Counsel v Anitua Ltd [2025] PGNC 295; N11440 (15 August 2025)

N11440

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 423 OF 2024

BETWEEN:
JULIAN COUNSEL
Plaintiff

AND:
ANITUA LIMITED
Defendant

LAE: DINGAKE J
13, 15 AUGUST 2025

ASSESSMENT OF DAMAGES – assessment of damages following entry of default judgment – claim based on unlawful termination of employment - Plaintiff has proven the special damages claimed -general damages in the amount sought for distress humiliation and hardship is reasonable – damages awarded to plaintiff as sought

Cases cited
Reid v Murray Hallam and Allcad Pty Ltd [1995] PGNC 26; N1337
Coecon Ltd (Receiver-Manager Appointed) v National Fisheries Authority of Papua New Guinea [2002] PGNC 144; N2182
Madang Cocoa Growers Export Co Ltd v National Development Bank Ltd [2012] PGNC 37; N4682
Hadley v Baxendale (1854) 9 Exch 341
Victoria Laundry v Newman Industries Ltd [1949] 2 KB 528
Tetley v The Administration (1971) No 647
PNG Aviation Services Pty Ltd v Karri [2009] PGSC 24; SC1002
Hodson v The State [1985] PNGLR 303
Harding v Teperoi Timbers Pty Ltd [1988] PNGLR 128
Linz v PTC [1988] PGNC 9; N712
Na-Al v Debege [2000] PGNC 6; N1958
Lahari v Koloma [2021] PGNC 407; N9254

Counsel
Mr. Timwapa Dawidi for the plaintiff
No Appearance for the Defendant

JUDGMENT

1. DINGAKE J: INTRODUCTION: This matter comes before the court for assessment of damages following the entry of a default judgement against the Defendant on the 9^th of April, 2025, for unlawful termination of employment.
   

BACKGROUND FACTS

2. At all material times hereto, the Plaintiff was employed by the Defendant as the Chief Executive Officer.
   
3. The Plaintiff was dismissed from his employment on the 18^th of May 2024.
   
4. The plaintiff alleged that his dismissal was arbitrary, without just cause and in breach of the employment contract.
   
5. The Plaintiff alleged that at the time of his dismissal, he was earning an annual salary of AUD 400,000 net of PNG taxes. He alleges that the Defendant owes the following benefits:
   
   1. Accrued Leave – AUD 10,881.23.
   2. Bonus 10% bonus for 2023 – AUD 40,000.00.
   3. Underpaid Salary – AUD 268,506.95.
   4. Reimbursable Claims – K5,514.84.
   5. School fees – K5,500.00
      
6. The Plaintiff also claims he suffered distress and hardship as a result of his employment being terminated and now claims K50,000 as general damages.
   

EVIDENCE

7. The Plaintiff relies on his affidavit, which was admitted as evidence and marked: “Exhibit P1” and that of his lawyer, Timwapa Dawidi “Exhibit P2”
   
8. The aforesaid evidence establishes that:
   
   1. The Plaintiff’s salary was AUD 400,000 per annum, net of PNG taxes, and that he’s owed 10% of bonus for 2023 – AUD 40,000.00.
      
      2. He was entitled to performance bonuses, leave, school fee assistance, accommodation, travel and other allowances.
         
      3. Had been underpaid in the amount of AUD 268,506.95.
         
      4. He is owed K5,514.84 for reimbursable claims.
         
      5. He is owed K5,500.00 for school fee assistance.
         
      6. He is owed accrued leave in the amount of AUD 10,881.23
         

LEGAL PRINCIPLES IN ASSESSMENT OF DAMAGES

9. In wrongful dismissal cases, damages are compensatory in nature, not punitive. The aim is to place the Plaintiff in the position he would have been had the contract not been breached or unlawfully terminated.
   
10. There is a plethora of authorities in this jurisdiction that establish the following, after entry of judgment on liability:
    
    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. (Reid v Murray Hallam and Allcad Pty Ltd [1995] PGNC 26; Coecon Ltd (Receiver-Manager Appointed) v National Fisheries Authority of Papua New Guinea [ 2002] PGNC 144; N2182 (28 February 2002); Madang Cocoa Growers Export Co Ltd v National Development Bank Ltd [2012] PGNC 37; N4682 (18 May 2012); Hadley v Baxendale (1854) 9 Exch 341 and Victoria Laundry v Newman Industries Ltd [1949] 2 KB 528; Tetley v The Administration (1971) No 647; and PNG Aviation Services Pty Ltd v Karri [2009] PGSC 24; SC1002 (4 December 2009))
   
11. General damages may be awarded for distress and humiliation, especially where the dismissal was conducted in a harsh or unjust manner. (Hodson v The State [1985] PNGLR 303; Harding v Teperoi Timbers Pty Ltd [1988] PGLawRp 46; [1988] PNGLR 128 (22 July 1988); David Lintz v Post Telecommunication Corporation (1988) N712; Peter N-al v Debege (2000) N1958; Lahari v Koloma (2021) N9254).
    

ASSESSMENT OF CLAIMS

12. Having regard to the evidence and my findings above, I am satisfied that the Plaintiff has proven the special damages claimed. I also consider that general damages in the amount sought, namely, K50,000.00 for distress humiliation and hardship is reasonable.
    

INTEREST

13. The Plaintiff is entitled to interest at the rate of 8% from the date of dismissal, being the 18^th of May 2024, until satisfaction of the judgement.
    

COSTS

14. Costs follow the event. The Plaintiff is entitled to costs on a party-to-party basis.
    

TOTAL AWARD

15. The Court Orders:
    
    1. Special Damages
       • (a) Accrued Leave – AUD 10,881.23.
       • (b) Bonus 10% bonus for 2023 – AUD 40,000.00.
       • (c) Underpaid Salary – AUD 268,506.95.
       • (d) Reimbursable Claims – K5,514.84.
       • (e) School fees – K5,500.00
         
    2. General Damages – K50,000.00 for distress, reputational harm, and hardship.
       
    3. Interest – on the above amounts at the rate of 8% from the date of dismissal being the 18^th of May 2024, until satisfaction of the judgement.
       
    4. Costs – on a party-to-party basis, to be agreed or taxed.

________________________________________________________________
Lawyers for the plaintiff: Dawidi Lawyers
Lawyers for the defendant: Ainui Legal Services