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Sukwianomb v Waninga [2020] PGSC 166; SC1972 (8 July 2020)

SC1972

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 7 OF 2020

BETWEEN
JOSEPH SUKWIANOMB in his capacity as the Chairman of the Council of University of Goroka and the Chancellor of the University of Goroka
First Appellant

AND
PROFESSOR MUSAVE SINEBARE in his capacity as the Vice Chancellor of the University of Goroka
Second Appellant

AND
THE COUNCIL of the University of Goroka
Third Appellant

AND
THE UNIVERSITY OF GOROKA
Fourth Appellant

AND
DR. TENG WANINGA
Respondent

Waigani: Makail J
2020: 6th & 8th July

SUPREME COURT – Application for stay – Stay of order of National Court – Order for reinstatement – Whether grounds of appeal demonstrate arguable case – Balance of convenience – Supreme Court Act – Section 19 – Supreme Court Rules – Order 3, rule 2 (b)

Cases cited:

Gary McHardy v. Prosec Security & Communication Limited [2000] PNGLR 279
Peter Devis v. Leo Kaivor (2011) SC1264

Counsel:

Mr. H. B. Wally, for the First & Third Appellant
No appearance, for the Second & Fourth Appellants
Mr. C. Joseph, for the Respondent

RULING ON APPLICATION FOR STAY

8th July, 2020

1. MAKAIL J: The first and third appellants applied for an order to stay the order of the National Court of 22nd May 2020. The order is sought pursuant to Section 19 of the Supreme Court Act and Order 3, rule 2(b) of the Supreme Court Rules. These provisions center power on the Supreme Court to grant an order for stay pending the hearing and determination of an appeal.

National Court Order

2. On 16th June 2020, the National Court upheld the respondent’s application for judicial review and ordered the appellants to reinstate him to his former position as Pro-vice Chancellor (Academic, Research and Innovation) at the fourth appellant within 14 days.

3. In addition, the appellants were ordered to pay his unpaid salaries during the period of his termination. As he was paid his final termination pay, he was ordered to reimburse it to the fourth appellant.

4. In upholding the application for judicial review, the Court found that:

1 The staff discipline committee acted beyond its powers when it found the respondent guilty of eleven disciplinary offences and recommended penalties, in particular, demotion.

2 The appeals committee was unlawfully constituted and failed to conduct a fair hearing.

3 The University Council had no power to review the decision of the appeals committee and, to the extent that it based its decision to terminate the plaintiff’s employment on new breaches of the disciplinary code, failed to adhere to the procedure in the staff discipline statute.

4 The appeals committee and University Council failed to observe the principles of natural justice.

Principles of Stay

5. Counsel for the parties have correctly canvassed the relevant principles on a stay application in Gary McHardy v. Prosec Security and Communication Limited [2000] PNGLR 279. One of them is whether on the face of the record of the judgment there may be indicated apparent error of law or procedure. The other is whether the applicant has an arguable case. It is also important to take into account possible hardship, inconvenience or prejudice to either party and further, the financial ability of the applicant. Furthermore, the balance of convenience. The last two considerations are whether damages would be sufficient remedy and the overall interest of justice.

6. The last consideration, the overall interest of justice is, in my view, an all encompassing consideration as referred to by Injia CJ in Peter Devis v. Leo Kaivor (2011) SC1264 where he said:

“In exercising its discretion, the Court must consider all relevant and appropriate circumstances in determining whether it is just and reasonable that the order sought to be stayed.”
7. I apply these principles to this case.

Arguable case

8. From what I have heard and read, there is no dispute that the appellants are not challenging the findings by the National Court in relation to the disciplinary charges, penalty of demotion by the staff discipline committee and failure by the appeals committee conducting a fair hearing.

9. On the other hand, by grounds 2.1.1 and 2.1.2 of the Notice of Motion constituting the appeal, I note that the appellants are challenging the order for reinstatement by the National Court on the ground that it is contrary to Section 10(d), (g) and (h) of the University of Goroka Act,1997. They submitted that Section 10 conferred power on the University Council to appoint and terminate academic staff. In this case, it was within the power of the University Council to consider the fresh allegations in the letter dated 31st March 2020 and arrive at a decision to terminate the respondent’s employment with the fourth appellant.

10. Secondly, by ground 2.2 of the Notice of Motion they are challenging the order for reinstatement on the ground that their working relationship with the respondent has become obnoxious and untenable. They said, the appropriate remedy is damages which the Court failed to award.

11. Arguably, it is open to the National Court to order reinstatement of the respondent after finding that the disciplinary process was complied with by the staff discipline committee right through to the higher authority, the University Council resulting in a failure to conduct a fair hearing.

12. Secondly, the University Council failed to hear and invite the respondent to respond to the fresh allegations before making a decision, in this instance termination. I note the allegations are numerous and wide ranging, from failure to respond to lawful instructions from the University from the University Council to the nineteen (19) disciplinary charges to writing directly to the Minister for Higher Education, Research Science & Technology to establish an Independent Arbitration Team and dictating Terms of Reference for investigation against the University. I further note that there is no suggestion that the Minister concerned did intervene and set up an Independent Arbitration Team, etc or the University Council was influenced by the Minister in reaching the decision it did.

13. However, it is accepted by the appellants that they did not give the respondent the opportunity to be heard on the fresh allegations. It was open to the National Court to find that where a fresh disciplinary allegation or allegations is made by the University Council, the respondent should have been given an opportunity to respond to it in particular by following the disciplinary procedure set out in Section 14 of the Statute of the University. I use the word “arguably” cautiously because Section 10 (g) and (h) of the University of Goroka Act is quite broad and does not address the issue of right to be heard.

14. Section 10 states:

FUNCTIONS OF THE COUNCIL.

(1) Subject to Subsection (2), the functions of the Council are–

(a) to promote and ensure attainment of the objects of the University; and

(b) to determine University mission and monitor the performance of the University in terms of its mission; and

(c) to formulate university policies and planning guidelines for University management; and

(d) to appoint University officers and academic, administrative and other staff of the University; and

(e) to have the charge of the management and administration of the revenue, property and personnel of the University, and the conduct of all matters relating to the University not otherwise provided for in or under subordinate legislation made in accordance with this Act; and

(f) to approve the Annual Report, Annual Accounts, Audit Report thereon and the budget of the University for the next financial year; and

(g) to exercise such other powers and perform such other duties as may be conferred on it by this Act; and

(h) generally, to take such action as appears to it best calculated to promote the interest of the University.

(2) In determining any matter which directly affects the academic policy of the University, the Council shall consult with the Academic Board.

15. Thus, while the University Council relied on Section 10, it is doubted that it could arbitrarily exercise that power to terminate the respondent on totally new disciplinary allegations. Such a doubt demonstrates that no error of law is apparent in the decision to order reinstatement.

Possible hardship, inconvenience or prejudice to either party

16. I note the contention by the appellants that the relationship between them and the respondent has become obnoxious and untenable and secondly, the respondent has been paid out his final termination entitlements hence, he is financially sound in terms of his and his family welfare. The appellants have also allowed the respondent to remain on the institutional property for the time being, hence in terms of accommodation for him and his family, he is not inconvenienced or prejudiced.

17. However, I accept the submission of the respondent that the order to reinstate him to his former position is simply to restore an activity which he has previously performed. It is not to embark on some new activity.

18. Secondly, there is no evidence from the appellants that the respondent’s reinstatement will result in the University incurring additional expenses and furthermore, contradict the respondent’s submission that as the office of the Pro Vice Chancellor (Academic, Research & Innovation) is established under Section 30 of the University of Goroka Act , it is a funded position where the occupant a holder of the position’s salaries etc are funded by the National Government each pursuant to Section 35 of the University of Goroka Act.

19. I uphold the respondent’s submission that a refusal of the application will not cause any hardship or inconvenience to the appellants in so far as funding is concerned.

20. On the other hand, I am satisfied that the respondent will be greatly prejudiced because he will be left without an employment and a source of income to support himself and his family. Furthermore, his children attend schools at Goroka and depend on his support.

21. Finally, the concession by the appellants to allow the respondent to remain on the institutional property for the time being leans further support to the respondent’s cause.

Damages as sufficient remedy

22. Again, I note the appellants’ submission but I accept the respondent’s submission that damages would not be sufficient for the following reasons.

a) He will be left without an employment and a source of income to support himself and his family pending the hearing and determination of the appeal.

b) The National Court has ordered him to reimburse the University his final entitlements by no later than Tuesday 7th July 2020.

c) His employment as the Pro Vice Chancellor (Academic, Research & Innovation) is expiring on 14th December 2020 and he is eligible to a reappointment. For this, I refer to Section 14 of the University of Goroka Act which provides for a period of three years in office an eligible for reappointment and clause 3.1 of his employment agreement which provides for a period of twelve months in office and may be renewed.

Balance of Convenience

23. The balance of convenience does not favour a grant of stay for the reasons I have canvassed under the principles of possible hardship, inconveniences and prejudice to either party and damages being an adequate remedy.

Interest of Justice

24. The appellants had argued at the National Court that the relationship between them and the respondent had turned sour and untenable and it would be against good order and administration to continue the relationship.

25. The general rule is that, a relief sought for reinstatement or award of damages is discretionary. A grant of such relief will depend very much on the facts of the case. Where the breach is so gross and flagrant, an order for reinstatement would not be considered unreasonable or unjust, even in cases where there is evidence and not mere assertions that the relationship between the parties has broken down. On the face of the records, there appeared to be gross and flagrant breach of procedure when the appellants arrived at the decision to terminate the respondent from the University when they failed to accord him a fair hearing.

26. Against the argument by the appellant, when I consider all the circumstances of case, the manner in which the respondent was dealt with by the University Council, his wellbeing and that of his family, concession by the appellants for respondent to be accommodated at the University property and his future employment prospect at the University, it would be in the interest of justice that a stay is refused and parties comply with the order of the National Court pending the hearing and determination of the appeal.

Conclusion

27. There were other submissions by counsel in relation to delay and missing written judgment of the National Court. Given my decision it is not necessary to consider them.

Order

28. The orders are:

1. The application for stay is dismissed.

2. Costs of the application shall be in the appeal.
__________________________________________________________________
H. Best Wally Lawyers: Lawyers for the First & Third Appellants
Waisi Lawyers: Lawyers for the Second & Fourth Appellants
Ashurst PNG Lawyers: Lawyers for the Respondent