N4150

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 376 0F 2000

PETER ABEL
Appellant

V

HARGY OIL PALMS LIMITED
Respondent

Kimbe: Cannings J
2006: 5, 8 June

APPEAL

COURTS – District Court – duty to observe natural justice – District Court made prejudicial findings of fact in absence of evidence and without giving the party to whom the findings were adverse the opportunity to respond.

The appellant sued the respondent in the District Court for wrongful dismissal. The District Court dismissed the case and in giving its reasons made prejudicial findings of fact regarding the appellant. The appellant appealed on the ground that the decision of the District Court was made unfairly as there was no evidence before it to support the prejudicial findings and he was not given the opportunity to address it on those issues.

Held:

(1)	The District Court is obliged to comply with the principles of natural justice and must give parties the opportunity to address any proposed findings of fact that are material or prejudicial to a party.

(2)	To make material or prejudicial findings of fact, the District Court must have evidence before it to support those findings.

(3)	In this case the District Court exceeded its jurisdiction by making material and prejudicial finds of fact in the absence of evidence.

(4)	The District Court breached the principles of natural justice by making material and prejudicial findings of fact against a party without giving that party the opportunity to address the court on those matters.

(5)	As there was a substantial miscarriage of injustice, the matter was remitted to the District Court for re-trial.

Cases cited

The following cases are cited in the judgment:

Egga Pua v Otto Benal Magiten (2005) N2892
Papua New Guinea Harbours Board v Breni Kora (2005) N2834

APPEAL

This was an appeal from a decision of the District Court dismissing a claim for damages for wrongful dismissal.

Counsel

P Abel, the appellant, in person
G Geroro, for the respondent

8 June, 2006 

1. CANNINGS J: This is an appeal against a decision of the District Court at Kimbe, constituted by Mr J Pake, in which his Worship dismissed a claim for damages for wrongful dismissal.

2. On 11 November 1999, the appellant, Peter Abel, started work with the respondent, Hargy Oil Palms Ltd, as a weighbridge clerk, at Bialla. On 12 May 2000 his employment ceased when he resigned. An allegation had been made that the appellant was under-weighing truckloads of oil palm, that he was doing this systematically and that the respondent was losing money because of that. The circumstances of his resignation were a contentious issue in the District Court. The appellant says he was threatened and forced to resign.

DISTRICT COURT PROCEEDINGS

3. On 15 August 2000 the appellant filed a complaint in the District Court. The respondent was one of the defendants.

4. The complaint was that on 12 May 2000 one of the respondent's supervisors, Charlie Shay, told the appellant he had to resign on that day or else he would be referred to the Fraud Squad for stealing K145,000.00 from the respondent. Charlie Shay filled out a resignation form and told the appellant to sign it. The respondent did not give reasons for its action. No opportunity was given to the appellant to explain anything. It was a forced resignation, which caused him to lose his wages. He claimed K3,500.00 damages for wrongful dismissal.

5. The complaint first came before the District Court on 11 October 2000. The complainant represented himself. The respondent was represented by Mr C Kaue. The District Court's records show that the appellant made a statement from the bar table and called no witnesses. For the respondent, Victor Osembo, Hawat Mirinki and Charlie Shay gave evidence on oath. No affidavits or written statements were filed. There is no record of what evidence those witnesses gave. The court file states "case adjourned to 19/10/2000 for final submission at 9.00 am".

6. In the appeal book there is a document that might have been admitted as a piece of documentary evidence before the District Court. It is a memo dated 10 May 2000 from the respondent's management information systems accountant, Hawat Marinki, to the chief engineer headed "weighbridge room report". This memo suggested that the appellant had tried to bypass a weighbridge system function that he was not authorised to have access to and that he should be subject to disciplinary action. However, there is nothing on the document to show that, in fact, it was admitted into evidence.

7. The matter returned to the District Court on 19 October 2000 for decision. A document summarising the proceedings that day states:

Court findings: There is insufficient evidence against the defendants.

Court order: Case is dismissed and the defendants be discharged.

8. In another document, of two pages, dated 19 November 2000, the reasons for decision appear in more detail. Under the heading "facts", his Worship stated that the appellant was a weighbridge clerk employed for a probationary period. He was terminated for "continuously making trial cuts":

The [appellant's] action in either increasing time or cutting hours for truck operators has caused great loss to the company. The [appellant] has an attitude problem where, after he gets drunk, he uses force to threaten ladies in the pay section to increase his overtime pay.

9. Under the heading "law" his Worship stated:

The complainant has entered into a contract of employment with the company on the grounds or basis that he follows and undertakes in full all directions and instructions issued by the company in his duty statement and nothing else.

That to do things or act contrary to the above would be deemed to amount to breach of contract.

10. Under the heading "court findings" his Worship concluded:

From the evidence adduced in court by the [respondent] the [appellant] did interfere with the company's weighbridge system increasing times/hours or cutting hours for truck drivers or operators whereby the company resulted in making a great loss amount to K145,00.00. From the evidence the complainant when under influence of liquor used to force the pay clerks to increase his overtime pay or he would get angry with them [sic].

Given the above findings the court is satisfied that the [appellant] has breached the terms of his contract of employment and therefore without any prejudice the court accordingly dismisses his case.

APPEAL TO NATIONAL COURT

11. On 27 November 2000 the appellant filed a notice of appeal, stating the following ground:

That the learned Magistrate erred in not properly considering the evidence before it with regard to the forced resignation of the [appellant] by the [respondent].

12. The appeal has for reasons unknown taken a very long time to be heard. On 17 March 2006 at Bialla, I refused an application by the respondent to dismiss the appeal for want of prosecution and made orders that the appeal be expedited.
 
13. This appeal is directed at the fairness of the proceedings in the District Court. The appellant argues that the Magistrate did not properly consider the evidence before him and failed to grant him the opportunity to be heard. This is both an excess of jurisdiction and a natural justice argument. The issue is not whether he was unlawfully dismissed. I regard the principal issue as this:

•	Did the District Court make its decision in excess of jurisdiction or in breach of the principles of natural justice or procedural fairness?

14. If that issue is decided in the appellant's favour I will need to consider the question of remedies, which means that the issues become:

•	Has there been a substantial miscarriage of justice? (This is a prerequisite to allowing the appeal under Section 230(2) of the District Courts Act.)

•	What remedies, if any, should be granted by the National Court? (The National Court's remedial powers are prescribed by Section 230(1) of the District Courts Act.)

APPELLANT'S SUBMISSIONS

15. The appellant argued that the District Court made adverse findings about him – eg that he had caused the accompany to lose K145,000.00 and that he had an attitude problem arising from his drinking habits – without evidence to support them and without giving him an opportunity to defend himself against those allegations. The reasons for decision do not show what evidence the defendants gave and what questions he asked them in cross-examination.

RESPONDENT'S SUBMISSIONS

16. Mr Geroro submitted that the appellant had by his conduct of the case in the District Court made it impossible to succeed, as he put no evidence before the court. He only made a statement from the bar table. It was his case and he bore the onus of proving the facts on which he based his claim. He produced no evidence, so he could not succeed. The only evidence properly before the court came from the respondent's witnesses who gave evidence under oath. It could not be said that there was any miscarriage of justice.

FIRST ISSUE: DID THE DISTRICT COURT ACT IN EXCESS OF JURISDICTION OR BREACH THE PRINCIPLES OF NATURAL JUSTICE?

17. In dismissing the case the District Court made a number of prejudicial findings about the plaintiff:

•	he increased time or cut hours for truck operators, and this caused great losses to the company;

•	he has an attitude problem when he gets drunk and used force to threaten ladies in the pay section to increase his overtime pay;

•	he interfered with the company's weighbridge system, resulting in the company losing K145,000.00;

•	when under the influence of liquor he used to force the pay clerks to increase his overtime pay or he would get angry with them.

18. I agree with the appellant that there is nothing in the records of the District Court to show that there was any evidence in support of those findings. It might be that the three witnesses who gave oral evidence said those things. However, their evidence was not recorded by the court.

19. Though the District Court is a court of summary jurisdiction and the extent of its duty to record its proceedings is not as great as the National Court (which is a superior court of record), it is part of the National Judicial System. It is a court, fully fledged. It has a duty to record its proceedings in sufficient detail to withstand scrutiny. Its records must be able to demonstrate that its decisions have been made judicially, in accordance with the principles of natural justice. Not on a whim or arbitrarily.

20. This important principle was explained by Injia DCJ in Papua New Guinea Harbours Board v Breni Kora (2005) N2834:

The District Court is a court of record. It is implicit in Sections 160(2) and 163(2) of the Constitution, when referring to the National Court and the Supreme Court as "superior" courts of record, that the District Court is an "inferior" court of record. Both the two superior courts and the District Court are courts of the National Judicial System: Constitution, Section 155(1). As such, the District Court must keep a written record of its proceedings for appeal and other administrative purposes. The Magistrate's decision on the case is an integral, if not the most important, part of the case and it must be fully recorded in writing or by some form of audio recording system if such equipment is available. The practice seems to be that the Magistrate's decision is recorded in a worksheet provided for that purpose. The Court must record its decisions and the reasons for decisions on the Magistrate's worksheet or in some other written form.

The Court's decision comprises of a decision or judgment on the claim or action itself and the reasons for that decision. The reasons for decision are indispensable in every case. It may be a summary in note form or verbatim record of the reasons as pronounced in Court. It is not sufficient to say or record statements of the type above, [the magistrate had recorded only "complaint proved"] which I must say, I have seen frequently in appeals before me. It also makes it difficult for the appeal court to fully deal with the grounds of appeal. It also hinders the preparation and presentation of the appeal by the parties. A party is entitled to rely on the lack of reasons for decision as a ground of appeal, and it is a valid ground of appeal. In such cases, if the Magistrate's decision is under challenge in the appeal, the Court may infer that a decision without reasons is not a good decision and allow the appeal.

21. Like the present case, Breni Kora's case started as a claim for damages for wrongful dismissal in the District Court, which recorded its decision in these terms:

Findings – complaint proved. Case adjourned to 31/8/01 at 9.30 am for assessment of damages.

22. It would, with respect, be hard to find a worse example of a court failing to give reasons. The present case is not as bad as that. There are at least some reasons given for the decision. However, they are not sufficient reasons. They are a series of bald assertions, expressed as findings, unsupported by any evidence or any indication of what the evidence was. At the very least, an outline of the oral evidence that was given, must be recorded. In effect, there was no evidence before the court. It was therefore making findings of fact – highly prejudicial in nature – without any evidence. By doing that the District Court failed to act judicially. It acted in excess of its jurisdiction.

23. There is no record of the appellant being given an opportunity to address the court on those matters. It follows he was denied natural justice. He was not given a right to be heard. In addition, it seems that the District Court focussed so much on the complainant's alleged misbehaviour that it lost sight of what should have been the real issue in the case: was he threatened and forced to resign in such a way that the termination of his employment was unlawful? He wanted to argue that he had been treated unfairly by his employer; and that his employer would not listen to the explanation he wanted to give for the apparent anomalies in the weighbridge records. It seems that he was denied the opportunity to make those arguments and the case instead turned into a case about whether he was guilty of a breach of contract.

24. I therefore uphold the ground of appeal. The District Court exceeded its jurisdiction and denied the appellant natural justice.

SECOND ISSUE: HAS THERE BEEN A SUBSTANTIAL MISCARRIAGE OF JUSTICE?

25. Yes, under Section 37(11) of the Constitution every person in Papua New Guinea has the right to have the existence or extent of their civil rights and obligations determined by an independent and impartial court, and heard fairly within a reasonable time. The appellant was denied that right by the manner in which the District Court proceedings were conducted. They were conducted unfairly and his grievance was not resolved. That amounts to a substantial miscarriage of justice.

THIRD ISSUE: WHAT REMEDIES, IF ANY, SHOULD BE GRANTED BY THE NATIONAL COURT?

26. Section 230 of the District Courts Act states:

(1)	On the hearing of an appeal, the National Court shall inquire into the matter, and may—

(a)	adjourn the hearing from time to time; and
(b)	mitigate or increase a penalty or fine; and
(c)	affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and
(d)	remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and
(e)	exercise a power that the Court that made the conviction, order or adjudication might have exercised; and
(f)	make such further or other order as to costs or otherwise as the case requires.

(2)	An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.

27. I propose to allow the appeal. However, there is insufficient evidence before the National Court to resolve the merits of the substantive claim that the respondent unlawfully dismissed the appellant from his employment. I will remit the case for a new hearing, before a different magistrate in the District Court.

COSTS

28. I will award the costs of this appeal to the appellant. The National Court has the power to make an order for a specific sum of costs. It is not necessary for the costs to be taxed (Egga Pua v Otto Benal Magiten (2005) N2892). The appellant is self-represented. I will fix the costs at the sum of K400.00 and order that that sum be paid to him within 14 days.

JUDGMENT

29. I will direct entry of judgment in the following terms:

(1)	The appeal is allowed.

(2)	The decision of the District Court of 19 November 2000 in DC No 245/2000 at Kimbe is quashed.

(3)	The case DC No 245/2000 is remitted to the District Court at Kimbe for re-hearing in accordance with law within 30 days after today.

(4)	The respondent shall pay K400.00 in costs to the appellant within 14 days after today.

Appeal allowed.
_____________________

The Appellant In Person
Gadens: Lawyers for the Respondent