Roderick Kamburi v Chronox Manek, Chief Ombudsman and John Nero as Ombudsman and Phoebe Sangetari as Ombudsman and John Nero as Ombudsman (2009) N3895

• Jurisdiction: Papua New Guinea
• Judge: Gavara—Nanu J
• Judgment Date: 09 July 2009
• Court: National Court
• Citation: (2009) N3895
• Docket Number: OS No. 322 OF 2009
• Year: 2009
• Judgement Number: N3895

Full Title: OS No. 322 OF 2009; Roderick Kamburi v Chronox Manek, Chief Ombudsman and John Nero as Ombudsman and Phoebe Sangetari as Ombudsman and John Nero as Ombudsman (2009) N3895

National Court: Gavara—Nanu J

Judgment Delivered: 9 July 2009

N3895

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS No. 322 OF 2009

BETWEEN:

RODERICK KAMBURI

Plaintiff/Applicant

AND:

CHRONOX MANEK, CHIEF OMBUDSMAN

First Defendant/Respondent

AND:

JOHN NERO as OMBUDSMAN

Second Defendant/Respondent

AND:

PHOEBE SANGETARI as OMBUDSMAN

Third Defendant/Respondent

AND:

JOHN NERO as OMBUDSMAN

Fourth Defendant/Respondent

Waigani: Gavara–Nanu J

2009: 8 & 9 July

JUDICIAL REVIEW - Application to stay – Implementation of new substantive appointment to a position within the Ombudsman Commission – Contract of employment for the applicant expiring – Granting a stay would interfere with good administration within Ombudsman Commission – Grant of stay would be contrary to established principles relating to contract of employment.

Cases cited:

Gary McHardy v. Prosec Security and Communication Ltd [2000] PNGLR 279

Golobadana No. 35 Ltd v. Bank of South Pacific Ltd (2002) N2309

Mainland Holdings Ltd v. Paul Robert Stobbs (2003) N2522

Mathew Petrus Himsa v. Richard Sikani (2002) N2307

Robinson v. National Airlines Commission [1983] PNGLR 476

Sulaiman v. PNG University of Technology (1987) N610

Tom Gesa v. Bernard Kipit (2003) N2457

Thadeus Kambanei v. NEC N3064

Wijekoon v. UPNG (1989) N715

Young Wedau v. Alfred Daniel [1995] PNGLR 357

Counsels:

K. Nugi, for the plaintiff/applicant

V. Narokobi, for defendants/respondents

1. GAVARA–NANU J: This is an application made pursuant to a Notice of Motion filed by the plaintiff/applicant (“plaintiff”) on 22 June, 2009, seeking orders that first to fourth defendants (“defendants”), their servants and or agents be restrained or prohibited from taking any further action against the plaintiff in any manner or form until the substantive issues are determined by the Court.

2. The plaintiff also seeks orders that Ombudsman Commission not to interfere with the duties of the plaintiff as the Director of Leadership in the Ombudsman Commission in any manner or form pending the determination of the substantive issues by the Court.

3. The plaintiff seeks further orders that the respondents refrain from implementing the new substantive appointment to the position of Director of Leadership within the Ombudsman Commission made on 2 June, 2009, which is the subject of these proceedings.

4. It is clear that the thrust and the effect of the relief sought by the plaintiff is to stay the implementation of the new substantive appointment to the position of Director of Leadership in the Ombudsman Commission. That is also the way the parties have argued the matter.

5. The plaintiff was employed by the Ombudsman Commission as its Director of Leadership on a contract for three years. The contract expired on 23 January, 2009. In a letter dated 5 February, 2009, the Ombudsman Commission advised the plaintiff amongst other things, that he would continue to act in the position while the position was being advertised for applications from interested persons. The Ombudsman Commission further advised the plaintiff in the letter that he would act in the position until the new appointment was made.

6. The position was duly advertised and the plaintiff was one of those that applied for the position. He was short listed with a number of applicants. When selection for the position was made, the plaintiff was not selected, another shortlisted applicant was appointed to the position. The plaintiff is challenging that selection process.

7. The new appointment was made on 2 June, 2009 with the vote from the Chief Ombudsman. A conditional offer of employment was made to the new appointee by the Ombudsman Commission on 3 June, 2009. On 5 June, 2009, the new appointee accepted the offer and the acceptance of the offer has already been conveyed to the Ombudsman Commission. Thus, the new appointee now has a binding contract of employment with the Ombudsman Commission: Tonolei Development Corporation Ltd v. Lucas Waka, Minister for Forests (1983) N404 (L).

8. The new appointee has therefore already taken appropriate steps to leave his current employment to take up his new appointment with the Ombudsman Commission as the Director of Leadership on 17 July, 2009, which is a week from today.

9. It is not my task here to decide whether the selection process used for the new appointment for the position of Director of Leadership in the Ombudsman Commission was proper or not, that is an issue that will be determined at the substantive hearing.

10. My task here is only to decide whether I should grant the relief sought by the plaintiff i.e. to restrain or prohibit the Ombudsman Commission from implementing the new appointment, or to stay the implementation of the new appointment.

11. Matters to be considered by the Court in deciding the issue of stay which is the real issue in controversy here are well settled in this jurisdiction: Gary McHardy v. Prosec Security and Communication Ltd [2000] PNGLR 279. The principles set out in McHardy have been adopted in many cases.

12. Having regard to the principles set out in McHardy, I see a number of pertinent issues or questions arising before me when deciding whether to grant the relief sought by the plaintiff. Firstly, whether there is a serious issue or an arguable case warranting a review. Secondly, whether the balance of convenience favours the grant of relief sought by the plaintiff. These two are the determinative issues.

13. A related issue is whether the plaintiff’s remedy would rather lie in damages than in the relief sought, and if so, whether damages would be sufficient compensation for the plaintiff. This issue is tied with the public policy issue of good administration in the Ombudsman Commission and the principles of law of contract relating to the contractual relationship between the applicant and the Ombudsman Commission.

14. Here, the issue of stay arises in the same way as in an application for interim injunction. Thus, if the Court finds that the plaintiff’s remedy is in damages,...