N7649

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 47 OF 2008

THOMAS WARI acting for and on behalf of the Estate of the late Wari Kupa
Plaintiff

-V-

DEKENAI CONSTRUCTIONS LIMITED
Defendant

Waigani: Kariko, J
2017: 10th & 15th February

CIVIL PRACTICE & PROCEDURE – application to dismiss proceedings – claim filed on behalf of estate of deceased  – deceased died intestate – plaintiff appointed by Public Curator as his agent – requirement for letters of administration to be first granted

Cases Cited:

Ken Owa & Anor v Jacob Popuna & Ors (2015) N6111

Legislation:

Public Curator Act (Chapter 81)

Counsel:

Plaintiff in person
Mr D Mel, for the defendant

DECISION

15th February, 2017 

1.	KARIKO, J: This is an application by the defendant (Dekenai) to dismiss the proceedings on the basis that the plaintiff (Wari) lacks the legal capacity to bring this suit.

Background

2.	Wari is the eldest son of Wari Kupa (the Deceased) who died intestate while employed by Dekenai. 

3.	He is suing Dekenai for and on behalf of the estate of the Deceased (the Estate) alleging negligence against Dekenai for:

•	Failing to arrange an autopsy on the Deceased; and
•	Failing to have in place workers compensation insurance cover at the time of the death of the Deceased.

Issue

4.	It is not disputed that the claims are being prosecuted for and on behalf of the Estate. It also appears that no letters of administration have been granted by the National Court to the Public Curator or anyone else, including Wari, for the administration of the Estate. 

5.	In order for a person to be able to administer the estate of a person who has died intestate, the Court must grant letters of administration to that person. Where the deceased person wrote a will, probate would be granted. 

6.	After the issue was raised in court, the plaintiff informed the Court that he was formally authorized by the Public Curator to administer the Estate. The case was last adjourned in December 2016 to allow the plaintiff to present a copy of that authorization. What has now been provided is a letter from the Public Curator dated 7th February 2017 purportedly appointing Wari as his agent pursuant to Section 4 of the Public Curator Act (Chapter 81) to administer the Estate. 

The law

7.	Section 4(1) states that: “The Public Curator may appoint a person to act as his agent for the purpose of the administration of an estate.” (My underlining)

Consideration

8.	Counsel for the defendant argued that the Public Curator’s appointment of Wari as his agent is unlawful because the Public Curator himself has not been granted letters of administration. Mr Mel relies on the decision of Nablu, AJ in Ken Owa & Anor v Jacob Popuna & Ors (2015) N6111. In that case, the Public Curator appointed a person as his agent for the purpose of administering the estates of a number of deceased landowners who had died intestate. Letters of administration had not been obtained from the Court. Her Honour noted that by virtue of Section 44 of the Wills Probate & Administration Act the property of a person who has died intestate initially vests in the Public Curator until letter of administration is granted. Her Honour also decided that while Section 4 gives discretionary power to the Public Curator to appoint persons to act as his agents for the purposes of administering a deceased estate, the Public Curator cannot exercise that power unless the Public Curator himself has been granted letters of administration. 

9.	I agree with that conclusion. The vesting of an estate is not the same as the administration of an estate. The vesting simply refers to care-taking of property while administration means the collection of assets, payment of debts and distribution of property in the estate of a deceased person. Since an agent may be appointed for the purpose of the administration of an estate, the Public Curator must himself have powers to administer the estate by virtue of probate or letters of administration ordered by the Court.

Conclusion

10.	In the circumstances, I conclude that the appointment of Wari as an agent of the Public Curator is unlawful. The Plaintiff therefore does not have the legal capacity to commence these proceedings which consequently must be dismissed as incompetent. 

Other arguments

11.	I consider it not necessary then to decide the defendant’s arguments on the merits of the plaintiff’s substantive claims, except to say:

•	The defendant does not have the jurisdiction to request or order a post-mortem or conduct a coroner’s inquest to determine the cause of death of a deceased person.
•	By necessary inference, the evidence shows that Dekenai did have workers compensation insurance cover in place when the deceased died. 

Order
 
12.	I order that:

(1)	The proceedings are dismissed in their entirety.
(2)	The plaintiff shall pay the defendant’s costs of the proceedings, to be taxed if not agreed.                             
______________________________________________________________
Mel & Henry Lawyers:  Lawyer for the Defendant