N1208

PAPUA NEW GUINEA
[In the National Court of Justice]

Appeal 29 of 1993

KOINE GONE

V

GIDION ALICK

Mt Hagen: Woods, J
17 February and 22 April 1994

Appeal - District Court - Maintenance Proceedings - time of action - Frauds and Limitations Act 1988.

A Kandakasi for the Appellant

22 April 1994

WOODS, J: This is an appeal from a decision of the District Court at Mount Hagen made on the 31 August 1993 dismissing an application to have proceedings for maintenance dismissed as being time barred.

On 15 February 1993 Koine Gone filed a complaint claiming that Gidion Alik being the father on a child David born on 13 February 1983 had left the child without any means of support. The complaint was therefore claiming maintenance for the child pursuant to section 51 of the Child Welfare Act Chapter 276.

Lawyers for the Defendant filed a defence to the complaint saying that he was never married to the complainant and could not have fathered the child and pleads the Frauds and Limitations Act 1988 which places a 6 year limit on the commencement of proceedings. The latter was argued before the District Court as a preliminary point and it is from the ruling then made that this appeal has been instituted.

It is submitted that the complaint firstly fails to disclose the circumstances leading to the allegation of fatherhood such as there was no date, or time for the alleged sexual contact made as a results of which the child could have been conceived. There is no details of any previous attempts to seek support for the child. So the complaint is just a bare allegation with no reference to any corroborative support that could be available.

The main submission is that this being a claim for money recoverable by virtue of any enactment, namely the Child Welfare Act, such an action cannot be brought after the expiration of 6 years commencing on the date on which the cause of action accrued; see Frauds and Limitations Act Section 16. And as the child is alleged to have been born in February 1983, the delay until 1993 to seek compensation means the complaint must now be statute-barred.

The Magistrate in considering whether there was a 6 year time limit commencing on the date on which the cause of action occurred found that this being a maintenance action for a child where maintenance could be awarded until the infant reached the age of 16 years this action was thereby an ongoing thing. The Magistrate said that this limitation is not applicable in maintenance proceedings as the Child Welfare Act states that a child is maintainable until he or she reaches 16 years. The Magistrate seems to be finding that the cause of action can arise at any time during the first 16 years of the infants life.

However what is the cause of action. The action arises under the Child Welfare Act Ch 276 Section 51 and is seeking maintenance against the defendant on the basis that he was the father of the illegitimate child and left him without any lawful means of support from the date of the birth. This is what is called an affiliation proceeding. Such means that it must be proved that the defendant is the father of the child, that is the starting point of the claim and thus must be the basis for the cause of the action. In this case even if the plaintiff says lets not worry about any maintenance for the first ten years but claim from now on the paternity must be proved and that is from the date of the birth. Child Welfare Act S.56 only says the duration of the Order for Maintenance is till the child is 16 years but this is not the cause of action, the order itself derives from the cause of action under S.51.

There is no particular provision in the Child Welfare Act which excludes the Frauds and Limitation Act. And there must be valid public policy and practical considerations why the time limitation of 6 years should still apply. Firstly if a party waits for more than 6 years can we really be sure that they are serious about the claim or merely being opportunist. Secondly the limitations periods are put into place to give parties a chance to defend actions before too many years pass and memories fade. As the years pass it becomes harder and harder for people to remember exactly what they did and exactly when, witnesses move on and cannot be found. It is an exceptional hardship for a person to suddenly have to try and remember exactly what they did many years ago.

Commonsense says that such a maintenance proceeding which relies on proof of parenthood and not on any more specific agreement of more recent origin must still be governed by the general limitation period that applies to most other claims for the recovery of money.

I rule that the Frauds and Limitations Act 1988 applies to maintenance proceedings under the Child Welfare Act and I find that the magistrate erred in dismissing the application to have the matter dismissed.

I uphold the appeal and I am satisfied on the material before the magistrate that I can make the orders the magistrate should have made. I dismiss the original complaint as being time-barred.

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Lawyer for the Appellant: Young & Williams