N11751

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS (HR) 38 OF 2023

ROBERT DAU
Plaintiff 

v 
 
LEO MAPMANI, Provincial Administrator, West New Britain Province
First Defendant  
 
WEST NEW BRITAIN PROVINCIAL ADMINISTRATION 
Second Defendant  

KIMBE: ANDELMAN J
11 FEBRUARY, 13 MARCH  2026

DAMAGES – assessment – after entry of default judgement – assessment of compensatory damages for breach of human rights under ss 57, 58 and 155(4) of the Constitution – employment context. 

The plaintiff was employed as the District Administrator for Talasea District of West New Britain Province. While the plaintiff was on recreational leave, a former member for Talasea Province wrote a letter to the second defendant asking for the plaintiff to be suspended from his office and for another person to be appointed. As a result, the plaintiff was suspended. After about three months the charges were withdrawn but the second defendant refused to reinstate him to his role. The plaintiff sought a review of the decision by the Public Service Commission, who determined that all charges and suspension be withdrawn, his final entitlements be paid to him and that the plaintiff be retired retrospectively from 15 April 2018. The plaintiff commenced human rights proceedings in this court seeking reinstatement and damages.  On around 12 December 2020 an agreement was reached that the second defendant would pay the plaintiff his employment entitlements and reinstate him in another role and that the plaintiff would be compensated for breaches of the Constitution. This proceeding commenced in 2023 is a human rights claim for damages.

Cases cited

Doworop v Yartie [2025] PGNC 343; N11495 
Kapigeno v Central Bank of Papua New Guinea [2020] PGNC 2 
Madang Timbers Ltd v Matthew [2015] PGSC 53; SC2749 
Special Reference Pursuant to Constitutional Section 19 Section 365 of the Income Tax Act [1995] PGSC3; SC482  
State & Constable Haro v Kei [2024] SC2550.
William Mel v Coleman Pakalia & Ors (2005) SC790

Counsel 

Mr B Takua, for the plaintiff

1.	ANDELMAN J: This is a decision on assessment of damages for breach of human rights in the Constitution. The plaintiff made three claims in the statement of claim filed on 1 September 2023:

a.	Damages for breach of ss 37, 41 and 59 of the Constitution of K200,000
b.	General damages of K250,000
c.	Exemplary damages of K50,000

2.	Plaintiff also seeks interest and costs.

3.	Judgment on liability was entered for the plaintiff on 10 March 2025. This is a decision on the assessment of damages.

4.	I am satisfied that the defendants’ solicitor, Mr Paraka was aware of the hearing on the assessment of damages as the hearing was set down on 8 October 2025 for 11 December 2025 and he was notified by both letter and email by the Kimbe National Court Registry on 17 December 2025 and 18 December 2025 respectively that the hearing date was relisted to 11 February 2026. 

ISSUES FOR DETERMINATION

5.	The plaintiff relied on a Statement of Agreed & Disputed Issues (Agreed Statement) signed by the solicitor for the plaintiff and the solicitor for the defendants and filed on 29 May 2025.

6.	The Agreed Statement set out the issues as follows:

a.	Whether or not the plaintiff is entitled to the amount sought under each of the heads of damages in the statement of claim? 
b.	If not what would be the appropriate amount the court would award under each of the heads of damages sought by the plaintiff?

PLAINTIFF’S EVIDENCE

7.	The plaintiff commenced working with government in 1977. In 2000 he was appointed by the second defendant as the District Administrator of West New Britain Province.

8.	While the plaintiff was on annual leave, he received a Suspension Letter and a General Order No 9 - Notice of Disciplinary Charges dated 31 January 2019 (Suspension Notice).

9.	The Suspension Notice alleged that Mr Dau was negligent or careless in the discharge of his official duties whereby he committed a breach of the Public Services (Management) Act 1995 (PSM Act) including general order 9.26 of the Public Service Code of Ethics and Conduct and the Financial Management Act by authorising 100% upfront payments to contractors to undertake project work on several school infrastructures in the District and squandered an estimated K15 million.

10.	The allegations in the Suspension Notice were based on an unsigned letter purportedly from the Acting Secretary, Department of Personnel Management (DPM) dated 11 January 2019.

11.	The Suspension Notice, signed by the Provincial Administrator stated that Mr Dau was suspended indefinitely with pay pending allegation of serious charges by the Honorable Member for Talasea District, Honorable Francis Galia Meneke MP. The letter was also sent to:
a.	The Minister for Public Service
b.	Honorable Governor WNBP
c.	Member for Talasea District
d.	Secretary DPLA
e.	Deputy Provincial Administration – Field Services
f.	Deputy Provincial Administration – Corporate Services
g.	Acting Principal Advisor – Human resources Development
h.	Acting Secretary – DPM

12.	Mr Dau responded to the Suspension Notice on 13 February 2019.

13.	On 2 May 2019, Mr Dau received a Notice of Dismissal of the Charges under s 52 of the PSM Act. Despite dismissing the charges, the second respondent advised that Mr Dau would be sidelined from his duties pending further investigations.

14.	 Mr Dau immediately applied for review of the second defendant’s decision to the Public Service Commission (PSC). Mr Dau raised seven grounds:
1)	the letter from the Secretary, DPM to the Provincial Administrator to suspend him was not signed;
2)	 he was still on leave and the charges were served on him by a policeman on the streets even though all public service avenues were not exhausted; 
3)	 the copies of charges and suspension served on him by the policeman was not signed as witness;
4)	 the three charges were too broad;
5)	 no specific projects were referred to;
6)	he believes that the charges and suspension was politically motivated by the Member for Talasea and John Potti to remove him and place their cronies to facilitate their outstanding payments; and 
7)	the response from the Provincial Administrator or the Disciplinary Committee was well overdue after 21 days.
15.	As to the first issue, the PSC found that the letter purportedly written by the Acting Secretary DPM has no credible value. However, the PSC found that there was no obligation on the defendants to consult with the plaintiff prior to determining that he be charged and side-lined.
16.	As to the second and third issues, the PSC found that the plaintiff’s argument had no merit.

17.	As to the fourth and fifth issues, the PSC found that the letter was defective in that the charges were broad and unspecified, the charges lacked merit and the suspension was based on a baseless charge. The PSC found that the disciplinary process was breached, even if as the defendants submitted to the PSC, there was a restructure. The PSC found that the suspension was unfair and contrary to s 33(4) and (5) of the PSM Act.

18.	 As to the sixth issue, the PSC found that it had no jurisdiction to deliberate on the issue.

19.	As to the seventh issue, the PSC found that the nine month suspension period was excessive and unreasonable and should have been ‘probably a month’.

20.	Section 33(4) and (5) of the PSM Act is in the following terms:

(4)   Where -  
(a)   a Department is re-organized; and
(b)   the re-organization affects numbers of offices and/or designations of offices or of a class of offices, the Departmental Head of the Department of Personnel Management may, by notice in the National Gazette, deem those offices or classes of offices not to be affected by the re-organization.
 
(5)   Substantive occupants of offices or classes of offices the subject of a National Gazette notice under Subsection (4) shall retain their offices and such offices shall not be advertised.

21.	As to the period of the suspension, the PSC referred to clause 15 contract of employment which placed an obligation on the Department Head to expedite the allegations in the shortest possible time to determine whether termination for cause exists while the officer is suspended.

22.	 Clauses 14 and 15 of the employment contract as set out in the SCR Report are:
 Disciplinary Suspension for Investigative Investigatory Purposes 
14. In the events that the evidence is presented to the Department Head of serious misconduct by the Senior Officer, which may require the laying of disciplinary charges, the Departmental Head shall determine whether or not grounds for suspension exist. 
15. Grounds for suspension related to allegations of serious offences listed under clause 11 “Termination for Cause” and having determined such grounds, the Departmental Head may suspend the Senior Officer on full pay and shall expedite and investigation (sic) of the of the allegations in the shortest possible time.

23.	The PSC determined that the second defendant’s decision and that of the Disciplinary Committee was unlawful and quashed the decision and directed that Mr Dau be paid his entitlements.

24.	As to retirement age, the PSC found that Mr Dau was well beyond retirement age as he had reached 61 years by 15 April 2018 and that pursuant to s 56 of the PSM Act Mr Dau is prohibited from occupying and performing duties as a public servant as this would be illegal and not recognized by law.

25.	The PSC on 21 October 2019 determined that within 30 days:

a.	 all charges and suspensions laid against the plaintiff be withdrawn; 
b.	that the plaintiff be retired retrospectively from 15 April 2018; and
c.	that the plaintiff be paid his final entitlements and that any payments made retrospective from 15 April 2018 to the plaintiff be refunded from his final entitlements.
26.	Mr Dau was not able to return to work following the decision of the PSC and was not paid his entitlements and allowances within 30 days. 

27.	On 25 November 2019 Mr Dau commenced a Human Rights Proceeding styled HR no. 413 of 2019 (human rights proceeding) claiming breaches of ss 32,35,36,37 and 46 of the Constitution. On 25 November he filed a supporting affidavit seeking compensation for pain and suffering during the suspension period, compensation for defamation, reinstatement and payment of outstanding employment entitlements.

28.	On around 12 December 2020 discussions ensued and the defendants agreed to offer the plaintiff a new employment position as Deputy Administrator Social Services as well as payment for entitlements with claims for general damages and breach of human rights to be negotiated. On this basis the plaintiff withdrew the human rights proceeding.

29.	 Consequently, the defendants settled all claims for employment entitlements and reemployed the plaintiff in the position of Deputy Administrator Social Services but did not pay any amounts for breaches of the Constitution. As a result, the plaintiff brings this human rights proceeding alleging breaches of ss 39, 41 and 59 of the Constitution.

ASSESSMENT OF DAMAGES

30.	As to the assessment of damages following entry of default judgement, in William Mel v Coleman Pakalia & Ors (2005) SC790 Los J, Jalina J and Cannings J stated that in assessing damages the following principles should apply:
a.	 The plaintiff has the onus of proving his loss on the balance of probabilities
b.	Corroboration of a claim is usually required and the corroboration must come from an independent source.
c.	The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. 
d.	 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. 
e.	 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. 
f.	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. 
g.	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. 
31.	The claim for damages as set out in the statement of claim arises from contravention of ss 39, 41 and 59 of the Constitution. The reference to s 39 is a typographical error and the reference is intended to be to s 37 of the Constitution.

Constitutional Claim
32.	At paragraph 21(b)(i) of the statement of claim it was pleaded that:
The plaintiff was not accorded his right to protection of the law when the defendants upon dismissing the administrative charges continued to have the plaintiff suspended indefinitely when they sidelined the plaintiff pending further investigation. The plaintiff's right to protection of the law was further infringed when defendants failed to give effect to or execute the Public Service Commission's decision of 21 October 2019.
33.	At paragraph 22 of the Statement of Claim the plaintiff pleaded:
The defendants are therefore liable to settle the claim for general damages for pain and suffering and pursuant to section 58 of the Constitution, damages for breach of human rights as a result of their wrongful and unlawful actions, inactions and or omissions and of their employees servants and agents which amounted to infringement or breach of the plaintiffs rights as pleaded herein. 

34.	Dealing first with a contravention of s 37 ‘Protection of the Law’ of the Constitution. Section 37(1) states:

“Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available especially to persons in custody or charged with offences”.

35.	In Special Reference Pursuant to Constitutional Section 19; Section 365 of the Income Tax Act [1995] PGSC3; SC482, Amet CJ, Kapi DCJ and Los J held that s 37 of the Constitution on its own is not capable of providing any particular remedy and that one has to consider the particular provision in the ‘law to determine the precise nature of the protection.’

36.	In this claim, there was no reference to the “law” in either the pleadings, evidence or submissions. Leave was given to the plaintiff to file written submissions following the hearing to address the court on this point. The plaintiff failed to address the issue. I consider the statement of claim to be poorly drafted as it fails to set out which legal protection the plaintiff did not have the full right to.

37.	In Kapigeno v Central Bank of Papua New Guinea [2020] PGNC 2, Cannings J stated at [8] - [9] that human right claims may have relevance to employment claims as human rights conferred in the Constitution have universal application and may be regarded as “implied terms of the contract of employment.”  I take that to mean that a breach of a contract may also involve a breach of a term of the Constitution. A contract cannot by its terms exclude the rights conferred in the Constitution, but a breach of a contract does not automatically lead to a breach of the Constitution.

38.	Secondly, Cannings J stated that it is not usual for the court to determine the merits of the claim. The court’s role is to assess the elements of the cause of action pleaded and “to determine the legality”.

39.	While in this claim, there was no pleading of a breach of a contract or a breach of any legislation, it may be inferred that the reference in paragraphs 21(b)(1) and 22 of the statement of claim is to s 33(5) of the PSM Act as to occupants remaining in office during a restructure and clause 15 of the contract of employment as to the period of suspension is the law on which the plaintiff claimed liability.

40.	The other allegation in paragraph 21(b)(i) of the statement of claim that the defendants failed to give effect to or execute the PSC's decision of 21 of October 2019 has not been made out by the plaintiff. The PSC Report did not order the defendants to reinstate the plaintiff, in fact they determined that he be retrospectively retired from 15 April 2018.

41.	I consider that the plaintiff’s evidence as to reinstatement and period of suspension to be contradictory and confusing. Based on the findings in the PSC Report, Mr Dau had no entitlement to be reinstated. 

42.	I accept that the plaintiff has proved that pursuant to s 33(5) of the PSM Act, he should not have been suspended and the period of his suspension was excessive. On this basis the court can determine damages for the plaintiff for being charged with serious allegations and suspended with pay for about 9 months. I award K5 000.

43.	As to a contravention of s 41 of the Constitution, the plaintiff pleaded:
The defendants’ unfair and discriminatory conduct and approach towards the plaintiff was harsh and oppressive and unjustifiable within the meaning of section 41 of the Constitution. 
44.	It is entirely unclear whether the reference to the defendants’ conduct referred to is the same or different to the conduct referred to as s 37 of the Constitution. The words in paragraph 21 that the contravention is based on defendants’ acts set out in ‘foregoing paragraphs’ is too vague and opaque.  The plaintiff has failed to plead the material facts to make out a contravention of s 41 of the Constitution.
45.	I do not understand what the word ‘discriminatory’ means. There was no evidence or allegation that Mr Dau was treated differently compared to another person in the same or similar position.

46.	Furthermore, in Madang Timbers Ltd v Matthew [2015] PGSC 53; SC2749, Collier J, Carmody J and Crowley J at [33] held that a breach of s 41 does not attract compensation pursuant to s 58 of the Constitution. 

47.	In regard to a contravention of s 59 of the Constitution, the plaintiff pleaded that he was unfairly treated. I find that the pleading is so poorly drafted that the court cannot establish whether liability can be established.

48.	Furthermore, in Doworop v Yartie [2025] PGNC 343; N11495, Narokobi J held that no compensation pursuant to s 58 of the Constitution flows from a contravention of s 59 of the Constitution on the basis that s 59 comes under Division 4 and is not a Basic Right within Division 3 of the Constitution.

49.	I decline to award any damages for breaches of ss 41 and 59 of the Constitution.

General Damages Claim

50.	The plaintiff claimed general damages for pain and suffering for nearly two years of suspension from employment denying his employment entitlements and privileges due to oppressive and discriminatory conduct of Mr Mapmani, the Provincial Administrator, West New Britain Province.

51.	However, as set out above according to the PSC decision on which Mr Dau relied, Mr Dau was not entitled to be working from 15 April 2018, which was prior to the suspension from January 2019.

52.	The plaintiff’s affidavit evidence was that there was an agreement between himself and the second defendant that he would settle the claim for general damages and breach of human rights.

53.	The evidence is contrary to contemporaneous documentary evidence filed by the plaintiff. Annexure K to Exhibit P1 is a letter the plaintiff wrote to the Provincial Administrator on 19 May 2021 seeking some compensation to be paid. The letter does not refer to any prior specific agreement between the parties. The amount of compensation is not specified.

54.	I do not accept, based on the plaintiff’s own documentary evidence that there was a firm agreement between the plaintiff and the defendants that the defendants would pay him a specific amount for damages stemming from breaches of human rights.

55.	I also cannot make factual findings about the state of mind of the plaintiff’s wife or children or about the plaintiff’s loss of reputation as there is no specific evidence before the court from the plaintiff or his wife or his children.

56.	The plaintiff’s evidence of distress and anxiety was uncorroborated. However, I accept that he would have been shocked and distressed when he was suspended with pay in January 2019. The letter contained serious charges and was distributed to a number of people in senior positions. I also accept that he should not have been sidelined indefinitely in May 2019. I award K10 000 as general damages.

Exemplary Damages Claim

57.	In considering whether to exercise discretion in awarding exemplary damages the court must consider whether there has been a breach of constitutional rights so severe or continuous as to warrant exemplary damages: State & Constable Haro v Kei [2024] SC2550.

58.	I do not consider that there has been a breach of constitutional rights so severe or continuous as to warrant exemplary damages. The breach comprised of two related incidents, which was the laying of the charges on or about 24 January 2019 and second is the failure to investigate within ‘the shortest period of time” determined by the PSC to be 1 month. The defendants took about 9 months to make the decision.

Interest and Costs

59.	The plaintiff has had some success in his claim. On this basis I will order that the second defendant to pay the plaintiff’s legal costs on a party and party costs as agreed or assessed.

60.	I award interest on the total amount of damages at the rate of 8% per annum pursuant to section 4(1) of the Judicial Proceedings (Interest on Debts and Damages) Acts 2015.

Orders

61.   I make the following orders:

a.	The second defendant shall pay the plaintiff damages of K15,000.
b.	The second defendant shall pay interest at 8% from the date the proceedings commenced until date of judgement pursuant to section 4(1) of the Judicial Proceedings (Interest on Debts and Damages) Acts 2015.
c.	The second defendant shall pay the plaintiff’s costs on a party and party basis as agreed or assessed.
________________________________________________________________
Lawyers for the plaintiff: Takua Lawyers