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Opi v Telikom PNG Ltd [2020] PGNC 168; N8290 (29 April 2020)

N8290


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO. 893 OF 2015


BETWEEN
LARS OPI
Plaintiff


AND
TELIKOM PNG LIMITED
Defendant



Waigani: Shepherd J
2019: 10th October
2020: 29th April


JUDGMENTS – the principles that apply to assessment of damages after entry of judgment on liability by default or by consent apply equally to assessment of damages after entry of summary judgment on liability – entry of summary judgment resolves all questions of liability except where cause of action pleaded does not make sense or renders assessment of damages futile.


DECLARATIONS – plaintiff sought declarations that termination of his employment was unlawful - summary judgment determined that issue.


DEFAMATION – internal memorandum written by corporate officer of defendant giving notice to plaintiff of termination of employment – grounds given in memorandum for termination of employment defamatory of plaintiff on disclosure of content of memorandum by corporate officer to staff member of defendant – re-publication by staff member of defamatory content of memorandum to colleagues of plaintiff – defendant vicariously liable for defamation.


DAMAGES – trial on assessment of damages - affidavit evidence subject to parties’ rights of cross-examination - measure of damages for defamation – general damages of K100,000 awarded– particulars of special damages not pleaded by plaintiff but defendant on notice well before trial of comprehensive affidavit evidence of plaintiff in support of pleaded claim for special damages – no cross-examination of plaintiff or his witnesses on affidavit evidence on special damages - evidence on special damages claimed by plaintiff not challenged at trial on assessment of damages – special damages awarded based on plaintiff’s proof of estimated loss of income from defamation – plaintiff’s duty to mitigate loss - onus on defendant to prove plaintiff failed to mitigate loss –- exemplary damages not pleaded by plaintiff are not recoverable – defence of contributory negligence not pleaded by defendant cannot be raised at trial on assessment of damages.


CONSTITUTIONAL LAW – whether National Court has power under s.23 Constitution to award damages for violation of constitutional rights where s.41 Constitution (“proscribed acts”) is invoked – no separate award should be made under s.23 Constitution where compensatory damages in tort are awarded for same acts.


COSTS – distinction between solicitor/client costs and costs awarded on indemnity basis – indemnity costs more generous than solicitor/client costs – indemnity costs designed to give fullest possible indemnity to receiving party – indemnity costs extend beyond solicitor/client costs – indemnity costs although compensatory are punitive in nature – indemnity costs awarded where conduct of party or lawyer is so improper, unreasonable or blameworthy that punishment is warranted – award of solicitor/client costs is intended to reimburse receiving party for legal fees and disbursements unnecessarily incurred because proceedings were abuse of process or without merit – forewarning of intended claim for costs on indemnity basis or on solicitor/client basis if proceedings dismissed should always be given.

Facts


The plaintiff brought proceedings against the defendant for defamation said to be contained in a document written by the acting CEO of the defendant which gave notice of termination of the plaintiff’s employment of 19 years 4 months on grounds which the plaintiff alleged were untrue, and which notification was re-published by a member of the defendant’s staff to certain of the plaintiff’s colleagues, news of which then spread to the wider community to the detriment of the plaintiff’s business and personal reputation. The grounds of the notification of the termination of the plaintiff’s employment which were said by the plaintiff to be untrue were that an internal investigation into the plaintiff’s misconduct had purportedly been undertaken by the defendant which in turn had found that the plaintiff had damaged one of the defendant’s vehicles, that the plaintiff had not heeded a final warning for fighting at the workplace, that the plaintiff’s work performance was poor and that the plaintiff did not uphold those “core values” of the defendant which went to honesty, integrity and teamwork.


Summary judgment with damages to be assessed was entered against the defendant because of its failure to comply with certain directions of the Court.


The matter came on for trial on assessment of damages. No evidence of the defendant’s purported internal investigation into the plaintiff’s alleged misconduct was adduced at trial.


The plaintiff, in addition to his civil action for defamation, also sought declarations in this proceeding that the defendant’s termination of his employment was unlawful and that the defendant’s conduct was such that the manner in which his employment was terminated was a “proscribed act” within the meaning of s.41 of the Constitution for which damages were claimed under s.23 of the Constitution.

Held:


  1. Entry of summary judgment resolves all questions of liability in respect of matters pleaded in a statement of claim except where the cause of action pleaded does not make sense or an assessment of damages would be futile: Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2012) N2182 applied, at [19].
  2. The summary judgment against the defendant determined that termination of the plaintiff’s employment was unlawful. The plaintiff’s claim for judicial declarations having been pleaded with sufficient clarity, declarations were granted accordingly, at [83].
  3. General damages for defamation are “at large” and are awarded to compensate the plaintiff for injury to business and personal reputation, injury to feelings and health and for vindication of injury to reputation, at [94].
  4. General damages of K100,000 awarded, at [143].
  5. If particulars of special damages are insufficiently pleaded or given, a defendant should seek an order for further and better particulars pursuant to O.8 r.36 of the National Court Rules, at [160].
  6. Here the defendant was on notice well before trial of the affidavit evidence on special damages to be adduced by the plaintiff at trial and that evidence was sufficiently detailed and credible for the defendant to know the nature of the plaintiff’s claim for special damages it would be called upon to meet at trial, at [165].
  7. Where evidence on special damages is led without objection, the Court is entitled to make findings on the basis of that evidence, provided the evidence is within the general ambit of the plaintiff’s claim: MVIT v John Etape [1994] PNGLR 596 applied, at [167].
  8. The onus of proving that a plaintiff has failed to mitigate loss or damages is on a defendant, at [190].
  9. The defendant did not in this instance adduce any evidence to show that the plaintiff had failed in his duty to mitigate his monetary losses, at [192].
  10. Special damages of K565,300 awarded for the plaintiff’s estimated monetary losses resulting from the defamation, at [195].
  11. No separate award should be made under s.23 of the Constitution where damages in tort are available to compensate for “proscribed acts” within the meaning of s.41 of the Constitution, at [205].
  12. Indemnity costs are distinct from solicitor/client costs. Indemnity costs are punitive in nature. Indemnity costs are more generous than solicitor/client costs. Indemnity costs are intended to give the fullest possible indemnity to the receiving party. They can be awarded where the conduct of a party or lawyer is so improper, unreasonable or blameworthy that punishment is warranted, at [231].
  13. Solicitor/client costs are intended as reimbursement of the receiving party for the reasonable legal fees and disbursements unnecessarily incurred because a proceeding has been found by the Court to be an abuse of process or was otherwise without merit [at 231].
  14. Forewarning to claim costs on an indemnity basis or on a solicitor/client basis should always be given, at [231].
  15. In the result, total judgment sum of K848,900 is awarded to the plaintiff inclusive of interest from date of accrual of action to date of trial, comprising general damages of K100,000, interest of K48,000 calculated at 8% p.a. on general damages, special damages of K565,300, interest of K135,000 calculated at 4% p.a. on special damages, with the plaintiff’s costs to be paid on a solicitor/client basis subject to certain conditions, at [233, 250].


Cases Cited:
Papua New Guinea Cases


William Mel v Coleman Pakalia (2005) SC790
Coecon Ltd (Receiver/Manager Appointed v National Fisheries Authority (2002) N2182
Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694
Desmond Huaimbukie v James Baugen (2004) N2589
Teine Molomb v The State (2005) N2861
Rabaul Shipping Ltd v Peter Aisi (2006) N3173
Eliab Buka v Henry Uramete (2009) N3905
Joseph Kupo v The State (2011) N4285
Dape Erotie v Bank South Pacific Ltd (2011) N4404
Scott Lewis v Lae Builders & Contractors Ltd (2014) N7644
Nakikus Horope v Peter Baki (2011) N4423
Timothy Neville v Independent Public Business Corporation (2012) SC1193
Yamanka Multi Services Ltd v National Capital District Commission [2010] N3904
SCR No. 2 of 1981; Re Section 19(1)(f) Criminal Code [1982] PNGLR 150
National Executive Council, Attorney-General and Luke Lucas v Public Employees Association of Papua New Guinea [1993] PNGLR 264
Bros Rugby Football Club Inc v Port Moresby Rugby Football Union Inc (2004) N2537
Paul Sireh& Ors v Miai Larelake & Ors (2007) N3181
Medaing v Ramu Nico Management (MCC) Ltd (2011) SC 1144
Wyatt Gallagher Bassett (PNG) Ltd v Benny Diau (2002) N2277
Mathew Nogonda v Martin Lakari (2019) N7138
Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR
PNG Aviation Services Pty Ltd v Michael Thomas Somare [1997] PNGLR 515
PNG Aviation Services Pty Ltd v Somare (2000) SC658
David Coyle, Rimbink Pato & Alfred Manase v Loani Henao [2000] PNGLR 17
Lin Wan Xin & Anor v Wang Yanhong (2001) NC160
Arlene Pitil v Turis Clytus (2003) N2422
David Lambu v George Dugube (2006) N3082
Justice Gibbs Salika v Pacific Star Ltd (2014) N5699
Aina Mond & Ors v Chief Inspector Robert Kalasim& The State (2004) N2638
Motor Vehicles Insurance Ltd v Ken Let (2005) SC816
PNG Aviation Services Pty Ltd v Geobb Karri & Ors (2009) SC1002
Kerry Lero v Philip Stagg (2006) N3050
Philip Takori v Simon Yagari (2008) SC905
Police & State Services Savings & Loan Society v Pacific Star Ltd trading as The National (2005) N2884
MVIT v John Etape [1994] PNGLR 596
Kerr v MVIT [1979] PNGLR 251
Kimsim Business Group Inc v Hompfwafi, Kalaut& The State (1997) N1634
Dia Kop v Employment Authority of Enga Provincial Government [1999] PNGL 462
Chemica Ltd v WPCC Investments Ltd (2011) N4428
Raz v Matane [1985] PNGLR 329
James Koimo v The State [1995] PNGLR 535
Yange Lagan v The State (1995) N1369
Tabia Koim v The State (1998) N1737
PNG Waterboard v Gabriel Kama (2005) SC 821
PNG International Hotels Pty Ltd v Registrar of Land Titles (2007) N3207
Island Helicopter Services Ltd v Wilson Sagati & Ors (2008)
Rex Paki v MVIL (2010) SC 1015
PNG Ports Corporation Ltd v Canopus No. 71 Ltd (2010) N4288
Karulaka v National Forests Authority (2014) N5875
Pinzger v Bougainville Copper Ltd [1985] PNGLR 160


Overseas Cases


Pullman & Anor v Walter Hill & Co., Limited [1890] UKLawRpKQB 193; [1891] 1 QB 524
Spring v Guardian Assurance [1995] 2 A.C. 296
Longdon-Griffiths v Smith [1950] 2 All E.R. 662
Phipps v Orthodox Unit Trusts Ltd [1958] Q.B. 314
British Transport Commission v Gourley [1955] UKHL 4; [1956] A.C. 185
Reid v Daily Telegraph Ltd [1965] A.C. 234
Milosovic v Government Insurance Office (NSW) (1993) 31 NSWLR 323
Rosniak v Government Insurance Office (1997) 41 NSWLR 608
Quirk v Bawden (1992) 112 ACTR1
Lamesa Holdings BV v Federal Commissioner of Taxation (1997) 74 FCR 416
Singleton v Macquarie Broadcasting Holdings Ltd (1991) NSWLR 103
Jefford v Gee [1970] EWCA Civ 8; [1970] 2 QB 130 at 151


Counsel:


Mr E. Wamp, for the Plaintiff
Mr R. Obora, for the Defendant


DECISION

29thApril, 2020

  1. SHEPHERD J: The plaintiff (Mr Opi) claims that his employment with the defendant (Telikom) was unlawfully terminated and that the contents of a notice of termination of his employment published to others were defamatory of him. The plaintiff is primarily claiming damages against Telikom for defamation and for loss of income. He is also seeking declaratory orders that the termination of his employment and the termination notice were unlawful.
  2. Summary judgment in respect of Telikom’s liability for the relief sought by Mr Opi was entered by order of the Court on 18 May 2018, with damages to be assessed.
  3. This is the Court’s decision arising from the trial of assessment of Mr Opi’s damages which took place on 10 October 2019.

Relief Claimed by Mr Opi

  1. Mr Opi has claimed the following heads of relief in his amended statement of claim (ASOC) which was endorsed on his amended writ of summons filed on 22 December 2016 pursuant to leave granted by the Court on 20 December 2016:
    1. A declaration that the Plaintiff’s termination made on 3 October 2018 is unlawful.
    2. A declaration that the letter (containing notice of termination) is unlawful.
    3. Damages for defamation.
    4. Special damages for K10,000 pursuant to section 23 of the Constitution.
    5. General damages for hardship, loss and suffering.
    6. Special Damages.
    7. Interest pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act.
    8. Costs of the proceeding to be paid by the Defendant on an indemnity basis.
  2. Apart from declaratory relief, Mr Opi by his ASOC seeks general damages for defamation and for hardship, loss and suffering, special damages, and damages pursuant to section 23 of the Constitution on the basis that it is alleged that Mr Opi’s termination of employment by Telikom was a proscribed act within the meaning of s.41 of the Constitution for which compensation should be payable by Telikom under s.23 of the Constitution. The plaintiff seeks interest on damages and the costs of this proceeding on an indemnity basis.
  3. Telikom submitted at the outset of its defence at the trial for assessment of damages that the Court should revisit the issue of Telikom’s liability notwithstanding that summary judgment had been entered against Telikom. I will deal with that submission first as a preliminary issue. I will then consider in detail Mr Opi’s various claims for relief.


Preliminary issue – can the Court revisit Telikom’s liability after entry of summary judgment?


  1. The Court entered summary judgment against Telikom on 18 May 2018 with damages to be assessed pursuant to Order 10 Rule 9A(15)(2)(c) National Court Rules (NCR), which provides:

15. SUMMARY DISPOSAL
(1) ...

(2) The Court may summarily dispose of a matter in the following situations:

(a) ...
(b) ...

(c) for non-compliance of any order or directions previously made or issued by the Court at any of the listing processes.


  1. Summary judgment with damages to be assessed was ordered by the Court in this instance because of the repeated failure by Telikom to comply with prior procedural directions which had been made by His Honour Kandakasi J. The summary judgment occurred because of Telikom’s own procedural defaults.
  2. The Court’s record shows that there was a history of non-appearance by Telikom’s legal representatives at motions and directions hearings in this proceeding. Without digressing into that history, it is sufficient for the Court to observe at this stage that in the ordinary course of events the Court is entitled to take it that liability for Telikom’s:
    1. unlawful termination of Mr Opi’s employment; and
    2. defamation of Mr Opi, vicarious or otherwise, which occurred by reason of the publication to a staff member and re-publication by that staff member of the content of a memorandum dated 3 October 2013 from Telikom’s Acting Chief Officer Martin Veisame to Mr Opi giving notice of the latter’s termination of employment, was determined by the summary judgment. Telikom did not appeal that summary judgment to the Supreme Court. Furthermore, Telikom’s motion filed in this proceeding on 6 June 2015 seeking to set aside the summary judgment was dismissed a month later by Kandakasi J on 6 July 2018. Again, no appeal to the Supreme Court against the dismissal of that motion was ever pursued by Telikom.
  3. It is well established law in this jurisdiction that when a default judgment is entered, the facts as pleaded and their legal consequences in terms of establishing the cause of action as pleaded must be regarded as proven: William Mel v Coleman Pakalia (2005) SC790.
  4. When referring to this basic premise, the Supreme Court (Los, Jalina and Cannings JJ) in William Mel’s case at p.27 relied on these earlier cases:

Keith Reid v Murray Hallam and Allcad Pty Ltd (1995) N1337, National Court, where Kapi DCJ held:


“Where default judgment is entered in an unliquidated demand (as in this case) the facts which give rise to the question of liability are settled. The effect of default of judgment in this case is that there was a valid contract of employment and that there was a breach of that contract. All the facts and legal issues relating to liability are no longer in issue.


Assessment of damages involves consideration of the terms of the contract and assessing the damages that flow from the breach of the terms of the contract.”


Andale More and Manis Andale v Henry Tokam and the State (1997) N1645 National Court, where it was held by Injia J (as he then was):


“As far as liability of the Defendants is concerned, this was settled by entry of default judgment which had the effect of settling the issue of liability in favour of the Plaintiffs. The issue of liability generally as well as vicarious liability was settled in favour of the Plaintiffs as against the Defendants. Counsel for the Defendants has gone to great depths in submitting that the State should not be held liable vicariously or otherwise. In my view, these arguments are not open to the Defendants as a result of the default judgment.”


  1. The principles which are derived from this basic premise were further expounded by Kandakasi J (as he then was) in Coecon Ltd (Receiver/Manager Appointed v National Fisheries Authority (2002), National Court, N2182 where at pp.13 and 14 His Honour said:

” A survey of the authorities on assessment of damages after entry of judgment on liability mainly in default of a defendant’s defence clearly show the following:


  1. The judgement resolves all questions of liability in respect of the matter pleaded in the statement of claim.
  2. Any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability.
  3. In the case of a claim for damages for breach of contract as in this case, such a judgement confirms there being a breach as alleged and leaves only the question of what damages necessarily flow from the breach.
  4. The plaintiff in such a case has the burden to produce admissible and credible evidence of his alleged damages and if the Court is satisfied on the balance of probabilities that the damages have been incurred, awards can be made for the proven damages.
  5. A plaintiff in such a case is only entitled to lead evidence and recover such damages as may be pleaded and asked for in his statement of claim.”
  6. The authorities cited by His Honour in support of these five principles, which were applied in circumstances where a consent judgment on liability had been entered in that case with damages to be assessed, include The State v Hodson [1987] PNGLR 241; Kevin Patai v Niugini Lumber Merchants Pty Ltd & Ors N1602; Komaip Trading v George Waugulo& The State [1995] PNGLR 165 and Obed Lalip& Ors v Fred Sikiot & The State N1457.
  7. These five principles have been adopted, applied and augmented in many subsequent cases, including Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694 (Amet CJ, Sheehan and Kandakasi JJ); Desmond Huaimbukie v James Baugen (2004) N2589 (Kandakasi J); Teine Molomb v The State (2005) N2861 (Cannings J); Rabaul Shipping Ltd v Peter Aisi (2006) N3173 (Lay J); Eliab Buka v Henry Uramete (2009) N3905 (Hartshorn J); Joseph Kupo v The State (2011) N4285 (Hartshorn J); Dape Erotie v Bank South Pacific Ltd (2011) N4404 (Thompson AJ); Scott Lewis v Lae Builders & Contractors Ltd (2014) N7644 (Hartshorn J).
  8. Reverting back to Mel’s case, the Supreme Court when discussing the role of the trial judge in assessing damages following entry of default judgment, considered the following to be the correct approach:[1]
  9. These various principles were later summarised by Thompson AJ (as she then was) in Nakikus Horope v Peter Baki (2011) N4423 as follows:

“The duty of the Court following an interlocutory judgment is clear. The Supreme Court in William Mel v Coleman Pakalia& Ors ... 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.

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

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

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.”


  1. Although the preponderance of the cases referred to above relate to the principles applicable to assessment of damages after entry of default judgment and judgment by consent, logic dictates that these principles should apply equally to cases such as this where summary judgment has been entered with damages to be assessed pursuant to Order 10 Rule 9A(15)(2)(c) NCR for failure by a defendant to comply with prior directions of the Court. Default judgments, judgments by consent and summary judgments are all interlocutory judgments in nature and the same principles should apply to all of them when the Court directs entry of judgment with damages to be assessed.
  2. Such interlocutory judgments do not become final until the Court has determined all issues relating to assessment of damages. I rely in this regard on the second test for determining whether an order is final or interlocutory which was approved by the Supreme Court in Timothy Neville v Independent Public Business Corporation (2012) SC1193 where it was held that an order will not be final until it finally disposes of the rights of the parties; if it does not, then the order is interlocutory.
  3. I will accordingly apply the same principles governing assessment of damages where default judgment or judgment by consent has been entered to cases such as the present proceeding where summary judgment has been entered with damages to be assessed because of a defendant’s own procedural defaults.
  4. At the trial on assessment of damages, counsel for Telikom argued that one of the relevant issues for determination by the Court was whether the Court should revisit the merits of the case in view of Telikom’s defences. This was a point which was expressly raised in paragraph 19(i) of Telikom’s Amended Submission on Assessment of Damages.
  5. Applying those principles discussed above which relate to the duty of the Court on a trial for assessment of damages following interlocutory judgment, it is axiomatic that the Court could only revisit the issue of Telikom’s liability in this case if the pleadings in this case were patently unclear or did not make sense.
  6. I have considered Mr Opi’s ASOC in this context. The core pleadings are divided into three discrete causes of action:
  7. Paragraph 4 of the ASOC pleads the fact of termination of Mr Opi’s employment by Telikom and recites Telikom’s alleged four grounds for termination. Paragraph 5 of the ASOC pleads Mr Opi’s denial of all of those allegations by Telikom and gives detailed reasons for Mr Opi’s denial, including Telikom’s failure to follow its own processes under its Human Resources Policies and Procedures Manual and Telikom’s failure to give Mr Opi a fair hearing before deciding to terminate his employment.
  8. Paragraph 7 of the ASOC pleads Telikom’s imputations of dishonesty, lack of integrity, poor performance in duties and so forth which Mr Opi alleges tarnished his reputation as a career serviceman with Telikom and which imputations were contained in the “letter” (or rather internal memorandum) from Telikom which gave notice of termination of Mr Opi’s employment and which were re-published to work colleagues of Mr Opi.
  9. Paragraph 9 of the ASOC pleads the damage which Mr Opi has suffered as a result of the allegations made against him by Telikom in the notice of termination, namely that he has had difficulty seeking employment elsewhere or engaging in any business activity.
  10. Paragraphs 12, 13 and 14 of the ASOC plead to the effect that the actions taken by Telikom’s management when terminating Mr Opi’s employment were harsh and oppressive and therefore “in breach of section 41 of the Constitution”, for which breach Mr Opi in his prayer for relief has claimed damages under section 23 of the Constitution.
  11. While I accept that the ASOC is lacking in certain particulars and its phraseology could have been improved to better set forth the facts and law to be pleaded, I do not consider the ASOC to be so unclear as to not make sense, nor do I consider it to be so poorly drafted as to leave Telikom guessing as to what causes of action Telikom was required to meet.
  12. The plaintiff contends by his ASOC that he is entitled to three heads of relief: (1) judicial declarations in respect of his unlawful dismissal (2) damages for injury to his reputation, viz. defamation, and (3) damages under section 23 of the Constitution based on the application of section 41 of the Constitution to the circumstances of Mr Opi’s case.
  13. Apart from formal admissions pleaded by Telikom in its Defence filed on 13 August 2015, the facts pleaded by Mr Opi in his ASOC in support of each of these three heads of relief were either denied or neither admitted nor denied by Telikom in its Defence. Even though that Defence was filed before Mr Opi filed his ASOC, Telikom’s Defence continued to operate as a denial of the fresh matters pleaded by Mr Opi in his ASOC by virtue of Order 8 Rule 51(5)(d) and (e) NCR.
  14. Where a statement of claim is amended, the Rules do not require an amended defence to be filed if the defendant elects not to do so. Telikom’s Defence already filed operates in this way and any new claims in Mr Opi’s ASOC are taken to be denied: Yamanka Multi Services Ltd v National Capital District Commission [2010] N3904 (Hartshorn J).
  15. I find that Telikom well knew the causes of action it was required to answer for the purposes of the trial on assessment of damages and that Telikom was well aware of the different heads of relief being sought by Mr Opi in his ASOC. Telikom chose not to file an amended defence to Mr Opi’s ASOC but relied on its existing Defence as a denial of the new matters contained in the ASOC.
  16. I am satisfied that the ASOC sufficiently discloses the three causes of action which are relied upon by Mr Opi in this proceeding. Whether each of those causes of action would have been defensible by Telikom had the action been able to go to full trial on liability has, on the principles I have discussed above, been rendered irrelevant and beyond question by this Court.
  17. However, that is not the end of the matter. In accordance with the principles enunciated by the Supreme Court in Mel’s case, I add that I am satisfied that the three causes of action relied upon by Mr Opi in this proceeding have been pleaded by him with (barely) sufficient clarity. I am also satisfied that by reason of the summary judgment entered on 18 May 2018, the facts pleaded by Mr Opi in his ASOC to establish each of his three causes of action are now be taken as proven.
  18. But does this necessarily mean that just because summary judgment has been entered against the defendant, the Court automatically has the power to grant all of the relief which Mr Opi has claimed in his ASOC in this proceeding?
  19. The wording of term 1 the Court’s summary judgment of 18 May 2018 is clear. It states:

“1. Pursuant to Order 10, Rule 9A- Listings Rule, 15(2)(c) of the National Court Rules, judgment is entered for Mr Opi with damages to be assessed.”


  1. Term I of the summary judgment does not say that judgment has been entered for the Court to grant all relief claimed by Mr Opi. Judgment has been entered against Telikom on issues of liability only. I reiterate that the Court will not revisit any matter which touches upon Telkom’s liability to Mr Opi for each of those causes of action. In coming to this conclusion, I am guided by the overarching principle enunciated in Mel’s case that as long as a plaintiff’s claim has clarity in terms of the pleading of its causes of action and as long as Mr Opi has pleaded the essential facts to support those causes of action, a summary judgment resolves all questions of liability in respect of all matters pleaded in the statement of claim. This Mr Opi in this instance has done.
  2. For these reasons I reject Telikom’s submission that the Court should find that Telikom’s termination of Mr Opi’s employment was for proper cause and not illegal and that no damages should be awarded to Mr Opi.
  3. In the result I rule that the Court has no power to go behind the summary judgment entered in this proceeding on 18 May 2018 so as to revisit Telikom’s liability for any of the matters pleaded in Mr Opi’s ASOC. The summary judgment has determined that Telikom’s termination of Mr Opi’s employment was without proper cause and was unlawful.
  4. It is now for the Court to assess what relief and damages, if any, are to be awarded to Mr Opi for the three causes of action Mr Opi has pleaded in his ASOC. But before I embark on that assessment, I wish to make certain observations regarding the procedural history of this case which occurred following the entry of summary judgment on 18 May 2018.

Procedural history after summary judgment


  1. I take judicial note of the fact that the order of the Court for summary judgment against Telikom which was made by Kandakasi J on 18 May 2018 also contained an order for the parties to attend mediation in an endeavour for them to settle this proceeding. His Honour made a further order on 6 July 2018 which set out in detail the logistics and timeline to enable the mediation to take place. The mediation was conducted by external mediator Mr Tony O’Gorman on 26 and 27 July 2018. The mediation proved to be unsuccessful, as is evidenced by Mediator Mr O’Gorman’s certificate dated 27 July 2018 to that effect which was filed by him in this proceeding pursuant to Rule 9(5) of the National Court’s ADR Rules 2010.
  2. Despite the unsuccessful mediation, Kandakasi J continued to encourage Telikom to settle this proceeding with Mr Opi. On 20 February 2019 His Honour, when adjourning the case to its next mention date on 5 March 2018, directed Telikom by terms 5 and 6 of the Court’s order as follows [emphasis added]:

“5. The Defendant shall reconsider its position on the damages Mr Opi is willing to accept in full and final settlement of his claim, given that liability on the matters pleaded inclusiveof defamation has been resolved in favour of the Plaintiff and the brief discussions in Court today on the kinds of damages awarded in defamation cases.

  1. Unless the parties have settled this matter by end of February 2019 the Defendant shall endorse the Statement of the [R]elevant Facts and Issues for resolution prior to the return of the matter.”
  2. Telikom did not subsequently reconsider its position but chose to continue to resist negotiating any settlement of Mr Opi’s claim for damages. Telikom instead exercised its right to progress this proceeding to full trial on assessment of damages. But in so doing, Telikom failed to settle any Statement of Relevant Facts and Issues with Mr Opi in breach of term 6 of Kandakasi J’s order of 20 February 2019. This is a matter of concern which I refer to later in this decision.
  3. On 6 June 2019 Kandakasi J ordered that this matter be transferred to me and that I allocate a date for trial on assessment of Mr Opi’s damages.
  4. On 12 July 2019 I ordered the parties to file a trial book containing all pleadings and affidavits to be relied on by both parties at the trial for assessment of damages, the trial book to also contain all other documents relevant to assessment of Mr Opi’s damages. By that order the parties were required to settle the index to the trial book no later than 26 July 2019 and the trial book, duly paginated, tabbed and certified by counsel for each party was to be filed by 1 August 2019 ready for the return of the case before me on 2 August 2019 for allocation of a trial date.
  5. On 2 August 2019 there was no appearance by counsel for Telikom when the case was called. Counsel for Mr Opi, Mr Edward Wamp, informed the Court that he had been unable to file the trial book by 1 August 2019 as there had been disagreement with Telikom’s counsel, Mr Raymond Obora, regarding certain affidavits which each side wanted included in the trial book. I ordered that the trial book was to be filed by Mr Opi, with or without certification by bothcounsel, by 6 August 2019 and that any objection to the contents of the trial book would be dealt with by the Court at trial. I set the trial for assessment of Mr Opi’s damages down for 9 September 2019 at 9.30 am. I further ordered that the trial for assessment of damages would be by way of affidavit material, subject to the parties’ rights of cross-examination.
  6. The trial book was duly filed by Mr Opi’s lawyers on 6 August 2019. It was not certified correct by either counsel as they apparently could still not agree on its contents. This left the way open for each counsel to object at trial to any material which had been included in the trial book.
  7. The trial date of 9 September 2019 had to be vacated for reasons beyond the Court’s control. The parties’ respective counsel were notified by my Associate that the matter would return before me on 26 September 2019 for a fresh trial date to be allocated.
  8. On the return of the case before me on 26 September 2019, Mr Wamp appeared for Mr Opi. But again, there was no appearance by any counsel for Telikom. I ordered that the trial for assessment of Mr Opi’s damages be set down for 10 October 2019 at 9.30 am. I directed Mr Opi to file and serve on Telikom a replacement notice for trial by 30 September 2019. I also ordered that any notices under the Evidence Act, such as notices for cross-examination or notices of objection to use of affidavits, be delivered by 3 October 2019.

Assessment of Damages – Evidence Adduced at Trial


  1. The trial for assessment of Mr Opi’s damages proceeded before me on 10 October 2019. Mr Wamp appeared for Mr Opi. Mr Obora appeared for Telikom.
  2. At trial, the following affidavits were tendered into evidence for Mr Opi without challenge by Mr Obora for Telikom:

Exhibit P1 - affidavit of John Wani sworn on 21 April 2017

Exhibit P2 - affidavit of Robin Mia Kupul sworn on sworn on 25 April 2017

Exhibit P3 - affidavit of Daniel Wau sworn on 24 April 2017

Exhibit P4 – affidavit of James McPolly sworn on 25 April 2017

Exhibit P5 - affidavit of plaintiff Lars Opi sworn on 13 December 2018

Exhibit P6 - further affidavit of plaintiff Lars Opi sworn on 14 February 2019

Exhibit P7 - affidavit of Owen Boku sworn on 14 February 2019.


  1. The only affidavit tendered into evidence for Telikom at trial was the affidavit of Tusy Paulisbo sworn on 3 May 2017: Exhibit D1. Mr Paulisbo’s affidavit was not included in the trial book but no objection to its use by Telikom at trial was raised by counsel for Mr Opi, Mr Wamp.
  2. I observe that subsequent to my procedural Order of 2 August 2019, no notices for cross-examination of any of the abovenamed deponents were issued prior to trial on 10 October 2019 by either party and no objection at trial was taken by Mr Wamp or Mr Obora to any of the affidavits contained in the uncertified trial book. Mr Wamp had previously filed and served on 28 May 2018 a notice to Telikom that Mr Opi would be relying at trial on the affidavits of John Wani, Daniel Wau, Robin Mia Kupul and James McPolly all sworn in April 2017 and the affidavit of Mr Opi sworn on 13 December 2018.
  3. I note for the record that at trial Mr Obora did not seek to tender into evidence the affidavit of Mr Edward Apis, the Acting Manager of Telikom’s Legal Unit, sworn on 29 January 2019 which was included as document no. 9 in the trial book. Mr Apis’s affidavit was therefore excluded from the evidence adduced by Telikom at trial. In any event Mr Apis’s affidavit related to matters of procedural history for this case. It did not relate to any of the matters in issue as regards the relief sought by Mr Opi or to the Court’s assessment of damages for Mr Opi.
  4. As for the affidavit of Tusy Paulisbo sworn on 3 May 2017 which was admitted into evidence for Telikom at trial as Exhibit D1, I observe that all of the content of that affidavit related to Telikom’s denial of any liability arising from its termination of Mr Opi’s employment. Nothing in Mr Paulisbo’s affidavit addresses issues going to assessment of Mr Opi’s damages for Telikom’s termination of Mr Opi’s employment. Mr Paulisbo’s affidavit serves no purpose at all as any challenge to the uncontested evidence of Mr Opi and his witnesses on issues relating to assessment of Mr Opi’s damages. The whole of Mr Paulisbo’s affidavit is irrelevant to any consideration by the Court of assessment of the categories and quantum of damages to which Mr Opi may be entitled.
  5. As was pointed out by Mr Wamp at the trial on assessment of damages, and as I have just ruled, all liability for the substantive issues before the National Court in this proceeding was subsumed by the summary judgment of 18 May 2018. The plaintiff’s position is that Telikom is estopped by reason of the summary judgment from now denying or canvassing any matters going to Telikom’s liability for the unlawful termination of employment of Mr Opi or for its defamation of Mr Opi. Mr Wamp submitted that the only competent issues for this Court to determine at this juncture are firstly, the declaratory orders sought by Mr Opi, and secondly only those issues which directly relate to the quantum of damages to be awarded to Mr Opi under the categories or heads of damages which have been claimed by Mr Opi.
  6. Mr Obora in answer, without having objected to Mr Opi’s use of any of the affidavit material tendered in evidence for Mr Opi at trial, submitted at trial that if the Court declined to revisit issues going to Telikom’s liability, then Mr Opi had still failed to prove with credible evidence that he had suffered any injury to his reputation or any pecuniary losses and that therefore no award of damages should be made in Mr Opi’s favour.

The Evidence on Assessment of Damages


  1. The undisputed facts of the case adduced in evidence at trial of assessment of Mr Opi’s damages are these. As at the time of trial Mr Opi was 49 years of age. He comes from Mount Hagen, Western Highlands Province. He is an accountant by profession. He is married and has four children. His eldest daughter is attending University of Papua New Guinea. His three younger children are attending schools at Mount Hagen.
  2. The plaintiff commenced employment with Telikom on 6 June 1994 as a manager accountant, based in Telikom’s regional headquarters in Mount Hagen. At the time of Mr Opi’s termination of employment by Telikom on 3 October 2013, Mr Opi had already held for many years the position of Regional Manager-Finance & Support Services for Telikom’s Highlands Region.
  3. As at the date of notice of termination of Mr Opi’s employment on 3 October 2013, Mr Opi had been in the service of Telikom’s Finance Division for 19 years 4 months. The whole of his career had been in the service of Telikom.
  4. The plaintiff had been based at Telikom’s regional headquarters in Mount Hagen for the entire duration of his employment with Telikom. His family home was and still is at Mt Hagen. Except for his daughter now studying at UPNG in Port Moresby, Mr Opi and his family have never lived elsewhere in Papua New Guinea.
  5. The plaintiff’s service with Telikom was not governed by any written contract of employment. Instead Mr Opi had from inception of his employment been engaged by Telikom under its various employment policies and guidelines, including Telikom’s Disciplinary Policy 2010 and Code of Conduct Policy 2010.
  6. By memorandum dated 3 October 2013 signed by Martin Veisame, Acting Chief Executive Officer of Telikom, Mr Opi was given peremptory notice of termination of his employment. The memorandum, which was on Telikom’s letterhead, indicated that an internal investigation had been carried out in connection with certain aspects of Mr Opi’s employment. The full text of the memorandum is reproduced below (without correction and retaining all emphasis in bold font):

“MEMORANDUM

To: Lars Opi
Finance Manager
Highlands Region

Date: 03rd October 2013

Dear Mr Opi,

Subject: NOTICE OF TERMINATION

It is with regret to advice that the Telikom Board has now reached a decision to terminate your employment effective 5th October 2013.

Termination of employment of any employee is not an issue that is taken lightly as in your case, Telikom PNG to be fair with you have conducted an internal investigation, carried out by our internal investigation units and during the course of investigation the following were revealed:-

  1. TPNG vehicle was damaged whilst under your custody. Records show that you are not entitle to a 24/7 vehicle
  2. Final Warning for fighting at the workplace
  3. Currently on Performance Improvement Plan (PIP) indicating poor performance on your part as a senior employee.

These are established facts and Telikom PNG Limited have concluded that you do not aspire to uphold the “core values” of the organisation which amongst other talks about honesty, integrity and the need for staff to work together in a friendly environment.

Our assessment of the gravity of misconducts committed by you warrants TERMINATION.

You are advised that there is no appeal process within Telikom however, if you feel that your termination is unfair and/or wrongful, you are at liberty to seek redress through the Court.

We take this opportunity to thank you for your contributions to the company in the past years and wish you all the best in your future endeavours.


[signed]


Martin Veisame
Acting Chief Executive Officer

Cc: RBMH, CFO, DMHR”


  1. Copies of Mr Veisame’s memorandum were marked for delivery to Telikom’s Regional Business Manager-Highlands (RBMH), its Chief Finance Officer (CFO) and its Divisional Manager-Human Relations (DMHR).
  2. As Mr Veisame was based at Telikom’s national headquarters at Waigani, National Capital District, one of his support staff, John Wani, was given the task of delivering the original of Mr Veisame’s memorandum to Mr Opi and a copy of that memorandum to Mr Willie Agu, Telikom’s Regional Business Manager-Highlands Region at Telikom’s Regional Office at Mount Hagen.
  3. Mr Wani states in his affidavit sworn on 21 April 2017 [Exhibit P4], unchallenged by Telikom’s counsel at trial, that he read a copy of Mr Veisame’s memorandum addressed to Mr Opi and he then took an Air Niugini flight from Port Moresby to Mount Hagen on 4 October 2013, and upon arrival in Mount Hagen he delivered to Mr Agu a copy of Mr Veisame’s memorandum giving notice of termination of Mr Opi’s employment at about 2.00 pm that same day.
  4. However, Mr Wani did not leave it at that. After he delivered to Mr Agu a copy of Mr Veisame’s memorandum addressed to Mr Opi, that same afternoon Mr Wani then broadcast the reasons given in Mr Veisame’s memorandum for Telikom’s termination of Mr Opi’s employment to various of Mr Opi’s colleagues and co-workers at Telikom’s Mount Hagen regional office, those reasons having already been found by this Court by virtue of the summary judgment to be defamatory of Mr Opi. Mr Wani states at paragraph 6 of his affidavit:

“Later that afternoon I met with some Telikom staff who enquired about Mr Opi’s employment and I informed them that Mr Opi has been terminated from his employment for fighting with staff members, damaging and abusing company property and for non-performance.”


  1. By letter dated 8 October 2013 Mr Opi promptly replied to the termination notice contained in Mr Veisame’s memorandum. The plaintiff strenuously denied the allegations of misconduct on his part which were said by Mr Veisame to have been revealed by Telkom’s internal investigation of Mr Opi’s conduct. The relevant portions of Mr Opi’s rebuttal of Mr Veisame’s allegations are set out below (without correction):

“08th October 2013

The Acting CEO
Telikom PNG Ltd
PO Box 1349
Boroko, NCD


Dear Mr Veisame,


I have received your termination letter. It is also mentioned that TELIKOM does not have an appeal process. Please note that I was not given any opportunity to respond to the allegations raised. In this unfortunate situation, I beg you to read and understand my respond to these allegations.


Firstly, I must inform you that I have a case of job transfer from Mt Hagen to Madang. I appealed the decision with the Board and the Board through the Chairman responded on the 28th September 2013 that he will request through the Deputy Chairman of the Board to the Chairman of the HR to revert the decision. I had no other case apart from this.

Paragraph two of the termination letter says that an internal investigation was conducted. This is misleading information by Telikom Managements who were responsible over this matter. There were no investigations. My Supervisors in Mt Hagen and HQ can confirm that.

Now, these are my explanations to the allegations.


  1. Damaging company vehicle and 24/7 personal use.
  2. Warning of fighting at workplace.
  3. Current improvement Plan (PIP).

The termination is a cost to TELIKOM. I have 19 years of work experience. I know my customers. I know all business houses and especially I have a good relationship with the Chamber of Commerce. I have a good relationship with the community. I have a record of dealing with issues affecting the business with the surround communities. I am the only experience Manager in the Region who supports the business Manager on many of our operations. My Regional Manager said this in all our forums.

My termination is also a cost to me and my family. My career is destroyed. My children will suffer their schooling. I am mentally sick right now.


I now appeal to you the Acting CEO to consider my explanations to the allegations and my views on the termination. I must say again that the allegations are misleading and of no substance. My termination is illegal and I should be given a second change to be reinstated in my substantive position.

Yours sincerely,


[signed]


Lars Opi

(Terminated employee)

CC: Chairman TELIKOM Board”


  1. At the time of termination of his employment by Telikom in October 2013, Mr Opi was the principal breadwinner for his family. The plaintiff’s wife did have periodic employment in the past. According to Mr Opi’s evidence, as at 2013 Mr Opi’s wife was earning K500 per fortnight which augmented his income from Telikom. However, Mr Opi’s unchallenged evidence in this regard is that his wife’s fortnightly wage was by itself seriously insufficient to support Mr Opi and their four children following Mr Opi’s dismissal by Telikom.
  2. The plaintiff’s letter of 8 October 2013 failed to elicit any response from Mr Veisame or the Board of Telikom. The plaintiff was therefore given no opportunity to present his case to Mr Veisame or to the Board in answer to the allegations which the so-called internal investigation had reported to the Board, if indeed any such investigatory report was ever made. In frustration Mr Opi then engaged the legal services of Edward Wamp Lawyers. On 20 March 2015 Mr Wamp wrote to the new Chief CEO of Telikom, Mr Michael Donnelly, in these terms:

“Dear Mr Donnelly

Unlawful Termination of Employment – Lars Opi


We act for Lars Opi.


Our client’s employment was terminated by letter dated 3 October 2013 (Termination Letter) from Martin Veisame who was the Acting Chief Executive Officer of Telikom PNG Limited (TPNG) at the time.

According to the Termination Letter, our client was terminated for the following reasons: -


  1. TPNG vehicle was damaged whilst under our client’s custody. According to the records our client was entitled to 24/7 motor vehicle.
  2. Final warning for fighting at the workplace
  1. Currently on Performance Improvement Plan indicating poor performance on this part as a senior employee of TPNG.

In response to the Termination Letter we state the following: -

  1. the reasons for our client’s employment termination (reasons) mentioned in the Termination Letter under paragraph numbered 1, 2 and 3 were already resolved by the management of TPNG. This is clearly explained in the letter from our client dated 8 October 2013 written in response to the Termination Letter.
  2. the management of TPNG never notified our client that the reasons will be reviewed and termination of our client’s employment will be considered as a disciplinary action.

We consider that the actions taken by TPNG to terminate our client: -

  1. was harsh, oppressive and unlawful; and
  2. tarnished his professional reputation.

We therefore request that: -

  1. the Termination Letter be retracted and an apology be made regarding the manner in which our client was treated; and
  2. our client be properly retrenched with all his final entitlements paid out to him as calculated and printed by the payroll officer of your Human Resource Division on 18 March 2015 (final entitlement summary).

If TPNG fails to prove a favourable response by 31 March 2015, we will file a Writ of Summons at the National Court at Waigani and seek the following orders: -

  1. declaration that our client’s employment termination was unlawful.
  2. enforcement of his Constitutional rights.
  1. damages for loss and suffering.
  1. cost of the proceeding to be paid on an indemnity basis.

Attached are the following:

  1. Termination Letter
  2. Letter from our client dated 8 October 2013
  1. final entitlement summary.

Yours faithfully


(signed)


Edward Wamp Lawyers


CC: Human Resource Manager
Telikom PNG Limited
PO Box 6775
BOROKO
National Capital District”


  1. As the letter of 20 March 2015 from Edward Wamp Lawyers similarly failed to prompt any response from Telikom’s new CEO, its Board or its Human Resource Manager, Mr Opi commenced this current proceeding WS No. 893 of 2015 on 3 July 2017.
  2. None of the above evidence adduced for Mr Opi at the trial on assessment of damages on 10 October 2019 was disputed by counsel for Telikom. All the affidavit material which contained this evidence for Mr Opi, that is to say Exhibits P1 to P7 inclusive, was admitted into evidence without demur from Mr Obora and without cross-examination.


Issues


  1. Having heard the evidence and in view of Mr Opi’s pleadings, I find that the primary issues which are presented for determination by the Court on this assessment of damages are these:
  2. I will address each of these issues in the above order, by reference to the relevant facts and evidence and by reference to applicable law.


Issue 1 - Declaratory Orders sought by the Plaintiff


  1. The power of the Supreme Court and the National Court to grant declaratory orders is derived from s.155(4) of the Constitution:

“155(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”


  1. This oft-used provision of the Constitution has two limbs. The first limb is declaratory of the jurisdiction of the Supreme and National Courts to make orders “in the nature of prerogative writs”, that is to say orders in the nature of the English common law remedies of certiorari, mandamus, prohibition and quo warranto. The second limb of s.155(4) is directed towards the power of the Supreme and National Courts to issue preventative or remedial judicial process, including judicial declarations and injunctions, for the purpose of protecting or enforcing a party’s primary rights: SCR No. 2 of 1981; Re Section 19(1)(f) Criminal Code [1982] PNGLR 150 per Greville J at pp 166-167.
  2. What then are the declaratory orders which the National Court may have power to make in the present case, given that summary judgment against Telikom has been granted and liability is no longer in issue?
  3. The resolution of this question lies in the nature of the primary relief sought by Mr Opi. The plaintiff has as part of his primary relief in his ASOC sought judicial declarations that the termination of his employment was unlawful and that the document conveying notice of termination of his employment was also unlawful. These claims for relief are in addition to his claim for damages for defamation and his claim for damages under s.23 of the Constitution.
  4. It has long been established in this jurisdiction that a person who is aggrieved by a decision made by a public authority may choose between seeking declaratory relief or an injunction as of right by bringing an action by way of writ of summons, originating summons or other originating process as opposed in the alternative to seeking orders for declaratory or injunctive relief under the special procedure for judicial review prescribed by Order 16 NCR: National Executive Council, Attorney-General and Luke Lucas v Public Employees Association of Papua New Guinea [1993] PNGLR 264.
  5. It is similarly well-settled law that declaratory relief can be claimed as a form of primary relief on its own or as secondary relief. Declaratory relief when sought in originating process can be either primary relief or secondary relief consequential on grant of other forms of primary relief, such as damages. But if declaratory relief is sought in terms of primary relief, it must be pleaded first in the originating process before any consequential relief is pleaded. Injunctive relief is consequential and cannot stand on its own: Bros Rugby Football Club Inc v Port Moresby Rugby Football Union Inc (2004) N2537, Injia DCJ (as he then was).
  6. In Paul Sireh & Ors v Miai Larelake& Ors (2007) N3181 Injia DCJ, having ruled that the plaintiffs had sufficient locus standi to seek leave for judicial review because their rights were affected, then continued:

“However, in my view, the plaintiffs’ rights can be more appropriately enforced by an action for damages for breach of employment contract or declaratory orders for breach of statutory duty such as s.24(2)(v), s.34 and s.37 of the PSMA or General Orders. They should file fresh actions by writ of summons and properly plead their cause of action. The appropriate relief would be one of declaratory orders and damages for breach of contract or breach of statutory duty. I do not think judicial review procedure is the way to go.”


  1. Order 4 r.7(1) NCR provides that an originating process shall state specifically the relief claimed. A plaintiff is restricted to what has been pleaded in his originating summons or writ of summons and statement of claim: Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694; Medaing v Ramu Nico Management (MCC) Ltd (2011) SC 1144.
  2. In the present case, Mr Opi has expressly sought in the prayer for relief in his ASOC that two judicial declarations be made as part of the primary relief he is seeking from this Court. The plaintiff has pleaded sufficient facts in support of his claim for those judicial declarations notwithstanding that he has not pleaded any cause of action based on wrongful dismissal or unfair dismissal and has relied instead on causes of action founded on the tort of defamation and enforcement of his constitutional right for protection against a course of conduct taken by Telikom and alleged by Mr Opi to have been a proscribed act within the meaning of s.41 of the Constitution.
  3. Applying the principles and rulings discussed above on the jurisdictional and procedural aspects of the National and Supreme Courts to make judicial declarations, I am satisfied that this Court has power under s.155(4) of the Constitution when assessing damages after summary judgment to in addition to damages also grant the two judicial declarations which Mr Opi is seeking in this instance as those declarations form part of the primary relief set out in Mr Opi’s prayer for relief in his ASOC. Had liability remained in issue and summary judgment not been entered, the Court would always have had power to have granted those judicial declarations if liability on the part of Telikom had been determined at full trial on issues of liability and quantum.
  4. The plaintiff is without more accordingly entitled to the declaratory relief he seeks in paragraph 1 of his prayer for relief in the ASOC. A declaration will be made in these terms:

“1. A declaration is made that the termination of the Plaintiff’s employment by Telikom (PNG) Limited on 3 October 2013 was unlawful.”


  1. As to the declaration which Mr Opi seeks in paragraph 2 of the prayer for relief in his ASOC, this will be granted but with clarification that the “letter” which conveyed notice of Telikom’s unlawful termination of Mr Opi’s employment was actually a memorandum signed by Telikom’s Acting Chief Executive Officer on behalf of the board of Telikom. A declaration will accordingly be made in favour of Mr Opi in these terms:

“2. A declaration is made that the memorandum dated 3 October 2013 signed by Acting Chief Executive Officer Martin Veisame on behalf of the Board of Telikom (PNG) Limited and addressed to the Plaintiff giving notice of termination of the Plaintiff’s employment with Telikom (PNG) Limited with effect from 5October 2013 was unlawful.”


Issue 2 - Plaintiff’s Claim for General Damages


  1. What is the measure of Mr Opi’s general damages in respect of his several claims for:
  2. It is significant to observe at the outset of consideration of this issue that Mr Opi’s claim for general damages as pleaded in paragraph 3 of the prayer for relief in his ASOC is for defamation. The plaintiff has also claimed general damages in paragraph 5 of hisprayer for relief for “hardship, loss and suffering”.
  3. In my view, Mr Opi’s separate claim for general damages for “hardship, loss and suffering” is misconceived because these are factors which the Court is in any event required to consider under the rubric of general damages for defamation. I will disregard Mr Opi’s separate claim for general damages for “hardship, loss and suffering” as those factors will be considered by me under Mr Opi’s claim for general damages for defamation.
  4. Before I proceed further, I remind myself of Kandakasi J’s summation of the law of defamation in PNG in Wyatt Gallagher Bassett (PNG)Ltd v Benny Diau (2002) N2277 where His Honour said [page 18]:

“The law on defamation and the Defamation Act [Chapter 293] prohibits a person in effect from unlawfully publishing a defamatory matter against a person. It follows therefore that a defamatory publication is unlawful unless the publication is protected, privileged or excused by law. ... an individual who is unlawfully defamed and suffers in the consequence loss and injury to his or her reputation is entitled to damages.”


  1. Cannings J in Mathew Nogonda v Martin Lakari (2019) N7138 similarly observed [para. 12 at p.6]:

“Defamation is historically, like negligence, a tort, emerging from the common law of England. However in PNG the law of defamation has been codified in the Defamation Act, so it is convenient to label it as a statutory tort. The elements of a cause of action in defamation are prescribed by the Defamation Act, Sections 5 and 24. It must be proven that:

(a) the defendant made a defamatory imputation of the plaintiff;

(b) the defendant published it; and

(c) the publication was unlawful in that it was not protected, justified or excused by law.”
  1. Telikom’s liability for its defamation of Mr Opi is no longer in issue. Proof of Telikom’s defamation of Mr Opi has in this instance been overtaken by the summary judgment entered against Telikom on 18 May 2018.
  2. Turning to the principles of law which apply to the Court’s assessment of quantum of general damages for defamation, the starting point is that no proof of actual injury to reputation is required. General damages awarded for defamation are “at large”.
  3. Matters affecting the level of an award of general damages are succinctly stated in Gatley on Libel and Slander 12th Ed. (2013) Sweet & Maxell at para.9.5 pp 335-337:

“Damages are “at large” in the sense that they cannot be assessed by reference to any mechanical, arithmetical or objective formula ... [the judge] is entitled to take into consideration a wide range of matters including the conduct of the claimant, his credibility, his position and standing and the subjective impact that the libel has had on him, the nature of the libel, its gravity and the mode and extent of its publication, the absence or refusal of any retraction or apology, and the conduct of the defendant from the time when the libel was published down to the verdict.”


  1. It has long been accepted in Papua New Guinea that general damages for defamation, being “at large”, are awarded to compensate the plaintiff for injury to personal reputation, feelings, health and any injury to reputation in business: Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16 per Wilson J. at p.26:

“Windeyer J, spoke of what is mean by injury to a person’s reputation in Uren v John Fairfax & Sons Pty. Ltd.[2]in the following terms:

“A man’s reputation, his good name, the estimation in which he is held in the opinion of others, is not a possession of his as a chattel is. Damage to it cannot be measured as harm to a tangible thing is measured. Apart from special damages strictly so called and damages for a loss of clients or customers, money and reputation are not commensurable. It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways – as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money. The variety of the matters which, it has been held, may be considered in assessing damages for defamation must in many cases mean that the amount of a verdict is the product of a mixture of inextricable considerations. One of these is the conduct of and the intentions of the defendant, in particular whether he was actuated by express malice. Yet in the abstract the harm that a plaintiff suffers cannot be measured by, nor does it necessarily depend at all upon, the motive from which the defendant acted or upon his knowledge or intentions.”


  1. A leading case on defamation in this jurisdiction is PNG Aviation Services Pty Ltd v Michael Thomas Somare [1997] PNGLR 515. At p.574 Bredmeyer J observed that when the Court assesses general damages for defamation, the extent of injury to reputation is next to impossible to ascertain; and to obtain an exact measure of adequate compensation is equally difficult.The law therefore presumes in an action for defamation that damage to the plaintiff’s reputation has arisen from publication of the defamatory material and that the plaintiff is therefore entitled without more to an award of damages sufficient to vindicate his reputation according to the seriousness of the defamation, the range of its publication and the extent to which the defendant has persisted with the defamation. The claim for defamation, when founded in the cause of action known as libel, or written defamation, is actionable per se, without the fact of injury to the plaintiff’s reputation needing to be extensively pleaded or supported by full particulars.
  2. PNG Aviation Services Pty Ltd v Somare was the first in a series of National Court cases which significantly increased awards of general damages for defamation. In that instance, general damages of K100,000 were awarded to each of 3 company directors, a total of K300,000, whose aircraft maintenance company and themselves had been subjected to totally false allegations in the press that they were disreputable, dishonest and had attempted to cheat the PNG Government. The company itself was awarded K50,000 as general damages for loss of its goodwill and financial losses sustained as a result of the defamatory publications, but this was increased by the Supreme Court on appeal to general damages of K100,000 for injury to the company’s trade reputation, K1,500,000 on account of financial losses caused by injury to the company’s trade reputation or goodwill and a further K100,000 for aggravated damages: PNG Aviation Services Pty Ltd v Somare (2000) SC658 (Salika, Sevua and Sakora JJ).
  3. The Supreme Court in David Coyle, Rimbink Pato & Alfred Manase v Loani Henao [2000] PNGLR 17 expounded further on the basic principle that general damages are at large:

“The law does not say that the person defamed must prove injuries before he can be compensated. Damages awarded in defamation serve three purposes, which overlap considerably in reality and ensure that “the amount of a verdict is the product of a mixture of inextricable considerations”, Uren v John Fairfax & Sons Pty Ltd (1966) 117 C.L.R.118 per Windeyer J. The three purposes are:


(i) consolation for the personal distress and hurt caused to the [respondent] by the publication;

(ii) reparation for the harm done to the appellant’s personal and (if relevant) business reputation; and

(iii) vindication of the appellant’s reputation:

Carson v John Fairfax & Co at p.60 per Mason CJ, Deane, Dawson and Gaudron JJ.”


  1. The appeal in Coyle’s case was against an award of K50,000 made by Woods J in the National Court in favour of the respondent, a well-known lawyer and former president of the PNG Law Society. The respondent was found by Woods J to have been defamed by members of another law firm in a letter which they wrote to the Attorney-General alleging professional misconduct on the part of the respondent. The Supreme Court (Los, Jalina, Kirriwom JJ.) declined to accept the submission for the appellants that the award of general damages made by the trial judge was excessively high and instead held, at p.33:

“The amount awarded is not so greatly outside the discretionary range “such as to evoke and exclamation of astonishment”. This appeal must therefore fail as the appellants have failed to show or demonstrate that the trial judge had erred by acting on a wrong principle of law or through misapprehension of facts. In the circumstances we dismiss the appeal and confirm the award of K50,000.


  1. Coyle’s case was followed by a series of defamation cases between years 2000 to 2003 where awards of K50,000 were similarly made for general damages for defamation found to be serious but not as grievous as in PNG Aviation Services v Somare: see Lin Wan Xin & Anor v Wang Yanhong (2001) NC160) (Sevua J); Whyatt Gallagher Bassett (PNG) Ltd v Benny Diau (2002) N2277 (Kandakasi J); Arlene Pitil v Turis Clytus(2003) N2422 (Kandakasi J).
  2. In David Lambu v George Dugube (2006) N3082 the plaintiff, a qualified lawyer and respected member of his local and wider PNG community, was seriously defamed by a police officer who, acting on a defamatory letter written by someone else, widely circulated and published the contents of that letter to crowds of people, possibly as many as 1,000 persons, at meetings held at Surinki in the Laiagam District of Enga Province. The plaintiff was falsely accused of having purchased and supplied a firearm and a carton of ammunition to purposely kill persons involved in a tribal fight with the tribe of the plaintiff’s wife. The Court found that the defamatory statements, apart from being untrue, gravely endangered the life of the plaintiff. The plaintiff was awarded general damages of K100,000 for injury to his professional reputation and social standing.
  3. In the more recent case of Justice Gibbs Salika v Pacific Star Ltd (2014) N5699 the National Court awarded the plaintiff, a respected senior member of Papua New Guinea’s judiciary and now Chief Justice, general damages of K250,000 and aggravated damages of K50,000, a total of K300,000, for a most egregious defamation published in the National newspaper in an article which contained untrue imputations, among others, that the plaintiff was unfit and unworthy to be a judge and that he was a friend of and member of the same church as one of the litigants in a different case in which His Honour had been presiding. The newspaper’s reporter had failed to cross-check with the Court staff the purported but incorrect facts which had prompted the offending newspaper article. The reporter had merely relied on a statement given to her by another litigant in that case. Had the reporter checked the story with Court staff before publication in the newspaper, she would have quickly ascertained that those parts of the article she had written which related to the plaintiff were untrue. The editor of the newspaper compounded the injury to the plaintiff’s reputation by declining to print an apology when requested by the plaintiff to do so, thereby failing to mitigate the quantum of general damages awarded to the plaintiff, which in turn, when taken with the defendant’s overall lack of remorse and indifference to the injury which the defamation had caused to the plaintiff’s reputation, accounted for the additional award of K50,000 in aggravated damages.
  4. In the present case Mr Wamp submitted, after he referred to a number of cases dealing with general damages for defamation, that an amount of K150,000 would be an appropriate amount to be awarded by the Court as general damages.
  5. In answer, Mr Obora for Telikom persisted with his submission that Mr Opi was terminated for lawful cause despite summary judgment having been entered against Telikom. Mr Obora then submitted in the alternative that even if the content of Mr Veisame’s memorandum was defamatory and publication had occurred, publication of the defamatory matter was made in good faith in the best interest of Telikom and that therefore no award of general damages should be made in favour of Mr Opi.
  6. Turning to the evidence adduced by Mr Opi at trial as to the quantum of general damages he should be awarded in the present case, I consider that the undermentioned matters have been proven on the balance of probabilities and are relevant to the Court’s assessment of that quantum.
  7. Publication of Mr Veisame’s memorandum with content defamatory of Mr Opi first occurred on 3 October 2013 at Telikom’s headquarters at Waigani when Mr Veisame gave an open copy or copies of that memorandum to one of his support staff, Mr Wani, to hand-deliver to Mr Opi and to Mr Agu, Telikom’s regional business manager for the Highlands region, both of whom were based at Telikom’s office in Mt Hagen.
  8. Re-publication of Mr Veisame’s memorandum occurred in the afternoon of 4 October 2013 when Mr Wani informed various of Mr Opi’s colleagues and staff of Telikom at its Mount Hagen office of the defamatory reasons contained in that memorandum for Telikom’s termination of Mr Opi’s employment.
  9. Mr Veisame failed to ensure proper confidentiality when making arrangements for hand-delivery of his memorandum of 3 October 2013 to Mr Opi by Mr Wani, and with delivery of what should have been similarly confidential copies to senior management of Telikom. No steps were taken by Mr Veisame to have prevented Mr Wani from reading the memorandum and repeating its contents to others.
  10. The observations made by Kandakasi J in Wyatt Gallagher Bassett (PNG) Ltd v Benny Diau (2002) N2277 regarding publication of defamatory material are most apposite here. His Honour, when referring to the English case of Pullman & Anor v Walter Hill & Co., Limited [1890] UKLawRpKQB 193; [1891] 1 QB 524, had this to say:

“This case makes it clear that an author of a defamatory letter marked “private” or “confidential” may still be found to have published the letter if he has taken no step to have it delivered direct to the person of whom it has been written. The fact that the letter is marked “private” or “confidential” is of no benefit to the author if such a letter gets in the hands of a third party in the ordinary course of business. That amounts to publication. The case also makes it clear that if the letter gets dictated to or is typed for the author by a third person such as a secretary, that in itself amounts to publication.”


  1. It is not disputed that Mr Veisame was acting in the course of his employment as Acting Chief Executive Officer of Telikom when he allowed Mr Wani to have unfettered access to the memorandum he had prepared at the behest of Telikom’s Board giving notice to Mr Opi of the purported reasons for termination of Mr Opi’s employment. Had Mr Veisame taken reasonable steps to exercise strict confidentiality for the arrangements surrounding delivery of his memorandum to Mr Opi, Telikom would not have been vicariously liable for the defamation. Telikom would then only have had to face Mr Opi’s claim in this proceeding for judicial declarations that the termination of his employment by Telikom was unlawful and/or that such termination was a “proscribed act” within the meaning of s.41 of the Constitution. However, this is not the situation. The failure by Mr Veisame to ensure the confidential delivery of his memorandum terminating Mr Opi’s employment of more than 19 years of service to Telikom in turn exposed Telikom to liability for Mr Opi’s claim for defamation, which liability is now an incontestable fait accompli because of the summary judgment which was entered in this proceeding against Telikom on 18 May 2018.
  2. There is extensive evidence of Mr Wani’s re-publication of the content of Mr Veisame’s defamatory memorandum.
  3. Mr Robin Mia Kupul in his affidavit sworn 25 April 2017 [Exhibit P1] deposes that in October 2013 he was then employed by Telikom at its Regional Office at Mount Hagen as Team Leader of Telikom’s Network Division. Mr Kupul states at paragraph 3 of his affidavit:

“On 4 October 2013 at around 2.00 p.m. to 3.00 p.m. at the office of TPNG, a retrenched officer Mr John Wani came to our Lines Depot while I was with my Senior Officer Dorome Wii together with Daniel Wau, a junior support staff of TPNG. We shook hands and greeted each other, we asked him how he was doing and to our surprise he told us that he was now working for the acting Chief Executive Officer of TPNG Mr. Martin Veisame (CEO). He said he came to serve Lars Opi our Reginal [sic] Finance Manager his termination letter. He boasted himself saying that he was now part of the executive management team and the right hand man and chief advisor to the CEO, he said that and I quote “We decided to kick Lars Opi out”. I asked him what Mr Opi did to be terminated and he said, he bumped a TPNG vehicle, fighting with co-worker and poor work performance he went on saying that people like him had no place in TPNG. Because knowing Lars Opi and working closely with him over many years I did not want to hear more the bad news so I excused myself and my t[w]o co-workers Mr. Dorome Wii and Daniel Wau also followed me. Knowing Mr Wane’s character I believe that he would have told every staff who returned to TPNG to sign off for work about Mr Lars Opi’s termination.”


  1. Mr Kupul’s recollection of his encounter with Mr Wani in the afternoon of 4 October 2013 is corroborated by the evidence of Mr Daniel Wau, a former employee of Telikom based at Mount Hagen, who deposes in his affidavit sworn on 24 April 2017 [Exhibit P2] that:

“On 4 October 2013 at the office of TPNG, a retrenched officer Mr John Wani came to our Lines Depot while I was with two of my co-workers Dorome Wii together with Robin Mia Kupul. Mr Wani told us that he flew in from Port Moresby just to serve Lars Opi his termination letter. We asked him why Lars Opi was being terminated and he responded saying that it was because of him fighting with the staff, damaging company vehicle and other offenses. Mr Wani had a lot to boast about himself at that time.”


  1. Publication and re-publication of the defamatory content of Mr Veisame’s memorandum having occurred on 3 and 4 October 2014, Mr Opi responded almost immediately to the allegations made against him in that memorandum. The plaintiff’s reply, which is annexure “B” to his affidavit sworn on 13 December 2018 [Exhibit P5], contained a vehement denial of the allegations which had been made against him in Mr Veisame’s memorandum. No evidence was adduced by Telikom at trial which contradicted any of the following of Mr Opi’s assertions set out in his reply to Mr Veisame:
    1. that no internal investigation into the matters alleged against Mr Opi had been carried out by Telikom and that this could be confirmed by Mr Opi’s supervisors in Mount Hagen and Telikom’s headquarters at Waigani;
    2. that Mr Opi had not caused damage to any vehicle owned by Telikom. What had happened was that a Telikom vehicle, for which Mr Opi had permission from a superior officer to take home, had window glass stolen by criminals. The plaintiff had reported the theft of that window glass to Telikom management at the Mount Hagen office, which directed him to replace the stolen glass, which he did at his own cost;
    1. that although historically there was an incident more than 4 years previous which had involved Mr Opi in an altercation in the workplace, as a result of which Mr Opi had received an unfair warning, a letter sent at the time to Telikom management from his lawyers, Kunai & Associates, appealing the warning he had been given had never obtained any response from Telikom’s management;
    1. that a meeting which Mr Opi had with Telikom’s management regarding the area of debt collection for the Mount Hagen region (which meeting was presumably held sometime in late 2012) produced differing statistics and that the debt collection figures for Telikom’s Mount Hagen region from January 2013 to July 2013 were higher than Telikom’s other 3 regions – all of which could be confirmed by Mr Opi’s supervisors in Mount Hagen and Telikom’s headquarters at Waigani;
    2. that Mr Opi’s personal assessment of the reason for termination of his employment was because of retribution by Telikom’s Board for the inability of himself and Telikom’s administration manager at the Mount Hagen office to have been able to book two nights’ accommodation for two senior Telikom officials within Mount Hagen town who had then recently arrived at a time when all hotel accommodation was fully booked by a high level prime ministerial delegation which was then visiting Mount Hagen – and the only accommodation which Mr Opi had been able to locate for the two Telikom officials was at Rondon Ridge Motel located 2 kilometres from Mount Hagen. The two senior Telikom officials, named by Mr Opi in his reply to Mr Veisame, were said by Mr Opi to have been upset with him because of this and they prematurely departed the next day. The plaintiff stated in his reply to Mr Veisame’s memorandum that he was told by one of the named officials, a director on Telikom’s Board, that he “deliberately provided them with second class accommodation” and that this was the reason senior management had made a decision to transfer him to Telikom’s Madang office – which decision Mr Opi had appealed to Telikom’s Board and Human Resources division but which appeal had gone unanswered and had instead prompted the decision by Telikom’s Board to terminate his employment.
  2. I observe that Mr Opi’s reply dated 8 October 2013 to Mr Veisame’s memorandum concluded with the following refutation of the allegations made against him:

“This termination is a cost to TELIKOM. I have 19 years of work experience. I know my customers. I know all business houses and especially I have a good relationship with the Chamber of Commerce. I have a good relationship with the community. I have a record of dealing with issues affecting the business with the surround[ing] communities. I am the only experience[d] Manager in the Mount Hagen region who supports the [B]usiness Manager on many of our operations. My Regional Manager said this in all our forums.


My termination is also a cost to me and my family. My career is destroyed. My children will suffer their schooling. I am mentally sick right now.


I now appeal through you the acting CEO to consider my explanations to the allegations and my views on the termination. I must say again that the allegations are misleading and of no substance. My termination is illegal and I should be given a second chan[c]e to be reinstated in my substantive position.”


  1. Telikom’s Acting Chief Executive Officer Mr Veisame never responded to the plaintiff’s reply to him of 8 October 2013.
  2. I accordingly find that Mr Veisame’s memorandum, re-published by Mr Wani to work colleagues of Mr Opi to the detriment of Mr Opi, contained untrue allegations that Mr Opi had misused one of Telikom’s vehicles, that he was guilty of “fighting” in the workplace, that he was underperforming in his duties as a senior employee and that he did not aspire to Telikom’s “core values” of honesty, integrity and the need for staff to work together in a friendly environment.
  3. I accept the evidence of Mr Opi contained in his affidavit sworn on 13 December 2018 [Exhibit P5], unchallenged by Telikom at trial, to the effect that the untrue content of the memorandum which gave notice of termination of his employment with Telikom tarnished his good reputation with his work colleagues.
  4. The plaintiff’s own evidence as to the injury to his reputation which flowed from the defamatory content of Mr Veisame’s memorandum is supported by the affidavit evidence of James McPolly sworn on 25 April 2017 [Exhibit P3], which affidavit was unchallenged by Telikom’s counsel at trial. Mr McPolly states in his affidavit to the effect that he was a former employee of Telikom at Mount Hagen but that he was retired from active employment at the time of Telikom’s termination of Mr Opi’s employment in October 2013. Mr McPolly deposes in paragraph 3 of his affidavit:

“On [a date in] October 2013 I was told of Mr. Opi’s termination details by my friend Daniel Wau who also worked for TPNG at that time. Lars Opi was the [b]oss of my late sister Anni Puri. I asked Daniel how Mr. Opi was doing and to my surprise he told me that Mr. Opi was terminated because of damaging a [c]ompany motor vehicle, fighting with his work mates and poor performance in his work. Mt Hagen town is a small place and the surrounding communities know the Managers of most of the big companies operating here. Mr Opi was the face of TPNG in Mount Hagen and being a local guy he is very popular, he has very good public relations and such makes him well known. There are a handful of locals working for TPNG and so it is typical for Hagen people to gossip and make damaging remarks in such situations, if I had access to his termination information I am sure others would have to[o].”


  1. It is therefore clear on the evidence adduced for Mr Opi that Telikom’s defamatory imputations made of him to his work colleagues filtered out to the wider business and social community in Mount Hagen, thereby largely destroying Mr Opi’s good business reputation built up over more than 19 years as a longstanding employee of Telikom.
  2. In or about early March 2015, some 18 months after termination of his employment, Mr Opi consulted Edward Wamp Lawyers regarding his legal position vis-à-vis Telikom.
  3. On 20 March 2015 Edward Wamp Lawyers wrote to Telikom’s then CEO, Michael Donnelly, enclosing copies of Mr Veisame’s memorandum of 3 October 2013, Mr Opi’s detailed reply of 8 October 2013 and a spreadsheet calculation of Mr Opi’s unpaid “retrenchment” payout which stood net after tax at K287,626.93 as at 31 July 2018 which had been prepared by Telikom’s own payroll officer in Telikom’s Human Resources division. The letter from Edward Wamp Lawyers to Telikom’s Mr Donnelly is annexure “F” to Mr Opi’s affidavit sworn on 13 December 2018 [Exhibit P5]. The letter requested, among other things, that Telikom retract Mr Veisame’s memorandum of 3 October 2013, give an apology to Mr Opi and pay Mr Opi his final entitlements then amounting to K287,626.93 net as per the spreadsheet calculation provided by Telikom’s own payroll officer.
  4. The letter dated 20 March 2015 from Edward Wamp Lawyers to Telikom’s Mr Donnelly forewarned to the effect that if a favourable response to that letter was not provided by 31 March 2015, a writ of summons would be filed for Mr Opi at the National Court at Waigani seeking the following orders:
  5. Mr Donnelly never replied, favourably or otherwise, to the letter from Edward Wamp Lawyers. That letter was ignored. The plaintiff did not receive the “retrenchment” payout which had been calculated by Telikom’s payroll officer.
  6. In view of the non-response by Telikom’s senior management to the letter of 20 March 2015 from Edward Wamp Lawyers, Mr Opi instituted this present proceeding WS No. 893 of 2015 in the Waigani Registry of the National Court on 3 July 2015. The plaintiff had no other choice.
  7. By commencing this proceeding, Mr Opi was only following the somewhat hollow advice which was contained in the penultimate paragraph of Mr Veisame’s memorandum to him of 3 October 2013 which, as noted earlier in this decision, informed Mr Opi that there was no internal appeal process within Telikom against the termination of his employment and that if Mr Opi felt the termination was unfair, he was “at liberty to seek redress through the Court.”
  8. After summary judgment was entered against Telikom on 18 Mar 2018 followed by the unsuccessful mediation of Mr Opi’s claims on 26 and 27 July 2018, Edward Wamp Lawyers again wrote to Telikom, this time by letter dated 24 August 2018 addressed to Telikom’s Legal & Regulatory Unit. The letter stated:

“We refer to [the] termination of employment notice for our client dated 3 October 2013 (Notice). Our client is not able to seek employment elsewhere because of the contents in the Notice.


On 18 May 2018 judgment was entered in favour of the Plaintiff in connection with the relief sought in the Amended Writ of Summons filed on 22 December 2016.


We now request that you seek instructions to retract the contents of the Notice and write a reference letter for our client, to allow him to seek employment elsewhere.


We await your response.”


  1. As no response to the letter from Mr Opi’s lawyers was forthcoming from Telikom, Edward Wamp Lawyers wrote a further letter in similar vein to Telikom’s Legal & Regulatory Unit on 6 September 2018. That second letter was also ignored. No retraction of Mr Veisame’s memorandum conveying notice of termination of Mr Opi’s employment has ever been given and no letter of reference for Mr Opi has ever been furnished by Telikom to Mr Opi to mitigate the damage done to Mr Opi’s business and personal reputation caused by the defamation or to assist Mr Opi to obtain alternative employment elsewhere.
  2. In paragraph 9 of his ASOC, Mr Opi has pleaded that he has had difficulty seeking employment elsewhere or to engage in any business activity because of the allegations made against him in the “letter”, that is to say in Mr Veisame’s memorandum of 3 October 2013.
  3. The plaintiff adduced evidence at trial of his efforts to obtain alternative employment following the termination of his employment by Telikom. That evidence was furnished by copies of correspondence marked as annexures “C”, “D” and “E” to Mr Opi’s affidavit sworn on 13 December 2018 [Exhibit P5] and comprised the following letters of response to his job applications from:
  4. I accept this correspondence as evidence of the steps taken by Mr Opi in his unsuccessful endeavours to locate alternative employment in the Mount Hagen region following the unlawful termination of his employment by Telikom in October 2013. It is also clear from the last two items of correspondence that the defamatory imputations made of Mr Opi by Telikom had filtered out to the wider business and social community in Mount Hagen, thereby largely destroying Mr Opi’s business and personal reputation built up over more than 19 years as a longstanding employee of Telikom. The plaintiff’s unsuccessful endeavours to obtain alternative employment were exacerbated by Telikom’s repeated refusal after summary judgment on 18 May 2018 and the unsuccessful mediation in July 2017 to offer any belated consolation to Mr Opi by way of apology or letter of reference to assist Mr Opi in his efforts to secure alternative employment.
  5. As to the effect on Mr Opi’s health of the defamation, I find on the evidence adduced by Mr Opi at trial that the impact on his health was initially severe but that the effect has now lessened somewhat. However, I find as proven that the reversal to Mr Opi’s health caused by Telikom’s defamation of him continues to impact on Mr Opi’s day-to-day life.
  6. I accept as proven the following medical assessment of the adverse effect which Mr Opi’s loss of his employment with Telikom has had on Mr Opi’s health, as evidenced by the medical report dated 13 July 2018 from Dr Guboro Urae, Regional Specialist Physician with the Western Highlands Provincial Health Authority which is annexure “A” to Mr Opi’s affidavit sworn on 14 February 2019 [Exhibit P6]:

“I confirm that Mr Lars Opi is a patient with essential hypertension or high blood pressure currently on medication. He was diagnosed with moderate to severe hypertension and depression in December of 2013 after losing a high-profile job with a known company. He was under a lot of stress and his blood pressure at that time was systolic pressure between 150-180 mmHg and diastolic pressure in the range of 100-110 mmHg. (The average normal blood pressure is 120/80 mmHg).


Mr Opi’s blood pressure was brought under control after one month strict medication and rest at home. He was then advised to continue medication and to take control or refrain from aggravating factors like emotional stress, reduce salt intake and encouraged on garden foods plus adequate rest to avoid complications like stroke, heart failure and kidney failure.”


  1. In the result I find that the allegations contained in Mr Veisame’s memorandum were serious and very damaging to Mr Opi’s reputation. They had far-reaching consequences. Despite Mr Obora’s exhortations that those allegations, even if otherwise defamatory, were true and were made in good faith in the best interest of Telikom, that submission is rejected out of hand. Those submissions, unsupported by any evidence from Telikom, were made from the bar table and were not based on any pleading in Telikom’s Defence of justification or any of the other defences available to a defendant when confronted with a cause of action founded on defamation.
  2. Having reviewed the totality of the evidence for Mr Opi and the paucity of the evidence for Telikom adduced at the trial for assessment of damages and having considered the pleadings of both parties, I am satisfied that Mr Opi is entitled to a substantial award of general damages for defamation.
  3. Bearing in mind that general damages are always at large and must be tailored to the circumstances of each case, I consider that the damage to Mr Opi’s reputation in this instance, although serious, cannot be equated with the gravity of the defamation which gave rise to the case of Justice Gibbs Salika v Pacific Star Ltd (supra) where general damages of K250,000 were awarded in 2014 for highly defamatory allegations published in 2007 by a newspaper having a nation-wide circulation against our current Chief Justice, then a Judge of the National and Supreme Courts. In the present instance the damage to Mr Opi’s personal and business reputation is more akin to the injury to reputation sustained by the claimants in those defamation cases reported in David Coyle (2000), Lin Wan Xin (2001), Whyatt Gallagher Bassett (PNG) Ltd (2002) and Arlene Pitil (2003) (supra), where awards of K50,000 were made for general damages in each case. In the case of David Lambu (2006) (supra) decided several years later, the plaintiff was awarded general damages of K100,000 for injury to his professional reputation and community standing.
  4. Having made that comparison with awards for general damages in defamation ranging from K50,000 to K100,000 made between years 2000 and 2006, I am conscious that the Court should take into account inflation since then on the value of the kina. While no evidence was adduced at trial as to the effect of inflation on awards of general damages for defamation made 15 to 20 years ago, I am mindful that in Lapun Aine & Ors v The State (2011) N4289 Sevua J allowed an inflation factor of 30% to be applied to his Honour’s initial assessment of quantum of general damages for each of the numerous plaintiffs in that case, where his Honour’s initial assessment was based on awards for general damages made in much earlier personal injury cases where injuries were comparable and because a period of 15 years had elapsed between when the causes of action in Lapun Aine’s case accrued in 1995 and date of trial in 2010.
  5. A most useful summary on the impact of inflation when assessing general damages is to be found in Aina Mond & Ors v Chief Inspector Robert Kalasim & The State (2004) N2638 where Manuhu AJ (as he then was) had this to say:

“Inflation is also a relevant consideration in the assessment of general damages. The object of such consideration is best explained in the English case of Pickett v. British Rail Engineering Ltd[3], thus:


“Increase for inflation is designed to preserve the “real” value of the money; interest to compensate for being kept out of that “real” value. The one has no relation to the other. If the damages claimed remained, nominally the same, because there was no inflation, interest would normally be given. The same should follow if the damages remain in real terms the same”.


This English case has been cited with approval in the case of Aundak Kupil v The State[4]. See also Lin Wan Xin v Wau Yanhong[5]; Shelly Kupo v MVIT[6] and Kusa v MVIT[7].”

  1. In Motor Vehicles Insurance Ltd v Ken Let (2005) SC816 the Supreme Court (Sevua, Sawong, Lay JJ) observed, when upholding an appeal against a National Court award of K30,000 for future economic loss and K40,000 for general damages which had allowed for the effect of inflation:

“It is our opinion also that the rise in inflation, the increase in the value of the Kina, increased costs of living and other considerations which the trial judge alluded to in his reasons are matters that justify an increase in the awards that the Courts were making ten to fifteen years ago. The level of quantum of damages that were being considered by the Courts in the same period are certainly no longer applicable in the circumstances of the country today when we consider the increase in inflation, value of the Kina etc.”


  1. Had this present case been decided in or about 2006 at the time of Coyle’s case, I am satisfied that in view of the matters I have already adverted to, Mr Opi would have been likely to have been awarded general damages for defamation in the vicinity of somewhere between K50,000 to K75,000. Allowing for inflation for the intervening 14 years since Coyle’s case was decided, I will increase that range of verdicts to K100,000 as the award to be made for general damages for Telikom’s defamation of Mr Opi.
  2. When arriving at this quantum of general damages of K100,000 for Telikom’s defamation of Mr Opi, I have had particular regard to the evidence Mr Opi has adduced regarding the post-defamation injury to his business reputation in Mount Hagen as the former well-known and respected Regional Manager-Finance and Support Services for Telikom’s Highland Region. I have also had regard to the injury the defamation caused to Mr Opi’s personal reputation in his local community, to his feelings of loss, rejection and the medical diagnosis of clinical depression and cardio hypertension, to the ongoing general reversal to Mr Opi’s health, to the efforts he has taken to try to mitigate his loss of income from Telikom by unsuccessfully endeavouring to obtain alternative employment and to the financial and other hardships he and his family have suffered for the last 6 years in having only his wife’s intermittent income of K500 per fortnight to support Mr Opi’s household comprising his wife, himself and their four children.
  3. When assessing the quantum of K100,000 general damages to be awarded to Mr Opi for Telikom’s defamation of him I have also taken into account Telikom’s resolute refusal throughout the whole of the history of this case to make any apology or retraction of its defamatory imputations against Mr Opi, even after entry of summary judgment and mediation had taken place in 2018 and after Kandakasi J by the Court’s order of 20 February 2019 had given Telikom one last chance to reconsider its exposure to substantial awards of damages being made against it if the case proceeded, as it has. to assessment of damages. Telikom’s refusal to offer Mr Opi any reference letter, even if it were to have been couched in neutral terms simply recognising Mr Opi’s 19 years of continuous service to Telikom, was a major factor in Mr Opi’s inability to have obtained similar employment elsewhere prior to trial in October 2019.
  4. Further, I repeat that although Telikom had every opportunity to do so at the assessment of damages trial, no evidence at all was led in Telikom’s defence which sought to challenge any of Mr Opi’s affidavit evidence on assessment of damages or to cross-examine Mr Opi or any of the deponents whose affidavits were adduced in evidence for Mr Opi. Mr Obora’s submission that Mr Opi had failed at trial to produce credible evidence in support of the facts pleaded in Mr Opi’s ASOC cannot possibly be sustained against the cogency and credibility of the unchallenged evidence which was adduced at trial for Mr Opi.
  5. For the reasons given, Mr Opi is awarded general damages of K100,000 by way of recognition and compensation for the personal distress, hurt and hardship caused by Telikom’s defamatory imputations of him, for reparation for the harm done by Telikom to Mr Opi’s good business and personal reputation and for vindication of that reputation.


Issue 3 - Special Damages for Defamation


  1. The general principle governing special damages for defamation is that unlike general damages, which require no proof of damage because the injury is presumed (although proof of injury to reputation is usually given at trial), special damages must be proved because they cover pecuniary loss, whether a money loss or a loss arithmetically calculable in money terms.[8]
  2. Quoting from McGregor on Damages, when discussing the issue of special damages in the context of tortious defamation [underlining added]:

“The principal type of pecuniary loss which constitutes special damage is loss to the claimant of a contract, of an employment or of business, whether existing or intended”.[9]


  1. Mr Opi’s claim for special damages is based on loss of employment opportunity, proof of which was adduced at the trial on assessment of damages by various detailed calculations of what Mr Opi could have earned if he were still employed by Telikom as evidence of the income Mr Opi would have received if he had been employed in a similar capacity elsewhere.
  2. By analogy with claims for loss of reasonable chance of employment where the tort of negligence has been claimed, the English case of Spring v Guardian Assurance [1995] 2 A.C. 296 is instructive. In that case the plaintiff’s ex-employer was sued for having negligently given an adverse work reference for the plaintiff to a potential new employer. The House of Lords, having held that the ex-employer owed a duty of care to the plaintiff in the giving of references, remitted the case for ascertainment of whether the breach of duty had caused the plaintiff loss of reasonable chance of employment. Lord Lawry said[10]:

“Once the duty of care is held to exist and the defendants’ negligence is proved, the plaintiff only has to show that by reason of that negligence he has lost a reasonable chance of employment (which would have to be evaluated) and has thereby sustained loss ... He does not have to prove that, but for the negligent reference, [the potential new employer] would have employed him.”


  1. Claims in defamation in Papua New Guinea often include a component of special damage for loss of business income, for remuneration for time incurred in prosecuting the case and for other expenses and liabilities which were caused by the defamation. See for example:

Lin Wan Xin and Lin Brothers Pty Ltd v Wang Yanhong & Ors (supra) where special damages of K50,000 awarded for loss of business income as a result of libel;

PNG Aviation Services Pty Ltd v Geobb Karri & Ors (2009) SC1002 where on appeal special damages were increased from the National Court’s award of K50,000 to K1,822,978, which included compensation for time spent by a director on the case as well as allowance for the company’s liability to meet retrenchment claims for two directors because of the forced closure of the company’s business operations due to the State’s breach of an airport lease.


  1. I consider that where special damages are claimed by an individual in an action based on defamation to compensate for loss of salary from employment and employment-related entitlements as a result of wrongful termination of employment, proof of those special damages is equally admissible on the same principles as apply to a defamed company’s loss of business income, provided cogent proof of that individual’s pecuniary losses attributable to the defamation is given and losses proven are proximate and not remote.
  2. In this instance Mr Wamp in his submissions for Mr Opi seeks a gross amount of K936,666.46 to date of trial for what he terms Mr Opi’s “missed out employment opportunities” as a result of Telikom’s defamation and the unlawful termination of Mr Opi’s employment. In substance this is the same as claiming a lump sum amount by way of special damages for Mr Opi’s loss of salary and employment benefits which flowed from the defamation and the unlawful termination of Mr Opi’s employment.
  3. The general rule in relation to special damages for monetary losses which a plaintiff has sustained up to the date of trial is that the losses must be pleaded and particularized, otherwise the losses cannot be recovered as special damages at trial: Golobadana No. 35 Ltd v Bank of South Pacific Ltd (2013) N5340 (Davani J).
  4. Here Mr Opi in his ASOC has expressly claimed, among other things, not only general damages but also special damages. However, as was pointed out by Telikom’s counsel Mr Obora, Mr Opi did not set out in his ASOC particulars of the special damages claimed by him and that this offended the general rule that particulars of special damages should be pleaded so that a defendant is not taken by surprise at trial. Mr Obora also submitted that the Court should disregard all of the evidence which was adduced for Mr Opi at trial which went to proof of Mr Opi’s monetary losses in support of Mr Opi’s claim for special damages, said to amount to K936,666.46 gross, as it was contended by Mr Obora that this evidence was insufficient and not credible.
  5. While it is correct that Mr Opi did not particularize the facts on which he was basing his claim for monetary losses under the heading of special damages in his ASOC, ample affidavit evidence of those facts was supplied by Mr Opi’s lawyers to Telikom’s legal team well in advance of the trial on assessment of damages. Telikom was on full notice of the evidence which Mr Opi would be adducing at trial in support of Mr Opi’s claim for special damages for his monetary losses. That evidence was contained in the following affidavits:
(2) Annexure “A” to the affidavit Owen Boku sworn on 14 February 2019 [Exhibit P7]: this annexure also comprised two spreadsheets:
  1. I pause at this juncture to note that Telikom was represented in this suit by Telikom’s in-house Legal and Regulatory Unit based at Telkom’s headquarters at Telikom Rumana Building, Kumul Avenue, Waigani, NCD for more than 3 years, following commencement of this proceeding by Mr Opi on 3 July 2015. Legal representation for Telikom in this proceeding then passed to Raymond Obora Lawyers on 17 January 2019, which is the date on which that law firm filed its Notice of Change of Lawyers for Telikom.
  2. A copy of Owen Boku’s affidavit [Exhibit P7] annexing Mr Opi’s last payslip and the updated spreadsheet with Mr Opi’s loss of salary calculated to 19 February 2019, together with copies of Mr Opi’s further affidavit sworn on 14 February 2019 [Exhibit P6] and the Order made by Kandakasi J on 18 January 2019 which directed Telikom to revisit its submissions to proceed on the basis that liability had been resolved, was served on the office of Raymond Obora Lawyers on 15 February 2019, as is evidenced on the Court’s file by Mr Opi’s affidavit of service sworn and filed on 18 February 2019 by Edward Wamp Lawyers (Court document No. 89).
  3. Although there is no affidavit of service from Edward Wamp Lawyers on the Court’s file which indicates the date on which a copy of Mr Opi’s affidavit sworn on 13 December 2018 [Exhibit P5] containing the two spreadsheets of calculations that comprise annexure “I” to that affidavit was served on Telikom’s legal unit or on the office of Raymond Obora Lawyers, I infer that Mr Obora was aware of the existence and content of Mr Opi’s affidavit sworn on 13 December 2018 and therefore the two spreadsheets annexed to that affidavit because this particular affidavit is listed as one of seven affidavits to be relied on by Mr Opi at trial which are referred to in paragraph 4 of the submissions on assessment of damages filed for Mr Opi by Edward Wamp Lawyers on 14 January 2019 (Court document no. 75). Raymond Obora Lawyers for Telikom filed their first set of submissions in answer to Mr Opi’s submissions on 17 January 2019 (Court document no. 79), followed by an amended set of submissions in answer filed for Telikom on 28 January 2019 (Court document no. 81).
  4. I am therefore satisfied that Telikom by its lawyers were on notice by mid-January 2019 of the content of the two spreadsheets which formed annexure “I” to Mr Opi’s affidavit sworn on 13 December 2018 [Exhibit P5] as well as the content of the further two spreadsheets which formed annexure “A” to Owen Boku’s affidavit sworn on 14 January 2019 [Exhibit P7]. It is those four spreadsheets which collectively contain detailed particulars of the evidence of Mr Opi’s claim for special damages which Telikom well knew in advance Mr Opi would be relying on and adducing at the trial on assessment of damages. Moreover, copies of those two affidavits with their annexures were included along with copies of the five other affidavits for Mr Opi which form the bulk of the trial book compiled by Edward Wamp Lawyers, that trial book having been filed on 6 August 2019 and served on the office Raymond Obora Lawyers on 14 August 2019, as evidenced by the affidavit of service in that regard sworn by Korinth Micks on 15 August 2019 and filed the next day. Mr Obora confirmed at trial on 10 October 2019 that he had been served with a copy of the trial book.
  5. Returning to the principles of law applicable to proof of special damages, it is a fundamental rule of pleading that when instances of monetary loss are pleaded they must be particularised and proved at trial by evidence of the specific losses: However courts need to be realistic and there is ample authority that where specific instances of monetary losses have not been pleaded with the required particularity, a plaintiff can still be permitted to adduce evidence of the monetary losses at trial as long as the defendant has been on notice of what that evidence will entail. One of the reasons for this is because it is always open to a defendant who complains that insufficient particulars of special damages have been provided to avail itself of the procedure in O.8 r.36 NCR whereby the Court can order a plaintiff or other party to file and serve further and better particulars of any claim or other matters stated in the pleadings.
  6. In Kerry Lero v Philip Stagg (2006) SC 905 Kandakasi J stated, in the context of an application by the defendant for summary dismissal of that case under O.12 r.40 NCR:

“There is provision under the Rules for requesting and or orders for further and better particulars of better pleadings as opposed to a right in a defendant or an opposing party to apply for a dismissal straightaway. A party must be careful not to ask for and the Court must stop to ensure that it is not being asked to dismiss a claim because of lack of particulars or lack of proper pleading which can be cured by appropriate amendments to the pleadings. Regard must also be had to the fact that the Rules are not an end in themselves but a means to and end and by reason of which a strict compliance of the Rules can be dispensed [with] in the interest of doing justice in accordance with O.1 r.7 of the Rules in appropriate cases.”


  1. Failure to plead sufficient particulars is distinct from failure to disclose a reasonable cause of action. Where a cause of action is pleaded but there is a lack of particulars, the proper remedy is for the defendant or opposing party to request for further and better particulars and amendment of pleadings, and if that request is ignored then application can be made to the Court for an order under O.8 r 36 NCR for further and better particulars and/or parties can avail themselves of the procedure for amendment of pleadings under O.8 rr. 50 or 51.
  2. In Philip Takori v Simon Yagari (2008) SC905, which approved the principles explained in Lero v Stagg (supra), the Supreme Court (Kirriwom J, Gavara-Nanu J and Kandakasi J) said:

“It is not only a good practice but also fair and equitable for a defendant ... to request for further and better particulars from the party responsible for such poor pleadings or to amend the pleadings and plead with clarity and with all of the appropriate particulars. When such a request is not appropriately responded to or ignored, the party making the request would be entitled to apply to the Court for appropriate orders including remedial orders for any failure to comply with any such orders, at the cost of the defaulting party.”


  1. Generally, proceedings will not be struck out for failure to provide further and better particulars unless there has been an order made under O.8 r.36 which has not been obeyed: Police & State Services Savings & Loan Society v Pacific Star Ltd trading as The National (2005) N2884. In that case, Davani J observed:

“The fundamental principle in relation to particulars in defamation, as in any other case, is that a party must be made aware of the nature of the case he is called upon to meet (see Dare v Pulham (1982) 148 CLR 658 at 664). The object of particulars is to save expense in preparing to meet a case which may never be put (see Turner v Dalgety and Co. Ltd) (1952) 69 WN (NSW) 228 at 229). The purpose of particulars is to also make the parties’ case plain so that each side may know what the issues of fact are to be investigated at the hearing (Ellis v Grants (1970) 91 WN (NSW) 920 at 924, 925).”


  1. The contemporary English position is much the same. In Longdon-Griffiths v Smith [1950] 2 All E.R. 662, a defamation case founded in libel, Slade J said:[11]

“The function of pleadings is to make it clear to your opponent what case he has to meet, and I cannot help feeling that anyone reading para. 8 [of the statement of claim] and seeing the words ...’ and his said service agreement was terminated on November 6, 1947’ must have been aware that special damage was being claimed. ... Where the statement of claim suggests the probability that a claim for special damages is intended, I think it is a question of degree whether the statement of claim does not put forward a claim for special damages, albeit without the particulars which the rules of pleading strictly require, or whether it is so nebulous that the defendant can treat it as not being a claim for special damage at all. A statement of claim is supposed to be delivered with full particulars, but it is a rule which is honoured in the breach more than in the observance. Therefore, I feel that there is here a claim for special damages, though I do not intend anything I have said to indicate that there can be laxity in pleading special damage.”


  1. I observe in the instant case that despite each party’s lawyers engaging in the reciprocal filing and service of notices for the giving of better particulars of their respective clients’ pleadings, which achieved only desultory results, no application was ever made by Telikom under O.8 r.36(1) NCR for an order that Mr Opi file and serve further and better particulars of his claim for special damages, or indeed further and better particulars of any other aspect of Mr Opi’s ASOC.
  2. In the present case Telikom by its lawyers was well aware by mid-January 2019 of the evidence which Mr Opi was going to lead at trial in support of Mr Opi’s claim for monetary losses under the category of special damages. I reject Mr Obora’s submission that Mr Opi’s evidence on special damages going to Mr Opi’s monetary losses he has sustained as a result of Telikom’s defamation of him is inadmissible for lack of particulars or that it is insufficient and not credible.
  3. There is a further reason for rejection of Mr Obora’s submission in this regard. This is because there was no objection taken on behalf of Telikom at trial to any of Mr Opi’s affidavit material on special damages being adduced in evidence. The absence of such objection can be fatal to a defendant’s right to challenge that evidence. I refer here to the following observations made by the Supreme Court in MVIT v John Etape [1994] PNGLR 596 per Kapi DCJ (as he then was) at p.599:

“Where the plaintiff, however, is allowed to embark at the trial on matters which are generally included in his allegation of “loss of income earning capacity” by calling evidence relating to his salary loss, for instance, the defendant cannot complain unless he objects at the time before the trial Judge and is overruled. No such objection was made at the trial to the evidence which the plaintiff sought to lead in the absence of particulars.


We would reiterate what this Court said in MVIT v Pupune [1993] PNGLR 370, that where evidence is led without objection, a court is entitled to make findings on the basis of such evidence, provided it is within the general ambit of the plaintiff’s claim. Here the general ambit included both general damages for injuries suffered and a claim for loss of income-earning capacity. Loss of wages in those circumstances may well illustrate the loss of income-earning capacity.”


  1. I adopt all of Kapi DCJ’s above-quoted observations on behalf of the Supreme Court as being equally applicable to the proceedings which took place before me at the trial for assessment of Mr Opi’s damages.
  2. Before I pass to an analysis of the evidence supporting Mr Opi’s claim in special damages for loss of income and income-earning capacity based on the salary and other financial entitlements he was receiving from Telikom at the time of the defamation and unlawful termination of his employment, I wish to make some comment on the issue of taxation on claims in special damages for monetary loss.
  3. A notable feature of claims for monetary loss involving loss of salary in tort law in Papua New Guinea is debate whether the Court should calculate compensation for loss of income based on gross salary and gross entitlements or on post-tax salary and entitlements.
  4. In the English case of Phipps v Orthodox Unit Trusts Ltd [1958] Q.B. 314 the plaintiff brought an action for damages for wrongful dismissal. He claimed general damages for the wrongful dismissal and substantial sums for loss of remuneration by way of special damages from date of termination of his employment to date of trial and beyond. The case largely revolved around the extent of the particulars which a plaintiff must give a defendant when pleading loss of income by way of special damages. Lord Parker made these observations regarding particulars to be given when there are tax implications:

“... the plaintiff must make an estimate of the amount of tax which he would have had to pay if he had remained in employment and subtract that from the gross remuneration in order to show the real loss claimed.


... a defendant is entitled to particulars, not necessarily a calculation but the facts relied upon by the plaintiff in arriving at that estimate. I would only add one word of caution ... I think it would be unfortunate if the decision of this court should give rise to application after application for detailed particulars to be given in every case. In my judgment, particulars should generally be confined to the broad facts, such as “the plaintiff is a married man,” “He is entitled to allowance in respect of two children,” “His unearned income is £100 a year,” matters of that sort, and in the ordinary case that can give rise to no difficulties. It is only in a case such as the present, where considerable labour, no doubt, is put upon the plaintiff and his advisers in order to give proper particulars. But if the particulars in the ordinary run of cases are the broad facts which I have indicated, and if they are limited, as they must, to special damage in cases of tort, I cannot see that any difficulties should arise.”[12]


  1. Since the mid-1950’s the English position has traditionally been that which was taken in British Transport Commission v Gourley [1955] UKHL 4; [1956] A.C. 185. In that case the House of Lords held that where personal injuries have been tortiously inflicted, the calculation of the plaintiff’s damages in respect of loss of earnings, both past and prospective at the time of trial, must take into account the tax which would otherwise have been payable on those earnings.
  2. Gourley’s case is authority for the proposition that loss of future earning capacity awarded as general damages and loss of past earnings from the time of injury to the time of judgment awarded as special damages must be calculated with tax taken into account. However, no deduction for tax is to be made in the calculation of other heads of damage such as pain and suffering, loss of amenities and out-of-pocket expenses.[13]
  3. This rule in Gourley’s case was held by the House of Lords in Reid v Daily Telegraph Ltd [1965] A.C. 234 to apply to actions in defamation such that assessment of damages for loss of profit arising from the defamation must include allowance for the obligation to pay tax on profit that would, but for the defamation, have been earned.
  4. Despite jurisprudential debate in Australia[14] and Papua New Guinea as to the implications of tax on different heads of damages, the rule in Gourley’s case that after-tax salary is to be taken into account when estimating earning capacity has been adopted by the Supreme Court in Papua New Guinea: see Kerr v MVIT [1979] PNGLR 251 per Andrew J at 272. I propose to follow that authority in this case.
  5. Subject to one comment I reserve for the conclusion of this judgment, the task of the Court when calculating Mr Opi’s monetary losses net after tax as a result of the defamation was considerably assisted by the spreadsheet calculation prepared by Mr Boku which expressly includes allowance for tax. This spreadsheet is the second of the two documents which comprise annexure “A” to Mr Boku’s affidavit [Exhibit P7], the first of those annexed documents being a copy of the plaintiff’s last payslip, which gives details of the plaintiff’s salary and other employment-related entitlements as well as tax deducted. This payroll information provided the basis for Mr Boku’s forward calculation of the plaintiff’s estimated net loss of earning capacity.
  6. The second spreadsheet forming part of Annexure “A” to Mr Boku’s affidavit headed “Calculation for Loss of Salary” contains the most recent calculation which was given in evidence for Mr Opi’s estimated monetary losses from loss of salary and other employment-related entitlements which arose from Mr Opi’s unlawful termination of his employment by Telkom.The calculation commences from the date on which termination of Mr Opi’s employment with Telikom took effect and finishes on 19 February 2019, which is an arbitrary date selected by Mr Boku as being proximate to the date on which he prepared that second spreadsheet.
  7. Before analysing Mr Boku’s calculations for Mr Opi’s monetary losses, I wish to refer to Mr Boku’s credentials. Mr Boku deposes in his affidavit [Exhibit P7] as follows:

“2. I am a retrenched employee of Telikom PNG Limited (TPNG). I was employed by TPNG from 1983 to 2012. I served in the Human Resource Department for 29 years as the office of TPNG at Port Moresby.

  1. 3. I confirm that Mr Lars Opi was employed by TPNG as its Regional Manager Finance and Support Service. I was the Payroll Manager of TPNG in the Human Resource Department of TPNG. I have experience in doing the payroll calculations for TPNG employees.
  2. 4. According to Mr Opi’s latest payslip dated October 2013, the formulas I used to calculate his salary are standard per my experience and practical knowledge. I have done so many for Telikom staff who exited from time to time over many years.”
  3. Based on this deposition, unchallenged by Mr Obora for Telikom at trial, I find that Mr Boku has the necessary experience and payroll knowledge in his capacity as a former payroll manager at Telikom to be able to properly calculate Mr Opi’s estimated loss of gross and net income following Mr Opi’s dismissal from employment by Telikom, for the period 5 October 2019 through to early 2019. Mr Boku is conversant with Mr Opi’s salary and entitlements which Mr Opi was receiving prior to his dismissal. Mr Boku’s evidence in that regard is lucid, competent and credible.
  4. Further reasons for my acceptance of Mr Boku’s evidence of Mr Opi’s monetary losses as being satisfactory and proven on the balance of probabilities are these: no affidavit evidence in response to Mr Boku’s affidavit was filed by Telikom; no notice under the Evidence Act for Mr Boku to attend at trial for cross-examination on his calculations of Mr Opi’s monetary losses was filed or served by Telkom’s lawyers; and no challenge to Mr Boku’s affidavit when it was tendered in evidence for Mr Opi at trial was made by Telikom’s counsel at trial. Mr Boku’s evidence as to Mr Opi’s estimated monetary losses only attracted attention from Telikom’s counsel during the submissions phase, which occurred after the evidence for both parties had closed.
  5. I accordingly reject all submissions made by Telikom’s counsel at trial to the effect that Mr Boku’s evidence as to Mr Opi’s estimated loss of salary and employment-related benefits was in any way imprecise, insufficient or not credible.
  6. Returning now to Mr Boku’s evidence of Mr Opi’s monetary losses, Mr Boku has calculated the estimated total gross salary and entitlements which Mr Opi would otherwise have received had he not been unlawfully dismissed and had he continued in employment with Telikom at a total of K788,563.27 for the period from date of termination of employment of 5 October 2013 to the arbitrary end date of Mr Boku’s calculation as at 19 February 2019 comprising:
  • Lost pay- 6 October 2013 to 19 February 2019
K 782,174.35 gross
  • Lost Nasfund contributions for the same period with annual interest compounded at 11% for 2013,at 8.5% for 2014, 4% for 2015, 7.25% for 2016,8% for 2017 (no Nasfund interest calculation given for 2018 and 2019):
K86,388.92 gross
  • Gross total for period- 5 October 2013 to 19 February 2019
K 788,563.27 gross

  1. However, as I have already observed, special damages for monetary losses arising from Mr Opi’s loss of employment with Telikom are to be calculated on the after-tax net position of Mr Opi. The calculation of net salary and net entitlements after tax which Mr Opi would have earned for the same period but for termination of his employment is a more complex exercise.
  2. Based on the figures given by Mr Boku in his calculation extracted from Mr Opi’s last payslip from Telikom for pay date 9 October 2013, it is clear that Mr Opi was earning at date of termination of his employment in October 2013 a remuneration package of K145,600 gross per annum which comprised:
    1. base salary K 57,722

b) housing allowance K 26,070

c) additional entitlements K 61,808


Total gross remuneration per annum: K145,600


  1. A calculation of Mr Opi’s notional monetary net loss of income for the period commencing 6 October 2013 (day after effective date of Telikom’s termination of plaintiff’s employment on 5 October 2013) projected through the actual date of trial of assessment of damages on 10 October based on:
Period
Gross
K
Tax
K
Plaintiff’s Superannuation Contribution (6% of base salary)
K
Net Payable
K
Telikom’s Superannuation Contribution (8.4% of base salary)
K
06.10.2013 to 31.12.2013
34,068.18
11,299.98
810.37
21,957.93
1,134.51
01.01.2014 to 31.12.20141
145,600.00
48,293.51
3,463.32
93,843.17
4,848.65
01.01.2015 to 31.12.2015
145,600.00
48,293.51
3,463.32
93,843.17
4,848.65
01.01.2016 to 31.12.2016
145,600.00
48,293.51
3,463.32
93,843.17
4,848.65
01.01.2017 to 31.12.2017
145,600.00
48,293.51
3,463.32
93,843.17
4,848.65
01.01.2018 to 31.07.2018
145,600.00
48,293.51
3,463.32
93,843.17
4,848.65
01.01.2019 to 19.02.2019 (date of end of Mr Boku’s calculation) = 3.6 fortnights2
20,105.87
6,574.44
478.25
13,053.18
669.55
Sub-total for period 06.10.2013 to 19.02.2019
782,174.15
259,341.90
18,605.22
504,226.95
26,047.30
20.02.2019 to 10.10.2019 (date of trial) = 18.2 fortnights3
101,646.34
33,237.39
2,417.81
65,991.14
3,384.94
TOTAL for period 06.10.2013 to 10.10.2019 (date of trial)
K 883,820.39
K 292,579.36
K 21,023.03
K 570,218.10
K 29,432.25







Notes to calculation:



1.
Tax per fortnight based on year having 26.7 fortnights
K5,584.96
K1,826.23
K132.85
K3,625.89
K186
2.
Income data in evidence for period 01.01.209 to 19.02.2019: 3.6 fortnights
K20,105.87
K6,574.43
K478.25
K13,053.19
K669.55
3.
Income data in evidence for period 20.02.2019 to 10.10.2019: 18.2 fortnights
K101,646.34
K33,237.39
K2,417.81
K65,991.14
K3,384.94

Adjustments to Table column headed “Net Payable”:


185. The above calculation for net payable of K570,218.40 representing Mr Opi’s estimated loss of net income were it not for the defamation and termination of his employment by Telikom for the period 06 October 2013 to 10 October 2019 (date of trial) requires adjustment to allow for the addition of employee and employer superannuation contributions:

  1. estimated net payable as at date of trial:
K570,218.10
  1. estimated NasFund superannuation contributionsof Mr Opi debited in the above calculation fromnotional gross pay (6% of total base salary) as at
    date of trial
K 21,023.03
  1. NasFund superannuation contributions payable by
    Telikom shown in the above calculation (8.4%
    of total base salary) as at date of trial
K 29,432.25

Total of estimated adjusted loss of net after-tax income andsuperannuation entitlements 05 October 2013 to date of trial on 10 October 2019:
K620,673.63

186. In arriving at this provisionally net figure of K620,673.63, I acknowledge that it excludes superannuation entitlements and interest payable by NasFund which would have otherwise notionally accrued between the end date of Mr Boku’s second calculation on 19 February 2019 and the date of trial on 10 October 2019, but this exclusion is because there was no specific evidence led on superannuation entitlements for that period and I prefer to confine adjustment for NasFund superannuation to the data furnished by Mr Boku in his second calculation. Subject to my observations below on Mr Opi’s claim for special damages, I will at this stage provisionally round off Mr Opi’s claim for monetary losses by way of estimated past loss of earning capacity at K620,700.


186. I note that Mr Opi is now aged 50 years. Had his employment not been terminated by Telikom back in October 2013, he could as at date of trial in October 2019 have had an expectation if he was in reasonably good health of continuing his employment with Telikom for at least a further 5 years beyond trial before taking voluntary or compulsory retirement, whichever would have occurred first, However as there was no evidence led by Mr Opi or by Mr Boku as to Mr Opi’s loss of future earning capacity beyond trial and as no submissions were made by his counsel in this regard, no allowance will be made for that potentiality.


187. As for the vicissitudes of life, Mr Opi’s evidence as to his current state of health is that his cardio hypertension has been brought under control with medication. Whether Mr Opi would in any event have developed high blood pressure over time, with its attendant risks for stroke, heart disease and kidney failure, had his employment not been terminated in 2013 and had he continued working for Telikom is one of the imponderables that this Court is not in a position to assess. But allowing for contingencies such as this and the other exigencies of life, I propose to discount Mr Opi’s estimated net past loss of earning capacity by 10%, giving a final figure for special damages of K565,300.


188. I have considered whether this figure should be further reduced by application of those principles of law which relate to mitigation of damages as this was an issue which was raised by Mr Obora in his submissions for Telikom.


189. In his submissions Mr Obora referred to the case of Kimsim Business Group Inc v Hompfwafi, Kalaut & The State (1997) N1634. This was a case where damages were sought in an action based on a police raid on the plaintiff’s liquor trading outlet and confiscation of liquor by police. During the course of his judgment in that case, Bidar AJ, when referring to the fundamental principle of restitutio in integrum which underpins the whole of the law of damages, observed that this principle is qualified by two subsidiary principles, namely remoteness of damage and the duty of a plaintiff to mitigate his loss. As to the latter principle, Bidar AJ stated:


“Where a tort has been committed or breach of contract occurs, it is the duty of the injured party to lessen the consequences of such breach or tort. If he fails to take such reasonable steps he cannot get damages for loss due to his failure.”


190. But that is not the end of the matter when it comes to a plaintiff’s duty to mitigate loss. What Mr Obora omitted from his submission on this issue is that the burden of establishing any lack of mitigation of damages on the part of a plaintiff falls squarely on the defendant, not on the plaintiff. As was said by Hinchliffe J in Dia Kop v Employment Authority of Enga Provincial Government [1999] PNGL 462:


“... it is trite law that the onus is upon the defendant to point to a particular course of action which, had the plaintiff followed it, would have reduced the amount of harm suffered by the plaintiff. The onus is on the defendant to prove that such a course was reasonable in the circumstances.”


191. See also the observations of Kandakasi J in Coecon Ltd v The National Fisheries Authority of Papua New Guinea (supra) where his Honour, when approving Hinchliffe J’s confirmation in Dia Kop’s case that the onus of proving that a plaintiff has failed to mitigate loss falls on the defendant who alleges it, found that “the State did not produce evidence to establish what the plaintiff could have done to mitigate its loss or damages but did not do that.”


192. The same has occurred here. Having made cursory mention in his submissions of the principle of mitigation of damages, Mr Obora simply left it at that. There was no evidence adduced by Telikom in its defence which tended to show that Mr Opi had failed in any way in his duty to mitigate his monetary losses which had flowed as a direct result of the Telikom’s unlawful termination of Mr Opi’s employment.


193. Furthermore I repeat that there was no challenge at trial by Telikom to the evidence adduced for Mr Opi as to his efforts to obtain employment elsewhere, that evidence being contained in paragraph 12 of Mr Opi’s affidavit sworn on 13 December 2018 and the responses which Mr Opi received from business houses who had rejected his employment applications, copies of various of those responses which were received by Mr Opi in 2016, 2017 and 2018 being annexures “C”, “D” and “E” to Mr Opi’s affidavit.


194. An additional factor which militates in favour of no further reduction of Mr Opi’s claim for his estimated monetary losses is that after entry of summary judgment against Telikom on 18 May 2018 and even after his Honour Kandakasi J had expressly directed on 20 February 2019 by order of the Court that Telikom should reconsider its position regarding Mr Opi’s claims for damages in view of the awards of damages which can be made in defamation cases, Telikom still refused to issue a letter of job reference to Mr Opi which could at least have assisted Mr Opi to improve his chances of obtaining alternative employment elsewhere. To that extent Telikom failed post-summary judgment to mitigate its own exposure to Mr Opi’s claim for damages by declining to settle this proceeding whether at mediation in July 2018 or at any time afterwards and by instead insisting that this proceeding be progressed to trial on assessment of damages.


195. I am accordingly not persuaded that Mr Opi failed to mitigate his monetary losses. I am satisfied on Mr Opi’s evidence that he made reasonable attempts to find alternative employment but without success. My assessment of Mr Opi’s special damages at K565,300 remains undiminished. Special damages are awarded to Mr Opi in that amount.


Issue 4 – Is Mr Opi entitled to an award of separate damages pursuant to s.23 of the Constitution for conduct by Telikom said to be a “proscribed act” within the meaning of s.41 of the Constitution?


196. Mr Opi by his ASOC has claimed special damages of K10,000 pursuant to s.23 of the Constitution on the basis that even if Telikom’s termination of his employment was technically lawful (which he denies), Telikom’s termination of his employment was a “proscribed act” within the meaning of s.41 of the Constitution, which in turn would entitle this Court to find that the termination of his employment was unlawful.


197. Section 41 of the Constitution provides:


“41. Proscribed Acts


(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case –

is an unlawful act.


(2) The burden of showing that Subsection 1(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.”

198. As was observed by Cannings J in Chemica Ltd v WPCC Investments Ltd (2011) N4428, s. 41 plays an important role in the basic human rights provisions of Division 111.3 of the Constitution Section 41 proscribes, that is to say prohibits, and gives protection against seven sorts of acts. Even if otherwise done under a valid law, an act is unlawful within the meaning of s.41 if it is, in the particular case:


199. It was held in Raz v Matane [1985] PNGLR 329 that acts said to be proscribed under s.41 of the Constitution can be enforced under s.23 or s.155(4) of the Constitution.


200. In the present instance, Mr Opi is seeking compensation by way of reliance on s.23 of the Constitution to enforce what he contends was conduct by Telikom which was proscribed under s.41 when Telikom terminated his employment because that conduct was harsh, oppressive, unwarranted or disproportionate to the circumstances of his case.


201. Section 23 of the Constitution states [underlining added]:


“23. Sanctions


(1) When any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may –

(2) Where a provision of a Constitutional Law prohibits or restrict an act or imposes a duty, the National Court may, if it thinks it is proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.
(3) Where the National Court considers it proper to do so, it may include in an order under Subsection (2) an anticipatory order under Subsection 1.”

202. The underlining given above in s.23(1)(a) is important. The wording in my view is clear. The National Court has no power under s.23 to make an order for compensation if there is some other “equally effective remedy” in law which is available to compensate a complainant who has sustained breach of the constitutional right to protection against conduct which is “proscribed” under s.41 of the Constitution.


203. I am supported in this view by the position taken by Injia J in James Koimo v The State [1995] PNGLR where, reading from the headnote, it was held:

“Where the violation of constitutional rights alleged is based on the same acts for which compensatory damages are awarded, the compensatory damages extend to the alleged violation of rights. No separate award should be made for the violation of rights since this would amount to unjust enrichment of the plaintiff’.”


204. The same reasoning has been applied in numerous subsequent cases: see for example Yange Lagan v The State (1995) N1369 and Tabia Koim v The State (1998) N1737, which were cited by Mr Obora in his submissions for Telikom. I respectfully agree that those authorities are in this regard applicable to the present case.


205. Mr Opi’s claim for general damages for defamation has been assessed and awarded at K100,000. Those general damages are compensatory in nature. The award of general damages has been made to compensate Mr Opi for the injury to his business and personal reputation and the injury to his feelings and health. If there was to be an additional award of damages for breach of Mr Opi’s constitutional rights as pleaded by him, that would result in duplication of compensation.


206. A further reason why there should be no separate compensatory award to Mr Opi under s.23 based on s.41 of the Constitution is because in this proceeding Mr Opi applied for, and has now been granted, a judicial declaration that the termination of his employment by Telikom was unlawful. Section 41 of the Constitution deals with acts or conduct which although prima facie lawful only become unlawful because they come within the scope of those acts which are proscribed by s.41. The granting of the judicial declaration that Telikom’s termination of Mr Opi’s employment was unlawful has in itself pre-empted any need for this Court to consider if Telikom’s conduct in terminating Mr Opi’s employment in the manner it did comes within any of the 7 circumstances proscribed by s.41 of the Constitution which could render otherwise lawful conduct to be unlawful.


207. This is not to say that Mr Opi did not have an arguable cause of action against Telikom founded on breach of his constitutional rights. But that cause of action should have been pleaded by Mr Opi in the alternative so that if the primary relief he was seeking in his ASOC, that is to say the two judicial declarations and damages for defamation, were denied, then he could still have had pursued his separate cause of action against Telikom based on s.23 and s.41 of the Constitution.


208. For these reasons I decline to award any damages in respect of Mr Opi’s claim based on s.23 and s.41 of the Constitution for violation of constitutional rights.

Issue 5 – Costs


209. Mr Opi, in the prayer for relief in his ASOC, has expressly sought an order that Telikom pay his costs of this proceeding on an indemnity basis. This squarely raises the issue of what costs order the Court should now make. Is Mr Opi entitled to his costs of this case on a full indemnity basis or on some lesser basis as to costs?


210. The answer to this question requires an understanding of the different types of awards of cost which this Court can make, in particular the difference between indemnity costs and that category of costs known as solicitor/client costs, also known as lawyer/client costs and practitioner/client costs.


211. Order 22 rr.1 to 65 NCR comprise an extensive set of provisions which deal with powers and discretions of the National Court to award and supervise the assessment of costs in litigation as well as the assessment of the professional fees and disbursements charged by a lawyer to a client.


212. A party to litigation is not entitled to recover the costs of the proceedings from any other party except by order of the Court: O.22 r.8 NCR.


213. To enforce a costs order, the costs must first be taxed, that is to say assessed, by a taxing officer of the Court: O.22 r.6(1) NCR.


214. Order 22 r. 11 NCR provides:


“11. If the Court makes any order as to costs, the Court shall, subject to this Order, order that the costs follow the event, except where it appears to the court that some other order should be made to the whole or any part of the costs.”


215. In practice, an order that costs follow the event means that the costs are to be taxed on a party/party basis: O.22 r.24(1). Table 1 of Schedule 2 NCR is the Scale of Costs which a taxing officer must adhere to when assessing a bill for party/party costs. This Scale of Costs has not been revised since the coming into operation of the NCR in 1983. It is generally recognized by lawyers and members of the judiciary that this Scale is out of step with contemporary fees charged by lawyers to their clients. For example, when appearing and arguing a contested hearing for final relief where the claim is for an amount in excess of K50,000, counsel is only allowed K350 for the first day and 2/3rds of that for every subsequent day: Schedule 2 Table 1 Item 6(1) (Counsel’s fees). This equates to about K60/hour for the first day and K40/hour for every subsequent day of a contested trial or hearing. This does not bode well for a party who, having been awarded party/party costs, is in reality these days paying legal fees to his or her counsel or lawyer which could be well in excess of K800 per hour, but whose fees when taxed and payable by the other party, are restricted to that which is allowed by Table 1 of Schedule 2 NCR. The Scale of Costs for orders which follow the event and are made on a party/party basis is clearly well overdue for revision or repeal.


216. Be that as it may, O.22 r.11 NCR has always given the National Court a discretion to make other forms of costs orders. This is where the practice has grown for parties in litigation to seek costs orders on a solicitor/client or indemnity basis. There is however an important distinction to be made between costs orders made on a solicitor/client basis and those made on an indemnity basis, a distinction which needs to be clarified.


217. Order 22 rr.34 and 35 NCR deals specifically with costs orders which are taxable on a solicitor/client basis. In contrast to party/party costs, there is no prescribed scale of solicitor/client costs in the NCR which is directly applicable. In short, the test is largely one of “reasonableness”.


218. Order 22.r.35(1) NCR provides:


“35(2) Costs shall not be allowed in so far as they are of an unreasonable amount, unless the amount has been approved by the client.”


219. Unlike the costs rules for courts of record in many other Commonwealth jurisdictions, our NCR contain no reference to costs orders made on an indemnity basis. It is however clear from an abundance of case law in Papua New Guinea that costs on an indemnity basis can be ordered by the National and Supreme Courts.


220. In PNG Waterboard v Gabriel Kama (2005) SC 821 the Supreme Court observed, when dismissing an application for review of the decision of a separately constituted Supreme Court as an abuse of process, that the applicant had been forewarned by the respondent that if the review application proceeded, the respondent would claim costs on a solicitor/client basis. When ruling on the matter of costs, the Court found, somewhat confusingly, that the respondent was entitled to a costs order on an indemnity basis, not on a solicitor/client basis.


221. Then in PNG International Hotels Pty Ltd v Registrar of Land Titles (2007) N3207, the National Court, when granting a joinder application, ordered other parties to pay the applicant’s costs on “a full indemnity basis”. No reasons were given by the presiding judge for why that indemnity order was made, other than findings earlier in the judgment that the Court had been misled in certain respects by the lawyer for another party and that the applicant for joinder had real estate rights that needed to be protected.


222. The practice of forewarning an intending party that costs would be sought on a solicitor/client or indemnity basis if proceedings were instituted that were later dismissed as being an abuse of process was extensively considered by Injia DCJ in Island Helicopter Services Ltd v Wilson Sagati & Ors (2008). His Honour then went on to say:


“As a general rule of practice, an applicant for an order of costs on a lawyer-client basis under O.22 r.65 should be made by Notice of Motion and supported by affidavit. Of course, there are those very rare cases where the conduct of the parties or lawyers in the proceedings is known to the Court, especially in a case where the proceedings are conducted and completed before the same judge, in which case formal notice of motion and affidavit may be unnecessary. In those cases, a party or a lawyer may make an oral application for such costs and that matter may be argued based on the pleadings, the material already before the Court, any new material such as copies of correspondences exchanged between the parties which may be handed up from the bar table by consent of the parties and the conduct of the parties or their lawyers throughout the proceedings. The Court may be in a good position to determine the matter. In all other cases where a party seeks costs on a lawyer-client basis, the application should be made by motion on notice and supported by affidavit.”


223. However, His Honour, after reviewing the circumstances which had given rise to the litigation in that case, concluded the Court’s decision by stating:


“... I do not think the conduct of the appellant’s lawyer or his client is improper or unreasonable such that it should be punished by costs on a lawyer-client basis or on an indemnity basis. I consider too that the respondent should be adequately compensated by costs on a party-party basis.

224. In making that ruling, His Honour did not indicate if there was any difference in law between costs orders made on a solicitor-client basis and costs orders made on an indemnity basis. Reference in His Honour’s decision to these two types of costs orders seems to have been made interchangeably, as if they were the same thing.


225. Some clarity to the meaning of what constitutes an indemnity costs order can however be found in Rex Paki v MVIL (2010) SC 1015 where the Supreme Court succinctly held that:


“The award of costs on an indemnity basis is discretionary. An order for costs on an indemnity basis may be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable or blameworthy that he should be so punished by such an order. The question is whether the conduct of the appellant in this matter is such that it caused the respondent to incur unnecessary costs”


226. The Court went on to find that the conduct of the appellant in that instance was such that it had caused the respondent to incur an inordinate amount of wasted time, effort and money, conduct which the Court considered was “improper, unreasonable and blameworthy”. The appellant was ordered to pay the respondent’s costs on an indemnity basis.


227. A sampling of cases in our jurisdiction where the Courts have ordered that costs be paid on a solicitor/client basis (as opposed to an indemnity basis) is contained in PNG Ports Corporation Ltd v Canopus No. 71 Ltd (2010) N4288. His Honour Kandakasi J (as he then was) identified the following circumstances where Courts have made costs orders on a solicitor/client basis:


(1) abuse of court process by invoking the Court’s review jurisdiction without reasonable cause and pursuing a hopeless application: Polye v Sauk [2000] PNGLR 168;

(2) filing an application for review with no basis at all, which was mischievous, unmeritorious and an abuse of the Court’s process: PNG Waterboard v Gabriel Kama (supra);

(3) bringing proceedings which are vexatious and an abuse of the Court’s process: Gulf Provincial Government v Baimuru Trading Ltd [1988] PNGLR 322; Jacob Sarapel v Fred Kulumbu (2003) N2405;

(4) no valid defence and where the claim could have been settled but the plaintiff was put to unnecessary expense by having to litigate: POSF Board v Sailas Imanakuan (2001) SC 677;

(5) no factual or legal basis for maintaining a defence at trial: Benny Balepa v Commissioner of Police (1994) N1374;

(6) where the defendant’s conduct in terminating the plaintiff’s contract of employment was harsh and oppressive and had no good defence on the merits when the plaintiff sued for damages which could have settled but the plaintiff was put to unnecessary expense in litigating the claim: Peter Aigilo v Morauta & Ors (2001) N2102; Salvation Army (PNG) Property Trust v Ivar Jorgenson & Rex Vagi (1997) N1644;

(7) wanton, deliberate and unprovoked assault by the defendant: Alex Latham & Kathleen Latham v Henry Peni [1997] PNGLR 435;

(8) wilful and deliberate defiance of Court orders: Bishop Brothers Engineering Pty Ltd v Ross Bishop (1989) N705.

228. To this list of circumstances, His Honour added that an award of solicitor/client costs is also appropriate where a party has failed to explore and exhaust all prospects of having a matter settled and has forced a matter into court or has unnecessarily prolonged a dispute.


229. In Karulaka v National Forests Authority (2014) N5875 the National Court, having approved the meaning ascribed by the Supreme Court in Rex Paki’s case to costs orders made on an indemnity basis, was satisfied that the defendants’ lawyers had put the plaintiffs’ lawyers on notice before suit that the National Court did not have jurisdiction in respect of customary land disputes and that if the plaintiff proceeded in the National Court, then the defendant would, upon successful application to dismiss, seek costs “on a solicitor/client or full indemnity basis”. The Court, on granting a dismissal of the proceedings, was satisfied that the conduct of the plaintiffs by their lawyers had caused certain of the defendants to incur unnecessary costs. The plaintiffs were ordered to pay those defendants’ cost on a solicitor/client basis. However, the Court did not give its reasons why it ordered those costs to be paid on a solicitor/client basis as opposed to granting the alternative order of costs on an indemnity basis which had in fact been sought by certain of the defendants. Presumably the Court was of the view that the conduct of the plaintiffs or their lawyers in that case was not sufficiently “improper, unreasonable or blameworthy” to have justified a costs order being made on a full indemnity basis, but that the Court’s finding of the incurring of unnecessary costs warranted costs being instead awarded on the lesser solicitor/client basis.


230. The issue that I perceive has arisen is that there have been no reported decisions in Papua New Guinea which sufficiently explain the difference between solicitor/client costs orders and costs orders made on an indemnity basis. These terms have often been used judicially as if they are interchangeable, as if they are one and the same type of costs order.


231. The Australian position is that costs awarded on an indemnity basis are intended to provide a more complete indemnity than on a solicitor/client basis: Milosovic v Government Insurance Office (NSW) (1993) 31 NSWLR 323 at 324; Rosniak v Government Insurance Office (1997) 41 NSWLR 608.


232. In Quirk v Bawden (1992) 112 ACTR1 the ACT Supreme Court held that the most favourable basis for an award of costs that can be made is indemnity costs, which is more generous than the conventional solicitor/client basis, and is designed to give the fullest possible indemnity to the receiving party.


233. Indemnity costs are akin to a penalty: Lamesa Holdings BV v Federal Commissioner of Taxation (1997) 74 FCR 416 at 419.


234. Singleton v Macquarie Broadcasting Holdings Ltd (1991) NSWLR 103 contains learned discussion by Rogers CJ of the Commercial Division of the Supreme Court of New South Wales of Australia of the reasons for and scope of orders for indemnity costs, as distinguished from other forms of costs orders, including solicitor/client costs.


235. The salient principles which I consider can be distilled from these Australian cases and the cases in our jurisdiction which I have referred to are these:


(1) The purpose of a costs award on an indemnity basis, although compensatory is primarily punitive. As was stated by the Supreme Court in the Rex Paki case, an award of costs on an indemnity basis can be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable or blameworthy that punishment is warranted.

(2) An award of costs on a solicitor/client basis is made to compensate the receiving party for the fees and disbursements that the lawyer charges the client, to the extent that those fees and disbursements, if taxed, were “reasonably” incurred. They do not include unreasonable or unusual fees and disbursements.

(3) Because a costs award on an indemnity basis is more generous than a costs award on a solicitor/client basis, its scope extends beyond that to which a receiving party is entitled had a solicitor/client costs been ordered. It is intended as a full indemnity for all costs and expenses incurred preparatory to and during the proceedings, not just the legal fees and associated disbursements charged by that party’s lawyer(s). So for example a receiving party, if an individual, is entitled to claim for loss of income or the value of time wasted when attending to matters relating to the proceedings. Similarly, a corporation or business can claim for the value of time spent by its officers and employees when attending to the proceedings.

(4) An award of costs on a solicitor/client basis is intended to compensate the receiving party for legal fees and disbursements charged by that party’s lawyer in having to unnecessarily defend proceedings which were an abuse of process, where there was no defence on the merits, where the other party failed to explore and exhaust all prospects of having the matter settled without the need for court action or delay, where there has been defiance by the other party in complying with court orders and or where the receiving party has generally had to incur unnecessary expense through unmeritorious litigation.

(5) Forewarning in writing or by electronic means should always be given that costs will be sought on a solicitor/client basis if proceedings are wrongly instituted and then dismissed as being without merit, or if the circumstances are sufficiently egregious to warrant not just the disapproval by the Court but also punishment, that costs will be sought on a full indemnity basis.

236. The above principles are not intended to be exhaustive. But I consider that they sufficiently illustrate the distinction between costs ordered on a solicitor/client basis as opposed to costs ordered on an indemnity basis.[15] It must always be borne in mind that these two different categories of costs orders are at the discretion of the Court, just as party/party costs are discretionary. It is axiomatic that each costs order made by a Court must be tailored to the circumstances of the case before it.


237. Reverting to Mr Opi’s case, and bearing the above principles in mind, I have determined that the most appropriate costs order to be made is that Mr Opi’s costs, that is to say his legal fees and all disbursements properly and necessarily charged by his lawyer of and incidental to this proceeding which are not the subject of earlier costs orders, are to be paid by Telikom on a solicitor/client basis, together with reimbursement by Telikom of any air travel costs reasonably and necessarily incurred by Mr Opi when travelling from Mount Hagen to Port Moresby to consult with his lawyer regarding this proceeding and to attend the assessment of damages trial, but excluding any travel costs associated with Mr Opi’s attendance at Court to receive the delivery of this judgment.


238. My principal reason for this determination is because I do not consider Telikom’s actions in defending this case, although unjustified, were so unreasonable or outrageous as to warrant a punitive order by way of an order for Mr. Opi’s costs to be paid on an indemnity basis. Telikom was forewarned by Mr Opi’s counsel that costs would be sought on an indemnity basis. But if summary judgment against Telikom not been ordered because of its own procedural defaults, Telikom would have had the opportunity to have defended the liability aspect of each of Mr Opi’s claims in this proceeding. Telikom’s conduct in declining to settle Mr Opi’s grievances and bringing the assessment of Mr Opi’s damages onto trial as one of the factors which I have already taken into account in the award for general damages for defamation which Mr Opi has received in this judgment. As for compensation for time spent by Mr Opi in preparing for this case and his attendances for all matters of and incidental to this proceeding, the award of special damages he has now received by this judgment is intended to cover his loss of income for the period from date of termination of his employment through to the date of the trial of assessment of his damages. This therefore provides its own source of remuneration for time spent by Mr Opi in prosecuting this case.


239. I have however determined that Telikom’s stance in bringing this case on for trial on assessment of damages was unreasonable. No meritorious defence to any of the principal relief sought by Mr Opi in this proceeding was established at the trial on assessment of damages. By forcing this matter on to trial on assessment of damages, Mr Opi had no choice but to incur the unnecessary waste of his time and personal resources. That is why I consider the appropriate order for costs is that Telikom should pay Mr Opi’s costs on a solicitor/client bases, subject to the conditions I have outlined.

Issue 6 – Interest on Damages


240. Mr Opi has sought interest on his awards of damages at the conventional rate of 8% per annum pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act.


241. I will award interest at 8% per annum on general damages for defamation from date of accrual of the cause of action on 3 October 2013 to date of trial on 10 October 2019.


242. Interest will be awarded at 4% per annum on special damages, being half the conventional rate of interest. My reason for this relates back to the English case of Jefford v Gee [1970] EWCA Civ 8; [1970] 2 QB 130 at 151 where it was held that interest on monetary losses claimed as special damages for loss of wages should be awarded at half the usual rate normally applied to most other awards of damages. This is because loss of earnings usually occurs on a regular periodic basis, and is not paid in one lump sum on one single occasion.


243. In Mr Opi’s case, had he continued in gainful employment with Telikom, he would have been paid on a fortnightly basis. He would not have received the amount now awarded to him by way of special damages in one lump sum for his loss of earning capacity based on net salary for the whole 6 years he has claimed. Rather it would have accrued to him on a fortnightly basis. As the purpose of interest is to compensate a plaintiff for being kept out of money which ought to have been paid, allowance needs to be made to take into account the fact that money invested each fortnight progressively earns interest each time it is invested.


244. In Jefford v Gee it was decided that rather than the court having to go into the tedious detail of calculating interest on notional salary from date of each accrual to date of trial, interest at half the normal rate should be applied to the award of special damages covering pre-trial monetary loss.


245. The guiding principles on interest on awards of damages set out in Jefford v Gee were expressly approved and adopted by the Supreme Court in Pinzger v Bougainville Copper Ltd [1985] PNGLR 160 (Pratt, Amet, Woods JJ), where it was held, among others, that statutory interest awarded under the Judicial Proceedings (Interest on Debts and Damages) Act Chapter 52 on special damages (including amounts for loss of wages) in personal injuries cases should be awarded at half the “appropriate rate” from the date of accident to the date of trial, unless special circumstances indicate otherwise.


246. The reference to the “appropriate rate” of interest applicable to awards of damages (other than special damages) mentioned in Pinzger’ s case is 8% per annum and is to be found in O.12 r.6 NCR which provides:


“6. Interest


(1) Where the Court directs the entry of judgement for the payment of money and makes an order for the payment of interest under the Judicial Proceedings (Interest on Debts and Damages) Act 1962, interest shall, unless the order otherwise provides, be payable on so much only of the money as is from time to time unpaid.

(2) The rate of interest for the purposes of Sub-rule (1) is 8% yearly.


247. Although the former Judicial Proceedings (Interest on Debts and Damages) Act 1962 (reprinted as Chapter 52 of the Revised Laws of Papua New Guinea) has been repealed and replaced by the Judicial Proceedings (Interest on Debts and Damages) Act 2015, s.4 of the latter Act provides that except for certain contractual or mercantile claims against the State where the interest rate on damages shall not exceed 2% yearly, the Court may order such rate of interest as it thinks proper on the whole or part of damages awarded for the whole or part of the period between the date on which the cause of action arose and the date of judgment.


248. It follows therefore that Mr Opi’s award of special damages for monetary loss on his estimated loss of earnings, as substantiated by Mr Boku’s evidence, will attract interest at 4% per annum, being half the conventional rate of interest of 8% per annum, for 6 years as from date of loss of Mr Opi’s employment with Telikom which took effect on 6 October 2013 to date of trial on 10 October 2019.


249. Damages with interest to date of trial of assessment are awarded to Mr Opi as follows:


General damages: K 100,000

Interest on general damages at 8% per annum
from 3 October 2013 to 10 October 2019
(rounded off to 6 years): K 48,000

Special damages: K 565,300

Interest on special damages at 4% per annum
from 6 October 2013 to 10 October 2019
(rounded off to 6 years): K 135,600


Total (damages and interest): K848,900


Concluding Observations


250. Before proceeding to make the final orders, for the sake of completeness, I wish to make three further observations in connection with this matter.


251. It was submitted by Mr Obora at the assessment of damages trial that Telikom had a statutory defence under Part IX of the Wrongs (Miscellaneous Provisions) Act Chapter 297 and that it was open to the Court to determine that if Mr Opi was partly at fault for his own dismissal, then Mr Opi contributed to his own losses and suffering. Telikom was in effect urging the Court to find, in the alternative to Telikom’s denial of liability as pleaded in its Defence, contributory negligence on the part of Mr Opi for having his employment terminated and being defamed by Telikom. Counsel for Mr Opi in reply pointed out, correctly I might add, that if Telikom had intended to raise a defence of contributory negligence, then it should have filed an Amended Defence expressly pleading that statutory defence so that Mr Opi would not be taken by surprise at trial. I accordingly reject any contention by Telikom that it was entitled during the course of the trial on assessment of damages to raise the alternative defence of contributory negligence where that defence had not been pleaded. The usual practice of the Court in this regard prevails.


252. For much the same reason, I also reject the submission for Mr Opi made by Mr Wamp at the trial on assessment of damages that exemplary damages should be awarded in Mr Opi’s favour against Telikom. No claim for relief based on exemplary damages was pleaded in Mr Opi’s ASOC. Relief not pleaded cannot be claimed at trial.


253. Although Mr Boku’s calculations of Mr Opi’s notion loss of income were acceptable as credible for the period to which they related, counsel for Mr Opi should have ensured that those calculations were updated to the date of trial and produced to the Court either in evidence or at the very least during submissions, which would thereby have avoided the inconvenience and wastage of valuable Court time in having to recalculate those figures to the date of trial.


ORDER


254. Based on the foregoing reasons, the Court directs entry of judgment in the following terms:


(1) A declaration is made that the termination of the Plaintiff’s employment by Telikom (PNG) Limited on 3 October 2013 was unlawful.

(2) A declaration is made that the memorandum dated 3 October 2013 signed by Acting Chief Executive Officer Martin Veisame on behalf of the Board of Telikom (PNG) Limited and addressed to the Plaintiff giving notice of termination of the Plaintiff’s employment with Telikom (PNG) Limited with effect from 5 October 2013 was unlawful.

(3) The Defendant shall pay the sum of K848,900 to the Plaintiff comprising:

(a) general damages: K100,000

(b) interest on general damages: K48,000

( c) special damages: K565,300

(d) interest on special damages: K135,600
Total (damages and interest): K 848,900


(4) The total judgment sum of K848,900 is to be paid within 30 days after the date of entry of this judgment.


(5) Subject to earlier costs orders, the Defendant shall pay the Plaintiff’s costs of and incidental to this proceeding on a solicitor/client basis, together with reimbursement of the plaintiff’s air travel costs reasonably and necessarily incurred by the Plaintiff when travelling from Mount Hagen to Port Moresby to consult with his lawyer regarding this proceeding and to attend the assessment of damages trial, such costs to be taxed if not agreed.


Judgment accordingly.
________________________________________________________________
Edward Wamp Lawyers: Lawyers for the Plaintiff
Raymond Obora Lawyers: Lawyers for the Defendant


[1]William Mel v Coleman Pakalia & Ors (supra) at p. 28
[2] [1966] HCA 40; (1966) 117 C.L.R. 118, at pp. 150-151; [1966] HCA 40; 40 A.L.J.R. 124 at p.137
[3] [1978] 3 WLR 955 (House of Lords)
[4] [1983] PNGLR 350
[5] (supra)
[6] (2002) N2282
[7] (2003) N2328
[8] McGregor on Damages 19th Edition (2015) Sweet & Maxwell at para. 44-002 [1698].
[9] Ibid, at para. 44-005 [1700]
[10] Ibid, at 327F to G.
[11] Supra, at pp, 677 to 678.
[12] Supra, at pp 321-323.
[13] Ibid, at para. 17-025 [623].
[14] See Atlas Tiles Ltd v Briers (1978) 52 A.L.J.R 707
[15] For a scholarly Australian insight on the nature of indemnity costs and offers of compromise designed to attract an award of costs on an indemnity basis, see the paper “Walk Away Offers of Compromise” by Justice Peter Johnstone, President of the Children’s Court of New South Wales presented at the New South Wales Bar ADR Workshop on 28 August 2010. Available on request from the ADR Service of the National Court.

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