N11576

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS 153 OF 2015

SAMSON AIPITA
Plaintiff
v

PORGERA INTERNATIONAL SCHOOL INC t/as
PORGERA SDA INTERNATIONAL PRIMARY SCHOOL
Defendant

WABAG: ELLIS J
7 NOVEMBER  2025

EMPLOYMENT CONTRACT – Written contract for 2011 – employment continued in 2012 – terminated for misappropriation but cleared of that allegation 18 days later – wrongful termination – lost salary and superannuation assessed

Cases cited
No cases are cited

Counsel
 L Toke for the plaintiff
No appearance for the Defendant

JUDGMENT

 1. ELLIS J:  The subject of these proceedings was plaintiff’s employment by the defendant as a primary school teacher and principal, between 9 March 2011 and 4 October 2012.

2.   After a Writ of Summons was filed on 26 February 2015, an Amended Writ of Summons was filed almost six years later, on 29 January 2021.  That Amended Writ of Summons alleged breaches of (1) the plaintiff’s contract of employment, (2) the Employment Act 1987, and (3) the Superannuation (General Provisions) Act 2000.

3.      The claims that were made in the Amended Writ of Summons in respect of those breaches were:

(1)	K22,272.88 for “lost salaries”,
(2)	K16,984.00 for “other lost entitlements (NasFund Contributions)”,
(3)	special damages,
(4)	costs,
(5)	interest at a rate of 8% per annum, and
(6)	“Any other Orders this Court deems fit”.

4.    In contrast to those claims, the written submissions for the plaintiff, annexed to his affidavit in support of his case (CB45, ie page 45 in the Court Book), sought compensation totalling K446,191.40, which was summarised as follows:

1.	Damages for lost salaries and entitlements: K148,691.40;
2.	Damages for the interest accrued on the Loan Account: K52,500.00;
3.	Damages for distress, frustration and humiliation: K50,000.00;
4.	Damages for breach of Constitutional Rights: K50,000.00;
5.	Aggravated Damages: K50,000.00;
6.	Special Damages: K45,000.00;
7.	Exemplary Damages: K50,000;
8.	Costs of the Proceeding;
9.	8% Interest per annum per statute;

History of the proceedings

5.     The Writ of Summons named four defendants.  After the plaintiff filed an affidavit in support of his claim on 31 October 2016, the proceedings did not come before the Court until 5 July 2019.  Following various orders, service of documents, and attempted service of documents, on 29 January 2021 an Amended Writ of Summons, which only named one defendant, was filed.   Further orders and notices of motion occurred sporadically until 15 April 2024 when a hearing date of 2 July 2024 was allocated.  It appears that hearing did not proceed since, on 16 January 2025, a hearing date of 20 January 2025 was allocated.  However, that hearing also did not proceed and nothing further occurred until a call-over of the entire list of civil proceedings in the National Court in Wabag was conducted on 3 October 2025 when today was allocated for the final hearing.  

6.     That there was no appearance for the defendant today is not surprising in view of it (1) never filing any Defence to the Amended Writ of Summons, (2) never lodging any evidence at any time during the period of more than ten years since these proceedings were commenced, and (3) trying to avoid service of documents, including a Notice of Trial.  

Absence of the defendant

7.  A thorough consideration of the file indicates that the defendant is well aware of these proceedings, and its recent strategy has been to refuse to accept documents when attempts were made to serve them.

8. It cannot be accepted that a defendant in civil proceedings can prevent proceedings from being heard by simply refusing to accept documents.  The Court is satisfied that the defendant (1) is aware of these proceedings and (2) has been endeavouring to prevent them from being heard.  In such circumstances, the Court considers it appropriate to hear and determine these proceedings despite there being no appearance for the defendant.

Evidence

9.   The evidence that was admitted at today’s hearing may be summarised as follows, being three affidavits, each sworn by the plaintiff:

Exhibit A	Affidavit of compliance, sworn on 15 April 2024
Exhibit B	Affidavit in support, sworn on 13 October 2022
Exhibit C	Affidavit in support, sworn on 28 October 2016

10. Exhibit A serves to indicate that the registered name of the school which employed the plaintiff is Porgera International School Inc.  Exhibit B, which set out the history of these proceedings, reveals the defendant has showed a lack of interest in defending this claim, including failing to comply with orders for a defence to be filed.

11. Exhibit C referred to and annexed a copy of the plaintiff’s contract of employment CB17.  It was said that the defendant terminated the plaintiff’s employment on 4 October 2012, based on an allegation that he had misappropriated K22,000 of the school’s funds.  After the plaintiff provided an Acquittal Report dated 10 October 2012 (CB22), a letter dated 22 October 2012 (CB23) was issued to “clear his name”.

12. By letter dated 28 October 2013, the plaintiff sought unpaid wages for 14 fortnights and other amounts which totalled K152,166.36 (CB24).  A copy of a pay slip (CB25), seemingly for the fortnight ending 4 July 2012, showing “net salary” of K1,590.92 was also annexed to the affidavit.  A further letter (CB26), dated 28 March 2014, sought 14 fortnights at K1,590 plus National Provident Fund (NPF) contributions for two years, said to be 40 amounts of K230.77, a total of K31,502.88.  A further letter was sent on 13 September 2014 (CB27), attaching a seven-page submission (CB28) which claimed a total of K155,353.50.  

13. The last annexure to the affidavit was a copy of a claim, dated 16 February 2016, that was submitted to the defendant by the plaintiff’s lawyers (CB38), which claimed a total of K446,191.40.   That extravagant claim, which appears to have been what is commonly referred to as an ambit claim, may well have been the cause for the attitude the defendant has recently taken to these proceedings.  This case was clear as to liability and should have been straightforward as to quantum.  It is to be regretted that this case has taken more than ten years to finalise.

14. Obviously, as there was no appearance for the defendant, the plaintiff was not cross-examined.

Submissions

15. The plaintiff’s lawyer noted that there were nine pages of submissions, that were Annexure F to the plaintiff’s affidavit (CB38).  Wisely, the last six of the seven claims set out in that document (CB45) were not pressed the only claim that was advanced was for the loss of salary and entitlements.  Reference was made to the amounts sought in the Amended Writ of Summons, namely K22,272.88 for lost salaries and K16,984.00 for lost entitlements.

Relevant law

16. It is a fundamental principle of the law of contract that, where a written agreement for a term expires, but the relationship between the parties continues, it is presumed that there is an oral contract on the same terms as the written contract.  When a contract of employment is only for a year, then any continuation of the employer-employee relationship can only be for one year at a time.   

Consideration

17. It is clear, from the written agreement dated 9 March 2011 (CN17) that the plaintiff was only appointed for the 2011.  Apart from the numerous references to the year 2011 in that document, a term headed “Appointment” specifically stated “You are appointed by Porgera International school Board of Management through WHM Executive Committee for 2011.”  There was nothing to suggest any long term other than a provision which indicated that the Plaintiff would only be entitled to an annual leave fare at the end of 2012, not in 2011.  Those words do not create any entitlement to employment: only to a leave fare entitlement if the plaintiff’s employment extended to the end of 2012.  The Amended Writ of Summons alleged a possible extension to a second year, but the affidavit evidence did not deal with that aspect.  

18. In those circumstances, as the plaintiff’s initial contract of employment was only for 2011, any renewal of that agreement can only have been an oral agreement on the same basis, ie for the 2012 year.  

19. There is no evidence the plaintiff was entitled to be employed beyond 31 December 2012, and his employment contract would have come to an end at that time. In other words, the defendant could have declined to appoint him for 2013 for any reason and without having to provide the plaintiff with a reason.  In other words, the plaintiff was only entitled to be employed by the defendant until the end of 2012.

20. It is clear the plaintiff was wrongfully terminated, as the allegation he misappropriated school finds was withdrawn after receipt of his acquittal report.  He should have been suspended on full pay while that allegation was investigated.  However, his damages are limited to (1) unpaid amounts at the date of termination, plus (2) amounts he would have received after termination up to 31 December 2012.

21. As the claims for (1) Damages for the interest accrued on the Loan Account: of K52,500.00, (2) damages for distress, frustration and humiliation of K50,000.00, (3) damages for breach of Constitutional Rights of K50,000.00, (4) Aggravated Damages of K50,000.00, (5) Special Damages of K45,000.00, and (6) Exemplary Damages of K50,000 were not included in the Amended Writ of Summons, and were not pressed at today’s hearing, they do not require further consideration.  

22. It is worth noting that special damages, often referred to as out-of-pocket expenses, need to be proved, but no supporting evidence was provided.  There was only an unsubstantiated allegation of K2,000 in the Amended Writ of Summons.  Further, the circumstances of this case are not such as to warrant an award of either aggravated or exemplary damages, which are penal rather than compensatory.

23. Accordingly, it is only necessary to consider (1) what lost salary and entitlements the plaintiff can recover, (2) interest, and (3) costs.

24. Lost salary.  The difficulty in this case is that neither the Amended Writ of Summons nor the plaintiff’s affidavit disclosed to date to which he was paid. Assuming he was paid up to the date of termination, which was 4 October 2012, he is entitled to his salary up to 31 December 2012.  That is a period of 98 days which is 14 weeks or seven fortnights.  The evidence included a pay slip (CB25) that showed a net fortnightly salary of K1,590.92 which gives a loss of K11,136.44.  

25. Entitlements.  That pay slip also records an employee contribution to the NPF of K230.77 per fortnight.  For seven fortnights that amounts to K1,615.39.  While there is no evidence of what the employer contribution percentage is, the Court takes judicial notice of the mandatory rate for an employer contribution being 8.4% of gross basic salary.  Taking 8.4% of K2,307.69 as shown on the pay slip gives K193.85 per fortnight which, for seven fortnights, amounts to K1,356.95.  Any other amounts paid by or for the plaintiff would stand to his credit in the NPF.

26. Summary.  Adding the three amounts calculated above, namely K11,136.44, K1,615.39 and K1,356.95 gives a total of K14,108.78.

27. Interest. The Judicial Proceedings (Interest on Debts and Damages) Act 2015, in s 4(1), provides that “… the court may order a rate as it thinks proper to be applied to the sum for which judgment is given interest, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.”

28. The amounts awarded to the plaintiff are referable to the period from 4 October 2012 to 31 December 2012.  As the amount of K14,108.78 accrued over that period, the Court takes the midpoint of 17 November 2012 which suggests, to the nearest month, a period of 13 years.  As the statutory rate of interest is 8% per annum, the amount payable for interest is 104% of K14,108.78 which is K14,673.13.

29.   Hence, the amount the plaintiff is entitled to be awarded, including interest up to the day of judgement, is K14,108.78 plus K14,673.13 which is K28,781.91.

30. Costs.  There does not appear to be any reasons why costs should not follow the event, ie the outcome of these proceedings.  The conduct of the defendant has been such as to cause the plaintiff to incur significantly more costs.  Plainly, the costs awarded following taxation are less than the incurred costs.  It would be unjust for the plaintiff to have to bear that financial burden.  That conduct on the part of the defendant is considered to warrant an order for costs on an indemnity basis.  As a result, the plaintiff is entitled to an order that the defendant pay his costs of these proceedings on an indemnity basis which, if they cannot be agreed, will need to go through the process known as taxation.

31. Defendant.  Annexure “SA” in Exhibit A suggests the registered name of the plaintiff’s former employer is Porgera International School Inc.  However, the plaintiff’s employment contract shows the name of his then employer as Porgera SDA International Primary School.  As it appears the incorporated body trades under that name, the name of the defendant should be amended.

Orders

32. For the reasons set out above, the following orders are made:

1	The name of the defendant is amended to: Porgera International School Inc t/as Porgera SDA International Primary School.
2	Verdict for the Plaintiff.
3	Judgement for the Plaintiff for K28,781.91 inclusive of interest to date.
4	The Defendant is to pay the costs of the Plaintiff, on an indemnity basis, as taxed if not agreed.
5	Time is abridged so that these orders may be entered forthwith.
Orders Accordingly.
__________________________________________________________________
 Lawyer for the plaintiff: Public Solicitor