Maui v Attorney General [2023] SBHC 10; HCSI-CC 645 of 2015 (21 April 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Maui v Attorney General
Citation:
Date of decision:	21 April 2023
Parties:	Chard-Richards Maui v Attorney General
Date of hearing:	14 April 2023 (Last written submission filed)
Court file number(s):	645 of 2015
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	Accordingly, Court will order that Public Service Commission is liable to pay damages to Mr Maui for the unlawful termination of his contract of employment.
Representation:	Mr. Tovosia for the Claimant Ms Fakarii for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Public Service Commission Regulation 1998, Constitution 1978, S 17, Chapter II, S 3-16, S 18 (1) and (2),
Cases cited:	Lomo v Attorney General [2009] SBHC 9, Rooney v Forest Industries Council of PNG and Nawason [1990] PNGLR 407, Harding v Teperoi Timbers PTY Ltd [1988] SPLR 283,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 645 of 2015

BETWEEN

CHARD-RICHARDS MAUI
Claimant

AND

ATTORNEY GENERAL
Defendant

Date of Hearing: 14 April 2023 (Last written submission filed)
Date of Judgment: 21 April 2023

Mr. Tovosia for the Claimant
Ms Fakarii for the Defendant

JUDGMENT ON A CLAIM FOR BREACH OF CONTRACT AND DAMAGES – LIABILITY FOR BREACH OF CONTRACT

1. Court delivered the main judgment on 2/12/2022. Court granted declaratory orders that Public Service Commission (employer) breached a term of Mr Maui’s (employee’s) contract. Court declared Mr Maui’s termination unlawful for lack of procedural fairness under the Public Service Commission Regulations 1998.
2. In the case of Lomo v Attorney General [2009] SBHC 9; HCSI-CC 69 & 48 of 2008 (Consolidated) (23^rd April 2009), the High Court relevantly stated: -
   • “... where an employer has terminated a servant in breach of the terms of the contract, the servant may consider the contract at an end and seek redress. He in seeking such redress may sue for wrongful termination based on the complete disregard of the terms of the contract of service as the termination amounts to repudiation by the master and the servant’s remedy is an action in damages only”. (My underlining)
3. That position of the law enhanced Counsel Tovosia’s submission that the basic remedy for breach of contract in contract law, is an award of damages. That is the most common or typical remedy for breach of contract. Counsel Tovosia reasoned that the award of damages is primarily a compensatory remedy rather than a punitive remedy. That the compensation is awarded not to punish the defaulting party (employer in this case), but is designed to provide fair compensation for a wrong done to the innocent party (employee) caused by breach of the defaulting party. In most cases that measure of “damages” is the amount of money required to put the innocent party into the position it would have been in had the breach of contract not been committed.
4. Furthermore, Counsel Tovosia submitted that Section 17 of the Constitution provides that compensation is available to a person if an authority contravenes the person’s rights. The person’s rights that the Constitution provides compensation in respect of when violated are commonly referred to as the fundamental rights and freedoms of the individual under Chapter II of the Constitution. These fundamental rights and freedoms are in Sections 3 - 16 of the Constitution. Fundamental rights and freedoms such as – protection of right to life, right to personal liberty, right to protection from slavery and forced labour, right to protection from inhumane treatment etc. These are rights that every Solomon Islander have. And if the state violates against these rights, then the state will have to compensate for such violation as a redress or remedy made available under Section 18 (1) and (2) of the Constitution. In here however, the issue is not about a violation of Mr Maui’s fundamental rights and freedoms under Chapter II of the Constitution. Hence compensation here is not a constitutional redress or remedy. Rather it is a remedy in contract law. So, I will return to paragraphs 2 – 3 above and say that damages for breach of contract is the only remedy under contract law that Mr Maui is entitled to.
5. The next pertinent question is, what is the measure of damages to award to Mr Maui? I find assistance here from the persuasive authority Counsel Tovosia cited. The Papua New Guinea case of Rooney^[1] says, “the measure of damages was the amount which the employee would have earned under the employment contract and the value of other benefits thereunder for the period from unlawful termination to the time when the employer could lawfully have terminated less the amount reasonably expected to be earned in other employment.” Counsel Tovosia also relied on persuasive authority^[2] to submit that his client is also entitled to “general damages” in addition to “specific damages”. There will be evidence to support these two heads of damages when I assess damages. So, Counsel should file sworn statement evidence. For now, I am concentrating on liability for damages arising from breach of contract under contract law.
6. Mr Maui was terminated unlawfully in year 2011. Public Service employees should normally serve their contract until they reach 55 years (retirement age). Assume that Mr Maui was 50 years old in 2011. That means he still has 5 years left to serve on his contract until 2016. So, the measure of damages will be his 5 years’ salary on his remaining 5 years of the contract plus the value of other benefits. I will know these when I come to assess damages, as per second part of order No. 3 of the order perfected on 25/01/2023. Counsel should file sworn statement evidence to enable the Court to assess the heads of damages.

Attorney General’s submissions misguided

7. Attorney General made irrelevant submissions which I will simply ignore. Counsel is arguing that Mr Maui is not entitled to damages under the Constitution or contract law. Under the Constitution Mr Maui is not entitled to damages (repeat paragraph 4 above). Under contract law however, Mr Maui is entitled to damages for breach of contract (repeat paragraphs 2, 3 and 4 above).
8. Attorney General further submits that breach of natural justice comes under public administrative law and hence the only remedies available to the claimant are the traditional judicial review remedies such as mandatory, prohibition, quashing and declaratory orders. This is where I want to ignore Crown’s submissions. Flowing naturally, logically and legally from the main judgment of this Court delivered on 2/12/2022, this is a claim seeking declaratory orders for breach of contract (main relief) and consequential relief for damages (ancillary relief). The cause of action is in contract law not constitutional law per se. I have already granted the main declaratory relief. But there was no argument on liability for the consequential relief of damages. So now I am doing that. This is not a judicial review claim. As such any suggestion that the traditional judicial review remedies are appropriate holds no water.
9. The issue before me now is whether or not liability for damages in this matter is a constitutional remedy, a contractual remedy or both and whether or not damages should be awarded to the claimant? As discussed herein and or in the main judgment, government (defendant) is liable to pay damages to Mr Maui for breach of a term of his contract (repeat paragraphs 2, 3 and 4 above).
10. Accordingly, Court will order that Public Service Commission is liable to pay damages to Mr Maui for the unlawful termination of his contract of employment. Court will move next to assess appropriate heads of damages. Directions for preparation for assessment hearing are – (i) Mr Tovosia to file and serve sworn statement detailing the asserted damages by 28/04/2023 (ii) Ms Fakari’i to file and serve sworn statement by 5/05/2023. Senior Associate Alina to list a hearing date for assessment of damages. I will still retain this file.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Rooney v Forest Industries Council of PNG and Nawason [1990] PNGLR 407 (26^th October 1990).
^[2] Harding v Teperoi Timbers Pty Ltd [1988] SPLR 283 (22^nd July 1988).