Kumbule v Berobero [2011] PGNC 259; N4424 (19 October 2011)

N4424

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 608 OF 2005

BETWEEN:

L/CPL TONY KUMBULE
Plaintiff

AND:

THE WING COMMANGER – MAJOR FC BEROBERO
First Defendant

AND:

THE COMMANDER – DEFENCE FORCE OF PNG
Second Defendant

AND:

THE SECRETARY – DEPARTMENT OF DEFENCE
Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Thompson, AJ
2011: 4 & 11 October
19 October

EMPLOYMENT LAW - claim for lo entitlement tent to accommodation – entitlement alleged to beuant to Manualanual of accommodation – Manual not put in evidence – no other basis for entitlement pleaded – no pleading or evidence of breachmployment contract - reliught amages ages ages fges for wrongful termination – no cause of action pleaded for wrongful termination - need for pleading – need for evidence - Manual of accommodation – breach of employment contract – pleading of cause of action – evidence of breach of contract – case not proven

Facts

The plaintiff pleaded a cause of action for loss of married accommodation from August 2004 to January 2010, in breach of "Clause 13 of the Manual of Accommodation". The clause itself was not pleaded, just its effect, and there was no pleading of how the Manual formed part of his terms and conditions of employment. The Manual relied upon was not put in evidence. Some typed pages from a very old document, possibly from around Independence, were put in evidence. The plaintiff did not plead a cause of action for wrongful termination.

Held

1. The plaintiff did not produce any evidence of clause 13 of the Manual of Accommodation, nor of any other statutory, common law or contractual right to be provided with married accommodation, (at [26]);
2. Case not proven, claim dismissed. Plaintiff to pay the defendants costs.

Cases Cited:
Maroba & Ors v. PNGDF & Ors (1998) N1799,
Michael Pundari v. Niolam Security Ltd (2011) SC 1123,
PNGBC v. Jeff Tole (2002) SC694 and Coecon Ltd v. National Fisheries Authority (2002) N2182

Counsel:
Mr. L. Kari, for the Plaintiff
Mr. E. Geita, for the Defendants

DECISION

19 October, 2011

1. THOMSPON AJ: The Plaintiff joined the PNG Defence Force in 1989, and commenced employment as a Fitter in Lae, where he was provided with single accommodation in the Igam Barracks. In 1992 he was transferred to Port Moresby, where he was provided with single accommodation in Murray Barracks. He subsequently married in 1992 in Port Moresby, applied for married housing accommodation, and his name was put on a wait list.

2. The Plaintiff says that in March 2002 he applied for retrenchment from the PNGDF, and his name was put on the retrenchment list. He says that he was then not allowed to work, but continued to be paid and to live in the Barracks for the next two years. He says that in 2004 his application for retrenchment was refused, he was removed from the list, and he resumed work.

3. He says that in August 2004 a house became available, and that he should have been allocated it because his name was first on the wait list. He says that he was not allocated the house because the 1st Defendant, his Commanding Officer, said that the accommodation was being allocated pursuant to a different list, and that the Plaintiff was not on that list.

PLEADINGS

4. The Plaintiff therefore commenced these proceedings in April 2005, claiming damages for unspecified allowances for the loss of married accommodation. The pleadings did not disclose a cause of action. The Defendants filed their Defence pleading the reason that the Plaintiff was taken off the wait list because he had been discharged on 14 February 2005, with effect from 30 August 2003, for being Absent With Out Leave, and following Disciplinary charges laid against him in February 2002.

EVIDENCE

5. There was evidence that these 2002 charges arose when the Plaintiff assaulted an officer who had been involved in the removal of families from the single accommodation barracks. He was put under a restraining Order on 15 February 2002. It was after this that the Plaintiff applied for retrenchment and ceased work, but continued to live in the barracks.

6. The Defendants' records show that he appears to have been discharged and re-engaged several times since his commencement in 1989, including in 1998 and 2000. The Defendants' Master Roll Books for this period showed that the Plaintiff was recorded as being Absent from June 2002. The Master Roll Book showed that the Plaintiff had been AWOL in 2002 and 2003. After conducting various enquiries and a Manpower Audit in 2004, the Plaintiff was ordered to be discharged in February 2005 with effect from August 2003.

7. The Plaintiff says that this Order was based on a mistake. He refers to a July 2003 Memo which says that "though member was not present for duties", there was a separate Roll Book which recorded his presence, and so he should be reinstated.

8. The Defendant's records show that the Plaintiff was again AWOL in August 2004, and again from October 2004 to April 2005.

9. There is no evidence as to what happened after that. However, it is not in dispute that the Plaintiff was reinstated to the PNGDF, and provided with married accommodation in January 2010.

FURTHER PLEADINGS

10. In June 2010, the Plaintiff amended his Statement of Claim to plead a cause of action for loss of married accommodation from August 2004 to January 2010, in breach of "Clause 13 of the Manual of Accommodation". The clause itself is not pleaded, just its effect, and there is no pleading of how the Manual formed part of his terms and conditions of employment.

11. The Amended Statement of Claim also contains a reference to him being evicted from single barracks on an unspecified date, which damaged some of his goods. It is not pleaded that the eviction was unlawful. I conclude from the evidence that the eviction occurred in 2002, more than two years before he says that he became entitled to married accommodation. It is therefore not relevant to his claim.

12. The Plaintiff's cause of action is that the Defendants failed to allocate him a three bedroom house on 18 August 2004, and that this was in breach of clause 13 of the Manual of Accommodation because he was first on a wait list. As a result of the breach, he says that he suffered many different types of losses including the cost of paying for accommodation for his family.

13. The prayer for relief includes claims for damages for "harsh and sudden termination" and "loss of opportunity for promotion and loss of salaries of a rank of full corporal". However, the Statement of Claim does not plead any cause of action for wrongful termination. It refers to the Plaintiff being dismissed on an unknown date for being AWOL, but does not plead that the dismissal was wrongful. This part of the relief is therefore not relevant.

14. Apart from the reference to a breach of clause 13 of the Manual of Accommodation, there is no basis pleaded for any of the claims. No other cause of action is identified.

THE MANUAL

15. Despite the fact that the "Manual of Accommodation" is the only basis pleaded for the Plaintiff's cause of action, he did not put it in evidence. The only evidence which he produced was photocopies of some pages which he said were extracts from the Manual. He was not the author of those pages, and he did not call the author to identify them. He did not call anyone to identify or tender the Manual. The Court therefore did not know what the Manual said, or if those pages were an accurate extract from it.

16. Without the Manual, the Court cannot know its legal effect. The Court cannot know if it confers any legally enforceable rights. The Plaintiff can refer to the effect of part or all of a document in his pleading, but must produce and tender the whole document to show that the effect which he pleads, is correct. As Davani J pointed out in her dissenting judgment in Michael Pundari v. Niolam Security Ltd (2011) SC 1123, the document might not give a right to sue. It could be a document in aid of administration, or for the guidance of staff. A Court can not know if a document confers any legally enforceable rights, without the whole document being put into evidence.

17. The Plaintiff can not refer to some unidentified pages, and say that this is sufficient to create an enforceable right. The pages to which he refers, do not show such a right, even on their face. The Plaintiff has certainly not shown either that the pages were an accurate extract from a Manual, or that the Manual was a valid and currently enforceable part of his terms and conditions of employment.

18. The evidence did not even clearly show that there was a "Manual of Accommodation". The Plaintiff referred to it as a "Military Accommodation Manual". Warrant Officer Kambi Yakom referred to it in his Affidavit as a "Military Administration Manual. The Plaintiff's lawyer referred to it as the "PNGDF Manual of Accommodation". There may be different types of Manuals relating to administration and accommodation. No evidence was called to clarify this issue.

19. A perusal of the copy pages shows that they are type-written, not word-processor or computer printed. They say that their "aim" is "to define those aspects of accommodation policy that are relevant to both Papua New Guinea and Australian servicemen ... serving in Papua New Guinea." The pages refer to some of the accommodation as being owned by the Australian Government, and they refer to accommodation for PNG personnel and Australian personnel. They refer to the "Department of the Interior".

20. These matters tend to indicate that the pages come from a very old document, perhaps one created in the post-Independence period. It is unlikely that in 2004, the PNGDF accommodation was still owned by the Australian Government. There is no longer a "Department of the Interior", and Australian soldiers are no longer part of the PNGDF. There is no evidence of when these pages were created. The Court has no evidence to show if they are still valid.

21. Further, a document which describes itself as "aiming" to define "policy aspects" tends to indicate that it is acting as a guide rather than creating an enforceable right.
22. In cross-examination, the 1st Defendant was shown a copy of a very large document which was said to be a Manual, and asked to identify it. That document was not in evidence. The 1st Defendant said that there were various Manuals, that this appeared to be a version of a Manual of Personnel Administration, but he did not know if it was an up to date version. He said that he was not aware of any Manual of Accommodation.

23. Lt Colonel Paul Mai was briefly shown the same document from the Bar table. He said that it appeared to be a Manual of Personnel Administration. He was not asked if it was a current version, and he was not shown any of the contents.

24. Most of the examination and cross-examination of the witnesses concerned their interpretation of how the accommodation wait list was to be applied, under the requirements of the Manual. However, as the Manual was not in evidence, there was no probative value in their answers. W/O Kambi Yakore said that as Quarter Master, he had the authority to prepare the accommodation wait list. The 1st Defendant said that as Commanding Officer, he had sole authority, which he could delegate to Quarter Masters such as W/O Kambi Yakore. The copy documents relied on by the Plaintiff say that the body which has responsibility for allocation of married quarters is the Approving Authority, which is the "Headquarters". There is no reference in the pages to Quarter Masters. If any inference at all can be drawn from the pages, it is most likely that the Commanding Officer of the Headquarters, would be the Approving Authority.

25. However, no weight can be attached to those pages. They could only be relevant if they were put into evidence in the correct way, by being shown to be part of a Manual or other document which is clearly identified and tendered into evidence. (cp the case of Maroba & Ors v. PNGDF & Ors (1998) N1799, where the Manual of Personnel Administration was put into evidence.) The majority decision in Michael Pundari v. Niolem Security Ltd (supra) does not assist the Plaintiff, because the issue in that case was whether or not the document should have been allowed to be tendered, even though it had not been pleaded. The case before me is the opposite – here, the Plaintiff has pleaded the document, but not tendered it.

26. In this case, the Plaintiff has not produced evidence of clause 13 of the Manual of Accommodation, which forms the only basis of his cause of action. There was no evidence of any other statutory, common law or contractual right to be provided with married accommodation, either pursuant to his position on a list, or at all.
27. As a result, it is not necessary for this Court to consider the nature of the losses said to be sustained by the Plaintiff as a result of not being provided with the married accommodation.

28. I nevertheless note that there was no corroborating evidence provided in support of the Plaintiff's conflicting claims of living with his family in a "cramped single barracks room" while at the same time "paying K300.00 per fortnight rent", or of any "costs of wantoks", or "living on credit" and so on. There was no evidence of "taunting by wantoks". There was no evidence of him bringing "his family down from the village", or why he would do that, knowing that no married accommodation was available. The Plaintiff chose to get married in Port Moresby and have children, knowing that there was no married accommodation available.

29. As the Court has pointed out in numerous cases including PNGBC v. Jeff Tole (2002) SC694 and Coecon Ltd v. National Fisheries Authority (2002) N2182, the Plaintiff has the onus of producing admissible and credible evidence in support of his alleged damages. The Plaintiff produced no such evidence here.

30. As there was no evidence of a breach of clause 13 of a Manual of Accommodation, and no evidence of any other breach of a statutory, common law or contractual entitlement to married accommodation, either pursuant to a position on a list or at all, the Plaintiff has not proved his case, and his claim is dismissed.

31. The Plaintiff is to pay the Defendants costs.
______________________________________

Lesley Kari Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyer for the Defendants