N11347

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 896 OF 2020

BETWEEN
K K KINGSTON LIMITED
Plaintiff

AND:
MARLON GANELA FELICIANO
Defendant

LAE: DOWA J
17 FEBRUARY 2023; 30 JUNE 2025

CIVIL CLAIM-DAMAGES – assessment of damages following entry of default judgment – whether default judgment was regularly entered and whether the issue of liability can be revisited -Plaintiff as onus of proof -- some heads of damages refused for lack of evidence -claim assessed and allowed- -judgment entered.

Cases cited
Yooken Paklin v The State (2001) N2212
Samot v Yame (2020) N8266.
Coecon Ltd (Receiver Manager) v The National Fisheries Authority of PNG (2002) N2182
PNGBC v Jeff Tole (2002) SC694 
William Mel v. Coleman Pakalia (2005) SC790
 Albert v Aine (2019) N7772

 Counsel
K Kiendip for the plaintiff
No appearance for the Defendant 

JUDGMENT 

1.	DOWA J: This is a ruling on assessment of damages. Default judgment was entered for the Plaintiff on 12th November 2021.

Background Facts

2.	The Plaintiff is a company based in Lae, Morobe Province. The Defendant is from Republic of Philippines and was employed by the Plaintiff until termination of employment. By contract of employment dated 28th February 2016 made between the Plaintiff and the Defendant, it was agreed that the Plaintiff would employ the Defendant as Compressor Service Technician Electrician for a period of 3 years from 28th February 2016. Under the terms of employment contract the Defendant would faithfully devote his time in serving the Plaintiff company.  
 
3.	The Plaintiff alleges that the Defendant breached the terms of the contract of employment by:

a.	Setting up a competitive business, South Pacific Air Tech (SPAT) while in employment with the Plaintiff company.

b.	Stole, misappropriated and converted to his own use and to the benefit of SPAT, goods, stock, parts belonging to the Plaintiff to the value of K39,845.62.

c.	Setting up and being employed in competitive business within five years from termination of employment contrary to the restraint of trade clause in the employment contract.

d.	Failed to vacate and deliver up possession of the Plaintiff’s property at the termination of employment resulting in accrual of rents to the total value of K52,800.00

4.	Aggrieved, the Plaintiff filed these proceedings seeking damages. The Defendant did not file his Notice of Intention to Defend and Defence. On application by the Plaintiff, default judgment in damages to be assessed was granted on 29th November 2021. 
 	
Trial

5.	The trial on assessment of damages was conducted on 19th December 2022. The Defendant did not defend the proceedings despite being served a copy of the Writ of Summons and Notice of Trial. The Court granted leave to the Plaintiff to proceed with the trial in the absence of the Defendant.  

 	     Hearing -Plaintiff’s Evidence

6.	The Plaintiff relies on the following Affidavits: 

a. Affidavit of Michael Kingston filed 20th July 2021 
b. Affidavit of Zara Kepa filed 30th September 2022.

Issues

7.	The issues for consideration are:

a.	What is the effect of default judgment.
b.	Whether the Plaintiff is entitled to damages as pleaded.

a.	What is the effect of default judgment 

8.	The law on the effect of default judgment is settled in this jurisdiction.  A trial Judge must satisfy himself with the principles summarised in the cases; Coecon Ltd (Receiver Manager) v The National Fisheries Authority of PNG (2002) N2182, PNGBC v Jeff Tole (2002) SC 694, William Mel v. Coleman Pakalia (2005) SC790,  and Albert v Aine (2019) N7772. 

9. 	 In Albert v Aine, Kandakasi DCJ at paragraphs 7 & 8 of his judgment said:
 “7. 	Fourthly, the law on the effect of the entry of default judgment is clear. In Coecon Limited (Receiver/Manager Appointed) v. The National Fisheries Authority of Papua New Guinea (2002) N2182, I summarised the principles that govern an assessment of damages after the entry of default judgement in the following terms:
“A survey of the authorities on assessment of damages after entry of judgement on liability mainly in default of a defendant’s defence, clearly show the following:
1.	The judgement resolves all questions of liability in respect of the matters pleaded in the statement of claim.
2.	Any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability.
3.	In the case of a claim for damages for breach of contract as in this case, such a judgement confirms there being a breach as alleged and leaves only the question of what damages necessarily flow from the breach.
4.	The plaintiff in such a case has the burden to produce admissible and credible evidence of his alleged damages and if the Court is satisfied on the balance of probabilities that the damages have been incurred, awards can be made for the proven damages.
5.	A plaintiff in such a case is only entitled to lead evidence and recover such damages as may be pleaded and asked for in his statement of claim.”

8.	The Supreme Court in PNGBC v. Jeff Tole (2002) SC694 adopted and applied this summation of the principles. Later, the decision of the Supreme Court in William Mel v. Coleman Pakalia (2005) SC790, did the same. Additionally, however, the Court in that case went further by noting several decisions of the National Court in which the principles were adopted and applied. It then added the following:

“Turning back to the issue raised above as to the role of the trial judge after entry of default judgment, we consider the following to be the correct approach:
the trial judge should make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity;

if it is reasonably clear what the facts and cause of action are, liability should be regarded as proven;
only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability.” 
11.     I adopt and apply the above principles to ensure that default judgment is in order. In the present case, I am satisfied that the pleadings are sufficient, and the cause of action correctly identified. The default judgment was regularly entered in accordance with the requirements of the National Court Rules. I therefore affirm the default judgment and confirm that the judgment resolves all questions of liability. I will now proceed to assessment of damages.

b.	Whether the Plaintiff is entitled to the reliefs sought. 

12.	Whilst the issue of liability is settled, the Plaintiff is still required to prove damages with credible evidence.  Ref: Yooken Paklin v The State (2001) and Samot v Yame (2020) N8266.

13.   In Samot v Yame (Supra), His Honour, David J referring to legal principles to be applied in assessing damages said this at paragraph 46 of his judgment:
“ 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 or identify 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:
•	    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.)

•	    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.)

•	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.)

•	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.)

•	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.)

•	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.)

•	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.)

•	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.)

•	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.)”

14.	The Plaintiff claims the following reliefs in the statement of claim:

      a) 	K 39,845.62-	stolen goods
      b)    K 52,800.00-	outstanding rent	
      c)  	General Damages
      c) 	Interest.
      d) 	Costs

Stolen Goods-	K 39,845.62

15.	The Plaintiff claims K39,845.62 for being the aggregate value of goods stolen, removed or otherwise misappropriated by the Defendant during the term of his employment. Becoming aware of the Defendants misdeeds, the Plaintiff laid a complaint with the Police, and the Defendant was charged with stealing. There is no evidence of the outcome of the criminal proceedings. Although there is no evidence of any criminal conviction, it does not absolve the Defendant from civil liability. The goods including various parts and stock were removed from the Plaintiff company and used or applied in a business run by the Defendant and his wife known as South Pacific Air Tech (SPAT). The Plaintiff produced in evidence a volume of quotations issued by SPAT to its customers. The Plaintiff alleges that the goods supplied to the various customers by SPAT were taken from the Plaintiff. Much of the documentary evidence relied on by the Plaintiff are quotations provided by SPAT to its customers. I am not satisfied with the quality of the evidence although I accept that the Defendant did remove stock and parts from the Plaintiff. In these circumstances, I will allow 70% of the claim only, which amounts to K27,891.93 and will make an award for that amount.

Outstanding Rental arrears-K 52,800. 
 
16.	The Plaintiff claims K52,800.00 being outstanding rental arrears for six (6) months from January to June 2020.The evidence shows the Plaintiff provided accommodation as part of employment entitlement until termination of contract. The Defendants employment contract was terminated in November 2019. The Defendant was required to vacate the rented accommodation by December 2019. The Defendant continued to reside on the rented property and incurred further rental arrears at the rate of K8,800 for a further six months totalling K52,800.00. The evidence shows a statement of the account and invoices issued by Capital Land Limited, real estate agent, to the Plaintiff. I am satisfied with the evidence and will allow judgment for the said amount. 

         General Damages

17. The Plaintiff claims general damages. The head of damages known as General damages is for pain and suffering. This is not an appropriate case for an award. Besides, there is no evidence warranting an award under this head. 

Total award

18.	The total award shall be K80,691.93.

         Interest

19.	The Plaintiff is claiming interest at 8%.  I will allow interest at 8% on the amount assessed.  Interest is to commence from date of Writ of Summons, (12/11/2020) to date of judgment (30/06/ 2025) for a period of 1,691 days.  Interest is calculated as follows:

K 80,691.93 x 8/100	=	K 6,455.35 per annum	
K 6,455.35 /365 days	 =   	K  17.69   per day	
K 17.69 x 1,691 days	=	K 29,913.79	

19.	The total award inclusive of interest is		=	K 110,605.72

	Costs

20.	The Plaintiff is claiming cost.  I will allow cost in its favour.

Orders
21.     The Court orders that:

1.	Judgment is entered for the Plaintiff in the sum of K110,605.72 inclusive of interest.
2.	Post Judgment interest shall accrue at the rate of 8% until settlement.
3.	The Defendant shall pay the cost of the proceedings to be taxed, if not agreed.
4.	Time be abridged.
_______________________________________________________________
Lawyers for the plaintiff: Gamoga & Co Lawyers