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Kanaparo v Maue [2020] PGNC 134; N8357 (10 June 2020)

N8357

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 09 of 2020

PETER BALONE KANAPARO
Plaintiff

V
AMBASSADOR MICHAEL MAUE, Chairman Council Staff Appeals Committee University of Papua New Guinea
First Defendant

And
UNIVERSITY OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2019: 09^th October
2020: 10^th June

PRACTISE & PROCEEDURE – Judicial Review & appeals – Originating Summons – Notice of Motion Order 16 Rule 3 (8)(b) & Order 12 rule 1 NCR – Section 155 (4) Constitution – Application for interim Stay – affidavit in support – No Arguable case – undertaking as to Damages – Damages adequate remedy – balance of convenience not in favour – overall interest of Justice not in favour – application for stay denied – cost follow event.

Cases Cited:

McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279
Yama Group of Companies Ltd v PNG Power Ltd [2005] PGNC 128; N2831
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
O’Neil v Bidar [2019] PGNC 404; N8072
Chief Collector of Taxes v Bougainville Copper Limited [2007] PGSC 1; SC853

Counsel:

P. Balos, for the Plaintiff
No appearance for Defendants

RULING

10^th June, 2020

1. MIVIRI, J: This is the Ruling on the plaintiff/applicant’s ex parte application by notice of motion dated the 6^th June 2020 for interim stay against the defendants not to evict him from his current residence F8 3^rd Street Fort Banner University residential estate, Waigani, National Capital District. There is no affidavit of service to affirm service of the proceedings particularly upon the State though not named would be a nominal party to the proceedings. But notice has been accorded to the Secretary of Justice that judicial review proceedings have been filed Order 16 Rule 3 (3) of the rules.
   
2. Coupled with his notice of motion dated the 06^th June 2020 he has the following also filed;-
   

(a) Originating Summons dated 06^th June 2020.

(b) Affidavit Verifying Statement of the applicant dated the 2^nd June 2020 filed the 06^th June 2020

(c) Statement filed pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules (as amended) dated the 06^th June 2020.

(d) Notice of application for Leave to apply for Judicial review.

(f) Affidavit in Support of the applicant dated the 28^th May 2020 but filed 06^th June 2020.

(g) Undertaking as to Damages dated the 06^th June 2020.

3. His affidavit dated the 28^th May 2020 filed 6^th June 2020 in support of the motion deposes that he is 37 years old from Par village in Kompiam – Ambum District of Enga Province. Together with his wife and four children he is resident at F8 3^rd Street Fort Banner University residential estate Waigani National Capital District. He holds a Bachelor of Psychology obtained from the University of Papua New Guinea March 2002. And has honours degree in the same field 2002 and also Political Science 2004 from the same university. Further he has completed and attained a master’s degree in human resource management and Industrial relations 2013 at the University of Western Sydney, Parramatta Australia. Which was by the staff development program of the defendant from 2012 to 2013.
   
4. He has been an academic staff at the University for 17 years as a tutor and lecturer. Starting 2002 to 2005 Temporary, then full time Tutor for 4 years, 2006 to 2014 Full time tutor 9 years running. And 2015 to 2018 Lecturer level 1 for 4 years. These are his core duties and responsibilities which has also included teaching, community outreach, research, and publication. His third term contract as a lecturer in Human Resources at the University was about to expire on the 30^th November 2018. He applied for renewal on the 15^th July 2018 which if granted was to be for another five years with a promotion to Lecturer Level 2.
   
5. On the 1^st August 2018, the Divisional Staffing Committee (Human Resources Division convened a special committee meeting in which his application for renewal of his contract and promotion was deliberated. In that meeting comprising two heads of the Division from two other programs and head of the human resource division and human resource Lecturer discussed his academic portfolio. They evaluated scores averaging 64.75 from which they resolved that the application of the plaintiff for renewal of his contract and promotion be referred to the school of Business and Public Policy staffing committee for further deliberation to decide whether renewal of the contract was sustained. This convened meeting 1/2018 comprising 17 members and staff.
   
6. In the meeting the chairman asked Human Resource Management division to present the assessment and recommendation of the application of the applicant at Divisional level. Apart from what was discussed on 1^st August 2018 particulars set out above they discussed new case allegations against the applicant. And disclosed that the reasons for the non-renewal of his contract were based on negatives on his part amongst which were, (a) 2004 using office internet to watch pornography video; (b) 2007 sexual harassment/ sex for marks; (c) fighting with different people on different occasions; (d) failing a student in 2007 which was repeated in 2016 and 2017 due to personal issues grudges; and (e) one Mr. Montoru’s name and signature was misused by a private training institution, use of the school stamp without authorization; use of the university study materials leading to violation of copyright; providing training in a private institute; creating conflict of interest; and double dipping. Based on the presentation, the committee 9 out of the 17 evaluated applicants’ academic portfolio and allocated scores with total average evaluation score of 67.22 awarded which was way below the minimum of 71. These would be the majority of that committee and therefore the decision was not out of the reach of the law but in compliance. On that basis its decision could not be seen as breaching law contrary to the argument by the applicant.
   
7. The committee resolved on the basis of these evaluation score that the applicant’s application for renewal of his contract for 5 years was rejected. And that the applicant be informed, and the position advertised. The minutes of that meeting is annexure “G” of the affidavit of the applicant. In June 2019, the applicant was served a one-page letter dated 19^th November 2018 from the office of the Registrar of the University. It informed that the University Staffing Committee held its meeting number 3/2018 on the 11^th and 13^th September 2018, endorsing the recommendations from the school of Business and Public Policy which was not to renew the applicant’s contract when it expired on the 30^th November 2018. And that he was to serve out his current contract and the position would be advertised.
   
8. Being aggrieved on the 9^th August 2019 the applicant appealed to the University of Papua New Guinea Council Staff Appeals committee against the decision of the University Staffing Committee. Through the appeal the applicant sought to bring to the attention of that committee all possible information and facts on the allegations levelled including all the allegations and grounds upon which his application for renewal of his contract was rejected initially. Annexure “I” to his affidavit is a true copy of that appeal he wrote. He was given more than an opportunity to be heard in his grievance and so heed to the law right to be heard. Which was effected before the decision was confirmed as final to terminate his services to the University.
   
9. Following the University of Papua New Guinea Council Staff Appeals committee met two days Friday 16 and Monday 19^th August 2019 after consideration of the appeal decided that it had resolved to uphold the decision of the UPNG Staffing committee not to renew the applicant’s contract.
   
10. In my view his own affidavit details explicitly a process in the resolution of the matter against him leading eventually to expiration of his contract of employment and non-renewal evidenced by annexure “H” to his affidavit. Then the process to evict him from the institutional house after hearing out his response annexure “I” of his affidavit. And the response by the University of Papua New Guinea Council Staff appeals committee is annexure “J” of his affidavit. Clearly the committee considered all that he brought out to them in the appeal adequately, and gave due consideration, but decided against him on the weight of the material that was before them against renewal of his contract.
    
11. This document is dated the 25^th October 2019 and is addressed to the applicant providing in detail reasons for upholding the decision at first instance by the University Staffing Council. Even the process taken to evict him from the Institutional house demonstrates fairness and equity exerted on him. The last letter is annexure “S” dated the 28^th April 2020 stressing that the University does not have a relationship at law with him. That he voluntarily vacates the subject house by the 29^th May 2020. This letter takes account of the State of Emergency and accords him that ground to be there until 29^th May 20.
    
12. Then prior to this letter is annexure “R” letter under hand of the applicant which has been acceded to in annexure “S” of the applicants continued residence at the subject house. Annexure “Q” is letter dated 9^th April 2020 to the applicant to vacate the subject house F8 with all his property signed by the Acting Registrar of the University. Annexure “P” is letter under hand of the applicant to the Acting Registrar which is responded in “Q” by the Registrar. Annexure “O” is a letter under hand of the applicant addressed to the Acting Registrar of the University pleading continued occupancy in the light of the pandemic corona virus. Annexure “N” is letter under hand of the Acting Registrar that prompts annexure “O”. Annexure “M” is a similar letter dated the 19^th March 2020 earlier to the applicant by the Acting Registrar for applicant to vacate the subject house. How would he be acquainted with these facts and evidence without the material given to him so that he is able to compose his affidavit in the manner that he has produced before court here. The totality is he has been accorded well in law and there is no room to give heed to his plea here.
    
13. There is no evidence of ill accord in the process set out so as to bring to fruit the allegation that he portrays here. Importantly there is no independent evidence supporting the contention that he makes against the defendants. What is evident is that this is the highest learning institution in the country with a reputation built over years in its existence. Its continued strive to perfect and excel its teaching staff such as the applicant leave no room for mistakes to be made or breach of error as demonstrated by the applicant’s own affidavit. Particularly here where human resource management is involved and of which the applicant is a holder of a master’s degree. Given there would be no room for breach of process or procedure to bring a very serious allegation against the applicant. The applicant is a very learned person in his own right and so there is no room for the breach that he contends against the defendants. The evidence is self-serving contrary and against the contention that he makes. It supports the assertion of the defendant more than his.
    
14. On the 25^th October 2019 annexure “J” the applicant has not taken the matter there and then to this court. He is not seeking leave nor has he made application here for the same. He is coming to this court without seeking leave first contrary to Order 16 Rule 3 of the rules. He is seeking stay on his eviction from the institutional house F8. It is clear by the evidence that is set out above that applicant has no basis to continue to remain in the subject house. He is no longer an employee of the University. As such he does not have right to continue to occupy the subject house.
    
15. In law the Application for an interim stay given the facts set out above by his own admission sworn in his own affidavit that he has filed to seek an interim injunction a stay do not par out after consideration of McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279 (30 June 2000) and Yama Group of Companies Ltd v PNG Power Ltd [2005] PGNC 128; N2831 (17 May 2005). At the outset he has not demonstrated to the required balance that there are special or exceptional circumstances and good reason that he be accorded a stay against his eviction from the house of the defendants that he occupies. In other words, there is no arguable case demonstrated on the required balance that the actions of the defendants will lead to breaches of the law. His argument advanced do not par out with the facts and the evidence that he has of his own mouth sworn before here. This evidence does not support, nor do they lay the foundation upon which the assertion that he makes fit out for an interim stay to be granted to him.
    
16. The contrary is evident that a process of law was followed by the defendants eventually to where his demise was laid to rest. That is what judicial review is and reliance upon section 155 (4) of the Constitution to cure does not go any further because it is only facilitating the primary source the rules here in Order 16 Rule 3 (8) where leave must be sought for judicial review and granted before an interim stay is sought. Given the facts of the present case, the views in Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008) settle that the contention by the applicant do not hold out in his favour.
    
17. To extend this further it would be because of the lengthy delay, Order 16 rule 4 (2) of the rules, in bringing the matter forth in the light of the evidence set out above by the applicants own affidavit, there would be substantial hardship and substantial prejudice caused to the defendants in their administration of the Public University, and there would be prejudice of the rights of persons there who have since taken over from where the applicant has been terminated of his services, as a Lecturer including those who are now marked to take the institutional house F8. The work of the University of Papua New Guinea as a public institution of learning must continue without restraint its hands are clean. Because to restraint by the application that the applicant seeks will be detrimental to its good administration given the time taken initially from 30^th November 2018 to today 10^th June 2020, Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). And this court will be reluctant to accede to the pray of the applicant.
    
18. It is clear internal process has been exhausted to its prime, but leave is not the subject here but restraint of eviction and from the discussion above will not entail in favour of the applicant. Reasons for the non-renewal of the contract of employment of the applicant has been given. And given the facts admission of evidence by the applicant there is no room to contend that he has an arguable case. Counsel has referred to O’Neil v Bidar [2019] PGNC 404; N8072 (16 October 2019). The facts in that case distinguish its application here particularly that there was indeed primae facie a defective arrest warrant dated the 11^th October 2019 that was going to be executed upon the former Prime Minister and current member of Parliament which was going to substantially affect his rights as a citizen and a member of Parliament. His liberty was at stake and irreparable damage would have been caused to his reputation and standing. Damages would not have adequately compensated.
    
19. That is not the case here by its facts pleaded out by the applicant. His own admission denies his cause of action. There was no delay in seeking out the interim injunction because he came into court pending the leave application on the 16^th October 2019 just five days after the warrant. Here three years have lapsed since 30^th November 2019. There is no urgency demonstrated by the evidence in support the affidavit of the applicant. It is clear that injustice would be caused should the application be granted. It is therefore within damages rather than an order to restraint given. Damages would be an adequate remedy rather than a stay order. This ground does not stand in his favour.
    
20. The aggregate totality of all this is that the balance of convenience does not stand in his favour to grant the relief of interim restraint that he seeks. It is clear that his action will not succeed given his facts. Either way damages will be adequate remedy in his case but not for the defendants. The relative balance does not tilt in his favour given the facts here: Chief Collector of Taxes v Bougainville Copper Limited [2007] PGSC 1; SC853 (2 February 2007). This ground is not made out in his favour to grant an interim stay. Overall, the interest of Justice does not favour grant of the motion.
    
21. Accordingly, the Motion for Interim Stay is denied and will not be granted. Cost will follow the event.

Orders Accordingly.

__________________________________________________________________

P. Balos: Lawyer for the Plaintiff/Applicant

No appearance: Lawyer for the Defendants