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Poga v Independent Timbers &amp Stevedoring Ltd [2021] PGNC 572; N9230 (20 September 2021)

N9230
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS No 4 OF 2018 (CC4)

BETWEEN:
FRANCIS KIMIN POGA on behalf of himself and as the duly authorized representative of the 5 other individual who have given their consents and authority to him as the principal plaintiff
Plaintiffs

AND:
INDEPENDENT TIMBERS & STEVEDORING LIMITED
Defendant

Waigani: Wurr AJ
2021: 19^th August, 20^th September

ASSESSMENT OF DAMAGES- liability established through entry of default judgment-recovery of final entitlements- certain claims dismissed for lack of pleadings- damages awarded only for claim pleaded and proven by evidence- interest awarded- no order as to costs
EVIDENCE- Representative proceedings- Onus rests on each plaintiff to provide evidence to prove their claim on the balance of probabilities at trial on damages -hearsay evidence inadmissible- failure to provide evidence by certain plaintiffs resulting in dismissal of their claims

Cases Cited:

Amaiu v Yalbees & Others [2020] PGSC 133, SC2046
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
MVIT v James Pupune [1993] PNGLR 370
MVIT v John Etape [1995] PNGLR 214
MVIT v Tabanto [1995] PNGLR 214
MVIT v Pupune [1993] PNGLR 370
PNGBC v Jeff Tole (2002) SC694
Samot v Yame [2020] PGNC 63; N8256
Steven Naki v AGC (Pacific) Ltd (2006) N5015
Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247
Ume More v UPNG [1985] PNGLR 401
Waima v MVIT [1992] PNGLR 254
William Mel v Coleman Pakalia (2005) SC790

Counsel:

A. Kuria, for the Plaintiffs
P. Andrew, for the Defendant

JUDGMENT

20^th September, 2021

1. WURR AJ: This is a decision on assessment of damages. It is a class action case commenced by a writ of summons endorsed with a statement of claim. The plaintiffs claim that they have not been paid their lawful entitlements upon termination. The defendant failed to file a notice of intention to defend and defence resulting in entry of default judgement against the defendant on 18 October 2019.
   
2. Applying the principle in William Mel v. Coleman Pakalia & Ors(2005) SC790, I conducted a cursory inquiry of the pleadings, and found that the facts and cause of action were pleaded with sufficient clarity. Upon being satisfied that liability has been proven and there was no need for me to re-visit the issue of liability, trial proceeded to hearing on assessment of damages.

EVIDENCE

3. In support of their claim, all six (6) plaintiffs relied on the following affidavits at trial:
   
   1. Affidavit of Francis Kimin Poga filed on 17 March 2021 – Exh P1
   2. Affidavit of George Damien filed on 26 April 2021 - Exh P2
   3. Further Affidavit of Francis Kimin Poga filed 26 April 2021– Exh P3
   4. Further Affidavit of Francis Kimin Poga filed 28 April 2021– Exh P4
      
4. The defendant relied on the following affidavits;
   1. Affidavit in Support of Clifford Fraser filed 12 June 2018– Exh D1
   2. Affidavit of Hudson Hape filed 25 March 2021 - Exh D2
   3. Affidavit of John Mulcahy filed 25 June 2021 - Exh D3
      

RELIEF CLAIMED

5. In the statement of claim, the plaintiffs claimed the following relief:
   
   1. Unpaid final entitlements in the sum of K221, 634.06
      
   2. Interest on damages pursuant to the Judicial Proceedings (Interest on Debt and Damages) Act.
      
   3. Costs
      

NO EVIDENCE BY SOME OF THE PLAINTIFFS

6. In the statement of claim, the particulars of the plaintiffs’ claim were;
   

7. At the trial on assessment of damages Gerega Walo, Rachael N’drohas, Toua Karl and Emil Ramita did not give evidence. Only Francis Kimin Poga and George Damien adduced evidence.
   
8. In the Supreme Court case of Amaiu v Yalbees & Others (2020) PGSC133, SC 2046, which was also a representative case, the Court held amongst others that:
   1. Having regard to the interests of both justice and economy, it will often be appropriate for proceedings brought pursuant to Order 5 Rule 13(1) to be conducted in two stages. The first stage will determine whether there is any common basis for liability.
   2. There is no rule of law or practice that every plaintiff in a representative proceeding must personally give evidence for this purpose. What is required is that the evidence led is sufficient to establish the common basis of liability claimed in the pleadings.
   3. In the event that a common basis for liability is upheld, it will then be necessary to move to the next stage of proceedings which would involve an assessment of causation and loss at the individual level. This would require each of the plaintiffs to provide evidence to establish their claims. (my emphasis)
      
10. After liability is established, the law requires each plaintiff to provide evidence to establish their individual claims at the trial on assessment of damage. Each plaintiff bears the burden of proving their claim on the balance of probabilities.
    
11. Another plaintiff cannot give evidence for and on behalf of another plaintiff, or other plaintiffs at a trial on assessment of damages. Such evidence will be considered as hearsay and inadmissible.
    
12. I therefore cannot accept the evidence of Francis Kimin Poga that concerns and seems to support the claim for those plaintiffs who did not adduce any evidence at the trial on assessment of damages. I can only accept his own evidence. I therefore reject parts of his evidence that refer to the claim of plaintiffs other than himself.
    
13. Gerega Walo, Rachael N’drohas, Toua Karl and Emil Ramita have not adduced any evidence at trial- whether oral or written. I therefore dismiss their claims.
    
14. I will now proceed to assess the claim for the two remaining plaintiffs who have provided evidence at this trial namely Francis Kimin Poga and George Damien.
    

LEGAL ISSUES

15. The legal issues for my consideration are;
    
    1. Whether plaintiffs Francis Kimmin Poga and George Damien are entitled to superannuation, overtime and payment in lieu of notice
       
    2. How much are the plaintiffs entitled to?

SUMMARY OF EVIDENCE

Francis Kimin Poga

16. He claims that on 1 February 2009 he was employed by the defendant as the Agriculture Manager.
    
17. From 2011 onwards he was the Agriculture Manager as well as the Office Manager for the defendant at its Port Moresby office. As the Office Manager, he was responsible for administering the operations of the office. He was responsible for the records of the business, including records of employees and payment matters.
    
18. He was terminated on 23 June 2017.
    
19. From 2016 up to the time of his termination, his gross annual salary was K120, 000.00. His fortnightly gross wage was K4, 992.00. After deductions which include K1, 000.00 school fees and K1, 000.00 housing tax and superannuation, he was left with K3, 597.00 as his net pay. Sometimes salaries were paid monthly in which case he was paid K7, 047.41 as net pay. (See Exhibit B, Paragraphs 3-8; and Exhibit A)
    
20. He claims he served the defendant 8 years and 5 months but upon his termination the defendant did not pay out all his entitlements.
    
21. He claims the defendant did not pay the employer’s component of the superannuation for 8 fortnights leading up to the date of his termination. Therefore he is entitled to employer’s contribution for 8 fortnights being K3, 352.00.
    
22. He further claims he is entitled to 3 weeks annual leave for every 12 months of continuous service with the defendant. However he never took his annual leave since employment and was never paid his annual leave entitlement upon termination. He therefore claims his annual leave entitlement has accrued and stands at K62, 400.00 for the 8 years and 5 months served.
    
23. Mr Poga also claims he is entitled to overtime at K107, 910.00 for 4 hours every Saturday for 5 Saturdays only.
    
24. His claim is summarized in the table below;
    

George Damien

25. Mr Damien claims he was the Chief Forester for the defendant prior to his termination on 09 June 2017. He does not say when he was employed however Exhibit E contains an undated “Letter of Employment Offer” which shows commencement date as 04 January 2008, term of employment is one (1) year automatically renewed by both parties and signed off by George Damien on 22 November 2007. The same offer letter is contained in the List of Exhibits styled as EX-P-2.
    
26. At the time of his termination, his gross salary was K60, 000.00. His fortnightly salary was K2, 492.00 however after deductions which include tax at K126.00 and superannuation at K150.00, he earned K1, 885.20 as his net pay per fortnight.
    
27. He refers to certain annexures in his affidavit such as his termination letter, pay sheet, receipts showing his pay, and a letter from the Department of Labour and Industrial Relations showing calculation of his entitlements. However all these documents were not contained in the affidavit that was filed and adduced into evidence as Exhibit D.
    

FINDINGS OF FACT

28. Upon considering all the evidence, I make the following findings of fact;
    
    1. On 18 October 2019, default judgment was entered against the defendant.
       
    2. The defendant appealed the decision of the National Court of 18 October 2019 in the supreme court proceeding referenced SCA No. 192 of 2019. The appeal was dismissed. The Supreme Court found that the plaintiffs were not unlawfully terminated but terminated with cause.
       
    3. Mr Poga was employed as Agriculture Manager on 1 February 2009. He was terminated on 23 June 2017. At the time of his termination, he was the Office Manager for the defendant. He served the defendant for 8 years 5 months.
       
    4. Mr Poga’s gross salary at the time of his termination was K120, 000.00. His fortnightly gross wage was K4, 992.00. After deductions, he was left with K3, 597.00 net pay. Sometimes salaries were paid in months, in which he was paid K7, 047.41 as his net.
       
    5. Mr Poga is entitled to long service leave for serving the defendant for 8 years and 5 months. He was never paid his long service leave entitlements. Pro-rata long service leave for 8 years and 5 months is K33, 945.60. He is not entitled to ex-gratia.
       
    6. Mr Damien was terminated on 23 June 2017. His gross salary at the time of his termination was K60 ,000.00. His fortnightly gross wage was K2, 492.00. After deductions, which include tax and superannuation, he earned K1, 885.20 as his net pay per fortnight. He is not entitled to overtime and ex-gratia.
       

THE LAW AND LEGAL PRINCIPLES

29. The Supreme Court in William Mel v Coleman Pakalia (2005) SC790 and the National Court decision of Cannings, J in Steven Naki v AGC (Pacific) Ltd (2006) N5015 summarise a number of legal principles that are applicable in assessing damages where liability is established either following a trial or after the entry of default judgment, and these are:
    
    1. The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)
       
    2. Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)
       
    3. The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)
       
    4. The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)
       
    5. If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)
       
    6. Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)
       
    7. The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)
       
    8. The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)
       
    9. The person who has been wronged has a duty to mitigate their losses; though it is the defendant who has the onus of proving failure to mitigate (Dia Kopio v Employment Authority of Enga and Others (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182, National Court, Kandakasi J.)
       
30. The law on pleadings is well settled in this jurisdiction. Unless a point is sufficiently pleaded, there can be no evidence led and relief granted. (Ume More v UPNG [1985] PNGLR 401; MVIT v James Pupune [1993] PNGLR 370 at 373, MVIT v John Etape [1995]PNGLR 214; PNGBC v Jeff Tole (2002) SC694).
    
31. Section 61 and 62 of the Employment Act 1978 provides in the following terms:
    

61. ENTITLEMENT TO LEAVE.

(1) Subject to the provisions of any registered award, an employee is entitled for each year of continuous service to a period of 14 consecutive days paid leave including non-working days occurring within that period of paid leave, and where any public holiday falls within an employee’s period of paid leave and is observed on a day that, in the case of that employee, would have been an ordinary working day had he not been on leave, there shall be added to that leave period one extra day being an ordinary working day, for each day of that public holiday.

(2) Subject to Subsections (3), (4) and (5), the right to recreation leave accrues at the end of each period of 12 months continuous service.

(3) Recreation leave credits may be accrued, by agreement between the employer and employee, for any period of continuous service to a maximum of four years.

(4) An employee whose employment terminates or is terminated is entitled to be paid recreation leave, if he has completed not less than six months continuous service, at the rate of one day for each completed month of service.

(5) Where an employee’s contract of service expires or is terminated and he is entitled to be paid recreation leave under this section, an employer may, instead of the grant of the period of leave, pay to the employee an amount equal to his wages for the period of leave to which he is entitled.

62. PAYMENT OF LEAVE PAY.

An employer shall pay to the employee–

(a) his ordinary rate of pay for every day of recreation leave to which he is entitled; and

(b) the total of his entitlement prior to the commencement of the recreation leave.

32. Under clause 6 of the Port Moresby Common Rules 1977 it provides:
    
    6. ANNUAL LEAVE ENTITLEMENTS
       

(a) Annual leave entitlements on full pay upon completion of 12 months continuous service with same employer shall accrue in the following manner:-

1. Between the 28^th September 1967 and the 16^th December 1970 inclusive; at the rate of 6 days per annum; and
2. Between the 17^th December 1970 and the 08^th June 1977 inclusive; at the rate of 2 weeks per annum; and
3. As from the 09^th June 1977 at the rate of 3 weeks per annum.
   

(b) Pro-rata entitlements shall apply after three (3) months service with an employer.

(c) Public Holidays falling within a period of leave shall not be counted as part of such leave.

(d) When an employee proceeds on annual leave he shall be paid all monies due to him/her at the commencement of leave.

WHETHER FRANCIS KIMMIN POGA AND GEORGE DAMIEN ARE ENTITLED TO SUPERANNUATION, OVERTIME AND PAYMENT IN LIEU OF NOTICE

33. Miss Andrew for the defendant submitted that all the plaintiffs were not entitled to superannuation, overtime and payment in lieu of notice because these claims were not pleaded in the statement of claim. She relied on the case of Ume More v UPNG [1985] PNGLR 401; MVIT v James Pupune [1993] PNGLR 370 at 373, MVIT v John Etape [1995]PNGLR 214; PNGBC v Jeff Tole (2002) SC694.
    
34. Upon perusal of the plaintiffs’ statement of claim filed 09 January 2018, I found that the plaintiffs only claimed pro-rata accrued long service leave, pro-rata accrued annual leave and ex-gratia. The plaintiffs did not claim superannuation, overtime and payment in lieu of notice. The statement of claim was not amended.
    
35. The law is settled. Where default judgment is granted for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)
    
36. If the plaintiffs wanted to claim payment in lieu of notice, superannuation and overtime, they should have pleaded those claims in the statement of claim or sought leave to amend their pleadings before trial. They failed to do so.
    
37. The court will only award damages based on what was pleaded. I therefore uphold Miss Andrew’s submission that Francis Kimin Poga and George Damien are not entitled to be paid superannuation, overtime and payment in lieu of notice.
    

HOW MUCH ARE THE PLAINTIFFS ENTITLED TO?

38. The plaintiffs claimed pro-rata accrued long service leave, pro-rata accrued annual leave and ex-gratia in the statement of claim. Those are the only claims that this court will consider when making its assessment.
    

Ex-gratia

39. Parties agreed that the plaintiffs abandoned the claim for ex-gratia. I therefore did not consider it.
    

Pro-rata long service leave

40. Clause 9 (b) of the Port Moresby Common Rule provides that pro-rata entitlements shall apply after 3 years of continuous service with the same employer.
    
41. As for Francis Kimmin Pogo, the defendant conceded that he is entitled to pro-rata long service leave because he continuously served the defendant for approximately 8 years and 5 months. He is therefore entitled to K33, 945.60.
    
42. For George Damien, the defendant argued that he was not entitled to this claim as he served less than three (3) years. To address this issue, I must first determine when Mr Damien commenced employment with the defendant. In his statement of claim he claims that he commenced on 1 October 2013. However he did not produce any evidence to support that allegation. The evidence he adduced in court was the letter of offer from the defendant which stated that he would commence employment on 4 January 2008, and the term of employment was for only a year. There was no further evidence from him.
    
43. I find that the evidence regarding Mr Damien’s date of commencement and period of employment with the defendant is vague. The onus always rests on the plaintiff to prove his claim and he has failed to meet the standard. There is no evidence before the court that proves that he did commence employment with the defendant on 1 October 2013 as pleaded.
    
44. The defendant’s evidence on the other hand is more credible on this issue. I therefore accept its evidence that Mr Damien commenced employment on 7 January 2015 and was terminated on 23 June 2017. His length of service with the company is 2.46 years. He is therefore not entitled to claim for pro-rata long service leave.
    

Pro-rata annual leave

45. Sections 61 and 62 of the Employment Act 1978 and Clause 6 of the Port Moresby Common Rule provide that pro-rata entitlements apply after three months service with employer. Public Holidays falling within a period of leave shall not be counted as part of such leave.
    
46. The Interpretation Act 1975 defines public holiday to mean a day declared by an Act to be a public holiday; or proclaimed or notified under an Act as a public holiday.
47. Mr Kuria argued that the days falling within late December to early January (no specific dates) of each year were public holidays, and therefore the defendant wrongly took those days into consideration as annual leave credits for its employees. However, counsel did not provide any evidence to support his contention. It is not disputed that the plaintiffs were on payroll during that holiday period that lasted until February of each year.
    
48. The plaintiffs argued that they did not take their annual leave since employment hence their leave accrued over the years. They argued that the holiday shutdown period did not amount to annual leave and therefore they were still entitled to pro rata annual leave.
    
49. The defendant on the other hand argued that the plaintiffs were not entitled to pro rata leave. The defendant claimed that the plaintiffs took their leave when the defendant closed its business operations in late December through to February of each year. During that time, the plaintiffs were on payroll until the office was re-opened for business around February or March of each year.
    
50. The designated public holidays within the interpretation of the law are 25 and 26 December and 01 January of each year. The rest of the days spent on holiday apart from those three days may be considered as annual leave because those days are not designated public holidays within the law, and further that the plaintiffs were on payroll during that holiday period.
    
51. I therefore find that the plaintiffs have used up their leave credits as submitted by the defendant, thus not entitled to pro-rata annual leave.
    

SUMMARY OF DAMAGES AWARDED

52. The summary of damages awarded is as follows:
    
    1. Francis Kimin Poga : K33, 945.60.
2. George Damien : 0
3. Gerega Walo : 0
4. Rachael N’Drohas : 0
5. Toua Karl : 0
6. Emil Ramita : 0
   

Total : K33, 945.00

INTEREST

53. The plaintiff seeks interest at a rate of 8% annually pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act, from date of filing of the writ of summons to the date of payment.
    
54. The awarding of interest under the Judicial Proceedings (Interest on Debts and Damages) Act is discretionary: Cheong Supermarket Pty Ltd v Pery Muro (1987) PNGLR 24. In the exercise of my discretion, I will award interest at the rate of 8% annually on the total amount awarded K33, 945.00 from the date of filing of the writ of summons (9 January 2018) to the date of judgment (20 September 2021), a total of 3 years, 8 months and 8 days.
    
55. I assess and award interest at K9, 991.92.
    

COST

56. This is a case where neither the plaintiffs nor the defendant have fully succeeded. Only one out of the six plaintiffs was successful in one aspect of the claim being pro rata accrued long service leave. The other aspects of the claim such as accrued leave entitlement, overtime superannuation and payment in lieu of notice were dismissed. Therefore no cost will be awarded against any party.
    

ORDERS

57. The formal orders of the Court are:
    
    1. Francis Kimin Poga is awarded damages in the sum of K33, 945.00 plus interest at K9, 991.92 being a total sum of K43, 936.92.
    2. George Damien, Gerega Walo, Rachael N’Drohas, Toua Kari and Emil Ramita are awarded nothing. Their respective claims are dismissed in their entity.
3. Each party to pay their own cost.
   4. Time is abridged.
      

Judgment and orders accordingly.

________________________________________________________________

Kuria Lawyers: Lawyer for the Plaintiff

Leahy Lewin Lowing Sullivan Lawyers: Lawyer for the Defendant