Schaumkel v Australia and New Zealand Banking Group Ltd [2009] TOSC 7; CV 58-2008 (15 June 2009)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY CV 58 of 2008

BETWEEN:

SERENA SCHAUMKEL
Plaintiff

AND:

AUSTRALIA & NEW ZEALAND BANKING GROUP LTD.
Defendant

BEFORE THE HON. JUSTICE ANDREW

Counsel: Mr. Taumoepeau for the Plaintiff, Mr. Tu’utafaiva for the Defendant

Dates of Hearing : 10 June, 2009
Date of Judgment : 15 June, 2009

JUDGMENT

This is an application to strike out the Plaintiffs 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 null. Further it is said that this is not a case of where administrative law in applicable and where natural justice right apply so that the issues of a right to be heard and dismissing without notice do not apply in this case.

On 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 CAUHI v AIR FIJI CV440/01, 1st February, 2005 words that there is a right of summary dismissal in a normal contract of employment. Reliance in placed on HOUGLAND v TONGA FAMILY PLANNING ASSOCIATION 1989 TONGA L.R at P.87.

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 has assets in the community. I would not grant order for security for costs.

Both applications are dismissed.

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

NUKU’ALOFA: 9 June 2009

JUDGE