Ponda v Paragon Security Services Ltd [2010] PGDC 51; DC1084 (15 April 2010)

DC1084

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

CASE No DCC 27 OF 2010

BETWEEN

BENNY PONDA
Complainant

AND

PARAGON SECURITY SERVICES LTD
Defendant

Madang: J Kaumi
2010: 15th APRIL

SUMMARY CIVIL PRACTICE & PROCEDURE-Complainant has cause of action-Whether his choice of originating process correct-Whether Default summons under Division 3 of Part VIII Section 156 of the District Courts Act is appropriate originating process for what is essentially an unliquidated demand.
SUMMARY CIVIL PRACTICE & PROCEDURE –Whether assessment of entitlements by Department of Labour and Employment will require further investigation beyond mere calculation-Definition of Liquidated demand.

SUMMARY CIVIL PRACTICE & PROCEDURE-- Difference between ordinary summons and default summons in the District Court.

A man sued his former employer by way of default summons claiming unpaid entitlements based on an assessment by the Department of Labour and Employment.

HELD:

(1) Default summons under section 156 of the District Courts Act for "a debt or other liquidated demand" as opposed to the ordinary civil summons must be:-

(i) a debt is for a precise sum of money owing under a contract e.g. a loan of K100.00;

(ii) a liquidated demand is similar to a debt, means a specific sum of money due and payable under a contract. Its amount must either be already ascertained or capable of being ascertained as a mere matter of arithmetic;

(iii) if the ascertainment of a sum of money, even though it is specific or named as a definite figure, requires investigation beyond mere calculation, then the sum is not a debt or liquidated sum but constitutes damages. Foord v Avarip [1982] PGNC 6; N353 (M) (22 April 1982)

Cases Cited:

Foord v Avarip [1982] PGNC 6; N353(M) (22 April 1982)
National Airlines Commission trading as Air Niugini v Lau [1997]; N1538 (20 March 1997) Lenalia.J

Counsel:
Complainant in person
Defendant in person

15th April 2010

INTRODUCTION

1. Kaumi, M The matter before me this morning is a default summons by the complainant claiming K815.30 being monies he claims is the balance of what is owed to him as long service entitlements.

RELEVANT BACKGROUND

2. This matter, DCC No 27 of 2010 was filed on 31st March 2010. This Default Summons was filed along with a Complaint, Statement of Claim, and Supporting Affidavit with annexure.

PRELIMINARY ISSUE

3. After a closer scrutiny of these proceedings, a preliminary issue arises at this juncture of proceedings and that is, whether the complainant's Default Summons is the appropriate originating process in this instance given the nature of his complaint.

RELEVANT LAW

4.In the case of Foord v Avarip ^[1] Bredmeyer.J set out the pre- requisites for the commencement of proceedings by way of default summons under section 156 of the District Courts Act for "a debt or other liquidated demand" as opposed to the ordinary civil summons as follows:-

(i) a debt is for a precise sum of money owing under a contract e.g. a loan of K100.00;

(ii) a liquidated demand is similar to a debt, means a specific sum of money due and payable under a contract. Its amount must either be already ascertained or capable of being ascertained as a mere matter of arithmetic;

(iii) if the ascertainment of a sum of money, even though it is specific or named as a definite figure, requires investigation beyond mere calculation, then the sum is not a debt or liquidated sum but constitutes damages.

5. In National Airlines Commission trading as Air Niugini v Lau ^[2] Lenalia.J succinctly described the types of summons that may be issued by a District Court in the following terms, "In the civil track, there are two distinct modes of summonses that may be issued by the District Court, see SS. 41 (2), 42 (2) and 133, 155. The first type is a Summons Upon Complaint. This type is appropriate in those circumstances where an unliquidated demand is being sued and is directed to the person named in the complaint against whom the complaint is made and with specific demand requiring that person to appear at a time and place appointed in the summons The second type is a default summons see SS. 155, 156 & 157. The latter type is issued in respect of a debt or a liquidated demand. In this sense a liquidated demand must contain concise particulars of the complainant's claim with dates, items and prices of value must be endorsed or annexed to the Summons. Proceeding in relation to default summons is governed by Division 3 of Part VIII of the District Courts Act".

THE PRESENT CASE

6. In the instant case the complainant's claim is purportedly for a liquidated demand which he claims is the balance of monies owed to him in the form of long service entitlements as calculated by the Labour & Employment Department for working seven years as general security guard prior to his resignation.

7. The assessment by the Department of Labour and Employment which I note has not been provided to this court would in essence be a presentation of complainant's claim in the form of a calculation made on the basis of information received solely from him to the exclusion of the defendant and using a certain formulae.

8. The complainant has not provided any evidence of a meeting of minds or agreement between himself and the defendant as to what if any amount he would be entitled to in the event he resigned from the defendant's employ and therefore though he claims a specific amount or claims a definite figure I find it is anything but. This assessment by the Department of Labour and Employment will require investigation beyond mere calculation and therefore the amount claimed is not a debt or liquidated sum but constitutes damages.

9. The complainant has a cause of action to sue for long service entitlements he claims is owed to him. However the appropriate originating process given the nature of his demand being unliquidated would be by way of an ordinary civil summons to person upon complaint pursuant to section 41 (2) of the District Courts Act. In the event of such an action being instituted the complainant will have every opportunity to adduce evidence through the normal evidentiary process in support of his claim.

DETERMINATION

10. In view of the above I strike out the matter for the reasons that I find it to be misconceived. 11. No orders for costs are made.

Complainant in appearance
Defendant no appearance

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^[1] [1982] N352 (M) (22/04/82) Bredmeyer.J

^[2] [1997]; N1538 (20 March 1997)