Joe W Naguwean v The Independent State of Papua New Guinea [1992] PNGLR 367

• Jurisdiction: Papua New Guinea
• Judge: Brown J
• Judgment Date: 15 May 1992
• Court: National Court
• Citation: [1992] PNGLR 367
• Year: 1992
• Judgement Number: N1060

Full Title: Joe W Naguwean v The Independent State of Papua New Guinea [1992] PNGLR 367

National Court: Brown J

Judgment Delivered: 15 May 1992

N1060

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JOE NAGUWEAN

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Brown J

4 May 1992

15 May 1992

CONTRACT — Employment — Employee never having embarked upon the work — Employer's action in re-appointing giving rise to claim for breach.

MASTER AND SERVANT — Breach of contract of employment — Measure of damages.

DAMAGES — Normal damages — Ascertainment when contract breached in futuro — Working life not proper basis — Assessment related to period of probation when employer bound to remunerate employee — Special damages need to strictly proved — In absence of clear agreement, no entitlement in plaintiff to extraordinary amount for relatively common place work done at own instigation without reference to his principal — Award for distress, frustration and or disappointment.

PRACTICE AND PROCEDURE — Interrogatories — Duty of the Court to determine whether answers sufficient — Just cause in seeking to strike defence out must be shown.

Facts

In early April 1989, the plaintiff saw an advertisement for the position of Principal Clerk of Committees, National Parliament. He applied in writing on 4 April 1989 and, after two interviews, was advised by letter on 8 September 1989 that he was successful and asked to confirm acceptance and a date of commencement in early 1990. On 24 September, the plaintiff wrote seeking details of the terms and conditions of employment before formally accepting the position. A reply was sent by the Clerk of Parliament on 21 November 1989. The letter concluded with the expectation that the plaintiff would commence late in January 1990.

As a result of the plaintiff's wish to obtain better terms and conditions, he delayed taking up the appointment, and the position was filled by someone else. He issued a writ against the State claiming damages for breach of contract.

A defence was filed by the State, admitting the offer of employment, but denying an agreement, based on the refusal of the plaintiff to embark on the employment. That defence was subsequently struck out following the failure of the defendant to satisfactorily answer interrogatories administered by the plaintiff. The defendant did not appeal from that order but defended the action on the question of proper assessment for ordinary and claimed special damages.

Held

1. A contract for personal services is not specifically enforceable at the suit of either party; relief lies in a claim for damages.

2. Where the terms of employment include a probationary period, the employment could be annulled. This, therefore, provides a basis for calculation of appropriate damages related to the probationary period.

3. The plaintiff's entitlement is the difference between his salary in his present employment and that which he would have got in his new employment, had he taken it up, but only for the probationary period.

4. In a breach of contract for personal services, a sum might be allowed for frustration, distress and/or disappointment.

Cases Cited

Papua New Guinea cases cited

Harding v Teperoi Timbers Pty Ltd [1988] PNGLR 128.

Mark v Western Highlands Provincial Government (1990 unpublished) N929.

Rooney v Forest Industries Council [1990] PNGLR 407.

Other cases cited

Brace v Calder [1895] 2 QB 253.

Lyell v Kennedy (1884) 27 Ch D 1.

Salt v Power Plant Co [1936] 3 All ER 322.

Counsel

M Murray, for the plaintiff.

J Baker, for the State.

15 May 1992

BROWN J: The plaintiff, who is a library officer at the University of Papua New Guinea, claims an assessment of damages for breach of an alleged contract of employment. In a usual case, damages will be the equivalent of wages for the period of proper notice, but here the employer, in fact, had filled the position sought by the plaintiff before he had taken up his appointment. He had applied for a position as Principal Clerk of Committees, National Parliament. He obtained interlocutory judgment in circumstances which require comment, but, nevertheless, the Solicitor General, Mr Baker, conceded liability and argued the claim on a proper assessment of damages.

FACTS ON INTERLOCUTORY JUDGMENT

The defendant sought and obtained an order for interrogatories. These interrogatories were answered on 26 August 1991. On 11 October 1991 the plaintiff obtained orders in terms of its notice of motion requiring further answer to various interrogatories which the State had originally answered by the phrase "not necessary to answer".

It should be stated that a defence had been filed on 8 May 1991. In the defence, the defendant traversed the paragraphs of the statement of claim by way of general denial (as permitted by the Rules). The defendant specifically admitted, however, at para 3, "that an offer or invitation to treat was made to the plaintiff on the 8 September 1989 for the position of a Principal Clerk of Committees in the Parliamentary Services of the National Parliament". The defendant, having denied the plaintiff's allegation of an agreement in the statement of claim, further pleaded non-acceptance of the said offer by the plaintiff; the defendant withdrew the offer on 10 January 1991.

The plaintiff joined issue with the defendant by its reply filed on 24 May 1992. Thereupon the pleadings closed. Strictly, there is no need to file a reply in these circumstances, for joinder of issue is to be implied, so that by the Rules the plaintiff, without anything further, is deemed to have denied the allegation of fact made by the defendant where it alleges non-acceptance of the offer.

Later on, the defendant failed to comply with the Court order that it answer those interrogatories left by the defendant. There was no appearance of the defendant on that occasion. On 5 November 1991, this Court on motion struck out the defence and entered judgment restricted to the question of liability because of such failure. Whilst notice of the plaintiff's motion was given to the State, there was no appearance by the State when the motion was moved. So that on both the application to force answers, and on failure to comply, and the application to strike out its defence, the State failed to appear. That is a stinging reflection on the administration of the State lawyers' office, now the Solicitor General. I hope it does not happen again.

There is power in the Court to strike out a defence and, thus, order that judgment be signed, where default is made in answering interrogatories. In this case without the benefit of proper argument, with respect to my brother Judge, it appears no proper consideration in the interlocutory applications has been given to the circumstances in which answers to interrogatories would be regarded as insufficient. The fact that there has been no appearance and, consequently, no argument by the defendant on the question of sufficiency does not excuse the Court from a proper consideration of the particular interrogatories sought to be answered. Secondly, if it should be shown that answers are insufficient, then consideration will need be had to the effect on the applicant's case. But to strike out a defence is a most serious course to adopt when, for instance on hearing, the party in default can be penalised by a cost order if the applicant can show that his case has been unduly prolonged by the respondent's attitude. Te respondent/defaulter may also be prevented, on hearing, from bringing evidence which would be vexatious or oppressive having regard to his attitude in his answers to interrogatories.

In this case, for instance, it can be seen that the defendant has conceded in its pleadings that the plaintiff had the job if he would but accept, which the State said he failed to do.

In the interrogatories at Q.15, the defendant was asked, "Did the defendant make a selection for the position. If yes, who was selected and when was the selection made?"

Answer: "Mr Joe Naguwean was selected early in September and was offered the position in a letter forwarded to him by the Clerk on 8 September 1989. In that letter he was asked to advise his acceptance in writing and the date he proposed to commence duty".

Now a number of interrogatories that preceded Q.15 related to matters that were of insignificance once that answer was given, bearing in mind the admission in the defence. The answers given those earlier questions were (obviously) "not necessary to answer." Later, Q.19 asked, "Did the plaintiff hold any discussions and meetings with the defendant including its servants or agents between September 1989 and January 1991. If yes what were the nature of these discussions and meetings?" Answer: "Not necessary to answer, plaintiff already aware of these matters". It is clearly a matter for evidence, and not a proper interrogatory. It is necessary to look to the particular interrogatory and its effect on the plaintiff's case before finding such a drastic step to strike out the defence is warranted. I would suggest only in circumstances where such defence has been shown to be frivolous or vexatious, or entirely without merit, should the...