Schaumkel v Australia and New Zealand Banking Group Ltd [2009] TOLawRp 25; [2009] Tonga LR 256 (15 June 2009)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CV 58/2008

Schaumkel

v

Australia and New Zealand Banking Group Ltd

Andrew J
10 June 2009; 15 June 2009

Practice and procedure – applications to strike out and for security for costs – dismissed

The plaintiff claimed that the defendant had no right under the contract of employment to terminate without notice and could not terminate without right to be heard. The defendant claimed in a case of a private employer, there was a right of summary dismissal and the defendant could dismiss at will. The defendant made an application to strike out the plaintiff's claim for wrongful dismissal or in the alternative that the plaintiff pay security for costs.

Held:

1. The plaintiff had a right to bring her action and the issue as to whether there was any breach of a term of the contract should be litigated. The claim should not be struck out.

2. Requiring the plaintiff to pay security for costs was likely to have the effect of excluding the plaintiff from being able to bring her case. The application was not granted.

3. Both applications were dismissed.

Cases considered:

Cauchi v Air Fiji [2005] Tonga LR 154

Hougland v Tonga Family Planning [1989] Tonga LR 87

Counsel for the plaintiff : Mr Taumoepeau
Counsel for the defendant : Mr Tu'utafaiva

Judgment

This is an application to strike out the Plaintiff's claim for wrongful dismissal or in the alternative that the Plaintiff pay security for costs.

There is no dispute that the Plaintiff was employed by the Defendant commencing in about January 2001. There was an employment contract dated 25th January, 2001.

The Plaintiff (in Paragraph 10 of the Statement of Claim) says that the defendant has no right under the contract of employment to terminate without notice and cannot terminate without right to be heard. The defendant/applicant says that this is a case of a private employer and that he can dismiss at will. Further it is said that this is not a case where administrative law is applicable and where natural justice might apply so that the issues of a right to be heard and dismissing without notice do not apply in this case.

In other words that there is a right of summary dismissal in a normal contract of employment case. Reliance is placed on Hougland v Tonga Family Planning [1989] Tonga LR 87.

The pleadings in the Statement of Claim are to be considered as being capable of proof by the Plaintiff. The discretion to strike out must be sparingly exercised see Cauchi v Air Fiji [2005] Tonga LR 154.

In this case there is a contract. The question is, has the employer broken any terms of the contract. That includes express and implied terms. It involves questions of fact. I do not think that it is as straightforward as saying that the employer can simply dismiss at will whatever the circumstances.

I would not strike the claim out. I think the Plaintiff has a right to bring her action and the issue of whether there is any breach of a term of the contract to be litigated.

I would not strike out the claim.

In relation to security for costs I think this is likely to have the effect of excluding the plaintiff from being able to bring her case. She is currently residing in New Zealand where it is said that she has secured employment. There is evidence that she and her family have assets in the community. I would not grant an order for security for costs.

Both applications are dismissed.

I order that the costs of these applications be costs in the cause.