Joseph Kupo v The Independent State of Papua New Guinea (2011) N4285

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J.
• Judgment Date: 05 January 2011
• Court: National Court
• Docket Number: WS 1634 of 2002
• Citation: (2011) N4285
• Year: 2011
• Judgement Number: N4285

Full Title: WS 1634 of 2002; Joseph Kupo v The Independent State of Papua New Guinea (2011) N4285

National Court: Hartshorn J.

Judgment Delivered: 5 January 2011

N4285

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 1634 OF 2002

BETWEEN:

JOSEPH KUPO

Plaintiff

AND:

THE INDEPENDENT STATE OF

PAPUA NEW GUINEA

Defendant

Waigani: Hartshorn J.

2010: 9th June,

2011: 5th January

DAMAGES - Assessment of damages – Wrongful termination of employment – part payment under Deed of Release - Liability not in issue

Facts:

The Plaintiff’s employment as Commissioner of Police was terminated in September 2002. He commenced this proceeding against the defendant seeking damages for wrongful termination of employment. A Deed of Release and Settlement (Deed) was entered into between the parties as to the plaintiff's claim for entitlements under his contract of employment and general damages but not for exemplary damages. The plaintiff was only paid part of the agreed settlement. He then amended his Statement of Claim to seek from the defendant the balance owing under the Deed, the entitlements allegedly due under the contract and the Police Act and exemplary damages. Default judgment was entered for the plaintiff with damages to be assessed. This is now the decision on assessment of damages.

Held:

(1) Judgment is ordered for the plaintiff against the defendant in the sum of K1,890,176. 39.

(2) The defendant shall pay interest at the rate of 8% per annum on K1,890,176. 39 or on the balance remaining, from 19th October 2006 until payment in full,

(3) The defendant shall pay the plaintiff's costs of and incidental to the proceeding to be taxed if not agreed.

Cases cited:

William Mel v. Coleman Pakalia & Ors (2005) SC790

PNG Aviation Services Pty Ltd v. G. Karri (2009) SC1002

Counsel:

Mr. J. Haiara and Mr. D. Levy, for the Plaintiff

5th January, 2011

1. HARTSHORN J: The plaintiff was the Commissioner of Police. His employment was terminated in September 2002. The plaintiff commenced this proceeding against the defendant seeking damages for wrongful termination of employment. A Deed of Release and Settlement (Deed) was entered into between the parties as to the plaintiff's claim for entitlements under his contract of employment and general damages but not for exemplary damages. The plaintiff was only paid part of the agreed settlement.

2. The plaintiff then amended his statement of claim to seek from the defendant:

a) the balance owing under the Deed,

b) entitlements allegedly due under the contract and the Police Act and

c) exemplary damages.

3. Default judgment was entered for the plaintiff with damages to be assessed. Consequently the hearing before me was for an assessment of damages. Counsel for the plaintiff relied upon affidavits and filed written submissions. There was no appearance on behalf of the defendant. As I was satisfied that the lawyers for the defendant were aware and had been given notice of the hearing, I allowed the hearing to proceed in the absence of representation on behalf of the defendant.

Assessment of damages – law

4. The Supreme Court in William Mel v. Coleman Pakalia & Ors (2005) SC790 stated:

“The principles that apply to a trial on assessment of damages following entry of default judgment were summarised by Kandakasi J. in Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002), National Court, N2182.

His Honour stated:

A survey of the authorities on assessment of damages after entry of judgment on liability mainly in default of a defendant’s defence, clearly show the following:

1. The judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim.

2. Any matter that has not been pleaded that is introduced at the trial is a matter on which the defendant can take an issue on liability.

3. In the case of a claim for damages for breach of contract as in this case, such a judgment confirms there being a breach as alleged and leaves only the question of what damages necessarily flow from the breach.

4. The plaintiff in such a case has the burden to produce admissible and credible evidence of his alleged damages and if the Court is satisfied on the balance of probabilities that the damages have been incurred, awards can be made for the proven damages.

5. A plaintiff in such a case is only entitled to lead evidence and recover such damages as may be pleaded and asked for in his statement of claim.

The Supreme Court adopted and applied those principles in Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694, Amet CJ, Sheehan J, Kandakasi J.

Kandakasi J. applied those principles recently in the National Court in Desmond Huaimbukie v James Baugen (2004) N2589. We believe His Honour succinctly and correctly stated the law. We elaborate on the first principle by saying that once default judgment is entered, the facts as pleaded and their legal consequences in terms of establishing the cause of action as pleaded must be regarded as proven. (See Keith Reid v Murray Hallam and Allcad Pty Ltd (1995) N1337, National Court, Kapi DCJ and Andale More and Manis Andale v Henry Tokam and The State (1997) N1645, National Court, Injia J.)….....................

Turning back to the issue raised above as to the role of the trial judge after entry of default judgment, we consider the following to be the correct approach:

the trial judge should make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity;

if it is reasonably clear what the facts and cause of action are, liability should be regarded as proven; only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability.”

The claim

5. From a perusal of the further amended statement of claim it appears that the facts are pleaded sufficiently clearly for the causes of action to be determined as being for wrongful termination of employment and for breach of the Deed.

Damages

6. I now must determine whether the plaintiff has sufficiently proved the damages he claims.

Deed

7. It is pleaded that pursuant to the Deed, the defendant agreed to pay K2,676,687.71 in the settlement of the plaintiff’s contractual claim referred to in Part E(1) of the Deed and that the defendant only paid K 736,511.32 to the plaintiff.

8. The evidence in this regard is that of the plaintiff in his affidavit of 6th April 2008 in which he deposes to receiving only K 786,511.32 from the defendant, not K 736,511.32. Copies of the Deed are annexed to 2 affidavits of the plaintiff.

9. The Deed is purportedly signed by the Solicitor General and the plaintiff. Given the pleadings and the state of the evidence, there being a lack of both on behalf of the State, I am satisfied that the plaintiff has properly proved his entitlement to the sum of K1,890,176.39 being the balance owed to him under the Deed.

Contract and Police Act entitlements

10. The plaintiff claims damages for loss of accrued entitlements for 28 years service calculated in accordance with clauses of his employment contract and provisions of the Police Act. He submits that he is entitled to so claim as clause 1 of the Deed expressly states that the Deed was in respect of the plaintiff’s contract entitlement only and does not include his entitlements for 28 years service preserved by clause 1.5 of the contract and s. 11 of the Police Act.

11. Clause 1 of the Deed however, is not as submitted. Clause 1 states that the plaintiff “….shall discontinue his claim for the relief of Contract Entitlements stated in paragraph E(1) of the Deed in the proceeding W. S. No. 1364 (sic) of 2002.”

12. Clauses 2, 3, 4 and 5 of the Deed then purport to set out the further terms of the agreement between the plaintiff and the defendant. I state at this juncture that the drafting of the Deed leaves much to be desired.

13. The relevant parts include:

a) in clause 2 that, “The Defendant shall pay the Plaintiff…..in full and final settlement of all matters, allegation, claims, demands, causes of action, sums of money and any other liability arising out of, in respect of or relating to the Writ of Summons in the first cause of action pleaded regarding Contract Entitlements,…..”

b) in clause 3 that, “The Plaintiff shall accept …… in...