Sipa v Sikani [2013] PGNC 120; N5355 (11 September 2013)

N5355

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 264 OF 2009

JOE SIPA
Plaintiff

V

RICHARD C SIKANI
COMMISSIONER OF THE CORRECTIONAL SERVICE
First Defendant

PAPUA NEW GUINEA CORRECTIONAL SERVICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Madang: Cannings J
2013: 13 June, 15 August, 11 September

DAMAGES AND UNPAID ENTITLEMENTS – assessment of amounts due pursuant to default judgment – whether defendant can raise specific defence to claim after entry of default judgment – whether damages can be awarded for pain and suffering.

The plaintiff, a member of a State Service, obtained a default judgment for unpaid entitlements and damages arising from his being suspended without pay pending determination of a criminal charge. He was acquitted of the charge and reinstated to the Service but by the time he was put back on the payroll more than four years had elapsed. At the trial on assessment of unpaid entitlements and damages the plaintiff sought unpaid entitlements of K64,572.14 and damages of K20,000.00. The defendants argued that only K11,509.74 should be awarded for unpaid entitlements as the plaintiff was properly suspended without pay for the bulk of the period that he was not paid; and that no damages should be awarded due to deficient evidence.

Held:

(1) The defendants had raised what appeared to be a valid defence to most of the claim for unpaid entitlements, however, it was raised too late, default judgment having been entered, and it would be unfair to allow it to be raised now. Unpaid entitlements were assessed without taking that potential defence into account and in light of the evidence adduced by the plaintiff he was awarded K62,664.14.

(2) The plaintiff gave sufficient evidence of the hardship he endured as a result of being unpaid for more than five years. He was awarded damages of K20,000.00.

(3) Interest was awarded at the rate of 8% per annum on the total amount of unpaid entitlements and damages (K82,664.14), in respect of the period from the date of service of the writ to the date of judgment, a period of 3.35 years, being an award of K22,153.99, making the total judgment sum K104,818.13.

Case cited

The following case is cited in the judgment:

William Mel v Coleman Pakalia (2005) SC790

TRIAL

This was a trial on assessment of unpaid entitlements and damages pursuant to a default judgment.

Counsel

P K Kunai & B B Wak, for the plaintiff
S Phannaphen, for the defendants

11 September, 2013

1. CANNINGS J: This is an assessment of unpaid entitlements and damages pursuant to entry of default judgment in favour of the plaintiff, Joe Sipa.

2. The plaintiff is a member of the Correctional Service. He was a warder at Beon Jail, Madang Province, when on 28 May 2000 he was charged under Section 372 of the Criminal Code with stealing Government property. He was immediately suspended without pay. On 14 May 2003 the National Court acquitted him from the charge. On 27 August 2003 his suspension was lifted and he resumed duty. However he remained off the payroll until 9 June 2004. He claims that it was not until February 2005 that he was paid the correct salary. On 13 March 2009 he commenced proceedings by writ of summons against the defendants. On 6 May 2010 the writ was served on the defendants. On 20 May 2011 he obtained default judgment against the defendants in the following terms:

Default judgment is entered against the defendants on liability with the amount of unpaid entitlements and damages to be assessed at trial.

UNPAID ENTITLEMENTS

Plaintiff's claim

3. The plaintiff's claim of K64,572.14 covers three periods:

(a) 28 May 2000 to 27 August 2003, the period of suspension without pay: K51,154.40;

(b) 28 August 2003 to 9 June 2004, the period during which he was not suspended and was working without being paid: K11,509.74;

(c) 10 June 2004 to February 2005, the period during which he was working but being underpaid: K1,908.00.

Defendants' submissions

4. Mr Phannaphen for the defendants made the following submissions in relation to the three periods:

(a) Nothing should be awarded as the plaintiff was properly suspended without pay under Section 53(2) of the Correctional Service Act, which provides that a member of the Correctional Service who is charged with stealing Government property is not eligible to receive his pay during the period of suspension, unless the Commissioner determines otherwise; and he relied on an affidavit by the present Commissioner, Martin Balthasar, who deposes that no such determination was made in the plaintiff's case.

(b) The claim for this period is conceded as the plaintiff should have been paid but was not, due to a computer error.

(c) Nothing should be awarded as the plaintiff has not proven that he was underpaid.

Assessment

5. I assess the claim as follows:

(a) Although the defendants raise what appears to be a valid defence it has been raised too late and to consider it now would amount to revisiting the question of liability without justification. The Supreme Court in William Mel v Coleman Pakalia (2005) SC790 explained the role of the trial judge assessing damages after entry of default judgment in the following terms:

• the 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.
  

I have made a cursory inquiry and I am satisfied that the facts and the cause of action are pleaded in the statement of claim with sufficient clarity and that it is reasonably clear what the facts and cause of action are. The question of liability will not be revisited. It would be unfair to allow the defendants to rely at this late stage on a specific defence, which should have been pleaded in accordance with Order 8, Rule 14 (matters for specific pleading) of the National Court Rules within the time limited by the Rules for filing a defence. I award the full amount claimed: K51,154.40.

(b) Mr Phannaphen has properly conceded this part of the claim. I award K11,509.74.

(c) I uphold Mr Phannaphen's submission that there is no evidence to support the claim of underpaid salary for the period from 10 June 2004 to February 2005. Nothing is awarded.

6. To summarise, the amount of unpaid entitlements is assessed as:

(a) K51,154.40; plus
(b) K11,509.74; plus
(c) 0

Total = K62,664.14.

DAMAGES

7. Mr Phannaphen submitted that no damages should be awarded as the evidence was deficient. However, I uphold the submissions of Messrs Kunai and Wak that something should be awarded to compensate the plaintiff for the distress, inconvenience and hardship caused to him by reason of his being deprived of his salary for such a lengthy period. Although it was not intrinsically unlawful for him to have been suspended without pay for a period of three years and three months, it is unarguable that this would have caused the plaintiff, a married man with children to care for, enormous hardship. He has deposed to this in a supporting affidavit. That he resumed duty and was not paid until almost ten months later inevitably led to more hardship and distress. I award damages of K5,000.00 for each full year that the plaintiff was not paid. He was off the payroll from 28 May 2000 to 9 June 2004, a period of a little over four years. The total amount of damages is K5,000.00 x 4 years = K20,000.00.

SUMMARY OF AWARDS

1 unpaid entitlements: K62,664.14; plus

2 damages: K20,000.00

being a total amount of K82,664.14.

INTEREST AND COSTS

8. Interest will be awarded at the rate of 8 per cent per annum on the total amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest is calculated from the date of service of the writ, 6 May 2010, to the date of this judgment, a period of 3.35 years, by applying the following formula:

• D x I x N = A
  

Where:

• D is the amount of unpaid entitlements and damages assessed;
• I is the rate of interest per annum;
• N is the appropriate period in numbers of years;
• A is the amount of interest.
  

Thus K82,664.14 x 0.08 x 3.35 = K22,153.99.

9. Costs will follow the event as the plaintiff has succeeded in obtaining a substantial proportion of the total amount claimed.

ORDER

10. The Court orders that:

(1) the defendants shall pay to the plaintiff a total amount of unpaid entitlements and damages of K82,664.14 plus interest of K22,153.99, being a total judgment sum of K104,818.13; and

(2) the defendants shall pay the plaintiff's costs of the proceedings on a party-party basis which shall, if not agreed, be taxed.

Judgment accordingly.
_____________________________________

Kunai Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyer for the Defendants