Taila v Silas [2018] PGNC 135; N7193 (16 March 2018)

N7193

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 984 OF 2015

BETWEEN
ANDREW TAILA for and on behalf of himself and the aggrieved individual fire fighters whose particulars are contained in the Schedule to the Writ
Plaintiff

AND
ISAAC SILAS in his capacity as the Chief Fire Officer
First Defendant

AND
MUNARE UYASSI in his capacity as the Secretary for Department of Provincial & Local Level Government Affairs
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Dingake J

2018 : 15^th March

PRACTICE & PROCEDURE – Application to compel discovery –the documents sought must be necessary and relevant to facilitate a just and fair assessment of the dispute between the parties – application granted.

Case cited:

Credit Corporation v Jee [1988 – 89] PNGLR 11

Counsel:

Mr. D Wayne, for Plaintiffs
Mr. C Tolo’ube, for Defendants

16^th March, 2018

1. DINGAKE J: This is an application brought by the Plaintiff’s to compel the defendants to produce soft and hard copies of their payslips from 1994 to the present or when some amongst their ranks retired or got retrenched, resigned or died.
   
2. The plaintiffs are past and present fire fighters who are suing the defendants for breach of contract of employment signed in 1994 and 2008 respectively.
   
3. On the 28^th of July, 2017, default judgment was entered against the defendants for damages to be assessed.
   
4. On the 19^th of September, 2017, the defendants filed an application to set aside the default judgment but subsequently withdrew same. There was another attempt on the 1^st of December, 2017, by the defendants to set aside the default judgment. This attempt did not bear fruit as it was overtaken by the present application.
   
5. In order to prepare for the assessment of damages the applicants approached the defendants to provide them with payslips, but none has been provided, hence this application.
   
6. The defendants oppose the orders sought mainly on the basis that prior to 2013 the Department of Finance printed payslips for every public servant, every fortnight, but that this practice was stopped because of the costs involved.
   
7. The defendants state in their supporting affidavit that at least 91 out of the 92 plaintiff’s named in the proceedings were employed before 2013 and should have kept their pay slips in a safe place because that is the basis of their claim in this proceedings.
   
8. The defendants also aver that the applicants did not exhaust administrative processes and chose to approach the court when they could have approached the Department of Finance to provide them with the payslips.
   
9. It is clear from the defendants’ affidavit that the defendants are not pleading any legal disability; nor do they say the payslips are not in their custody or can’t be found. They simply assert that “production of the payslips will not prove anything the plaintiffs are claiming” and are a waste of the court’s time.
   
10. It is trite learning that the purpose of discovery, among other things, is to provide a basis of a fair disposal of a dispute before the Court and a party is entitled to discovery of all documents that are necessary or relevant to the issues in dispute. Discovery is in some respects a matter of fairness and justice (see the case of Credit Corporation v Jee [1988 – 89] PNGLR 11).
    
11. It is also trite learning that a document is discoverable, if it throws some useful light on the issues in controversy.
    
12. It has been stated in the case of Credit Corporation, cited above that a lawyer has a professional responsibility to ensure that his client gives complete discovery.
13. The crisp question that arises in this matter is whether the payslips are necessary and relevant to facilitate a just and fair assessment of the dispute between the parties.
    
14. It seems plain and incontrovertible to me that payslips could potentially show the kind of salaries and entitlements the applicants earned over the years they were engaged as firefighters.
    
15. It seems clear on the evidence that the defendants can provide the payslips which they simply stopped printing prior to 2013.
    
16. I do not see how the order sought by the plaintiffs can prejudice the defendants. The interests of justice require that such an order be issued.
    
17. In the premises it is ordered that:
    
    • (a) Pursuant to Order 13 Rule 13(1) (b) of the Court Rules, the first defendant and/or Mr. Gilbert Hickie as the Human Resources Manager produce soft and hard copies of the payslips for the 92 plaintiffs named in the Schedule to the Writ within 14 days from the date of the order.
      
    • (b) Payslips shall be from 1994 to the present if a plaintiff is still employed or to the time of disengagement if a plaintiff is retired, retrenched, resigned or is deceased.
      
    • (c) The cost of the application is against the first defendant.

____________________________________________________________
Warner Shand Lawyers : Lawyers for the Plaintiffs
Solicitor General : Lawyers for the Defendants