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Patai v Niugini Lumber Merchants Pty Ltd [1997] PGNC 96; N1602 (11 August 1997)

Unreported National Court Decisions

N1602

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS. NO. 1083 OF 1995
BETWEEN:
KEVIN PATAI - Plaintiff
And:
NIUGINI LUMBER MERCHANTS PTY LTD & OTHER - Defendant

Waigani

Sawong J
6 May 1997
11 August 1997

CONTRACT OF EMPLOYMENT - Damages - Assessment of Damages for Wrongful Dismissal

Counsel:

DK Yala for the Plaintiff

R Nonggor for the Defendants

11 August 1997

SAWONG J: This was a trial for assessment of damages, default judgement having been entered against the defendants. Both sides called one witness each. The Plaintiff’s evidence was that he was employed by the first Defendant under a Contract of Employment. There is no issue as to whether the Plaintiff was in fact employed by the first Defendant through the Second Defendant. The only issue is how much is the Plaintiff entitled for the wrongful and unlawful termination of his employment.

The Plaintiff says he was employed by the Defendants on or about 23 October 1993 under a Contract of Employment. Parts of his term and conditions of employment are contained in the document marked exhibit P1. It is not necessary to set out the contents of that document because they are not really relevant. The Plaintiff says his terms and conditions were subsequently changed between him and the Defendants. There were agreed to between the parties.

This was in February 1994. The varied terms and conditions of employment as agreed to between the parties was that he was to receive a salary of K500.00 per fortnight, housing allowance of K820.00 per month, and the sum of K2,000.00 per month being project fee.

In his pleadings, he says that his amended terms and conditions of his employment contract were partly oral and partly in writing. So far as it was in writing, it was alleged to be contained in a letter dated 27 February 1994 to the Plaintiff. This letter was never produced as evidence. And so I do not know what it contains.

In his submissions, Mr Nonggor for the Defendants has raised several matters. First, he submits that the Defendants never employed the Plaintiff. He submitted that there was no Contract of Employment between the parties and that there was no breach. It followed, he submitted that, the Plaintiff did not suffer any damages.

In my judgements, this submission is moot. It is moot because the fact remains that there exist a judgement against the Defendants. In other words the question of liability is not an issue, it having been determined already. Put it in another way, in my judgement, there has already been a judgement against the defendants, the effect of which, interalia, is that the defendants were held liable to pay to the plaintiff damages. The only issue is one of assessment of damages.

In so far as that issue is concerned, Mr Nonggor submitted in essence that the Plaintiff has not proved that he has suffered any loss. He submitted that the Plaintiff has not produced any evidence of the terms and conditions of his employment, for eg. pay slips etc. The Plaintiff has also not produced a crucial document, namely the letter of 27 February 1994, which he says allegedly contained his terms and conditions of employment.

In summary, Mr Nonggor submits that apart from the oral evidence given by the Plaintiff, he has produced no corroborative documentary evidence to support his oral evidence.

The Witness for the defendant, Mr Singh gave evidence denying that Mr Patai had even been employed by the defendants. He gave no evidence disputing the evidence by the Plaintiff regarding his terms and conditions, and the remuneration he received. I consider Singh’s evidence to be less than credible. In my view, Mr Singh was selective in his evidence, he did not wish to nor told the truth about this matter.

I therefore give little weight and credibility to his testimony. I consider that despite Mr Nonggor’s criticism of the lack of corroborative documentary evidence supporting the Plaintiff’s oral evidence, the Plaintiff’ evidence in the main has not been destroyed or discredited in any substantial manner. I consider that the Plaintiff’s evidence of the terms and conditions of his employment were not destroyed. Consequently, on the balance of probabilities, I consider that the Plaintiff has established or proved his loss.

Despite the lack of corroborative evidence I accept the Plaintiff’s evidence on the terms and conditions of his employment. In other words, I accept his evidence regarding loss of salary, and the loss of project fee. I also accept his evidence regarding the costs of repatriation fares for him and his family from Port Moresby to Kavieng.

Thus I find that the Plaintiff is entitled to the following monies.

In so far as the claim, housing allowance, recreation leave, air travel is concern, I find that there is either no evidence or insufficient to grant those. Consequently, the claim for these are dismissed.

There is sufficient and credible evidence of costs of repatriation fees for the Plaintiff and his family. This is accumulated to him in the sum of K2,376.00.

In summary, I award the following damages.

I give judgment for the total sum of K72,000.00. I direct that judgement be not entered for fourteen (14) days from today’s date. The parties may during that time apply to the Court to vary the judgement to correct errors of calculation or errors of a similar kind.

If the parties are agreed that such an error has been made, it may be dealt with by the Chamber order. Otherwise, the judgement shall take effect and may be entered at the end of that time.

Lawyers for the Plaintiff: Mamando Lawyers

Lawyers for the Defendants: Warner Shand