Peter Aigilo v Prime Minister, Sir Mekere Morauta and Members of His Cabinet Constituting The National Executive Council, The Independent State of Papua New Guinea and John Wakon (2001) N2102

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 09 August 2001
• Court: National Court
• Citation: (2001) N2102
• Year: 2001
• Judgement Number: N2102

Full Title: Peter Aigilo v Prime Minister, Sir Mekere Morauta and Members of His Cabinet Constituting The National Executive Council, The Independent State of Papua New Guinea and John Wakon (2001) N2102

National Court: Kandakasi J

Judgment Delivered: 9 August 2001

N2102

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO: 411 of 1999

BETWEEN:

PETER AIGILO

Plaintiff

PRIME MINISTER, SIR MEKERE MORAUTA

AND MEMBERS OF HIS CABINET CONSTITUTING

THE NATIONAL EXECUTIVE COUNCIL

First Defendant

AND:

THE INDEPENDENT STATE

OF PAPUA NEW GUINEA

Second Defendant

JOHN WAKON

Third Defendant

Waigani: KANDAKASI J.

2001: 20th June

9th August

STATE SERVICES — Termination of Police Commissioner and Secretary of Department of Police appointed under the Constitution and under a written contract of employment — Termination not in accordance with contract and constitutional procedure for termination and without provision of reasons for — Termination not "in the best interest of Papua New Guinea" — Termination unlawful and harsh and oppressive — Plaintiff entitled to recover damages and entitlements for balance of contract period — Constitution s.193 (1)(e) and (3) and sch.1.10 (4) — Police Act 1998 s. 9

STATE LIABILITY- State only vicariously liable if its servants or agents including the National Executive Council acted "in the best interest of Papua New Guinea" — Persons not acting "in the best interest of Papua New Guinea" become personally liable as that amounts to a frolic and detour of their own — The onus to demonstrate acting "in the best interest of Papua New Guinea" is on person responsible for the conduct in question.

CONTRACT — Termination of employment contract not in accordance with contract — Breach of contract — Plaintiff entitled to damages and entitlements under the contract for balance of contractual term.

DAMAGES — Assessment of damages — Entitlements for balance of contractual term — Damages reasonably foreseeable namely damages for distress, frustration and humiliation and interest accruing on bank loan dependent on contract of employment.

EVIDENCE — Failure to object to evidence or call evidence in rebuttal and cross-examine amounts to acceptance of evidence and claim based on such evidence.

WORDS & PHRASES — "In the best interest of Papua New Guinea" — Means for the benefit of Papua new Guinea — Factors that may amount to considered and set out — Failure to act "in the best interest of Papua New Guinea" renders the person responsible to personal liability — State may be vicariously liable and where it pays it has right of automatic recovery against responsible person unless that person has already paid or is able to demonstrate acting "in the best interest of Papua New Guinea".

Papua New Guinea Cases

Curtain Bros (Qld) Pty Ltd & Kinhill Kramer Pty Ltd v. The State [1993] PNGLR 285 at 294.

Tau Liu v. Aderson Agiru & Ors N1639 (a judgement delivered by Sheehan J on 21st October 1997).

Lima Dataona -v- Moses Makis & The State N1797 (Unreported and unnumbered judgment of 17th December 1998)

Leo Nuia v. The State N 1986 (Unreported but numbered judgement delivered on 29th August 2000).

RG -v- MG [1984] PNGLR 413

WP -v- DP [1982] PNGLR 1

Bean -v- Bean [1980] PNGLR 307, Kapi, J. (as he then was) said at 320:

Pike Dambe v. Augustine Peri and The State [1993] PNGLR 4,

Bogil Guma v. The Sate & Ors N262

Dalin More v. The State & Ors N1736.

Kolta Development Pty Ltd & Great Happiness Seafood Pty Ltd v. PNG defence Force and The State N1470

Rooney -v- Forests Industries Council [1990] PNGLR 407

Moses Luluaki -v- Madang Urban Local Level Government & Steven Amenasik (Unreported and Unnumbered Judgment of Justice Sawong of 8th December 2000)

Jeff Tole -v- PNGBC (Unreported and Unnumbered Judgment of Justice Sevua of 14th March 2000)

Dia Kopio -v- Employment Authority of Enga Provincial Government & Enga Provincial and Local-level Governments (17th May 1999 Unreported Judgment) N1865.

Hodson v. The State [1985] PNGLR 303

Peter Na-al -v- Michael Debege N1958

Abel Tomba -v- The State SC518

Alex Latham v. Henry Peni and Kathleen Marie Latham v. Henry Peni N1463, Justice Doherty

Benny Balep v. The Commissioner of Police & The State (4/11/94) N1374. Sevua J.

Gulf Provincial Government -v- Baimuru Trading Pty Ltd (10/12/98) N1794.

Pomb Pullie Polye -v- Jimson Saku Pepaki & Anor (31/05/00) SC637.

Other Cases

Rederiaktcebolaget "Amphitrite" v. The King [1921] 3KB 500

Commissioner of Crown Lands. Page [1960] 2QB 274

Ansett Transport Industries (operations) Pty Ltd v. Commonwealth (1977) 139 CLR 54 at 74 by Mason J

Manock v. South Australia (1979) 83 LSJS 64 at 74 (Lelling J) and Selway 1B

Northern Territory v. Skywest Pty Ltd (1988) 48 NTR 20 at per Kearney J at p.47

New South Wales v. Bardolph (1934) 52 CLR 453 at 463 per Watt J.

Doyle v. Olby (Ironmongers) Ltd [1969] Q. B. 158

Counsels

Mr. M. Murray & C. Makail for the Plaintiff

Mr. G. Garo with Mr. J. Palek (observing) for the Defendants

Reasons for Judgement (No. 2)

9th August 2001

KANDAKASI J: The plaintiff is suing the defendants for damages for unlawful termination by the first defendant (NEC) of his employment contract with the second defendant (the State) as its Police Commissioner and Secretary of the Department of Police (the contract) and replace him with the third defendant. Initially, Mr. Aigilo filed for judicial review of the decision leading to his termination. But later, he chose to claim damages instead as the third defendant was already appointed to the position he previously occupied.

Parties Positions

The plaintiff claims his termination was unlawful because he was given no notice of an intention to terminate the contract and in any case he was not served with a termination letter or notice setting out the grounds for his termination. Also he claims that his termination was not in accordance with the usual procedure for the termination of public officers like himself under the Constitution and was in a manner that was harsh and oppressive. He therefore, claims he is entitled to a full pay out of the balance of his contract and other damages for breach of contract.

The defendants deny the plaintiff's claim and claim that the contract was lawfully terminated "in the interest of Papua New Guinea" . Hence, they claim that the plaintiff is not entitled to any damages. Further or in the alternative, they argue that, the plaintiff was paid all that he was entitled to on termination by a payment of K62, 496.86. They therefore argue that, there is nothing due and owing to the plaintiff.

The main issues for determination therefore are these:

1. Whether the defendants were entitled to terminate the contract of employment between the plaintiff and the State without notice and without serving a termination notice setting out the grounds of termination having regard to :

(a) the terms of the contract; and

(b) the correct procedure for termination of employment of public officers such as the plaintiff under the Constitution.

2. If the termination of the contract was unlawful, is the plaintiff entitled to a full pay out of the balance of his contractual term and damages or losses suffered as a consequence of the unlawful termination of his contract?

Evidence

The Plaintiff's evidence comprise of his own oral evidence and affidavits, exhibits "A", "B", "C" and "K" and a number of correspondence and minutes, exhibits "D", "E", "F", "G", "H" and "I". Also admitted into evidence for the plaintiff was his assessment of damages, exhibit "J". All of these evidence was admitted into evidence without any objection from the defendants. The only exception to that were objections to a number of paragraphs including paragraph 12 of the plaintiff's affidavit sworn on 3rd of August 1999 on the basis of irrelevance, expression of opinions and statements of law. With the exception of paragraph 12, I overrule the objections.

Facts

From this evidence, the facts are quite straightforward. There is no dispute between the parties that, the plaintiff was appointed Commissioner of Police and Secretary of the Department of Police for a period four years commencing 8th October 1997 and ending 8th October 2001. He was appointed in due consultation with the Public Service Commission and in compliance of the procedures under the Constitution with a gazettal notice of 8th October 1997 as Police Commissioner by the Head of State, acting with, and in accordance with the advice of the NEC. A Standard...