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Robmos Ltd v Punangi [2017] PGNC 3; N6585 (12 January 2017)

N6585PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 396 OF 2009


BETWEEN

ROBMOS LIMITED

Plaintiff


AND

FREDRICK M PUNANGI

First Defendant


AND

MICHAEL THOMAS SOMARE AND THE PERSONS NAMED IN SCHEDULE 1

Second Defendant


AND

PHILIP STAGG AND THE PERSONS NAMED IN SCHEDULE 2

Third Defendant


AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Respondent



Waigani: Kandakasi, J.

2014: 03rd December

2017: 12th January


CONTRACT LAW - Public tender process – Purpose of - To seek and secure the best supply of goods and services for the best possible price from suitably qualified, experience and competent bidders – Order of consideration for Central Supply and Tenders Board and other decision makers - Appropriately qualified, experienced and competent nationals first and where there is one lacking consider foreign bidders - Tender process breached - Tender awarded to foreign bidder for higher price over only one qualified, capable and competent national company – Judicial review proceedings takeout successfully resulting in set aside of tender award – No appeal or review against – Effect of – Prima facie case of liability against defendants – Plaintiff produced evidence – Defendants failed rebut case against them – Liability established against Defendants – Public Finance (Management) Act 1995


DAMAGES FOR TENDER BREACHES – Assessment of – Basis for assessment of damages – Contractual more than on the basis of tort - Expectation net income loss from tender price – Actual evidence and oral evidence adduced – No rebuttal of – Expectation net income loss from tender price awarded.


JUDGMENT & ORDERS – Facts and basis for Plaintiff’s claim already tested judicially and determined against the Defendants in a judicial review proceeding – No appeal or reviews – Effect of – Res judicata and or issue estoppel does not arise given different nature of proceedings – But a rebuttable prima facie case is presented – Failure to rebut prima facie case – Judgment for the Plaintiff – Sections 45 and 47 of the Evidence Act (Chp. 48).


VACARIOUS LIABILITY – State servants and agents breaching statutory process and procedure – Failure to cooperate with State, turn up in Court and offer evidence in defence of the State – Consequence of – State servants and agents responsible for the tort or breach of statutory and other duties resulting in the damages and judgment against the State are primarily liable – State liable to satisfy judgment and is entitled to seek contribution and or recovery from the responsible servants or agents.


LAWYERS DUTY – Lawyers have a duty to act promptly on clients instructions and take all steps necessary to resolve the client’s case within a reasonable time - Costs and interests can be minimized by earlier resolution of court proceedings – Where there is already a judgment counsel is duty bound to seek and secure clients instructions to actively pursue and resolve a matter by direct negotiations or by ADR and mediation – Where there is good reason to litigate, lawyer to appear in court and ably represent his or her client - Failure by lawyer to discharge his or her duty – Effect of – Costs and interest unnecessarily incurred – Lawyer responsible for – Client can seek recovery from lawyer – Rule 8 (4) – (7) Professional Conduct Rules 1989 – ADR Rules 2010.


Papua New Guinea Cases cited:
Able Construction Ltd v. W.R. Carpenter (PNG) Ltd (2014) N5636
AGC (Pacific) Ltd v. Sir Albert Kipalan (2000) N1944
Alex Awesa v. PNG Power Limited (2014) N5708
Andrew Moka v. Motor Vehicles Insurance (PNG) Limited (2001) N2098
Aundik Kupil v. The State [1983] PNGLR 350
Edward Etepa v. Gari Baki (2015) SC1502
Eremas Wartoto v. The State (2015) SC1411
Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC705
For example in Wantok Gaming Systems Ltd v. National Gaming Control Board (2014) N5809
Grand Chief Sir Michael Thomas Somare v. Chronox Manek & Ors (2011) SC1118
Helen Jimmy v. Paul Rookes (2012) N4705
Henry Torobert v. Mary Torobert (2012) SC1198
Jackson Mari v. Dr Sano Tahong & Ors (2015) N6241
James Liwa v Markis Vanimo (2008) N3486
John Kaina v. The State [1990] PNGLR 292
John Kul v. The Independent State of Papua New Guinea (2010) N3898
Koitachi Farms Ltd v. Kemoko Kenge (2001) N2143
Koitaki Plantations Ltd v. Charlton Ltd (2014) N5656
Limited v. ICC & Digicel (PNG) Limited (2007) N3144
Manorburn Earthmoving Limited v. The State (2008) N3287
MVIL v. Kauna Kiangua (2015) SC1476
NCDC v. Yama Security Services Pty Ltd (2003) SC707
Rabaul Shipping Limited v Peter Aisi (2006) N3173
Reference by DR Allan Marat, In the matter of Prime Minister and NEC Act 2002 Amendments (2012) SC1187
Telikom PNG Limited v. ICCC & Digicel (PNG) Limited (2008) SC906
The State v. Brian Josiah (2005) SC792
The State v. Downer Construction (PNG) Ltd (2009) SC979 Telikom PNG
Tin Siew Tan v. Thomas John Pelis [1999] PNGLR 31
Wamena Trading Limited v. Civil Aviation Authority (2006) N3058.
Work Cover Authority of NSW v. Placer (PNG) Exploration Limited (2006) N3003

Overseas Cases cited:
Allied Maples v. Simmons & Simmons [1995] EWCA Civ 17; [1995] WLR 1602; BAILII [1995] EWCA Civ 17
Biggin & Co Ltd v. Permanite Ltd [1951] 1 KB 422
Chaplin v. Hicks [1911] UKLawRpKQB 104; [1911] 2 KB 786
Commons [2000] 67 Con LR 1; BAILII [2000]
Commons [1999] EWHC TCC 195; BAILII [1999] EWHC Technology 199
Construction Ltd v St. John Roman Catholic School Board [1996] 28 CLR (2d) 1
Harmon CFEM Facades UK Ltd v The Corporate Office of the House of Harmon CFEM Facades UK Ltd v The Corporate Office of the House of Emery
Henderson v. Henderson [1843] EngR 917; (1843) 3 Hare 100; 67 ER 313
Hollington v. Hewthorn [1943] 1 KB 587
Melbourne Authority v. Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589


Counsel:

M. Goodwin, for the Plaintiff
R. Gelu, for the Defendants


12th January, 2017


1. KANDAKASI J: Robmos Limited is a Papua New Guinean company (Robmos) suing for damages for the expectation net income loss for a tender it should have won but for the negligence or deliberate illegal and or improper actions of certain servants of the State. Through a judicial review proceeding, Robmos was able to secure a decision nullifying an award of the tender to an Australia company which bided at a higher price than Robmos. Given that decision, Robmos argues that, liability has been established against the State. Consequently, it argues for an award of the damages it is claiming. Despite, Mrs. R. Gelu of counsel appearing for them, the Defendants have not been actively defending this proceeding.


Issues for determination


2. The issues this Court must determine are as follows:


(1) Whether the decision in the judicial review proceeding quashing the award of the tender to the Australian company has the effect of resolving the issue of liability against the Defendants in this case?


(2) If the answer to the first question is “yes”, is Robmos entitled to recover the expected tender value of K1, 766, 250.00?


Background facts


3. The relevant background facts are straight forward. They are contained in the following affidavits by Tim Ward sworn on:


(a) 1st February 2011and filed on 7th February 2011;

(b) 22nd June 2014 and filed the same day; and

(c) 31st January 2014 and filed on same day.


4. No affidavit has been filed by or for and on behalf of any of the Defendants. Hence, Robmos’ evidence stands uncontested in any manner or form.


5. From the evidence before the Court, it is clear a call for tender was placed by the State to which Robmos responded with a formal tender. It submitted its tender on or about 21st April 2005, through the Director of Supply of the Papua New Guinea Defence Force (PNGDF). The tender was to:


(1) supply clothing apparel, ceremonial uniforms, commemorative and related items;


(2) deliver the goods for which the tender was invited within 8 to 12 weeks to the order of Murray Barracks Stores; and


(3) supply the items for a price of K1,766,250 inclusive of all charges for freight and all government taxes and duties.


6. On a date between 22nd July 2005 and 1st September 2005, the Fourth Defendant formally awarded the tender to a company called Australian Defence Apparels Limited. Australian Defence Apparels Limited (the foreign company) was a foreign company and was a company not resident in Papua New Guinea. Robmos was the only national tenderer whose tender was before the Second Defendant on 22nd July 2005 and at a cheaper price within the parameters of the tender.


7. Being aggrieved by the decision to award the tender to the foreign company, Robmos sought judicial review of the decision. The National Court after hearing its application granted Robmos’s application on 14th May 2008. In so doing, the Court held amongst others that:


(1) the Second Defendant’s decision to issue a closed tender was ultra vires its powers;


(2) the contract awarded by the Third Defendant to Australian Defence Apparels Ltd was illegal; and


(3) the Third Defendant is bound by the Public Finance (Management) Act.


8. The Court also held that Robmos was at liberty to file a claim for damages against the First, Second and Third Defendants in separate proceedings. This claim follows that decision.

Issue 1 – Effect of the decision in the judicial review application


9. I will deal firstly with the question of whether the decision in the judicial review application determined liability for this claim. Robmos argues that the National Court has already found out that the Defendants have breached their statutory duty to properly apply the Public Finance (Management) Act 1995 and Financial Instructions and in so doing they acted ultra vires their powers. That resulted in the Defendants failing to properly award the tender to Robmos. Consequently, Robmos suffered loss and damage in not being awarded the contract. Hence, it is entitled to bring a claim for damages arising out of the breach of statutory duty that were vested in the Defendants. Accordingly, Robmos argues that liability has already been established in its favour by the decision in the judicial review action.


10. This argument appears to bring into play the principle of once a court of competent jurisdiction as come to a final decision on any matter, the decision is binding on all the parties and the issues thus determined cannot be litigated again. This principle is captured in the common law based doctrine of res judicata and or issue estoppel.[1] However, the principle of res judiciata does not apply if the cause of action is different, even though the facts might have been litigated.[2] Application of the principle is not automatic. As a matter of formality, there must be evidence or proof of the decision finally disposing of the matter in dispute as between the parties on its merits.[3] It is settled law that a party must raise all of the facts and the issues that ought to be raised in any proceeding before the Court. Once a decision is made that puts an end to all the facts and or issues that should have been raised before final judgment.[4]


11. On the doctrine of issue estoppel, the principle has become known in Australia as the Anshun estoppel after the decision of the High Court in Port of Melbourne Authority v. Anshun Pty Ltd.[5] As already mentioned, this is based in the common law. Sir James Wigram VC in Henderson v. Henderson,[6] stated the relevant principle at common law in these terms:

“Where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

12. In the Anshun case, the High Court of Australia per Gibbs CJ, Mason and Aickin JJ at p. 602 in due recognizance and acceptance of these principles said:


“...there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.”


13. As I noted in my dissenting judgment in The State v. Downer Construction (PNG) Ltd,[7] these principle has been adopted into our jurisdiction from as early as the decision by Sakora J., in AGC (Pacific) Ltd v. Sir Albert Kipalan[8] where his Honour said:


“In this respect, it is useful to note for our present purposes (and assistance) the impact of the Australia High Court decision in Port of Melbourne Authority v. Anshun Pty Ltd (1981) HCA, which is that a party will be estopped from bringing any further action that arises out of the same subject matter as an earlier action. This decision emphasizes the importance of the doctrine of res judicata, as operating to prevent prejudice and unfairness to a party, more particularly a defendant, being burdened and saddled with multiplicity of allegations and claims to answer. The doctrine also operates to confirm the twin doctrines of finality and certainty in judicial-making process.”


14. Then as I further noted, I adopted and applied these principles in a number of my own decisions in the National Court. One of my then most recent decision was in the matter of Telikom PNG Limited v. ICC & Digicel (PNG) Limited[9] which went to the Supreme Court and the Supreme Court effectively endorsed them in its decision in Telikom PNG Limited v. ICCC & Digicel (PNG) Limited.[10]


15. Obviously, the effect of these principles is twofold. Firstly, a judicial decision stops or precludes any party to any proceedings from disputing against any other party thereto in any subsequent proceeding, the correctness of the earlier decision in law and fact other than by way of an appeal or review. The same issue cannot be raised again between them. This principle extends to all matters of law and fact which the judgment decree or order necessarily established as the legal foundation or justification of the conclusion reached by the Court. Secondly, by virtue of the decision, the right or cause of action set out in the proceeding is extinguished, merging in the judgment which is pronounced. The result is that, no further claim may be made upon the same cause of action in any subsequent proceedings between the same parties or their privies.[11]


16. In the present case, Robmos and the Defendants are the same as those in the earlier judicial review proceeding. This and the earlier proceeding arise out of the same incident or set of facts. The only difference is in the nature of the proceedings and the kinds of relief sought in the two proceedings. The earlier proceeding concerned the process leading to the award of tender to Robmos’ competitor, a foreign company, Australian Defence Apparels Ltd. The relief sought and available was a set aside of that award of tender and not strictly, a case of Robmos seeking to establish negligence and hence liability against the Defendants to recover its damages or loss. This current proceeding seeks to do just that. Hence, in my view, strictly speaking, it is not a case of the principle of res judicata or issue estoppel arising and applying. Although not expressly stated, Robmos, is not arguing for an application of these principles. This I consider is Robmos’ acceptance of these principles not apply in this case.


17. The correct position in my view would be similar to two or more possible proceedings arising out of the one incident as in the case of a motor vehicle accident resulting in personal injuries and damages to property. In such a case, the driver would be charged with driving without due care and attention. He would also be sued for personal injuries but for the compulsory third party motor vehicles insurance scheme which allows for proceedings against the Motor Vehicles Insurance Limited (MVIL), if the vehicle he was driving was a private vehicle. If however, the vehicle was owned by the State, the State would be the possible defendant. The owner of the vehicle, if he or she so choses, might also be able to sue the driver for damages for damages done to his vehicle, if any. Let us say the charge of driving without due care and attention proceeds and the driver is found guilty and convicted on the charge. On the strength of such a conviction let us say, those who suffered personal and property injuries sue for damages against the MVIL or the State or the driver and owner of the vehicle, as the case might be.


18. At common law as represented by decision in Hollington v. Hewthorn,[12] no evidence of a criminal conviction is admissible in subsequent civil proceedings to prove any facts on which the conviction was based. That meant evidence of a prior conviction was of no use. Hence, a plaintiff in any subsequent legal proceeding had to prove his case in the normal way. Fortunately, for PNG, that strict position is not applicable. Sections 45 and 47 of the Evidence Act (Chp.48) changed that position to enable the admission into evidence in later proceedings certificates of conviction in prior criminal proceedings. These provision read:


“45. Convictions

(1) The conviction by a court of a person for an offence may be proved by—

(a) producing a certificate containing the substance of the conviction purporting to be signed by the officer having the custody of the records of the court; and

(b) showing that the person whose conviction is sought to be proved is identical with the person named in the certificate.

(2) It is not necessary to prove the signature of the officer referred to in Subsection (1) or his official position, or the truth of a statement made by him.


47. Use of convictions

(1) In any civil proceedings the fact that a person has been convicted of an offence by or before a court in the country or by a court-martial in the country or elsewhere is, subject to Subsection (3), admissible in evidence for the purpose of proving that he committed the offence, whether he was so convicted on a plea of guilty or otherwise and whether or not he is a party to the proceedings, but no conviction other than a subsisting one is admissible in evidence under this section.

(2) The fact of a conviction is not admissible in any civil proceedings merely to prove that the person convicted has a propensity to behave in a particular manner.

(3) In any civil proceedings in which a person is proved to have been convicted of an offence by or before a court in the country or by a court-martial in the country or elsewhere—

(a) he shall be taken to have committed the offence unless the contrary is proved; and

(b) without prejudice to the reception of any other evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document that is admissible as evidence of the conviction, and the contents of the information, complaint, indictment or charge-sheet on which the person in question was convicted, is admissible in evidence for that purpose.

(4) Where in any civil proceedings the contents of a document are admissible in evidence under Subsection (3), a copy of the document, or of the material part of the document, purporting to be certified or otherwise authenticated by or on behalf of the court or authority having custody of the document, is admissible in evidence, and shall be taken to be a true copy of the document or the part of the document unless the contrary is shown.

(5) This section does not prejudice the operation of an enactment by which a conviction or a finding of fact in any criminal proceedings is made conclusive evidence, for the purposes of any other proceedings, of a fact.”


19. As early as the decision in Aundik Kupil v. The State,[13] per Bredmeyer J acknowledged that it is now easier to prove prior conviction because s. 47 of the Evidence Act abolishes a large part of the rule in Hollington v Hewthorn (supra). It has to be noted however that, a careful reading of the provisions of ss. 45 and 47 makes it clear that, these provisions do not fully relieve a plaintiff in subsequent proceedings of the onus of proving his or her case. This means caution and care must be exercised when dealing with prior convictions, as demonstrated by the decisions of the Supreme Court in John Kaina v. The State[14] and other decisions.[15]


20. Then as Canning J., ably observed and stated in Helen Jimmy v. Paul Rookes,[16] proof of a defendant’s conviction in an earlier criminal proceeding is one thing but the need to prove the essential elements of a plaintiff’s subsequent civil claim is another. It is a question of what weight to be placed on the prior conviction. His Honour then said:


“In my view the weight to be attached to evidence of conviction of a driver for a traffic offence in subsequent civil proceedings that relate to the same facts as those considered by the court which convicted the driver, is this: a natural inference arises that the driver was negligent (Anis v Taksey (2011) N4468, Omonon v Kuanga (2012) N4686). An evidentiary burden is then cast upon the defendant to adduce evidence to rebut that inference. This approach has been propounded in a number of British decisions which expressed disapproval of the rule in Hollington v Hewthorn, eg Goody v Oldham’s Press Ltd [1967] 1 QB 333, Barclays Bank v Cole [1967] 2 WLR 166, Stupple v Royal Insurance Co Ltd [1971] 1 QB 50, McIlkenny v Chief Constable [1980] 2 All ER 227. The legal burden of proving the case does not shift from the plaintiff but common sense dictates that the defendant needs to bring evidence to throw doubt on the correctness of the conviction.”


21. Many lawyers and or their clients have taken a certificate of conviction as conclusive on the question of negligence in the kind of scenario we are dealing with here. Such an argument was put before Makail J., in John Kul v. The Independent State of Papua New Guinea.[17] There, counsel for the plaintiff, Mr. Kopunye argued that since the defendant’s driver was convicted of driving without due care and attention, there was clear admission of liability and a certificate of conviction from the District Court on a charge of driving without due care and attention settled the issue. His Honour addressed the issue in the following terms:


“In relation to admissions in the evidence of the defendant, a review of the affidavit of David Takpe ... neither show the defendant’s admission of liability nor fault. On the contrary, it is apparent that Constable David Takpe as the driver of the motor vehicle denied that he drove the motor vehicle negligently or was at fault. This is clear from his explanation at paragraphs 10-19 of his affidavit... In my view, the certificate of conviction of Constable David Takpe by Minj District Court produced by Mr Kopunye is not an admission of liability or fault in a negligence action. It is evidence of the fact that Constable David Takpe was convicted by Minj District Court of driving without due care and attention and that is it: see section 47 of the Evidence Act, Chp 48.


An action in negligence is different from a criminal proceeding based on a charge of driving without due care and attention although the facts giving rise to both proceedings and the parties may be the same. However, the difference is that, the elements of establishing negligence are not the same as those for driving without due care and attention under section 17(2) of the Motor Traffic Act. The other difference is that, the onus of proof is higher (beyond reasonable doubt) in a criminal proceeding than in civil proceeding. That means, the plaintiff still bears the onus of proving liability in this case on the balance of probabilities and the certificate of conviction is merely evidence of the fact that Constable David Takpe was convicted of driving without due care and attention. It does not establish liability per se. For these reasons, I am not satisfied that the defendant made admissions in its witness’s evidence (affidavit).”


22. On my part in Andrew Moka v Motor Vehicles Insurance (PNG) Limited,[18] I had a similar situation where a certificate of a conviction of a driver for dangerous driving causing injuries was presented. In keeping with the relevant principles as I discussed above I said:


“These documents supported the plaintiff's evidence. In addition to that, they confirmed that police investigated into the accident and charged the driver of the Corolla, Martin Vele. Mr. Vele was found guilty of dangerous driving causing injuries to the Plaintiff. The certificate of conviction established a prima facie but rebuttable case of negligent driving resulting in injuries to the Plaintiff. The Defendant called no evidence. So the plaintiff's evidence stood unrebutted.”


23. In the case before me now, understandably there is no certificate of any conviction. However, there is in evidence the decision of the National Court, per her Honour late Davani J. Also, the plaintiff, Robmos claims negligence against the Defendants and sets them out with particulars in paragraphs 16 to 18 of its Statement of Claim. Although the Defendants have filed and served a defence, they failed to take any meaningful step to defend this claim. That has turned out to be the case despite the Court giving them ample time to them to do so. The decision of the National Court supports each element of Robmos’ claim in negligence. In short, the Defendants had a clear duty of care to the tenderers, including Robmos, to properly administer the tender process in accordance with the Public Finance (Management) Act 1995 and Financial Instructions. They did not follow the process provided for by statutory law and as strengthen by numerous decisions of the National and Supreme Courts like the decision of the Supreme Court in Fly River Provincial Government v. Pioneer Health Services Ltd.[19] Instead, it is clear they acted in breach of their statutory duty and in so doing, they acted ultra vires their powers. Consequently, they failed to award the tender to Robmos which was the only PNG national company which tendered for the contract and met all of the requirements including, a lower price than the one tendered for by a foreign company.


24. Based on my limited experience at the bench dealing with a good number of either failed and incomplete or otherwise problematic public contracts, I note this case represents what has become a bad and corrupt practice or attitude in the Central Supply and Tenders Board and others who are tasked and or otherwise award contracts for supply of goods and services to the State or any of its departments, agents and or instrumentalities. Instead of giving priority to PNG nationals who have the necessary experience, skills, expertise and the capabilities or the abilities to deliver on a contract, they appear to award contracts to foreigners some of whom are incapable yet very expensive. Sadly, awarding contracts to foreigners over nationals allow for a substantial part of the contract price to be sent out of the country to the contractor’s home country or elsewhere. It deprives our country of an opportunity to have such funds remain and circulate within the country’s economy through the awarding of contracts to capable nationals. There is nothing wrong with a decision maker awarding a contract to a foreigner only if and when there is no equally if not better equipped and capable national. By this, I am by no means encouraging what also appears to be a bad practice of awarding contracts to national companies or individuals whom the decision makers know are incapable both in terms of resource and ability to deliver on the contracts. A good example of this is the case of Eremas Wartoto v. The State.[20] There a contract involving several millions of Kina for repair works to the Kerevat National High School was awarded without going through the public tender process. The contract was awarded to a national company or person who was incapable of delivering on the contract and yet the contractor was paid substantial sums of money without the goods and services being delivered. The money was not employed for the purposes of completing the contract but were applied toward meeting the contractor’s personal needs such as, a retiring of bank loans and other expenses.


25. These kinds of decision making by decision makers result unfortunately, in a defeat of the whole intend and purpose of the Public Finance (Management) Act and such other legislation as elaborated by the Supreme Court in Fly River Provincial Government v. Pioneer Health Services Ltd.[21] That purpose in a nutshell is to ensure that the State or the people of Papua New Guinea get the best possible goods and services for the best possible price from a person or company which has the necessary proven ability and expertise. A defeat of the purpose of the law means no goods and services satisfactorily delivered or half complete goods and services to our people which in turn means a waist of public funds. In continuing in these kinds of decisions by decision makers they are ignoring a simple fact and history, for example, it has taken the Romans to build historical Rome. It took the Chinese to build the Great Wall of China and the Egyptians to build the great Egyptian Pyramid and so on down the line to build the many great structures, cities and nations of the world. In the case of Egypt and the Great Wall of China, slaves may have been used but the Egyptians and the Chinese respectively had the vision and were in charge of the works. It therefore, behoves our leaders and people in a position to make decisions involving public funds for public goods and services to have faith and confidence in our own people in the national interest. The national interest lies in utilizing the many natural resources and talent the nation has in building a nation from one of a borrower with many debts status to a powerful economy with no or little debt and advance into a well-developed country where all due process are followed and decisions are made on merit. It also dawns on the many national businesses and business men or women to be truthful and honest with themselves and bid for and secure public contracts within their means or capabilities and expertise and help build our nation rather than draining the blood out of our struggling economy and hence our country. Any decision maker who does not adhere to this national interest and continues in making decisions outside the spirit and intention of the Public Finance (Management) Act and other similar legislation should be removed from office and be visited with personal liability for the clearly wrong and illegal decisions they make.


26. In the present case, her Honour the late Davani J., found in the judicial review proceeding that, there was a breach of the statutory requires for the award of contracts for the supply of defence force goods. That decision demonstrates a prima facie case against the Defendants. It was open to them to call appropriate, credible and convincing evidence to rebut it and present a most persuasive argument against the effect of the judgment in this case. Despite ample time and opportunity given to them through senior State lawyer, Mrs. R. Gelu, they failed to make use of those opportunities. These failures include a failure to file and make any submissions against Robmos’ claim. The effect of all these is that, the Defendants have failed to rebut the prima facie case Robmos has established against them through the evidence of the previous judgment and the pleadings as well as the evidence it has placed before this Court. In the circumstances, I have no hesitation in finding that Robmos has establish its case against the Defendants on the required standard of proof, which is on the balance of probabilities. I find therefore that, the Defendants are liable in damages to Plaintiff, Robmos Limited both severally and jointly.


Issue 2 - Is Robmos entitled to recover its expectation loss of profit by way of damages?


27. This now paves the way for the Court to proceed to consider the second issue, which concerns Robmos’ damages. Having determined the question of liability in its favour, there can be no doubt that Robmos is entitled to damages. The only question is, what is the measure of its damages?


28. The Affidavit of Tim Ward, sworn and filed on 31st January 2014, contains and sets out Robmos’ evidence of its damages. Included in the evidence is an accountant Zanie Theron of Deloitte calculation of Robmos’s damages dated 3rd June 2011, which is annexure Annexure “C” to the said affidavit. From this evidence, the pleadings and submissions for Robmos, it is clear that, its claim in damages is for expectation loss of profit in not being awarded the tender. In other words, Robmos is claiming in damages the amount it could have made from the tender contract had it been awarded the contract under a due and proper administration of the tender process by the Defendants.


29. Learned counsel for Robmos, ably assisted me with submissions which I find are directly on point and very useful. They cover the position in this kinds of claims at international law, at common law and according to PNG law. Starting with the position at international law, I accept that, the European Union has a directive that is directly on point and is representative of the position at international law. It is Article 2 (1) of Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007[22] which states that member States of the European Union must have a regime for awarding damages to persons harmed by an infringement of commercial tender procedures.


30. Generally, at common law or at English law a party is entitled to recover damages for being deprived from obtaining its benefits from a contract regardless of any uncertainty in assessing damages. The case of Chaplin v. Hicks[23] is on point. There the Court at page 792 said:


“The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages.”


31. Later in the case of Biggin & Co Ltd v. Permanite Ltd [24] the Court added:


“Where precise evidence is obtainable, the Court naturally expects to have it (but) where it is not, the Court must do the best it can.”


32. Subsequently in Allied Maples v. Simmons & Simmons[25] the Court applied Chaplin v Hicks (supra) and confirmed that at common law a court may evaluate damages on a mere chance of success. That would be possible through making an informed judgment of what results would have been achieved had it not been for the breach. The judgment examined case authorities on loss of chance and opportunity cases. In so doing it noted that damages have been awarded on more speculative facts.


33. As could be seen from the foregoing, at common law or English law, the law and the courts’ recognition and acceptance of expectation loss claims goes as far back as Chaplin v Hicks (supra) in 1911. Later but well before the EU directive the law has developed into awarding damages for tender breaches. Recent foundation for this position of the law is found in legislation and by case law. The decision in Harmon CFEM Facades UK Ltd v The Corporate Office of the House of Commons[26] (Harmon 1) and Harmon CFEM Facades UK Ltd v The Corporate Office of the House of Commons[27] (Harmon 2) are relevant. The decision in the first case is direct authority for the proposition that a victim of tender process breach has a right to claim damages for loss of profit flowing from such a breach. The Court applies the common law right to claim an expectation loss of chance of being awarded a contract which was ultimately carried out by another contractor. At page 26 paragraph 259, Judge Lloyd QC states:


“As a matter of general approach, I consider that where compensation is sought by a tenderer for being deprived of an opportunity to be awarded the contract, the approach should be to award damages on a “contractual” basis rather than on a tortious basis, although the remedy is a statutory remedy and usually the assessment of damages for breach of a statutory duty akin to those for a comparable tort.”


34. At page 87 paragraph 266, the learned judge stated:


“In summary therefore Harmon is entitled to recover its tender costs, taken by themselves, on the grounds that it ought to have been awarded the contract and would then have recovered its costs. It is not therefore truly an expression of a chance for the purposes of “loss of chance” but more of probability.”


35. In both cases, the court also awarded loss of profits flowing from the statutory breaches, calculated on a “contractual” basis. In each case, the Court looked at the probability of the loss of chance. In Judge Lloyd QC’s decision, under English Law where in the public sector competitive tenders are sought and responded to, a contract comes into existence whereby the prospective employer impliedly agrees to consider all tenders fairly.[28] The decision in Harmon 1 also examined the position under Canadian Law in some detail. It then confirmed that there is a universality of systems of law accepting damages claims for breach of tender processes. The Canadian Court’s decision was in the case of Emery Construction Ltd v Ste John Roman Catholic School Board,[29] support the proposition in the Harmon cases. The proposition is that a contract exists at common law against a breach of statutory duty, to treat all tender contractors fairly and appropriately, thereby warranting an assessment of damages on a contractual rather than a tortious basis.


36. The principles enunciated in Chaplin v. Hick (supra) have been adopted and applied generally in PNG. In Rabaul Shipping Limited v Peter Aisi,[30] Lay J., as he then was, considered a number of cases in which the Courts in PNG have adopted and applied that decision in the following manner:


“57. In a number of cases in this jurisdiction the difficulties in assessment of damages has not prevented the judge from making an assessment. Reference has been made to the words of Vaughn Williams LJ. in the case of Chaplin V. Hicks [1911] UKLawRpKQB 104; [1911] 2 KB 786 at 792:


“The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages.”


The following observations of Devin J. in Biggin & Co Ltd. v Permanite Limited [1951] KB 422 at 438, have also been quoted:


“Where precise evidence is obtainable, the court naturally expects to have it, where it is not the Court must do the best it can.”


58. See for example Wilhelm Lubbering v Bougainville Copper Ltd. [1997] PNGLR 183; Yange Lagan v The State (1995) N1369 for cases where those statements have been applied.


59. In my view in the English cases referred to, what the judges intended to convey, was that if the facts of the case will not admit of precise evidence or evidence which can provide a certainty for assessment of damages, then the court must do the best it can. The principle is most often applied in cases of non pecuniary loss. I do not think the English court intended to say that where the Plaintiff has failed to adduce evidence which should be available, the court can invent a figure to make up for the oversight on the part of the Plaintiff in proving its case.”


37. In the case before it, the National Court determined that net loss of profit could be awarded based on prior period of profit calculations properly proved. However, no such evidence was produced and that prevented the Court from deciding in favour of the plaintiff which saw a dismissal of the claim. The Court noted that, unlike some village based business operations, it would have been lot easier for the plaintiff to produce evidence of its operations as a business and produce evidence of its gross and net income after allowing of expenses. This could have been done by a proper accountant’s calculations and report.


38. Similarly, in James Liwa v Markis Vanimo,[31] Justice Makail declined to awarded damages for expectation loss of profits in a claim for the plaintiff not being able to operate a PMV due to an agent of the State withholding registration documents. The Court found that the plaintiff did not produce any evidence of doing business in the proper way in terms, registration as a business, tax returns and properly prepared accounts accounting for the alleged businesses operations showing amongst others, the alleged business’ level of income, expenditure and net profit. In the circumstances, the Court found the claim was speculative.


39. Based on the foregoing discussions, I accept the submissions for Robmos by its learned counsel Mr. Goodwin that there is significant judicial support for the Plaintiff’s claim for damages in the case before me. The authorities for claiming damages for statutory breach, particularly tender process breaches, is well established at common law, and is internationally accepted, with legislative foundation in the European Union and elsewhere. I also accept that, recent English authorities support awards for loss of profits flowing from statutory breach to be calculated on a “contractual” rather than a tortious basis.


40. It is also clear from a reading of the cases and learned counsel for Robmos’ submission that, the Harmon cases, particularly Harmon 2, gives an exhaustive analysis of matters to be considered in determining the quantum of net profit loss to an aggrieved tenderer. I accept the submission also that in assessing damages each case has to be considered on its on merits. The process can be assisted by two basic starting propositions namely:


(1) Actual evidence of the loss such as an accountant’s report; and/or


(2) Oral evidence from the Plaintiff where there is insufficient actual evidence and no contrary evidence is produced.


41. Most of the cases that adopted and applied Chaplin V. Hicks (supra) in PNG to date involved police raid cases resulting in damage and loss to a number of people’s properties and alleged breaches. Most of those claims were by people based in the villages and or people who kept no proper records of their business and substantially unknown to many people including the State. An exception to that was the case of Rabaul Shipping Limited v. Peter Aisi (supra). There Lay J. correctly distinguished that case from the rest in the following way at para 30:


“I distinguish that case from the present case on two bases:

1. We are not dealing with a trade store in a remote village, we are dealing with a substantial business operating a number of vessels, in a main town, the existence of which is well known to the Defendants by reason of its licensing and survey activities in relation to those vessels. In particular, the existence of the vessel in question is known to the Defendants;

2. The evidence adduced for the Plaintiff is not an accountant’s hypothetical based on some assumptions, but calculation based on what the witness says are actual operating figures.”


42. His Honour also observe at paragraph 33:


“I did not read the cases relied upon by the Defendant as laying down a rule that for every claim for damages the Plaintiff must produce corroborative documentation. I do not think that the cases relied upon for the Defendants take the principles of evidence in proof of damages any further than this, that if the general circumstances surrounding the making of the claim and the Plaintiffs evidence give rise, in the mind of the judge, to a suspicion that the claim is inflated or not bona fide or otherwise not in keeping with the expectations a reasonable person would have in respect of that type of claim, in those circumstances, the court is entitled to require some independent evidence, or some supporting documentation, which makes the claim or the quantum of the claim more probable than not.”


43. Then for the case before him, His Honour found at paragraphs 42 and 43 that:


“The Plaintiff’s witness is an accountant with a good many years’ experience as Financial Controller of the Plaintiff. I do not find his evidence either incredible or unreasonable. He impressed me in the witness box as a competent person. I find no reason to reject the evidence which he has given.


I distinguish the cases relied upon by the Defendants on the basis that this is not a case in which the Plaintiffs evidence is inherently improbable, nor does the evidence give rise to any suspicion that the claim is inflated, not bona fide or otherwise not within the expectations of a reasonable person for this type of claim in the circumstance of this case.”


44. Applying these principles to the case now before me, I find the plaintiff, Robmos has presented its case on a contractual basis rather than on the basis of a tort. In support of its claim, it has presented both actual and oral evidence. These evidence covers both prior profit and loss, and a substantial decrease in net profit since 2005 when the tender breaches occurred. The loss of the contract price, is the actual loss of Robmos’ net profit which comes to K1,065,161.80. The evidence is in the uncontested accounting report from Zanie Theron of Deloitte dated 3rd June 2011 as well as the sworn affidavit evidence of Tim Ward. This is the contractual and actual loss Robmos suffered as a result of the Defendants’ tender breaches. There is no argument or evidence from any of the Defendants that is properly before me which rebuts Robmos’s evidence and submissions. This, as already noted, is the case despite numerous opportunity given to the Defendants to present any such evidence or submissions. Thus Robmos’ claim stands uncontested and unrebutted.


45. Additionally, Robmos claims in its pleadings for damages for loss of profits for a number of years subsequent to the tender breaches. This is readily calculable and represents a true and determinable loss and appears in the circumstances to be a fair and reasonable claim supported by the evidence before the Court. However, Robmos decided to abandon this part of its claim. Hence, Robmos claims only for the uncontested contractual and actual loss of K1,065,161.80 for damages. Accordingly, I have not hesitation in awarding the sum of K1,065,161.80 in damages for the plaintiff, Robmos Limited against each of the Defendants both jointly and severally. I will also add to that interest at two percent (2%)[32] from the date of the issue of the writ until full and complete satisfaction of the judgement. Further, I will order costs to follow the event with such costs to be taxed unless otherwise agreed.


Who should satisfy the Judgment?


46. A relevant and necessary question that arises is the question of who should satisfy the judgment since there is more than one defendant. I will adopt and apply here the position I took in the case of Jackson Mari v. Dr Sano Tahong & Ors.[33] At paragraphs 21 and 22 of the judgment, I observed and took the following position against servants and agents of the State who are the primary tortfeasors and who should be primarily responsible:


“21. I have commented on a number of occasions before that the State should not continue to bear responsibilities for medical doctors and other servants or agents who have been plainly careless or reckless in the discharge of their duties and responsibilities. This carelessness on the part of State servants and agents is often carried into court proceedings. Despite being named and served with Court proceedings, the offenders often fail to take appropriate steps to defend the proceedings. By adopting this kind of attitude they simply do not care about what they do or fail to do and the consequence that has against the people through the State. It is about time that the State should take firm steps against these kinds of people who are primary tortfeasors and a primarily response to meet any judgment consequential on their tortuous actions. The State can do this easily by making them meet the judgment personally and directly from their own resources. If however, despite best efforts, the offenders fail to pay either in whole or in part any judgment against them, the State should pay. Should or where the State pays, the amounts it so pays should be a debt automatically recoverable by the State against the responsible servant or agent. This can be done by forfeiting and savings or any benefit due to the servant. This could be savings with the superannuation fund, bank account or other forms of saving. If such do not prove sufficient, any property or asset the offenders have should be forfeited to the State up to the value of the judgment. If that proves still not enough, the judgment could be attached as a debt to the offender’s salary or other future benefits due to him.


22. Taking the kind action of mentioned above will bring about at least three important developments into the way public servants and agents behave and carry out their powers and functions. Firstly, professionals like the doctors, lawyers, accounts and all other servants and agents of the State who are careless or reckless in the discharge of their duties and responsibilities will be forced to carry out their duties and obligations with much care, skill and attention, when it becomes clearer to them that they are personally liable for their actions and not the State. Secondly, this will help reduce the large number of negligence cases that are mounted each year against the State and thereby save the people from spending millions of Kina unnecessarily on consequences of negligence or carelessness of State servants and agents. Thirdly, it will force the State servants and agents to become smart professionals who will function with much care and attention to detail and doing their jobs properly in timely manners as professionals in whatever capacity they are called to serve the people of PNG and others. This will in turn raise the level of the type and quality of service to much better levels than the bad and untrustworthy ones we see in most State departments and agencies nowadays.”


47. In the present case, there is no doubt that the First to the Third Defendants have failed in their respective duties and responsibilities. After having failed in their administration of the public tender process as established in the judicial review proceeding (not appealed against), the Defendants also failed to properly defend this proceeding in any meaningful way. This failure has been carried over and continued in the present case. Added to that is the conduct of senior counsel appearing for the State, Mrs. R. Gelu. In the circumstances, the State is entitled to ensure that the First to the Third Defendants meet the judgment in this case in equal proportions or in such proportions the State requires them to contribute depending on the degree of their contribution to the damages Robmos has been forced to suffer and now the State is forced to face by way this Court’s judgement.


48. Further, I note that learned counsel for the Defendants, Mrs. R. Gelu who is a senior counsel failed to properly and duly discharge her duties to her client and to the Court. Rule 18 of the Professional Conduct Rules 1989 for lawyers’ calls for and imposes a duty of diligence on lawyers. Sub-rule 4 to 7 are relevant. These provisions read:


“(4) A lawyer shall at all times use his best endeavours to complete any work on behalf of his client as soon as is reasonably possible.

(5) If a lawyer receives instructions and it is or becomes apparent that he/she cannot do the work within a reasonable time, he/she shall so inform his client.

(6) A lawyer shall not –

(a) take unnecessary steps or do his work in such a manner as to increase his proper costs to his client; or

(b) accept instructions beyond his competence.

(7) A lawyers shall when in his client’s best interest, seek his client’s instructions to reach a solution by settlement out of court rather than commence or continue legal proceedings.”


49. A number of important things are required of lawyers by these provisions. These are clearly that a lawyer should:


(1) only accept instructions in matters within his or her competence;

(2) take such steps as a necessary to do his client’s work promptly;

(3) inform his or her client if it becomes clear that he or she will not do his client’s work within a reasonable time so as to, I think, the client can consider instructing another lawyer who might be able to do the client’s work promptly; and

(4) seek to have the matter resolved out of court when it is in the best interest of his or her client to do so.


50. These rules were promulgated on 16th March 1989. They clearly pre-existed the ADR Rules which were promulgated in 2010. The lawyers were therefore obliged to find ways and means to have their clients cases resolved promptly and at less costs. Unfortunately, this fails to happen and more and more cases are caused to linger on in the courts not only in PNG but all over the world. This resulted in huge backlogs in the courts’ lists. Driven by a desire to overcome the problem of backlogs and to ensure delivery on the wish to resolve conflicts expeditiously at less costs in a timely manner, ADR and in particular mediation were introduced. This started in the United States in 1975 and eventually spread throughout the world. In our jurisdiction, ADR and mediation found their way into legislation such as s. 22B of the District Courts Act (Chp.40) and the National Court Act (Chp. 38) as amended. Pursuant to s. 7E of the National Court Act the ADR Rules were promulgated. Since their inception, ADR and mediation began and continue to deliver on the desire that led to their introduction so much so that the world was persuade to accept them. As I observed in Koitaki Plantations Ltd v. Charlton Ltd,[34] and elsewhere, because of that good result:


“...the courts and governments all over the world are calling for the use of mediation as a preferred form of dispute resolution, given its benefits. Many countries have now gone further and required mandatory mediation either prior to the issuance of proceedings or before any trial takes place in court. In our case, the effect of r. 4 of the ADR Rules as already noted presupposes mediation unless the court otherwise determines on the application of a party. The imperative therefore is for disputing parties to explore prospects of out of court settlement and where possible settle through their direct negotiations and failing any settlement there, through mediation in ‘good faith’.”


51. The Supreme Court at the highest in PNG, has spoken in favour of the ADR and mediation in recent times. This started with the decision of the Supreme Court in NCDC v. Yama Security Services Pty Ltd[35] where the Court said:


“Indeed, there is a fast developing trend in modern courts including our own, to move away from court litigation and encourage alternative ways of settling civil disputes. Courts nowadays increasingly and actively foster, encourage and even facilitate parties to negotiate, mediate, and settle claims before the courts using alternative dispute resolution (ADR) techniques and mechanisms. The benefits of ADR are many and these include a win-win situation for both parties, reduces unnecessary litigation time, expense and costs, and maintains amicable long term business and social relationships between parties. Indeed notions of negotiation, mediation and compromise of disputes is a long-standing traditional custom in all traditional societies in this country and our courts should be able to tap into this valuable custom and develop ADR procedures which are appropriate to our own circumstances.”


52. Later in Henry Torobert v. Mary Torobert,[36] the Supreme Court continued to express support for the use of ADR and mediation in these words:


“A dispute over matrimonial property by its very nature lends itself to negotiation, mediation and settlement. We have in PNG through recent amendments to the National Court Act and the making by the Judges of the ADR Rules 2010 embraced the concept of alternative dispute resolution and put it increasingly into practice. We consider that these practices should be adopted by the Supreme Court which has the power under Sections 6(2), 8(1)(e) and 16(c) of the Supreme Court Act to exercise the powers available to the National Court (William Moses v Otto Benal Magiten (2006) SC875). This includes the power to order parties to attempt settlement and, in the event of a failure to settle, to order mediation. Those are the type of orders that we will seriously consider making here. A dispute over matrimonial property by its very nature lends itself to negotiation, mediation and settlement. We have in PNG through recent amendments to the National Court Act and the making by the Judges of the ADR Rules 2010 embraced the concept of alternative dispute resolution and put it increasingly into practice. We consider that these practices should be adopted by the Supreme Court which has the power under Sections 6(2), 8(1)(e) and 16(c) of the Supreme Court Act to exercise the powers available to the National Court (William Moses v Otto Benal Magiten (2006) SC875). This includes the power to order parties to attempt settlement and, in the event of a failure to settle, to order mediation. Those are the type of orders that we will seriously consider making here.”


53. In my recent decision in Able Construction Ltd v. W.R. Carpenter (PNG) Ltd[37] and elsewhere,[38] I pointed out that all cases are capable of resolution by ADR or mediation. I also pointed out that the exceptions to that is very limited and listed the kind of cases or questions inappropriate for ADR but in particular mediation in these terms:


“This worldwide focus on mediation is not surprising as mediation is suitable for all cases. The only exception to this would be cases in which mediation is inappropriate because:

54. The sum effect of all these is that a lawyer is now more duty bound than ever before to take all steps necessary to have a client’s case resolved within a reasonable time and at less costs. That duty is imposed by the lawyers Professional Conduct Rules 1989 and the relevant and applicable legislation which includes the relevant provisions of the National Court Act and the ADR Rules that were enacted thereunder. Unless a case falls in the category of questions or cases inappropriate for resolution by ADR and or mediation, lawyers are bound both by their professional conduct rules as well as the relevant legislation and the various judicial pronouncements from both the Supreme and National Courts to take all steps necessary to resolve their client’s cases more readily out of court. A lawyer who fails in his or her duty without good reason would be guilty of misconduct as a lawyer and undoubtedly attract unto oneself, personal liability for costs and interests unnecessarily forced on the client by their conduct.


55. In the instant case, once the decision on the Judicial Review proceedings came out, it was clear the Defendants were liable in damages to Robmos. They accepted that position when none of the Defendants sought to and indeed failed to pursue a review or appeal against that decision. This was further strengthened by a failure by the Defendants to meaningfully defend this proceeding. When that was the position, it was clear the Defendants would be liable in damages to Robmos. The duty was on counsel to help the Defendants to have this matter resolved promptly by direct negotiations or by a facilitated process like mediation or a form of ADR.


56. There is no evidence before the Court to suggest learned counsel for the Defendants duly discharged that duty. It should logically follow therefore that, unless Mrs. R. Gelu of counsel for the Defendants is able to show she faithfully and diligently attended to and discharged her duties as the Defendants lawyer or counsel, the State should make her to meet the costs and interests components up to the level of her contribution to these aspects of this case or judgment is concerned. However, since this is the first time this Court is formally raising the issue, it will refrain from making orders in the terms suggested. In future this judgment will serve as sufficient warning and erring lawyers will be made to bear the consequence of their actions.


57. In all of the circumstances and in summary I make the following findings and orders:


(1) Liability is found and established against each of the Defendants both jointly and severally;


(2) Judgement is entered for the Plaintiff, Robmos Limited in the sum of K1,065,161.80 plus costs and interests;


(3) The Plaintiff’s costs shall be taxed if not agreed.


(4) Interests shall be calculated at 2% pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015, from the date of the issue of the writ until full satisfaction of the judgment.


(5) The First, Second and Third Defendants are primarily liable to meet the judgment severally and jointly.


(6) Unless the Fourth Defendant (the State) is able to ensure and see to the First to the Third Defendants fully meet the judgment, it shall fully meet the judgment and be at liberty to recover from the First to the Third Defendants.


_____________________________________________________
O’Brien Lawyers: Lawyers for the Plaintiffs
Solicitor General: Lawyers for the Defendants

[1] See: Edward Etepa v. Gari Baki (2015) SC1502 (Manuhu, Kariko and Murray JJ.); MVIL v. Kauna Kiangua (2015) SC1476 (Davani, Kassman and Logan);
[2] Tin Siew Tan v. Thomas John Pelis [1999] PNGLR 31 as endorse by MVIL v. Kauna Kiangua (supra)
[3] Koitachi Farms Ltd v Kemoko Kenge (2001) N2143 ( Kandakasi.J) as endorsed by MVIL v. Kauna Kiangua (supra).
[4] See for examples of authorities on point see Grand Chief Sir Michael Thomas Somare v. Chronox Manek & Ors (2011) SC1118 (Salika DCJ, Kirriwom and Kandakasi JJ and The State v. Brian Josiah (2005) SC792. For a decision on the doctrine applying in the context of a resolution of a court proceeding by a deed of release see Manorburn Earthmoving Limited v. The State (2008) N3287.
[5](1981) 147 CLR 589.
[6] (1843) 3 Hare 100; 67 ER 313.
[7] (2009) SC979.
[8] (2000) N1944.
[9] (2007) N3144.
[10] (2008) SC906.
[11] See Bower and Turner ‘The Doctrine of Res Judicata by Spencer’, 2nd Ed,1969, at p.1 in Reference by DR Allan Marat, In the matter of Prime Minister and NEC Act 2002 Amendments (2012) SC1187 per Gavara-Nanu J at para. 422.
[12] [1943] 1 KB 587.
[13] [1983] PNGLR 350.
[14] [1990] PNGLR 292 (per Woods, Hinchliffe and Brown JJ.).
[15] See for example the National Court decisions of WorkCover Authority of NSW v. Placer (PNG) Exploration Limited (2006) N3003 and Wamena Trading Limited v. Civil Aviation Authority (2006) N3058.
[16] (2012) N4705.
[17] (2010) N3898.
[18] (2001) N2098.
[19] (2003) SC705.
[20] (2015) SC1411.
[21] (Supra).
[22] Copy of the Directive can be found at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:
335:0031:0046:EN:PDF
[23] [1911] 2 KB 786.
[24] [1951] 1 KB 422 at 438
[25] [1995] EWCA Civ 17; [1995] WLR 1602; BAILII [1995] EWCA Civ 17.
[26] [1999] EWHC TCC 195; BAILII [1999] EWHC Technology 199. A copy of the decision can also be found at: http://www.bailii.org/cgi-bin/markup.cgi?doc=ew/cases/EWHC/TCC/1999/199.html&query=Harmon
%20CFEM%20Facades%20UK%20Ltd#disp17
[27] [2000] 67 Con LR 1; BAILII [2000] EWHC Technology 84. A copy of the decision can also be found at: http://www.bailii.org/cgi-bin/markup.cgi?doc=ew/cases/EWHC/TCC/2000/84.html&query=Harmon%20CFEM
%20Facades%20UK%20Ltd
[28] Page 3, paragraph 2 of the decision in Harmon 2).
[29] [1996] 28 CLR (2d) 1.
[30] (2006) N3173.
[31] (2008) N3486.
[32] Pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015,
[33] (2015) N6241.
[34] (2014) N5656.
[35] (2003) SC707 (per Injia J. (as he then was) Mogish and Davani JJ.).
[36] (2012) SC1198.
[37] (2014) N5636.
[38] For example in Wantok Gaming Systems Ltd v. National Gaming Control Board (2014) N5809 and Alex Awesa v. PNG Power Limited (2014) N5708

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