Lo v Hevilift Aviation Ltd [2023] PGNC 177; N10413 (12 May 2023)

N10413

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.41 OF 2023

BETWEEN:
ABRAHAM LO
Plaintiff

AND:
HEVILIFT AVIATION LIMITED
Defendant

Waigani: David, J
2023: 11^th & 12^th May

MASTER AND SERVANT - injury to worker occurring in the course of employment - liability for damages – alternative remedies - common law claim or claim for breach of statutory duty (statutory negligence) or claim for compensation – statutory bar -Workers’ Compensation Act (Ch No 179), s 84(4).

This was an application by a defendant/former employer seeking, among others, an order to strike out the plaintiff’s statement of claim and dismiss the entire proceedings for disclosing no reasonable cause of action or they were frivolous or vexatious or they were an abuse of the process of the Court.

Held

Section 84(4) of the Workers’ Compensation Act, Chapter No.179 prevents an employee/worker who is injured in the course of his employment and receives a final award of compensation against his employer under the Workers’ Compensation Act from bringing an action against the employer for damages in respect of the same injury. The purpose of the Act is to ensure that the worker may pursue either, a claim under the Act or his common law remedy or claim for breach of statutory duty (or statutory negligence): Joseph Tonava v Electricity Commission of Papua New Guinea (1987) N589 followed.

Cases Cited:

Papua New Guinean Cases
Joseph Tonava v Electricity Commission of Papua New Guinea [1987] PNGLR 81; N589
Steamships Trading Co Ltd v Joel [1991] PNGLR 133
Christopher Appa v Peter Wama & Others [1992] PNGLR 395
Malai v PNG Teachers Association [1992] PNGLR 568
Ereman Ragi & Ors v Joseph Maingu (1994) SC459
Jeffery Jimmy and Mereandi Dawai v Beverly Kaleva (2004) N2715
Pius Niu v Senior Sergeant Mas Tanda (2004) N2765
PNG Waterboard v Kama [2005] SC821
Mango v Khoon (2005) N2907
Kerry Lero v Philip Stagg (2006) N3050
Philip Takori v Simon Yagari (2008) SC905
New Britain Oil Palm Ltd v Sukuramu (2008) SC946
Island Helicopter Services Ltd trading as Islands Nationair v Wilson Sagati & Ors (2008) PNGLR 22
Rex Paki v Motor Vehicles Insurance Limited (2010) SC1015
Oil Search Ltd v Mineral Resources Development Corporation Ltd (2010) SC1022
Maiva v Mari (2012) N4696
Osi v Sungi (2019) N8058
Wambunawa Holdings Ltd v ANZ (2020) N8310
JV PNG Investment Constructions Ltd v Benjamin Samson (2022) SC2224
Paraia v IPI Catering Ltd (formerly Mountain Catering Ltd) (2022) N9649

Overseas Cases
Teague v Jones [1925] ArgusLawRp 19; (1925) VLR 205

Counsel

Phillip Wariniki, for the Plaintiff
Clayton Joseph, for the Defendant

JUDGMENT

12^th May, 2023

1. DAVID J: INTRODUCTION: This is my ruling on a contested application. By notice of motion filed on 3 May 2023 (Motion), the defendant moves for the grant of the following relief:

1. The requirement for three clear days’ service of this application be dispensed with pursuant to Order 1 Rule 7 and or Order 4 Rule 38(2)(d) and or Order 12 Rule 1 of the National Court Rules.
2. The plaintiff’s Notice of Discovery filed on 27 April 2023 be set aside and/or the time for compliance with the Notice of Discovery be stayed until 14 days following the determination of the relief sought seeking dismissal of the entire proceedings pursuant to Order 12 Rule 1 and/or Order 9 Rule 3(1) and (2) of the National Court Rules and/or the inherent jurisdiction of the Court under s.155(4) of the Constitution;
3. The plaintiff’s Statement of Claim be struck out and the entire proceedings be dismissed pursuant to Order 12 Rule 40(1)(a), (b) or (c) and/or Order 8 Rule 27(1)(a), (b) or (c) and/or Order 12 Rule 1 and/or Order 10 Rule 9A(15)(1)(a) and (2)(d) of the National Court Rules and s.84(4) of the Workers’ Compensation Act, Chapter 179; and
4. The defendant’s costs of and incidental to this application and of the entire proceedings be paid by the plaintiff and/or the lawyer for the plaintiff on a full indemnity basis to be taxed if not agreed.

2. The defendant did not pursue the first relief at the hearing.

EVIDENCE

3. The defendant relies on two affidavits. The first one is the Affidavit of Ms. Marilou Galan sworn on 2 May 2023 and filed on 3 May 2023. Ms. Galan is the defendant’s Finance Manager. The other is the Affidavit of Gerry Yaro sworn and filed on 5 May 2023. He is a law clerk employed by the defendant’s lawyers, Ashurst PNG. Mr. Yaro confirms service of the notice of motion and the Affidavit of Ms. Galan on Wariniki Lawyers at that firm’s Office at Agolo Drive, Gerehu Stage 2 on 4 May 2023 at approximately 04:03 pm.
4. The plaintiff does not rely on any affidavit.

COMPETENCY OF MOTION

5. The plaintiff asserts that the Motion should be dismissed for being defective and incompetent as grounds for dismissal of proceedings for being incompetent and an abuse of process are separate and distinct from grounds for dismissal of proceedings for failure to disclose a reasonable cause of action or for being frivolous and vexatious. He relies on the Supreme Court decision of JV PNG Investment Constructions Ltd v Benjamin Samson (2022) SC2224 where at [39] to [41]. Makail, J observed:

“39. I point out that grounds for dismissal of proceedings for being incompetent and an abuse of process are separate and distinct from grounds for dismissal of proceedings for failure to disclose a reasonable cause of action or being frivolous and vexatious.

40. In the case of the former, the grounds are largely based on lack of jurisdiction, use of incorrect mode of proceedings or failure to comply with condition precedent, eg, failure to seek leave to apply for judicial review. Where one or more of these grounds exists, the Court may dismiss the proceedings either on an objection by the opposing party or on its own motion: Order 16, rule 13(2) of the NCR and Talibe Hegele v. Tony Kila (2011) SC1124.

41. In this case the ground that Allotment 3 Section 35, Boroko, NCD does not exist does not fall into any one of the above-mentioned grounds. With respect, the National Court erred when it upheld the motion and dismissed the judicial review proceedings on this ground. This ground of appeal is upheld.”
6. In that case, the appeal before the Supreme Court was against the National Court decision that dismissed judicial review proceedings commenced by the appellant for being incompetent and an abuse of process. The contentions raised in the motion to dismiss the proceedings for being incompetent and an abuse of process were; first, the appellant had added other decisions for judicial review for which leave had not being granted; and that the original State Lease no longer existed as it had since been cancelled and the land sub-divided into seven separate allotments for which separate State Leases were issued. Paragraphs [39] and [40] of the judgment is a succinct explanation of the distinction between dismissal of proceedings for being incompetent and an abuse of process and dismissal of proceedings for failure to disclose a reasonable cause of action or being frivolous and vexatious. I respectfully concur with Makail J’s observations.

7. Order 4 Rule 49(8) of the National Court Rules states that all motions must contain a concise reference to the Court’s jurisdiction to grant the orders being sought. The main relief sought are those in Items 2 and 3 of the Motion. The plaintiff only takes serious issue with Item 3. He states that the fact that the plaintiff has already received compensation under the Act is not a valid competency ground to support an application for dismissal. I reject the plaintiff’s submission. I am satisfied that Items 2 and 3 of the Motion meet the requirement under Order 4 Rule 49(8).

8. Additionally, unless otherwise expressly provided in the National Court Rules, Order 4 Rule 49(9) of the National Court Rules expressly states that motions shall be for relief on interlocutory matters only and not for the substantive relief claimed in the originating process. The plaintiff submits that the relief sought in Item 3 of the Motion is substantive in nature in an interlocutory application contrary to Order 4 Rule 49(9) and therefore should be refused. I reject the plaintiff’s submission. I am satisfied that the relief sought in Item 3 of the Motion meets the requirement under Order 4 Rule 49(9).

9. For these reasons, I am satisfied that the Motion is competent and is properly before the Court.

COMMENCEMENT OF PROCEEDINGS AND STEPS TAKEN THEREAFTER

10. These proceedings were commenced by writ of summons endorsed with a statement of claim filed on 21 February 2023. The plaintiff, in essence, seeks damages for injuries he suffered during the course of his employment with the defendant on 15 May 2021. He pleads various causes of action such as; a common law claim based on negligence; a claim based on “breach of statutory duty” or statutory negligence founded on the Civil Aviation Rules; and a claim for wrongful termination of employment. The writ of summons was served on the defendant on 28 February 2023.

11. On 7 March 2023, the defendant filed its Notice of Intention to Defend.

12. On 11 April 2023, the defendant filed its Defence. The defendant denies all liability.

13. On 27 April 2023, the plaintiff filed a Notice of Discovery requiring the defendant to give discovery of documents with verification within fifteen days after service of the notice on the defendant.

14. On 3 May 2023, the Motion was filed.

BACKGROUND FACTS

15. The only evidence adduced before the Court touching on matters raised in the Motion is that of Ms. Galan’s. The facts deposed there are therefore uncontested and unrebutted and I adopt them as they are set out in Ms. Galan’s affidavit and the defendant’s written submissions.

16. The defendant conducts its business in the aviation industry.

17. The plaintiff commenced employment with the defendant on or about 11 January 2018 as a casual maintenance worker (handy man) and performed various casual maintenance duties such as gardening.

18. His employment with the defendant ceased on 23 October 2020.

19. The plaintiff was subsequently re-employed by the defendant on 15 March 2021 as a porter at the defendant’s office in Lae and was subsequently transferred to the defendant’s office in Mt. Hagen.

20. On 15 May 2021 an incident occurred on the defendant’s charter flight on Mi-8 aircraft registration number P2-MHM with four crew members onboard, including the plaintiff. The plaintiff was on the aircraft to assist the loading and unloading of cargo and to liaise with local landowners.

21. It was reported that the aircraft lost power and the pilot conducted an emergency landing at Gobo.

22. Except for the plaintiff, the other three crew members sustained minor injuries.

23. The plaintiff was taken to the Mt Hagen General Hospital for immediate treatment. The plaintiff was admitted for six weeks and underwent neck operations. He was advised by his doctor to take bed rest for two months.

24. On 26 May 2021, the defendant reported the incident to Aon Risk (Insurance Broker) and gave notice of the plaintiff’s injuries to the Registrar of Workers’ Compensation by filing a “Notice By Employer of Injury to Worker” (Form 11). A copy of the “Notice By Employer of Injury to Worker” (Form 11) is marked as annexure “MG1” to Ms. Galan’s affidavit.

25. On 18 August 2021, the plaintiff himself lodged an “Application for Compensation” with the Registrar of the Workers’ Compensation in respect of the injuries he sustained on 15 May 2021 during the course of his employment. Annexure “MG2” to Ms. Galan’s affidavit is a true copy of the “Application for Compensation” (Form 3) signed by the plaintiff.

26. The plaintiff’s employment with the defendant was brought to an end on 1 December 2021.

27. Following the cessation of his employment in December 2021, on 15 March 2022 the plaintiff signed an “Application for an Award by Consent” that was then lodged with the Office of Workers’ Compensation. By that document the plaintiff agreed to accept the sum of K15,000.00 “in full and as final settlement” of injuries he sustained in the course of his duties with the defendant on 15 May 2021. Annexure “MG3” to Ms. Galan’s affidavit is a copy of the “Application for an Award by Consent” signed by the plaintiff.

28. On 22 March 2022, the Workers’ Compensation Tribunal, by consent of the parties, awarded the plaintiff the sum of K15,000.00 for the injuries he sustained in the course of his employment with the defendant. Annexure “MG4” to Ms. Galan’s affidavit is a copy of the Consent Award issued by the Workers’ Compensation Tribunal.

29. On 28 March 2022, the Insurer, Capital General Insurance Company Limited paid the sum of K15,000.00 to the Office of Workers’ Compensation. Annexure “MG5” to Ms. Galan’s affidavit is a copy of the Payment Details Report.

30. On 8 April 2022, the Office of Workers’ Compensation drew a cheque in favour of the plaintiff citing various forms of identification provided by the plaintiff. Annexure “MG6” to Ms. Galan’s affidavit is a copy of the cheque dated 8 April 2023 together with the various forms of identification of the plaintiff.

31. On 19 April 2022 the Office of Workers’ Compensation issued a “Payment Certificate” noting that a Bank of South Pacific Cheque No.11761 dated 08 April 2022 for K15,000.00 was paid to the plaintiff as “full and final compensation settlement for the injury he sustained on the 15/05/2021 while employed by Hevilift Aviation Limited”. The Payment Certificate was signed by the plaintiff. Annexure “MG7” to Ms. Galan’s affidavit is a copy of the Payment Certificate.

32. The defendant also paid all of the plaintiff’s medical expenses totalling K2,541.50 which were fully reimbursed by the Insurer, Capital General Insurance Company Limited. Annexure “MG8” to Ms. Galan’s affidavit are copies of the Payment Summary of the plaintiff’s medical expenses and the Payment Details Report of the reimbursement made by the Insurer.

APPLICATION TO STRIKE OUT PLEADINGS AND DISMISS PROCEEDINGS

33. The National Court may strike out the whole or any part of the pleadings or dismiss the proceeding under any of the grounds specified in Order 8 Rule 27(1) and Order 12 Rule 40(1) of the National Court Rules. The power is discretionary. By its inherent jurisdiction, the Court has power to protect and safeguard any abuse of its processes.

34. Order 8 Rule 27 is very similar to Order 12 Rule 40. The principles to apply are therefore similar except that the outcomes are different. Under Order 8 Rule 27, the Court may at any stage of the proceedings, on terms or otherwise, strike out the whole or any part of a pleading. Under Order 12 Rule 40, the Court may stay or dismiss the proceedings either generally or in relation to any claim for relief in the proceedings. Evidence may be received by the Court on the hearing of an application for an order under both rules.

35. The relevant principles were summarised by Kandakasi J (as he then was) in Kerry Lero v Philip Stagg (2006) N3050 and endorsed by the Supreme Court in Philip Takori v Simon Yagari (2008) SC905 and they are set out below:

“1. Our judicial system should never permit a plaintiff or a defendant to be “driven from the judgment seat” in a summary way, “without a Court having considered his right to be heard.” A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside.

2. At the same time however, the law such as the Rules under consideration provide for and the Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court.
3. The object of these rules are therefore “to stop cases which ought not to be launched — cases which are obviously frivolous or vexatious or obviously unsustainable.” In other words “the object of the rule was to get rid of frivolous actions.”
4. A claim may be frivolous if it can be characterized as so obviously untenable that it cannot possibly succeed or that the claim or defence is bound to fail if it proceeds to trial.
5. A claim or defence may be vexatious if the case amounts to a sham or one which cannot succeed and is one that amounts to harassment of the opposing party who is unnecessarily put to the trouble and expenses of defending or proving the claim.
6. With regard to the issue of disclosing a reasonable cause of action or defence, the Court must be clear that there are two (2) parts to the phrase “cause of action”. First, it entails a right given by law such as an entitlement to reasonable damages for breach of human rights under s.58 of the Constitution, commonly referred to as the “form of action”. Secondly, it entails the pleadings disclosing all the necessary facts which give rise to the form of action.
7. The phrase “cause of action” could thus be defined in terms of a legal right or form of action known to law with:

“every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise of every piece of evidence which is necessary to prove each fact, but every fact is necessary to be proved.”

8. A statement of claim or a defence (as the case may be) must therefore clearly plead the form of action by pleading the necessary legal elements or ingredients of the action and relevant and necessary facts (not the evidence) giving rise to the form of action. It follows therefore that, where a statement of claim or a defence is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, and instead leaves it to guess work, it should be struck out.
9. These rules provide a summary judgment procedure or remedy which is available to a plaintiff or a defendant, and one which vests and calls for an exercise of a discretion by the Court.
10. The discretion must be exercised sparingly and only in a case where the statement of claim or the defence (as the case might be) is “obviously and almost incontestably bad.” In other words this discretion can be exercised only in cases that “are plain and obvious so that the master or Judge can say at once that the statement of claim [or defence] as it stands, is insufficient, even if proved, to entitle the plaintiff [defendant] to what he asks for.
    

36. To these principles, His Honour added:

“[T]he pleadings must be so bad and or vague and is not a case of lack of particulars or a lack of better pleading which cannot be cured by a request and or orders for further and better particulars and or amendment respectively under O.8, rr. 36, 50 or 51 of the Rules. Lack of particulars or lack of better pleadings is distinctly separate from a failure to disclose a reasonable cause of action or an action that is frivolous, vexatious or harassment. As such, clear and separate consequences follow. There is provision under the rules for requesting and or orders for further and better particulars or better pleadings as opposed to a right in a defendant or an opposing party to apply for a dismissal straightaway. A party must be careful not to ask for and the Court must stop to ensure that it is not being asked to dismiss a claim because of lack of particulars or lack of proper pleading which can be cured by appropriate amendments to the pleadings. Regard must also be had to the fact that the Rules are not an end in themselves but a means to an end and by reason of which a strict compliance of the Rules can be dispensed in the interest of doing justice in accordance with O.1, r.7 of the Rules in appropriate cases.”

37. The parties have referred me to other cases which discuss and apply the relevant principles mentioned above. These are; Jeffery Jimmy and Mereandi Dawai v Beverly Kaleva (2004) N2715, Mango v Khoon (2005) N2907, Maiva v Mari (2012) N4696, Osi v Sungi (2019) N8058, Wambunawa Holdings Ltd v ANZ (2020) N8310, Paraia v IPI Catering Ltd (formerly Mountain Catering Ltd) (2022) N9649 which I have considered as well. Some of them are summarised below.

38. In Maiva v Mari (2012) N4696 at [6], Gabi J when considering an application under Order 8 Rule 27 and Order 12 Rule 40 made reference to Pius Niu v Senior Sergeant Mas Tanda (2004) N2765 where His Honour said:

“Recently in Pius Niu vs. Senior Sergeant Mas Tanda (2004) N2765, Cannings J said:

"I recently reviewed the law on applications to strike out proceedings for not disclosing a reasonable cause of action, in Kiee Toap vs. The State and Others (2004) N2731. The following principles emerged:

• If it is plain and obvious that the statement of claim, even if proved, will not entitle the plaintiff to what he is asking for, it is appropriate to strike out the proceedings on the ground that no reasonable cause of action is disclosed. But the procedure should be confined to cases where the cause of action is obviously and almost incontestably bad. The plaintiff should not be driven from the judgment seat unless the case is unarguable. (PNG Forest Products Pty Ltd and Another vs. The State and Genia [1992] PNGLR 85, National Court, Sheehan J.)
• If the statement of claim is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, it should be struck out. (Gabriel Apio Irafawe vs. Yauwe Riyong (1996) N1915, National Court, Kirriwom J.)
• If the statement of claim just leaves a defendant guessing as to what the plaintiff's allegations are, it should be struck out. (Eliakim Laki and 167 Others vs. Maurice Alaluku and Others (2002) N2001, National Court, Sevua J).”
  

39. In Wambunawa Holdings Ltd v ANZ (2020) N8310 at [19] and [25], when considering an application under Order 8 Rule 27 and Order 12 Rule 40 to dismiss the proceedings or to strike out the whole of the pleadings contained in the Statement of Claim, Dowa AJ (as he then was) found that the pleading was an embarrassment because on the evidence the plaintiff “is unlikely to succeed” at trial and proceeded to dismiss the entire proceedings.

40. In Paraia v IPI Catering Ltd (formerly Mountain Catering Ltd) (2022) N9649 when considering an application under Order 8 Rule 27 and Order 12 Rule 40 to dismiss the proceedings, Anis J found that the claim was statute-barred by operation of s.16 of the Frauds and Limitation Act 1988 and dismissed the entire proceedings.

41. In Osi v Sungi (2019) N8058, when considering an application to dismiss the proceedings under Order 12 Rule 40 on the basis that they were an abuse of the process of the Court for being statute-barred and for a failure to give notice under s.5 of the Claims By and Against the State Act (Claims Act) in a case in which the State was a party which was upheld, at [24], Hartshorn, J said:

“This occurred between 2008 and 2010. The dates that the purported causes of action of the plaintiff accrued are within these years. This proceeding has not been brought within six years of the plaintiff’s causes of action accruing. The plaintiff’s action therefore has no prospects of success as it is statute barred.”

42. On the question of the failure to comply with s.5 of the Claims Act, at [30] to [33] Hartshorn, J said:

“30. The Supreme Court case of Paul Tohian v. Tau Liu (1998) SC566 held that the requirement to comply with s. 5 Claims Act is a condition precedent that must be complied with before a proceeding is issued. The relief sought in this proceeding is amongst others, against the State and as previously referred to, is founded in contract. Thus, a s. 5 notice is required to have been given.

31. As it has not been pleaded that such a notice has been given and there is no evidence that such a notice has been given, the proceeding is an abuse of process as to the claims against the State and the first defendant, the Custodian for Trust Land (on the same basis as held in Public Curator v. Kara (2014) SC1420); as a condition precedent to the commencement of this proceeding has not been complied with: Paul Tohian v. Tau Liu (supra).
    

32. As to whether the claims against BOPP are similarly affected, a defendant to a proceeding that is incompetent is entitled to question the competency of such a proceeding against it on the ground that it is affected by the bringing of an incompetent proceeding in which it is named as a defendant and which it is obliged to defend: Paul Eddie v. Bill Kirokim(2012) N4932, CMSS (PNG) Ltd v. State (2014) N5717.

33. Consequently, the whole proceeding should be dismissed as an abuse of process for the reasons given.”

Statute-bar

43. In his submissions, the defendant relies on the preamble and s.84(4) of the Workers’ Compensation Act, Chapter No.179.

44. The preamble states that the Workers’ Compensation Act provides ‘for compensation to workers and their dependants in respect of injuries suffered by workers arising out of or in the course of their employment, and for related purposes’.

45. Section 84 of the Workers’ Compensation Act states:

"Liability independently of Act.

(1) This Act, except as expressly provided in it, doesn’t affect any liability which exists independently of it.

(2) Where a worker or his dependents, as the case may be, has received or is entitled to receive, compensation under this Act or under the repealed Act, in respect of an injury, he shall not bring an action against the employer for damages in respect of the same injury unless he commences that action within three years from the day on which the injury occurred.

(3) Where a worker has recovered judgment against an employer independently of this Act for damages in respect of an injury, he shall not commence or continue any proceedings for or in relation to compensation under this Act in respect of the same injury.

(4) A worker shall not commence or continue any proceedings against his employer for damages independently of this Act in respect of any injury after he has obtained a final award against his employer, under which his employer is liable to pay compensation under this Act in respect of the same injury. (My emphasis)

(5) Any sum received by a worker from an employer by way of damages in respect of an injury shall be deducted from the sum recoverable by the worker from the employer by way of compensation under this Act in respect of the same injury.

(6) Any sum received by a worker from an employer by way of compensation under this Act or under a law of any other country in respect of an injury shall be deducted from the sum recoverable by the worker from the employer by way of damages in respect of the same injury." (My emphasis.)

46. It is submitted that the effect of s.84(4) of the Workers’ Compensation Act is that a person who is injured at work can elect to seek compensation under the Workers’ Compensation Act or independently of the Workers’ Compensation Act, but not both.

47. It is contended that pursuant to s.84(4) of the Workers’ Compensation Act , a worker shall not commence or continue any proceedings against his employer for damages independently of the Workers’ Compensation Act in respect of any injury after he has obtained a final award against his employer, under which his employer is liable to pay compensation under the Workers’ Compensation Act in respect of the same injury.

48. The defendant relies on a National Court decision in Joseph Tonava v Electricity Commission of Papua New Guinea (1987) PNGLR 81. There, the plaintiff commenced a claim for damages in the National Court after he was awarded final compensation by the Workers’ Compensation Tribunal. In dismissing the claim, at 82, Kidu, CJ said:

“A worker injured during the course of his or her employment has the right to claim compensation under the Act or sue his/her employer for damages independently of the Act. Section 84 preserves this right. It also ensures that an employer does not pay compensation under the Act as well as damages outside the Act for the same injury (or injuries).”
49. With respect to sub-section (4), at 83, Kidu CJ said:

“This provision does not conflict with subs (2). Its purpose is the protection of the employer from having to pay the worker twice for the same injury. If a worker obtains a final award for an injury under the Act he/she is prevented from seeking damages independently of the Act for the same injury. And it is categorically stated that a worker "... shall not commence or continue any proceedings against his employer".

The respondent here is therefore barred by statute from suing his former employer.” (My emphasis)

50. The defendant submits that in circumstances where the plaintiff has applied for and obtained a final payment under the Workers’ Compensation Act, he has no claim against the defendant (his former employer) for the same injuries he sustained in the course of his employment on 15 May 2021, whether under common law or the Civil Aviation Act or at all.
51. It is submitted that the claim is statute-barred pursuant to s.84(4) of the Workers’ Compensation Act. The defendant asserts that, given that scenario, the proceedings should be dismissed as the plaintiff’s statement of claim in effect discloses no reasonable cause of action, is frivolous or vexatious and is an abuse of the process of the Court.

52. The defendant states that it need not comply with the plaintiff’s Notice of Discovery filed on 27 April 2023 as a consequence.

53. The plaintiff on the other hand submits that the Motion should be dismissed as essentially it amounts to an abuse of process in light of a pending discovery sought under Order 9 Rule 1 of the National Court Rules which the defendant has yet to give with verification. He states that issues raised in the relief sought in Item 3 of the Motion should be dealt with at trial. In addition, the plaintiff contends that he has an arguable case that is likely to succeed at trial, he has a reasonable cause of action and the proceedings are not frivolous or vexatious.
54. In Oil Search Ltd v Mineral Resources Development Corporation Ltd (2010) SC1022, the Supreme Court held that, except in the clearest of cases, applications to dismiss for being time-barred should be made at trial for a thorough examination.

55. Except for the National Court decision of Joseph Tonava v Electricity Commission of Papua New Guinea (1987) PNGLR 81 which has been cited by the defendant, I have, in my quick research, not found any Supreme Court case authority on point. The principle, I would think, is the same though, i.e., an application to dismiss for being statute-barred should only be made in a clear case.

56. For the purpose of ensuring that adequate notice is given to the opposite side of what is alleged against him or her and to prevent him or her from being taken by surprise, the National Court Rules provide that certain matters, if to be relied upon at trial, must be pleaded specifically. Order 8 Rule 14 is such a rule and it is in the following terms:

“In a defence or subsequent pleading the party pleading shall plead specifically any matter, for example, performance, release, any statute of limitation, fraud, or any fact showing illegality -

(a) which he alleges makes any claim, defence or other case of the opposite party not maintainable; or

(b) which, if not pleaded specifically, may take the opposite party by surprise; or

(c) which raises matters of fact not arising out of the preceding pleadings.”
57. The rule is not confined to those matters that are expressly mentioned in the rule, but they are referred to merely as examples of the kind of matter intended to be covered by the rule: Teague v Jones [1925] ArgusLawRp 19; (1925) VLR 205 per MacArthur J at 207.

58. The defendant has specifically pleaded in its Defence that the plaintiff’s claim is statute-barred by operation of s.84(4) of the Workers’ Compensation Act which prevents him from commencing these proceedings against the defendant for damages arising from the same injuries he suffered on 15 May 2021 in the course of his employment with the defendant.

59. An employee who is injured in a work-related accident or in the course of employment may sue his or her employer either in a common law action for damages or an action for breach of statutory duty (or statutory negligence) or claim compensation under the Workers’ Compensation Act. Workers’ compensation is liability without fault. It means that the employer’s liability to pay compensation does not depend on negligence. The employee therefore has a choice between bringing an action for damages either in common law or for breach of statutory duty (statutory negligence) and making a claim for workers’ compensation. An action brought against an employer must be done within the prescribed period under the Workers’ Compensation Act, ie., within 12 months after the occurrence of the injury or in the case of death, within 12 months after the date of death: see s.41(2)(a) and (b) of the Act. The amount of compensation under the Workers’ Compensation Act is fixed or regulated: see Part VI -Amount of Compensation (ss.64-72) of the Workers’ Compensation Act.

60. I generally accept the defendant’s submissions. I reject the plaintiff’s submissions. The plaintiff’s claim for damages in common law and for breach of statutory duty (statutory negligence) in relation to the same injury is statute-barred by virtue of s.84(4) of the Workers’ Compensation Act. Consequently, the plaintiff is prevented from suing his former employer in respect of the same injury after obtaining a final award against it.
Wrongful termination

61. I generally accept the defendant’s submissions and adopt them.

62. I concur with the defendant that in the Statement of Claim, there is a heading “wrongful termination”, but the matters pleaded do not plead wrongful termination. The plaintiff simply pleads that if he were terminated by the defendant, he did not receive any formal termination notice. In case I am wrong in arriving at this conclusion (which I think I am not) and that the claim for wrongful termination is sufficiently pleaded, then I make these additional observations.

63. On 1 December 2021, a letter was drafted to provide to the plaintiff four weeks’ written notice of termination due to medical/health issues (in accordance with the maximum notice period required under s.34(4)(d) of the Employment Act in circumstances where the plaintiff had only been employed for approximately 9 months); the plaintiff was advised that he would be paid four weeks’ salary in lieu of notice so as to cause the termination to take effect straight away; and notifying him that all other accrued entitlements would be paid to him less any money owing to the defendant. The common law principle that an employer may terminate the services of an employee at will applies in Papua New Guinea subject to requirements of notice or payment in lieu of notice contained in the Employment Act: Steamships Trading Co Ltd v Joel (1991) PNGLR 133, Malai v PNG Teachers Association (1992) PNGLR 568, New Britain Oil Palm Ltd v Sukuramu (2008) SC946. The defendant exercised that right.

64. Annexure “MG9” to Ms Galan’s affidavit is a copy of the letter to the plaintiff, which incorrectly states that the plaintiff was employed as a “gardener”. The Exit Check List dated 1 December 2021, a copy of which is annexure “M10” to Ms. Galan’s affidavit shows that the plaintiff was employed as a Porter.

65. Despite repeated requests made to the plaintiff, he did not attend at the defendant’s office to collect the termination letter. The evidence shows that the plaintiff did not attend work at all and in this respect he essentially abandoned his employment.

66. Between December 2021 and April 2022, the plaintiff willingly pursued his claim for Workers Compensation, knowing full well that his employment with the defendant had come to an end.

67. In any event the plaintiff was paid until 31 December 2021 and received all outstanding entitlements which were paid into his bank account number 088307 0070044459108 operated at Bank of South Pacific. Annexure “MG11” to Ms. Galan’s affidavit is a true copy of the Payment Batch showing the plaintiff was paid all his entitlements in the sum of K818.22, including a one month notice period.

68. It is settled law that the measure of damages for wrongful termination of employment is by reference to the period of notice.

69. In the National Court decision of Christopher Appa v Peter Wama & Others (1992) PNGLR 395 at 397, Justice Woods said:

“It is a general rule that the employee wrongfully dismissed can recover damages for pecuniary loss resulting from wrongful termination to the equivalent of appropriate notice. In the usual case, damages will be equivalent to wages for the period of proper notice. Rarely can an employee claim for other damages.”

70. In the case of Ereman Ragi & Ors v Joseph Maingu (1994) SC459, at p.5, the Supreme Court said:

“There is nothing in the law that states that a public servant or any other employee has any claim to life employment. Public servant and other employees remain liable to termination for cause or for retrenchment upon due notice being accorded to them. Upon dismissal without opportunity to answer charges the usual assessment is made on the normal wages of the employee over a reasonable period. Under the Employment Act Ch 373 a reasonable period for a person who has been employed for 5 years or more is 4 weeks.”

71. Whilst the claim for wrongful termination is denied, it is submitted that the plaintiff was adequately compensated by the payment of four weeks’ notice, the maximum provided under the Employment Act in circumstances where he had only been employed for nine months, which would entitle him to only one week’s notice pursuant to s.34(4)(b) of the Employment Act. I accept the defendant’s submission.

72. I am satisfied that the claim for wrongful termination is an embarrassment because on the evidence, which is uncontroverted, the plaintiff cannot succeed at trial. The claim for unlawful termination is frivolous or vexatious as a result. Further, the pleading itself does not disclose a cause of action based on unlawful termination. In these circumstances, the defendant invited the plaintiff to discontinue the proceedings, but he has continued to maintain the matter resulting in the defendant incurring costs to file this application. Annexed to Ms. Galan’s affidavit as part of annexure “MG12” is a copy of a letter from Ashurst PNG Lawyers to Warinki Lawyers dated 8 March 2023 requesting, among other things, that the plaintiff immediately discontinue the proceedings failing which the plaintiff was placed on notice that relying on that letter, the defendant intended seeking costs on a full indemnity basis. By a letter from Wariniki Lawyers dated 4 April 2023 responding to Ashurst PNG Lawyers letter of 8 March 2023, a copy of which is annexed to Ms. Galan’s affidavit as part of annexure “MG12”, the plaintiff advised that he would maintain the proceedings for reasons given including that he had an arguable case.

PLAINTIFF’S NOTICE OF DISCOVERY
73. I generally accept the defendant’s submissions and adopt them.

74. As I have alluded to above, the damages claim for the same injuries the plaintiff suffered during the course of his employment with the defendant on 15 May 2021 is statute-barred. Consequently, the entire proceeding is susceptible to being dismissed.

75. It has been submitted that the National Court in its inherent jurisdiction ought to set aside the plaintiff’s Notice of Discovery filed 27 April 2023. To my mind, the setting aside of the Notice of Discovery will be the natural consequence of the dismissal of the proceedings.
COSTS

76. The defendant seeks costs of and incidental to the application and of the entire proceedings on a full indemnity basis.

77. The jurisdiction to award costs on a solicitor-client basis is conferred on the Court by Order 22 Rule 65 of the National Court Rules. That is where a lawyer’s conduct is the subject of complaint. However, a claim for costs on an indemnity basis where no lawyer is involved may involve slightly different considerations depending on peculiar circumstances of any given case, but the purpose for seeking the relief is the same. Sometimes the terms “solicitor/client basis” or “indemnity basis” are used interchangeably. That can be discerned from the decision of the Supreme Court in Rex Paki v Motor Vehicles Insurance Limited (2010) SC1015 where it said:

“An order for costs on an indemnity basis may be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable or blameworthy that he should be so punished by such an order. The question is whether the conduct of the appellant in this matter is such that it caused the respondent to incur unnecessary costs.”

78. The considerations (although not exhaustive) upon which the discretion may be exercised were expounded by Injia, DCJ (as he then was) in Island Helicopter Services Ltd trading as Islands Nationair v Wilson Sagati & Ors (2008) PNGLR 22. An application seeking costs on a “solicitor/client basis” or “indemnity basis” should be supported by affidavit and evidence of forewarning against whom such costs is proposed to be sought.

79. The power to be exercised nevertheless is always discretionary and to be exercised with care only in a clear case: Island Helicopter Services Ltd trading as Islands Nationair v Wilson Sagati & Ors (2008) PNGLR 22, Rex Paki v Motor Vehicles Insurance Limited (2010) SC1015.

80. As I have alluded to above, the defendant invited the plaintiff to discontinue the proceedings by letter from Ashurst PNG Lawyers to Wariniki Lawyers dated 8 March 2023, but has continued to maintain the proceedings. A copy of that letter is annexed to Ms. Galan’s affidavit as forming part of annexure “MG12”. By that letter, the plaintiff was also forewarned about the defendant’s intention to seek costs of the proceedings on a full indemnity basis should the proceedings not be discontinued. The practice of forewarning the lawyer or party against whom costs is proposed to be sought is a good one and has been noted in PNG Waterboard v Kama [2005] SC821 and Island Helicopter Services Ltd trading as Islands Nationair v Wilson Sagati & Ors (2008) PNGLR 22. As I have mentioned already, Wariniki Lawyers responded by their letter to Ashurst PNG Lawyers of 4 April 2023 in essence advising that the plaintiff would maintain the proceedings.
81. In the exercise of the Court’s discretion, I find that the facts of this case warrant costs to be awarded on a full indemnity basis. It is a clear case for such an award to be made. I am satisfied that the conduct of the plaintiff or his lawyers can be said to be so improper, unreasonable or blameworthy that they should be punished by such an order.

ORDER

82. The formal orders of the Court are:

1. The plaintiff’s claim for the same injury is barred by s.84(4) of the Workers’ Compensation Act.
2. The claim for unlawful termination is frivolous or vexatious.
3. The plaintiff’s statement of claim is struck out and the entire proceedings are dismissed.
4. The defendant’s costs of and incidental to this application and of the entire proceedings be paid by the plaintiff on a full indemnity basis to be taxed if not agreed.
   

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Wariniki: Lawyers for the Plaintiff
Ashurst PNG: Lawyers for the Defendant