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Lahari v Koloma [2021] PGNC 407; N9254 (8 November 2021)

N9254
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 696 OF 2015

BETWEEN
WILLIE LAHARI
Plaintiff

AND
ROKO KOLOMA as the National Statistician
First Defendant

AND
NATIONAL STATISTICAL OFFICE
Second Defendant

AND
JOHN KALI as the Secretary for the Department of Personnel Management
Third Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Makail, J

2021: 20^th July & 8^th November

ASSESSMENT OF DAMAGES – Breach of contract of employment – Unlawful termination – Damages flow from breach – Money in lieu of furlough leave – Money in lieu of leave – Ex-gratia – Contract gratuity – Repatriation costs – Uncontested unpaid final entitlements – Judgment entered

GENERAL DAMAGES – General damages sought for frustration and hardship – Relevant factors for higher award considered – Delay in paying final entitlements – Numerous follow-up requests and lack of response – Commencement of legal proceedings – No defence filed – No affidavit filed in response – No submissions filed in response – Cumulative effect – Higher award of general damages appropriate – Award of K50,000.00

Cases Cited:

Peter Na-al v. Fly River Provincial Government (2000) N1958
Peter Aigilo v. Sir Mekere Morauta & The State (2001) N2102

Counsel:

Mr. J. Tame, for Plaintiff
No appearance, for Defendants

JUDGMENT

8^th November, 2021

1. MAKAIL J: This is an undefended trial on assessment of damages despite the defendants being served and filing a notice of intention to defend on 11^th February 2015. Default judgment was entered against the defendants on 3^rd October 2019.

Brief Facts

2. The action is one of breach of contract of employment. The plaintiff alleged that he was a long serving officer of the second defendant since 25^th May 1988. On 15^th January 2010 he signed a contract of employment and served as the Deputy National Statistician until his retrenchment. On 25^th May 2011 he was retrenched by the second defendant. On retrenchment, he did not receive his final entitlements.

Findings of Fact

3. Based on the plaintiff’s affidavit sworn and filed 8^th February 2016 and the other sworn 17^th December 2020 and filed 19^th December 2020 I find the following as the uncontested facts:

• The plaintiff was a long serving officer of the second defendant since 25^th May 1988.
  
• On 15^th January 2010 he signed a contract of employment and served as the Deputy National Statistician until his retrenchment.
  
• On 25^th May 2011, the plaintiff was retrenched by the second defendant.
  
• He was put off the payroll and did not receive his final entitlements.
  
• He had to look for employment elsewhere and took up employment as an advisor on a short term basis with Solomon Islands Government.
  
• Since 25^th May 2011 he waited and followed up on his final entitlements for 4 years and 5 months before he commenced these proceedings on 29^th October 2015.
  
• On 12^th May 2014, the first defendant wrote to the third defendant advising that the plaintiff and other officers of the second defendant were retrenched “through reorganisation and on medical grounds” and “for noting and approval”.
  
• The plaintiff’s total final entitlements were calculated by the Personal Officer Wautu Kaiulo and verified by Human Resource Manager Patricia Seboda of the second defendant.
  
• According to the calculations, a sum of K102,533.09 after tax was due. It comprised of money in lieu of furlough leave, money in lieu of leave, ex-gratia and contract gratuity. A further sum of K7,980.00 after tax was for repatriation costs. In total, the plaintiff was owed a sum of K110,513.09.
  
• As a result of the defendants’ failure, the plaintiff was unable to support his elderly father’s medical and related welfare expenses as well as his family and younger children’s welfare expenses.
  
• On 19^th October 2016 he moved the Court for summary judgment but was refused and the proceedings were dismissed by the National Court.
  
• On 1^st November 2016 he appealed to the Supreme Court.
  
• After 2 years, on 27^th February 2019 the Supreme Court upheld his appeal, quashed the decision of the National Court and remitted the matter for continuation on pleadings.
  
• On 11^th March 2019 his lawyers served a statement of claim on the defendants through the Solicitor General’s Office.
  
• The defendants failed to file their defence. On 28^th March 2019 his lawyers wrote and put the defendants on notice to put in their defence. They did not.
  
• On 3^rd October 2019 the Court entered default judgment with damages to be assessed.
  

Unpaid Final Entitlements

4. Counsel for the plaintiff submitted that the plaintiff is entitled to a judgment for unpaid entitlements in the sum of K132,255.50. However, the evidence does not support this submission. As found above, the uncontested facts are the plaintiff’s unpaid final entitlements comprise of:

(a) K102,533.09

(b) K7,980.00

Total K110,513.09

5. I am satisfied that the sum of K102,533.09 comprising of money in lieu of furlough leave, money in lieu of leave, ex-gratia and contract gratuity and a further sum of K7,980.00 as repatriation costs are damages flowing from the breach of contract when the defendants failed to pay after the plaintiff was retrenched. I am further satisfied that they are uncontested unpaid final entitlements. Judgment is entered in favour of the plaintiff in the total sum of K110,513.09.

General damages for distress and hardship

6. The plaintiff further sought general damages for frustration and hardship. By comparison, I consider that the facts of this case demonstrate a more grave and serious case than in Peter Na-al v Fly River Provincial Government (2000) N1958 where K15,000.00 was awarded and Peter Aigilo v. Sir Mekere Morauta & The State (2001) N2102 where K20,000.00 was awarded. Add to that, these cases were decided two decades ago.

7. In considering a higher sum than those awarded in those two cases, I consider that the relevant factors may include delay in the payment of final entitlements, numerous follow-up requests and lack of response, commencement of legal proceedings, no defence filed, no affidavit filed in response and no submissions filed in response. The cumulative effect is that a higher award of general damages is appropriate.

8. In the present case, I am satisfied that all these factors are present. They add to the plaintiff’s misery and inability to support his elderly father’s medical and related welfare expenses as well as his family and younger children’s welfare expenses.

9. I also agree with plaintiff’s submissions that “The plaintiff served NSO for 23 years. There was no sign of appreciation and decent farewell. He instead, has been given a run around in and out of court for almost 11 years”. Although the plaintiff’s counsel submitted that an award of K12,000.00 per year for 11 years equivalent to a total sum of K132,000.00 is appropriate to award, I consider a sum of K50,000.00 as fair and reasonable to award. This sum is awarded.

Interest

10. The plaintiff further sought interest. As a matter of principle, the purpose of an award of interest is to compensate an injured party for being kept out of money. His counsel submitted that given the long delay of over 11 years caused by the defendants’ procrastination, interest should be awarded from the date of retrenchment of 25^th May 2011 until final settlement. This submission is upheld but interest will be awarded on part of the total judgment sum.

11. There shall be an award of 2% interest on the judgment sum of K110,513.09 being the unpaid final entitlements from the date of retrenchment of 25^th May 2011 to date of final settlement pursuant to Sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.

Legal costs

12. Finally, there shall be an order that the defendants shall pay the plaintiff’s costs on a party/party basis, to be taxed, if not agreed.

Order

13. The final orders of the Court are:

1. Judgement is entered in favour of the plaintiff in the total sum of K110,513.09 as unpaid final entitlements.
2. Judgment is entered in favour of the plaintiff in the sum of K50,000.00 as general damages for frustration and hardship.
   
3. There shall be an award of 2% interest on the judgment sum of K110,513.09 being the unpaid final entitlements from the date of retrenchment of 25^th May 2011 to the date of final settlement pursuant to Sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.
   
4. The defendants shall pay the plaintiff’s costs on a party/party basis, to be taxed, if not agreed.

________________________________________________________________
Solomon Wanis Lawyers: Lawyers for Plaintiff
Solicitor General: Lawyers for Defendants