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
• Court: National Court
• Citation: (2001) N2102
• Date: 09 August 2001
• Year: 2001

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

1 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 s193(1)(e) and (3) and Sch1.10(4)—Police Act 1998 s9

2 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.

3 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.

4 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.

5 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.

6 WORDS AND 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".

7 Curtain Brothers (Queensland) Pty Ltd and Kinhill Kramer Pty Ltd v The Independent State of Papua New Guinea (1993] PNGLR 285, Tau Liu v Anderson Agiru (1997] PNGLR 312, Lima Dataona v Moses Makis (1998] PNGLR 123, Leo Nuia v The Independent State of Papua New Guinea (2000) N1986, RG v MG (1984] PNGLR 413, WP v DP (1982] PNGLR 1, Bean v Bean (1980] PNGLR 307, Pike Dambe v Augustine Peri and The Independent State of Papua New Guinea (1993] PNGLR 4, Bogil Guma v The Independent State of Papua New Guinea (1980) N262, Dalin More v The Independent State of Papua New Guinea (1998] PNGLR 290, Kolta Development Pty Ltd v PNG Defence Force (1996) N1470, Rooney v Forest Industries Council (1990] PNGLR 407, Moses Luluaki v Madang Urban Local–level Government and Steven Amenasik (Unreported and Unnumbered Judgment of Justice Sawong of 8 December 2000), Jeff Tole v PNGBC (Unreported and Unnumbered Judgment of Sevua J dated 14 March 2000), Dia Kopio v Employment Authority of Enga Provincial Government (1999] PNGLR 462, Brian Hodson v The Independent State of Papua New Guinea (1985] PNGLR 303, Peter Na–Al v Michael Debege (2000) N1958, Abel Tomba v The Independent State of Papua New Guinea (1997) SC518, Latham v Henry Peni (1997] PNGLR 435, Benny Balepa v The Commissioner of Police and The Independent State of Papua New Guinea (1995) N1374, Gulf Provincial Government v Baimuru Trading Pty Ltd (1998] PNGLR 311, Don Pomb Polye v Jimson Sauk Papaki (2000] PNGLR 166, Rederiaktcebolaget "Amphitrite" v R (1921] 3 KB 500, Commissioner of Crown Lands v Page (1960] 2 QB 274, Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54, Manock v South Australia (1979) 83 LSJS 64, Northern Territory v Skywest Pty Ltd (1988) 48 NTR 20, New South Wales v Bardolph (1934) 52 CLR 453 and Doyle v Olby (Ironmongers) Ltd (1969] QB 158 referred to

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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 3 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 8 October 1997 and ending 8 October 2001. He was appointed in due consultation with the Public Services Commission and in compliance of the procedures under the Constitution with a gazettal notice of 8 October 1997 as Police Commissioner by the Head of State, acting with, and in accordance with the advice of the NEC. A Standard Contract of Employment was prepared on the advice of the NEC for his signature. That Contract provided the terms and conditions of his employment. An unsigned copy of the contract of employment was admitted into evidence as annexure "F" to the affidavit of the plaintiff sworn on 3 August 1999. The plaintiff says he signed a contract in those terms sometime in May 1998 but made retrospective to the date of his appointment, 8 October 1997. He says, he forwarded the signed contract to the Department of Personal Management (DPM) without retaining a copy. The DPM is not able to either confirm or deny the execution of the contract, as it is not able to locate a copy of it. Nevertheless, there is no issue on the terms of the contract as set out in the unsigned copy.

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