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Wilkinson v The State [1997] PGNC 167; N1566 (15 May 1997)

N1566

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS 781 of 1991

BETTY WILKINSON

-v-

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani: Salika, J
14 May, 1997

State - Liabilities of - Anticipated Contract - Contract approved for execution - contract never executed - Recovery on quantum meirut basis.

Papua New Guinea cases cited:
Keboki Business Group (Inc) v The Independent State of Papua New Guinea and Morobe Provinsel Gavman.

Counsel:
J Nonggor for the plaintiff
F Damem for the Defendant.

15 May, 1997

SALIKA, J: The Plaintiff in this matter is an American citizen. She was employed by the Defendant first as a Contract Officer in the Departments of Agriculture and Livestock and Finance and Planning. She was later engaged as a consultant by the Department of Finance and Planning. While she was engaged as a consultant she alleges that she was not paid for services she provided. This claim is for the payment for the services she provided under the principle of quantum meirut.

The plaintiffs claim in this matter is that she was engaged as a consultant, as a Project Manager, for the Special Intervention Project funded by the World Bank. She commenced work as Project Manager in the Department of Finance and Planning from the 28th January 1991 to the 18th of July 1991. She claims that the terms of the consultancy was negotiated between the Department of Finance and Planning which was later approved for signing by the State Solicitor. That contract was never executed because the Defendant failed or refused to execute it.

The plaintiff claims:-

(i) The amount of K106,307.22 for services rendered and for expenses incurred in discharging her duties as Project Manager for the period she worked by way of quantum meirut together with interest and costs.

(ii) General damages in respect of employment and employment opportunities, emotional stress, financial hardship and medical expenses.

In support of her claim the plaintiff herself gave evidence. I might add here that the defendant did not call evidence to counter her claim that she in fact did the work. The relevant parts of the plaintiff's evidence have not been contradicted. Therefore on those matters her evidence stands on its own. In that regard there appears to be no dispute as to plaintiff providing services to the defendant. There was suggestion in cross-examination of the plaintiff that she provided those services under her contract of employment. The plaintiffs firm evidence was that her contract of employment was terminated in December of 1990 and that she was paid all her termination benefits and entitlements. She had returned to the United States and then returned to Papua New Guinea to her new job as Project Manager under consultancy. Her evidence is supported by a letter from Secretary Wep Kanawi dated the 27th December 1990 which is exhibit 3 in these proceedings. From all the evidence I am satisfied that the plaintiffs employment on contract had been terminated and that she was on a new engagement in the country.

It was also suggested in cross examination of the plaintiff by the defendant that she was employed by the United Nations Development Programme (UNDP) at the material time and that as such she had no basis for the claim. However, while she was cross examined on that the defendant has not substantiated that argument by providing evidence. Again the plaintiff's evidence on that matter stands alone uncontradicted that she was engaged as the Project Manager on a consultancy basis. Again on the evidence I am satisfied that the plaintiff was not employed or engaged by the United Nations Development Programme. Having said that, all the evidence points to the plaintiff being engaged by the defendant as the Project Manager and I am satisfied that she was engaged by the defendant to provide services on that project. I also accept the fact that while it was originally intended that she enter into a consultancy agreement this never eventuated. However while negotiations were going on she was already performing her duties as the Project Manager for the Special Intervention Project as agreed. I am further satisfied that she provided the service for 5 months and 2 weeks.

The plaintiff claims she was not been paid for the services she provided although the defendant benefited from her services. If she has not been paid then she should be paid as her claim is based on quantum meirut.

The quantum meirut claim is based on common law. It has been accepted into Papua New Guinea and the Courts are applying it whenever it has been raised. However, the leading reported case on quantum meirut in Papua New Guinea is the case of Keboki Business Group (Inc) v The State and Morobe Provincial Government (1984) PNGLR 281. In that case the plaintiff business group provided garbage and sanitation services to the defendants. The defendants refused or neglected to pay them so they sued to recover the payment. The defendants denied liability on the basis that the authority that purported to engage the plaintiff's services did not have lawful authority to engage them. The plaintiffs alternatively claimed payment on quantum meirut. The Court held in that case that the plaintiffs were entitled to payment on quantum meirut.

A similar situation arises in this case where the plaintiff has provided a service to the defendant and the defendant has failed or neglected to pay for the service on the basis that there was no consultancy agreement and have also argued that they have paid for the service. The plaintiff agrees there is no consultancy agreement and argues that she be paid a reasonable amount for the 5 months and two weeks for her services. She gave evidence of a similar consultancy work performed by a Jamie G Bantegui. Her engagement was on similar terms which again is not contradicted by the defendants. The plaintiff in her evidence said her duties as Project Manager were far more onerous than her duties under her contract of employment. The work she carried out had far more responsibilities. In her assessment she did her job well and she was commended by the Department of Finance and Planning for the work she had done. There is no contradictory evidence from the defendants. I am satisfied on her evidence that her responsibilities were far more onerous and that she did her job well.

I am of the view that at the time of negotiating her agreement, it was agreed that her consulting agreement was to be similar to that of Mr Jamie G Bantegui. The plaintiffs entitlement as contained in the unexecuted agreement were to be as follows:-

(i) US$ 7,500 per month fee.
(ii) US$10,000 settling in allowance
(iii) US$10,000 settling in allowance
(iv) K6,570 for travel expenses
(v) US$ 500 miscellaneous costs
(vi) K1,180.45 for reimbursement for telephone installations etc.
(vii) K1,200.00 for motor vehicle on K50 per week.

From those figures it can be calculated as follows:

(1) US$500 X 5 1/2 months = US$ 41,250.00 fees.
(2) US$10,000.00 settling in allowance.
(3) US$10,000.00 settling in allowance.
(4) US$15,400 housing allowance
(5) US$500 miscellaneous costs.

I awarded those amounts in United States dollars. In relation to travel expenses, reimbursements for telephone installation etc and motor vehicle expenses I have awarded those amounts in Papua New Guinea currency.

In total I would award the plaintiff the following:-

(1) US $ 77,150.00 = K105,771.86 (at the exchange rate of .7294 on 8/5/97).

(2) K8,950.00

Total K114,721.86

I note however that K25,000.00 was paid as an advance which can be deducted from the above total. The total amount to be awarded is K89,721.86. I further award interest at 8% per annum from the date of filing of the writ to the date of payment and I also award costs.

Deposit for Security for costs is to be refunded forthwith.