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Faamau v Samoa Breweries Ltd [2009] WSSC 85 (26 August 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA


IN THE MATTER: of Supreme Court (Civil Procedure Rules) 1980.


BETWEEN:


JOHN WHINERAY FAAMAU
a male of Tiapapata, Samoa.
Plaintiff


AND:


SAMOA BREWERIES LIMITED
a duly registered company having its registered office at Vaitele, Samoa and carrying
on business as a beverage manufacturer and distributor.
Defendant


Counsel: J Annandale for plaintiff
T K Enari and R Wendt for defendant


Hearing: 10 July 2009
Judgment: 26 August 2009


JUDGMENT OF SAPOLU CJ


Brief introduction


  1. The plaintiff was from 1983 to 2008 a managerial employee of the defendant company which is the largest beverage manufacturer and distributor in Samoa. On 3 March 2008 the defendant terminated the plaintiff’s employment.
  2. On 20 October 2008, the plaintiff commenced proceedings against the defendant by filing a statement of claim alleging breaches of a number of terms claimed by the plaintiff to be implied in his contract of employment which is an unwritten contract. The claim seeks relief by way of reinstatement of the plaintiff to the position he was occupying at the time of his termination as well as special and general damages. On 24 November 2008, the defendant filed a statement of defence denying the plaintiff’s claim.
  3. Following the filing of the statement of claim and statement of defence, the plaintiff sought and obtained from the Registrar an order for discovery dated 3 April 2009 against the defendant. The plaintiff then obtained from the Registrar another order for discovery dated 24 April 2009 against the defendant. In response to these orders for discovery, the defendant filed three affidavits of documents sworn on 18 May 2009, 21 May 2009 and 27 May 2009 respectively. The defendant has also provided the plaintiff with four bundles of documents.
  4. It is said on behalf of the defendant that the defendant had also obtained an order for discovery of documents dated 21 May 2009 against the plaintiff but the plaintiff has not complied with that order. It appears that that order was prepared by the law firm which is representing the defendant. If one looks at that order and its wording, it is the defendant, itself, which is being ordered to make discovery and to file and deliver an affidavit of documents to the plaintiff. It is no wonder if the plaintiff, as claimed on behalf of the defendants, has not filed an affidavit of documents because it is the defendant, itself, which is required by the order for discovery to file an affidavit of documents.

Motions by the parties


  1. There are three motions before the Court that I have to deal with in these proceedings. These are:
  2. I will now deal with each of those motions in the order they are referred to above.

The defendant’s motion to strike out the plaintiff’s statement of claim


  1. In order to understand what the defendant’s motion to strike out the plaintiff’s statement of claim is getting at, I will have to approach the matter in three steps in order to avoid confusion.
  2. As first step, I will refer to those parts of the statement of claim to which the motion to strike out relates. As already mentioned, the action by the plaintiff relies on alleged breaches by the defendant of certain terms claimed to be implied in the plaintiff’s contract of employment. The relevant implied terms for present purposes, as pleaded in the statement of claim, are:
  3. These are plainly pleadings of a common law action for wrongful dismissal. As the implied terms (b) and (c) suggest, those implied terms are to be implied where the plaintiff has been dismissed without proper cause, that is to say, where the plaintiff has been wrongfully dismissed. This further suggests that if the plaintiff was dismissed with just or proper cause, then he was not wrongfully dismissed and the implied terms (a) and (b) would not apply
  4. In the prayer for relief in the statement of claim, the plaintiff seeks, inter alia, reinstatement as well as general damages for the alleged breach of the implied term not to dismiss the plaintiff in a manner likely to cause undue mental distress, anxiety, humiliation loss of dignity and injury to feelings and for the alleged breach of the implied term not to dismiss the plaintiff without proper cause in a manner likely to cause loss of professional reputation. There does not appear to be any claim for damages for the alleged breach of the implied term that either party was able to terminate the contract of employment with reasonable notice.
  5. As second step, I will refer to what is said in the motion to strike out in relation to the orders for discovery issued on 3 April 2009 and 27 April 209 against the defendant. It is claimed in the motion that those orders for discovery should be ruled to be oppressive and irrelevant. I must say at once that it is inappropriate to seek such a ruling in a motion to strike out a statement of claim. The plaintiff should have brought a separate motion that the orders for discovery are oppressive and irrelevant showing why the orders are said to be oppressive and irrelevant. An order for discovery is a separate and different thing from a statement of claim.
  6. It is then claimed in the motion to strike out that the plaintiff should be debarred from continuing his claim because it has failed to comply with the defendant’s order for discovery of documents issued on 29 May 2009 against the plaintiff.
  7. I must point out that r.93 of the Supreme Court (Civil Procedure) Rules 1980 provides:

"If any party fails to comply with an order for discovery of documents...the following provisions shall apply:-


(a) If the party failing to comply with the order is a plaintiff the Court may order the action to be dismissed for want of prosecution or stayed until the order is complied with;

(b) If the party failing to comply with the order is a defendant the Court may order that he be debarred from defending the action altogether, or allowed to defend only on such terms as the Court thinks fit.
  1. As it appears from r.93, what the defendant should have done if the plaintiff has failed to comply with its order for discovery of documents is to make application for an order to dismiss the plaintiff’s action for want of prosecution or to stay the plaintiff’s action until there is compliance with discovery. It is not appropriate to seek to debar a plaintiff from continuing with his claim for non-compliance with an order for discovery in a motion to strike out a statement of claim.
  2. In any event, the defendant’s order for discovery of documents is wrongly worded. It provides that the defendant should within 10 days file and delivers to the plaintiff an affidavit stating what documents are or have been in its possession or power relating to the matters in question in these proceedings. In other words the defendant is ordering itself to file and deliver an affidavit of documents to the plaintiff. So what is there for the plaintiff to comply with? It is, therefore, not surprising if the plaintiff has not done anything about the defendant’s order for discovery because there is nothing for him to do. If anyone is required to do anything pursuant to the order for discovery, it is the defendant itself.
  3. As the third step, I will now turn to those parts of the statement of claim which the defendant’s motion seeks to strike out. I will deal with these parts of the statement of claim in the following order.

(a) Implied term that either party to the contract of employment may terminate the contract with reasonable notice


  1. The first question for consideration is whether the Labour and Employment Act 1972, which is the only Samoan employment legislation in the private law area, applies to this case. This is because the Labour and Employment Act 1972 contains provisions which apply to the termination of every contract of service by a "worker" as defined in that Act. It is important to know whether those provisions of the Act apply to the plaintiff’s employment contract. In principle, a term cannot be implied in a contract of service or employment contract if it is inconsistent or in conflict with a statutory provision which applies to the same contract. To do so, would be to contravene the statutory provision.
  2. The term "worker" is defined in s.2 of the Labour and Employment Act 1972 and it expressly provides that it does not include "any managerial personnel". Because the Act applies to a contract of service by a "worker" but the definition of "worker" excludes "any managerial personnel", it follows that the Act does not apply to an employment contract by a managerial personnel.
  3. From 1983 when the plaintiff first started employment with the defendant until 2008 when his employment was terminated, the plaintiff had always held managerial positions in the defendant company. At the time of termination of his employment, the plaintiff was the plant operations and site manager for the defendant. Having regard to the nature of the position held by the plaintiff and the duties and responsibilities that he performed, I conclude that the plaintiff was a managerial personnel at the time his employment was terminated. The Labour and Employment Act 1972 and its termination provisions therefore do not apply to his employment contract.
  4. In Brighouse v National Bank of Samoa Ltd [2004] WSSC 1 which was about a common law action for wrongful dismissal, it was held that the plaintiff who was the manager finance and administration for the defendant bank was a managerial personnel and therefore not a "worker" in terms of the Labour and Employment Act 1972. It followed that the Act and its provisions on termination were held not to apply to the plaintiff’s employment contract. Similarly, in Liki v Samoa Breweries Ltd [2005] WSSC 3 which was concerned with another common law action for wrongful dismissal, it was held that the plaintiff who was personnel manager for the defendant company was a managerial personnel and, therefore, not a "worker" in terms of the Act so that the Act and its termination provisions did not apply to his employment contract.
  5. From the above, it can be said that since the Labour and Employment Act 1972 does not apply to the plaintiff’s contract of employment because he was a managerial personnel, there is no basis by which the termination provisions of the Act can prevent, by reason of inconsistency or conflict, the implication in the plaintiff’s employment contract of a term that either party may terminate the contract with reasonable notice.
  6. Furthermore, a term cannot be implied in a contract of employment if such a term is inconsistent with an express term of the contract. It was said in Brighouse v National Bank of Samoa Ltd [2004] WSSC 1 that:

"[In] principle a term cannot be implied in an employment contract if it is contrary to or inconsistent with an express term. To do so will be tantamount to rewriting the contract for the parties. A term [to be implied] which is in conflict with or undermines a right, obligation, or privilege expressed in a contract will be inconsistent with an express term."


23. The contract of employment in this case is an unwritten one. So there is no risk that the term that either party may terminate the contract with reasonable notice which the plaintiff seeks to imply in his contract of employment will be inconsistent with any express term. It was also not submitted on behalf of the defendant that such a term should not be implied in the employment contract. On the other hand, it was not explained on behalf of the plaintiff what the period for a reasonable notice of termination should be in this case. It is necessary for the plaintiff to do so because if he wants to continue to rely on the implied term about the ability of either party to terminate the employment contract with reasonable notice, then he should specify and explain what the period of that reasonable notice should be. When the period for reasonable notice has been ascertained, then the amount of the total payment to be made in lieu of notice can be assessed.


24. What the defendant is saying in its strike out motion is that given the implied term about the ability of either party to terminate the contract with reasonable notice, the plaintiff is not entitled to claim the damages sought in paragraphs (b) and (e) of the prayer for relief of the statement of claim. The plaintiff should only be entitled to payment in lieu of notice.


  1. Paragraph (b) of the prayer for relief seeks damages in the sum of $117,333.33 for alleged loss of income by the plaintiff from 3 March 2008, the date of termination of the employment contract, to the beginning of July 2009 which is the time the contract might naturally have come up for renewal or been brought to an end. Paragraph (e) seeks damages in the amount of $250 for out of pocket expenses for the plaintiffs personal insurance, payments of which were missed from the date of termination to 1 May (the year is not mentioned).
  2. The traditional common law position on termination of a contract of service or employment contract by an employer can be seen from the following cases. In Ridge v Baldwin [1963] UKHL 2; [1964] AC 40, Lord Reid said at p.65:

"The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service and the master can terminate the contract with his servant at any time, and for any reason or none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract"


  1. What that means is that an employer is liable in damages at common law for wrongful dismissal if he terminates the contract of employment with his employee in a manner not warranted by the contract. Thus, if the contract of employment contains an express or implied term that either party to the contract may only terminate the contract with reasonable notice and the employer terminates the contract without reasonable notice, then the employer can be liable at common law to the employee for wrongful dismissal because the dismissal would be in breach of the contract.
  2. In Stuart v Armourguard Security Ltd [1996] 1 NZLR 484, McGechan J said at p. 491:

"The traditional common law approach in relation to employment terminable by notice recognised the employer could terminate ‘at any time and for any reason or for none’ (Ridge v Baldwin [1963] UKHL 2; [1964] AC 40, 65). However, if he did so ‘in a manner not warranted by the contract’ – e.g., if he did not give notice required by the contract, or dismissed summarily without proper grounds – it was ‘wrongful dismissal’. The employer would be liable for damages.


  1. From the passages cited from Ridge v Baldwin [1963] UKHL 2; [1964] AC 40, 65 and Stuart Armaurguard Security Ltd [1996] 1 NZLR 484, 491, it may be inferred that the normal measure of damages in an action for wrongful dismissal where a contract of employment contains an express or implied term that an employer can terminate the contract with reasonable notice, would be the salary that the employee would have earned had he worked during the notice period.
  2. In the case of Sylvester v British Columbia [1991] 2 SCR 315 cited by counsel for the defendant, Major J, in delivering the judgment of the Supreme Court of Canada, said at para 1:

"Employment involves, among other things, a contract between the employer and employee. An employee who is wrongfully dismissed without reasonable notice of termination is entitled to damages for breach of contract. These damages represent the salary the employee would have earned had the employee worked during the notice period, less any amounts credited to mitigation".


  1. Further on at para 9, Major J stated:

"The appellant did not challenge the finding that the respondent was entitled to damages of $102,100, being the salary he would have earned had he worked during the notice period. This is consistent with the principle that an employee who is wrongfully dismissed without adequate notice of termination is entitled to damages consisting of the salary the employee would have earned had the employee worked during the notice period. The fact that an employee could not have worked during the notice period is irrelevant to the assessment of the damages. They are based on the premise that the employee would have worked during the notice period".


  1. What the plaintiff has done, and which the defendant seeks to strike out, is to plead that the contract of employment contains an implied term that either party to the contract may terminate the contract with reasonable notice and that the defendant terminated the contract with defective notice. He then seeks in paragraph (b) of his prayer for relief damages for loss of income from the date of termination to the beginning of July 2009, the time around which the contract might naturally have come up for removal or been brought to an end. This is not correct and should be amended in view of what has just been said. The correct measure of damages is the salary the employee would have earned during the period of the notice that should have been given by the employer.
  2. As for the claim in paragraph (e) of the prayer for relief for out of pocket expenses in the sum of $520 paid by the plaintiff for his life insurance, it is implied from the pleadings that that sum would have been paid from the plaintiff’s salary had his employment not been terminated. On the submissions by counsel on both sides, I am not satisfied that this part of the prayer for relief should be struck out. But counsel for the plaintiff must satisfy the Court at the substantive hearing to the required standard that he is entitled to this relief.

(b) Implied term that the defendant was not to dismiss the plaintiff without proper cause in a manner likely to cause undue mental distress, anxiety, humiliation, loss of dignity and injury to feelings


  1. One of the implied terms pleaded by the plaintiff in his statement of claim is that the defendant was not to dismiss the plaintiff without proper cause in a manner likely to cause undue mental distress, anxiety, humiliation, loss of dignity and injury to feelings. The plaintiff then further pleads in his statement of claim that the defendant breached the contract of employment by terminating it without proper cause in a manner that caused undue mental distress, anxiety, humiliation, loss of dignity and injury to feelings. He then claims damages of $50,000 for that alleged breach of contract in paragraph (c) of his prayer for relief.
  2. As I have already pointed out, these are plainly pleadings of a common law action for wrongly dismissal. The defendant in its strike out motion claims that as a matter of law, the plaintiff is not entitled to this type of relief. The defendant probably has in mind the English case of Addis v Gramophone Co Ltd [1909] AC 488 (HL).
  3. However, in Brighouse v National Bank of Samoa Ltd [2004] WSSC1, this Court said:

"This part of the case for the plaintiff relies for support on two New Zealand cases cited by his counsel. These are the decisions of the New Zealand High Court in Whelan v Waitaki Meats Ltd [1991] 2 NZLR 74 per Gallen J and Stuart v Armourguard Security Ltd [1996] 1 NZLR 484 per McGechan J. In Whelan Gallen J held that there exists in law an implied term that an employer is under an obligation that he would not without reasonable and proper cause conduct himself in a manner calculated or likely to destroy or seriously damage the reputation of an employee or to cause to the employee undue distress, anxiety, humiliation, loss of dignity or injury to feelings. Such an implied term was accepted in Stuart by McGechan J following Whelan. In both cases, it was held that the implied term applied to the termination of the plaintiff employees’ employment. However, an important factor which distinguishes Whelan and Stuart from this case is that in those two cases, the Court was not concerned with a written employment contract. There was no express contractual provision on termination involved in those cases. In this case, there is a written employment contract which contains express provision on how the contract can be terminated by either party".


  1. In both Whelan and Stuart, the High Court of New Zealand did not follow Addis v Gramophone Co Ltd [1909] AC 488 (HL). So the authorities on the question in issue here are not all consistent.
  2. Thus the question whether damages can be awarded for undue distress, anxiety, humiliation, loss of dignity or injury to feelings which arise from the termination of an employment contract is not black and white as it appears from the defendant’s strike out motion. The question is at least arguable at this stage of the development of Samoan employment law.

(c) Implied term that the defendant was not to dismiss the plaintiff without proper cause in a manner likely to cause loss of professional reputation


  1. Another implied term pleaded by the plaintiff is that the defendant was not to dismiss the plaintiff without proper cause in a manner likely to cause loss of professional reputation. The plaintiff then pleads in his statement of claim that the defendant was in breach of the contract of employment by terminating it without proper cause in a manner that caused loss of professional reputation to the plaintiff. Damages of $20,000 are then claimed in paragraph (d) of the prayer for relief for the alleged breach of the implied term.
  2. The defendant in its strike out claims that as a matter of law, the plaintiff is not entitled to this type relief. For the reasons already given, I am not prepared to strike out paragraph (d) of the plaintiff’s prayer for relief. The issue is at least arguable at this stage of the development of Samoan employment law.
  3. Before leaving this part of my judgment, I wish to give a word of advice to counsel. In an employment case where the plaintiff employee seeks to imply a term in the contract of employment, three questions need to be considered. Firstly, whether as a matter of law the term sought to be implied can be implied in the contract of employment. Secondly, if as a matter of law the term can be implied in the contract, then was there a breach of that term. This is a question of fact. Thirdly, if there was a breach of the implied term, then what damages can or should be claimed. In this connection, mitigation may be relevant as an issue.

(d) Reinstatement


  1. The plaintiff in paragraph (a) of his prayer for relief seeks an order for the defendant to publicly rescind its notice of termination. Effectively, this means the plaintiff should be reinstated. The defendant in its motion seeks to strike out this paragraph on the ground that at common law reinstatement is not normally available to a dismissed employee.
  2. The defendant is clearly right that reinstatement is not a remedy that is normally available in a common law action for wrongful dismissal. As it was stated in Ridge v Baldwin [1964] 40, 65 in a passage from the judgment of Lord Reid already cited in this judgment, a master can terminate a contract of service at any time for any reason or none, and there cannot be specific performance of a contract of service. This established common law principle was reiterated in Ogilvy & Mather (NZ) Ltd v Turner [1994] 1 NZLR 641, 644 where Cooke P said that reinstatement of an employee who has been dismissed is not normally available at common law. That means, an employee who brings an action for wrongful dismissal cannot obtain specific performance to compel the employer to re-employ him. His remedy lies in damages.
  3. Paragraph (a) of the prayer for relief which seeks reinstatement is not maintainable in law and is therefore struck out.

The defendant had cause to terminate the plaintiff’s employment


  1. The last ground of the strike out motion which can be said to relate directly to the statement of claim is that the plaintiff admits in his affidavit dated 3 June 2009 that he failed to obey instructions with regard to the use of expired coca-cola concentrates in December 2007. Thus the defendant says it had cause to terminate the contract of employment.
  2. As pointed out by McGechan J in Stuart v Armourguard Security Ltd [1996] 1 NZLR 484, 491, in a passage already cited in this judgment, it would be wrongful dismissal if an employer terminates a contract of employment in a manner not warranted by the contract, for example, if the employer did not give notice required by the contract or summarily dismissed the employee without proper grounds.
  3. In Liki v Samoa Breweries Ltd [2005] WSSC 3, this Court had this to say about summary dismissal:

"Summary dismissal is a common law remedy in the hands of the employer by which he can instantly dismiss an employee without warning. If the summary dismissal was with just cause then it was justified. If it was without just cause then it was unjustified. A summary dismissal without just cause is a form of wrongful dismissal. It can, therefore, be the basis of a cause of action in a common law action for wrongful dismissal. It is not unfair dismissal. As stated, for example, in The Law of Employment (1997) by Macken, O’Grady and Sappideen 4th edition at p. 294:


"‘Dismissal will be wrongful and in breach of contract where the employee is not given notice of sufficient length to lawfully terminate the contract or has been summarily dismissed for misconduct in circumstances which do not warrant summary dismissal or is constructively dismissed by the employer. Wrongful dismissal will also occur where the employer fails to follow contractual procedures required prior to dismissal’


  1. Further on in Liki v Samoa Breweries Ltd [2005] WSSC 3, this Court said:

"As to the requirements for summary dismissal, counsel for the plaintiff cited two English cases often referred to in this area of employment law. In the first of these cases, namely, Clouston & Co v Cory [1905] UKLawRpAC 66; [1906] AC 122, which was a decision of the Privy Council, Lord James of Hereford stated at p. 129:


"‘Now the sufficiency of the justification depended upon the extent of the misconduct.


"‘There is no fixed rule of law defining the degree of misconduct which will justify dismissal. Of course there may be misconduct in a servant which will not justify the determination of the contract of service by one of the parties to it against the will of the other. On the other hand misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal’


"Later in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 A11 ER 285, Lord Evershed MR stated at pp 287 and 289:


"‘[Since] a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service"


  1. This Court also said in Liki v Samoa Breweries Ltd [2005] WSSC 3:

"The case law also shows that while a single act of minor misconduct may not on its own provide sufficient cause to justify summary dismissal, a series of such acts may provide sufficient cause. On the other hand, a single act of misconduct which is sufficiently serious may justify summary dismissal. It is a question of fact in each case, depending on the nature of the misconduct and the circumstances surrounding its occurrence"


  1. It is, however, to be noted that misconduct is not the only ground for summary dismissal of an employee. Misconduct is the usual ground for summary dismissal but it is not the only one. As pointed out in The Law of Employment (1997) 4th ed by Macken, O’Grady and Sappideen at p. 194:

"Misconduct is the usual (but not exclusive) ground for summary dismissal. Misconduct connotes positive and intentional wrongdoing whereas other grounds for dismissal, such as incompetence and neglect, do not involve intentional misconduct. Wilful refusal to comply with lawful orders has been regarded as establishing an independent ground for dismissal on the basis that misconduct concerns positive actions rather than a refusal to carry out duties. No importance attaches to any distinctions between various types of misconduct as in each instance summary dismissal will only be justified if it is a sufficiently serious breach of contract or such as to indicate that the employee no longer intends to be bound by the contract".


  1. Furthermore, in Laws v London Chronicle ( Indicator Newspapers) Ltd [1959] 2 A11 ER 285 at p. 289, Lord Evershed MR said in relation to summary dismissal:

"[I think] that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions and...therefore...the disobedience must at least have the quality that it is ‘wilful; it does (in other words) connote a deliberate flouting of the essential contractual conditions".


  1. I have to say that the pleadings in the statement of claim do not make any reference to "wrongful dismissal" or even "summary dismissal". What is pleaded is that the defendant had terminated the plaintiff’s employment in breach of certain specified implied terms. That seems to suggest that the action by the plaintiff is one for wrongful dismissal on the basis of breach of implied terms and not on the basis of unjustified summary dismissal.
  2. The defendant in its strike out motion says that because the plaintiff in his affidavit dated 3 June 2009 admits that he failed to obey instructions with regards to the use of expired coca cola concentrates in December 2009, the defendant, therefore, had cause to terminate his employment and there is no basis for the plaintiff’s claim. It seems from what the defendant is saying that the plaintiff was summarily dismissed and that the summary dismissal was justified as there was just cause for it. The plaintiff’s action for wrongful dismissal based on alleged breaches of implied terms in the employment should therefore be struck out.
  3. It must be said here that if disobedience, rather than "misconduct", was the ground for the dismissal of the defendant, then it is not every disobedience that will justify the summary dismissal of an employee. As it was said by Lord Evershed MR in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 A11 ER 285, 289, "one act of disobedience can justify dismissal only if it is of a nature which goes to show that the servant is repudiating the contract or one of its essential conditions". The disobedience must at least be ‘wilful’. It should connote a deliberate flouting of the essential contractual conditions". This is a question of fact and the strike out motion should have sufficiently demonstrated that the criteria set out in Laws v London Chronicles (Indicator Newspapers) Ltd have been met. The Court’s strike out jurisdiction is to be sparingly exercised.
  4. The other question which arises from this part of the defendant’s strike out motion and the plaintiff’s pleadings in his statement of claim is whether the claim based on the alleged breaches of implied terms can be struck out if the summary dismissal of the defendant was justified on the ground there was sufficient cause for it. This question is not addressed in the strike out motion or the submissions of counsel on either side.
  5. Furthermore, if, as alleged on behalf of the plaintiff there is an implied term in the employment contract that either party was able to terminate the contract with reasonable notice, would the defendant be legally entitled to summarily dismiss the defendant for sufficient cause without having to make any payment in lieu of notice. This question is implicit from the defendant’s motion which seeks to strike out the statement of claim on the ground that the plaintiff’s admitted disobedience provided cause for his dismissal.

The plaintiff’s motion to force full compliance by the defendant with the orders for discovery issued on 3 April 2009 and 24 April 2009.


57. I find this motion by the plaintiff for an order to force full compliance by the defendant with his orders for discovery rather novel. No authority that is directly relevant was cited in support of this motion.


58. The practice, as far as I am aware, when a defendant does not comply with an order for discovery of documents issued by a plaintiff is to make application to the Court under r. 93 (b) of the Supreme Court (Civil Procedure) Rules 1980 which has already been cited. Rule 93 (b) provides:


"If any party fails to comply with an order for discovery of documents the following provisions shall apply:-


"(a) ...


(b) If the party failing to comply with the order is a defendant the Court may order that he be debarred from defending the action altogether; or allowed to defend only on such terms as the Court thinks fit".


59. Thus the plaintiff’s motion for an order to force full compliance by the defendant with the plaintiff’s orders for discovery is not in accordance with the terms of r 93. It is therefore dismissed.


The plaintiff’s motion to strike out the affidavit dated 11 June 2009 of Ms. Rebecca Wendt who is one of the counsel for the defendant


  1. I will go through each ground of the plaintiff’s motion to strike out the affidavit dated 11 June 2009 of Ms. Rebecca Wendt. The first ground is that the affidavit of Ms. Wendt is not in support of any motion before the Court. This is not a ground for striking out an affidavit. Many affidavits are accepted in Court proceedings for purposes other than to support a motion.
  2. The second ground is that the assertions in paragraphs 6 and 13 of Ms Wendt’s affidavit are factually incorrect and contradict paragraph 16. It is not clear, and there is no explanation, why it is claimed that paragraphs 6 and 13 are factually incorrect. Paragraph 6 is an assertion that refers specifically to a query raised in Ms Wendt’s letter dated 28 May 2009 to the plaintiff’s solicitors to which Ms Wendt deposes she has received no response or clarification from the plaintiff. In paragraph 13 of her affidavit, Ms Wendt deposes that they have not received a response to their request for better and further particulars dated 21 May 2009 in relation to paragraph 11 of the statement of claim. Such response would have greatly assisted with discovery of documents to the plaintiff as it would help to identify relevant documents.
  3. Paragraph 16 of Ms Wendt’s affidavit which the plaintiff says is contradicted by paragraphs 6 and 16, states that in a letter of 26 May 2009 from counsel for the plaintiff, it is stated therein with reference to paragraph 11 of the statement of claim that the "marketing and operational policies are definitely of relevance because our client says that those policies were at odds with him relieving his performance targets". Ms Wendt further states in paragraph 16 that the plaintiff should know what those policies are he was referring to and he should be able to inform the defendant so that the defendant can respond. In other words, Ms Wendt was in effect saying that the response from the plaintiff’s counsel was without sufficient particularity or specificity so that the plaintiff was not providing the type of particulars the defendant had requested. In my view there is no real contradiction between paragraphs 6 and 13 and paragraph 16.
  4. The third ground of the plaintiff’s strike out motion refers to paragraph 7 of Ms Wendt’s affidavit. It says Ms Wendt is not authorised to represent the plaintiff’s position and such an assertion contradicts paragraphs 1 and 2 of her affidavit. Having perused paragraphs 1, 2 and 7 of Ms Wendt’s affidavit, I find no substance in this ground of the plaintiff’s strike out motion. It was open to Ms Wendt to make the comments she makes in paragraph 7 which are critical of the plaintiff and his solicitor. Whether the criticisms are in fact justified is another matter.
  5. The fourth ground of the plaintiff’s strike out motion relates to paragraph 10 of Ms Wendt’s affidavit. It says that paragraph 10 directly contradicts correspondence of 21 May 2009 from the defendant’s counsel. It is not explained how paragraph 10 contradicts such correspondence. I am not prepared to speculate on the matter without proof explanation from counsel for the plaintiff.
  6. It is further claimed under the fourth ground of the plaintiff’s strike out motion that it is procedurally incorrect to make applications by way of affidavit. The plaintiff is on solid ground here and the application made in paragraph 10 of the affidavit to withhold production of a certain document from inspection by the plaintiff on the ground of confidentiality should have been made separately in proper form. This part of paragraph 10 wherein Ms Wendt applies to withhold production of a certain document from inspection by the defendant is not appropriate. A separate application in proper form to withhold production of a particular document from inspection by the plaintiff on the ground of confidentiality should be made if the defendant still wants to make such an application.
  7. The fifth ground of the plaintiff’s strike out motion relates to paragraph 11 of Ms Wendt’s affidavit which states that the plaintiff has not complied with the defendant’s order for discovery dated 21 May 2009. The plaintiff says that he has complied with that order so far as it requires him to do anything. There is nothing here to justify striking out. It is the word of Ms Wendt against the word of the plaintiff and his counsel. However, I have already pointed out in this judgment that the defendant’s order for discovery dated 21 May 2009 is defective because it orders the defendant, not the plaintiff, to make discovery.
  8. The sixth ground of the plaintiff’s strike out motion relates to paragraph 14 of Ms Wendt’s affidavit. It says that paragraph 14 incorrectly references the plaintiff’s statement of claim. It is not explained how that has happened. I have looked at paragraph 14 of the affidavit and I see no basis in this ground to justify the drastic step of striking out. The Court’s jurisdiction to strike out is to be sparingly exercised and a party who invokes that jurisdiction must demonstrate that the jurisdiction must be exercised in his favour.
  9. Before leaving this part of my judgment, I wish to comment on the Court’s jurisdiction to strike out an affidavit filed in Court proceedings. The Court has inherent jurisdiction to strike out an affidavit upon application by a party. The basic test for determining whether an affidavit should be struck out is that of relevance. If the affidavit is relevant it will not be struck out. But if it is irrelevant, it can be struck out. Likewise, if an affidavit contains relevant and irrelevant portions, the relevant portions will remain but the irrelevant portions can be struck out. There is no provision under the Supreme Court (Civil Procedure) Rules 1980 which gives the Court jurisdiction to strike out an affidavit. The strike out jurisdiction is inherent.
  10. The English case which is regularly cited with approval in this area of the law is Rossage v Rossage [1960] 1 A11 ER 600 where Hodson LJ said at p. 602:

"It is quite clear that we cannot strike out matters in a pleading or affidavit simply because they are scandalous, because scandalous matters may be relevant and may be the very matters which have to be investigated by the Court. If however the matters are plainly irrelevant as they are here, there is no doubt that the Court can strike them out either by virtue of the inherent power or by virtue of the power contained in the rules of the Supreme Court, order 38, rule 11".


  1. The above passage has given rise to the distinction between matters in a pleading or affidavit which are scandalous but relevant and will not be struck out, and matters which are scandalous and irrelevant and can be struck out.
  2. The plaintiff’s motion to strike out Ms Wendt’s affidavit was not presented on the basis of relevance or otherwise. So I did not really have to direct my mind to the question of relevance. Upon reflection, however, it may be said that the application made through paragraph 10 of the said affidavit is irrelevant because such an application should not have been made through the affidavit. The usual purpose of an affidavit is for the deponent to depose to matters of fact and not for the deponent to make applications.

Conclusions


  1. From the foregoing discussion, these are the conclusions that I have reached:
  2. After careful consideration of the outcome of the motion to strike out the statement of claim, I have decided to grant leave to the plaintiff to file and serve an amended statement of claim within 14 days on the condition that he first pays costs of $500 to the defendant. I reserve costs on the other two motions to be costs in the cause.
  3. This case is to be re-mentioned on 14 September 2009.

CHIEF JUSTICE


Solicitors
Schuster’s Law Firm for plaintiff
Kruse Enari & Barlow Law Firm

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