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Kula v Saleu [2024] PGNC 74; N10721 (12 April 2024)

N10721

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS 1016 OF 2018


BETWEEN:
GUISE KULA
Plaintiff


AND:
PRESIDENT
Public Employees Association (PEA) of Papua New Guinea


AND:
HELEN SALEU in her Capacity as the INDUSTRIAL REGISTRAR
First Defendant


AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant


Waigani: Bre, AJ
2023: 13th October
2024: 12th April


NEGLIGENCE – elements considered- whether the Industrial Registrar owes a duty of care – common law duty of care distinct from statutory duty of care


BREACH OF STATUTORY DUTY – elements considered- whether statutory obligation exists – provisions of the Industrial Organisations Act and Registrar's duties considered - liability depends on construction of the Act – Industrial Organisations Act provides no statutory duty of care or actionable right to the plaintiff.


INDUSTRIAL LAW- Industrial Registrar has discretionary power to accept or refuse amendments to the rules of Industrial Organisations pursuant to s48 of the Industrial Organisations Act – Industrial Registrar has duty to industrial organisations to communicate her decision on acceptance or rejection of rules to its constitution –the proper channel for disputes regarding past rule is to seek interpretation before the National Court as provided by section 49 of the Industrial Organisations Act or resolve at a meeting of the industrial Organisation.


Facts


The plaintiff alleges that the Industrial Registrar was negligent in discharging her statutory duties which led to his dismissal from employment by the PEA.


Held


The Industrial Registrar does not owe the plaintiff any duty of care in statute or general negligence. The Registrar had, nevertheless, responded to the plaintiff’s queries. Liability has not been established.


Cases Cited:


Papua New Guinean Cases
Faiteli v Kula (2019) SC1757
Goma v Protect (2013) SC1300
Kula v Faiteli (2017) N6594
Kuman v Digicel (PNG) Ltd (2019) SC1851


Overseas Case
Donoghue v Stevenson (1932) AC 562


Legislation
1ndustrial Organisations Act Chapter 173,ss 4,5,6,33,36,37,38,39,48 and 49


References
Claims By and Against the State Act 1996
Wrongs and (Miscellaneous Provisions) Act


Statement of Claim


Trial on liability and assessment of damages by Affidavits with no cross examination, where the plaintiff sought to prove negligence by the Defendant for his termination from employment and to seek damages.


Counsel


Ms E Weada, for the Plaintiff
Ms G Dusava , for the First and Second Defendants


JUDGMENT


12th April 2024


1. BRE AJ: INTRODUCTION: Guise Kula is the former General Secretary of the Public Employees Association of Papua New Guinea ('PEA') from 2013 to 2015. He alleges that the Industrial Registrar breached her statutory duties which led to his dismissal from employment.


2. The defendants deny the allegation and contend that the Industrial Registrar does not owe any duty to the plaintiff and that the plaintiff contributed to his own termination by being insubordinate to his superiors.


PLAINTIFF’S CLAIM


3. The plaintiff's primary cause of action is against the Industrial Registrar and the State as nominal defendant alleging vicarious liability for the Industrial Registrar’s alleged breach of statutory duties. The plaintiff claims the Industrial Registrar was negligent when she failed to respond to his letter of 16 May 2013 and 10 February 2015. The plaintiff's employment as General Secretary was terminated on 19 August 2015, on grounds of insubordination for raising the issues directly to the Industrial Registrar without first discussing them with the Executive Committee of the PEA. The issue raised by the plaintiff concerned defects in the constitution of the PEA concerning the qualification of the appointment and term of the President. The plaintiff pleads in his statement of claim filed 28 August 2018, vicarious liability of the State at paragraph 4 and negligence at paragraphs 20 and 21 as follows:-

“20. The plaintiff’s termination of employment was as a result of the Second Defendant’s negligence by failing to carry out her statutory duties as the person responsible for interpretation and application of the laws under which all unions operate including the Public Employees Association.


21. As a result of the negligence of the Second Defendant, the plaintiff has suffered loss and damage and continues to suffer loss and incredible stress since 18 May 2015.


Particulars

a) The plaintiff has no paid income to support his family since 18 May 2015.


b) The plaintiff has suffered from stress induced recurring medical conditions particularly severe gouty arthritis as diagnosed by a qualified Cardiologist Dr Jack Amana at the Port Moresby General Hospital on 30 November 2027.


c) The plaintiff has with these recurring medical conditions instituted legal proceedings in the National Court (OS No. 301 of 2017) seeking interpretation of the law which the first defendant failed to attend to and to right the wrong caused by the President of PEA in unlawfully terminating him.


d) The plaintiff’s unlawful termination (as found in OS No. 301 of 2017) would have the natural and ordinary meaning to the general public that:


i) The plaintiff is a corrupt person;

ii) The plaintiff is not a fit and proper or trust worthy person to hold the position General Secretary of PEA;

iii) The plaintiff is a bad person who is guilty of misconduct involving the Office of the General Secretary of PEA
e) The plaintiff’s unlawful termination has injured his credit and reputation and has been brought into public sandal, odium and contempt.”


22. By letter dated 21 January 2018 addressed to the Office of the Solicitor General, the Plaintiff gave to the third defendant Notice pursuant to Section 5 of the Claims By and Against the State Act 1996 of his intention to make this claim against the defendants and in particular against the third defendant on a vicarious liability basis pursuant to Section 1 and 4 of the Wrongs and (Miscellaneous Provisions) Act by Letter dated 22 May 2018 the Acting Solicitor General Ms Faith Barton-Keene advised that notice was given within the time limited of six (6) months to sue the third defendant and its agents.


And the Plaintiff claims:
1) General damages
2) Special damages
3) Damages for frustration and stress
4)Interest at 8% per annum
5) Cost of entire proceedings
6) Any further orders the court deems appropriate.


DEFENDANT'S CLAIM


4. The defendants filed their Notice of Intention to Defend on 03 October 2018 and Defence on 28 November 2018. The Industrial Registrar contends that the plaintiff’s queries were responded to and he was informed that the matters he raised should be discussed internally. She also relies on Section 6 of the 1ndustrial Organisations Act Chapter 173, to claim statutory immunity from lawsuits for matters done or omitted in the course of her duties.


5. The defendants contend that the plaintiff is not an employee of the Industrial Registrar, nor the State and his employment is under the authority of the PEA, which they do not have authority over and should not be held responsible for his termination.
6. The State denies vicarious liability on the basis that the Industrial Registrar was not negligent in her duties and entitled to the protection of statutory immunity under Section 6 of the 1ndustrial Organisations Act Chapter 173 (‘IOA’).


PARTIES EVIDENCE


7. The plaintiff relies on his own affidavits as follows:-


a) Affidavit by Guise Kula sworn on 20 January 2023 and filed 01 January 2023 tendered and accepted as an exhibit marked ‘P1’
b) Affidavit by Guise Kula sworn 27 January 2023 and filed 30 January 2023 tendered and accepted as an exhibit marked ‘P2’
c) Affidavit in response by Guise Kula sworn and filed 04 April 2023 tendered and accepted as an exhibit marked ‘P3’


8. The first and second defendants (the defendants) rely on the Affidavit of Helen Saleu, the Industrial Registrar, sworn and filed on 21 March 2023.


SUBMISSIONS


Plaintiff's submission


9. Ms Waeda submits the plaintiff’s dismissal from employment is a result of the Industrial Registrar failing in her duties under the IOA to respond to the plaintiff’s letters which raised vital defects regarding the president’s standing and the PEA’s constitution. The plaintiff’s claim is that the industrial Registrar has the statutory duty under the IOA to ensure Industrial Organisations rules which contravene the Act are neglect, which she failed to do. That because of her failure to respond his queries, his employment was terminated by the PEA for being insubordinate in raising the issues direct to the Industrial Registrar. Ms Waeda relies on this Court’s decision reported in Kula v Faiteli (2017) N6594 where the Court held that rule 30(a) of the PEA constitution offended s39(1)(b)IOA and the Industrial Registrar failed in her duties under s48(6) IOA to reject rule 30(a). Counsel submits that the Court’s decision in Kula v Faiteli (2017) N6594 should prevail in the absence of a written Supreme Court decision. She further submits that the statutory protection under s6 IOA does not apply where the Industrial Registrar is negligent in carrying out her duties.


Defendants’ Submission


10. The defendants submit that the Industrial Registrar did respond to the queries of the plaintiff and his claim against the Industrial Registrar is remote. The defendant submits there was a Manus resolution of the PEA congress on or about 10 and 12 April 2015 which the plaintiff as the General Secretary failed in his duties to raise to the Industrial Registrar ('IR') within the statutory time limit of 21 days. It was for this reason that he was terminated. That the plaintiff raised points of law that should have been raised within the PEA first before proceeding to the Industrial Registrar.


11. The defendants further submits that Section 6 IOA protects the Industrial Registrar (IR) from litigation unless negligence is proved. In terms of vicarious liability, counsel submits that where negligence is not proved, s6 IOA applies to discharge the State from vicarious liability.


FINDINGS OF FACT


12. I make the following findings of fact from the uncontested evidence of both parties.


  1. The plaintiff was employed as the PEA's General Secretary under a written contract of employment for a term of four years from 25 June 2013 to 25 June 2017.
  2. The plaintiff raised defects in the PEA constitution on rule 30(a) as it pertains to the standing of the president at the PEA congress meeting held in Manus from 10 to 12 April 2013.
  3. He raised these defects while he was the acting General Secretary.
  4. The PEA congress did not endorse his submission in the meeting at Manus.
  5. In the congress meeting, the Congress accepted other amendments to the PEA constitution, which the plaintiff as the General Secretary’s task is to send a copy of the new rule to the IR within 21 days as required by Section 48(4) IOA.
  6. By letter to the IR dated 16 May 2013, the plaintiff sought clarification of ss33, 36, 37 and 39 IOA by challenging the PEA constitution that the IOA provisions are contravened when the president is not actively engaged or employed in the public service, hasn’t paid membership fees and is employed on a full-time basis with the PEA.
  7. By letter dated 23 May 2013, the plaintiff wrote to the IR to informing her that certain amendments were made to the PEA constitution but apologised that they were not ready to be submitted to her office for approval as the patrol box containing the minutes with other documents were offloaded by Air Niugini.
  8. By letter dated 25 April 2014, the plaintiff wrote to the IR apologising for the delay in giving formal notice of amendments to the PEA’s constitution passed by the PEA congress at its meeting in Manus in April 2013. He notified the IR that the amendment related to the process of appointment after the president resigns for which he cited the rule on page two of his letter.
  9. By letter dated 10 February 2015, the plaintiff wrote to the IR following up on a response to his queries contained in his letter of 16 May 2013. He informed the IR that the PEA would be led by a newly elected full-time president, Emma Faiteli, and he urged that his queries about the change in the status of the president and the PEA constitution be responded to.
  10. The plaintiff then proceeded on four months recreational leave from 08 April 2015 to 06 August 2015.
  11. On 18 May 2015 while the plaintiff was on leave, he was served a dismissal notice of his termination to take effect in three months' time on 19 August 2015, to factor in the three months' notice period.
  12. The reasons cited for his termination were for insubordination in raising the defect issues direct by the IR without informing the president which the president and PEA Executives considered amounted to insubordination and terminated his employment.
  13. On 28 August 2015, the plaintiff filed proceedings OS 301 of 2015 seeking the Court’s interpretation of the issues he raised in his letter dated 13 May 2013 of rule 30(a) of the PEA constitution contravening sections ss33,36, 37 and 39 IOA .
  14. The National Court handed down its decision on 26 January 2017 in Kula v Faiteli (2017) N6594 in favor of the plaintiff.

16.On 2 November 2017 the orders of the National Court decision were set aside by the Supreme Court when fresh evidence was introduced which countered the plaintiff's claims. See Faiteli v Kula (2019) SC1757.


ISSUE


13. The pertinent issue for deciding liability is whether the Industrial Registrar owed a duty of care to the plaintiff to respond to the plaintiff’s queries of 16 May 2013 and its subsequent follow up of 10 February 2015 and in allegedly not responding to the queries, breached that duty of care, which resulted in the plaintiff's dismissal from employment by the PEA? Assessment of damages will be considered were the defendants are found liable in negligence.


ANALYSIS


14. In considering liability, both counsel based their submissions and pleadings on general negligence without focusing much on breach of statutory duties. The pleadings by the plaintiff allege breach of statutory duties by the Industrial Registrar in allegedly failing to respond to the plaintiff's letters which he alleges caused his dismissal from employment. The plaintiff must prove on a balance of probabilities that the defendants, especially the Industrial Registrar with whom his principal claim is based against; owed him a duty of care to respond to his letters of 16 May 2013 and 10 February 2015.


15. As a starting point, the elements of the tort of negligence are well settled in our jurisdiction and entails the following:- See: Kuman v Digicel (PNG) Ltd (2019) SC1851:


1. duty of care;

2. breach of the duty;

3. causation of the injury or harm;

4. damages or loss suffered.

5. injuries were not too remote,

6. plaintiff did not contribute to her injuries.

See: Kuman v Digicel (PNG) Ltd (2019) SC1851.[1]


16. The elements of the tort of breach of statutory duty or statutory negligence, as is known in some contexts, are distinct to the elements of general negligence. The elements of breach of statutory negligence are established in Goma v Protect (2013) SC1300 as follows:-


(a) a statute imposed an obligation on the defendant;

(b) the obligation was breached by the defendant;

(c) the purpose of the statute was to protect a particular class of persons;

(d) the plaintiff was a member of that class of persons;

(e) the plaintiff suffered damage as a result of the breach; and
(f) the Parliament intended to create a private right of action for breach of the statutory obligation.


17. The plaintiff must prove all the elements to discharge his burden of proof and establish liability for both causes of action. I will address both causes of action in my deliberations.


Duty of Care or Statutory Obligation


18. The obvious first element to prove in both causes of action is for the plaintiff to establish that the Industrial Registrar owed him a duty of care. Duty of care entails the existence of a relationship between the parties and requires reasonable care to be exercised which requires the aspect of foreseeability of an injury occurring to the plaintiff if the duty of care is not observed. The tort of negligence per se is distinct[2] from breach of statutory duties but have some commonalities. For negligence, the duty of care is as laid out in Donoghue v Stevenson (1932) AC 562, while for the tort of breach of statutory duty, the duty of care or 'obligation' is imposed by statute which demonstrates Parliament’s concern that certain standards of care must be observed in the circumstances prescribed in the statute for a certain class of persons to which the plaintiff belongs to. The concept of duty of care was first established in the famous case of Donoghue v Stevenson by Lord Atkin at page 580 that:


"The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, 'Who is my neighbour?' receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts and omissions which are called in question."


19. In applying Donoghue v Stevenson to the context of this case, there must exist a relationship between the plaintiff as the General Secretary of the PEA and the Industrial Registrar, that demands that the IR should have reasonably foreseen or contemplated that the plaintiff's employment would be adversely affected if she does not respond to his queries. However, this inquiry is not sufficient, to properly establish a claim in breach of statutory duty, the plaintiff must show that the relevant provisions of the IOA that he relies on imposes a duty on the plaintiff to address the legal queries he posed about the PEA constitution in his letter of 16 May 2013. This is a question of law.


20. I therefore turn to consider the provisions of the Industrial Organisations Act relied on by the plaintiff to ascertain if the provisions of the Act provide an obligation or duty of care to be observed by the Industrial Registrar to consider and resolve the issues raised by the plaintiff at risk of dismissal.

Section 4
4. Duties Of Registrar, Etc.


(1) Subject to this Act, the powers, functions, duties and responsibilities of the Registrar, a Deputy Registrar, an Inspector and an officer appointed under Section 3(c) are as prescribed or as the Minister directs.

(2) The Departmental Head and the Registrar have all the powers of an Inspector.


Section 5

5. Duties, etc., of Inspectors.


(1) An Inspector has such duties, and shall make such investigations and reports in relation to the observance of this Act, as the Departmental Head directs.


(2) Subject to Subsection (3), for the purpose of carrying out his duty under this section an Inspector may, during working hours, enter any building, mine, mine working, ship, vessel, place or premises in which, or in respect of which–


(a) an industry is carried on or work is being, or has been, done or commenced; or
(b) any matter or thing is taking place, or has taken place,

in relation to which–

(c) an industrial dispute is pending; or
(d) an award has been made; or
(e) an offence against this Act is suspected,

and may–

(f) inspect any work, material, machinery, appliances, articles, book or document in it or them; and
(g) interview any employee engaged in it or them.

(3) A mine shall not be entered or inspected under Subsection (2) by a person other than a qualified inspector of mines or mining engineer except in the presence of a qualified inspector of mines or mining engineer.


Section 33


33. Qualifications for Membership Generally.

A person who is–

(a) engaged or usually engaged in an industry or occupation within the country; or
(b) qualified to be engaged in an industry or occupation within the country and wishes to be engaged in it,

and is–

(c) a resident of the country; and
(d) not otherwise disqualified, is qualified for admission as a member of an industrial organization representative of his interests in the industry or occupation.

Section 36

36. Membership.

(1) A person qualified under this Act for admission as a member of the organisation is entitled, subject to payment of any moneys properly payable in respect of membership –

(a) to become a member of an industrial organization representative of his interests in the industry or occupation in which he is or is usually engaged, or wishes to become engaged; and
(b) to remain a member of the organization so long as he continues usually to engage in the industry or occupation and complies with the rules of the organization.

(2) Subsection (1) has effect notwithstanding the rules of the industrial organization concerned.

Section 37

37. Ex Officio Membership Of Secretary.
Subject to the rules of the organization, the secretary of an industrial organization shall be deemed to be ex officio a member of the organization.


Section 38

38. Disputes As To Membership.

(1) Where a question or dispute arises as to the entitlement under this Act of a person to be admitted as, or to remain, a member of an industrial organisation–

(a) the person; or
(b) a person who is or desires to become the employer of the person; or
(c) the organisation; or
(d) the Registrar; or
(e) any other interested person, may apply to the National Court for a declaration as to his entitlement to membership of the organisation.

(2) The National Court–

(a) has jurisdiction to hear and determine a question or dispute arising under Subsection (1); and
(b) may, after hearing all interested parties and notwithstanding anything in the rules of the industrial organisation concerned, make such declarations or orders as it thinks proper in relation to the question or dispute.

(3) The orders that the National Court may make under Subsection (2) include an order requiring the industrial organisation concerned to treat the person concerned as a member of the organization.
(4) On the making of an order under Subsection (3) or as otherwise specified in the order, the person concerned is, by force of this Act, a member of the organization, subject to payment of any moneys properly payable in respect of membership.


Section 39

39. Officers.

(1) Subject to this section and to Section 37, a person who–

(a) is an officer of another industrial organization; or
(b) is not actually engaged in an industry or occupation with which the organisation is directly concerned, unless the Registrar, in his discretion, so permits; or
(c) is not over the age of 21 years; or
(d) is not a member of the organization; or
(e) is not ordinarily resident in the country,

is not entitled to be an officer of an industrial organisation.

(2) Subsection (1) does not prevent an officer of an industrial organisation from being an officer of another industrial organisation–

(a) that is a federation of which that first-mentioned industrial organisation is a member; or
(b) with the consent of the Registrar.

(3) Subject to Subsection (4), the office of secretary of an industrial organisation may be filled by a person not actually engaged in an industry or occupation with which the organisation is directly concerned, unless the Registrar otherwise directs.
(4) The Registrar may, by order, remove from office the secretary or treasurer of an industrial organisation who is, in his opinion, not capable of performing effectively the duties of his office.


Section 48

48. Requirements as to Rules.

(3) A rule of an industrial organisation shall not–

(a) be contrary to this Act or otherwise contrary to law, or be such as to cause the rules of the organisation to fail to comply with this Act or an award; "


21. In my view, none of these provisions create any obligation or duty on the Registrar to respond to the plaintiff's queries or protect the job of the plaintiff. The closest the IR can do would be to treat the queries as a complaint and consider if she can exercise her inspection powers. However, s5(1) IOA, clearly does not vest a direct power of inspection on the Registrar. The inspection power is to be exercised on the directions of the departmental head. The Registrar cannot on her own notion without the authority of the departmental head inspect a workplace or ensure observance of the Act. The departmental head’s approval must be obtained first before she excuses any inspection powers. There is no evidence that the plaintiff’s letter was copied to the departmental head or that the IR sought approval from the department head. Either way, the inspection authority is not a direct conferral of power on the IR and arguments on s5 IOA are not relevant.


22. In Goma v Protect, the Supreme Court clarified that the statute must be construed to determine if Parliament intended to protect a class of persons which the plaintiff belongs to by providing an actionable right to a cause of action, where the person vested with the statutory obligation breaches that duty. I am not satisfied that the above-cited provisions of the IOA creates any statutory duty on the Industrial Register to respond to the plaintiff's queries.


23. I proceed then to peruse the overall scheme of the legislation and note in particular that the scheme of the IOA is to provide a mechanism in which industrial organisations or labour unions can be validly organised and have legal force and effect through a process of registration and governance that is administered by the Industrial Register.


The preamble of the IOA states that it is:-
" ...an Act to provide for the registration and control of industrial organisations, and for related purposes. "


24. Part of the registration requirements involve an industrial organisation adopting a constitution or rules[3] to govern its meetings, operations and to adopt rules which do not contravene the IOA. Section 48(6) IOA vests the Registrar with powers to accept or reject a rule of an industrial organisation. It imposes a duty on the IR to communicate her decision to the industrial organisation, not to any other person. In practice, the president and the secretary would be provided the decision on the rule adopted by the organisation. Section 48(6) IOA reads:-


" (6) The Registrar may refuse to register a new rule, or an alteration in the rules, of an industrial organisation if he is of the opinion that the rule or alteration conflicts or does not comply with this Act, and notice of the refusal shall be immediately given to the organisation." (emphasis added)


25. The plaintiff may have had a genuine reason to flag the inconsistencies to the PEA rules to the IOA but the Industrial Registrar's response would be as outlined in the IOA, which according to s49 is to refer the matter or advise a member of the industrial organisation to seek legal clarification from the Court. Section 49 provides:-


"49. Determination or Validity of Rules.

(1) A member of an industrial organization or the Registrar may apply to the National Court for an order declaring that the whole or a part of a rule of the organization contravenes Section 48(3).

(2) The National Court may–

(a) require to be joined in proceedings under Subsection (1) such person as it thinks necessary; and
(b) without prejudice to any other power to adjourn proceedings, adjourn any such proceedings–

(i) for such period; and
(ii) on such terms and conditions,

as it thinks proper for the purpose of giving to the organisation an opportunity to alter its rules."
(emphasis added)


26. Section 48(6) IOA refers to the process of validation of a rule by the Registrar that has been adopted by an industrial organisation. This must be distinguished from the plaintiff's case, he is inquiring in his capacity as the General Secretary of the PEA about whether the president meets the eligibility criteria outlined under ss33 and 36 IOA. It is not a referral to the IR for endorsement a new rule of the PEA. Further, the plaintiff did not indicate in his letters which rule of the PEA his queries referred to. His letter states a general set of circumstances and seeks the Registrar's views. I infer from the submissions of the plaintiff's counsel in referring to the plaintiff's case reported in Kula v Faiteli (2017) N6594, that the relevant PEA rule is rule 30(a) adopted on 07 June 2006, which "makes allowance for the President of PEA to be appointed on a full-time basis."[4]


27. This Court had decided on the issue raised by the plaintiff in Kula v Faiteli (2017) N6594 and made several findings about the contravention of the rule and the negligent[5] actions of the Registrar. The Court held that the plaintiff was a whistleblower who was unfairly dismissed as a result. The plaintiff's counsel relied heavily on this case to support the case for the plaintiff for negligence by the Registrar but failed to inform the Court that this decision was set aside by the Supreme Court.


28. The Supreme Court in Faiteli v Kula (2019) SC1757 considered a slip rule application made by the PEA which concerned consent orders delivered on 2nd November 2017. The consent orders were in the following terms at [4]:-


“1. As the fresh evidence allowed by this court has established that the first appellant remained a public servant and at all material times was the president of the second appellant, the appeal is allowed in part;


2. The orders of the National Court dated 26th January 2017 in proceeding OS No. 31 of 2015 are set aside;


3. The respondent shall not be reinstated as the General Secretary of the second appellant and shall be paid the remaining part of his current employment contract by the second appellant;


4. The costs of this appeal and the National Court proceeding OS No. 31 of 2015 for the first appellant and the respondent are to be paid by the second appellant to be taxed if not agreed.”


29. No details were provided by either party as to what the nature of the fresh evidence was, but I infer from the above Supreme Court decision that it was vital evidence proving that the president met the eligibility requirements which the plaintiff challenged in his letter to the Registrar thereby rendering the setting aside if the National Court decision.


30. Further, the Industrial Registrar's evidence is that she verbally informed the plaintiff soon after she received his letter of 16 May 2013 that his queries require interpretation by the Court. I find her evidence credible as it is consistent with ss38 and 48 IOA which requires member eligibility issues and disputes about rules to be decided by the Court. Those provisions also lists persons who may bring proceedings which the plaintiff rightly did when he filed proceeding OS No 301 of 2015.


31. This means the basis of the plaintiff’s claim relying of the National Court decision in Kula v Faiteli (2017) N6594 has no weight and renders his arguments about Rule 30 (a) baseless.


32. The Registrar also provided a copy of a letter from her deputy who wrote to the plaintiff on 17 December 2014 advising the plaintiff to consult the PEA lawyer for legal clarification. By letter dated 17 December 2014, the acting deputy registrar, Mr Puipui, wrote to the plaintiff referring to a meeting he had with the plaintiff on 11 November 2014 and formally advised him to request a legal interpretation from the PEA lawyer and that PEA should already know the consequences of the scenario the plaintiff raised in his letter. The deputy's letter is marked as annexure 'D' to her affidavit. I accept the evidence of the Registrar that she responded to the plaintiff’s queries.


33. It appears to me that the plaintiff was upset when his submissions to congress in the April 2013 meeting in Manus was not accepted as the evidence of the first defendant shows that he delayed on his statutory duties to provide the new rule, adopted at that meeting to the IR for endorsement within 21 days as required by s48(4) IOA.


34. While I accept that his options to flag his concerns to the president or the executive committee may be limited as it concerns the president, I find he did the right thing to seek the Industrial Registrar’s views which were given. The plaintiff, however has not disclosed in his evidence that the Registrar respondend to him.


To contend that the IR is responsible for his dismissal has no legal basis as the IR owes no statutory duty of care to him to protect his employment. The cause of any action is too remote. The IR cannot be held to reasonably foresee that by failing to resolve queries raised by a Secretary of an Industrial Organisation, the Secretary may be dismissed and that she has a duty to protect his employment. Such an interpretation cannot be read into the Act when the clear express language of the IOA does not render such duty.


35. What is clear to me is that the responsibilities placed on the IR under the IOA, is to the industrial organisations, not to general secretaries of industrial organisations. Before the IR can exercise her duties under the IOA section 48 to accept or reject a rule of an Industrial Organisation, she must be provided with copies of the new rules. The plaintiff has not refered to any rule in his letters of 16 May 2013 or 10 February 2015. The first defendant's evidence shows that the plaintiff had delayed providing the new rules adopted in April 2023. These are mentioned in the formal communications from the plaintiff on by letters dated 23 May 2013 and 25 April 2014 contained in Annexure ‘B’ and ‘C’ of Helen Saley’s affidavit.


36. I note that the rules of the PEA approved in the Manus meeting do not contain any aspect of the matters that the plaintiff raised in his two letters of 16 May 2013 and 10 February 2015 to the first defendant. The amended rules in fact relate to continuity of office where the president resigns which was approved by the first defendant and formally communicated by the plaintiff to the IR a year later, well outside the required statutory timeline of 21 days.


37. The PEA rule 30(a), the subject of this dispute, was apparently adopted on 07 June 2006, nearly seven years later on 13 May 2013, the plaintiff raised the issue of potential contravention of the IOA to the Registrar. The plaintiff has not pointed out which particular section imposes an obligation on the IR to deal with old or existing rules. In my view, the Registrar was correct in informing the plaintiff that the eligibility issues he raised are for the Court to decide as her role under s48 IOA is to accept or refuse a new rule. I find that the only legal basis to dispute an old rule is pursuant to Section 49 IOA. The Registrar has recently relayed to the plaintiff that he should seek further legal advise from the PEA’s lawyer.
38. If there is any duty, it would be on the plaintiff to the Registrar to perform competently in his job. That is implied in Section 39(4) IOA which confers a discretionary power on the Registrar to order the removal of a secretary or treasurer of an industrial organisation for poor performance. Although this provision is not directly relevant to addressing the issue of duty of care, it provides good context to the role of the Registrar.


39. In summary, I am not satisfied that the plaintiff has discharged his burden of proof on a balance of probabilities that the Industrial Registrar owed a duty of care to him. Further I find that the Industrial Registrar has not failed to respond to the plaintiff and that there are no statutory provisions in the IOA that places a responsibility on the Industrial Registrar to respond to queries from secretaries or office bearers of industrial organisations. Her duty is to respond to any adoption or alteration of any new rules of an industrial organisation that has been adopted by the organisation. That duty is to the organisation not to its secretaries or office bearers. In this case, the plaintiff challenged an old or existing rule where the only avenue for resolution is under s49 IOA to seek declarations before the National Court to provide legal clarity. The other option is for the PEA to alter that rule in its congress meeting. This option was pursued by the plaintiff in the congress meeting in Manus but was not accepted by the congress.


The defendant failed to discharge the first element that the defendants owed a duty of care or that the IOA imposes a statutory obligation on the defendants to observe a duty of care for his benefit.


40. My judgment is that the plaintiff has not established a cause of action in negligence or breach of statutory duty and the causes of action fails. The IOA does not create an actionable right to a cause of action to protect a class of persons to which the plaintiff belongs to. Judgement is granted against the plaintiff in favour of the defendants. The defendants are not liable for breach of statutory duty nor negligence. The Industrial Registrar is not responsible for the plaintiff’s dismissal from employment. The State is not vicariously liable. No case has been made out against the PEA.


41. Given my decision, it is not necessary to consider the other elements of the tort of negligence or breach of statutory duty nor proceed to assessment of damages.


Section 6 IOA provides statutory immunity to the Industrial Registrar against lawsuits when executing her duties under the IOA unless negligence is proved. The Industrial Registrar was not negligent in the discharge or otherwise of her duties and has the protection of statutory immunity pursuant to s6 IOA. I am inclined to enter judgment for the defendants and dismiss the proceeding in its entirety.


COSTS


42. Costs are discretionary and usually follow the outcome of the case. However, given the length of time and the circumstances of the plaintiff as deposed to in his affidavit, each party bears their own costs.


FORMAL JUDGEMENT


43. The formal judgment of the Court are:-

  1. Judgment is entered against the plaintiff. Liability is not proven.
  2. The proceeding is dismissed in its entirety.
  3. The Cout File be closed and archived.
  4. Each party bears their own costs.
  5. Time for entry of these orders be abridged to the date of settlement by the Registrar which shall take place, forthwith.

Formal Judgement and Orders accordingly.
Public Solicitor: Lawyers for the Plaintiff
Solicitor General: Lawyers for the Defendants

[1] at [63], [64],[65] and [66].
[2] See Woolcott & Ors v Nivani Ltd (2023) SC2335
[3] Industrial Organisations Act s9 and Regulation s2(d)

[4] at [5].
[5] at [44].

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