Angula v Barrick (PNG) Ltd [2014] PGNC 138; N5750 (25 September 2014)

N5750

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO. 1200 OF 2008

BETWEEN:

PETER ANGULA
Plaintiff

AND:

BARRICK (PNG) LIMITED
Defendant

Mendi: Kassman J
2014: 25th September

EMPLOYMENT LAW –claim for damages - based on wrongful termination – plaintiff died while claim was pending in court – deceased plaintiff's wife apply by notice of motion to be substituted as plaintiff – no clear instructions given to wife to be substituted as plaintiff – no valid will of deceased plaintiff giving right to represent the deceased estate in the claim – matter adjourned for further hearing and directions

Legislation Cited:

Frauds & Limitations Act 1988 Section 16
Wills, Probate and Administration Act c. 291
Wrongs (Miscellaneous Provisions) Act c.297 Section 34
National Court Rules Order 5 Rule 10

Counsel

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

DECISION

1. On 12 October 2008, the Plaintiff Peter Angula filed his claim against the Defendant Barrick (PNG) Limited for wrongful termination of his employment and damages for illness or injury sustained in the course of his employment with the Defendant.
   
2. The plaintiff passed away on 3 January 2014.
   
3. By section 34 of the Wrongs (Miscellaneous Provisions) Act Chapter 297, the Plaintiff's claim survives for the benefit of his estate.
   
4. Further, by Order 5 Rule 10 of the National Court Rules, where a party dies, the proceeding shall not abate by reason of the death. The word "abate" is defined by the Oxford Advanced Learner's Dictionary 8th Edition to mean "to become less strong".
   
5. An application is now made for Lucy Angula to be substituted as the Plaintiff in this proceeding. Lucy Angula says in an affidavit filed that she is the wife of the deceased Plaintiff Peter Angula.
   
6. The application is made by Notice of Motion filed 24 February 2014. For reasons outlined below, I repeat in full the text of the Notice of Motion.
   

"(1) Pursuant to Order 5 Rules 20 and 11 of the National Court Rules, the Statement of Claim be amended to substitute the Plaintiff who is decease with his wife Lucy Angula. (2) Costs be in the cause. (3) Any other order this Court deems appropriate."

7. The Defendant consents to the application and has endorsed a consent order in identical terms of the Motion. That proposed consent order was handed up in court by counsel for the Plaintiff. There was no appearance for the Defendant.
   
8. Three matters arise for comment.
   
9. Firstly, the Notice of Motion is signed by counsel for the Plaintiff and is filed in the name of the Plaintiff who is already deceased or who died well before the filing of the Notice of Motion. The following issues arise which are posed as questions. Who provided instructions to the lawyer to file and move the Notice of Motion "for the Plaintiff"? Secondly, were those instructions lawfully and properly issued?
   
10. Next, there is no independent evidence to verify Lucy Angula's sworn statement that she is indeed the wife of the Plaintiff. She should produce a certified copy of her marriage certificate if her marriage to the Plaintiff was a statutory marriage within the meaning of the Marriage Act Chapter 280. Such a marriage is one solemnized in a formal religious ceremony or one conducted in or before an authorised celebrant or official in or from the Civil Registry or what is commonly called the Registry of Births, Deaths and Marriages which falls under the Department of Community Development. Most marriages in Papua New Guinea are commonly called "customary marriages" or marriages or unions recognised by the families of the respective parties to the marriage as having been formed and conducted in accordance with the customary practices and beliefs of the respective parties to the marriage.
    
11. The application by Lucy Angula must be supported by affidavit evidence annexing copies of appropriate official records that support the claim that she was married to Peter Angula. If it was a statutory marriage, a certificate of marriage is conclusive of this fact. If it was a customary marriage, then affidavits must be sworn attesting to facts and circumstances leading up to and following the customary formality. In corroboration of evidence of the union, Lucy Angula could adduce evidence of consummation of the union including producing birth certificates of children born from the union and any other such supporting documents or evidence generally.
    
12. Finally, should the application be one made by the plaintiff's representative appointed by law? Order 5 Rule 16 provides:
    

"Where in any proceedings it appears to the Court that a deceased person was interested ... in any matter in question in the proceedings and he has no personal representative, the Court may, on the application of any party – (a) order that the proceedings continue in the absence of a person representing the estate of the deceased person; or (b) by order (with the consent of the person appointed) appoint a person to represent that estate for the purposes of the proceedings."

13. The term "personal representative" is not defined in the National Court Rules. Under Section 1 of the Wills, Probate and Administration Act c 291, that phrase is defined to mean "the executor, whether original or by representation, or administrator of a deceased person".
    
14. The question that arises is, did the Plaintiff deceased leave a Will appointing a personal representative? If not, then does the Estate and all rights flowing vest in the Public Curator? There has been no evidence or submission made in this regard.
    
15. These are matters that need to be addressed by "the Plaintiff" before the court determines the application now before this court.
    
16. The application is adjourned to the next civil sittings of the Court at 9:30am on 10 November 2014 in the National Court at Ialibu for further hearing and directions.
    
17. Costs are also reserved pending final determination of the application and related issues now raised.
    

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