Pundari v Niolam Security Ltd [2011] PGSC 23; SC1123 (2 September 2011)

SC1123

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA NO 73 0F 2009

MICHAEL PUNDARI
Appellant

V

NIOLAM SECURITY LIMITED
Respondent

Waigani: Davani J, Cannings J, Yagi J
2011: 27 June, 2 September

PRACTICE AND PROCEDURE – whether document tendered by a party at trial must be pleaded before being admitted into evidence

LAW OF EMPLOYMENT – written contract of employment – whether the court may look at extrinsic materials to ascertain meaning of terms of contract – wrongful dismissal: circumstances in which written contract of employment confers a right to be heard on an employee prior to dismissal

The appellant commenced proceedings in the National Court, claiming damages for wrongful dismissal against the respondent, his former employer. In the course of the trial the appellant tendered in evidence a copy of the respondent's operation procedures manual, which, he claimed, stated that all of the respondent's employees would be given a right to be heard if any allegations were raised against them, prior to dismissal. The trial judge refused to admit the manual into evidence as it was not included in the pleadings and it was extrinsic evidence which was not allowed to add to or subtract from the written contract of employment. The National Court concluded that the appellant's contract had been terminated for good cause, that the respondent was under no obligation to give a right to be heard to the appellant prior to terminating his employment and that the respondent was under no obligation to give reasons for termination of employment. The appellant appealed against the whole of the judgment on nine grounds.

Held:

(1) Per Cannings J and Yagi J; Davani J dissenting: the trial judge erred by refusing to admit the operation procedures manual into evidence as the proposition that the appellant had a right to be heard, which he was denied, prior to termination of employment, had been sufficiently pleaded and the purpose of tendering the document was to adduce evidence in support of that proposition and it involved too rigid an interpretation of the principle in Curtain Bros (Qld) Ltd v The State to say that reference to any extrinsic materials was impermissible.

(2) Per Cannings J and Yagi J; Davani J dissenting: as there was evidence at the trial that the operation procedures manual stated that all employees would have a right to be heard, the right to be heard was incorporated as a term of the contract of employment, which was breached when the respondent terminated the appellant's employment without giving him a right to be heard. Consequently the appellant had been wrongfully dismissed and the trial judge's finding to the contrary was made in error and should be quashed and substituted with an order that liability was established against the respondent and the proceedings should be remitted to the National Court for trial on the relief sought in the statement of claim.

(3) Per Davani J: the operation procedures manual was not properly brought into evidence because it was not pleaded in the statement of claim. The appellant had only pleaded breaches of the contract of employment. The appellant had the benefit of the services of a lawyer to discover the document but failed to do so. If the appellant relied on breaches of the operation procedures manual, he should have pleaded it. The trial judge was correct in not admitting it into evidence. The appeal is dismissed and costs awarded to the respondent.

(4) By majority, the appeal was allowed, with costs, and the proceedings remitted to the National Court for trial on the relief sought in the statement of claim.

Cases cited
Papua New Guinea Cases

The following cases are cited in the judgment:

Ayleen Bure v Robert Kapo (2005) N2902
Curtain Bros (Qld) Pty Ltd v The State [1993] PNGLR 285
Ereman Ragi & Ors v Joseph Maingu (1994) SC459
Igiseng Investments Limited v Starwest Constructions Limited and Igiseng–Okmanip Business Group Inc (2003) N2498
Jimmy Malai v Papua New Guinea Teachers Association [1992] PNGLR 568
Karava v IPA (1999) N1805
Kerry Lero trading as Hulu Hara Investments Ltd v Philip Stagg, Valentine Kambori & The State (2006) N3050
Kumar v Wama [1993] PNGLR 38
Michael Pundari v Niolam Security Limited (2009) N3738
MVIT v James Pupune [1993] PNGLR 370
MVIT v John Etape [1994] PNGLR 596
Nazel Wally Zanepa v Ellison Kaivovo, Department of East New Britain & Anor (1999) SC623
New Britain Oil Palm Limited v Vitus Sukuramu (2008) SC946
Pama Anio v Aho Baliki (2004) N2719
Papua Club Inc v Nusuam Holdings Ltd (2005) SC812
Paul John v Gerd Lindhardt & Servicom Pty Ltd (1999) N1938
PNGBC v Jeff Tole (2002) SC694
Porgera Joint Venture v Robin Kami (2010) SC1060
Rage Augerea v Bank of South Pacific Limited (2009) SC869
Robert Kapo v Ayleen Bure and 4 Ors, SCA 18
Steamships v Joel [1991] PNGLR 133
Susan Love (substitute for Fabian Love) Deceased v Bridgestone Tyres (PNG) Limited, SCA 1 of 2006, 03.09.10
Teio Raka Ila v Wilson Kamit & Anor (2002) N2291
Tony David Raim v Simon Korua (2010) SC1062
Ume More v University of Papua New Guinea [1985] PNGLR 401
Vitus Sukuramu v New Britain Oil Palm Limited (2007) N3124
Willie Joy v Kerowara Logging Company Limited

Overseas Cases

Boyo v London Borough of Lambeth [1995] 1RLR 50AC (1980) ICRC 755
Gunton v London Borough of Richmond-upon-Thames [1980] 3 All ER 577
M Vasudevan Pillai v Singapore City Council (1968) 1WLR 1278

APPEAL

This was an appeal against a decision of the National Court to dismiss an action for wrongful dismissal.

Counsel

D Steven, for the appellant
A Mana, for the respondent

2 September, 2011

1. DAVANI J: Before the Court is a Notice of Appeal filed by Stevens Lawyers for and on behalf of the appellant on 1 July 2009. There are several grounds of appeal which I summarise as follows:
   
   • (i) The trial judge erred when he refused to admit into evidence the respondent's Operation Procedures Manual ('OPM') when the relevance and the right to introduce the OPM was permitted and supported by relevant pleadings.
     
   • (ii) The Court erred when it relied on Curtain Bros (Queensland) Ltd v The State [1993] PNGLR 285, in refusing to introduce the OPM into evidence.
     
   • (iii) The Court erred when it refused to admit into evidence the OPM because the said document is relevant in determining the issue of intention in the employment contract.
     
   • (iv) The Court erred when it held that the principles of minimum payments stipulated in the OPM were not an implied term of the employment contract.
     
   • (v) The Court erred when it failed to interpret clause 10 of the appellant's employment contract where the wording of clause 10 itself was unclear and the notice of termination dated 18 July 2005 did not clearly state the grounds of termination as listed in clause 10 of the employment contract.
     
   • (vi) The Court erred when it held that the appellant breached clause 10 of the employment contract against all evidence which were that:
     
     • - The decision to terminate the appellant was made by individuals rather than by the Board of Directors, in breach of clause 10 of the employment contract.
       
     • - There was evidence to refute allegations of financial misconduct.
       
     • - There was no evidence to substantiate claims in relation to the respondent's corporate image.
       
     • - Placing too much weight on inconsistent evidence.
       
   • (vii) The Court took into account irrelevant considerations.
     
   • (viii) The Court erred in its findings on quantum when it held that the appellant was entitled to only one month's notice in repatriation expenses.
     
   • (ix) The Court erred when it held that the appellant did not mitigate his loss.
     
2. The appellant seeks the following orders:
   
   • (i) The appeal be allowed.
     
   • (ii) The National Court's decision be quashed.
     
   • (iii) The matter be remitted to the National Court for a rehearing of the plaintiff's claim.
     
   • (iv) Alternatively, that the Supreme Court substitute its own findings that the appellant was wrongly terminated and to set the matter down for hearing on the assessment of damages.
     

Background facts

3. The trial judge's decision of 22 May 2009 at Kokopo, was made in National Court proceedings WS 1106 of 2005.
   
4. The appellant was employed as a General Manager of the respondent company under a written Contract of Employment. He commenced his employment with the respondent company on 23 January 2003. His Contract of Employment ran for two years and was later renewed on 20 January 2005 for a further three years, which would have expired on 20 January 2008. The appellant was summarily dismissed on 18 July 2005 by written letter of even date. He commenced proceedings by filing a Writ of Summons on 20 July 2005 claiming damages for alleged wrongful termination. The respondent's reasons for termination as stated in the respondent's letter to him of 18 July 2005, and which in summary are:
   
   • (i) unaccounted cash receipts;
     
   • (ii) misconduct; and
     
   • (iii) the lack of good corporate image being portrayed by the appellant through his conduct and activities.
     
5. The appellant's claim in the National Court was effectively for entitlements equivalent to the balance of his Contract of Employment.
   
6. The matter proceeded to trial with the appellant appearing in person and conducting his own trial, which ran for six days.
   
7. The evidence relied on by parties in the Court below, is referred to in the written extracts of submissions filed by Stevens Lawyers.
   

Analysis of the grounds of appeal

8. I now discuss each ground of appeal.
   

Ground 3.1

(A) The learned trial judge erred in law in refusing to admit into evidence a copy of the OPM in the circumstances where the relevance and the right to introduce the OPM was permitted and supported by relevant pleadings.

9. Mr Steven submits that the OPM was pleaded and supported by other relevant pleadings contrary to the learned trial judge's findings. I refer to these pleadings that Mr Steven referred the Court to, later below. What were the trial judge's findings in relation to this?
   
10. The trial judge said the following at pg 695 of the Appeal Book:
    

In the course of the trial in the present case, the plaintiff tried to introduce into his evidence the company's standard operation procedures manual to support his argument that inferences could be drawn from the defendant's own policies relating to discipline setting out the procedures upon which natural justice and fairness could be inferred.

The Court objected to the tender of that document because it was not pleaded in the pleadings.

11. The objections raised at the trial commence at pg 291 of the Appeal Book. At trial, Mr Pundari, the appellant, asked witness Mr Charles Sorman, the respondent's ('Niolam') then General Manager, if Niolam had a standard operation procedures book. It was then that the respondent's lawyer raised the objection that the OPM, if it existed, should not be brought into evidence because it was not pleaded in the Writ of Summons and Statement of Claim. Mr MacDonald, the respondent's lawyer at the trial, pointed out to the Court that Mr Pundari had only pleaded breaches of the contract of employment in the Writ of Summons and Statement of Claim. That if Mr Pundari relied on breaches of Niolam's OPM, then he should have pleaded it (pg 296 of Appeal Book). Mr MacDonald submitted that the first time the respondent became aware of the appellant's intention to rely on the OPM, was when Mr Pundari issued a summons for the production of the procedures manual which is referred throughout in this decision as the OPM (pg 296 of Appeal Book).
    
12. Below is the extract of the exchanges between Mr MacDonald and the trial judge in relation to the appellant's application to introduce the OPM into evidence.
    

His Honour; ... How would the Court determine if the plaintiff was wrongfully terminated if I have no access to that book or that document?

Mr MacDonald: If Mr Pundari – If that was part of his case, he should have pleaded it, okay. He should have pleaded it and said the proper procedure for terminating me in addition to my contract of employment is the standard Operation Procedures Manual dated whatever. We would have then addressed that in our Defence and said I do not know, because it did not come up so that I did not put in the Defence. But we would have raised it in the Defence. The second thing is that he would have also, if we thought it relevant, addressed it in our affidavits saying that this Manual, give an example here, is limited to rank and file. It does not apply to managers or something like that. That would have been our pleadings in the Defence and that is what we would have brought evidence of. But that cannot happen. We cannot go back to the pleadings now. It is too late for that. We filed our evidence and I do not propose to file more evidence so that is the end of the case. (pg 299 of Appeal Book)

13. The trial judge then ruled that the OPM should not be admitted into evidence because it was not pleaded in the Writ of Summons and Statement of Claim.
    
14. Is the appellant correct in his submissions that the OPM could be or should have been admitted into evidence because it is supported by relevant pleadings? The 'pleadings' in any case "...are the written statements of the parties of all the material facts on which each party relies for his claim or defence, as the case may be. They apply only in actions begun by Writ and not by any other mode. A generally indorsed Writ of Summons is not a pleading (Murray v Stephenson [1887] UKLawRpKQB 98; (1887) 19 Q.B.D. 60; Wallis v Jackson [1883] UKLawRpCh 54; (1883) 23 Ch.D 204); but a Statement of Claim indorsed on the Writ is (Anlaby v Praetorius [1888] UKLawRpKQB 55; (1888) 20 Q.B.D 764; Robertson v Howard [1878] UKLawRpCP 36; (1873) 3 C.P.D 280) and so are particulars for some purposes. But an Originating Summons is not a pleading, nor is the affidavit in support thereof (Lewis v Parker [1960] 1 W.L.R. 452..." (see pg 255 of 'The Supreme Court Practice 1985').
    
15. The Writ of Summons and Statement of Claim, Defence, Reply, Cross-Claim and a Rejoinder make up the pleadings. And the pleadings close "...on the date of expiry of the last of the times fixed by or under these Rules for filing a Defence or Reply or other pleadings between these parties on the Statement of Claim" (see O.8 R.23(1) of the NCR).
    
16. I refer firstly to the statement of claim. There is no mention of the OPM in the Statement of Claim. The last sentence of paragraph 3 of the Statement of Claim pleads as follows:
    

THE PLAINTIFF WILL RELY ON THE FULL TEXT AND CONTENT OF THE CONTRACT OF EMPLOYMENT DATED 20 JANUARY 2005 AT THE TRIAL OF THIS MATTER AS IF THE SAME HAS BEEN PLEADED HEREIN. (My Emphasis)

17. Nowhere in the contract which was in evidence before the trial judge and included in the Court depositions, is the OPM expressly referred to or provided for.
    
18. Appellant's counsel, Mr Steven, submits that the OPM is sufficiently pleaded throughout and that the respondent would not have been caught by surprise if the OPM was allowed into evidence. I refer to these instances as put to the Court by Mr Steven with conclusions on whether they are pleadings or not. These pleading instances are referred to at para Nos 15 to 20 of Stevens Lawyers' submissions. These are:
    
    • (i) Para 5 of Statement of Claim
      

It was a term and or an implied term of the contract that the power of the defendant to terminate the plaintiff without notice could not be exercised without the plaintiff being first found guilty of serious breach of his terms of employment or serious and wilful misconduct. It was also a further term and or an implied term of the Contract of Employment that the plaintiff would give an opportunity to answer to any allegations of breach of terms of his employment or serious and wilful misconduct before any finding of guilt by the defendant.

I find that this paragraph is silent as to the pleading of the OPM.

(ii) Para 7(c) of Statement of Claim

In further alternative the plaintiff was terminated without notice and without proof or any material to substantiate any serious breach of his terms of employment nor a finding of guilt for serious and wilful misconduct against him.

Again, this paragraph is devoid of any mention of the OPM.

(iii) Para 7(d) of Statement of Claim

The plaintiff's termination was based on unsubstantiated and biased material which was relied on by the defendant in reaching the decision to terminate in respect of which the plaintiff was not given any opportunity to respond to as required by or was to be implied from the terms of the Contract of Employment.

The OPM is not mentioned or pleaded in this paragraph.

(iv) Pg 115 of Appeal Book

Pg 115 of the Appeal Book is the fourth page of the respondent's amended defence. The OPM is not mentioned there.

(v) Pg 128 of Appeal Book

Mr Steven referred the Court to para 3(b) of the respondent's amended defence. That paragraph pleads clause 10 of the Contract of Employment which is the clause on termination. That clause states that the respondent can summarily terminate an employee's contract in circumstances where the employee's contract "...is contrary to the Company policy and procedures". The amended defence also pleads other instances of summary termination under clause 10 of the Contract of Employment.

This is not a specific pleading of the OPM. It is a provision on when a contract can be summarily terminated. The term "Company Policy and Procedures" can be all manner of rules, regulations or policies. The appellant's counsel at that time should have particularized what the "Company Policy and Procedures" were. That is very bad pleading indeed.

(vi) Para 3(c) (d) (e) of the appellant's reply to the amended defence.

These paragraphs read:

(c) The plaintiff denies that there is no express term under the Contract of Employment requiring the defendant to give notice to terminate and says the contract specifically provides for termination with cause and without cause under clause 10 where notice is required. The plaintiff says under the policies of the defendant in relation to discipline he was required to be accorded an opportunity to answer the allegations against him which he was denied. The plaintiff denies the power to dismiss summarily without notice can be exercised arbitrarily and without substance as in the circumstances of his termination.

(d) The terms of the Contract of Employment requiring the giving of notice or not also set out the basis for why notice should be given and why it should not be given. In relation to the finding of guilt for serious and wilful misconduct it can be inferred in law that the employee would be required to answer to allegations against him in deciding guilt on the basis of fairness and natural justice and that an employer cannot decide guilt on its own.

(e) The plaintiff denies that the Contract of Employment sets out any procedure for summary dismissal and says it only sets out the grounds upon which such dismissal can occur. In the absence of procedure it is to be implied that the principles of natural justice and fairness applies for the plaintiff to be given an opportunity to answer to the alleged breaches of the terms of employment. The plaintiff further says such inference can also be drawn from the defendant's policies relating to discipline setting out procedures upon which natural justice and fairness is to be inferred. The plaintiff will lead evidence at trial on the defendant's policies as if pleaded herein.

The OPM is not pleaded therein. The Reply pleads "policies of the defendant" (para 3(c)) and "defendant's policies" (para 3(e)). Again, that is very bad pleading because these "policies" have not been particularized.

The "defendant's policies" can be a reference to a rule or a regulation or practice directions. It can mean a wide variety of things. That is not good pleading. The name of the document must be stated or in the case of a statute, it must be stated in full and the relevant sections stated, where appropriate. If the plaintiff intended to rely on the OPM, he was served with Notice of Discovery filed by the respondent's lawyers on 1 September 2006. In his Verified List of Documents filed on 14 September 2006, the OPM is not mentioned. In its Request for Particulars filed on 1 September 2006, the respondent referred specifically to the Reply, more particularly para 3(c) and requested particulars of the "...policies of the defendant..." referred to in para 3(c) of the Reply. The defendants' Answers to the Request for Particulars filed on 14 September 2006 refers to "Standard Operation Procedures ('SOP')". It reads; "1. In relation to 1(a) the policy is contained under the heading dealing with discipline is the Standard Operation Procedures ('SOP') adopted from Securimax Islands Limited...". It states further at para 2 "... the said standard operation procedure is contained in big arch folder one copy of which is at Niolam Security Limited's Office at Takubar while the other copy is at the Office of the Managing Director for the Lakaka Group of Companies at Lihir." The appellant does not say why he did not ask for the SOP which again, could be a completely different document from the OPM.

I reiterate that the Reply refers to a policy of some sort, more particularly para 3(c). But that is not clear specific pleading of the OPM. I must add also that the Notice of Discovery, Answers to the Request for Particulars, the Verified List of Documents and the Request for Particulars are not pleadings. They are interlocutories.

(vii) Agreed and Disputed Facts

Mr Steven referred the Court to pg 148 of the Appeal Book. It is the Statement of Agreed and Disputed Facts and Legal Issues. There is no mention in that document of the OPM.

In any event, that is not a pleading.

(viii) Mr Steven then referred the Court to the respondent's Request for Further Particulars and to the appellant's Answers to the Request contained at pgs 81 and 84 of the Appeal Book. I have discussed this above.

19. Even if it is mentioned or pleaded in the Reply, however vaguely, the plaintiff/appellant at no time, sought the production of the OPM in the discovery process, an aspect of the trial process which must always be done before the trial to avoid unnecessary objections and the obvious delay in the eventual completion of the trial.
    
20. This is confirmed in many texts on civil litigation, one of which is Cairns Australian Civil Procedure, 2nd Edition, pgs 337 and 338 of that text reads:
    

Procedures provided in the rules for discovery are intended to serve the public interest by giving each party the opportunity to be appraised of the case he will have to meet at the trial. Hence, it is possible to ask an opponent to state what relevant documents he has in his possession. He may be asked a series of questions designed to obtain admissions. The subject matter of the action may be inspected and preserved, especially where it is in the custody of a party.

21. The plaintiff's reference to "policies of the defendant" notwithstanding its mention in the Contract of Employment, is reason enough to spur on the plaintiff into requesting the production of the document at the interlocutory stages, before commencement of trial, after the pleadings had closed.
    
22. In this case, the precise words or the contents of that document, if it does exist, is in issue. Cairns (supra) at pg 138 states this:
    

Where the contents of a document are material, it is sufficient in a pleading to state the effect of its provisions without setting them out in full, unless the precise words are in issue. For concise pleading, a party should state the effect of a document, rather than plead it in full. But he must plead sufficient of the terms of the document to show that it has the effect alleged. In pleading the effect of a document, a party assumes the burden of showing that the effect alleged in the pleading is correct. If the document is long, or if there is no doubt about its meaning, pleading the effect is the preferable course.

23. According to Cairns above, because the appellant has pleaded reliance on the companies' "policies", that the appellant has now assumed the burden of showing that the effect alleged in the Reply is correct. It is for the appellant to produce the "policies" that he relies on. And he should have done that before trial, not at trial.
    
24. It is trite law that where a document has not been pleaded, no recourse can be had to that document in the course of proceedings, including in discovery. Relevance of a document to the issues is central to discovery of documents. In this case, the respondent did not have to plead the OPM in its amended defence, because the plaintiff did not plead it in his Statement of Claim.
    
25. The pleadings had closed and the plaintiff, although he had the opportunity to plead the OPM in its Reply, chose not to. The closure of pleadings demonstrated that all parties could enter into the discovery process, which is reaffirmed in basic litigation practice by O.9 R.1 of the National Court Rules ('NCR') which states that "...where the pleadings between any parties are closed, any of those parties may..." require discovery.
    
26. Order 9 rule 9(1) allows a party to issue a Notice to Produce requiring the other party to produce for inspection, a document referred to in "...a pleading or affidavit filed by a party...". (my emphasis).
    
27. The plaintiff could have applied for production of the OPM before trial, application under O.9 R.10 or O.9 R.12 for the production of the OPM. If an application was made under O.9 R.12(1) of the NCR, the Court would have dealt with it "...as it thinks fit" (O.9 R.12(2)). The Court below was not afforded that opportunity before trial.
    
28. The appellant needed only to prove his case on the balance of probabilities. I reiterate, he was aware of the existence of the OPM before he filed his Statement of Claim, he should have pleaded the OPM in his Statement of Claim. However, he choose to rely on the Contract of Employment which he pleaded, not the OPM.
    
29. More fundamentally, it would be stretching it to suggest that the OPM was relevant in circumstances where the Appellant does not even know what is contained in the OPM, apart from general statements given in evidence by one of the Respondent's managers in the Court below and by the appellant in his Answers to Request for Particulars. The appellant had lawyers in his employ when he filed his Statement of Claim and during the discovery process. My view is that if the OPM was relevant to his claim, I reiterate, he should have sought an order for its production, before trial and during the discovery process, not at trial.
    
30. Naturally, the above submission is strengthened by the legal position, as submitted below, that a document such as the OPM does not give any rights to sue. It could be a document in aid of the administration of the employee disciplinary issues or it could be related to another aspect of the respondent's administration. It should not be construed as forming part of the Appellant's contract of employment or having any statutory force.
    
31. I find that even though the appellant's reply mentions "... policies of the defendant ...", the OPM is not specifically or clearly pleaded, either in the Reply or the Statement of Claim.
    

Ground 3.1

(B) The production of the said document was formally requisitioned by notice issued by the Court without objection by the respondent.

32. Mr Steven referred the Court to a Summons for Production issued by the appellant upon a Mr Sorman for the respondent and for Mr Sorman to produce the OPM. He referred the Court to pg 301 of the Appeal Book where the exchanges between Mr MacDonald, Mr Sorman and the trial judge, is set out. On my perusal of the Appeal Book at pgs 301 to 307, the exchanges between the trial judge, Mr MacDonald, Mr Pundari and Mr Sorman, are in relation to an 'Occurrence Book'. In the exchanges, Mr MacDonald points out that the summons is for production of the 'Occurrence Book', not the OPM. Further perusal of the depositions shows that contrary to Mr Steven's submissions, a Summons for Production was not issued by the appellant for production of the OPM because the depositions do not hold such a document. Also, the Index to the Appeal Book does not mention a Summons for Production. On further perusal of the Appeal Book, the only Summonses are the Summonses to Give Evidence, doc Nos 33, 34, 35, 36, 37 of the Appeal Book issued to certain named individuals to appear at Court. And, as Cairns (supra) states at pg 338:
    

A document must be disclosed and made available for inspection, subject to privilege, if it is relevant to an issue shown on the pleading. Every document must be listed in the list of documents. In protracted commercial disputes discovery of documents can be a major undertaking.

Discovery is an aid to the party prosecution system. While each party must prepare his own case, discovery gives access to information in the exclusive possession of the other side... ( my emphasis)

33. The appellant, who was represented by lawyers, did not use this process.
    

Ground 3.2

(C) It behoved the Court to conduct its proceedings in a way to ensure an unrepresented plaintiff was given a fair hearing.

34. Mr Steven submits that the Court was harsh when it refused to accept the OPM on the grounds that it was pleaded.
    
35. Will the appellant be denied his right to a fair hearing if this appeal is dismissed?
    
36. In Kerry Lero trading as Hulu Hara Investments Ltd v Philip Stagg, Valentine Kambori & The State (2006) N3050, the trial judge said:
    

Our judicial system should never permit a plaintiff or a defendant to be driven from the judgment seat in a summary way without a Court having considered his right to be heard. A party has a right to have his case heard.

37. Mr Steven then referred the Court to Rage Augerea v Bank of South Pacific Limited (2009) SC869 where the Supreme Court said:
    

Given that the Augereas were not legally represented, the Court was further duty bound to carefully consider the issues before coming to his decision. The question then is did the learned trial judge discharge that duty?

38. In Rage Augerea (supra) the plaintiffs were unrepresented throughout in the National Court and Supreme Court proceedings. But in this case, the appellant had the benefit of legal representation up till the trial when he chose to conduct and run the trial himself. Lawyers drafted the Statement of Claim, Reply and after the closure of pleadings, conducted the interlocutory process. How then can the plaintiff say in this appeal, he was denied the right to be properly heard? In my view, he was not.
    
39. It is an undisputed fact in the history of this country, that Papua New Guinea has reached a stage where litigants are now representing themselves. Should the Court bend over backwards to entertain a litigant's claims of not being familiar with procedure when the other party has done all it can, at great legal expense, to ensure that the Rules of Court are complied with? Parliament has yet to pass legislation on this, ie whether there should be law in place governing the manner in which a self-represented litigant conducts his or her case or whether litigants should not even appear in person, especially before the National and Supreme Courts. But in the meantime, my view is that if litigants choose to conduct their cases themselves, then they must shoulder the repercussions or results that come with it. If the litigant is aggrieved by the decision, then he/she has the right of appeal. What the National and Supreme Courts should not do or should not be seen to be doing is to bend over backwards to assist the unrepresented litigant because the Courts will then be effectively "bending" the rules to assist the litigant, I am sure, much to the represented litigants annoyance or displeasure or chagrin.
    
40. Additionally, the appellant and his then lawyers had been aware of the existence of the OPM since the proceedings were filed in the Court below. However, neither he nor his lawyers amended the Statement of Claim or the Reply to specifically plead the OPM. Also, the appellant did not seek particular or specific discovery of the OPM, even though he had lawyers acting for him.
    
41. I find the appellant was given a fair hearing.
    
42. I dismiss this ground.
    

Ground 3.2

(D) The Court erred in law in refusing on its own volition to introduce the OPM on the basis of the decision of Curtain Brothers (QLD) Pty Ltd & Kinhill Kramer Pty Ltd v The Independent State of Papua New Guinea [1993] PNGLR 285

43. Did the trial judge err in that respect?
    
44. In Pama Anio v Aho Baliki (2004) N2719, dated 12 November 2004, Kandakasi J's conclusions, adopted from Igiseng Investments Limited v Starwest Constructions Limited and Igiseng–Okmanip Business Group Inc N2498, dated 17 December 2003 are:
    

It is settled law that generally, where parties have reduced their agreement in case of an agreement into writing, the document should be allowed to speak for itself. No extrinsic evidence can be allowed to add to, subtract from or contradict what is stated in the document. The same goes for any other written record. An authority on point is the Supreme Court judgment in Curtain Brothers (QLD) Pty Ltd & Kinhill Kramer Pty Ltd v The Independent State of Papua New Guinea [1993] PNGLR 285. This case has been cited with approval in a large number of cases, which includes my own judgments in Odata Ltd v Ambusa Copra Oil Mill Ltd (06/0701) N2106 and Papua New Guinea Forest Authority v Concord Pacific Limited, Paiso Company Limited and The Independent State of Papua New Guinea (N0.2) (12/09/03) N2456.

However, this rule is general. Extrinsic evidence can be admitted to help resolve any ambiguity in a written document or record. Lord Davey in the Privy Council stated this principle in these terms:

Extrinsic evidence is always admissible, not to contradict or vary the contract: but to apply it to the facts, which the parties had in their minds and were negotiating about: Bank of New Zealand v Simpson [1900] UKLawRpAC 6; [1900] AC 182 at 187; Horsfall v Braye (1908) 7 CLR629.

It is apparent that this rule concerns the admissibility of evidence and the purpose for which extrinsic evidence can be admitted when there is a written record. Hence, the issue of whether or not extrinsic evidence should be allowed has to be addressed before the evidence in question is admitted. Once the evidence is admitted, the issue no longer arises. Thus, the Court is entitled to consider the evidence before it and arrive at a decision whether or not to accept it. (my emphasis)

45. In Pama Anio (supra), the Court was required to determine whether or not the Staff Code of Conduct of the Bank of the South Pacific Limited ('BSP') was part of the plaintiff's written contract of employment. The plaintiff in that case was a terminated manager of BSP. The trial judge was of the view that if the contract did not make any provision for the application of the Code of Conduct, then the Code did not represent a part of the contract.
    
46. In my view, the trial judge's adoption of the principles set out in Curtain Brothers (supra), is the correct application of the law which I will uphold because the OPM is not part of and is not referred to in the Contract of Employment.
    
47. I dismiss this ground of appeal.
    

Ground 3.3

(E) The Court erred in law in refusing to admit the OPM when it was apparent or should have been apparent that the said document is relevant to the issue of intention of the parties under clause 10 of the Contract of Employment.

48. The onus of proving that the OPM forms part of the appellant's Contract of Employment is on the plaintiff.
    
49. The appellant claims that there is an implied term in his Contract of Employment that provides for an opportunity for him to answer any allegations made against him before he is terminated. He claims further that clauses 9 and 10 of the contract imply that he should be accorded this opportunity prior to termination.
    
50. On its true construction, the OPM would be a document that provides a scheme or code to aid in the administration of the respondent's employee disciplinary procedures, similar to the then BSP setup discussed in Pama Anio's case referred to above.
    
51. Mr Mana for the respondent referred the Court to M Vasudevan Pillai v Singapore City Council (1968) 1WLR 1278 in support of these contentions. The facts of that case were that:
    
    • The head of the Municipal Department carried out an enquiry into a refusal by workers to do work other than their normal work, taking some evidence without disclosing such evidence to the workers. They were dismissed. A subsequent hearing was conducted before an established committee and the workers were dismissed for misconduct without notice.
      
    • The workers brought an action against the Council claiming that they were wrongfully dismissed. The Municipal Ordinance provided that the Council may make rules for the purposes of maintaining good conduct and discipline among Municipal officers and servants. Such rules made and provided for procedural steps by specified officers.
      
    • The action was dismissed by the Trial Court and the Federal Court. Consequently the workers appealed to the Privy Council.
      
    • The Privy Council dismissed the appeal on two bases:
      
      • - That, the onus of establishing that the rules had not been discharged was on the Appellants. Consequently they failed to establish any ground in reliance on the rules supporting the claim that the principles of natural justice applied before they could be validly dismissed.
        
      • - That, even if the Appellants could have relied upon the rules, such rules provide a scheme or code for general administration and guidance for heads of department and could not be construed as giving rights to the employee. Further, the relationship of employer/employee gave rise to no application of the principle of audi alteram partem (the right to be heard) on dismissal.
        
52. In Steamships v Joel [1991] PNGLR 133 at 140, the Court said:
    

The trial judge indicated that he was not satisfied that the Steamships Grievance and Disciplinary Procedures gave any right of action in the employee. They are expressed to be procedures forming part of the company's supervisory training programme.

53. The case of Ayleen Bure v Robert Kapo (2005) N2902 can be distinguished on the facts. In that case, the contract of employment clearly and expressly adopted the disciplinary procedure in PJV's Manual of Personnel Policy and Procedures. His Honour Injia DCJ (as he then was), stated the following, which is relevant here;
    

Written Contracts of employment in private contracts ordinarily do not provide for a disciplinary process which governs dismissal on disciplinary grounds, such as those prescribed by statutes governing public employment found in public employment contracts. It is indeed rare to see extensive stringent disciplinary procedure which are expressly stated by private companies in written contracts or adopted or implied from external sources. However in the case of PJV, for some reason to do with public policy on employment of officers, PJV decided to include those disciplinary provisions in the Manual. The second sentence in clause 14 of the Contract expressly refers to the "Company Policies". The Respondent's endorsement also expressly refers to the "Company's Policies and Procedures". I take them to mean reference to the Company's Manual of Personnel Policies and Procedures. The Manual defines disciplinary offences and prescribe the disciplinary procedures to be followed. They require the employer to carry out full and proper investigations into the alleged offence and give the employee an opportunity to be heard before a decision on dismissal is made. It is inaccurate to describe this procedure as incorporating traditional principles of common law on natural justice, as adopted under S.59 of the Constitution and applied in many cases dealing with public employment contracts. But it is accurate to say the disciplinary process in clauses 5.6 – 5.8 are designed to ensure fairness in the process of dealing with disciplinary offences. In my view, they do confer a right on the employee to be heard on the charge before a decision is made by PJV. This right is conferred by the written Contract and not by the common law. The question is whether the Contract adopted the disciplinary procedure in the Manual.

The disciplinary procedure found in the Manual in the present case, are matters purely for the parties to adopt by agreement in their written contracts. They are policies and procedures which the company has developed to ensure there is fair play in the process of removal of an officer for breach of Company Policy which creates disciplinary offences. There is clear reference to the Manual in clause 14 of the Contract and the terms of the acceptance by the Respondent. I am satisfied that the Manual formed part of the terms and conditions of the written Contract and any termination for breach of discipline would have to be done following the procedures outlined in clauses 5.6 - 5.8. (my emphasis)

54. On appeal to the Supreme Court in proceedings Robert Kapo v Ayleen Bure and 4 Ors, SCA 18 of 2010 decided on 15 December 2010 by Davani, Hartshorn and Sawong JJ, the Court upheld the Chief Justice's findings and dismissed the appeal.
    
55. In this appeal, the Appellant submits that the OPM is an implied term of the contract. I have already found that it is not. Reference in clause 10 of the Contract to the 'Company policy and procedures' is a reference to an instance when the plaintiff's contract can be terminated. It does not say what policy and procedures it is that the respondent has recourse to in termination cases. In fact, it can be a reference to several policies or only one. That is not "clear reference" to the OPM as was the case in Ayleen Bure (supra), which was one document, clearly spelt out in the Contract.
    
56. Additionally, the letter of termination to the appellant from the respondent dated 18 July 2005, states that because of "misconduct and misappropriation allegations" that they were "in direct breach" of the appellant's "employment contract with the company". Clause 10 of the Contract states "conduct that is contrary to the Company policy and procedures". But the letter of termination dated 18 July 2005, does not say the appellant's conduct is in breach of the Company's policy and procedures. It reads that "...some of these allegations are quite serious and are in direct breach of your employment contract with the company..." (pg 39 of Appeal Book).
    
57. In the Supreme Court case of Jimmy Malai v Papua New Guinea Teachers Association [1992] PNGLR 568, the Court held that the right to be heard was not an implied right nor does it arise from natural justice.
    
58. In Vitus Sukuramu v New Britain Oil Palm Limited (2007) N3124, judgment delivered on 16 February 2007, His Honour Justice Cannings found that the right to be heard before termination was in fact an implied right that arose from the principles of natural justice. However, on appeal in New Britain Oil Palm Limited v Vitus Sukuramu (2008) SC946, judgment delivered on 30 October 2008, the Supreme Court preferred and adopted the approach in Jimmy Malai (supra).
    
59. In the Supreme Court case of Willie Joy v Kerowara Logging Company Limited, His Honour Justice Salika (as he then was) referring to the Jimmy Malai case, declared that he did not consider it obligatory for an employer to give reasons to terminate an employee if the employee is a private person or a private company.
    
60. I find that the OPM should not be construed as forming part of the appellant's Contract of Employment, or having any statutory force nor can it be implied because as far as this Court is aware, apart from the fact that the OPM may not exist, the OPM does not assist the plaintiff at all because the respondent was not under a duty to hear the appellant.
    
61. Therefore, the trial judge did not err. I will dismiss this ground of appeal.
    

(F) The Court erred in law in holding as it did that the principles of minimum fairness anticipated in the disciplinary procedure stipulated in the OPM were not an implied term of the appellant's employment contract.

62. As was found in Pama Anio (supra), that case required a determination of whether or not the Staff Code of Conduct of the Bank of South Pacific was part and parcel of the Plaintiff's written contract of employment. The plaintiff in that case was a terminated manager of BSP. His Honour was of the view that if the contract did not make any provision for the application of the Code of Conduct, then the Code does not represent or form part of the contract.
    
63. Additionally, in Pama Anio (supra) and Ayleen Bure (supra), the contracts expressly referred to the Codes of Conduct. In this case, it does not. In those cases, all parties knew what the Code of Conduct was. In this case, the appellant had not before commencement of trial, or throughout the entire trial, asked for the production of this document or even produced it himself. As far as I can tell, nobody knows what is stated in this document called the OPM because none of them have seen it.
    
64. The difficulty I have is that this document has not been identified. How can the appellant say that "minimum fairness is anticipated in the disciplinary procedures stipulated in the OPM" when he himself has not seen the document? Or how can he assert and claim unfairness under the OPM when he appears to be guessing himself? I find that I would effectively be "clutching at straws" so to speak, if I were to conclude that there are provisions in the OPM providing for fairness when I do not even know what it is.
    
65. I will dismiss this ground of appeal.
    

Ground 3.5

(G) The Court erred in law in failing in its duty to interpret the terms of clause 10 of the appellant's contract of employment dated 20 January 2005 to achieve the intention of the parties when it was apparent or should have been apparent that:

(a) The wording of clause 10 was unclear; and

(b) The notice for termination dated 18 July 2005 did not specify clearly or sufficiently any of the grounds for summary determination listed in clause 10 of the employment contract dated 20 January 2005.

66. The appellant's claim for wrongful dismissal must be confined only to what is pleaded. He seeks damages for wrongful termination of his Contract of employment. He claims that he was not given an opportunity to be heard because his Contract provides for such an opportunity. However, from perusal of his affidavits in the Court file, the appellant refused the opportunities that were offered to him by the respondent. Michael Peniel's affidavit sworn on 28 March 2006, deposes to such evidence. (See Tab 9 of Appeal Book at pgs 59 to 65 of Appeal Book). He deposes that the appellant was offered the alternative to either be given 3 months notice under clause 9 of the Employment Contract or be paid 3 months in lieu of notice. However, the appellant refused to accept these offers.
    
67. Mr Peniel also deposes to instances where the appellant was drunk and abusive to other employees. Particulars of misconduct by the appellant are also pleaded in the respondent's Amended Defence. It is the same with the allegations of failure to account for monies (pgs 452 to 457 of Amended Defence).
    
68. As far as the trial judge was concerned, the issue before him was whether the appellant was wrongfully terminated. The trial judge extensively discussed the law in his published reasons at pgs 23 to 26. At pg 27, his Honour quoted paras 1 and 2 of clause 10 of the Employment Contract, which reads in part:
    

Should the Company exercise its right to terminate the Employee's service at any time during his assignment because of poor performance and/or discipline, then it shall provide one (1) months notice or pay in lieu of notice...

For the duration of his contract, if the Employee commits a serious breach of the terms of his employment, or is guilty of serious or wilful misconduct, the Company may terminate his employment without notice....

69. In my view, the trial judge correctly applied the law and the facts. Clause 10 of the Contract spoke for itself, that it is "...poor performance and/or discipline...", that will warrant a termination. The appellant's Statement of Claim pleads the particulars of wrongful dismissal and which factors the trial judge took into consideration.
    
70. The respondent's lawyer in the Court below led detailed evidence and cross-examined the appellant extensively on the evidence in relation to the allegations of misconduct. And there was evidence of misconduct in the Trial Court which fell within the general ambit of clause 10 of the employment contract.
    
71. The factual enquiry by the employer in such circumstances is not usually extensive and stringent, compared to what is required in a public employment setting. However, in this case, the respondent's employer did conduct an extensive enquiry into the allegations of misconduct as portrayed in the evidence before me.
    
72. This ground must fail.
    

Ground 3.6

(H) The Court erred in law and in facts in holding that the appellant was in breach of the terms of his contract under clause 10 against the weight of the evidence that:

- Confirmed that the decision to terminate the appellant was not made by the board of directors of the respondent but by an individual in breach of the terms of clause 10 and the contract of employment, generally.

- Refuted financial misconduct and supported the appellant's explanation concerning the charge in relation to the K6, 900.00, such evidence having being collaborated by the respondent's own Financial Controller and the respondent's own external auditors.

- When evidence on corporate image was unsubstantiated and unreliable and lacking weight while ignoring relevant evidence of Albert Buanga.

- In respect of the charge of broadcast, absence of compelling evidence such as the Occurrence Book and in placing too much weight on evidence to witnesses whose evidence was inconsistent.

73. I repeat the findings above that the respondent's evidence on the facts surrounding the charges were extensive. The transcript of evidence and the trial which ran over 6 ½ days, is demonstrative of what transpired in the Court below. The trial judge canvassed these at para Nos 71, 72, 73 and 74 of his reasons (pgs 693 and 694 of Appeal Book).
    
74. I find the trial judge did not err and dismiss this ground of appeal.
    

Ground 3.7

(I) The Court erred in law and in facts by taking into account irrelevant considerations in arriving at the conclusion that the appellant had breached that terms of his employment contract in respect of the three grounds set out in the letter of termination dated 18 July 2005.

75. In relation to this ground, I repeat my findings in all the above grounds and dismiss this ground of appeal.
    

Ground 3.8

(J) The Court erred in law in its finding in quantum by holding that the plaintiff is entitled only to one month notice and repatriation expenses.

76. The respondent submits the trial judge rightfully concluded, based on the evidence and the law, that the proper measure of damages was the equivalent of one month's salary and entitlements, including repatriation, consistent with the first paragraph of clause 10 of the contract.
    
77. The usual remedy is damages, the amount of damages that may be recovered by the plaintiff would be equivalent to wages for the period of proper notice. (Kumar v Wama (1993) [PNGLR] 38; Karava v IPA (N1805, March 1999). Teio Raka Ila v Wilson Kamit & Anor (11/10/02) N2291, also reaffirmed the position that the proper measure of damages in an employment scenario is the equivalent of the notice period. The general principles of law as to the appropriate measure of damages for wrongful dismissal are now settled in our jurisdiction; Ereman Ragi & Ors v Joseph Maingu (1994) SC459; Nazel Wally Zanepa v Ellison Kaivovo, Department of East New Britain & Anor (1999) SC623; PNGBC v Jeff Tole SC694.
    
78. I note in this regard, the recent Supreme Court decision of Susan Love (substitute for Fabian Love) Deceased v Bridgestone Tyres (PNG) Limited, SCA 1 of 2006 dated 3 September 2010, where the Supreme Court upheld the trial judge's decision to award K1,350.00 in damages. In that case, the deceased, a former employee of Bridgestone Tyres, had his contract of employment prematurely terminated. The contract provided that employment may be terminated by either party giving one month's notice in writing. Bridgestone Tyres did this by letter. However, the deceased appellant refused to accept the month's payment offer to him. Instead, he lodged a claim in the National Court seeking damages for wrongful dismissal, in excess of K50,000.00. The National Court refused that claim and only awarded payment of K1,350.00 which was the equivalent of the notice period under the contract. The Supreme Court comprising Kirriwom, Davani and Kariko JJ held that:
    

The employment contract signed on 23 January 1997, was one that provided that termination can take place where one party gives the other the relevant notice of the termination. Damages are therefore equivalent for the period of appropriate notice only.

79. In Porgera Joint Venture v Robin Kami (2010) SC1060, the Supreme Court dealt with a similar issue. That case dealt with a dismissal in a private employment contract scenario. The principles concerning the measure of damages to be paid in a wrongful dismissal claim under a private contract of employment were further clarified in that case. The brief facts in that case are that Porgera employed the respondent under a written contract of employment for a fixed term. The contract provided for early termination by either party without reason, upon four weeks notice or by Porgera without notice upon payment of money in lieu of notice. Porgera terminated the contract for disciplinary reasons and paid money in lieu of notice. The National Court found termination to be unlawful and in breach of the contract and awarded damages for the balance of the contract period. Porgera appealed against that decision to the Supreme Court. The Supreme Court by a 2-1 majority upheld the appeal. The learned Chief Justice considered and clarified the principles of law relating to this aspect. After discussing some English authorities and the Common Law principles on damages for want of notice and want of disciplinary procedures in a private employment contract, his Honour referred to several significant authorities including Gunton v London Borough of Richmond-upon-Thames [1980] 3 All ER 577 and Boyo v London Borough of Lambeth [1995] 1RLR 50AC (1980) ICRC 755.
    
80. At pg 10 the Chief Justice said:
    

24. I consider that the common law principles on compensation for want of notice and want of disciplinary procedures in a private employment contract developed in Gunton, Janciuk, Boyo Focsa set out above are persuasive, appropriate and applicable to the circumstances of this country and apply them to the case at hand. Much of the principles set out above relating to measure of damages for want of notice are already part of the common law as adopted and applied in this jurisdiction in many cases including the cases cited by counsel before us. The principles on compensation for want of compliance with disciplinary procedures in a private employment contract is new and requires further development and refining ins subsequent cases with assistance of counsel.

25. I consider that in a private employment situation where an employee is employed under a written contract of employment for a fixed term and which contains a termination clause for termination with or without notice by either party, with or without reason, the measure of damages which the employee is entitled to receive is based on the salary and other entitlements that the employed would have received if the contract had been lawfully terminated. In a case where it is an express or implied term of the contract that termination of the employment contract for cause would be effected upon compliance with disciplinary procedures, the measure of damages is assessed on a reasonable period within which the disciplinary proceedings would be commenced and concluded. The likely outcome of the disciplinary proceeding is immaterial or is an irrelevant consideration.

26. Let me expound on the principle that I have just enunciated. In a case where the employer in the exercise of its right to terminate the contract chooses to terminate for cause, and there is a disciplinary procedure that the parties have adopted in the contract, the employer is under an obligation to follow the disciplinary process agreed to under the contract. If the employer is found to have not followed the proper procedure, the termination is wrongful and the employee is entitled to damages. But damages will not be the balance of the contract unless the parties agree to such a term under the contract. Instead, damages is for the reasonable period during which proper disciplinary process would have been initiated and concluded in accordance with any time lines prescribed for various steps in the disciplinary procedure to be concluded. For a start, it would very much depend on the steps in the procedures set out in the disciplinary process and the time limit, if any, prescribed for various procedural steps where there are no time limits prescribed, it would come down to assessing what would be as reasonable time frame to cover the main steps in the process – formulating and presenting complaint, opportunity to reply and a decision made and communicated to the employee and any provisions for appeal or review from that decision by a higher management body or person. It is not a matter for the Court to analyse and speculate on the employee's chances of success if the process was completed. (my emphasis)

81. I adopt and apply these principles in this case, as in my view, the passage cited is correct in law.
    
82. For a brief history on the litigation background, in that case, the plaintiff commenced the action in the District Court but which was dismissed. On appeal to the National Court, the National Court dismissed the appeal and confirmed the lower Court's findings that he was wrongfully terminated and referred the matter to the District Court for assessment of damages. However, upon application, the matter was referred to the National Court for trial on assessment of damages.
    
83. In the National Court, the appellant claimed damages of K3,112,748.01. At the end of the trial on an assessment of damages, the trial judge found, inter alia, that the appellant was only entitled to a sum equivalent to the period of notice under his employment contract. Accordingly, the appellant was awarded K2,000.54 based on Placer PNG's personal policy and procedures which formed part of the Contract of employment (my emphasis).
    
84. In this case, even if evidence as based on the Company's "policies and procedures", the appellant is only entitled to damages for the period of the notice. And the trial judge was correct in finding as he did.
    
85. I dismiss this ground of appeal.
    

Ground 3.9

(K) The Court erred in law and in facts in holding that the appellant was in breach of his duty to mitigate his losses.

86. Mr Steven for the respondent submits that there was evidence before the Trial Court that the appellant did seek jobs at the PJV but was unsuccessful because of the disciplinary action taken against him by the respondent. He submits that this is not a step where the appellant did not take any steps to mitigate his losses and that for that reason, these grounds of appeal must succeed. I should point out that Mr Steven did not say how the trial judge erred in his consideration of that evidence. But the respondent on the other hand, made extensive submissions in relation to this in the Court below. At the hearing of the appeal, Mr Mana referred the Court to written submissions filed by the respondent in the Trial Court. This is contained at pgs 642 to 644 of the Appeal Book. The transcripts show that in relation to the issue of mitigation, the appellant tendered affidavit filed on 5 October 2007 which was created for interlocutory purposes. To that affidavit were attached copies of job applications. When it was sought to be tendered by the appellant's lawyer, objection was raised by Mr MacDonald that the affidavit had not been produced or served upon him. In response to that affidavit, the respondent relied on the affidavit of Robert Asa, lawyer, of Warner Shand Lawyers, sworn on 14 February 2009 and filed on 16 February 2009. In that affidavit, Mr Asa deposes that he was shown an affidavit of service by the appellant sworn on 10 October 2007, deposing that he had served a sealed copy of Motion for directional hearing upon him on 9 October 2007. Mr Asa deposes that he had no recollection of the appellant or anyone else serving him that document. Mr Asa's affidavit states further that although the appellant deposes that he had his affidavit sworn on 3 October 2007 served upon him (Mr Asa), Mr Asa deposes that he has no recollection of having been served with such a document.
    
87. The other affidavit the appellant relies on is that of Charles Sorman, who at that time was the General Manager for the respondent. Mr Sorman's affidavit sworn on 13 February 2009, deposes that he was shown an affidavit sworn on 13 February 2009 by the appellant. To that affidavit, were attached letters to the Human Resources OK Tedi Mining Limited, Human Resources Manager Allied Gold PNG Limited and Placements (PNG) Limited. At the bottom of each letter, is Mr Sorman's name and address presumably as a reference. Mr Sorman deposes in his affidavit that he was not working with Niolam at the time of the appellant's termination nor is he qualified to say whether or not the appellant's termination was lawful. He says and deposes further that neither the appellant nor anyone else has asked him for a reference.
    
88. And in the Court below, Mr MacDonald pointed out that although Mr Pundari in cross-examination had admitted that he had been offered a position with Milleminium Security, that he did not want to commence employment because he had earlier interviews with Porgera Joint Venture and wanted to complete the trial before accepting alternative employment. I agree with Mr MacDonald's submissions in the Court below that a potential employer is looking for an applicant who is ready to start. That a genuine applicant does not say that he cannot start until his Court case is finished, especially if it means telling a prospective employer, that he is suing his last employer for K2m for breach of contract of employment (pg 643 of Appeal Book).
    
89. Another factor pointed out by Mr MacDonald in the Court below is that although the appellant had said at trial that he wanted to clear his name, that his real reason for pursuing this claim is more "mercenary". That he is hoping for a good payout demonstrated by his fees for preparation costs for the trial at K175,000.00, being K58,000.00 per year which is more than the salary he was earning with Niolam. Mr MacDonald submitted that it would mean that the appellant's inflated claim does not make an alternative job worthwhile.
    
90. I accept those submissions and find that the appellant had not been genuine in seeking alternative employment as demonstrated by the evidence before the Trial Court. That evidence could have been fabricated, considering it had never been served on the respondent's lawyers before the trial but only handed up when the issue of mitigation of losses was raised at trial, which of course prompted objections from Niolam's lawyer then.
    
91. I find the appellant did not mitigate his losses.
    
92. I will dismiss this ground of appeal.
    

Formal orders

93. Having dismissed all grounds of appeal, I make the following orders:
    
    1. The appeal is dismissed in its entirety;
       
    2. The appellant shall pay the respondent's costs of this appeal, to be taxed if not agreed.
       

94. CANNINGS J & YAGI J: This is an appeal against a decision of the National Court, constituted by Justice Lenalia, to dismiss an action for wrongful dismissal by the appellant, Michael Pundari, against the respondent, Niolam Security Ltd (Michael Pundari v Niolam Security Limited (2009) N3738).

95. The respondent employed the appellant as its general manager under a written contract of employment. On 18 July 2005 it served a written notice of termination on him, without prior notice, and without giving him a right to be heard on allegations against him. Three reasons for terminating his employment were given: unaccounted cash receipts, alcohol abuse and serious misconduct adversely affecting the corporate image. The appellant commenced a wrongful dismissal action against the respondent, claiming damages. A trial was held at Kokopo. In the course of the trial the appellant tendered in evidence a copy of the respondent's operation procedures manual, which, he claimed, stated that all of the respondent's employees would be given a right to be heard if any allegations were raised against them, prior to dismissal. The trial judge refused to admit the manual into evidence as it was not included in the pleadings and it was extrinsic evidence which was not allowed to add to or subtract from the written contract of employment. His Honour proceeded to find that the appellant's contract had been terminated for good cause, that the respondent was under no obligation to give a right to be heard to the appellant prior to terminating his employment and that the respondent was under no obligation to give reasons for termination of employment.

96. The appellant has appealed against the whole of the judgment on nine grounds, set out as grounds 3.1 to 3.9 in the notice of appeal. We have for the sake of convenience renumbered them as grounds 1 to 9 and we will address each one in turn. It is argued that his Honour erred in law in nine respects.

GROUND 1: ERROR OF LAW BY REFUSING TO ADMIT OPERATION PROCEDURES MANUAL INTO EVIDENCE DUE TO DEFICIENT PLEADINGS

97. One of two reasons the learned trial judge refused to admit the document into evidence was that it was not included in the pleadings. His Honour dealt with the issue at paragraphs 78 and 79 of his judgment in the following terms:

In the course of the trial in the present case, the plaintiff tried to introduce into his evidence the company's standard operation procedure manual to support his argument that inferences could be drawn from the defendant's own policies relating to discipline setting out the procedures upon which natural justice and fairness could be inferred.

The court objected to the tender of that document because it was [not] pleaded in the pleadings: Motor Vehicles Insurance (PNG) Trust v James Pupune [1993] PNGLR 370. Pleadings play an important role in the civil process because it gives the other party the opportunity to call necessary evidence if he decides so and define the issues expected on trial.

98. We agree with the relevance of the leading case MVIT v James Pupune [1993] PNGLR 370. The rule is that a party cannot lead evidence in a trial on matters he has not pleaded. The purpose of pleadings was explained clearly by the Supreme Court (Kapi DCJ, Jalina J, Doherty J) in that case, in the following terms:

It is well established that pleadings and particulars have the following functions:

(a) they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it.

(b) they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial.

(c) they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into Court.

99. To similar effect is a string of other Supreme Court decisions such as Uma More v University of Papua New Guinea [1985] PNGLR 401, MVIT v John Etape [1994] PNGLR 596, PNGBC v Jeff Tole (2002) SC694 and Tony David Raim v Simon Korua (2010) SC1062. In Raim the Supreme Court (Gavara-Nanu J, Davani J, Makail J) emphasised that through the pleadings a plaintiff must sufficiently plead the material facts that establish the cause of action being prosecuted:

... the general rule of pleadings is, a party must first sufficiently plead the material facts establishing the elements by particularising them: see Order 8, Rules 29 & 32 of the National Court Rules. It is also trite that pleadings lay a foundation of a cause of action and act as a means of informing the opposing party of what to expect at trial. They give the opposing party the opportunity to identify the issues for trial and the kind of evidence to be led at trial.

100. So the question is: did the appellant sufficiently plead the fact or proposition of law that the respondent was obliged to afford him a right to be heard on any allegations against him before his employment was terminated? We note that the proposition was pleaded in paragraph 5 of the statement of claim as follows:

It was also a further term and or an implied term of the contract of employment that the plaintiff [ie the appellant] would be given an opportunity to answer to any allegations of breach of terms of his employment or serious and wilful misconduct before any finding of guilt by the defendant [respondent].

101. The respondent took issue with the proposition in its amended defence, which included the following averments:

There is no express term in the contract of employment that the plaintiff be given any opportunity to answer as alleged a breach of the terms of his employment. Further as the contract of employment governs the procedure then no procedural terms can be implied at law.

Alternatively the plaintiff was given an opportunity to answer various allegations against him as pleaded in paragraph 6(a) to (d) inclusive but the defendant did not accept the plaintiff's explanation for his behaviour.

Further the plaintiff has not pleaded he was not given such an opportunity nor pleaded any breach of the above alleged procedure.

102. The appellant took issue with the respondent's amended defence by pleading in his reply:

The plaintiff says under the policies of the defendant in relation to discipline he was required to be accorded an opportunity to answer the allegations against him which he was denied. The plaintiff denies the power to dismiss summarily without notice can be exercised arbitrarily and without substance as in the circumstances of his termination.

103. The respondent responded to the reply with a request for particulars regarding the pleading that "under the policies of the defendant in relation to discipline he was required to be accorded an opportunity to answer the allegations against him which he was denied". The respondent's request was:

Kindly provide particulars of the said policy.

1(a) If in writing sufficient particulars to identify the document or document(s) including the title(s) of the document or documents, the date(s) of the document or documents and the authors [of] the document or documents.

1(b) If oral sufficient particulars to identify the speaker or speakers, the occasion, or occasions the audience and the date or dates.

1(c) The effect of the words spoken on each occasion.

104. The appellant answered as follows:

1. In relation to 1(a) the policy is contained under the heading dealing with discipline in the Standard Operation Procedures (SOP), adopted from Securimax Islands Limited, the joint venture partner when the defendant company was formed initially and which policy was in use at the time of the plaintiff's termination.
   
2. Further to 1(a) the said policy required the plaintiff as a contracted officer to be given a notice of suspension, for the alleged offence(s) to be investigated, then the plaintiff interviewed and appropriate action as a warning given, the contract officer counselled or terminated if the offence is serious but upon the alleged offence been proven. The said standard operation procedure is contained in a big arch folder one copy of which is at Niolam Security Limited's office at Takubar, Kokopo while the other copy is at the office of the Managing Director for the Lakaka Group of Companies at Lihir.
   
3. In relation to paragraphs 1(b) and (c) the policy is in writing and not an oral one thus the plaintiff is unable to answer to the request for oral particulars.
   

105. In the statement of agreed and disputed facts and legal issues, which was signed by the lawyers for each party before trial, one of the four legal issues in dispute was agreed to be:

Was the defendant required to give the plaintiff an opportunity to address the allegations against him?

106. We consider that when account is taken of all of the above pre-trial exchanges between the parties the answer to the question posed – whether the appellant sufficiently pleaded the fact or proposition of law that the respondent was obliged to afford him a right to be heard on any allegations against him before his employment was terminated for cause – must be yes. Any doubt arising from the statement of claim and the amended defence about whether the appellant was claiming that he had a right to be heard prior to dismissal was resolved by his reply to the amended defence. The respondent's request for particulars made it clear that the respondent understood what the plaintiff was pleading, as it was in the request for particulars that the issue moved from whether the appellant had a right to be heard, to the alleged source of that right. The appellant's answer to the request for particulars clarified that he was claiming that the operation procedures manual was the source. The statement of agreed and disputed facts and legal issues removed any reasonable doubt about what the nature of the plaintiff's claim was.

107. We consider that when the learned trial judge ruled that the appellant breached the rule in Pupune (on the ground that the appellant did not plead the standard operating procedures document in the pleadings), his Honour fell into error in two respects.

108. First, as can be observed from our examination of the pre-trial exchanges, the document was pleaded, at least in general terms, as early as the appellant's reply to the amended defence (by reference to the "policies of the defendant relating to discipline"); and then it was expressly pleaded in the answers to the request for particulars, where it was stated that "the policy is contained under the heading dealing with discipline in the Standard Operation Procedures (SOP), adopted from Securimax Islands Limited ...". When objection is taken to admission into evidence of this document (as it was in this case by the respondent's counsel) on the ground that it offends against the rule in Pupune it is necessary for the trial judge to examine not just the statement of claim (as his Honour seems to have done) but all of the pre-trial exchanges, including the statement of agreed and disputed facts and legal issues, to ascertain whether the contentious document is relevant to one of the facts or propositions of law that has been advanced by the party tendering that evidence.

109. Secondly, we consider that the learned trial judge erred by posing the wrong question. The critical question was not, as his Honour put it, whether the document had been pleaded but whether the fact or proposition of law that the party was seeking to prove – in this case, that the appellant had a right to be heard before dismissal – had been pleaded. The document was evidence in support of that proposition, so it was not necessary to plead it, and arguably it would have been wrong to plead it, as pleadings are supposed to contain material facts only, not the evidence of the facts alleged (Paul John v Gerd Lindhardt & Servicom Pty Ltd (1999) N1938). The fact or proposition of law – that the appellant had a right to be heard prior to dismissal – was clearly pleaded from the commencement of the pleadings through to the statement of agreed and disputed facts and legal issues.

110. We suggest that in the event of doubt about whether evidence being tendered complies with the rule in Pupune a trial judge should rule in favour of admitting the contentious evidence rather than refusing admission. The weight to be attached to a piece of evidence or its relevance is always subject to submissions of the parties. In this case, however, we do not consider that there should have been doubt. The document was clearly relevant to the proposition of law advanced by the appellant – that he had a right to be heard prior to dismissal. The respondent had been made aware that that proposition would be advanced at the trial and that the appellant would be relying on the operation procedures manual to prove it. In our opinion the learned trial judge, with respect, erred in law by refusing to admit the document into evidence. Ground No 1 is therefore upheld.

GROUND 2: ERROR OF LAW BY REFUSING TO ADMIT OPERATION PROCEDURES MANUAL INTO EVIDENCE ON THE BASIS OF THE DECISION IN CURTAIN BROS (QLD) LTD V THE STATE

111. The second reason the learned trial judge refused to admit the document into evidence was that to do so would offend against the principle, applied in Curtain Bros (Qld) Pty Ltd v The State [1993] PNGLR 285, that parties who have expressed their agreement in a written contract ought not be permitted to adduce extrinsic evidence as to a contrary agreement. His Honour dealt with the issue at paragraphs 57 and 58 of his judgment. After noting that the appellant was submitting that inferences about natural justice and fairness could be inferred from the respondent's policies relating to disciplinary procedures in the operation procedures manual, his Honour held:

The court objected to the tender of that document simply because nothing must be allowed to add to or subtract from a written agreement in a contract of employment: Curtain Bros (Qld) Pty Ltd v The State [1993] PNGLR 285.

112. His Honour restated his position on extrinsic evidence, such as the operation procedures manual, at paragraphs 81 and 82, by holding:

The contract of employment entered into between the plaintiff and the defendant in the instant case was a private contract between them. The court will not add or subtract anything from the elaborate terms of the contract. If there were reasons to dismiss the plaintiff from his employment it [was] because he had breached certain fundamental conditions of his contract of employment.

It was the intention of the parties in clause 10 [the termination clause in the contract] that the employee should be summarily terminated and nothing must be added or subtracted from their elaborate intention: Curtain Bros (Qld) Pty Ltd v The State [1993] PNGLR 285.

113. We agree with the relevance of the Curtain Bros case: if parties have wholly reduced their agreement into a written contract, extrinsic evidence should not be permitted to be admitted into evidence to elicit the intention of the parties evinced by the terms of the contract. The key word here is "if". If the parties have wholly reduced their agreement into the written contract, extrinsic evidence is not permissible. However, if they have not wholly reduced their agreement into the written contract, extrinsic materials are admissible. The Supreme Court (Amet CJ, Sheehan J, Kandakasi J) explained this in PNGBC v Jeff Tole (2002) SC694:

Under contract law, where parties have set down the whole of their agreement in writing, evidence seeking to add or subtract from or vary or qualify the written contract cannot be given and or accepted. This is what is called the parol evidence rule. For authorities on this, see Curtain Bros (Qld) Pty Ltd v The State [1993] PNGLR 285 ... It is a rule that does have exceptions to it. It is open to parties to assert that a written contract or document does ... not contain the whole of an agreement and at trial adduce evidence to support the contention. But that will require appropriate pleadings ... [Emphasis added.]

For the duration of this contract, if the employee commits a serious breach of his terms of his employment, or is guilty of serious and wilful misconduct, the company may terminate his employment without notice.

114. We consider that each of the three reasons set out in the notice of termination (and we note that details of various incidents were referred to in support of each reason) could validly be regarded as "serious and wilful misconduct". The learned trial judge made no error of law in the manner contended for by the appellant. Ground No 5 is dismissed.

GROUND 6: ERROR OF LAW AND FACT BY FINDING THAT THE APPELLANT WAS IN BREACH OF CLAUSE 10 OF THE CONTRACT OF EMPLOYMENT

115. Mr Steven submitted that the trial judge's finding that the appellant was in breach of clause 10 was against the weight of the evidence. We reject that submission for the reasons set out in ground of appeal No 5. Mr Steven also submitted under ground No 6 that the notice of termination was signed by the respondent's managing director, without evidence of a board resolution to terminate the appellant's employment. This argument is not contained in the notice of appeal and the appellant did not seek leave to raise it. It would not be proper to entertain the argument (Papua Club Inc v Nusuam Holdings Ltd (2005) SC812). Ground No 6 is therefore dismissed.

GROUND 7: ERROR OF LAW AND FACT BY TAKING INTO ACCOUNT IRRELEVANT CONSIDERATIONS IN FINDING THAT THE APPELLANT HAD BREACHED THE CONTRACT OF EMPLOYMENT IN THE GROUNDS SET OUT IN THE NOTICE OF TERMINATION

116. This ground of appeal is a restatement of ground Nos 5 and 6 and is therefore disregarded.

GROUND 8: ERROR OF LAW BY FINDING THAT THE APPELLANT WAS ENTITLED TO ONLY ONE MONTH'S PAY IN LIEU OF NOTICE

117. It is unnecessary to address this ground of appeal as the question of whether any error was made in the final order of the National Court will turn on whether the Court made any error in its determination of whether the appellant was wrongfully dismissed. Ground No 8 is disregarded.

GROUND 9: ERROR OF LAW BY FINDING THAT THE APPELLANT WAS IN BREACH OF HIS DUTY TO MITIGATE HIS LOSSES

118. This ground of appeal is disregarded for the same reasons that ground No 8 is disregarded.

CONCLUSION

119. Of the nine grounds of appeal, we have disregarded six as they either restate other grounds or are inconsequential. The remaining three grounds are substantial grounds of appeal and we have upheld two and dismissed one. By upholding ground Nos 1 and 2 we have concluded that the learned trial judge erred in law by refusing to admit into evidence the respondent's operation procedures manual. By dismissing ground No 5, we have concluded that the learned trial judge made no error in concluding that sufficient grounds existed for the termination of the appellant's contract of employment. What does this mean for the fate of the appeal? Do we uphold the appeal? If so, do we find that the appellant was wrongfully dismissed? If so, are we in a position to award damages? Or should the question of assessment of damages be remitted to the National Court? If we are not in a position to find that the appellant was wrongfully dismissed, should we remit the entire proceedings to the National Court for retrial? Or, should we dismiss the appeal on the basis that, despite errors being made by the trial judge, good grounds existed for terminating the appellant's employment?

120. All of those are viable options in light of Sections 6(2) and 16 of the Supreme Court Act. Section 6(2) states:

For the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.

121. Section 16 states:

On the hearing of an appeal, the Supreme Court shall inquire into the matter and may—

(a) adjourn the hearing from time to time; or

(b) affirm, reverse or modify the judgement; or

(c) give such judgement as ought to have been given in the first instance; or

(d) remit the case in whole or in part for further hearing; or

(e) order a new trial.

122. In our opinion, the most appropriate order to make is to find liability in favour of the appellant and to remit the question of damages and other relief to the National Court for trial. There was sufficient evidence before the National Court to conclude that the operation procedures manual, which was incorrectly excluded from the evidence, in fact, gave to all employees including the appellant a right to be heard prior to dismissal. That evidence emerged from oral testimony by the person who replaced the appellant. There were sufficient cross-references to the manual in the written contract of employment (in clauses 2 and 10 where compliance with company polices and/or procedures was referred to) for it to be concluded as a matter of law that the right to be heard (arising from the disciplinary procedures) was incorporated into the contract as a term of the contract. The respondent breached the contract by not giving a right to be heard prior to terminating the appellant's employment. We therefore have no difficulty finding that the respondent is liable in breach of contract.

123. There is insufficient material before us to make an award of damages. We note that in the statement of claim the appellant claimed damages for wrongful dismissal, income and entitlements for the balance of the contractual term (which was more than two years), special damages (which are unspecified), damages for mental distress, and money in lieu of notice. In light of the recent decision of the Supreme Court in Porgera Joint Venture v Robin Kami (2010) SC1060 (which may stand for the proposition that in a wrongful dismissal case the assessment of damages is restricted to the salary and other entitlements the employee was entitled to receive if the contract had been lawfully terminated) it is questionable whether the appellant would be entitled to anything in addition to salary and other entitlements in the notice period (which in this case would appear to be three months). These issues would need to be fully argued before the National Court.

124. As to the costs of these proceedings, even though the bulk of the grounds of appeal have not been upheld, the appellant has succeeded on two substantive grounds and therefore should be awarded the costs of the appeal.

125. We would therefore allow the appeal, quash the orders of the National Court of 22 May 2009 in WS No 1106 of 2005, find that the respondent is liable in breach of contract to the appellant, remit the proceedings to the National Court for trial on the relief sought in the statement of claim and award costs to the appellant on a party-party basis, to be taxed if not agreed.

ORDER

126. By majority:

(1) The appeal is allowed.

(2) The orders of the National Court of 22 May 2009 in WS No 1106 of 2005 are quashed.

(3) The respondent is liable to the appellant in breach of contract.

(4) The proceedings are remitted to the National Court for trial on the relief claimed in the statement of claim.

(5) The respondent shall pay the costs of these proceedings to the appellant on a party-party basis, to be taxed if not agreed.

Judgment accordingly.

______________________________________________________

Stevens Lawyers: Lawyers for the Appellant
Allens Arthur Robinson Lawyers: Lawyers for the Respondent