Bandisch v National Capital District Botanical Enterprises Ltd (No 1) [2009] PGNC 190; N3806 (29 September 2009)

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

CONTRACT – Employment of non-citizen on a contract – written contract for a term of 1 year – plaintiff continued to work for 5 years – contract is implied.

CONTRACT – Employment of non-citizen – plaintiff did not have a work permit – an offence to employ a non-citizen without a work permit - employer and employee must apply for a work permit before employee commences employment – ss.3, 6(1), 18 of Employment of Non-Citizen Act 2007

CONTRACT – Plaintiff continued to work without a contract – contract is implied – discussion of the principles of the ‘officious bystander test’ and ‘business efficacy test’.

CONTRACT – dispute as to terms of an implied contract – Employment Act applies – s.15 of Employment Act.

The plaintiff is a German National. He was employed on a written contract of employment as the defendant’s General Manager for a 1 year term. He was employed without a valid work permit, which employment continued beyond the 1 year term, for another 5 years. He continued to receive the same entitlements as those stipulated under the written contract. After 5 years, he was terminated for alleged mismanagement and misappropriation. He sued the defendant for breach of contract.

1. Whether the written contract of employment between the plaintiff and the defendant which was executed on 26th February, 2001, continued to apply after its expiration on 1st November, 2001 up to 29th July, 2005 when the plaintiff was formally terminated by the defendant?

2. If so, whether the plaintiff is entitled to entitlements stated in the written contract of employment of 2001, which entitlements would have accrued from the period 1st November, 2001 to 29th July, 2005?

3. Who applies for a work permit, the employer or employee and when does that happen?

4. Because the plaintiff did not have a work permit for the duration of his employment with the defendant, is his contract valid or is it illegal and unenforceable?

3. Both the plaintiff and the defendant should have applied for the work permit which the plaintiff should have had in his possession before commencement of employment.

4. The defendant’s action in allowing the plaintiff to work for nearly 5 years without a work permit meant it conceded and acquiesced in its conduct. Therefore, the contract is neither illegal nor is it unenforceable.

Ume More, Fabian Pok, Levi Tilto, Wandi Oscar Yamuna Paul Piru, Powes Parkop and Members of the Students Representative Council and all those students now enrolled at the University of Papua New Guinea who have National Scholarships other than Medical Students v. The University of Papua New Guinea [1985] PNGLR 401
Dolphin Enterprises Pty Limited v. Saun [1990] PNGLR 77, (N803)
Putput Logging Pty Ltd v. Ambalis [1992] PNGLR 159
Kora Gene v. MVIT [1995] PNGLR 344 (N1224)
Steven Charles Pickthall v. Lae Plumbing Pty Ltd
Papua New Guinea Banking Corporation v. Jeff Tole
Air Niugini and National Airlines Commission v. Dennis Salter (2001) SC459
Madiu Andrew v. Mineral Resources Development Company Ltd, Koiari Tarata, Chairman – Board of Directors and Sir Mekere Morauta, Kt, MP, Prime Minister (2004) N2601
Mathew Piake Kaen v. Telikom PNG Ltd (2004) SC746
Damansara Forest Products (PNG) Ltd (In Liquidation) v. RH Trading (2004) N2723
Kila Tutura v. Joseph Ng and Econ Investment Ltd (2005) N2924

Luxor (Eastbourne) Ltd v. Cooper [1941] AC 108
Shirlaw v. Southern Foundries (1926) Ltd [1939] 2 KB 206
The Manifest Lipkowy [1989] 2 Lloyd’s Rep. 138

1. DAVANI .J – The plaintiffs claim is in relation to an alleged breach by the defendant of his employment contract with the defendant or alternatively, damages for distress, frustration and general disappointment plus interest and costs. The trial is on both liability and quantum

2. The defendant opposes the application submitting that although the plaintiff was retained as its General Manager for another five (5) years after the expiration of his original contract of employment on 1st November, 2001, that he was terminated on 29th July, 2005 because he had mismanaged and misappropriated the defendant’s funds.

3. The defendant submits further that after the plaintiffs termination on 29th July, 2005, that the defendant did not renew his contract.

4. The plaintiff relies on his Amended Statement of Claim filed on 10th December, 2007 which was originally filed by Writ of Summons on 19th December, 2005.

5. The defendant relies on its Verified Defence filed on 22nd November, 2005 wherein it pleads that the plaintiffs employment with the defendant was terminated because that plaintiff had mismanaged its funds and that therefore, his termination was proper.

6. In support of their cases, the following affidavits were filed and relied on;

(i) affidavit of Augustine Ravi sworn on 7th April, 2009 and filed on 8th April, 2009 by lawyers for the National Capital District Commission for and on behalf of the defendant;

(ii) affidavit of the plaintiff sworn and filed on 18th February, 2009 by Pacific Legal Group Lawyers.

7. The plaintiff was engaged as the defendant’s General Manager on a one-year contract of employment commencing on 1st November, 2000 and ending on 1st November, 2001. This contract of employment was executed on 26th February, 2001 (‘first contract’).

10. After the expiration of the first contract, the defendant retained the plaintiffs services as its General Manager for another five (5) years until his employment with the defendant was terminated on 29th July, 2005 (‘second contract’). The termination was because of alleged mismanagement and misappropriation of the defendant company’s funds by the plaintiff.

11. By Writ of Summons filed on 19th October, 2005, the plaintiff claimed the following unpaid entitlements for the period 2001 to the period ending 29th July, 2005;

(i)	Outstanding recreation leave entitlements and airfares	K72,294.94
(ii)	Pro-rata long service payment for 5 years	K23,981.94
(iii)	Pro-rata leave pay from May 6 to July 29,2005	K2,455.14
(iv)	Payment in lieu of notice	K34,263.87
(v)	Final pay from July 21 to July 29, 2005	K3,689.96
(vi)	Repatriation fares (airfares and cargo)	K11,593.50
(vii)	Extraordinary airfares incurred in relation to temporary resident permit	K105,699.00
	Total:	K253,798.37

12. The plaintiff claims that the defendant did not arrange a work visa for him, so he was therefore forced to operate under a business visa, which meant that he had to leave PNG on numerous occasions before the expiration of the business visa, then apply for a business visa, which then allowed him to continue to work for the defendant company in accordance with his obligations under the contract. He claims that although he requested the defendant’s Board for a fresh contract of employment and that his requests were made on numerous occasions, that this was never done.

13. By his Amended Statement of Claim filed on 10th December, 2007, the plaintiff makes the following claims;

(i)	Loss of salary from 21st July, 2005 to 29th July, 2005	K3,689.96
(ii)	Loss of outstanding recreation leave entitlements for 5 years	K72,294.94
(iii)	Loss of pro-rata leave pay from 6th July to 29th July, 2005	K23,981.94
(iv)	Loss of payment in lieu of notice	K34,263.89
(v)	Loss of repatriation fare	K11,593.50

(i) Whether the written Contract of Employment between the plaintiff and the defendant which was executed on 26th February, 2001, continued to apply after the expiration of the contract on 1st November, 2001 up to 29th July, 2005 when the plaintiff was formally terminated by the defendant?

(ii) If so, whether the plaintiff is entitled to entitlements stated in the Contract of Employment of 2001, which entitlements would have accrued from the period 1st November, 2001 to 29th July, 2005;

15. The other aspects of the plaintiffs submissions which will be dealt with by this Court is in relation to the plaintiffs work permit. I will also discuss whose responsibility it was to apply for that work permit and whether the defendant should have applied for a valid work permit for and on behalf of the plaintiff. Together with that, I will discuss submissions by Ms Bakau as to the legality or validity of the Contract.

Issue no. (i) – Whether the written Contract of Employment between the plaintiff and the defendant which was executed on 26th February, 2001, continued to apply after the expiration of the contract on 1st November, 2001 up to 29th July, 2005 when the plaintiff was formally terminated by the defendant?

16. It is not disputed that from when the first contract expired on 1st November, 2001 to the termination of the second contract on 29th July, 2005, the plaintiff continued to work for the defendant. There is no advice in evidence before me, written or otherwise, from the defendant to the plaintiff, advising him to stop work until he received the letter of termination from NCDC dated 13th July, 2005. I set out the full text of this letter. It reads;

The Board of National Capital District Botanical Enterprises Limited, in its meeting dated 16 March 2005 decided not to renew your employment contract with the company. This decision is confirmed by the Board in its subsequent meeting dated 16 June 2005.

This decision is essential for the restructure of the Botanical Garden. Therefore, I hereby advise you that your services are no longer required to the company and your employment will cease effective from 29 July 2005.

The Board also noted that you authorized certain payments to yourself inconsistent with your terms of employment. This will be deducted from your final entitlements. Your may contact the Director – Finance & Admin of NCDC for your final entitlements.

I also request that you hand over all the keys, documents, cheque books, vehicles, computers and other assets of the company in your possession to Mr. Tom Gillis forthwith.

I take this opportunity to thank you for your contributions to the Botanical Garden and on behalf of the Board. I wish you ALL THE BEST.

17. The defendant submits that after the expiration of the first contract on 1st November, 2001, that the plaintiff was employed on a month-to-month contract, similar to a month-to-month tenancy. However, apart from the fact that there is no written evidence of that, the evidence is also that neither party commenced the process in relation to the application for a work permit for the plaintiff. I deal with this further below.

18. In relation to the defendant’s contentions of there being a month-to-month contract, the undisputed evidence is that after 1st November, 2001, the plaintiff continued to be paid his salaries as provided in the first contract and was to a certain extent, employed on the same conditions set in the first contract. Attached to his affidavit are copies of payslips issued by the defendant showing the gross and net salary he was paid, after tax. This is not disputed by the defendant.

19. What about the NCDC’s involvement with the defendant company? Witness Augustine Ravi who is the Financial Advisor for the National Capital District Commission (‘NCDC’) swears in his affidavit that he is also in charge of secretarial matters of all business arms of the NCDC which includes the defendant. I believe the defendant is a business arm of the NCDC. Neither party have put results of company searches before me to assist in that regard but I can safely assume that to be the case because of Augustine Ravi’s involvement on the defendant’s Board and the NCDC’s former City Manager, as the defendant’s Board Chairman. I note also that the plaintiffs contract of employment was drafted by the NCDC’s Legal Division and that the letter of termination to the plaintiff was on the NCDC’s letterhead and was signed by the former City Manager of the NCDC who was then the Chairman of the defendant’s Board. Copies of the defendant’s Board Minutes before me show the defendant’s Board members to be senior Managers of the NCDC at that time being Mrs Iva Kola, Mr Stanley Haru, Mr Tom Gilis, Dr B M Karunaratine, amongst others.

20. The defendant submits that the plaintiff did not have a valid work permit during the period of the first and second contract, a requirement under the Employment of (Non-Citizens) Act 1978. The defendant submits further that the plaintiff was illegally working in paid employment in Papua New Guinea for five (5) years without a valid working permit. They submit relying on the case Putput Logging Pty Ltd v. Ambalis [1992] PNGLR 159 that no enforcement rights can arise out of a void transaction. They submit that the first and second contracts were void ab initio and must fail.

21. The defendant also relies on clause 15.2 of the first contract in submitting that the existence of a valid contract was dependent very much on a valid work permit. This clause reads;

15.2 This Agreement is subject to the Employee receiving approval for his employment with the Employee’s company from the Department of Labour and Employment and the Agreement shall further be subject to the continuation in force of such approval as aforesaid;"

22. In relation to this, Ms Doiwa for the plaintiff submits that the securing of a work permit was the defendant’s responsibility. Ms Doiwa submits further that there is no evidence from the defendant to show that the plaintiff was not employed by it during the period of the second contract and that therefore, the plaintiffs evidence is good evidence. I accept that.

23. The undisputed evidence is that between the periods November, 2001 to July, 2005, the plaintiff held discussions with the then NCDC City Administrator, Mr Bernard Kipit; Director Finance, Mr Brigil Gerolaga; Director, Mrs Iva Kola and Manageress Human Resources Unit, Ms Osila Teko, for his work permit and always received assurances from them that the NCDC would lodge applications for these permits. The undisputed evidence is also that the plaintiff had to travel in and out of Papua New Guinea during the period November, 2001 to 29th July, 2005 because he did not have a work permit that would allow him to remain in PNG for a very prolonged period. He travelled to and from Papua New Guinea, to Brisbane, Australia, on a 60 day business visa, which meant he expended his personal funds on airfares, application for the business visa and other expenses. I discuss this further below.

24. The evidence is also that at no time during that period did the defendant’s Board question the propriety or not of the plaintiffs employment with the defendant, being fully aware of the fact that he was working without a valid work permit. That evidence is not disputed.

25. Ms Doiwa submits that by the defendant continuing to employ the plaintiff despite not having a work permit, that it had in fact conceded and acquiesced and that it cannot now raise that fact because it was also its responsibility to assist in the application process. Ms Doiwa submits that by its acts, the defendant admits that the plaintiff was properly employed. Ms Doiwa relies on the case Kila Tutura v. Joseph Ng and Econ Investment Ltd (2005) N2924, decision by Gavara-Nanu .J. In that case, the defendant took issue with the date the plaintiff commenced employment with them and whether the plaintiff was in fact employed by the second defendant. However, their actions, as demonstrated by the evidence, showed that they had conceded and acquiesced, that is, by agreeing to pay the amount sought by the plaintiff, which they disputed at the trial. Judgment was awarded for the plaintiff.

26. I also note the evidence of Augustine Ravi, Finance Advisor for the NCDC that there was no agreement in writing or orally between the plaintiff and the defendant company for it to arrange for the plaintiffs work visa or temporary residency permit. Mr Ravi claims that it is the plaintiffs responsibility to administer and manage the defendant’s affairs including his own work permit and visa.

27. In relation to this evidence, clause 15.2 of the first contract is specific, that the agreement is subject to the employee receiving approval for his employment from the Department of Labour and Employment. I asked defendant’s counsel as to whose responsibility it was to arrange and organise a work permit, apart from a business visa. The defendant’s lawyer, did not put any evidence before the Court on the process involved and could not justify why the defendant brought the plaintiff into Papua New Guinea, firstly without a work permit and secondly, did not assist him in the process of applying for a work permit. Without any evidence to assist me, I have had to have recourse to the relevant legislations governing the issuing of work permits and work visas to determine whose responsibility it is to commence and follow through with that process. First, it is not disputed that the plaintiff is a German national. He is therefore a non-citizen of Papua New Guinea. The Employment of Non-Citizens Act 2007 defines a non-citizen as "a person other than an automatic citizen, a citizen by descent or a naturalised citizen;" (s.3). The defendant is definitely not a public authority as defined in the Public Employment (Non-Citizens) Act 1978 because if it was, the Employment of Non-Citizens Act 2007, would not apply to it (s.5). It is a public company.

28. Under s.6 of the Employment of Non-Citizens Act 2007, it is an offence to employ a non-citizen without a work permit. The whole of that provision reads;

(1) A person who employs a non-citizen in an occupation is guilty of an offence, unless a work permit has been granted to that employer in respect of that non-citizen and that occupation, and the work permit is still valid in respect of that non-citizen and that occupation.

(2) A non-citizen who is employed by a person in an occupation is guilty of an offence, unless a work permit has been granted to that employer in respect of that non-citizen and that occupation, and the work permit is still valid in respect of that non-citizen and that occupation.

(3) A self employed non-citizen who is employed in an occupation is guilty of an offence, unless a work permit has been granted to that non-citizen in respect of that occupation, and the work permit is still valid in respect of that non-citizen and that occupation.

29. Section 6(1) is very clear that the work permit must have "been granted to that employer in respect of that non-citizen and that occupation and the work permit is still valid in respect of that non-citizen and that occupation" (my emphasis). Therefore, it is the employer’s responsibility to ensure that the employee has a work permit.

30. In any event, the Courts doubts is dispelled by s.18 of the Employment of Non-Citizens Act 2007 which states specifically that an employer shall make an application for work permit and that this must be done prior to engaging a non-citizen in any occupation. The whole of s.18 reads;

(1) An employer, prior to engaging a non-citizen in any occupation, shall make an application for a work permit.

(2) A self-employed non-citizen, before commencing in any occupation, shall make an application for a work permit."

31. Form 1 of the Employment of Non-Citizens Regulation 2008 which is the prescribed form for an application for a new work permit for a non-citizen, sets out the details required to be completed by both the employer and the employee. This will include, amongst others, the employee’s salary package, the number of employees employed by the employer including non-citizens, the internal company position code or job code, and of course the employer’s company seal and signatures, to be co-signed by the employee.

32. Although the defendant’s lawyers claim that as the defendant’s Managing Director, the plaintiff should have started the process in relation to securing a work permit, then seen it through, neither the defendant nor the plaintiff have put before me evidence to show that the plaintiff was advised by the defendant’s Board to do that. It is also not a condition of his Contract of Employment. In the absence of evidence, in my view, the onus is upon the defendant’s Board to make a decision as to who is responsible for that function. It did not and allowed the plaintiff to perform his functions without a work permit.

33. It then takes me to the obvious conclusion that acting on the defendant’s assurances, which assurances were received from staff and members of the NCDC, the plaintiff continued to work and be paid for his services. I must say that the Board Members of the defendant, which comprises of members of the NCDC, with the then City Manager of the NCDC as the defendant’s Board Chairman, failed miserably in their responsibilities. They neither assisted the plaintiff by lodging the necessary documentation nor did they raise this aspect with him during the next 5 to 6 years he was in Papua New Guinea. They continued to use his services knowing full well that he did not have a valid work permit.

34. Therefore, to answer the first issue, at the expiration of the first contract, the plaintiff continued in the defendant’s employ with the defendant’s approval which is demonstrated by the defendant’s conduct which included payment of the plaintiffs salaries and allowances including the use of a vehicle. That is not disputed.

35. The defendant has conceded and acquiesced. Equity cannot allow that the defendant maintains its claim that the second contract is illegal or even the first contract. Additionally, the defendant has not sought orders in its Defence as to the illegality or voidness of the contract. They cannot claim what is not pleaded. In the case of Ume More, Fabian Pok, Levi Tilto, Wandi Oscar Yamula Paul Piru, Powes Parkop and Members of the Students Representative Council and all those students now enrolled at the University of Papua New Guinea who have National Scholarships other than Medical Students v. The University of Papua New Guinea [1985] PNGLR 401, the Supreme Court stated at pg.405;

"A party cannot obtain relief which has not been requested or sought in the pleadings."

36. This position was also emphasised in the case of Madiu Andrew v. Mineral Resources Development Company Ltd, Koiari Tarata, Chairman – Board of Directors and Sir Mekere Morauta, Kt, MP, Prime Minister (2004) N2601. The trial judge held at pg.2;

"Pleadings in a civil claim play a very vital role. They lay the foundation for a claim and dictate the kind of evidence the parties can call and the grant of a relief subject to evidence proving it. Thus, in order to enable the Court to properly assess and arrive at a reasonable award of damages, the law requires a plaintiff to properly plead and then establish by appropriate evidence his loss or damages. Both this Court and the Supreme Courts have denied plaintiffs grant of reliefs that have no foundation in the pleadings even if there is evidence of it. The Supreme Court affirmed his in Steven Charles Pickthall v. Lae Plumbing Pty Ltd and many other subsequent judgments with the latest in Papua New Guinea Banking Corporation v. Jeff Tole. This steams from O.8 r.33 of the National Court Rules, which requires claims for damages arising out of a death or personal injuries to plead specifically the injury or loss with particulars of the lost."

(See also Dolphin Enterprises Pty Limited v. Saun [1990] PNGLR 77 (N803); Kora Gene v. MVIT [1995] PNGLR 344 (N1224); Damansara Forest Products (PNG) Ltd (In Liquidation v. RH Trading (2004) (N2723)).

37. Going back to the application of the Employment Act to Non-Citizens, that Supreme Court has held that the Employment Act applies to non-citizens. (see Air Niugini and National Airlines Commission v. Dennis Salter (2001) SC459).

38. Therefore, in the event of a dispute as to the terms of the contract, and where the employer fails to produce a record of those terms and conditions, the employees’ statement on the terms and conditions of employment is conclusive evidence. This is confirmed by s.15 of the Employment Act which reads;

Where a dispute arises as to the terms and conditions of an oral contract of service and the employer fails to produce a record under subsection (1), a statement by the employee as to the terms and conditions of the contract shall be conclusive evidence of those terms and conditions unless the employer satisfies the Secretary or an Arbitration Tribunal established under the Industrial Relations Act 1962 to the contrary."

39. Can it be implied that the terms of the first contract continued during the period of the second contract and whether a plaintiff can be terminated under an implied contract? The Supreme Court addressed this in Mathew Piake Kaen v. Telikom PNG Ltd (2004) SC746 where the Court, relying on the Trial Judge’s reasons said;

"The law is that the employer is at liberty to terminate for cause or for none as long as termination is in accordance with the terms of the contract. In this case, termination may have been implied. The law is that implied terms of a contract would include duties on the part of employee to exercise care and skill, to obey orders, to exercise good faith and not to be involved in misconduct (re Fridman, the Modern Law of Employment, ch 28; Macken O’Grady the Law of Employment 4th Edn, pg.141). Brian Brooks, Contract of Employment 3rd Edition, states at pages 39 and 40;

There are two sets of terms in a contract of employment; first, those expressed by the parties and second those which are called implied terms. This, it is implied by operation of law that the worker will provide the service personally, that he will obey orders, that he will display due competence and care in the discharge of his tasks and that he will perform his function in good faith. Any conduct which is incompatible with the fulfilment of these terms is a ground of dismissal of the employee by the employer even when there is no express term in the contract.."

40. According to Sir Guienter Treitel’s "the Law of Contract" 11th Ed (2003), implied terms are divided in three (3) main groups. These are;

(i) Terms implied in fact that is terms which are not expressly set out in the contract but which the parties must have intended to include them;

(ii) Terms implied in law, that is terms imported by operation of law although the parties have not intended to include them;

41. Treitel states at pg.201 that one test for the implication of a term in fact is the "Officious bystander" test. It was held by MacKinnon L.J to be;

"Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without in saying; so that, if while the parties were making their bargain, an officious bystander were to suggest some express provision for it in the agreement, they would testily suppress him with a common "on, of course!"" (See Shirlaw v. Southern Foundries (1926) Ltd [1939] 2 KB 206 at 227).

42. Again, at pg.201, Treitel refers to the second test for the implication of a term in fact as being the "Business efficacy test". Lord Wright in Luxor (Eastbourne) Ltd v. Cooper [1941] AC 108 at 137 described this term;

"...as one of which it can be predicated that "it goes without saying" some term not expressed but necessary to give the transaction such business efficacy as the parties must have been intended."

43. In this case, the plaintiffs claim falls within the first group, that is, terms implied in fact. It will satisfy either the Officious bystander test or the Business efficacy test.

44. Treitel then discusses further the relationship between these two tests and forms several views in relation to their relationship. I, in line with Treitel’s second view, agree that "it is sufficient to satisfy either test", so that "a term will be implied only where it is necessary in a business sense to give efficacy to a contract or where the term is one which the parties must obviously have intended" (pg.202 of Trietel and The Manifest Lipkowy [1989] 2 Lloyd’s Rep. 138 at 143). No doubt, a term cannot be implied in fact where the evidence is that one party (at least) would not have agreed to the term, even though the other (or the Court) would have regarded it as necessary to give business efficacy to the contract. Treitel at pg.203 states that "In the absence of such evidence, it seems that satisfaction of either the "Officious bystander" or the "Business efficacy" test will suffice for the implication of a term in fact.

45. Therefore, in view of the above discussion, I can conclude that either the Officious bystander test or the Business efficacy test applies here. That the defendant allowed the plaintiff to continue on the same terms and conditions, which to a bystander meant that he was continuing on the original contract, and that therefore it is implied that the contract continued from the period 1st November, 2001 to 29th July, 2005, on the same terms.

(a) Issue No. (ii) – If so, whether the plaintiff is entitled to entitlements stated in the Contract of Employment of 2001, which entitlements would have accrued from the period 1st November, 2001 to 29th July, 2005.

46. The plaintiffs claim is for payment of his outstanding unpaid entitlements which are pleaded in the Amended Statement of Claim filed on 10th December, 2007.

47. Why does the plaintiff say he is entitled to loss of entitlements or alternatively, damages for distress, etc?

48. At par.18 of the Amended Statement of Claim, the plaintiff alleges that the defendant breached clauses 4, 7, 8, 9 and 11 of the Contract/Agreement. These clauses relate to;

49. He particularised these claims at par.21 of the Amended Statement of Claim, which I have set out above. The plaintiffs claim is basically that whilst in the defendant’s employ, the defendant did not pay him the monies he is entitled to under the second contract.

50. Having found that the Contract between the plaintiff and the defendant for the period 1st November, 2001 to 29th July, 2005 is implied, the issue now is whether the plaintiff is entitled to what he claims.

51. The defendant terminated the plaintiff because of what it claims to be misconduct, etc. on the plaintiffs part. Is the plaintiff entitled to what he seeks? This is the issue that I must now address.

52. I note Ms Bakau’s submissions that this hearing should only be in relation to the aspect of liability because the damages aspect must be properly proved and argued. I agree with Ms Bakau because the plaintiff has put before me evidence of amounts he claims he is owed but which the defendant claims the plaintiff paid himself, which evidence is contained in Augustine Ravi’s affidavit. The plaintiff has not sufficiently clarified this. In my view, both parties must file affidavits properly explaining payments owing, etc. I say this because Augustine Ravi’s affidavit is only a very broad explanation of allegations against the plaintiff. Without the benefit of proper evidence, I am unable to assess one way or another what those entitlements are until after proper evidence is produced and cross-examination conducted on the materials before the Court, if further affidavits are filed. I am unable to take this any further.

53. I order that the parties return before me at another time to either make submissions or to go to a hearing on the assessment of damages.

(1) That it is implied that there is a contract of employment between the plaintiff and the defendant during the period 1st November, 2001 to 29th July, 2005;

(2) That the issue of whether the plaintiff is entitled to what he seeks and the assessment of damages are adjourned to a date in December, 2009, which hearing date will be obtained after the Status Conference conducted by Davani .J on 1st December, 2009 at 9:30 am or at another date in December, 2009, convenient to the Court;

(3) That in the interim, the plaintiff and the defendant may file affidavits, where appropriate, and to also give the relevant Notices under the Evidence Act;

(4) Costs of this hearing is reserved to after the hearing referred to in paragraph 2 hereof.

Pacific Legal Group: Lawyers for the Plaintiff
National Capital District Commission In-House Lawyer: Lawyers for the Defendant

National Court of Papua New Guinea

Bandisch v National Capital District Botanical Enterprises Ltd (No 1) [2009] PGNC 190; N3806 (29 September 2009)