Pamben and Gesa v Commissioner of Police [1990] PGNC 41; N873 (4 July 1990)

Unreported National Court Decisions

N873

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 470 OF 1988
BETWEEN: TITUS PAMBEN, ROBERT GESA AND 62 ORS
PLAINTIFFS
AND: COMMISSIONER OF POLICE - ROYAL PAPUA NEW GUINEA CONSTABULARY
FIRST DEFENDANT
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
SECOND DEFENDANT

Waigani

Amet J
4 June 1990
8 June 1990
11-12 June 1990
15 June 1990
4 July 1990

CIVIL LAW - Assessment of damages - Rental and utilities claims - Unpaid salary claims - Claim for higher duties allowance - Basis of claim - Prerogative of State and Department.

Held:

(1) ـ&#1he plae plaintiffntiffs suffered no loss and thus no assessment of damages can be made.

(2) & Ther no legal or contracrual right entitling the Plaintiffs to subsidized rental and and publipublic utility charges.

(3) &##160;;&#16ere w legacontrcontractual authority for a claim for unpaid salarialaries. Nes. No loso loss sufs suffered.

(4) &##160;e were no valid High Higher Duties Allowance claims outstanding. No loss suffered.

.

(5) &ـdecisf tisf thee inee in its prerogative to grant benefits to one category of employees does does nots not foun found a legal claim of right in others.(6)& Disputes over non-contraontractualctual benefits are industrial in nature and not legal.

Cases Cited:

No cases were cited.

Legislation Cited:

The Police Force Act (Ch 65).

Assessment of damages:

This was trial for the assessment of damages following a default judgment signed on the 10 August 1988.

Counsel:

J Yagi and E Geroro, for the plaintiffs.

J K Puringi, for the defendants.

4 July 1990

AMET J: This is a for the assessmsessment of damages. Default judgment was signed on 10 August 1988. The short chronological history of the basis of this suit and the claims can be conveniently restated from the relevant statement of claim in the Writ. I restate only the relevant statements in the number they appear in the Writ.

1. The Plafntifre wel Sal-Insb-Inspectors of Police before the rank was abolished on 23 April 1987.

4. 𧍘 f nspe nspecas hias hithan that of Sergeant Major, and that salt salariesaries of a of a Sub- Sub-InspeInspector ctor was higher than that of a Sergeant MaThe Sspectors paid full rental fees, electricity and wand water ater bills whereas the Sergeant Majors had theirs subsidised by the Police Department.

5. ټ O60; On or about the 12 J9ne 1980 the National Executive Council agreed to increase the salaries of all the National members of the Police Force up to and including the rank of the Chief Superintendent. It w or athis date thte that that the rane rank of Sub-Inspector became redundant.

6. ـ Waen Ct inet agreed to theo the raising of salaries the salaries of the Sergeant Majors were increased to the same level as that of Sub-Inspectors.

.ټ&##160;; During the period whed when then the sala salaries ries of officers in both ranks was the same the Sub-Inspectors were still paying full rental fees, electricity and water bills and garbage whereas the Sergeant Majors continued to have theirs subsidised.

8. &##160; The same salary scay scale of officers in both ranks and payment of rental fees and other bills and their subsidy has existed between the period commencing the 12 June 1980 and ending 23 April 1987.

9. ; T60 Plaentiffs therefore fore claim damages plus interests for the First and Second Defendants failure to;

(i) ҈&ـ Suse refees, electricity;

(ii) ;d< 160; 160; Pay hPayerigher gher duty allowance; From the period commg 12 June 1980 and ending on 23 April 1987.

In the trial the Plaintiffs have advancevanced a third head of claim which was not part of tclaim in the Writ, that is t is for unpaid salary.

1. RENTAL AND UTILITIES CLAIMS

Prior to 12 June 1980 the Plaintiffs, as Sub-Inspectors and commissioned officers were entitled to live in high covenant houses or flats belonging to the State but reserved for the Department of Police use. They had therefore to pay the standard rental per fortnight of about K15.95 as public tenants and all the public utilities charges for electricity, water and sanitation the same as any occupant or tenant of a State or private premises. Also prior to 12 June 1980, the Sergeant Majors, as non-commissioned officers and because they lived in institutional premises at the barracks, houses not of the same high covenant standards as Sub-Inspectors, their rental and public utilities charges were subsidised by the Department.

The Plaintiffs had no complaint prior to 12 June 1980. The basis for the claim simply is that by the National Executive Council Decision No NG 68/80 dated 1 July 1980 to take effect on and from 12 June 1980, the Sergeant Majors received a large increase in salary range up to equal that of Sub-Inspectors. The increases were as follows:

Rank	Existing Salary Point	Existing Annual Salary Range	Recommended Salary Point	Salary Range
Sub-Inspector	29-34	3670-4095	36-38	4275-4485
Sergeant-Major	26-27	3420-3500	36-38	4275-4485

I accept that the policy reason for this decision to increase the salary range of the Sergeant Majors to equal that of Sub-Inspectors was to phase out the rank of Sub-Inspector in due course, through department procedures of promotion, retirement or terminations.

The National Executive Council did not abolish the rank of Sub-Inspector by its decision of 1 July 1980. The Police Commissioner, Mr David Tasion by notice in the Police Gazette No 6 dated 23 April 1987 abolished the rank of Sub-Inspector pursuant to s 16(2)(b) of the Police Force Act (Ch No 65). At the same time on 23 April 1987, all Sub-Inspectors were promoted to Inspectors.

The National Executive Council decision of 1 July 1980 gave a salary increase to all the ranks up to Chief Superintendent including Sub-Inspectors. The Sergeant Majors received the largest increase of between 9-11 salary points to equivalent to Sub-Inspectors. Nothing else has changed. The Sub-Inspectors continued to perform normal duties. The Sergeant Majors may have had their duties increased to overlapping the Sub-Inspectors by virtue of increase in status. The Plaintiff Sub-Inspectors continued to be personally responsible for rentals and all public utility charges as they had always been without complaint prior to the National Executive Council decision taking effect as from 12 June 1980.

The argument under this head of claim seems to be that, although the Plaintiff Sub-Inspectors did get the standard two salary point increase with all the other ranks, because the Sergeant Majors were given an extraordinary 9-11 point increase to equal the Sub-Inspector salary range that the Plaintiff Sub-Inspectors should be entitled to have their rent and all the public utilities subsidized the same as the Sergeant Majors, who continued to enjoy those benefits.

This is the only basis for this claim. This ignores the fact that the Sub-Inspectors are commissioned officers, and live in better accommodation. The differences in living conditions with the attendant obligations are matters for policy decisions. The plaintiffs have not pointed to any policy decision or terms and conditions of employment of Sub-Inspectors which might support a legal claim. There is simply no legal right in the Plaintiffs as Sub-Inspectors entitling them to have the State and Department of Police subsidize their rental and public utility charges. What the State and the Department might decide in their prerogative to entitle the Sergeant Majors and indeed any other rank to, does not thereby somehow or other found a legal claim of right in other ranks such as the Plaintiffs have attempted to claim here.

What possible damage have the Plaintiffs suffered? None whatsover in my view. They received a two salary point increase and continued to be responsible for rentals and public utilities just as they always were. It might seem unfair that Sergeant Majors got a large increase in salary to equal that of the Plaintiffs and continued to have subsidized rental and public utilities, but that cannot found a legal claim in damage when none have in fact been sustained.

Quite frankly, this claim is totally misconceived. There is no basis in law for this claim. This is rather an industrial claim, and not one for a court of law. I make no assessment for damages, as no damages have been suffered.

2. UNPAID SALARY CLAIMS

This was not a head of damage claimed in the statement of claim and so could be dismissed without further ado. I propose however, to consider it as the basis for it is important of consideration.

The period over which this claim is based is from 12 June 1980 to 23 April 1987, being the date on which the general salary increases granted by the National Executive Council were to take effect and the date on which the rank of Sub-Inspector was effectively abolished by the Police Commissioner, respectively.

The unpaid salary claimed is the difference between the gross base salary of a Sub-Inspector and Inspector over the period of some six years ten months. The principle basis of this claim, as submitted by Counsel for the Plaintiffs is that because when the National Executive Council decided on 1 July 1980 to increase the Sergeant Majors salary to equivalent that of the Sub-Inspectors, they, the Plaintiffs, all should have been promoted to the next rank of Inspector. Although they were not so promoted, they should be deemed to be Inspectors and thus are entitled to the difference in base salary between Sub-Inspector and Inspector over the period.

It is an undisputed fact that the rank of Sub-Inspector was not abolished by the National Executive Council on 12 June 1980. It was abolished on 23 April 1987. The Plaintiffs were as at 12 June 1980 still substantively Sub-Inspectors. The Plaintiffs have not pointed to any rule, regulation, bylaw, provision of the Police Force Act or any standing order or policy which supports their claim that, as at 12 June 1980, because the Sergeant Majors received a large salary increase bringing them up to equal with Sub-Inspectors, the Plaintiffs should have been promoted to the next rank being Sub-Inspector. There is no legal authority for this claim. Technically and legally, the Plaintiffs have no right to being paid as Inspectors from 12 June 1980. They were still substantively Sub-Inspectors. The claim is totally misconceived. It has no legal or contractual basis. It is quite impossible to assess damages on a claim that is non-existent in logic and law. There is no damages suffered to be assessed.

3. HIGHER DUTIES ALLOWANCE CLAIM (HDA)

This claim is based on the same premise as the unpaid salary claim, that the Plaintiffs should be deemed to be Inspectors and to have been entitled to be paid at the Inspector rank. The unpaid salary claim was a uniform claim for the difference between the Sub-Inspector and Inspector salaries. This claim is thus for all the acting positions in the period which are all deemed to be at ranks above Inspector. The other part of this claim is the percentage scale of the Higher Duties Allowance at which each Plaintiff is paid when he performed higher duties. The Plaintiffs are claiming the HDA at the full 100 percent.

In the majority of the claims, the Plaintiffs had in fact been paid Higher Duties Allowance by the Department. The Department had paid Higher Duties Allowance from the Plaintiffs substantive rank of Sub-Inspector at the relevant salary point for the given periods of acting positions. The Department had also determined the percentage scale for the Higher Duties Allowance based on the Rules for payment of Higher Duties Allowance contained in Constabulary Standing Orders No 3.332. There are many factors to be taken into account in the determination of the percentage scale at which the Higher Duties Allowance should be paid. It is not automatically at 100 per cent. The Department contends that there are no outstanding Higher Duties Allowance claims for the Plaintiffs based on their substantive ranks of Sub-Inspector during the period.

The Plaintiffs have, by the novel deeming process, in the majority of cases, duplicated all the Higher Duties Allowances paid by the Department in the following manner. Because the Plaintiffs were substantively Sub-Inspectors, where the acting position was one rank up, then that was at Inspector rank by the Department's procedure and records. The percentage scale at which the Higher Duties Allowance was paid varied according to the relevant factors. The Plaintiffs are claiming in such an acting appointment as above, that because they ought to be deemed to be Inspectors from 12 June 1980, the acting position should be deemed to be at Senior Inspector rank and so the salary difference for the Higher Duties Allowance purposes is to be between Inspector and Senior Inspector. The percentage scale would be the difference of that paid and 100 percent at the higher salary difference between Inspector and Senior Inspector.

There has been a total fundamental misconception in this whole action. The basis of these claims are totally misconceived. A number of fundamental facts need to be restated:-

1. ҈ T60; The rank of Sup-Insr ctor was not abolished on 12 June 1980. It was abolished on 23 April 1987.

&##160;; T60 Plae Plaintiffntiffs were substantively Sub-Inspectors durinduring the period until promoted on 23 April 1987.

4. Tiere so abelyuto lenal oral or equitable basis for deeming that the Plaintiffs were Inspectors when they were clearly not. Nor can there be any justification for claiming the Higher Dutieowanc thatalid, at 100 percent.

In p>In the end result, I find there are no valid Higher Duties Allowance claims outstanding which have to be assessed. No damages have been suffered. In fact all of these claims, if they can be legally substantiated are not for damages to be assessed but simply mathematically calculated by straight forward formulas. No loss has however been incurred. No assessment can be made.

CONCLUSION

In conclusion, I repeat that these claims are all fundamentally misconceived. They are without legal, equitable or contractual foundations. No legal or contractual basis has been shown. An argument as to possible unfairness was mounted but without much substance. No legal precedents were advanced to support the claim. I can appreciate the complaints of the Plaintiffs, but they are industrial and not legal.

In the end result I find there have been no loss suffered by the Plaintiffs, and make no assessment of damages.

Costs follow the event in favour of the Defendants.

Lawyer for the plaintiff: Kirriwom & Company.

Lawyer for the defendants: State Solicitor.