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Yamba v Geru [1975] PNGLR 322 (21 October 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 322 - Monomb Yamba v Maits Geru 

[1975] PNGLR 322

N9

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MONOMB YAMBA

V

MAITS GERU (ALSO KNOWN AS MAS GERU)

Waigani

Frost CJ

14 October 1975

21 October 1975

INFANTS AND CHILDREN - Sanctioning of settlements - Powers of National Court of Justice - Nature of powers - Effect of Independence and Constitution on royal prerogative as parens patriae - Royal prerogative no longer delegated by Queen to Judges - Power supported by “judicial power of people” - National Court, court of unlimited jurisdiction - Constitution, s. 158 (1)[cdxvii]1and s. 166 (1)[cdxviii]2.

PRACTICE AND PROCEDURE - National Court of Justice - Jurisdiction - Infants and children - Sanctioning of settlements - Former Royal Prerogative as parens patriae - Power supported by “judicial power of people” - Constitution, s. 158(1)[cdxix]3 and s. 166(1)[cdxx]4.

The National Court of Justice in Papua New Guinea has power to sanction settlements involving compromises, on behalf of infant plaintiffs, in accordance with the well-established rules for the protection of infants. Such power formerly part of the Royal Prerogative as parens patriae now derives from the provisions of the Constitution of the Independent State of Papua New Guinea.

The power of the former Supreme Court of Papua New Guinea to sanction settlements on behalf of infant plaintiffs, that of the Royal Prerogative as parens patriae has been displaced by reason of s. 158(1) of the Constitution, whereby, the judicial power of the people is now vested in the National Judicial System: the judicial power of the people is as plenary as the Royal Prerogative which attached to the Queen as the dispenser of justice, or as parens patriae and is sufficient to support the rule. The same conclusion follows from s. 166(1) of the Constitution whereby the National Court is a court of unlimited jurisdiction.

The State v. John Mogo Wonom [1975] P.N.G.L.R. 311 applied.

Bradford v. Bradford [1975] P.N.G.L.R. 305 not followed.

Motion

This was a motion for the approval of a settlement on behalf of infant plaintiffs, in an action brought under the Law Reform (Miscellaneous Provisions) Act 1962, Pt. IV, for the benefit of a widow and three infant children.

Counsel

M. M. Rush, for the plaintiffs.

G. B. Evans, for the defendants.

Cur. adv. vult.

21 October 1975

FROST CJ: Motion for approval of compromise of an action. The action is brought under the Law Reform (Miscellaneous Provisions) Act 1962, Pt. IV, for the benefit of the widow and three infant children of a deceased husband and father whose death it is claimed was caused by the negligence of the defendant.

When the motion first came before me I indicated that I was satisfied that the compromise was beneficial to the infants and should be approved. However, I adjourned the hearing to consider the basis of the Court’s jurisdiction having regard to the provisions of the new Constitution.

In Bradford v. Bradford[cdxxi]⁵ which was also an application for approval of a compromise it was accepted that that part of the Royal Prerogative whereby the Queen is parens patriae, under which prior to Independence the judicial power to approve compromises was held to exist, continues in force. See also Katundi and Katundi (Infants) v. Hay[cdxxii]⁶. Judgment in the former case, however, was given upon the same day as in the case of The State v. John Mogo Wonom[cdxxiii]⁷.

In my opinion it follows from the judgments in The State v. John Mogo Wonom[cdxxiv]⁸ that it is no longer the law that that part of the prerogative is delegated by Her Majesty to the Judges. It has been displaced by reason of the constitutional provision that, subject to the Constitution, the judicial power of the people is vested in the National Judicial System. (Constitution s. 158 (1).) But there can be no doubt that the judicial power of the people is as plenary as the Royal Prerogative which attached to the Queen as the dispenser of justice[cdxxv]⁹ or as parens patriae, and is amply sufficient to support the well-established rules for the protection of infants.

The same conclusion follows, in my opinion, from the constitutional provision that subject to the Constitution the National Court is a court of unlimited jurisdiction (Constitution s. 166 (1)). Accordingly I sanction the compromise and make the orders sought in the notice of motion.

Orders accordingly.

Solicitors for the plaintiff: N. H. Pratt, Acting Public Solicitor.

Solicitors for the defendant: Gadens.

[cdxvii]Section 158 is as follows:—

Exercise of the Judicial Power — (1) Subject to this Constitution, the judicial authority of the People is vested in the National Judicial System. (2) In interpreting the law the courts shall give paramount consideration to the dispensation of justice.

[cdxviii]Section 166(1) is as follows:—

(1) Subject to this Constitution, the National Court is a court of unlimited jurisdiction.

[cdxix]Section 158 is as follows:—

Exercise of the Judicial Power — (1) Subject to this Constitution, the judicial authority of the People is vested in the National Judicial System. (2) In interpreting the law the courts shall give paramount consideration to the dispensation of justice.

[cdxx]Section 166(1) is as follows:—

(1) Subject to this Constitution, the National Court is a court of unlimited jurisdiction.

[cdxxi][1975] P.N.G.L.R. 305.

[cdxxii] [1940] St.R.Qd. 39.

[cdxxiii][1975] P.N.G.L.R. 311.

[cdxxiv][1975] P.N.G.L.R. 311.

[cdxxv]See the passage from Blackstone’s Commentaries cited in The State v. John Mogo Wonom per Williams J Infra p. 319.