Siune v Rimua [2013] PGNC 95; N5281 (31 July 2013)

N5281

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 203 OF 2011

JOHN SIUNE
Plaintiff

V

RENDLE RIMUA
First Defendant

INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Cannings J
2013: 26 April, 31 July

PRACTICE AND PROCEDURE – application for variation of court order – Order 12, Rule 8(4) National Court Rules – whether appropriate to order variation.

The first defendant was ordered by the National Court to reinstate the plaintiff and pay him all his unpaid entitlements. The first defendant paid the plaintiff K129,000.82 but the plaintiff claimed that he was still owed K243,903.04. The order of the Court did not specify the amount of unpaid entitlements that the first defendant was obliged to pay. The plaintiff sought a variation of the order to reflect the exact unpaid amount that he claimed.

Held:

(1) It is appropriate to vary an original order under Order 12, Rule 8(4) and to invoke Order 12, Rule 1 of the National Court Rules and Section 155(4) of the Constitution if the Court is not altering in a substantive way the order and if the purpose and effect of the variation is give effect to, complement or enforce the original order.

(2) The components of the sum of K243,903.04 fell arguably within the ambit of the original order, which referred to "all unpaid entitlements", and given the history of the case, in particular that the plaintiff had received decisions in his favour by the Public Services Commission and on three occasions by the National Court, the plaintiff should receive the benefit of reasonable doubt on the method of calculation.

(3) It was accordingly ordered that the first defendant shall, in order to give effect to the original order, pay to the plaintiff the sum of K243,903.04 within three months.

Cases cited

The following case is cited in the judgment:

John Siune v Rendle Rimua & The State (2013) N5110

NOTICE OF MOTION

This was an application to vary a previous order of the National Court.

Counsel

J N Napu, for the plaintiff
E G Manu, for the contemnor

31 July, 2013

1. CANNINGS J: This is a motion by the plaintiff for variation of an order of the National Court made on 23 May 2012 in the context of judicial review proceedings commenced by the plaintiff against the first defendant, Rendle Rimua, Secretary of the Department of Petroleum and Energy, and the second defendant, the State.

2. In 2007 the first defendant dismissed the plaintiff, an officer of the Department of Petroleum and Energy, from the Public Service after finding him guilty of a disciplinary offence regarding unauthorised use of a departmental vehicle. The plaintiff sought review of his dismissal by the Public Services Commission (PSC), which inquired into the matter and found in the plaintiff's favour on the ground that the disciplinary charges were defective and the plaintiff had been denied natural justice. The PSC on 7 July 2010 decided that the plaintiff's dismissal was annulled and he was to be reinstated and paid all lost salaries and entitlements. The first defendant failed to comply with the PSC decision, and it was his failure to comply which became the subject of the judicial review proceedings.

3. The judicial review was determined in the plaintiff's favour on two occasions. First on 22 December 2011 Manuhu J ordered:

1. The defendants shall reinstate the plaintiff to his substantive position with the Department of Petroleum and Energy forthwith.
   
2. The defendants shall compute and pay to the plaintiff all of his lost salaries and entitlements forthwith.
   

4. For some reason, it is not clear why, that order was not complied with and this led the plaintiff to charge the first defendant with contempt of court. The charge was set down for hearing before Sawong J but for some reason it did not proceed. Instead his Honour on 23 May 2012 made the following order:

1. Contempt proceedings against the first defendant is vacated pending compliance of substantive order of Court dated 22 December 2011.
   
2. All unpaid entitlements due and owing to the plaintiff shall be calculated and paid to him by 12.00 pm, 25 May 2012, by the first defendant.
   
3. The first defendant shall reinstate the plaintiff by close of business 24 May 2012.
   

5. The order of 23 May 2012 was not immediately complied with and this led to the plaintiff, again, charging the first defendant with contempt of court. A trial was conducted and the first defendant was on 28 March 2013 found guilty (John Siune v Rendle Rimua & The State (2013) N5110) and he is today, in a separate ruling, to be punished.

6. The Court found in the contempt proceedings that pursuant to the order of 23 May 2013 the first defendant paid the plaintiff two sums, the first on 1 June 2012 in the sum of K57,150.51, the second on 22 June 2012 in the sum of K71,850.31; the total sum being K129,000.82. The plaintiff claims that he has been underpaid. He has put to the first defendant that he is still owed K243,903.04 comprised of special domestic market allowance, incidentals allowances and other benefits to which he is entitled. The first defendant's position has been and remains that those are discretionary payments and it is not within his power to pay them as the plaintiff's eligibility is determined by the Department of Personnel Management and subject to supervision by the Salaries and Conditions Monitoring Committee.

7. The plaintiff and the first defendant have been unable to agree on the issue of the allegedly underpaid amount of K243,903.04 and that is why the plaintiff is back in court. By a notice of motion filed on 4 April 2013 he applies under Order 12, Rule 8(4) of the National Court Rules for a variation of the order of 23 May 2013 to clarify that the precise amount of "unpaid entitlements" is K243,903.04. The first defendant opposes the motion and maintains that the components of that sum are discretionary matters, they are not entitlements, and that the discretion whether to pay them lies with the Secretary of the Department of Personnel Management.

8. Order 12, Rule 8(4) states:

In addition to its powers under Sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgement) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.

9. The question arises whether the order of 23 May 2013 determined the claim for relief, because if it did, Order 12, Rule 8(4) does not apply. I find that because of the inherent ambiguity in the order it did not determine the claim and therefore Order 12, Rule 8(4) can apply. If I am wrong on that point, there are two other laws that can be invoked. First, Order 12, Rule 1, which states:

The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgement or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgement or order in any originating process.

10. Secondly, Section 155(4) of the Constitution, which states:

Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

11. I consider that it is appropriate to vary an original order under Order 12, Rule 8(4) and to invoke Order 12, Rule 1 of the National Court Rules and Section 155(4) of the Constitution if the Court is not altering in a substantive way the order and if the purpose and effect of the variation is give effect to, complement or enforce the original order. All three laws can properly be invoked to deal with the present situation, where an order is ambiguous and a dispute has arisen as to its interpretation and effect. I will therefore determine the application on its merits by asking the question: what is covered by the words "all unpaid entitlements" in the order of 23 May 2012. The proper meaning of the words is to be ascertained by tracing back the terminology as it appeared in both the court order of 22 December 2011 and the PSC decision of 7 July 2010.

12. The order of 22 December 2011 used the words "all his lost salaries and entitlements". The PSC decision was that the first defendant "effect Mr Siune's all lost fortnightly salaries and entitlements as a direct result of his dismissal".

13. I find in none of those orders or decision any indication that the plaintiff's entitlements were to be regarded as restricted to the type of payments already made to him. There is in evidence a calculation sheet prepared by the Acting Director of Corporate Services in the Department of Petroleum and Energy which supports the figure claimed by the plaintiff. I see no good reason to reject the calculations. The components of the sum of K243,903.04 arguably fall within the ambit of the original order, which referred to "all unpaid entitlements". Given the history of the case, in particular that the plaintiff has received decisions in his favour by the Public Services Commission and on three occasions by the National Court, the plaintiff should receive the benefit of reasonable doubt on the method of calculation.

14. I will grant the plaintiff's application and vary the order of 23 May 2012, so as to give it effect, by ordering the first defendant to pay to the plaintiff the sum of K243,903.04. It is appropriate to also vary the order of 23 May 2012 by allowing a reasonable time to pay, which I assess as three months. Costs of the motion will follow the event.

ORDER

(1) Pursuant to Order 12, Rules 1 and 8(4) of the National Court Rules and Section 155(4) of the Constitution, the order of 23 May 2012 is varied, in that the first defendant shall, in order to give effect to that order, pay to the plaintiff, by 30 November 2013, the further sum of K243,903.04, being the balance of the plaintiff's unpaid entitlements.

(2) The matter shall be called at the National Court at Waigani on 16 December 2013 at 9.30 am or at such other time set by the Court at which time the first defendant shall be called upon to demonstrate compliance with order No 1.

(3) The plaintiff's costs of the notice of motion filed 4 April 2013 shall be paid by the first defendant on a party-party basis which shall if not agreed be taxed.

(4) Time for entry of this order is abridged to the time of settlement by the Registrar, which shall take place forthwith.

Ruling accordingly.
__________________________________________________
Napu & Co Lawyers: Lawyers for the Plaintiff
Manu & Associates Lawyers: Lawyers for the First Defendant