Pelgen's Ltd v Palang [2007] PGDC 42; DC549 (12 April 2007)

DC549

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

DCCi 549 of 2006

BETWEEN

PELGEN’S LIMITED
Informant/Respondent

AND

ALPHONSE PALANG
First Defendant/Applicant

AND

MOMASE GENERAL WORKERS’ UNION
Second Defendant/Applicant

Lae: C Inkisopo
2007: 12 April

Case Cited

(1) Gobe Hongu Ltd –vs- NEC, State, Barclay Bros & Southern Highlands/Gulf Highway Ltd N1920 of 2000

References

1. Constitution of the Independent State of PNG
2. Cities Act, Chapter No.4
3. District Court Act, Chapter No. 40
4. Industrial Organisations Act.
5. Industrial Relations Act
6. Town Boundaries Act, Chapter No. 8

District Courts Act, Chapter No. 40 – Section 25 of District Courts Act – exparte orders of a District Court may be set aside on such terms as deemed appropriate – applicability of Common Rule for Lae to matters and activities in issue occurring outside of the town boundaries for Lae and to engagement of primary production/industries.

Counsel
Mr. C Ninawale of Pryke & Jansen Lawyers: For the Informant
Mr. S Toggo of Habuka Lawyers: For the Defendant

April 12 2007

REASON FOR RULING

C INKISOPO: The Defendants/Applicants apply to this Court seeking a dissolution of a certain exparte interim orders obtained by the Informant/Respondent in which certain orders of restraint were obtained against the Applicants restraining them from making further or future entries on to the Respondent’s private properties located at its Abunaka Piggery at 9-Mile along the Highlands Highway in the pursuit of labour union business allegedly concerning employees of the Respondents.

2. On 01 December, 2006 the Court heard both Counsels’ full oral submissions/arguments for there respective clients for which this Court is gladly indebted. The arguments are comprehensive.

3. Respondent filed an Information and a Summons upon Information seeking orders of restraint against the Defendants to restrain particularly the First Applicant from further entering upon the premises of the Respondent on union business. The matter arose after the First Applicant, Mr Alphonse Palang in the pursuit of an alleged union business entered the Respondent’s property called Abunaka Plantation located at Abunaka at nine (9) Mile along the Highlands Highway on Wednesday 25 October, 2005. Mr Palang is alleged to have entered the property in his capacity as General Secretary of the Momase General Workers’ Union purposely to present a letter bearing a log of claims by the workers at Abanaka who were alleged members of the Momase Workers’ Union. As it transpired, the Respondent did not take too kindly the Applicant’s such entry along with certain exchanges that allegedly took place with the First Applicant and the Respondent’s property manager on the ground and did take actions in successfully obtaining several orders of restraint against the Applicants restraining them from further and future entries upon the property on perceived grounds that; the Applicants do not legitimately represent the interests of any of the Respondents’ employees on that property.

4. The Applicants make this application by way of a Notice of Motion filed and dated 08 November, 2006 in which they seek a dismissal of the Respondent’s entire proceedings with the exparte orders of restraint dated 30 October, 2006 inclusive on grounds that it was an abuse of process and further that it was frivolous and vexation and had disclosed no cause of action.

5. The Applicants in pursuing their application argue on the strength of the First Applicant’s affidavit in support, that under the provisions of the Common Rule for Lae, they had a right of entry in pursuit of union business. They argued further that the exparte interim order of 30 October, 2006 should be set aside because that order was obtained without filing an undertaking as to costs. The authority emphasizing this need is the Gobe Hongu Ltd & The Gulf/Southern Highlands Highway –vs- NEC & State N1920 of 1990 per Sevua, J. I agree that the Respondent does not seem to have done so. However, I do not believe that that fact alone should render the exparte order so made bad or irregular that it should be set aside. Rather, it is my humble view that whether or not there is or not an undertaking as to damages filed becomes a necessary consideration during the time of hearing that application for exparte order that the Court looking into or dealing with that application must by necessity consider that issue and express its view in considering whether to grant the relief sought or not. In this case, even in the face of no undertaking as to damages having been filed and yet when the Court hearing the application has gone ahead and heard the application and granted the application. I am a little hesitant to interfere with the exparte order on that basis alone. I therefore overrule that argument.

6. The Respondents argue to the contrary that the Applicants were not legitimately representing Respondents’ employees’ interests and further that, and as I gather from their Counsel’s argument, the Applicants do not have a right of entry onto the Respondent’s property even on or for ‘union business’ as their empowering authority, the Lae Common Rule does not apply to their property and the business engagement as its activity is primary production and that its employees would be engaged concerned in primary production and further that, the location of their activity and the placement of its employees is located out of the town boundary of Lae.

7. The questions I perceive for resolution by this Court are two-pronged;

(a) whether the Applicants are an employees’ union representing its registered members’ legitimate interests, and

(b) whether the Lae Common Rule applies in this case where the location of the subject is located at Nine (9) Mile out of Lae along the Highlands Highway and where their engagements are primarily primary production.

8. In its efforts to arrive at some plausible answers to these questions, the Court considers and takes into account various affidavit material filed on behalf of each of the parties in support of their respective cases/arguments.

9. In my humble view, in order for an organisation to be recognised as an industrial organisation to be able to represent and promote the cause of workers it purports to represent, it must be duly registered and authorised as an organisation as such under the provisions of the Industrial Organisation Act. And in order to continue being so and to effectively do the jobs it is established to do, it must comply with the requirements prescribed under the relevant provisions of the Act or risk incurring the wrath of the penalties prescribed under the relevant provisions of the Act, as for instance under Section 58 of the Industrial Organisations Act.

10. Mr. Ninawale in his submission tries to impress upon the Court that because the Applicant failed to provide a detailed account as required under Section 58 of the Industrial Organisations Act, the Applicants could not legitimately represent the purported interests of the employees who purportedly are members of the union. A further point was made that Application has been deregistered as a union organisation and copies of the several correspondences tendered in evidence before this Court such as Annexure “D” and “E” of the affidavit of C. Ninawale dated 09 November, 2006 go to attest to the fact that the Second Applicant was deregistered as an industrial organisation. However, this issue becomes a non-issue when on 09 June, 2006 the National Court ordered the reinstatement of the First and Second Applicants to their original union positions. Accordingly, I find that the Applicants are a proper industrial organisation for purposes of protecting and promoting the employment and union interests of its members.

11. I do also find that the fact that the Applicants failed to comply with the requirements of the Act such as failing to meet the requirement of Section 58 of the Industrial Organisation Act by that fact do not render void the status and the existence of the Second Applicant as an industrial organisation for purposes of the Act – for the reason that such a default attracts its own built-in penalty provision to cater for such defaults.

12. The next follow-on issue is whether the Applicants were pursuing to promote a legitimate interests of its members to which question, I find myself answering in the affirmative. Even though I have my own doubts and reservations about the authenticity of the receipts as annexed to the affidavit of the First Applicant as well as their propriety and the issue of their admissibility, as they were tendered into evidence in an affidavit by the First Applicant done only in response and after the question of membership and receipts were brought to serious issue. In any case, I consider that such affidavit material have already become evidence as they were not objected to from admission. But in the end, it is a question of the kind of weight I should attach that remains within this Court’s discretion. In any case, the Court chooses to consider those receipts as evidence for what they purport to represent and what they purport to be.

13. Accordingly, I do find that the Applicants have been legitimately pursuing the interests of their members who were employed by the Respondent at its Abunaka Plantation at Nine (9) Mile along the Highlands Highway.

14. One last issue remains, and that is the question of the applicability of the “Common Rule for Lae”.

15. The Applicants cite this Common Rule as giving them the right of entry in pursuit of union business. The First Applicant in paragraph 14:ii raises the Common Rule as the basis of his right to enter and also annexes to his affidavit dated 31 October, 2006 as Annexure “C”, an extract of a document headed by hand the word “Common Rule” which shows clauses 14(c) – (d), 15 and 16 which document shows to be incomplete. This document does not disclose the said “Common Rule” to be complete – so it does not give the Court a complete picture of what it says and how the First Applicant derives his right of entry powers from.

16. The Court has had the benefit of viewing a complete document of what is entitled “Common Rule of Lae” as appear in the official Australian CCH publication which is shown as being the Common Rule for Lae (No. 20 of 1973).

17. The Common Rule for Lae expressly provides that it (common rule) applies to all persons employed in that area (within the boundaries of Lae) except;

(a) employees engaged;

(i) directly in primary production; or
(ii) in domestic duties;
(iii) under any other Act in force in Papua New Guinea other than those employees classified as General Labourers and Class 1, 2 and 3 occupation as determined by the Minimum Wages Board Determination No.4 of 1974; and

18. The above excerpts show the preliminary/introductory part of the Common Rule for Lae expressly demarcating the area of application. It expresses to be applicable within the town boundaries of Lae which means it does not and is not applicable to cases out of the boundaries of the township of Lae. It does not also apply to employees engaged in primary production.

19. In our present case, the fact remains established that Abunaka plantation is located 9-Miles out of Lae along the Highlands Highway and further, the Respondent’s establishment at Abunaka deals with and is engaged in primary production – though there is no specific evidence by way of affidavit material showing what primary production activity it actually is involved in. However, this Court is entitled to take judicial notice of what it knows from its own knowledge and experience that the Respondent’s establishment at Abunaka Plantation involves in pig raising and other livestock. Hence, it can safely be said that Respondent is engaged in primary production.

20. Accordingly, I hold the humble view that given the location of the Abunaka Plantation that it is outside the town boundaries of Lae (refer the affidavit of one Stanis Anea, the Provincial Lands Cartographer filed dated 09 November, 2006 and further that the Respondent’s activities at Abunaka Plantation is primarily primary production.

21. Ultimately, it is my humble view that this case must necessarily come down on the question of the Common Rule’s applicability to the employees of Abunaka Plantation and the nature of the activity the employees of the Respondent are engaged in.

22. On the basis of the above discussions, I do find that the Common Rule for Lae does not apply and that the Applicants could not lawfully avail themselves of the right of entry provisions of the Common Rule for Lae they seem to me in this case to place reliance on.

23. I therefore refuse this application and order the interim exparte orders dated 30 October, 2006 as amended (if any) to become absolute forthwith.

24. As the question of costs is a matter for judicial discretion, I order that each parties bears own costs of proceedings.

Pryke and Jansen – Lawyers for Informant/Respondent
Habuka Lawyers – Lawyers for Defendant/Applicants