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Mapua v McNamara [2024] PGNC 360; N11035 (11 October 2024)

N11035

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 93 OF 2020

PETER MAPUA AND JASON WEITAU FOR HIMSELF AND ON BEHALF OF 31 OTHER EX-EMPLOYEES OF G4S SECURE SOLUTIONS (PNG) LIMITED
Plaintiff

V

KERRY MCNAMARA AS MANAGING DIRECTOR OF G4S SECURE SOLUTIONS (PNG) LIMITED
First Defendant

G4S SECURE SOLUTIONS (PNG) LIMITED
Second Defendant

Madang: Narokobi J
2024: 12th July and 11th October

PRACTICE AND PROCEDURE – Whether proceeding should be dismissed for want of prosecution– Whether proceeding frivolous, discloses no reasonable cause of action and is an abuse of process.

The defendants have filed a motion to dismiss the proceedings for want of prosecution and in the alternative on the basis that the plaintiff has not complied with previous orders to provide the particulars of the claim in a fresh statement of claim thereby rendering the proceeding frivolous, an abuse of process and disclosing no reasonable cause of action.

Held:

(1) On balance there was a reasonable explanation for the delay, and therefore the application to dismiss the proceeding for want of prosecution is refused.

(2) Long service leave is not a standard term of employment under the Employment Act 1978. There is no provision in the Employment Act that provides for long service leave apart from s 63 which refers to accrued long service leave carried forward from the pre-independence Native Employment Act 1958 (adopted). This is a general entitlement of public servants that is not applicable to employees in the private sector unless there is a specific written contract or award to that effect.

(3) A cause of action for unpaid money in lieu of the notice period and accrued annual leave being valid legal claims, are made out, and should proceed to determination via mediation. The claims for accrued long service leave and payment during the Covid lockdown are dismissed.

Cases Cited

Namui v Ramu Nico Management (MCC) Ltd (2024) N11003
Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133

Legislation Cited

Employment Act 1978

Counsel

D Wa’au, for the Plaintiffs
B Sinen, for the Respondents

RULING

11th October 2024

1. NAROKOBI J: The defendants have filed a motion to dismiss the proceedings for want of prosecution and in the alternative on the basis that the plaintiff has not complied with my orders to file a statement of claim providing the particulars of the claim thereby rendering the proceeding frivolous, and abuse of process and disclosing no reasonable cause of action.
   
2. The defendants rely on Order 10 rule 5 of the National Court Rules to ask the court to dismiss the proceeding for want of prosecution.
   
3. The principles relevant to an application to dismiss a matter for want of prosecution is well established in this jurisdiction. The principles are:
   
   • The plaintiff’s default is intentional or is allowing for an inordinate and inexcusable delay in the prosecution of the claim;
   • There is no reasonable explanation given by the plaintiff for the delay;
   • The delay has caused injustice or prejudice to the defendant;
   • The conduct of the parties and their lawyers warrant dismissal; and
   • It is in the interests of justice.
     
4. One of the early cases that applied these principles was the case of Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133. That case has since been applied in many later cases such as in my recent decision in Namui v Ramu Nico Management (MCC) Ltd (2024) N11003. I apply these principles to the consideration of the issue of whether the proceeding should be dismissed for want of prosecution.
   
5. The defendants state that from the filing of the statement of claim to the filing of their notice of motion on 6 May 2024 there has been a period of 13 months of inactivity on the part of the plaintiff. This delay is inexcusable and the proceeding should be dismissed.
   
6. On the other hand, the plaintiff states they are seeking the help of a qualified accountant to calculate their entitlements. There is also negotiations going on between the plaintiffs and the defendants.
   
7. Upon careful consideration of the manner in which the plaintiffs have conducted themselves, I take it that the delay by the plaintiff was due to attempts to settle the matter and also to ascertain the details of the claim. Part of the delay was contributed to by the plaintiffs lawyer delay in arranging his practising certificate. On its own it is not an acceptable reason, and warrants dismissal of the proceedings. However, coupled with the other considerations, the just course to take would be to impose costs on the plaintiffs, but to be shared between the plaintiffs and their lawyers. I will therefore in the interests of justice refuse to dismiss the claim for want of prosecution.
   
8. The second contention is with regards to whether the proceedings are vexatious, frivolous and an abuse of process. The basis of this contention is that the orders of 29 March 2023 were not complied with. The order states:
   
   1. The plaintiffs file a fresh statement of claim on the defendants within 14 days from today, restricting its claim to amount specified in the plaintiffs respective affidavits setting out the legal basis for such claims.
   2. The claims calculated by the Labor Department and for breach of human rights are dismissed.
   3. The defendants have 14 days to file their defense after being served the plaintiffs statement of claim.
   4. At the close of pleadings the matter shall be mentioned for directions hearing at the next call over.
   5. The issue of costs will be determined at the conclusion of trial, taking into account factors such as the parties willingness to settle.
   6. Time is abridged.
      
9. The defendants submit that the statement of claim filed by the plaintiffs on 11 April 2023 does not comply with these orders. For this reason, the proceeding should be dismissed for being frivolous, disclosing no reasonable cause of action and for being an abuse of process.
   
10. The plaintiffs argue that their case was really based on the Labour Department calculations, but when that was dismissed, they have been struggling to articulate their claim. Mr Wa’au submits that in other cases, the courts have allowed the Labour Department calculations. He has not cited those cases. In any event, the Labour Department must base its calculations from some form of evidence. Who has the evidence and where is it? It is the plaintiffs that will answer this question. This is the reason I stated that the plaintiffs must rely on what is stated in their affidavits to make a claim against the defendants. It is not enough to simply state that you are entitled to damages without providing the details of it. However, after reading the defendant’s defence, there appears to be some understanding of what the plaintiffs are claiming. With some effort the issues can be settled. This means that the claim is not a clear case for dismissal for disclosing no reasonable cause of action, abuse of process or frivolity.
    
11. These orders were made after proper trial. It was an opportunity given to the plaintiffs to improve their case and press a claim that has legal basis and factual foundation. I have read the plaintiffs statement of claim. It is trading in generalities. As an example of what I mean, one can see from the affidavit of Wendy Sindrelene, filed on 11 June 2020. She says that the company owes her the following:
    
    • Six fortnights pay.
    • Full payment of all final entitlements, including long service leave entitlements.
    • Risk allowances.
    • Breach of human rights for not being paid during the COVID lockdown.
    • Certificate of service, so that she can work elsewhere.
      
12. It is to be noted that most of the plaintiffs make similar claims.
    
13. Had the plaintiffs followed the orders of 29 March 2023, they would have pleaded these items in the statement of claim. Out of all the claims, the only one that is properly pleaded is that in relation to money in lieu of notice. The plaintiffs state at paragraph 13(i) of their statement of claim:
    

The plaintiffs claim that the notice varied from 30 May 2020 to 6 June 2020 and they should have been paid up to June 2020 because the plaintiffs were still working for the defendants. However, they were paid up to 14 April 2020.

14. The other claims are too general for me to allow. For accrued annual leave, accrued long service leave, non-payment of wages during the Covid period, one will notice that the plaintiffs says, “most of them.” This is unacceptable. One cannot simply say most of them and leave the defendants to guess who they are. The plaintiff has the onus of proving its case. It cannot simply throw an allegation and leave to the defendant and the court to work it out. There has to be specific details provided.
    
15. There is also a misconception that long service leave is a standard term of employment. The Employment Act 1978 provides the minimum terms and conditions of employment for all workers in Papua New Guinea in the private sector. Long service leave is not a standard term of employment under the Employment Act. There is no provision in the Employment Act that provides for long service leave apart from s 63 which refers to accrued long service leave under the pre-independence Native Employment Act 1958 (adopted). This is a general entitlement of public servants that is not applicable to employees in the private sector unless there is a specific written contract or general award to that effect. The plaintiffs provide none. Apart from the claim not being adequately pleaded, it is a claim without legal basis and is dismissed.
    
16. I will however, in addition to the claim for money in lieu of notice, allow the claim for accrued annual leave.
    
17. This means that the claim for long service leave and payment during the Covid period is dismissed.
    
18. Given my findings, I will refuse the defendants application and order that the matter is referred to mediation for the parties to settle how much each plaintiff is entitled to for the notice period and accrued annual leave.
    
19. The costs of the application will be paid by the plaintiffs with their lawyers on a 50/50 basis to be taxed if not agreed.
    
20. The orders of the court are therefore as follows:
    
    1. The defendants notice of motion filed on 6 May 2024 is refused.
    2. The matter shall be referred to mediation for settlement on the issue of whether the plaintiffs are entitled to any claims for money in lieu of notice and for accrued annual leave.
    3. The parties shall return to Court on 7 November 2024 at 930am before the Deputy Chief Justice, the ADR Administrator for further orders and directions in relation to mediation.
    4. The plaintiffs and their lawyers shall pay the defendants costs on a 50/50 basis, such costs to be taxed if not agreed.
    5. Time is abridged.
       

Ruling and orders accordingly.
________________________________________________________________
D.F.W Lawyers: Lawyers for the Plaintiffs
Leahy Lewin Lowing Sullivan Lawyers: Lawyers for the Defendants