matter of mixed fact and law in confirming the magistrate�s decision that the appellant was responsible for repatriation of the respondent in circumstances in which the agreement was terminated by the court under s. 49 of the Act in that (a) under the Act an employer cannot be liable for repatriation where the agreement is terminated by the court, and (b) liability on the part of the employer to repatriate cannot arise under the Act in the absence of fault on the part of the employer, the magistrate not having found (nor was there any evidence on which a reasonable tribunal of fact could have found) that there was any fault on the part of the employer.

N2>(2)����� That the appeal judge erred in failing to hold that the magistrate wrongly exercised his discretion or had failed to exercise his discretion in refusing or failing to order that the respondent pay to the appellant the sum of K108.36 as additional out-of-pocket expenses incurred by the appellant by reason of the respondent�s wrongful act or default.

At the hearing before this Court a third ground of appeal was added, namely, that the appeal judge erred in law in confirming the magistrate�s decision that the respondent had reasonable excuse for his absence from the appellant�s plantation.

A notice of cross-appeal was filed by the respondent on the following grounds, namely:

N2>(a)����� That the appeal judge was wrong in law in finding that the term �expiration� as mentioned in s. 62 (2) of the Native Employment Act did not in the context of the Act mean and include the term �termination� as mentioned in ss. 49 and 51 of the said Act or that the terms are interchangeable within the whole context of the said Act.

N2>(b)����� That the appeal judge was wrong in law in finding that the worker who leaves his work before the expiration of his contract is not entitled to repatriation by his employer in that s. 50 of the Act provides the only remedy available to the employer and does not relieve the employer of a duty to repatriate the employee as set out in s. 62 (1) of the Act.

N2>(c)����� That the appeal judge erred in finding that the magistrate had ordered termination of the contract under s. 49 (3) of the Act in that as the magistrate did not find any fault on the part of the employer the provisions of s. 49 (3) do not apply and the magistrate exercised his power and the provisions of s. 49 (4) of the Act.

N2>(d)����� The appeal judge was wrong in law in finding that the magistrate made a finding of default on the employer�s part and that s. 51 of the Act applied or, alternatively, in finding that in s. 51 of the Act the expression �expenses reasonably incurred by the respondent� apply only to repatriation costs over and above the amount deducted from the respondent�s wages by the employer.

N2>(e)����� That the appeal judge erred in law in that in upholding the magistrate�s decision as to the respondent being justified in leaving work the appeal judge erred in then finding that the employer was entitled to retain the amount actually deducted from the wages of the employee for the purposes of repatriation.

The appeal judge in the course of his reasons for judgment concluded that the magistrate had found reasonable excuse on the part of the respondent for leaving his employment and thus refused the application by the employer made pursuant to s. 49 (1) of the Act for an order for termination of the agreement. His Honour then went on to say that the magistrate appeared to have ordered the termination of the agreement on the respondent�s application under s. 49 (3). His Honour stated that the magistrate�s reason did not clearly emerge but that he presumed that the magistrate found the employer �negligent or careless in the discharge of his duties towards the worker� or that the employer �has committed an act or omission such as would if committed by master justify the termination of a contract of service by its servant�. His Honour inferred that the magistrate arrived at this conclusion by viewing the state of affairs that existed at the time when the employee left his place of employment as amounting to unsafe conditions in which to continue working.

However, it emerged during the hearing before this Court that the claim made by the respondent in his notice of counter-claim that the contract be determined under s. 49 (3) was not proceeded with. That this was so was specifically stated by counsel for the respondent before this Court. It follows from this that the only matter before the magistrate was a complaint made by the appellant pursuant to the provisions of s. 49 (1) of the Act. Further, the notice of cross-appeal filed by the respondent in this Court expressly disclaimed that the magistrate had ordered termination of the contract under s. 49 (3) of the Act and asserted that s. 49 (3) could not be invoked in circumstances where no finding of fault on the part of the employer had been made or, indeed, could have been made upon the evidence. Thus the position is reached where the ground upon which the appeal judge found support for the magistrate�s finding in favour of the respondent has been specifically abandoned by the respondent in this Court.

The respondent, however, now contends that it was open to the magistrate to have made the orders he did make under s. 49 (4) of the Act. It is said by his counsel that it must be assumed that the magistrate acted judicially and that having found against the appellant in its application under s. 49 (1) he then proceeded to deal with the matter on his own motion under s. 49 (4).

An examination of the magistrate�s reasons shows that he made no findings relevant to any of the matters referred to in s. 49 (4), nor is there anything therein which suggests, or from which it may properly be inferred, that he gave any consideration at all to that section. I see no reason upon which to base any assumption that the magistrate exercised the jurisdiction conferred upon him by that section.

As I see the matter the magistrate dealt with the matter under s. 49 (1). Upon his finding that the respondent was absent from work with reasonable excuse the only course open to him under s. 49 (1) was to dismiss the appellant�s application and accordingly the orders made by him were outside the jurisdiction conferred upon him.

The question now arises as to the manner in which this Court should deal with the matter. Section 7 (2) of the Supreme Court Act 1975 provides that for the purpose of hearing and determining an appeal the Supreme Court has all the powers, authority and jurisdiction of a judge exercising the jurisdiction of the National Court. In an appeal of this kind a judge of the National Court is, by s. 236 (1) of the District Courts Act, empowered, inter alia, to exercise a power which the District Court might have exercised.

It is contended by counsel for the appellant that this Court should now sustain the appellant�s application under s. 49 (1). It is said that the finding by the magistrate that the respondent was absent from work with reasonable excuse was not simply a finding of fact but involved a question of law, namely, whether the facts proved could in law amount to reasonable excuse within the meaning of the section. Accordingly it is contended that this Court is in no way bound by the magistrate�s finding and that it is open for it to substitute its own finding which, it is submitted, should be that the respondent failed to show absence with reasonable excuse.

The respondent and a number of his fellow workers walked off the appellant�s plantation on 11th May, 1974 and by the time the matter was heard in the District Court on 26th August, 1974 had clearly evidenced their intention of not returning to the job. It also appears that at the time of the hearing the bulk of there had been repatriated leaving only the appellant and several others in Port Moresby for the purpose of giving evidence in the District Court hearing. In reality the agreements had been repudiated by the workers and it seems that the point of the appellant�s application to the Court was to have the agreement formally brought to an end and to sort out the respective financial obligations of the parties.

In all the circumstances it seems to me that there is a good deal to be said in favour of the contention put on behalf of the appellant that the finding under s. 49 (1) of reasonable excuse on the part of the respondent was not open upon the evidence which showed not a mere temporary absence from work but rather an intention on the part of the worker to abandon the contract. However, in my view, it is not necessary to determine this question in order to dispose effectively of this matter as it seems to me to be appropriate that this Court now deal with the matter under s. 49 (4) (d). Whilst a finding in favour of the appellant under s. 49 (1) may offer some advantage to the appellant in that it may be awarded out-of-pocket expenses under s. 50 (1) it seems to me, for reasons which I will later give, that this apparent advantage is of academic rather than practical importance.

The magistrate also made an order that the appellant be responsible for the repatriation of the respondent. The basis upon which he made this order is not clear. The appeal judge appears to have assumed that the magistrate made this order as a declaration of a right of the respondent under s. 62 of the Act. He took the view that the magistrate was wrong in this respect but himself made a declaration that the appellant was responsible for the repatriation of the respondent as an expense incurred by him within the meaning of s. 51 (1) of the Act. For an employer to be liable under s. 51 (1) the expenses of the worker must be caused by a wrongful act or default on the part of the employer. As stated earlier, the appeal judge inferred a finding on the part of the magistrate of default on the part of the employer in that he did not provide a safe system of work. However, as has also been mentioned earlier, the respondent�s counsel on the hearing before this Court expressly disclaimed that any finding of default on the part of the employer was open upon the evidence.

Counsel for the respondent in this Court contends that the respondent was entitled to repatriation under s. 62 of the Act. That section is in the following terms:

N2>�62(1) An employer is responsible for, and for the expenses of, the return of an agreement worker and his accompanying dependants at the expiration of the agreement to such of the homes of the worker as is specified in the agreement.

N2>(2)����� Where an agreement worker enters into a continuing agreement, the employer is not responsible, under the last preceding subsection, for his return until the termination of the continuing agreement.

...�

The respondent had not entered into a continuing agreement so that subsection (2) is not relevant. The argument proceeds that the word �expiration� appearing in subsection (1) should not be limited to mean �expiration by effluxion of time� and should be held to mean �termination of an agreement by any means�. Attention was drawn to other sections of the Act in which the word �termination� was used in circumstances where it may refer to situations where an agreement expired by effluxion of time. It was thus argued that the draftsman had regarded the words �termination� and �expiration� as interchangeable.

I do not think that much assistance can be gained from other sections of the Act when deciding the meaning of the word �expiration� in s. 62 (1). It is to be noted that the draftsman has used the word �termination� in subsection (2). It seems to me to be a natural construction of s. 62 to regard subsection (1) as referring to circumstances where an agreement has come to end by effluxion of time. By s. 61b of the Act an employer is authorized to make deductions from the wages of an agreement worker to be applied towards the expenses incurred by the employer under s. 62. In effect, therefore, the Act appears to envisage that an employer recoup from his worker over the period of the contract the repatriation expenses to which he may become liable under s. 62.

If an initial agreement does not run its full course an employer is not able to recoup his repatriation expenses under s. 61b. To construe the word �expiration� in s. 62 (1) in the way contended for by counsel for the respondent would mean that the employer�s rights under s. 61b may be destroyed by the unilateral act of a worker in simply walking off the job before the expiration of the initial term of his engagement. I do not think that this was intended by the legislature. Rather I think that the word �expiration� should be given its natural meaning. Where, for some reason, a worker does not complete his initial period of engagement the respective rights of the parties to the agreement are to beop determined in accordance with Division 5 of Pt. VII of the Act. Whether or not a worker is repatriated when he does not complete his initial engagement is, in the absence of agreement between the parties, a matter for determination by a court acting under one or other of the provisions contained in Division 5.

In all the circumstances of this case it seems to me that the respondent abandoned his contract for his own reasons in circumstances where no default could be attached to the appellant. In my opinion the respondent has no right to repatriation expenses under s. 62 (1) of the Act nor should this Court when disposing of the matter under s. 49 (4) impose as a condition that the appellant should be responsible for the repatriation expenses of the respondent.

As has been said earlier, the appellant sought an order in its favour on its application under s. 49 (1) and that following this an order for out-of-pocket expenses should be made against the respondent under s. 50 (1). The out-of-pocket expenses claimed include items additional to costs of repatriation. The respondent worked under the contract for a period of six to seven weeks only so that the deduction from his wages by way of deferred wages and of repatriation expenses amount in total to a small sum which, as I understand the evidence, is less than the actual cost of repatriation. The deferred wages of the respondent (together with those of others) have, under an agreement between the parties, been paid into court to be disbursed in accordance with the court�s decision in the matter. So far as the respondent is concerned the appellant has already expended in repatriation expenses alone more than the sum deducted from the respondent�s wages and paid into court under the agreement between the parties. If the appellant were to obtain an award of out-of-pocket expenses it would be necessary for it to seek to enforce the award as a judgment against the respondent. Nearly two years has elapsed since the occurrence of the events giving rise to this appeal and the respondent has long since returned to his Highlands village. In the circumstances the question of the enforcement of a judgment against the respondent might well be of academic interest only to the appellant rather than one of any practical importance. Indeed, during the hearing counsel for the appellant intimated that the appellant�s primary concern was to have questions of principle (particularly the question of the respondent�s right to repatriation) determined.

In my opinion this Court should order the termination of the agreement under s. 49 (4) (d) of the Act upon the basis that for all practical purposes the agreement had come to an end. I think also that this Court should set aside the order requiring the appellant to repatriate the respondent and that the sums deducted from the respondent�s wages and paid into court pursuant to the agreement between the parties should be paid to the appellant to defray its repatriation costs.

SALDANHA J:� Mariboi Rubber Limited (hereinafter referred to as �the Company�) owns a rubber plantation comprising some 5,000 acres near Bereina about forty-five miles from Port Moresby. It employs a labour force of 400 to 460 men of whom at the material time 108 were men from the Wabag area in the Western Highlands and the remainder, constituting about five-eighths of the total labour force, were Taris, Nipas, Mendis and other groups affiliated to these three groups, all from the Southern Highlands and traditional enemies of the Wabagers.

On the 9th May, 1974, a Wabager was found to be missing. On the next day following a search his dead body was found in a hole under some boulders. It had wounds on the back, head, left shoulder and one of the legs. The man had obviously been murdered. For reasons that will appear hereafter the Wabagers stopped working. The respondent Imian Yago was one of them. His is a test case.

The Company made an application to the District Court under s. 49 (1)[ccv]⁹�of the Native Employment Act, 1958-1971 (hereinafter referred to as �the Act�) praying for an order that the agreement be terminated on the ground that the respondent had been absent from work without leave or reasonable excuse, that the Company be relieved of the obligation to repatriate the respondent and that the respondent be made to pay the Company the sum of K108.36, being out-of-pocket expenses incurred or to be incurred by the Company by reason of the wrongful act or default or the early termination of the agreement by the respondent. The application for out-of-pocket expenses was made presumably under s. 50[ccvi]10 of the Act.

The respondent filed a defence and counterclaim. He denied that he had ceased working by reason of a wrongful act or default on his part, denied that the Company can be relieved of the obligation to repatriate him, denied that the Company was entitled to K108.36 as out-of-pocket expenses and sought an order that the agreement be terminated on his own application under s. 49 (3), and that under s. 51[ccvii]11 of the Act the respondent be awarded such amount as the Court considered just.

Before the commencement of the hearing the parties filed in Court a written agreement by consent which provided as follows. This was to be a test case and the decision would affect the other 107 agreement workers. The Company agreed to repatriate all employees except the respondent and four others who were required as witnesses without any admission of liability. The Company deposited in court the sum of K2,587.00 being deferred wages, which had been held by the Company on behalf of the 108 agreement workers, together with a list of the names of these workers. The money was to be paid out in accordance with the Court�s decision, or, in the event of an appeal, in accordance with the decision of the appellate court.

The magistrate gave the following judgment:

�That employees left with reasonable excuse were in danger of their lives. Agreement to be terminated as from the date they left employment i.e. 11/5/74. Employers responsible for repatriation. Monies to be held in T.F.S. for a period of 30 days pending appeal.�

In the Reasons for Judgment which the magistrate gave subsequently he said:

�The Court was of the opinion that these men were in fear of their lives, or, if they escaped with their lives, their future liberty, and they had excellent reason for leaving the plantation. They should not be deprived of their right to defined wages and repatriation.�

The appellant appealed to the Supreme Court (now the National Court). The appeal was heard by Prentice Dep. C.J. He confirmed the magistrate�s order terminating the agreement on the application of the employee. He disagreed with the magistrate�s decision that the respondent had a right to be repatriated under s. 62. He held that under s. 51 the Company was responsible for the cost of repatriating the respondent to the extent that that cost exceeded the amount deducted from his wages under s. 61b as being an expense reasonably incurred by the respondent as a result of the wrongful act or default of the employer. The appellant now appeals to this Court.

The Company sought termination of the agreement under s. 49 (1) (e) of the Act, namely, on the ground that �the respondent had been absent from work without leave or reasonable excuse�. The magistrate found that the respondent had a reasonable excuse for being absent from work. There was sufficient evidence for this finding. There was evidence that the murder was the work of more than one man. The Wabagers feared that they would be picked off one by one by their enemies. There had been talk among the Wabagers of doing a payback killing, and, if a payback killing had occurred, they would have been open to retaliation. If an open fight had erupted between the two antagonistic camps they would have been exposed to the danger of death or serious injury, and their peril would have been the greater by reason of their numerical inferiority. There had been murders and fights recently in neighbouring plantations.

Although the magistrate had refused to terminate the agreement on the application of the employer under s. 49 (1) of the Act nevertheless he had terminated the agreement. But he did not say whether he had terminated it on the application of the employee under s. 49 (3). One must assume he must have done so because of the nature of the orders he made. But he could only have done so if there had been a wrongful act or default on the part of the employer. There had been no fault on the part of the employer. We were informed by counsel for the respondent that the respondent�s application for termination of the agreement under s. 49 (3) was not proceeded with. The magistrate may not have been aware of this. But this is another reason why the magistrate could not have terminated the agreement under s. 49 (3).

The agreement can be terminated on the application of the employer under s. 49 (1) only if there has been a wrongful act or default on the part of the employee, and an agreement can be terminated on the application of the employee under s. 49 (3) only if there has been a wrongful act or default on the part of the employer. The importance of the distinction between termination at the request of the employer and termination at the request of the employee is that in the former case the employer would be entitled to out-of-pocket expenses under s. 50, and in the latter case the employee would be entitled to the costs of repatriation under s. 51. But as there had been no fault on the part of the employer the magistrate could not have ordered the Company to repatriate the respondent under s. 51.

Now, although the agreement could not be terminated on the application of either the employer or the employee because neither side had been at fault it was obviously desirable that the agreement should be brought to an end. The magistrate could have terminated the agreement under s. 49 (4) (d) which provides for the termination of an agreement by the Court �where for any other reason it considers that the agreement should be terminated�. Both employer and employee had asked that it be terminated. The Wabag labourers had been repatriated and their vacancies filled by others and the only thing left to be done was to sort out the financial obligations of the parties.

Under the provisions of s. 236 (1) (e) of the District Courts Act the Supreme Court (now the National Court) �upon the hearing of an appeal ... may exercise a power which the Court which made the conviction, order or adjudication might have exercised�, and s. 15 (1) (e) of the Supreme Court (Full Court) Act enables the Full Court (now the Supreme Court) to �exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court (now the National Court) on appeals or applications�. The District Court had power to terminate the agreement under s. 49 (4) and therefore this Court has a similar power. In my view it would be appropriate to terminate the agreement under s. 49 (4) (d), namely, on the ground that �for any other reason it considers that the agreement should be terminated�.

The question of repatriation is governed by Division 7 of the Act which is headed �Repatriation� and particularly by s. 62 (1)[ccviii]¹². Counsel for the appellant contends that the word �expiration� means termination by effluxion of time while counsel for the respondent maintains that �expiration� can mean both termination by effluxion of time and termination otherwise than by effluxion of time, as, for example, termination by the court under s. 49 (4). Having regard to the whole tenor of s. 62, the context in which the word �expiration� is used and the use of that word in other sections of the Act, I am of the opinion that the word �expiration� has only one meaning, namely, termination by effluxion of time. On the other hand, the word �termination� appears to have been used in the various sections of the Act in both senses, as meaning termination by effluxion of time and termination otherwise than by effluxion of time.

There is no dispute that the respondent is an agreement worker. As he had not completed his agreement the Company was under no obligation to repatriate him. The magistrate has assumed that the Company was under an obligation to repatriate the respondent. He was probably misled by the appellant�s application that �the complainant be relieved of the obligation to repatriate the said defendant� and the respondent�s defence denying �that the complainant can be relieved of the obligation to repatriate the said defendant�. There was no such obligation. In short, the Company is bound to repatriate an agreement worker at the expiration of the agreement by effluxion of time, but if an agreement worker chooses to cease working earlier, although he may have a reasonable excuse for so doing so that the Company cannot terminate the agreement under s. 49 (1), provided there is no fault on the part of the Company, the Company is under no obligation to repatriate such a worker.

The only remaining questions are: what is to be done about the sum of K2,587.00 deposited in court and the Company�s claim for out-of-pocket expenses; and how is the court to deal with the fact that the Company has incurred expense in repatriating the workers when it was under no obligation to do so.

Under s. 49 (4) the court, in terminating an agreement, may impose such conditions (including the payment of compensation) as it thinks just. Section 53 (2) empowers a court which makes a termination �to make such further order in the premises as it considers desirable�. Section 164 (1) provides: �In determining any question (other than in a criminal proceeding) under this Act, a Court shall be guided by equity and good conscience ...�.

The cost of repatriating the workers alone exceeds the amount of deferred wages deposited in court. In addition the Company has other legitimate claims against the workers such as out-of-pocket expenses. Having regard to the orders which I shall be making hereafter and my reasons for making them to attempt at this stage to ascertain how the sum of K108.36, claimed by the Company as out-of-pocket expenses, is arrived at, is a fruitless exercise. Ideally this Court should ascertain how much each worker owes the Company, and, if the amount of deferred wages of the worker is insufficient to meet the Company�s claim, the Company could always sue for the balance (s. 54)[ccix]13. But the amounts deducted from each worker as deferred wages differ. The deductions vary depending upon the length of time he has worked and we do not know what these deductions are. It is impossible, therefore, for this Court to ascertain how much each worker owes the Company. Even if it were possible to do this, having regard to the fact that the workers returned to their homes in the Highlands about two years ago, the chances of the Company being able to sue for and recover the balance are pretty slim, almost nil.

The Company has maintained all along that it was under no obligation to repatriate the workers. Nevertheless it repatriated them, presumably in order to prevent hardship to the workers and their families. It would be unconscionable now to deprive the Company of the opportunity to recoup at least a part of the expense it has incurred. It is fair and equitable in the circumstances that the money deposited in court should be paid to the Company.

As I understood counsel for the appellant, the complaint was filed by the Company principally in order to get a decision from the court, both for its own sake and for the sake of other plantation companies, whether or not the Company was bound to repatriate an agreement worker who had failed to complete his contract and there was no fault on the part of the Company. The Company has now got the decision in its favour. The award of K2,587.00 is an additional bonus; also half a loaf is better than none.

I would allow the appeal. I would set aside the order of the magistrate terminating the agreement and the order that the employer should repatriate the respondent. I would terminate the agreement under s. 49 (4) (d) and order that the sum of K2,587.00 deposited in court be paid out to the Company.

Appeal allowed; order of District Court quashed, in lieu thereof order substituted for termination of the agreement as from 11th May, 1974, pursuant to the Native Employment Act 1958, s. 49 (4) (d); further order that moneys in court be paid to the appellant.

Solicitor for the appellant: N. A. Malik.

Solicitor for the respondent: N. H. Pratt, Acting Public Solicitor.

[cxcvii]Infra p. 162 footnote.

[cxcviii]Infra p. 163 footnote.

[cxcix][1930] A.C. 37.

[cc]48(1)� Where an employer and an agreement worker make a joint application for the termination of an agreement before the date of expiration, an Employment Officer may, if he is satisfied there is no reason why the matter should be dealt with by a Court, terminate the agreement in the manner prescribed.

[cci]49(1) A Court may, on the application of the employer, terminate an agreement with an agreement worker on the ground that the employee, during the term of the agreement�

�

N2>(e)������� has been absent from work without leave or reasonable excuse; or

N2>(f)�������� has committed any act or omission such as would, if committed by a servant, justify the termination of a contract of service by a master.

�

N1>(3)������� A Court may, on the application of the agreement worker, terminate an agreement on the ground that�

�

N2>(c)������� the employer or a person acting on his behalf or by his authority has been negligent or careless in the discharge of his duties towards the worker or his dependants under the agreement, this Act or any other law in force in the Territory or a part of the Territory; or

N2>(d)������� the employer or a person acting on his behalf or by his authority has committed an act or omission such as would, if committed by a master, justify the termination of a contract of service by a servant.

N1>(4)������� A Court may at any time whether on its own motion or otherwise and on such conditions (including the payment of compensation) as it thinks just terminate an agreement, where�

�

N2>(b)������� termination is, in the opinion of the Court, in the interests of the welfare of the worker or his dependants;

�

N2>(d)������� for any other reason it considers that the agreement should be terminated.

[ccii]62(1)����������� An employer is responsible for, and for the expenses of, the return of an agreement worker and his accompanying dependants at the expiration of the agreement to such of the homes of the worker as is specified in the agreement.

[cciii]Plowd. 198, cited Stroud�s Judicial Dictionary, 4th ed., Vol. 2, p. 980.

[cciv](unreported) Judgment of Kelly J., 12th Dec. 1971.

[ccv]Infra p. 162, footnote 5

[ccvi]50(1)����������� Where a Court terminates an agreement under the last preceding section on account of a wrongful act or default of the agreement worker, it may award to the employer such amount as it determines of any additional out-of-pocket expenses, as assessed by it, as are reasonably caused or to be caused to the employer by reason of�

N2>(a)������� the wrongful act or default; or

N2>(b)������� the early termination of the agreement, and may, subject to the provisions of section 52 of this Act, authorize the employer to retain that amount (or such part of that amount as may be retained) out of any deferred or other wages due to the worker (other than any amount deducted under section 61B of this Act).

N1>(2)������� An amount awarded under this section shall, subject to the next succeeding section, be deemed to be a judgment debt against the worker.

[ccvii]51(1)���������� Where a Court terminates an agreement under section 49 of this Act, it may award to the agreement worker such amount as it determines of the value, as assessed by it, of the loss of wages and allowances by, and of any expense to, the worker or his dependants reasonably caused or to be caused by any wrongful act or default of the employer, or a person acting on his behalf or by his authority, under the agreement or this Act.

N1>(2)������� An amount awarded under this section shall, subject to the next succeeding section, be deemed to be a judgment debt against the employer.

[ccviii]Infra p. 163, footnote 6

[ccix]54.�� Nothing in this Division contained shall be deemed to prevent any proceedings for the same cause under any other law in force in the Territory or a part of the Territory, but any amount�

N2>(a)������� retained by an employer under section 50 of this Act; or

N2>(b)������� actually recovered by an agreement worker under section 51 of this Act, shall be to that extent satisfaction of a judgment obtained under that law.