SC1993

  PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 169 OF 2019

		BETWEEN:
PAUL POR ONGA 
as Father and Executor of the Estate
 of ELIZAH POR ONGA
First Appellant

AND:
SABINA MANNIE POR 
as Mother of ELIZAH POR 
ONGA (Deceased)
Second Appellant

AND:

THE INDEPENDENT STATE 
OF PAPUA NEW GUINEA
Respondent

Waigani: Kirriwom J, Hartshorn J, Anis J
2020: 25th August, 1st September

SUPREME COURT APPEAL – Whether actions commenced under s34 Wrongs Act is statute barred like those commenced under s31 Wrongs Act - pursuant to s. 31 Wrongs Act proceedings must be commenced within three years after the death of the deceased – an estate claim brought under s34 Wrongs Act is not the same as actions brought under s31 - A claim brought pursuant to s. 34 Wrongs Act is not affected by the limitation period contained in s. 31 Wrongs Act – only actions under Part IV  are  subject to the limitation period in s. 31 – appeal upheld.

Cases Cited
Curtain Bros (PNG) Ltd v. University of Papua New Guinea (2005) SC788
Gregory Tavatune v. Dr. Novette and Ors (2012) N4611

Counsel:

Mr. D. Kipa, for the Appellants
Mrs. R. Gelu, for the Respondent

1stSeptember, 2020

1. BY THE COURT: This is a decision on a contested appeal from a National Court decision which dismissed a proceeding on the basis that it was statute barred pursuant to s. 31 Wrongs (Miscellaneous Provisions) Act (Wrongs Act).

Background

2. The deceased is alleged to have died as a result of shots fired by a policeman at a taxi in which the deceased was a passenger. The parents of the deceased commenced a proceeding against the State in respect of their son’s death. The father also sued in his capacity as the customary representative of his son. The primary judge dismissed the proceeding on the basis that it was statute barred pursuant to s. 31 Wrongs Act as the proceeding had not been commenced within three years after the death of the deceased. The proceeding was commenced 4 years, 11 months and 7 days after the death of the deceased.

3. One of the grounds of appeal is amongst others, that the primary judge fell into error in finding that the proceeding was statute barred pursuant to s. 31 Wrongs Act when the proceeding was commenced under s. 34 Wrongs Act.

Consideration

4. In paragraph 24 of the statement of claim, the appellants/plaintiffs plead an Estate claim. An Estate claim is brought pursuant to s. 34 Wrongs Act. In the defence of the respondent/defendant it is not pleaded that the Estate claim is statute barred. The primary judge acknowledges that an Estate claim is made and at [42] of her published judgment states:

“… estate claims are well recognised and allowable if the claim was filed within the period prescribed under s.31 of the Wrongs Act.”

5. Section 31 Wrongs Act is:
“31.	Limitation of actions under Part IV.
Only one action under this Part lies for and in respect of the same subject-matter of complaint, and every such action must be commenced within three years after the death of the deceased person.”
6. Section 34(1) Wrongs Act is:	
“Effect of death on certain causes of action.
(1)	Subject to this section, on the death of a person after 1 January 1963 (being the date of commencement of the pre-Independence Law Reform (Miscellaneous Provisions) Act 1962) all causes of action subsisting against or vested in him survive against or for the benefit of, as the case may be, his estate.”
7. Section 34(6) Wrongs Act is:
“(6)	The rights conferred by this section for the benefit of the estates of deceased persons are in addition to and not in derogation of any rights conferred on the dependants of a deceased person by any other law, and this section applies in relation to causes of action under that law as it applies in relation to other causes of action not expressly excepted from the operation of Subsection (1).”
8. Section 31 refers to “one action under this Part”and then provides that every such action must be commenced within three years after the death of the deceased person. “Such action” refers to “action under this Part”. The heading to s. 31 is clear in confirming this. Section 34(1) provides that “Subject to this section, … all causes of action … vested in him … survive for the benefit of … his estate.” Section 34(6) provides that the rights conferred by section 34 for the benefit of the estates of deceased persons are in addition to and not in derogation of any rights conferred on the dependents of a deceased person by any other law.
9. Section 34 Wrongs Act is in Part V of the Wrongs Act. A claim brought pursuant to s. 34 Wrongs Act is not affected by the limitation period contained in s. 31 Wrongs Act, as s. 31 is in Part IV. It is only an action under Part IV that is subject to the limitation period in s. 31. A claim brought pursuant to s. 34, in the absence of any other specific period of limitation which concerns s. 34, is subject to the limitation provisions of the Frauds and Limitations Act 1988. Consequently, when the primary judge dismissed the whole of the proceeding pursuant to s.31 Wrongs Act, notwithstanding that the proceeding contained an Estate claim, we are of the respectful view that Her Honour fell into error. 
10. The primary judge appears to have relied upon the case of Gregory Tavatune v. Dr. Novette and Ors (2012) N4611 for the proposition that an Estate claim brought pursuant to s. 34 Wrongs Act must be brought within three years of the death of the deceased pursuant to s. 31 Wrongs Act. From a perusal of that case, it is not apparent that Davani J. considered s. 34 Wrongs Act. Consequently, we are of the respectful view that Her Honour fell into error to the extent to which she relied upon Tavatune (supra) for such a proposition.
11. We are satisfied therefore, that the primary judge made an identifiable error in the exercise of her discretion: Curtain Bros (PNG) Ltd v. University of Papua New Guinea (2005) SC788. This appeal should be allowed. Given this it is not necessary to consider the other submissions of counsel.
Orders
12.  It is ordered that:
a)	This appeal is allowed;
b)	The order made on 4th September 2019 in National Court proceeding WS 1345 of 2017: Paul Por Onga as father and customary representative of Elizah Por Onga and Sabina Mannie Por as mother of Elizah Por Onga(deceased) v. Independent State of Papua New Guinea (WS 1345 of 2017) is set aside;
c)	WS 1345 of 2017 is remitted to the National Court at Waigani for a rehearing before another judge;
d)	The respondent shall pay the appellants’ costs of and incidental to this appeal on a party to party basis to be taxed if not agreed.
__________________________________________________________________
Wang Dee Lawyers:  Lawyers for the Appellants
Office of the Solicitor General:  Lawyers for the Respondent