N11403

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS No. 179 OF 2022-IECMS CC3

BETWEEN:

LEO KATAL trading as FOREM EL MANAGEMENT SERVICES
Plaintiff

VS

SGT. CHRISTOPHER WASH, POLICE PROTECTION/ESCORT
First Defendant 

AND 

MR. DEAKIN DEGOBA, OFFICER OF EXECUTIVE BRANCH, DEPARTMENT OF PETROLEUM & ENERGY
Second Defendant 

AND 

MR. DAVID MANAU, SECRETARY OF THE DEPARTMENT OF PETROLEUM & ENERGY
Third Defendant 

AND 

THE DEPARTMENT OF PETROLEUM & ENERGY
Fourth Defendant 

Waigani: Carmody J
04 March 2025; 7 August 2025

DAMAGES – Breach of contract - Assessment of damages following entry of default judgment - Self-represented litigant’s entitlement to costs for “time and labor incurred in following up the outstanding payments” - Marriage and family breakdown and medical condition due to stress -  Remoteness of damages - Causation –- General damages with respect to distress, frustration, inconvenience, hardship, anxiety – Loss of business not pleaded

Brief Facts:

The plaintiff entered into four hire car agreements with the defendants.  Full payment was received for the first agreement. No payment was received for the balance of the three agreements. 

From 2019 to 2022 the plaintiff attended upon the offices of the fourth defendant at least weekly in an attempt to obtain payment or resolve the matter. He was repeatedly advised the matter was being dealt with and to return. He was also advised that payments would be received in small amounts. On one occasion he encountered the third defendant personally in the fourth defendant’s reception area. The third defendant was the Secretary of the Department of Petroleum and Energy. The 

Secretary referred the plaintiff to his executive assistant. Despite those attendances nothing progressed.

The plaintiff finally commenced proceedings and claimed for mental and physical anguish and distress as a consequence of his marriage breakdown, the family breakdown and a stroke; loss of business; general damages, costs in relation to  “time and labor incurred in following up the outstanding payments”; and damages pursuant to the Constitution. 

On 2 September 2024 judgment by default with respect to liability was entered for liquidated special damages in the amount of K43, 032.00. Damages were to be assessed.

Held:

(1)	The plaintiff’s marriage breakdown, family breakdown and medical condition were not natural consequences of the breach of the agreements.

(2)	The Fourth Defendant’s conduct was such that, in the circumstances, an award for general damages was warranted with respect to frustration, inconvenience, hardship and anxiety.

(3)	A self-represented litigant is entitled to costs for “time and labor incurred in following up the outstanding payments”. 

(4)	Business loss must be pleaded and strictly proven.

Papua New Guinea Cases:

Kunai v Papua New Guinea Forest Authority [2018] PGNC 439; N7570
Solomay Finance Ltd v Linda Kuri (2017) N7057
Diritala v Jeffery [2009] N3927
Rodao Holdings Ltd v Sogeram Development Corporation Ltd (2007) N5485
Karingu v Papua New Guinea Law Society [2001] PGSC 10; SC674 (9 November 2001)
Luki Trading Ltd v. Selna [2011] PGNC 208
Jonathan Mangope Paraia v The State (1995) N1343

Overseas Cases:
Hadley v. Baxendale (1854) 9 Exch 341

Legislation:
Constitution ss 36, 48, 53 and 58.

Lawyers:
Kaore G, for the Plaintiff
No Appearances, for the Defendants

JUDGMENT

7th August 2025

1.	CARMODY J: Default judgment in the sum of K43,032.00 for liquidated special damages was entered in favour of the plaintiff on 2 September 2024 as a consequence of each of the defendants having failed to file a defence.

2.	A decision with respect to an assessment of unliquidated damages was be conducted by way of affidavit. The plaintiff filed written submissions on 4 March 2025. This is the decision with respect to damages.

Background

3.	The plaintiff was the proprietor of the car hire company Forem El Management Services. On 5 December 2018 he was attending to his 17 year old daughter who was in the intensive care unit in hospital. She had suffered a severe heart attack. While there he was contacted by Senior Constable John Woha of the Traffic Division of the Police Department. He was advised that the Department of Petroleum and Energy (“the Department”) needed to urgently hire a car,  being a Kia Sorento SUV, for the purposes of a police escort.

4.	The plaintiff agreed and the car and keys were collected after lunch that same day by Sergeant Christopher Walsh, a police officer attached to the Department as a police protection/escort officer. The plaintiff’s affidavit filed 20 May 2022 annexes four hire car agreements (“the Agreements”) each signed by Sergeant Walsh. They covered the periods:

-	05 December 2018 to 5 January 2019
-	05 January 2019 to 20 January 2019
-	20 January 2019 to 20 February 2019
-	20 February 2019 to 20 March 2019.

5.	The plaintiff’s evidence is that two payments were made by the Department. His affidavit filed 20 May 2022 exhibits two Departmental remittance advices. The first is dated 21 December 2018 for K12,000. The second is dated 27 March 2019 for K5,732. The combination of those two payments finalised payment with respect to the first Agreement. The balance of the monies remained unpaid despite frequent requests and attendances by the plaintiff on the Department’s offices over a three year period. He was constantly assured by various officers that the matter was being dealt with and told to return. He was also told he would receive small payments over a period. Nothing eventuated.

6.	The plaintiff finally commenced proceedings on 20 May 2022. Judgment by default for liquidated special damages in the amount of K43,032 was entered on 2 September 2024. The plaintiff also sought general and other damages as set out below.

7.	The issue before this Court is what damages should be awarded to the plaintiff? 

The Plaintiff’s Claim

8.	In the plaintiff’s statement of claim, which he prepared as a self-represented litigant, filed 20 May 2022 he avers as follows:

11. The Department and its officer’s utter negligence to due prudence [sic] and diligence in performing their duties had a profound and compounding negative impact causing the following:

a)	My small family business to fail.

b)	Marriage breakup.

c)	Detrimentally caused downward-spiraling effects, on my Psychological and Physical conditions and general health and well-being which led to a Mild Stoke [sic].

d)	Deprived the opportunity to exercise my Right to Freedom of employment through my small family business [Sec.48]

e)	Deprived the Right and Freedom of my family from the benefit of payments for our Property [car] and by keeping and using our car for the comfort of movement, of senior management of the Department, in conducting billions of kina worth of Petroleum and Gas business, for the benefit of the State of Papua New Guinea. [Sec.53]

9.	Under the heading “My Claim” he sought the following:

a.	Humbly ask the Court to include expenses, time and labor incurred in following up the outstanding payments.

b.	Mental and Physical Anguish and Distress.

c.	I humbly ask for the Commercial Bank Interest Rates to be applied on the amount owed.

d.	I ask that the Defendants be judged liable on the issue of liability.

e.	Special Damages be assessed and ordered in the sum of K43,032.00 or any other residual amount, at the time of judgment, if further payments are progressed.

f.	General Damages is assessed if not agreed to.

g.	Interest of Judgment is based on current Commercial Bank interest rate.

h.	Costs.

10.	Under the heading “Special Extraordinary Request” the plaintiff also sought the following: 

i.	I humbly ask this Honourable Court to enforce my Rights or Freedom on Section 36, Section 48 and Section 53 of the Constitution which are all results endured because of this delay in settling the outstanding hire car payments.

j.	I ask for the Honourable Court to invoke Section 58 of the Constitution.

11.	Each of those claims will be addressed separately.

Claim for “expenses, time and labor incurred in following up the outstanding payments”.

12.	From the date of the default of the payments in early 2019 until the commencement of proceedings on 20 May 2022 the plaintiff deposed to constantly contacting and attending upon the offices of the Department seeking payment. He did that for three years.

13.	Despite receiving many assurances from Departmental officers that the matter was being dealt with, and on at least two occasions, that he would be paid although in small amounts at a time,  - he was not. As a result he commenced proceedings as a self-represented litigant and continued to act as a self-represented litigant at various stages up to the delivery of this judgment. He was also, on different occasions, represented by one or other of two firms of lawyers. On those occasions various letters were written by his then lawyers seeking payment and/or giving a s. 5 Notice to the State of the proposed claim. No response was received.

14.	The plaintiff attended court on three occasions either as a self-represented litigant or in the absence of the attendance of his lawyer. Further, and importantly, the plaintiff prepared a number of his own and other affidavits and court documents including the writ of summons and statement of claim. He also personally effected service of all court documents and attended upon the registry on a number of occasions to search the court file prior to seeking judgment by default.

15.	With respect to the plaintiff’s claim for “expenses, time and labor incurred in following up the outstanding payments” two questions arise. 

i.	First, do the “expenses, time and labor incurred in following up the outstanding payments” fall within the description of “the litigant’s in person costs necessarily and reasonably incurred for the attainment of justice” as pronounced by his Honour Judge Kandakasi (as he then was) in Karingu v Papua New Guinea Law Society [2001] PGSC 10; SC674 (9 November 2001)?

ii.	Secondly, in circumstances where the plaintiff conducted parts of the litigation himself, and, on other occasions was represented by a lawyer, is it possible to quantify the plaintiff’s “costs”?

16.	With respect to the first question the answer is yes. In Karingu his Honour undertook a comprehensive analysis of the law with respect to litigants in person and costs. He held that the following kinds of costs were recoverable:

1.	Out of pocket expenses (such as court fees, fares travelling to Court, witness fees, etc.) if they relate to work; or disbursements which would have been done by or made by a solicitor acting for the litigant in person.

2.	Payments made to a legal adviser or any other professional for helping the litigant in person with advice, relevant to the case.

3.	Costs for work done by a litigant in person which caused him or her pecuniary loss (for example a litigant in person who is employed losing a days pay through attending a court hearing or through going on a long journey to interview an essential witness).

4.	Costs for work done by a litigant in person which did not cause him or her pecuniary loss but his leisure (such has holiday or weekend) time.

17.	His Honour found that self-represented litigants were entitled to recover the above expenses particularly in the context of Papua New Guinea and the call for equality of citizens in Goal number 2 of the National Goals and Directive Principles. He noted that Goal 2 included “equalisation of services in all parts of the country, and for every citizen to have equal access to legal processes and all services…”. 

18.	His Honour held that “A successful litigant in person is entitled to recover his costs, that is both his or her legal costs and any out-of-pocket expenses. This however, subject to the Court’s discretion whether or not to order costs and if so, what type and how much, if need be.”

19.	The answer with respect to the second question is also in the affirmative notwithstanding the difficulties in quantifying that figure. The principle enunciated in Jonathan Mangope Paraia v The State (1995) N1343 is applicable - “Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can.”

20.	In order to determine the quantum with respect to this claim a consideration of all of the documents filed in the proceedings and other work undertaken is required. The documents were:

-	Writ of Summons – prepared and filed by the plaintiff on 20 May 2022;
-	Affidavit in Support prepared and filed by the plaintiff on 20 May 2022;
-	Notice of Appearance prepared and filed by Jaminan & Partners Lawyers on 13th March 2023;
-	Affidavit In Support of Edward Kumba prepared and filed by the plaintiff on 21st November 2023;
-	Affidavit In Property Ownership of Maria Katal Barbanau prepared and filed by the plaintiff on 23rd February 2024;
-	Notice of Change of Lawyers prepared and filed by Kaore Lawyers on 05th March 2024;
-	Notice of Motion for Default Judgment for Liquidated Damages prepared and filed by the plaintiff’s lawyers on 25th March 2024;
-	Affidavit of Service prepared and filed by the plaintiff’s lawyers on 25th of March 2024;
-	Affidavit of Search prepared and filed by Kaore Lawyers on 10th July 2024;
-	Amended Affidavit In Support of Default Judgment prepared and filed by the plaintiff’s lawyer Kaore Lawyers on 10th of July 2024;
-	Notice of Ceasing to Act prepared and filed by Jaminan & Partners Lawyers on 12th July 2024;
-	Amended Affidavit of Search prepared and filed by Kaore Lawyers on 07th August 2024;
-	Plaintiff’s amended affidavit in support of default judgment prepared and filed by the plaintiff’s lawyers on 7 August 2024;
-	Affidavit of Service prepared and filed by Kaore Lawyers on the 28th August, 2024;
-	Affidavit of Support on Unliquidated Damages prepared and filed by Kaore Lawyers on 04th of October 2024;
-	Notice of Hearing prepared and filed by Kaore Lawyers on the 30th October, 2024;
-	Plaintiff’s affidavit “in support of loss of business” prepared and filed by the plaintiff’s lawyers on 1 November 2024;
-	Amended affidavit in Support of Loss of Business prepared and filed by plaintiff’s lawyers on 05th December 2024;
-	Submission on Assessment of Damages prepared and filed by the plaintiff’s lawyer, Kaore Lawyers on 04th March 2025.

21.	The affidavits of service demonstrate that the plaintiff personally served all of the court documents on the various defendants at the police dog unit at Bomana, at the National Capital District and at the Grand Columbia Building at Waigani. Significant time would have been expended in that exercise alone.

22.	A consideration of the documents show that a number of the more substantial documents requiring the most time and care were ones prepared by the plaintiff. For example, the writ of 

summons and statement of claim, his various supporting affidavits, and the two witness affidavits. Supporting affidavits, in particular, are onerous documents to prepare. They require the checking of records, dates, the location of relevant documents and other enquiries, let alone the typing of the document, which, on the face of it were typed by the plaintiff or some other person at the plaintiff's direction. Further, attending upon witnesses and eliciting their recollections or other relevant information is also a time consuming exercise. As previously stated the plaintiff also served all court documents, conducted searches of the court file and appeared in court. 

23.	Importantly he also deposed to his many attendances on the Department’s head office trying to obtain payment.

24.Tuesdays and Thursdays were the allocated client’s days in a working week to see officers of the Department with various matters of concern.

25.Whenever I was blessed with a toea in my pocket, I caught the PMV bus. Otherwise, the brutal strength of my body and legs that would carry me, back and forth, from Badili where I used to be and also from Korobosea where I am now to the Department’s office since the 12th of June 2020 [sic]. The Department’s office was located at Waigani central. I still do the walking up to the present day, after the Department was relocated to the Government offices area at Waigani.

26. With an empty stomach and a bottle of water in my hand I would walk very early in the morning as it normally took an hour at the most or more for me to get there, for almost two (2) years, from when the car was taken from me. Most of the time, in a very hot sun, I would return staggeringly and totally wilted and worn out.

28. Your Honour, I was quite a massive unit, weighing 130kg, I dropped to 69kg-70kg. I now dwell between 70kg and 85kg. I used to wear size xxx shirt and size 40 trousers. I now 	wear small or medium sized t’shirts and size 30 and 32 pairs of trousers. My physical appearance clearly shows it all, especially in the eyes of someone who knows me well.

24.	His evidence is supported by Edward Kumba, in his affidavit filed 21 November 2023. Mr Kumba deposes to the plaintiff coming to live with him and his family “when he had nowhere else to go”. He  confirms attendances by the plaintiff on the Department’s offices two to three days a week for a period of a year. I accept that those attendances continued when the plaintiff was not living with Mr Kumba.

25.	Exercising my discretion, as held in Karingu (supra), I am satisfied that a significant figure should be fixed for the time incurred by the plaintiff in attending to those many tasks, to attendances at the Department’s offices frequently as a result of instructions to return, and for his travel time. I have decided that 300 hours is a reasonable figure. 

26.	I will fix the hourly rate at K50 per hour for 300 hours making a total of K15,000 and an additional K2,000 in out of pocket expenses (court fees, paper, travel expenses etc.) totaling K17,000 to be paid directly to the plaintiff.

Mental and Physical Anguish and Distress

27.	The plaintiff also claims for mental and physical anguish and distress. That claim seems to be, at least in part, based on what he considers to be the debilitating effect the non-payment of the debt had on his life and on him personally. In essence he claims  that the non-payment resulted in the breakdown of his marriage, the loss of the family unit, rendered him homeless, and 

28.	caused a stroke which he suffered in 2020 - all of which resulted in him being unable to earn an income.  

29.	His evidence with respect to mental and physical and anguish and distress is substantially contained in two affidavits. In his 20 May 2022 affidavit he states:
16. My wife accused me of mishandling the hire car business with the Department of Petroleum & Energy and therefore, can no longer support me in our marriage. The Non-payment of the hire was a Major Compounding factor which contributed to my wife separating from our Marriage Covenant, destroyed our children’s lives to a normal family unit and pursuing her extra marital relationship with another man.
18. My daughter’s car which was used for the hire was taken away from me by Police upon instructions by my wife, Lucy, on Friday the 12th of June 2020.
19. I have been homeless since the 04th of June 2020.
20. I am jobless and with no form of income since 2018.
21. Since then, for almost two (2) years, I have been living with friends and relatives. I am now living under the roof of a second family home since July 2018.
23. Having no form of income, no pocket money to sustain my personal livelihood and that of my children, I made it my utmost and number one priority to pursue the outstanding claim with the Department of Petroleum and Energy at all costs.
 
30.	In that same affidavit, at paragraphs 29 and 30 he deposes to having suffered a mild stroke which he attributes to the stress caused by the Department’s failure to pay the debt: 

29. In late July 2020, whilst still in Badili, I was struck with a MILD STROKE. I felt strange when I woke up that morning. I cannot move my right arm. For 1 week, I lost my full grip. I could not write using a pen or eat using a table fork and for a while, shakily after that. I now fully recovered from that;…I also could not talk or uttered out a single word clearly, due to the right side of my mouth hardly open for 5 days. Afte a year and months past, I am still having trouble with my speech. Occasionally, I would talk like a starter but on the other hand, thank God, it helps in my self control and for having patience, especially when being asked repeatedly about something that was not clearly heard. It shows clearly and noticeably when I smile or grin in that, my mouth is slightly uneven to the right side. This has improved a lot;…I am also experiencing short term memory loss. When I talked freely and attempting to reiterate to something or topic I was at, I would go blank and embarrassingly stopped abruptly. 

30. Your Honor, I found it difficult to seek medical attention for many reasons, starting with; I did not want to impose on someone else with my personal issues. No one was aware, only the family whom I lived with. Financial incapability is the never ending factor. I thank God Almighty that, it was not a full on stroke.

31.	In his affidavit filed 4 October 2024 the plaintiff states:

11. I was subjected to a lot of stress, and I suffered a series of mental distress that made me lost a lot of weight.

12. The Defendants were the cause of my downward spiraling effects on my psychological and physical condition and general health and wellbeing that led to mild stroke.

14. I also lost my hire car business and the only vehicle used for hire, where I hope to increase my vehicle fleet one of my business prosper but the premature loss  of my business prevented my business from progressing, the vehicle I lost was purchased for the sum of K170,000.00.

32.	The Plaintiff claims K15,000 for these losses in the written submissions filed by his lawyers.

33.	The issue for this Court is whether each of those claims are “too remote” a consequence of the defendants’ failure to pay the outstanding debt. The principles with respect to remoteness 

34.	of damage as a result of a contractual breach were established in Hadley v. Baxendale (1854) 9 Exch 341 where the Court stated:

We think the proper rule in such a case as the present is this: where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e. according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. 

35.	Hadley v Baxendale (supra) has been applied in PNG as part of the underlying law – see Rodao Holdings Ltd v Sogeram Development Corporation Ltd (2007) N5485 and Solomay Finance Ltd v Linda Kuri (2017) N7057. As a result with respect to the issue of remoteness of damage two principles have emerged:

(a)	Damages must arise naturally from a breach of contract i.e. according to the usual course of things; or

(b)	Damages must reasonably have been supposed to have been in contemplation of both parties at the time they made the contract.

36.	As a result Courts must consider whether the damages suffered by the plaintiff are too remote as they are not a natural consequence of the breach or were not the type of damages the parties considered would arise at the time of entering into the contract.

Marriage Breakdown and Loss of Family Unit

37.	Applying the above principles it is clear that a marriage breakdown is too remote a consequence of the defendants’ failure to pay the debt. While this Court accepts that stresses relating to the debt would have impacted adversely on the marital relationship it must also be noted that marriage breakdowns are complex matters often arising from a range of factors. That claim fails.

38.	The above consideration also applies to the loss of the family unit. That claim fails.

Stroke

39.	There is no medical evidence with respect to the plaintiff having suffered a stroke or that the stroke was a result of the unpaid debt. The plaintiff explains why he has not attended upon a doctor and that he has no income. That fact  may also have impacted upon his ability to obtain medical evidence.
 
40.	Mr Kumba deposes to what he believes was the plaintiff suffering a mild stroke. He deposes to the plaintiff struggling with communication, his right hand being affected and that he could not use his fingers to do or hold things for “weeks and months”.  

41.	This Court accepts that the plaintiff may have suffered a medical episode, possibly a stroke. This Court also accepts that the position in which the plaintiff found himself with an unpaid debt, a marriage breakdown, the loss of his family and his business would have been traumatic and stressful. I note also that he had a seriously ill child at the time. However the test established in Hadley v Baxendale (supra) is clear – a stroke or other significant medical event is not a consequence which arises naturally or would have been in the contemplation of the parties – it is simply too remote. In the absence of any medical evidence and by way of the application of the legal principles with respect to the remoteness of damage this claim also fails.

Business Loss

42.	The plaintiff is also claiming for the loss of the Kia, the loss of the car hire business and the loss of his family’s right to earn an income.  In his various affidavits including those filed 4 October 2024, 1 November 2024 and 5 December 2024 the plaintiff deposes as to the business losses and quantifies the loss at K1,214,200.80. The written submissions filed by the plaintiff’s lawyer also quantify that loss as K1,214,200.80. 

43.	There are a number of difficulties with this claim. The first being that the statement of claim does not plead business loss. It makes a fleeting reference to s. 48 of the Constitution and a Right of Freedom of Employment but does not include the type of business loss contended for by the plaintiff. For that reason alone the purported business loss part of the claim must fail.

44.	Out of an abundance of caution I  note here that even if the claim had been pleaded with sufficient particularity the probity of the evidence in support of the claim is questionable. The documents annexed to the plaintiff’s various affidavits purportedly supporting his business loss are deficient. They appear to be self-generated documents setting out income which in no way disclose a number of relevant facts including the significant expenses that a car hire company would incur – insurance, repairs and maintenance, office and other purchases, salaries and so on. As stated in  Luki Trading Ltd v. Selna [2011] PGNC 208 with respect to similar claims the loss “must be strictly proven with the production of appropriate business records, accounting records, bank statements and even tax or company returns”.  I accept that in a small family business a number of those documents may not be available but the plaintiff has not provided any documents upon which I am prepared to place any weight. 

45.	There is a further impediment to a business loss claim. The Kia was not owned by the plaintiff but by his daughter. His daughter deposes to authorising the plaintiff to use the car for business purposes. However the loss of the Kia arose as a result of the marriage breakdown when it was returned to his wife (see paragraph 28) and suffers from the application of the same remoteness principle as that which was applied in respect of the marriage breakdown itself.

46.	For all of those reasons the claim for business loss is dismissed.

Mental Anguish

47.	As explained above the above claims for damages are dismissed. However I accept that the Department’s failure to pay the debt would have caused the plaintiff considerable emotional distress, or to use his term “mental anguish”. I also note that he was dealing with a child who had suffered a severe heart attack. The loss of income at such a critical time would have had a severe emotional impact on the plaintiff. I accept that there is no evidence to that effect, 

48.	other than what the plaintiff has deposed to throughout his evidence. However I accept his evidence as credible and award K5,000 for mental anguish. 

General Damages – Distress and Frustration

49.	Although the plaintiff has failed with respect to his claim in relation to his marriage breakdown, loss of the family unit, a stroke and business loss he also claims general damages. 

50.	General damages can include the distress and frustration he has suffered at the hands of the defendants, and in particular at the hands of the Department. In Diritala v Jeffrey [2009] N3927 his Honour Justice Cannings explained why such a claim could succeed:

12. I will now assess a special type of general damage that was not expressly claimed in the statement of claim, but which I consider can be accommodated within the claim for general damages, as it has impliedly been sought: a claim for the distress and frustration endured by the plaintiff as a result of the defendant's breach of contract. The plaintiff has testified that the defendant's failure to abide by the contract caused him great inconvenience, hardship, distress and anxiety. This is understandable. He has tried to get the matter settled out of court but the defendant has been uncooperative.

13. I award general damages calculated at half of the unpaid balance of the purchase price (K5,600.00): K2,800.00.

51.	His Honour referred to the plaintiff testifying to the “great inconvenience, hardship, distress and anxiety” caused to the plaintiff by the defendant’s conduct. That is analogous to what the plaintiff in the case before this Court swears to in his affidavit filed 20 May 2022. I refer to the description he provided earlier in this decision with respect to his many trips to the Department  in an attempt to obtain payment.

52.	In his affidavit filed 20 May 2022, at paragraph 31, the plaintiff states:

In connection to Part 4, Your Honour, the following were what I would normally receive from the security guards at the gate or from the staff attending the reception at the Department of Petroleum and Energy’s office and from Deakin, the officer handling my claim. Deakin was then with the Corporate Branch and since the middle of last year 2021, he was reassigned to the Executive Branch under the Secretary of the Department. I normally got verbal remarks such as:

a.	“Deakin no kam in today, kam bek gen.” (I would return on the very next client’s vising day)
b.	“Deakin drive out, yu wait autsait long gate.”
c.	Sometimes I waited for the whole day and returned without a word from the officer.
d.	“Warrant i no redi, bai yu kam bek na chek gen”
e.	“Claim blong yu stap wantaim Secretary yet long givim ok:
f.	“Nogat moni, moni pinis, bai yu wait i go next month.”
g.	“I gat sampla moni stap, bai mi na EO traim toktok wantem Secretary long pay liklik liklik every month.”
h.	“Secretary wants more paper and clarification.”
i.	“Claim blong yu stap aninit long legacy bills.”
j.	“Liklik moni i bin stap tasol Secretary usim pinis igo lo wok blong Minister.”
k.	“I gat moni tasol Secretary I no laik long pay na tok long givim claim long Director Corporate long chekim na painim moni na pay.”

53.	In summary the plaintiff asserts that he was told, inter alia, “Your claim is with the Secretary”, “There is no money, the money has run out, you will need to wait till next month”, “There is some money, I will talk to the Executive Officer to the Secretary to pay bits of it every month”, “There was a small amount of money but the Secretary used it for the Minister’s work”, “The warrant is not ready, so come back and check again”, “Your claims are under Legacy bills”. 

54.	The above reports have a ring of truth. They provide details of information as to the internal workings of the Department which are unlikely to be known to the plaintiff. The inclusion of the name “Deakin” as being an employee of the Department and the details of the relocation of “Deakin” to another branch demonstrates information which would not otherwise normally be known to the plaintiff. 

55.	In that same affidavit the plaintiff also deposes to meeting Mr David Manau, the Secretary of the Department, in the reception area of the Department’s offices. He says he asked Mr Manau for an appointment with respect to the outstanding invoices and handed Mr Manou an Appointment Request Form, being a Departmental document.  He says Mr Manou took the form and made a notation on it. That documents is attached to his affidavit. The form bears the Department’s receipt date stamp noting the date as 12 January 2021. The notation is “Mr James Ketowa assist and call me.” The plaintiff says Mr Ketowa was Mr Manau’s executive officer.

56.	Attached to that affidavit are two letters written personally by the plaintiff and addressed to Mr Manau dated 27 August 2021 and 15 March 2022 being demands for payment. Those letters are in addition to ones authored by the plaintiff’s lawyers which are also attached to the affidavit.

57.	Given that the defendants failed to file a defence or affidavits in this matter the only evidence before this Court is that of the plaintiff. I accept the plaintiff’s version of events with respect to his attempts to be paid and his attempts to resolve the matter. 

58.	His constant attendances upon the Department coupled with his attempts to resolve the matter rather than commence court proceedings demonstrate that the plaintiff did all that he could to resolve the matter. He was, to some extent, clearly led to believe that the Department was diligently attending to his claim, and that payment would be forthcoming. It was not.

59.	The Plaintiff has sworn of the effect on him of the Department’s failure to pay the debt.  I accept that what the plaintiff has had to endure as a consequence of the defendants’ conduct and, in particular, the conduct of the Department would have resulted in very significant distress and frustration.

60.	I therefore adopt and apply the method of calculation used by his Honour in Justice Cannings in Diratala (supra) and award general damages calculated at half of the unpaid balance of the hire car agreements. The unpaid balance was K43, 032.00. I award the plaintiff K21, 516.00.

61.	I consider this aspect of the claim to be separate and distinct from the “mental anguish” damages awarded earlier in this decision. The emotional distress here is as a result of the treatment by the Department where the plaintiff was constantly led to believe that the matter was being dealt with, or that payment would be forthcoming,  or that he must return for the matter to be addressed, or that he must wait until the Department received further funds. The constant upheaval in his life of the anticipation of payment and then disappointment would have been a debilitating factor in his life. 

62.	I note also that the Department, at all times, knew that the plaintiff, through his company, was entitled to the outstanding moneys. That was because the Department had already paid, in two installments, the first invoice. There was clearly no dispute to his right to be paid.

Commercial Bank Interest Rates

63.	Although the plaintiff included Commercial Bank interest rates in his statement of claim he failed to adduce any evidence in relation to prevailing commercial interest rates. - See Kunai v Papua New Guinea Forest Authority [2018] N7570. 

64.	In any event the Court is bound by the Judicial Proceedings (Interest on Debts and Damages) Act 2015 s. 2 which applies to all Court orders after 1 January 2014 and s. 4 which provides interest at 2% in relation to the State. That rate is applicable to the Department.

Constitutional Breaches

65.	The Plaintiff claimed that his constitutional rights under sections 36, 48 and 53 of the Constitution were breached. He asks this Court to enforce his rights by invoking section 58 of the Constitution. The statement of claim does not include particulars of these claims. The constitutional provisions are set out below:

36 Freedom from inhuman treatment.
(1) No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman or is inconsistent with respect for the inherent dignity of the human person.
(2) ...

48 Freedom of employment.
(1) Every person has the right to freedom of choice of employment in any calling for which he has the qualifications (if any) lawfully required, except to the extent that that freedom is regulated or restricted voluntarily or by a law that complies with Section 38 (general qualifications on qualified rights), or a law that imposes restrictions on non-citizens.
(2) ...

53 Protection from unjust deprivation of property.
(1)	Subject to Section 54 (special provision in relation to certain lands) and except as permitted by this section, possession may not be compulsorily taken of any property, and no interest in or right over property may be compulsorily acquired, except in accordance with an Organic Law or an Act of the Parliament, and unless—

(a) the property is required for—
(i) a public purpose; or
(ii) a reason that is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind...

58 Compensation.
(1) This section is in addition to, and not in derogation of, Section 57 (enforcement of guaranteed rights and freedoms).
(2) A person whose rights or freedoms declared or protected by this Division are infringed (including any infringement caused by a derogation of the restrictions specified in Part X.5 (internment)) on the use of emergency powers in relation to internment is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.
(3) Subject to Subsections (4) and (5), damages may be awarded against any person who committed, or was responsible for, the infringement.

66.	With respect to s. 36 other than the plaintiff’s understandable stress in relation to the defendants’ conduct, no evidence has been adduced by the plaintiff to show that the defendants have subjected him to inhuman treatment. That claim fails.

67.	Similarly with respect to s. 48 the plaintiff has not shown how the defendants have restricted him from exercising his freedom of choice of employment. The plaintiff was free to seek other forms of employment to mitigate his losses whilst waiting for the payment. That claim fails.

68.	The situation is the same with respect to s. 53. Section 53 applies to property in the form of land. There is no issue with respect to land. That claim fails.

Interest
 
69.	I note that on 2 September 2024 when entering default judgment I ordered interest at 8% and costs in the cause. I did not pronounce a date from which interest was to be calculated. Given the efforts made by the plaintiff to resolve this matter interest is awarded from the date on which the cause of action accrued which, I find, was 5 January 2019. That was the due date of payment as stipulated in the second Agreement.

70.	My order with respect to 8% interest was an error. I am bound by the Judicial Proceedings (Interest on Debts and Damages) Act 2015 which provides that interest is 2% with respect to the State. I therefore dismiss the order with respect to interest made on 2 September 2024.

ORDERS:

1.	The Defendants shall pay the Plaintiff damages forthwith in the amount of  K43,516 in addition to the damages in the amount of K43, 020 ordered on 2 September 2024.  

2.	The order with respect to interest made on 2 September 2024 is discharged and in its place the Defendants shall pay interest in the amount of 2% pursuant to the  Judicial Proceedings (Interest on Debts and Damages) Act 2015 such interest to be calculated from 5 January 2019 on so much of the total judgment sum which is, from time to time, unpaid. 

3.	The Defendants shall pay the Plaintiff’s lawyers, Jaminan & Partners Lawyers and Kaore Lawyers, the costs of the proceedings with respect to the work undertaken by each of them, on a party and party basis, to be taxed if not agreed.
   
The Court orders accordingly.
________________________________________________________________
G. Kaore, for the Plaintiff
No Appearances, for the Defendants