Dawa v Telikom PNG Ltd [2014] PGNC 137; N5749 (25 September 2014)

N5749

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO. 508 OF 2007

BETWEEN:

HINGLI DAWA
Plaintiff

AND:

TELIKOM PNG LIMITED
Defendant

Mendi: Kassman, J
2014: 25th September

EMPLOYMENT LAW – claim for damages for wrongful termination – cross claim field by defendant - plaintiff by notice of motion applies for defendants claim to be dismissed for being time-barred – whether defendants cross claim is time-barred – claims based on torts or contract should be filed within 6 years from the time in which the tort or breach arises – defendants cross-claim is time- barred – defendant's cross-claim dismissed - S16 of the Frauds & Limitations Act 1988

Legislation Cited:

Section 16 of the Frauds & Limitations Act 1988

Counsel

Mathew Tamutai, for the Plaintiff
Gibson Anis, for the Defendant

DECISION

25th September, 2014

1. KASSMAN J: The Plaintiff Hingli Dawa ("Dawa") claims he was employed by the Defendant Telikom PNG Ltd ("Telikom") and was wrongfully terminated on 1 July 2007.
   

2. Dawa filed these proceedings on 8 May 2007 and obtained Default Judgment on 20 November 2007. The matter was to then proceed to assessment of damages.

2. With the leave of court of 25 March 2014, Dawa filed a Further Amended Statement of Claim on 2 April 2014.
   
3. On 27 May 2014, Telikom filed a Further Amended Defence and Cross-Claim.
   
4. In its Cross-Claim, Telikom claims its vehicle was extensively damaged while being driven by Dawa when it was driven off the road on 8 September 2006. Telikom claims damages for the repair costs and loss of use of the vehicle.
   
5. Dawa now applies by Notice of Motion filed 24 July 2014 for an order that Telikom's Cross-Claim be dismissed for being statute barred.
   
6. Dawa says Telikom's cross-claim accrued on the date of the motor vehicle accident, 8 September 2006 and the time for commencement of any claim arising expired on 8 September 2012.
   
7. Section 16 of the Frauds & Limitations Act 1988 provides a claim founded on tort shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.
   
8. Although the motor vehicle accident occurred on 8 September 2006, Telikom's claim for recovery would have accrued on the date Telikom was fully aware of the losses incurred as a result of the damage sustained. This was not raised by Telikom. In the ordinary course of business, from my general knowledge, the owner of a vehicle damaged should know the cost of damage within a period of under six months. In this case, allowing say a year from the date of the incident, it is arguable Telikom's claim accrued on 8 September 2007. As such, Telikom had until 8 September 2013 to commence proceedings for the damages claimed.
   
9. Telikom's cross-claim was filed on 27 May 2014 which is outside the six year period for filing of its claim for damages in negligence or tort as asserted by Telikom.
   
10. For the reasons stated, I grant Dawa's application for dismissal of Telikom's Cross-Claim filed 27 May 2014.
    
11. As costs follow the event, Telikom shall pay Dawa's costs of the application on a party/party basis, to be taxed, if not agreed.
    

Judgment accordingly:
_________________________________________________________________
Tamutai Lawyers: Lawyer for the Plaintiff
Warner Shand Lawyers, Mt Hagen: Lawyer for the Defendant