Nahau Rooney v Forest Industries Council of Papua New Guinea and Aaron Nawason [1990] PNGLR 407

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: [1990] PNGLR 407
• Date: 26 October 1990
• Year: 1990

Full Title: Nahau Rooney v Forest Industries Council of Papua New Guinea and Aaron Nawason [1990] PNGLR 407

National Court: Woods J

Judgment Delivered: 26 October 1990

1 Damages—contract—wrongful termination from employment—relevance of Employment Act—whether Salaries and Conditions Monitoring Committee Act (Ch384) can be applied when not pleaded—effect of liability of taxation on quantum of damages

2 EMPLOYMENT LAW—Contract of employment—Wrongful dismissal—Damages for—Assessment of—Relevance of statutory provisions where not pleaded—Effect of liability for taxation—Salaries and Conditions Monitoring Committee Act (Ch384)—Income Tax (Salary or Wages Tax) (Rates) Act 1979, s1.

3 DAMAGES—Contract—Breach of—Employment contract—Assessment—General principles—Relevance of statutory provisions where not pleaded—Effect of liability for taxation—Salaries and Conditions Monitoring Committee Act (Ch384)—Income Tax (Salary or Wages Tax) (Rates) Act 1979, s1.

4 Atlas Tiles Ltd v Briers (1978) 144 CLR 202, British Transport Commission v Gourley [1956] AC 185, Kerr v MVIT [1979] PNGLR 251 and Pupu v Tomilate [1979] PNGLR 108 referred to

On an assessment of damages for wrongful termination of an employment contract,

Held:

(1) For the purposes of assessing damages for wrongful dismissal from employment, the provisions of the Salaries and Conditions Monitoring Committee Act (Ch384) are irrelevant unless pleaded on the substantive issues.

(2) The measure of damages was the amount which the employee would have earned under the employment contract and the value of other benefits thereunder for the period from unlawful termination to the time when the employer could lawfully have terminated, less the amount reasonably expected to be earned in other employment.

(3) Because the Income Tax (Salary or Wages Tax) (Rates) Act 1979, s1, has specifically provided for payment of tax at the rate of 2 per cent on the payment of a lump sum following termination of employment, the income tax which the employee might have to pay is irrelevant to the assessment of damages for wrongful dismissal.

Atlas Tiles Ltd v Briers (1978) 144 CLR 202 at 212, adopted and applied.

Pupu v Tomilate [1979] PNGLR 108, distinguished.

Assessment of Damages

This was a hearing relating to the assessment of damages for wrongful dismissal under a contract of employment.

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Woods J: The trial of this matter on the question of liability was held in March 1989. The decision then went on appeal to the Supreme Court. In December 1989, the Supreme Court dismissed the appeal. The matter has now come back to me for the assessment of the damages for the wrongful dismissal.

As a preliminary point it was submitted by the defendant that the Salaries and Conditions Monitoring Committee Act (Ch384) must be applied for the purpose of assessment of damages.

However, I ruled that whilst the Act is a law in force, in the running of a civil claim, it being an Act that could materially affect the plaintiff's case, the issues it raises must be specifically pleaded to show that the plaintiff's case is or aspects of the plaintiff's case are not maintainable.

The defendant failed to plead the issue and I have already ruled accordingly in the original hearing and this ruling still applies and as the ruling was not taken on the appeal that ruling is still relevant at this stage.

I now add further that it is not open to now amend pleadings further and admit the Act for the purpose of assessment of damages as it would presumably create inconsistencies; in relying on the evidence governing an agreement that it is alleged may be void, if the matter had been raised originally and whether the Act does apply even at this stage would still have to be a matter of evidence, evidence which would have been relevant and should have been given at the original hearing. Perhaps these were the documents sought to be...