Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Kamburi v Chief Ombudsman [2009] PGNC 211; N3895 (9 July 2009)

N3895

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 322 OF 2009

BETWEEN:

RODERICK KAMBURI
Plaintiff/Applicant

AND:

CHRONOX MANEK, CHIEF OMBUDSMAN
First Defendant/Respondent

AND:

JOHN NERO as OMBUDSMAN
Second Defendant/Respondent

AND:

PHOEBE SANGETARI as OMBUDSMAN
Third Defendant/Respondent

AND:

JOHN NERO as OMBUDSMAN
Fourth Defendant/Respondent

Waigani: Gavara-Nanu J
2009: 8 & 9 July

JUDICIAL REVIEW - Application to stay – Implementation of new substantive appointment to a position within the Ombudsman Commission – Contract of employment for the applicant expiring – Granting a stay would interfere with good administration within Ombudsman Commission – Grant of stay would be contrary to established principles relating to contract of employment.

Cases cited:

Gary McHardy v. Prosec Security and Communication Ltd [2000] PNGLR 279
Golobadana No. 35 Ltd v. Bank of South Pacific Ltd (2002) N2309
Mainland Holdings Ltd v. Paul Robert Stobbs (2003) N2522
Mathew Petrus Himsa v. Richard Sikani (2002) N2307
Robinson v. National Airlines Commission [1983] PNGLR 476
Sulaiman v. PNG University of Technology (1987) N610
Tom Gesa v. Bernard Kipit (2003) N2457
Thadeus Kambanei v. NEC N3064
Wijekoon v. UPNG (1989) N715
Young Wedau v. Alfred Daniel [1995] PNGLR 357

Counsels:

K. Nugi, for the plaintiff/applicant
V. Narokobi, for defendants/respondents

1. GAVARA-NANU J: This is an application made pursuant to a Notice of Motion filed by the plaintiff/applicant ("plaintiff") on 22 June, 2009, seeking orders that first to fourth defendants ("defendants"), their servants and or agents be restrained or prohibited from taking any further action against the plaintiff in any manner or form until the substantive issues are determined by the Court.

2. The plaintiff also seeks orders that Ombudsman Commission not to interfere with the duties of the plaintiff as the Director of Leadership in the Ombudsman Commission in any manner or form pending the determination of the substantive issues by the Court.

3. The plaintiff seeks further orders that the respondents refrain from implementing the new substantive appointment to the position of Director of Leadership within the Ombudsman Commission made on 2 June, 2009, which is the subject of these proceedings.

4. It is clear that the thrust and the effect of the relief sought by the plaintiff is to stay the implementation of the new substantive appointment to the position of Director of Leadership in the Ombudsman Commission. That is also the way the parties have argued the matter.

5. The plaintiff was employed by the Ombudsman Commission as its Director of Leadership on a contract for three years. The contract expired on 23 January, 2009. In a letter dated 5 February, 2009, the Ombudsman Commission advised the plaintiff amongst other things, that he would continue to act in the position while the position was being advertised for applications from interested persons. The Ombudsman Commission further advised the plaintiff in the letter that he would act in the position until the new appointment was made.

6. The position was duly advertised and the plaintiff was one of those that applied for the position. He was short listed with a number of applicants. When selection for the position was made, the plaintiff was not selected, another shortlisted applicant was appointed to the position. The plaintiff is challenging that selection process.

7. The new appointment was made on 2 June, 2009 with the vote from the Chief Ombudsman. A conditional offer of employment was made to the new appointee by the Ombudsman Commission on 3 June, 2009. On 5 June, 2009, the new appointee accepted the offer and the acceptance of the offer has already been conveyed to the Ombudsman Commission. Thus, the new appointee now has a binding contract of employment with the Ombudsman Commission: Tonolei Development Corporation Ltd v. Lucas Waka, Minister for Forests (1983) N404 (L).

8. The new appointee has therefore already taken appropriate steps to leave his current employment to take up his new appointment with the Ombudsman Commission as the Director of Leadership on 17 July, 2009, which is a week from today.

9. It is not my task here to decide whether the selection process used for the new appointment for the position of Director of Leadership in the Ombudsman Commission was proper or not, that is an issue that will be determined at the substantive hearing.

10. My task here is only to decide whether I should grant the relief sought by the plaintiff i.e. to restrain or prohibit the Ombudsman Commission from implementing the new appointment, or to stay the implementation of the new appointment.

11. Matters to be considered by the Court in deciding the issue of stay which is the real issue in controversy here are well settled in this jurisdiction: Gary McHardy v. Prosec Security and Communication Ltd [2000] PNGLR 279. The principles set out in McHardy have been adopted in many cases.

12. Having regard to the principles set out in McHardy, I see a number of pertinent issues or questions arising before me when deciding whether to grant the relief sought by the plaintiff. Firstly, whether there is a serious issue or an arguable case warranting a review. Secondly, whether the balance of convenience favours the grant of relief sought by the plaintiff. These two are the determinative issues.

13. A related issue is whether the plaintiff’s remedy would rather lie in damages than in the relief sought, and if so, whether damages would be sufficient compensation for the plaintiff. This issue is tied with the public policy issue of good administration in the Ombudsman Commission and the principles of law of contract relating to the contractual relationship between the applicant and the Ombudsman Commission.

14. Here, the issue of stay arises in the same way as in an application for interim injunction. Thus, if the Court finds that the plaintiff’s remedy is in damages, this application for stay must fail.

15. Firstly, the issue of whether there is a serious or an arguable case is the same issue that arises when leave for judicial review is considered. Here, leave has already been granted, that in itself in my view indicates that there is a serious issue to be tried. In this regard, I draw no distinction between an arguable case and a serious issue to be tried.

16. Secondly, on the issue of whether the balance of convenience favours the grant of the relief sought by plaintiff, a related issue that arises is whether the plaintiff would be prejudiced if relief sought is not granted. This issue has to be considered in the light of the fact that the appointment of a new Director of Leadership in the Ombudsman Commission has already been made.

17. The plaintiff in this case was only allowed to act in the position until the new appointment was made. Thus, he was occupying the position by permission of the Ombudsman Commission only. The right to occupy the position was therefore temporary and was intended to terminate when the new appointment was made. The new appointment has been made and the new appointee has already accepted the appointment and is due to start work on 17 July, 2009. The effect of this is that, as of the date of the new substantive appointment to the position of Director of Leadership in Ombudsman Commission, the plaintiff had no legal right to continue occupying the position. That being the case, the essence of the plaintiff’s application to the Court to restrain or prohibit the Ombudsman Commission from implementing the substantive appointment is tantamount to asking the Court to force the Ombudsman Commission to continue its contractual relationship with the plaintiff, which the Ombudsman Commission has chosen not to renew. In the circumstances, I cannot see how the plaintiff would be prejudiced if the relief he is seeking is not granted, as he is not entitled to such relief in law.

18. Furthermore, if I was to grant the relief sought by the plaintiff, it would be contrary to public policy regarding good administration within the Ombudsman Commission, because the plaintiff will not be able to work with the Chief Ombudsman who is the head of the Ombudsman Commission, given that the plaintiff was not his choice for the position in question. This is of paramount importance: Thadeus Kambanei v. NEC N3064. More significantly, granting of the relief sought by the plaintiff would be contrary to the well established principles of law of contract relating to employer and employee relationship, viz, once the employer does not wish to continue or to renew its contractual relationship with its employee, as is the case here, the employer who in this case is the Ombudsman Commission cannot be forced to continue or to renew the relationship: Sulaiman v. PNG University of Technology (1987) N610, Wijekoon v. UPNG (1989) N715, Robinson v. National Airlines Commission [1983] PNGLR 476, Mathew Petrus Himsa v. Richard Sikani (2002) N2307, Golobadana No. 35 Ltd v. Bank of South Pacific Ltd (2002) N2309, Tom Gesa v. Bernard Kipit (2003) N2457, Mainland Holdings Ltd v. Paul Robert Stobbs (2003) N2522, Young Wedau v. Alfred Daniel [1995] PNGLR 357.

19. For the foregoing reasons, I am of the firm view that in the event that the plaintiff is to succeed in his substantive application, his remedy would lie in damages. For plaintiff’s possible damages, there is an undertaking as to damages filed by the defendants and I have no reason to doubt the ability of the defendants to adequately compensate the plaintiff for any damages he may suffer. I also consider that damages would be sufficient compensation for him.

20. The application is therefore dismissed.

21. Costs will be in the cause.

_________________________________________
Kassman Lawyers: Lawyer for Plaintiff/Applicant
V. Narokobi: Lawyer for Defendants