Albert Kuluah v The University of Papua New Guinea (UPNG) [1993] PNGLR 494

• Jurisdiction: Papua New Guinea
• Judge: Sheehan J
• Judgment Date: 30 April 1990
• Court: National Court
• Citation: [1993] PNGLR 494
• Year: 1993
• Judgement Number: N889

Full Title: Albert Kuluah v The University of Papua New Guinea (UPNG) [1993] PNGLR 494

National Court: Sheehan J

Judgment Delivered: 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 plaintiff's 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] 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...