Horope v Baki [2011] PGNC 251; N4423 (18 October 2011)

N4423

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 711 OF 2001

BETWEEN:

NAKIKUS HOROPE on behalf of himself and for and on behalf of the deceased DUFFIL HOROPE
Plaintiff

AND:

PETER BAKI, Secretary for the Department of Education
First Defendant

AND:

DEPARTMENT OF EDUCATION
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Thompson, AJ
Hearing: 11 October
2011: 18 October

EMPLOYMENT LAW - Wrongful termination – default interlocutory judgement – pleading that 'particulars would be provided'- particulars of claim and loss not sufficiently pleaded –cannot give evidence of claim or loss which is not pleadedobligatligation on Defendant to enlarge Plaintiff's claim - assessment of no damages payable.

EMPLOYMENT LAW– wrongful terminati8211; insufficient particulars - special damages to be plea pleaded - no evidence of loss not pleaded

Cases Cited:
Coecon Ltd v. National Fisheries Authority & Ors (2002) N2182
Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC 694
William Mel v. Coleman Pakalia & Ors (2005) SC 790

Counsel:
Mr. N. Kubak, for the Plaintiff
Mr. T. Tanuvasa, for the first and second Defendants

18 October, 2011

DECISION

1. THOMPSON AJ: On 30 May 2001 the Plaintiff issued these proceedings claiming damages for wrongful termination of employment, which the Statement of Claim pleads took place on 15 February 2000. On 15 October 2001 the Plaintiff obtained interlocutory judgment against the first and second Defendants.

2. The Plaintiff died in December 2003 (hereinafter referred to as "the deceased"). On 15 December 2004 the deceased's son was substituted as the Plaintiff in the proceedings. The hearing of the assessment of damages against the first and second Defendants proceeded on 11 October 2011.

EFFECT OF DEFAULT INTERLOCUTORY JUDGMENT

3. The duty of the Court following an interlocutory judgment, is clear. The Supreme Court in William Mel v. Coleman Pakalia & Ors (2005) SC 790 has confirmed the principles set out in the earlier cases including Coecon Ltd v. National Fisheries Authority & Ors (2002) N2182. The judgment resolves all questions of liability in respect of the matters pleaded in the Statement of Claim. The judge must consider the Statement of Claim and satisfy himself that the facts and the cause of action are pleaded with sufficient clarity. If the pleaded facts or cause of action do not make sense or would make an assessment of damages futile, the judge can revisit the issue of liability.

4. If the facts and cause of action have been clearly pleaded, liability is regarded as proven.

5. Any matter that has not been pleaded that is introduced at the trial, is a matter on which the Defendants can take issue on liability.

6. The Plaintiff has the burden of producing admissible and credible evidence, and is only entitled to lead evidence and recover such damages as were pleaded in the Statement of Claim.

I have therefore considered the Statement of Claim.

7. Paragraphs 5-14 are a narrative of some events which had taken place since 1985. It says that in 1985 he was arrested and charged with misappropriation, in 1986 he was committed to stand trial, but in 1987 he was discharged following a Nolle Prosequi. It says he had been suspended from his employment during this time, and the suspension was lifted after he was discharged. It says that at some unspecified time, he was again arrested, but was not charged or brought before the Court for determination of the basis of his arrest. It says that in 1998 he issued legal proceedings against the State claiming damages for breach of his Constitutional rights. Damages were awarded and paid to him in 1999. No cause of action is pleaded as arising out of those events.

8. Paragraphs 15-19 of the Statement of Claim say that after payment of the damages, he was reinstated to his employment on an unspecified date, but on 15 February 2000 the second Defendant terminated his employment. It says that this termination was unlawful, and as a result, he suffered loss and damage.

9. In his prayer for relief, he claimed damages for wrongful termination, and exemplary damages.

10. The Statement of Claim does not plead any facts at all showing the basis on which the termination was alleged to be wrong or unlawful. There is no pleading of a breach of contract or statute or common law or natural justice. In relation to the loss and damage, para 19 says it includes unpaid salary, recreation leave, furlough and long service, CPI adjustments, family airfares, accommodation allowance, domestic allowance, loss of training prospects and advancement in the department to a higher executive level, and that "particulars would be provided before and or during the trial".

11. Although no basis at all has been pleaded in support of the allegation that the termination was unlawful, I consider that the mere pleading that it was unlawful is – barely – sufficient to disclose a cause of action arising out of his termination on 15 February 2000. I therefore find that the interlocutory judgment has resolved the question of liability by the first and second Defendants for the unlawful termination of the Plaintiff from his employment on 15 February 2000.

12. I next consider the loss and damage which are said to flow from that unlawful termination.

13. Notwithstanding the statement in para 19 of the Statement of Claim, the Plaintiff did not in fact provide particulars of the claims referred to in that paragraph. As a result, I have been unable to identify exactly what is now being claimed by the Plaintiff.

14. The Plaintiff produced no evidence that the deceased was entitled to, but did not, receive amounts for unpaid salary, unpaid recreation leave, unpaid furlough and long service leave, unpaid CPI adjustments, unpaid family airfares, unpaid accommodation allowance, unpaid domestic allowance or the loss of promotion and training.

15. The only evidence was provided by the Defendants. That evidence was that they could no longer locate a file on the deceased, but that their computer records showed that he had been employed from 1969 to 1999 on a fortnightly salary of K415.32. On this basis, that calculated that his final payout entitlements in 1999 would have been K10,613.29. Their evidence was that without the deceased's file, they could not say whether or not he had been paid his final entitlement. The first Defendant's evidence was that in his opinion, based on 32 years experience of the second Defendant's Human Resource matters, final payment entitlements were always made first and then superannuation payments were made last, and that as there was evidence that the superannuation payments had been paid out, it was very likely that the final entitlements had been paid out first.

16. The Plaintiff produced no evidence of what was paid or not paid to the deceased.

17. The Plaintiff's counsel urged the Court to proceed on the basis that the deceased was entitled to be paid from 1987 to 1999, was in fact unpaid, and that he was making a claim for loss of salary and other entitlements for that 12 year period.

18. I am unable to accept that submission. First, there was no evidence of the deceased being either suspended or unpaid from 1987 to 1999. Secondly, and in any event, this claim does not form part of the cause of action pleaded in the Statement of Claim. The claim for damages is clearly stated to be as a result of the unlawful termination on 15 February 2000. There is no reference in the Statement of Claim to the deceased being suspended from 1987 to 1999, and there is no reference to any such suspension being unlawful. As there is no pleading of unlawful suspension from 1987 to 1999, it does not form part of the cause of action.

19. The case authorities make it clear that the Plaintiff can not give evidence in support of any claim which is not pleaded. The Defendants objected to such evidence being given. The Plaintiff submitted that the Court should infer the deceased's suspension, from the National Court judgment in the deceased's other proceedings arising out of his wrongful arrest. I reject that submission, for a number of reasons. First, and most relevantly, the judgment makes no reference to any suspension of employment from 1987 to 1999. Secondly, even if the decision contained a reference to the deceased's employment or unemployment, it would not be admissible as evidence in these proceedings. The Court would only be entitled to take judicial notice of the ratio decidendi of that case, and not of any extraneous statements. That case did not involve the first and second Defendants, they were not parties, and it did not concern any issue of employment. It was solely a claim against the State for damages for breach of constitutional rights arising out of an alleged criminal charge.

20. The Supreme Court in Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC 694 has said that "where a Plaintiff's claim is special in nature, such as a claim for loss of salaries or wages, they must be specifically pleaded with particulars. Unless that is done, no evidence of matters not pleaded can be allowed or relief granted."

21. In that case, the Plaintiff had pleaded that as a result of his unlawful termination, he had been deprived of salary, allowances and benefits, of which "particulars would be provided after discovery and prior to trial." In his prayer for relief, he claimed damages. The Court found that this pleading was inadequate:

"The onus remained with Mr. Tole to properly plead, and then prove what was in fact pleaded by way of damages. The moment he stepped outside the pleadings, he went outside what was resolved by the default judgment. ... If a Plaintiff seeks to step out of the pleadings, he is obliged to amend the pleadings and then allow the normal process of pleadings to take place before there can be a hearing and judgment on matters not in the original pleadings. ... It is the duty of a Plaintiff to plead his claim with sufficient details or particulars. It is a breach of the Rules and it complicates claims unnecessarily by practices such as the one adopted by Mr. Tole in para 6 of his Statement of Claim. There he pleads in a way which makes it necessary for PNGBC to seek discovery or better particulars, by pleading "particulars will be provided after discovery and prior to trial." Such a pleading gives no advantage to a Plaintiff, since he can not add to his Statement of Claim without an actual amendment to his Statement of Claim. Also, such a pleading casts no onus or obligation on a Defendant to clarify or enlarge a Plaintiff's case, and it simply has no foundation in the Rules."

22. The facts in Tole's case are very similar to the facts in this case. The Plaintiff has not pleaded his claim with sufficient details or particulars, which he had said would be provided prior to the trial. The Plaintiff could not add to his Statement of Claim by attempting to give evidence or ask the Court to make inferences, on matters which were not pleaded. There was no obligation on the Defendant to clarify or enlarge the Plaintiff's claim for damages.

23. As in Tole's case, the default interlocutory judgment resolved the issue of liability on the matters pleaded and prayed for. The Defendants are entitled to only expect the Court to give a decision on those matters. The Defendants are not entitled to be faced with a judgment on matters which have not been pleaded and which are outside the ambit of the interlocutory judgment.

24. The claim for loss and damage said to flow from a period of suspension of employment from 1987 to 1999 is not pleaded, is outside the ambit of the interlocutory judgment, and the Plaintiff did not and can not produce evidence in support of such a claim.

25. The plaintiff did plead a claim for loss and damage flowing from the wrongful termination of 15 February 2000. However, no particulars were pleaded, and no evidence was produced. There was evidence that the deceased might have been entitled to receive K10,213.49. However, there was no evidence from the Plaintiff that he did not receive payment of this amount, and the Defendant's evidence was that although there was no record showing if the monies had or had not been paid, it was most likely that they had been paid. As stated earlier, there is no obligation on the Defendant to particularize, clarify or enlarge the Plaintiff's case. The Plaintiff gave no evidence, and the Defendants' evidence was not sufficient to establish on the balance of probabilities that the payment had not been made.

26. The prayer for relief also included a claim for exemplary damages. No basis for this claim was pleaded in the Statement of Claim. In any event, as there was no claim for a breach of Constitutional rights, then under Section 12 of the Claims by and Against the State Act, no exemplary damages could be awarded against the State.

27. The Statement of Claim did not plead any particulars of damages. The Plaintiff asked the Court to step outside the pleadings and make inferences from various matters, to support the claim for damages. Even if the Court did allow the Plaintiff to claim damages which had not been sufficiently pleaded, the Plaintiff did not discharge his onus of producing admissible and credible evidence to establish such damages. The Plaintiff relied on some evidence produced by the Defendants, but that evidence was insufficient to clarify or enlarge the Plaintiff's pleaded claim for damages.

28. I therefore assess no damages as being payable by the Defendants. The Plaintiff is to pay the Defendants costs.
___________________________________________
Nobert Kubak & Co Lawyers: Lawyers for Plaintiff
Solicitor-General: Lawyers for the Defendants