Mopafi v Omenefa [1999] PGNC 77; N1913 (1 September 1999)

Unreported National Court Decisions

N1913

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 356 OF 1998
BETWEEN: IAN IANAMETO MOPAFI
PLAINTIFF
AND: HENOL OMENEFA - ADMINISTRATOR, DEPARTMENT OF EASTERN HIGHLANDS
FIRST DEFENDANT
AND: UTULA SAMANA - SECRETARY, DEPARTMENT OF PERSONNEL MANAGEMENT
SECOND DEFENDANT
AND: BIRE BINO
THIRD DEFENDANT

Goroka

Kirriwom J
9 July 1999
1 September 1999

Counsel

Plaintiff appeared in Person

Mr N. Teninge for the Defendants

1 September 1999

RULING

KIRRIWOM J: The Plaintiff was the Assistant Secretary, Division of Agriculture and Livestock, Department of Eastern Highlands. In the reform structure the position of Assistant Secretary was renamed Advisor. He held that position from 1991 to the time of restructure.

In early 1998 the position of Advisor was advertised and the Plaintiff together with the Third Defendant applied for the job. The Third Defendant won the position over the Plaintiff. Plaintiff then sought a review of the selection by the Provincial Selection Board from the Public Service Commission. While this review application was pending the Provincial Administrator took steps to effect the new appointment in July of 1998. The Plaintiff then came to this Court and took out restraining orders against the Defendants from implementing the appointment of the Third Defendant by proceeding with the hand-over take-over between the First Defendant and the Second Defendant. By an order of this Court on 27 July 1998, the Defendants were restrained from taking steps to implement the appointment which effectively secured the Plaintiff to remain in the position in an acting capacity pending the PSC determination of the Plaintiff’s appeal.

It took a considerable length of time for PSC to deal with the Plaintiff’s appeal. Up to now the appeal has still not been determined. None of the parties knows if the appeal has progressed any actual hearing. But the Plaintiff continued to act in the position while the third defendant who was already available to assume his new position patiently and anxiously waited for appropriate advice. In this period of waiting for PSC ruling, frustration began to take its toll on everyone who were anxious to return to normalcy and deliver much needed services to the people. Consequently allegations of violations of the standing restraining orders were raised by the Plaintiff against the First and Third Defendants resulting in contempt proceedings being filed in this Court. Meanwhile the Defendants also filed application before the Court seeking to have the restraining Orders up-lifted because the whole scenario in the case has changed in that the entire public service has yet again gone through another structural adjustments which required the positions to be re-advertised. The position disputed was also subject to re-advertisement and the Plaintiff was at liberty to apply again. The parties responded to the applications before the Court by filing appropriate affidavits in reply. Then there was a short period of inactivity on the matter until 13th August 1999 when Mr Teninge for the First and Third Defendants indicated his intention to pursue the application for dissolution of the orders of 27 July 1998. The matter did not proceed because the Plaintiff was unaware of this application so it was stood over to enable attendance of the Plaintiff. On 30 August 1999 all the parties appeared and the case was stood over to today 1st September 1999 for hearing.

At the hearing this morning the proceedings took a different twist in that after the Defendants had called evidence in support of their application and presented their submissions, the Plaintiff indicated that he intended to withdraw the action on foot. He agreed with the evidence given by the Third Defendant Bire Bino that the Plaintiff had already accepted a position with the National Department of Agriculture & Livestock as the Regional Director for the Highlands Region and has been on that job since June or July 1999. Mr Teninge did not oppose the application by the Plaintiff to withdraw his action and insist on dismissal of the action but asks that the Plaintiff must pay the Defendants costs of these proceedings.

The Plaintiff however still has his motion to punish the First and Third Defendants for contempt still pending before this Court. He submitted that he wished to pursue the motion. A legal question than arises. If the Plaintiff discontinues his action, the motion for contempt has no legs to stand on. The only way he can pursue his application is by opposing the Defendants application for the dissolution of the injunctive orders. I will then have to rule on the application by the Defendants and if I find in their favour, the orders are dissolved, the very same orders that they are alleged to have breached. But the Plaintiff wishes to discontinue the substantive action and at the same time pursue the contempt action. After considering what had transpired in Court this morning, particularly in the light of the evidence presented by the defendants, I do not consider it appropriate for this Court to order discontinuance of the proceedings on foot. If I accept Bire Bino’s evidence, which has not been challenged, the Plaintiff had been in confirmed employment at a higher level than the position of Advisor to the Provincial Department of Agriculture & Livestock since June or July 1999. This is some two to three months down the track which is adequate time and opportunity for the Plaintiff to have filed appropriate document with this Court discontinuing this action so that everyone could have been put at ease. The Third Defendant who had been unduly victimized could have been earlier relieved of his anxieties and frustration’s. However he waited until the Defendants pursued their motion to dissolve the restraining orders which would have, if granted, in effect brought these proceedings to end as there would have been no cause of action to pursue. The Plaintiff was well aware of this but he was content to allow the procrastination to continue to the detriment of the Defendants especially the Third Defendant. There is an equitable doctrine that says ‘those who seek equity must do so with clean hands’, and I doubt whether equity can come to the Plaintiff’s rescue. The only avenue open to me is to grant the relief sought by the Defendants in that the injunctive orders made by this Court on 27 July 1998 are hereby uplifted and I declare the Third Defendant as duly appointed to the position of Advisor - DAL, Department of Eastern Highlands with all entitlements backdated to the date of his appointment.

As the Plaintiff is now already employed elsewhere and is not desirous of further continuing this litigation, the substantive action on foot is therefore meaningless and hereby dismissed.

I award costs in favour of the First and Third Defendants to be paid by the Plaintiff, if not agreed, then to be taxed.

Lawyer for the Plaintiff: In Person

Lawyer for the Defendants: Nosohuno Teninge