Kuluah v University of Papua New Guinea [1990] PGNC 151; [1993] PNGLR 494; N889 (30 April 1990)

N889

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

ALBERT KULUAH

V

UNIVERSITY OF PAPUA NEW GUINEA

Waigani
Sheehan J

27 April 1990
30 April 1990

INJUNCTION - Application for injunction prior to application for judicial review - Conditions for granting interlocutory injunctions.

ADMINISTRATIVE LAW - Contract of employment - Judicial review not available - Injunction refused.

Facts

The plaintiff was employed as a lecturer by the University of Papua New Guinea on a three year contract that expired. The employer provided him with accommodation under a tenancy agreement which stipulated a weekly tenancy determinable on the determination of his employment. The university refused to renew the plaintiffs contract of employment and demanded that he vacate the staff house which he occupied. He unsuccessfully appealed against the non-renewal of his contract of employment to a duly constituted appeals committee. Subsequently, a special subcommittee of the University Council declined to recommend any alteration of the decision. The plaintiff asked the Ombudsman Commission to investigate his case and sought orders from the court to restrain the university from repossessing the staff house. He also contemplated bringing an action for judicial review of the Council's decision.

Held

1. In the normal course, a plaintiff seeks interim restraints pursuant to a substantive claim already filed. In this case, the plaintiff has not adopted any recognised procedure in pursuit of his claims.

2. The ground rules for the issue of interlocutory injunctions are well known. These have been established in the American Cyanamid case and the many subsequent decisions, both in this and other jurisdictions. The plaintiff has to show he has at least some legal status in a dispute; that he has a good arguable claim to the right he seeks to protect by injunction. This simply means that he must show that there is a serious issue at stake.

3. The grant of an injunction is discretionary and the Court must balance whether the imposition of a restraint of the defendant is reasonable and necessary to protect a plaintiff from some irreparable harm; or whether damages would be sufficient recompense.

4. The possibility of harm to the defendant must likewise be considered as well as the ability of the plaintiff to meet an order in damages should he fail in his claim.

5. The plaintiff must fail in his application. There is no application for leave for judicial review before the court. In fact, it has not even been filed and it is most unlikely that leave for review of his contract of employment, which is governed by private and not public law, would be granted.

Cases Cited

Papua New Guinea case cited

Sulaiman v PNG University of Technology [1987] SPLR 267.

Other case cited

American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396.

Counsel

J Kawi for the applicant.
G Lay for the respondent.

30 April 1990

SHEEHAN J: The plaintiff is a former lecturer at the University of Papua New Guinea. He was engaged under a contract which specified a term of three (3) years, expiring on 30 November 1989. The contract also provided for accommodation to be supplied, subject to the plaintiff entering into the university's standard tenancy agreement.

The agreement stipulated a week-to-week tenancy and in para 5(g) stated that the accommodation provided was conditional on employment by the university. Determination of employment means determination of tenancy.

At the expiry of the term of his contract, the plaintiff was refused a renewal and the university has demanded he vacate the staff house he occupied.

Paragraph 3 of his contract states (3.21) that "in the event of a lecturer not being offered renewal of contract or permanency, he will have the right to appeal and present his case to a duly constituted appeals committee."

The plaintiff did appeal but was unsuccessful in obtaining a reversal of the decision not to re-employ him when he appeared before the University Staffing Committee. After further representations to the University Council, a special sub-committee delegated to look into the matter declined to recommend any alteration to the decision. The University Council has since refused to re-open the question of a renewal of contract. The plaintiff has also asked the Ombudsman Commission to look into the matter. That investigation remains pending.

The plaintiff comes to this Court seeking orders that the university and its officers, the defendants, be restrained from requiring him to give up his university accommodation until the Ombudsman Commission has completed its investigation. An interim order of this effect was granted on 20 April 1990. The plaintiff now seeks that that order be perfected.

He also seeks a declaration that the University Council decisions refusing his appeals for renewal of his contract be declared void because he was not given opportunity to present his case before the Council itself. The Court was informed that this latter claim would be sought under an application for judicial review, yet to be filed.

In the normal course, a plaintiff seeks interim restraints pursuant to a substantive claim already filed. It seems in this case that the plaintiff has not adopted any recognised procedure in pursuit of his claims. He intends to ask for judicial review but has filed no application for such review. The injunction sought is not to cover the period for such a review to be determined but to cover an independent inquiry of the Ombudsman Commission. But whatever objection might be taken to the procedure the applicant has adopted, the application must fail because the applicant has failed to establish the grounds for the injunction he seeks.

The ground rules for the issue of injunctions are well known. These have been established in the American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396 and the many subsequent decisions on their issue or refusal, both in this and other jurisdictions.

The plaintiff has to show that he has at least some legal status in a dispute; that he has a good arguable claim to the right he seeks to protect by injunction. That simply means that he must show that there is a serious issue at stake, and that his is an appropriate case for an injunction to issue.

However, the grant of an injunction is discretionary. The Court must balance whether the imposition of a restraint on the defendant is reasonable and necessary to protect a plaintiff from some irreparable harm; or whether damages would be sufficient recompense. The possibility of harm to the defendant must, likewise, be considered, as well as the ability of the plaintiff to meet an order in damages should he fail in his claim.

While the court does not decide the substance of the plaintiffs claim on the affidavits filed, it must nonetheless form a view of the matter on the information before it when deciding whether or not an injunction should issue. This consideration will include a view on the law applicable in the case. While no final decision on legal propositions is likely to be made; if the law called in support by a plaintiff is contrary to accepted principles, that obviously will weaken the plaintiffs case for the restraining order that he seeks.

The plaintiff must fail in this application. There is no application for leave for judicial review before the court. In fact, it has not even been filed and I must say that it would be most unlikely that leave for review of this private contract would be granted.

In the first place, it is acknowledged that the plaintiffs contract of employment was a private contract. As such, the action or the decisions of the parties to it are outside the scope of judicial review. Judicial review is concerned only with the protection of rights under public law, not the private rights and duties of parties that arise under contract or tort. Judicial review is certainly not available to those involved in disputes regarding private contracts of employment: Sulaiman v PNG University of Technology [1987] SPLR 267.

Again, the injunction sought is to enable an investigation by the Ombudsman Commission to be completed. The Commission is in no way an appeal tribunal in the plaintiffs dispute. Its functions are quite independent of either party. It may even decline to come to any finding.

Lastly and most importantly, the plaintiff, in my view can point to no legal claim or right that requires protection. He has acknowledged that his contract of employment has lapsed. His dispute with his former employer centres not on whether he is contractually entitled to a renewal but whether in exercising its discretion to renew or not, the University has given his offer due consideration.

The application for injunction is, therefore, refused. However, to enable the plaintiff reasonable opportunity to vacate, the discharge of the interim order will be delayed by consent to 4 May 1990.

______________

Lawyer for the applicant: Kapa Lawyers
Lawyer for the respondent: Young & Williams