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Gori v Steamship Trading Co. Ltd [2013] PGNC 359; N5150 (18 April 2013)

N5150

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1559 of 2010

BETWEEN:

THOMAS GORI
Plaintiff

AND:

STEAMSHIP TRADING CO. LIMITED
Defendant

Kokopo: Maliku, AJ.
2013: 4th March, 26th March & 18th April

Counsel:

Mr. R. Asa, for the Plaintiff
Ms. G. Kogora, for the Defendant

18th April 2013

1. MALIKU, AJ: The plaintiff commenced this proceeding by an Originating Summons with a Motion filed on the 30th of January 2013 seeking the following from the Court:
   
   1. Recovery of the liquidated some of K37, 753.60; and
      
   2. Damages for unreasonable hardship, inconvenience, frustration, anxiety, distress and suffering; and
      
   3. 8% interest per annum from April of 2003 to date of Judgement or the Order takes effect on such the money as is from time to time remains unpaid pursuant to the Judicial proceedings (Interest on Debts and Damages) Act.
      
   4. Costs of and incidental to the proceedings; and
      
   5. Any other Orders as the Court deems fit.
      
2. The matter was set for trial on the 26th of March 2013 at 9.30. On the 26th of March 2013 Mr Asa for the Plaintiff appeared but counsel for the defendant did not appear. Mr Asa tendered to the Court two documents which the Court accepted and marked as Ex 'A' and 'B'.
   
3. The document marked Ex 'A' is a letter dated 7th of March 2013 from Mr Asa for the Plaintiff to the defendant company informing it that the matter was adjourned to the March 2013 Call over. The defendant was further advised in this letter that the Presiding Judge having cited a Notice to Set Down for Trial by consent filed set the matter for trial to the 26th and 27th of March for trial.
   
4. The defendant was also further advised in that letter that the Court issued a Direction for parties to file and serve any documents they wish to rely on and to comply with Sections 35 and 36 of the Evidence Act should they wish to examine any witnesses of both parties. Mr Asa for the Plaintiff undertook to relay these Directions to the defendant- see Notice to Rely of Affidavit pursuant to Section 25 of Evidence Act. Numbered No.33, filed on the 20th of March 2013
   
5. The document marked Ex 'B' is a letter dated 25th of March from Mr Asa for the Plaintiff to the defendant. The purpose of the letter was to:
   
   1. Confirm a conversation between Mr Asa and Ms G. Kogora on Monday 18th of March 2013 about a letter from Mr Asa dated the 7th of March 2013 as well as the Direction issued by the Court pursuant to Sections 35 and 36 of Evidence Act on the same date. It appears these letters was received by the defendant as they were sent through fax.
      
   2. To confirm that the Plaintiff served on the 21st of March of 2013 an Affidavit to Rely on Affidavits and Notice to Rely on Affidavit both filed on the 20th March 2013.
      
   3. The letter further confirms that to date the defendant has not complied with Court's Direction pursuant to Sections 35 and 36 of the Evidence Act.
      
   4. The letter finally advised the defendant in the event that they fail to appear on the 26th of March, counsel for the Plaintiff will move the Court for the trial to proceed as ex parte.
      
6. I am convinced that the defendant was well informed by counsel for the Plaintiff of the proceedings as regards to the dates of adjournments as well as timing of hearing, and of the Directions that were issued by the Court pursuant to Sections 35 and 36 of the Evidence Act.
   
7. It seems that the defendant through its counsel was negligent about the matter or did not bother anymore about the matter. This is clearly shown by defendant's failure to respond to the Notices sent to the defendant by counsel for the Plaintiff which includes a Direction by the Court for parties to comply with Sections 35 and 36 of the Evidence Act.
   
8. For these reasons I upheld Mr Asa's application to proceed with the trial in the absent of the defendant's counsel's appearance.
   

The Evidence relied on by the Plaintiff

9. The Plaintiff relied on his affidavit sworn on the 27th of September of 2011 and filed on the 28th of September of 2011.
   
10. The evidence is as follows:
    
    1. He is the Plaintiff in these proceedings.
       
    2. He was a former employee of the defendant's company and had worked with the defendant company for 17 years as a Marketing Manager at the Hard ware Department in Port Moresby.
       
    3. Sometime in October of 2000 and January, 2001 he raised orders for his own personal use, goods valued in the sum of K12, 760.28 belonging to the defendant company whilst being employed by the defendant company contrary to the defendant company policy.
       
    4. He subsequently resigned from the defendant company on the 24th of February,2001 and in an effort to clear his name, paid the total sum of 50, 513.88 in two separate cheques to the defendant company, details which are:
       
       1. Westpac Bank cheque No. 138106 dated 30/03/ 2001 for the sum of K28, 600 after selling my house at Ensisi Valley, Port Moresby; and
          
       2. Westpac Bank cheque No. 914663 dated 23rh of April 2001 for the sum of K 21, 913.88 being my final entitlements- see Annexure A, B and C being true copies of the cheques and receipts.
          
    5. At the relevant time that he gave the two cheques totalling K50, 513.88 to the defendant company through its representative, the Manager Finance, Mr Avere Arava, it was understood during discussions with Mr John Dunlop the then Managing Director of Steamship, the balance of the monies of K37, 753. 60 after deduction of what was due to the defendant company would be returned or refunded to the Plaintiff.
       
    6. After the Plaintiff had repaid the monies (K12, 760.28) he was charged by the Police in February of 2002 and was later convicted by the National Court at Kokopo on the 7th of July in 2010 upon the Plaintiff's plea of guilty and was sentenced to 2 years imprisonment which was wholly suspended on conditions to keep peace and was placed on good behaviour for 18 months.
       
    7. Despite representation and exchange of various correspondences by the Plaintiff to the defendant company to repay its debts, the defendant company has for the last 9 years and 7 months either neglected, refused or failed to refund the balance of K37, 753.60 without any reasonable cause, hence these proceedings taken – see Annexure 'D'; 'E' and 'F'.
       
    8. As a result of the defendant's non payment of the balance of the monies the Plaintiff has suffered and continues to suffer unreasonable hardship, inconveniences, frustration, embarrassment, distress, anxiety and mental anguish.
       

What the Plaintiff's Evidence reveals:

11. A careful analysis of the Plaintiff's evidence, reveals the following:
    
    1. It sets out the basis upon the Plaintiff's claim is based, that is the defendant company has not done anything to settle its debt to the Plaintiff without any reasonable explanation for the last 9 years and 9 months at the time the Plaintiff filed his claim.
       
    2. There is clear admission of debt by the defendant company that the Plaintiff paid it a sum of K50, 513.88 on two separate cheques as pleaded by the defendant company in paragraph 5 of the Statement of Claim. This is an admission of debts by the Plaintiff in clear and unambiguous term.
       

The Legal Issue:

1. Whether the Plaintiff did in fact misappropriated K12, 760.28; and
   
2. Whether the Plaintiff is entitled in law to be paid the remainder in the sum of K37, 753. 50?
   

The factual Issue:

12. The only factual issue in dispute which can be adduced from the Amended Defence is: Whether or not both parties agreed to criminal charges were not to be pursued if monies misappropriated by the Plaintiff were repaid to the defendant company? There is no evidence that the defendant's company agreed that should the Plaintiff pay the money he had misappropriated, the defendant company would have the charges against the Plaintiff withdrawn.
    
13. Nevertheless, whether the charges were to be laid or not the Plaintiff had committed a crime under the appropriate criminal law. It was a crime and it was the defendant company's discretion to exercise which option they were to take. In this case they chose to allow criminal proceedings against the Plaintiff to take its course. It is trite law that civil suits do not prevent criminal charges laid for prosecution. The criminal law must take its course.
    
14. As regard to the first legal issue: whether the Plaintiff did in fact misappropriate the sum of K12,760.28?
    
15. There is evidence that the Plaintiff misappropriated the sum of K12,760.28 toea. I accept this evidence as there is no evidence before this Court to the contrary. There is evidence that after the Plaintiff resigned from the Defendant Company on the 24th of February in 2001 he repaid the K12,760.28, yet he was arrested and indicted in the National Court at Kokopo, convicted and sentenced to 2 years imprisonment which was wholly suspended on condition that the Plaintiff was to be of good behaviour for 18 months.
    
16. This evidence is corroborated by Annexure 'D', a copy of the Indictment by the State against the Plaintiff. The Indictment alleged two counts against the Plaintiff. The first count alleged that the Plaintiff misappropriated a sum of K8,319.28 for his own use. The second count alleged that the Plaintiff misappropriated a sum of K4, 410.00 also for personal use.
    
17. Mathematically this adds up to K12,760.28. Be that the amount established through a thorough investigation by the Police Informant and of which the Plaintiff was indicted for, convicted and sentenced to 2 years imprisonment I accept the evidence that the Plaintiff had misappropriate a sum of K12,760.28.
    
18. Yes, this is the amount that the Plaintiff owed the defendant company as there is no evidence that the Plaintiff owed the defendant company more than K12,760.28.
    
19. As regard to the second Issue: Whether the Plaintiff is entitled in law to be paid the remainder in the sum of K37,753. 50?
    
20. There is evidence that the Plaintiff raised two orders to Brian Bell for goods including cooking utensils, entertainment units and beddings to the value of K8, 319.28 for his own use whilst being employed by the defendant company contrary to the defendant company policy. There is further evidence that the Plaintiff cashed six cheques totalling K4,410.00 through Steamship Hardware in Rabaul which were dishonoured totalling K12,760.28.
    
21. After the Plaintiff resigned from the defendant company he repaid the amount of K28,600.00 – see Annexure 'A'. This money was from the sale of the Plaintiff's house at Ensisi Valley, Port Moresby. The Plaintiff further paid to the defendant company a sum of K21, 913.88 which was money from the final entitlement – see Annexure 'B'.
    
22. Mathematically this adds up to K50, 513. 88; which exceeds the amount misappropriated by the Plaintiff from the defendant company.
    
23. There is evidence that there was a discussion between the Plaintiff and Mr John Dunlop, the Managing Director of the defendant company in which the Plaintiff apologised for his action and verbally assured Mr Dunlop that he would repay the sum of K8, 319. 28 for goods he ordered from Brian Bell and K4, 410 for the six cheques cashed at Steamship Hardware Rabaul but dishonoured.
    
24. There is strong evidence that the Plaintiff did make payment in the sum of K50, 513.88 to Mr Vere Arava. There is evidence that Mr Vere Arava agreed to keep the cheques and the Plaintiff's other entitlements and agreed to take or to deduct from the K50, 513.88 whatever amount found to have been misappropriated by the Plaintiff, and was to inform the Plaintiff of the outcomes of their investigation and to return the remainder of monies to the Plaintiff after deducting the amount misappropriated by the Plaintiff from K50, 513.88.
    
25. It is drawn from the evidence that Mr. Vere failed to inform the Plaintiff about the actions taken by the defendant company after it conducted its own investigation (if any) of the exact monies alleged to have been misappropriated by the Plaintiff which Mr. Vere undertook to inform the Plaintiff.
    
26. In view of Mr Vere's failure to inform the Plaintiff of the outcome of the defendant Company's investigation into the matter, on the amount misappropriated by the Plaintiff (if there was any investigation ever conducted) apart from the K12,760. 28 legally established during the Police investigation, there remains the fact that the Plaintiff paid K50,513.88 to the defendant company through its Senior Officer Mr Vere Arava who agreed to keep and to deduct whatever amount found to have been misappropriated by the Plaintiff and even to inform the Plaintiff of whatever actions to be taken by the defendant company.
    
27. There is no evidence that Mr Vere Arava kept his words to inform the Plaintiff of the findings and of the actions taken by the defendant based on their own investigation into the matter.
    
28. Be that the amount misappropriated is K12,760. 28 subtracted or deducted from K50,513.88 leaves the balance at K37,753.60 owed to the Plaintiff by the defendant company.
    
29. Yes, the Plaintiff is entitled to be paid the remainder of K37,753.60 owned to him by the defendant's company.
    
30. Accordingly the Plaintiff is entitled in law to be paid the remainder of K37,753.60 owed to him by the defendant company with:
    
    1. Costs and incidental to the proceedings; and
       
    2. Damages for unreasonable hardship, inconvenience, frustration, anxiety, distress and suffering; and
       
    100. 8% interest per annum from April of 2003 to date of Judgement or the Order takes effect on such the money as is from time to time remains unpaid pursuant to the Judicial proceedings (Interest on Debts and Damages) Act.
         

______________________________________________________________
Warner Shand Lawyers: Lawyer for the Plaintiff
Steamships In-House Lawyer: Lawyer for the Defendant