Tivi v Graham Osborn [2000] PGDC 2; DC67 (28 February 2000)

Unreported District Court Decisions

[2000] PNGDC 8 - STEVEN TIVI V GRAHAM OSBOURNE & OTHERS

[2000] PNGDC 8

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

CASE NO DCC.3102/99

BETWEEN

STEVEN TIVI

COMPLAINANT

AND

GRAHAM OSBOURNE

FIRST DEFENDANT

AND

DOLL NYGUEN

SECOND DEFENDANT

AND

MICHAEL THINEE

THIRD DEFENDANT

Port Moresby

Geita M

3 February 2000

28 February 2000

PRACTICE AND PROCEDURE – Where objection successfully raised in complaints of vexatious and oppressive nature, compensation or amends may be awarded against the original complainant.

PRACTICE AND PROCEDURE - S.151 District Courts Act Ch. No.40

Counsel

Judy Naipet for First Defendant

William Igo for Second & Third Defendants

Complainant in person

DECISION

GEITA M:  This is a claim for general damages suffered by the complainant as a result of some false information alleged to be uttered by the First, Second and Third defendants respectively on 26 October 1999. As a result of the false information the complainant lost his job as a bartender with Sirocco Club in Port Moresby.

The defendants by consented application seek to have the complaint dismissed for being vexatious and lacking no cause of action in law. They also relied on section 21 District Court Act to have this court terminate proceedings for want of jurisdiction since the complaint was based on defamation. I find I must consider the matter on defamation, since the original complaint makes some reference to it.

The Court in circumstances of this nature has the power to correct errors and I proceed to hear arguments on these points in a summary way. The law applicable under the circumstances is found in section 151 District Courts Act Chapter No 40.

N2>151.    Compensation in vexatious cases

(1)      Where an objection is established under Section 150 to the satisfaction of the Court and the person making the objection at once complains to the Court that he has been brought to the wrong Court vexatiously and oppressively, the Court shall immediately and without any further summons or notice proceed to hear and determine the matter in a summary way.

(2)      If the Court is of opinion that a complaint under Subsection (1) is correct, it may order the original complainant to pay to the person making the objection, by way of compensation or amends, such reasonable sum as the Court directs, together with the costs of the order.

The complainant is alleging that due to some false information made by defendants 1,2 and 3, he lost his job. Hence he is asking for compensation. Having read through the complainant’s affidavits I cannot find any evidence to link how and in what way the defendants caused the complainants termination. Even if they did say bad things about the complainant, which is denied what has that got to do with his termination? They are all employees of Sirocco and like him are workers. Hence the decision to hire and fire remains with Sirocco as a company and they have used that discretion to terminate his services due to allegations of failing to adhere to established administrative procedures. In that on 24 August 1999 the complainant failed to post entries to a single docket amounting to K22.90. It should be noted that the alleged complaint of false information was made on 26 July 1999, almost one month apart from the complainant’s termination. I am not satisfied that because of some false information by the defendants the complainant lost his job. There is insufficient evidence to prove the allegation of false information. Defamation is a non-issue since this court lacks jurisdiction.

I am satisfied that the complaint laid against defendant 1, 2 and 3 is frivolous and vexatious. Likewise there is insufficient evidence to show how first defendant’s false information has led to the complainants termination from Sirocco. The first defendant is employed by Gateway Hotel and may have some connection with Sirocco, which is a normal business practice. Although it appears possible that he may have influenced the management of Sirocco to terminate his services, there is no hard evidence to prove that fact.

There is however evidence before this court that on 9 September 1999 some form of compensation payment of K500 was made to the complainant as a result of the same complaint. The reason for compensation in the agreement was termed as “ Misunderstanding that has arising.” I take this to mean the false information alleged to be used by the first defendant, which resulted in the complainants job loss and subsequent termination. Furthermore in the complainants sworn statutory declaration dated 26 October 1999 he made mention of receiving the K500 from defendant one.

For the complainant to come to the court seeking relief for the same complaint in which he signed for and was compensated with K500 by defendant 1 is considered too greedy for want of better words. I quote an except of  9 September 1999 agreement between the two parties, “This is the only payment that Mr. Osbourne will be making to me and that matter is now closed”. (emphasis mine)

Having to come back and have a second bite at the same piece of cake is tantamount to being vexatious and oppressive under the circumstances and therefore the complaint must be dismissed.

In fact, that is the very reason why section 151 District Court s Act was put in place. To protect innocent citizens from being dragged to the courts. If the court is satisfied that defendants have been vexatiously prosecuted, they must be compensated.

I agree with counsels for defendants 1, 2 & 3 that the complainant’s termination is a personal matter between him and his former employer Sirocco and if he is aggrieved by their decision to terminate him, recourse may be had through the Labour department.

Under the circumstances I am satisfied that the facts of this case fall neatly within the ambit of section 151, hence the Defendant 1, 2 and 3 must be compensated for being dragged into the wrong court vexatiously or oppressively.

The end result is that I am not convinced that the complaint has been made out. There is insufficient evidence. Furthermore the complaint is baseless and has no cause of action in law. I order that the complaint be dismissed. The defendants are each and severally discharged. That defendant 1, 2 & 3 be struck off the complaint forthwith. Furthermore the complainant is ordered to pay K150.00 as compensation to each of the defendants  together with the cost of this order within three weeks from today.