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Tutura v Ng [2005] PGNC 69; N2924 (21 October 2005)

N2924

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE AT WAIGANI]

WS 844 of 2001

BETWEEN

KILA TUTURA
Plaintiff

AND

JOSEPH NG
First Defendant

AND

ECON INVESTMENT LIMITED
Second defendant

Waigani: Gavara-Nanu, J
2002: 8th August
2004: 20th & 22nd October
2005: 21st October

CIVIL LAW – Practice & Procedure – Default judgment – Default judgment entered against defendants – Liability not an issue – Defendants raising and relying upon matters relating to the issue of liability – Plaintiff not objecting to such matters – Power of the Court to exclude such matters from being considered - Defendants effectively having no defence – Plaintiff’s claim effectively undefended – Damages awarded in full upon proof.

Cases cited:
Jonathan Mangope Paraia -v- Jacov Yansuan & 3 Ors N134.
K.L Engineering & Constructions (PNG) Ltd -v- Damasara Forest Products (PNG) Limited & Others N2250.
Keith Reid -v- Murray Hallam and Allcad Pty Limited N1337.
Komaip Trading -v- George Wagulo and The State [1995] PNGLR 165.
Lalip and Ors -v- Fred Sekiot and The State N1457.
Pande Manase -v- Peter Andan and The State N2408.
Papua New Guinea Banking Corporation -v- Jeff Tole SC694.
MVIT -v- James Pupune [1993] PNGLR 370.
MVIT -v- Salio Tabanto [1995] PNGLR 214.
Uma More –v- University of Papua New Guinea [1985] PNGLR 401.

Counsel:
Ms A. Nambau for plaintiff.
Mr D. Keta, for defendants.

GAVARA-NANU, J: This case first came before me on 8th August, 2002, for assessment of damages after a default judgment was entered against the defendants on 12th December, 2001. However, the case was part-heard when it was discovered that some of the figures provided by the Department of Labour for plaintiff’s overtime claims required verification.

At the hearing, the plaintiff gave evidence and her two affidavits were also tendered. Mr Herman Gire of the Department of Labour also gave evidence for the plaintiff and it was during his evidence that it was discovered that there were possible errors in the figures put forward for the plaintiff’s overtime claims. The Court therefore directed the parties to go back and discuss the figures and have them verified by the Department of Labour with a view that the parties may settle. The case was adjourned generally and the parties were directed to advise the Court when they were ready. The case was eventually tried fully on 20th October, 2004, after the parties failed to reach a settlement.

Liability is not an issue before the Court as a default judgment was obtained against the defendants. The plaintiff’s claim is for unpaid overtime wages by the defendants. The first defendant is the Managing Director of the second defendant which is a company duly incorporated in Papua New Guinea.

The plaintiff claims that she was employed by the defendants in their VIP Lounge Club in Port Moresby from 18th April, 1996, to 28th November, 1999, when she was terminated.

The plaintiff claims that during her employment, she did overtime work on public holidays, weekends and at nights but she was not paid for her overtime. Thus upon her termination, she filed a complaint with the Department of Labour Industrial Relations Office. That Office subsequently assessed her claims based on the rates prescribed under s. 52 of the Employment Act, 1978. It was determined that the defendants owed the plaintiff K12,646.92, in unpaid overtime wages. This is the amount the plaintiff is claiming.

It is noted that on 08th April, 2002, the defendants filed a Notice of Motion seeking Orders for the default judgment to be set aside and the matter proceed to trial. That Notice of Motion was filed after the Notice to Set Down for Trial was signed by both parties and filed on 13th February, 2002. I note from the Notice of Motion that it was filed by the first defendant. The reason appears to be that the defendants’ lawyers who at that time were Namaliu and David Lawyers had ceased to act for them on 03rd April, 2002. The defendants never prosecuted that Notice of Motion. The next activity in the case was on 08th August, 2002, when the matter came before me for assessment of damages. The trial was set for half day, but the trial could not be completed because of the reasons given.

It is trite law that although a default judgment was obtained against the defendants, the plaintiff still has to prove her claims. See, Komaip Trading -v- George Wagalo and The State [1995] PNGLR 165, Lalip and Ors -v- Fred Sekiot and The State N1457; K.L Engineering and Constructions (PNG) Ltd -v- Damansara Forest Products (PNG) Timbers and Others N2250; Jonathan Mangope Paraia -v- Jacob Yansuan and 3 Ors N1343 and Pande Manase -v- Peter Andan and The State N2408.

The defendants filed two affidavits, one by the first defendant and the other by a Mr. David Philip. Both affidavits were sworn on 10th October, 2004.

I note from paragraph 17 of the affidavit sworn by the first defendant that he received a letter from the Department of Labour containing outstanding entitlements for the plaintiff. That letter was annexed to his affidavit as Annexure ‘C’. I note in the letter which was dated 5th May 2000, that the amount determined by the Department of Labour was K307.08t, being for the period from 18th April, 1996, as the date the plaintiff commenced her employment with the defendants to 28th November, 1998, as the date of her termination. I further note from the letter that the amount was for plaintiff’s unpaid leave entitlements and some unpaid ordinary wages. It did not include plaintiff’s overtime entitlements.

The letter was addressed to the second defendant and was made attention to the first defendant. The first defendant confirms in his affidavit that he paid the K307.08 to the plaintiff.

On 30th April, 2002, a Notice of Change of Lawyers was filed by Mr. David Keta, who is the current lawyer for the defendants.

The affidavits sworn by the first defendant and Mr. Phillip deny that the plaintiff commenced her employment with the defendants on 18th April, 1996. They also deny that the plaintiff was ever employed by the second defendant. In other words, they say the second defendant has been wrongly joined as a party in these proceedings. The defendants raised and relied upon these materials and the materials are before the Court because no objections were raised by the plaintiff against them. However, these are clearly matters which relate to the issue of liability which is not an issue before the Court as that issue was settled when the default judgment was entered against the defendants on 12th December, 2002. See, Keith Reid -v- Murray Hallam and Allcad Pty Limited N1337. Thus in the exercise of the Court’s inherent powers, the two affidavit materials are excluded from being considered by the Court because they have no relevance to the issues before the Court.

The first defendant and Mr. Phillip also gave oral evidence and that evidence is similar to the matters they deposed in their affidavits. In other words, they raised matters which were relevant to the issue of liability which is not an issue before the Court. Again for the reasons given, this evidence is also excluded from being considered by the Court. Apart from the affidavit and oral evidence by the first defendant and Mr. Phillip being excluded on the basis that they are irrelevant to the issues before the Court, the other reason for their exclusion is that these are matters which were never pleaded by the defendants as no defence was filed by them. As a general rule, matters which have not been pleaded cannot be raised and relied upon, however relevant they might be to the facts in issue. See, Uma More -v- University of Papua New Guinea [1985] PNGLR 401; MVIT-v- Salio Tabanto [1995] PNGLR 214; MVIT -v- James Pupune [1993] PNGLR 370 and Papua New Guinea Banking Corporation -v- Jeff Tole SC694.

In any case, it would make no difference because the defendants have by their conduct conceded the two matters they took issue on, namely, the date the plaintiff commenced her employment with them and that the plaintiff was employed by the second defendant. The defendants’ concession of these two matters can be seen from Annexure ‘C’ to the affidavit sworn by the first defendant, which is a letter by the Department of Labour to the first defendant to which I adverted earlier. That letter contained outstanding entitlements for the plaintiff for K307.08t for the period from 18th April, 1996, as being the date the plaintiff commenced her employment with the defendants to 28th November, 1998, as the date of her termination. As noted, the first defendant confirmed in his affidavit that he paid the K307.08 to the plaintiff. Thus by agreeing to pay the amount for the period stated above, the defendants have conceded and acquiesced that the plaintiff was employed and terminated on the above dates. The defendants therefore cannot turn around now and deny that the plaintiff commenced her employment with them on 18th April, 1996. The date of her termination is not in dispute. Also by paying those outstanding entitlements, the defendants, in particular the second defendant had conceded liability to those claims as plaintiff’s employers. The second defendant therefore cannot turn around now and deny liability to the plaintiff’s claims.

Consequently, my task here is to determine the plaintiff’s damages on the basis of the evidence provided by her and the Department of Labour through Mr Herman Gire.

As noted, the plaintiff was a supervisor at the VIP Lounge Club owned by the defendants at the time of her termination. She did overtime work which included weekends, public holidays and nights. In plaintiff’s other affidavit, she says, she did not get paid for her overtime work and she was not provided with pay slips from which she could be informed of the rate she was being paid at. She says that not being provided with her pay slips, led her to believe that the defendants were not paying her for her overtime. She also says that after her termination on 28th November, 2000, she tried to discuss her overtime entitlements with the first defendant both through telephone calls and by personally visiting him at the office for the second defendant where the first defendant worked, but the first defendant refused to talk to her. That forced her to seek assistance from the Department of Labour.

She says she was paid K120.00 per fortnight but she did not know how that amount was arrived at because she was always paid in cash and no pay slips were given to her.

In the affidavit, the plaintiff says that, when she delivered the letter by the Department of Labour containing her overtime claims to the first defendant at the second defendant’s office at Gordons, the first defendant took the letter, tore it up and threw it in a rubbish bin and told her that he did not care about Papua New Guinea laws. She says, after the first defendant did that, she went back to Mr. Gire and told him of what the first defendant did. As a result, Mr. Gire summoned the first defendant to appear before him which he did. Following that, the first defendant only paid the plaintiff’s leave entitlements but not the overtime claims.

The plaintiff says Mr. Gire directed the first defendant to provide copies of pay slips and other documents relating to her wages but the first defendant did not provide them, instead he delivered a cheque for her leave entitlements. The plaintiff says the cheque was dishonoured by the bank so the first defendant had to pay her in cash in late May, 2000. It was after the refusal by the first defendant to pay the plaintiff’s overtime claims that Mr Gire prepared the plaintiff’s overtime entitlements which totalled K12,646.92.

In the affidavit sworn by Mr. Gire on 13th July, 2002, he confirms that he investigated the plaintiff’s claims and found that the plaintiff was not paid her overtime entitlements. So in June, 2000, he summoned the first defendant to appear before him which he did. During their meeting, when asked by Mr. Gire, the first defendant was not able to explain why pay slips were not given to the plaintiff. The first defendant also told Mr. Gire that he was not aware of the requirements under ss. 82 and 83 of the Employment Act, 1978, that he had to keep plaintiff’s employment records.

Mr. Gire also confirmed that he found that the plaintiff’s leave entitlements were not paid to her, so the first defendant was told to pay the plaintiff’s leave entitlements and to provide records of plaintiff’s wages, including her pay slips to determine plaintiff’s overtime entitlements but those records were never produced to Mr. Gire. The first defendant only paid the leave entitlements. As the result, Mr. Gire went ahead and assessed plaintiff’s unpaid overtime entitlements at K12,646.92 using the rates prescribed under s.52 of the Employment Act, 1978.

The plaintiff therefore claims K12,646.92 in damages with interest at 8%. The plaintiff’s claims were effectively undefended as the defendants did not mount any real challenge to the claims. The plaintiff has provided evidence in support of her claims thus substantiating the claims.

It follows that I should give judgment for the plaintiff in the amount claimed, viz. K12,646.92.

I will award interest at 8% from the date of the writ which is 28th June, 2001, to the date of judgment which is today, 21st October, 2005. That is a period of 4 years 3 months 3 weeks. For that I award K4,363.18, in interests.

I have awarded interest at 8% because the delay in the trial of this matter was caused by the defendants who really had no defence to the plaintiff’s claims.

Therefore the total amount awarded to the plaintiff in damages and interests is K17,010.10.

The plaintiff also claims costs of the proceedings. She has won her case, so the costs must follow the event. The question is whether I should order costs on party and party basis or on solicitor and client basis. It is a matter of Court’s discretion. I have found that the defendants did not have any defence to the plaintiff’s claims. They had the opportunity to defend the claims but they failed to do so both in these proceedings and before the Department of Labour.

Therefore it is plain enough that although the defendants had no defence, they deliberately refused to settle the plaintiff’s claims and made things difficult for the plaintiff. In this regard, I note from plaintiff’s evidence that the first defendant was not corporative and that he flatly refused to discuss her claims with her. That is something I should hold against the defendants, because it was that attitude which forced the plaintiff to institute these proceedings. The plaintiff’s evidence also quite plainly shows that the defendants had no regard for the laws of this country.

In the circumstances, I consider it appropriate that I should Order costs on solicitor and client basis.

In the result, I Order the defendants to pay the plaintiff’s costs on solicitor and client basis.

Orders accordingly.
________________________________________________________________________
Lawyers for the plaintiff : Murray & Associates.
Lawyers for the defendants : David Keta Lawyers.