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

Tembil v Waipo [2017] PGNC 299; N7005 (27 October 2017)

N7005

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 382 OF 2017
JOHN TIMOTHY TEMBIL

Plaintiff

AND:
MICHAEL WAIPO- Commissioner of Papua New Guinea Correctional Service
First Respondent

AND:

PAPUA NEW GUINEA CORRECTIONAL SERVICE
Second Respondent

Waigani: Nablu, J

2017: 4^th & 27^th October

JUDICIAL REVIEW – Assessment of damages – claim for general and exemplary damages – O.16 r, 7 National Court Rules –general damages awarded – exemplary damages refused.

Cases cited:

Bau Waulas v. Veronica Jigede (2009)N3781
Dannie Taka v. Dr Samson Amean (2006) N3070
Kamuta v. Sode (2006) N3067
Kelly Kerua v. Council Appeals Committee of the University of Papua New Guinea (2004) N2534
Lawrence Sausau v. Joseph Kumgal (2006) N3253
Mision Asiki v. Manasupe Zurenouc (2005) SC797)
Paul Mond v. Honk Kiap (2013) N5356
Paul Sireh v. Miai Larelake (2007) N3181

Counsel:

Mr N. Kopunye, for the Plaintiff
Mr V. Gonduan, for the Respondents

JUDGMENT

27^th October, 2017

1. NABLU J: This is the plaintiff’s application for damages to be assessed after the judicial review application was granted by consent on 24^th August 2017. The plaintiff was granted leave to review the decision of the Commissioner of the Correctional Service to dismiss the plaintiff from employment for disgraceful conduct on 19^th January 2017 by way of a letter dated 23^rd February 2017.

2. The consent orders effectively granted the plaintiff’s application for review and quashed the decision. The respondents’ were also restrained from evicting the plaintiff and his family from the institutional house he was occupying and they were further ordered to pay all his missed salary under his terms of employment. Furthermore, the respondents’ were ordered to pay a fixed amount of K10, 000.00 to the plaintiff as legal costs for the proceedings.

3. The background facts of the case are not disputed. The plaintiff commenced employment with the Papua New Guinea Correctional Service in 1997 and served in the Service for over 20 years until he was dismissed on the 23^rd of February 2017 for disgraceful conduct. The disgraceful conduct which the Commissioner alleged the plaintiff had committed, occurred during the time he was responsible for the co-ordination of the “haus krai” for the deceased officers. It is alleged that he threw the requisition claims to Mr Richard Mandui and said “...get this requisition signed, bloody useless”. The plaintiff stated that his outburst was due to the decision by the Commissioner not to honour the payments after an agreement was reached with the relatives of the deceased officers.

4. The matter was then investigated and the plaintiff was charged for a serious disciplinary offence and dismissed. The plaintiff’s main challenge against the decision was that the first respondent failed to follow the disciplinary procedure stipulated in the Correctional Service Act.

5. At the time the plaintiff was dismissed from the Service he held the rank of Chief Inspector and was also the Executive Officer to the Commissioner. It is not disputed that the plaintiff was on furlough leave at the time of his dismissal and was paid all his furlough leave entitlements prior to his dismissal.

6. The main legal issue for determination by the Court is whether the plaintiff has established a case for general damages. And if he has; then how much in general damages should be awarded to the plaintiff? Secondly, whether the plaintiff has established a case for exemplary or punitive damages to be awarded against the respondents? And if he has established such a case; then how much in exemplary damages should be awarded?

7. It is trite law that there are two stages of judicial review proceedings. First the applicant has to establish one or more grounds of review. If the applicant is successful then the next stage is for the applicant to make out a case for the relief sought (see Mision Asiki v. Manasupe Zurenouc (2005) SC797).

8. It is also trite law that the grant of relief is discretionary. The Court after finding that the applicant has made out the grounds of review; may still exercise its discretion to refuse relief. This discretion is codified in Order 16 r. 4 of the National Court Rules. The Rule states that relief may be refused where the grant of relief may prejudice or interfere with the rights or interest of anyone or where it would be detrimental to good administration.

9. Upon brief research of the case law, I note some cases where despite the grant of judicial review, the Court refused the relief sought (see Kelly Kerua v. Council Appeals Committee of the University of Papua New Guinea (2004) N2534; Dannie Taka v. Dr Samson Amean (2006) N3070; Paul Sireh v. Miai Larelake (2007) N3181). Furthermore, in some instances where the applicant comes to Court with unclean hands, in those circumstances the Court may exercise its discretion to refuse relief; Kamuta v. Sode (2006) N3067.

10. The Court has a wide and unfettered discretion to grant relief which include the relief of damages. Order 16 Rule 7 of the National Court Rules, states that the Court has the discretion to award damages in judicial review applications provided that two conditions are met. First, the applicant has included the claim for damages in his Statement of Support. Secondly, the Court is satisfied that if the claim had been made in an action begun by the applicant at the same time, he would have been awarded damages.

11. The question of whether damages or the amount of damages that can be awarded in a judicial review application has been the subject of judicial consideration. The Court has imposed damages for distress and inconvenience in judicial review proceedings. The award of damages is discretionary.

12. In Lawrence Sausau v. Joseph Kumgal (2006) N3253and Bau Waulas v. Veronica Jigede (2009) N3781 the successful applicants were awarded K3000 and K5000 respectively. His Honour, Justice Cannings considered the suffering and inconvenience of the plaintiff greater in Paul Mond v. Honk Kiap (2013) N5356 and therefore, awarded K10,000.00 each to the eighteen (18) plaintiffs .

13. In Bau Waulas v.Veronica Jigede (supra), the plaintiff was the Acting Director for Health in the New Ireland Provincial Administration and the damages awarded were for frustration and distress. In Lawrence Sausau v. Kumgal (supra) the court awarded damages of K3000 for hardship and stress as a result of being subjected to the disciplinary process.

14. Mr Kopunye of counsel for the plaintiff submitted that liability has already been established in the present case, the first respondent committed a serious error of law when he unilaterally decided to dismiss the plaintiff without complying with the mandatory statutory procedure. The applicant’s contention that the first respondent appears to have abused his powers is supported by the evidence.

15. The State contested the case for damages on the following grounds. The main reason for the contention is that the claim for damages was not properly pleaded pursuant to Order 8 Rule 29(1) of the National Court Rules. Also that the plaintiff has not proven the damage they claimed to have suffered. I note that most of the cases submitted by counsel were mainly civil cases where the legal proceedings were commenced by writ.

16. In regard to exemplary damages, the plaintiff claims exemplary damages because there are special circumstances that warrant and justify the award of exemplary damages. The main reason is that the first respondent abused his powers. The plaintiff was dismissed for a trivial matter which could have been dealt with as a minor matter. The plaintiff claimed that the Commissioner was motivated by ulterior motive to punish the plaintiff for the alleged role which he suspected the plaintiff played in the Commissioner’s power struggle earlier.

17. On the other hand, the State submitted that exemplary damages should not be awarded because the first defendant’s action to dismiss the plaintiff was not a criminal act but an administrative act or decision therefore the first respondent is not liable for exemplary damages.

18. In the present case, the plaintiff initially claimed damages of K300,000 in the Statement of Support, however, the plaintiff reduced his claim to K20,000 for general damages and K35,000 for exemplary damages.

19. In regard to exemplary damages, I am of the view that these damages should as a matter of law and practice be pleaded properly pursuant to a civil action for example, an action for damages for tort. The applicant must properly plead and particularise the claim. A proper hearing of the evidence and matter must be conducted so that the respondents can have the opportunity to defend the allegations against them. The plaintiff is not precluded from making a claim for exemplary damages now if he chooses to do so. Accordingly, I refuse the claim for exemplary damages.

20. In regard to the claim for damages. The plaintiff claims mental stress and hardships. Notwithstanding the fact that he does not specify exactly what type of hardship he suffered. I consider that mental stress, embarrassment and suffering to be greater because of the plaintiff’s rank as a Chief Inspector and that he had a clean disciplinary record prior to his dismissal. His standing and recognition in the Service as well as the community may have been tarnished.

21. However, I am of the view that K20, 000 is an excessive amount. The Court when weighing these considerations must be mindful that such an award of damages should not result in applicants unjustly enriching themselves. I consider that K5000 in damages for mental stress and suffering is appropriate in the present case. The plaintiff was on furlough leave and therefore, was not dismissed whilst in office which would undoubtedly be embarrassing for him. This is a judicial review application and in my view the discretion to grant general damages should however be exercised sparingly. The purpose of judicial review is to review administrative decisions rather than considering whether a respondent is liable for damages. I also note that the Court fixed legal costs of K10, 000 which in my view adequately compensates the plaintiff for any out of pocket legal expenses.

22. In regard to costs of this application, I note there was no specific claim for costs so I will order that each party bear their own costs. I will also order that interest at the rate of 2% on the judgement sum until satisfaction of the judgement sum.

23. For the foregoing reasons and in the exercise of my discretion, the first and second defendants to pay K5000 as general damages for mental stress and hardship. Interest at the rate of 2% per annum is applicable on the judgment sum until satisfaction of the judgment sum. The relief of exemplary damages is refused. Each party to bear their own costs. Time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

Orders accordingly,
___________________________________________________________
Kopunye Lawyers: Lawyer for the Plaintiff
Office of the Solicitor-General: Lawyer for the Respondents