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Pilang v Kont [1976] PNGLR 487 (26 October 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 487 - Kimini Pilang v Piam Kont 

[1976] PNGLR 487

SC108

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

KIMINI PILANG,

KIMBUGUL PILANG

AND MITI PILANG INFANTS BY THEIR NEXT FRIEND KOPE PILANG

V

PIAM KONT

AND TEI KATIPA

Waigani

Prentice DCJ Saldanha Kearney JJ

26 October 1976

APPEALS - Out of time - Infant appellant - Verdict under Law Reform (Miscellaneous Provisions) Act 1962 appealed from - Right of appeal not “action” within ss. 23 and 24[dxlii]¹ of Statute of Frauds and Limitations Act 1951 - Appeal dismissed.

WORDS AND PHRASES - “Action” - Right of appeal not action within ss. 23 and 24[dxliii]² of Statute of Frauds and Limitations Act 1951.

In an action heard on 3rd January, 1975 under the Law Reform (Miscellaneous Provisions) Act 1962, brought on behalf of a widow plaintiff and four infant children, damages were recovered in a sum which in the opinion of the Acting Public Solicitor (the solicitor for the plaintiff) were inadequate and appealable. The plaintiff expressing herself satisfied with the verdict declined to appeal. On 21st October, 1975, a notice of appeal was lodged by the eldest child of the deceased as next friend of the infant children, which appeal was brought outside the times within which appeals might be lodged under both the Supreme Court (Full Court) Act of 1968 and the Supreme Court Act 1974. On the hearing of the appeal it was argued that the provisions of ss. 23 and 24 of the Statute of Frauds and Limitations Act 1951, preserved the rights of appeal where they are not exercised on an infant’s behalf, in a state of limbo until the time within which an appeal might be brought, expires after each child attains 21 years of age.

Held

(1)      A right of appeal is not an “action” within the meaning of that word where used in ss. 23 and 24 of the Statute of Frauds and Limitations Act 1951.

(2)      The Statute of Frauds and Limitations Act 1951, being inapplicable to extend the time for appeal, and there being no power to extend the time for appeals other than that to be found in the Supreme Court Act (Full Court) Act 1968, or the Supreme Court Act 1974, (where applicable) the appeal was out of time and should be dismissed.

Appeal

This was an appeal from a decision of the National Court, on the ground of inadequacy of damages, awarded in an action under the Law Reform (Miscellaneous Provisions) Act 1962, brought on behalf of a widow and four infant children. The appeal was brought by the eldest child as next friend of the infant children.

Counsel

MF Campbell for the appellants

GJ Lay for the respondents

26 October 1976

PRENTICE DCJ:  This appeal is from a decision of the National Court in a claim under the Law Reform (Miscellaneous Provisions) Act 1962. The appeal is brought on the ground of the inadequacy of the damages awarded. A preliminary point has been taken on behalf of the respondents (defendants) that this appeal does not lie as being brought out of time.

The action was brought under Pt. IV of the Law Reform (Miscellaneous Provisions) Act 1962 by the widow of a man killed. The action was on her own behalf and that of the children (s. 11). On 3rd January, 1975 the trial judge brought in a verdict and apportioned the sum between the widow and children. The Acting Public Solicitor thereon formed the view that the verdict was inadequate and appealable to the extent apparently of some hundreds of Kina. The question of appeal was canvassed with the widow in the presence of adult members of the deceased’s family and with the aid of an interpreter. It appears that she expressed herself satisfied with the verdict and declined to instruct an appeal. Her refusal after explanation was documented. The matter there rested until October 1975 when the eldest son of the deceased “came of age” under a purported declaratory subsidiary order of the trial judge. Thereafter an appeal was initiated on the instructions of the eldest son of the deceased who now appears on the appeal papers described as the “next friend”, a description which had previously been appended apparently to the widow.

Notice of appeal was lodged on 21st October, 1975. Section 22 of the pre-Independence, Supreme Court (Full Court) Act 1968 provided that an appeal might be brought in respect of a decision on the civil side of the Court within forty days or such further extension of time as was allowed, upon an application for extension being made within those forty days. No such application within time or at all, has been made. This appeal is therefore brought outside the provisions of the Supreme Court (Full Court) Act 1968 and of the corresponding provisions of the present Supreme Court Act. There are two decisions of this Court to the effect that the Court has no power to extend the time for lodging appeals other than that to be found in the Act itself. (Osineru Dickson v. Luka Orere[dxliv]³ and John Blyth v. Stan Cory[dxlv]⁴).

Miss Campbell contends that she may rely on the provisions of ss. 23 and 24 of the Statute of Frauds and Limitations Act 1951, which have, she says, the effect of keeping appeal rights where they are not exercised on an infant’s behalf, in a state of limbo until a period of limitation expires after each of any such children attains 21 years of age. No decision along any such lines has been cited. The possibility of thus delaying for a period of many years finality of decision in an action brought on behalf of a widow and children, would appear to me to be contrary to the intent of s. 14 of the Law Reform (Miscellaneous Provisions) Act 1962 which envisages one action only on behalf of all the persons entitled to claim under ss. 10 and 11 of that Act. Section 23 of the Statute of Frauds and Limitations Act 1951 states:

“23.    All actions of debt for rent upon any indenture of demise all actions of covenant or debt upon any bond or other speciality and all actions of debt or scire facias upon any recognizances and all actions of debt upon any award where the submission is not by speciality or for money levied under fieri facias and all actions for penalties damages or sums given to the party grieved by any law now or hereafter in force in this colony shall be commenced and sued within the time and limitation hereinafter expressed but not afterwards that is to say the said actions of debt for rent or covenant or debt upon any bond or other speciality and actions of debt or scire facias upon recognizance within twenty years after the cause of such actions the said actions by the party grieved within two years after the cause of such actions and the said other actions within six years after the cause of such actions

Provided that nothing herein contained shall extend to any actions given by an act or statute where the time for bringing such action is or shall be thereby specially limited.”

Section 24, as relevant to the purpose of this argument, states:

“24.    If any person entitled to any such action ... shall be at the time the cause of action accrued within the age of twenty-one years ... then such person shall be at liberty to commence the same action within such times after being of full age ... as other persons having no such impediment should have done ...”

Miss Campbell’s argument depends upon the submission that a right of appeal is an “action” within the meaning of that word where used in ss. 23 and 24 of the Statute of Frauds.

In my opinion this submission cannot succeed. The word “action” has a well understood meaning in the statute law of the country and its rules of Court. An appeal, is, I consider, an entirely different “right” given by statute. The provisions of s. 23 of the Statute of Frauds and of Limitations Act 1951 concern themselves with the commencement of actions, a matter quite distinct from the lodgment of appeals.

Alternatively, Miss Campbell argues that the decision of the mother not to appeal on the children’s behalf cannot be held to bind the children as it was not made for the children’s welfare and interest. It is submitted that the mother’s decision taken as it was against the Acting Public Solicitor’s advice, cannot be held to be in the children’s interest. Reliance is placed upon the decisions of Rhodes v. Swithenbank[dxlvi]⁵ and In Re Hoghten[dxlvii]⁶; cases where children were held not bound by arrangements entered into on their behalf, either because they were not for their benefit or because negligence had been involved.

Neither case cited involved limitations points. In neither case could benefit have accrued to the infant from the actions of the next friend.

In my opinion these cases are distinguishable. Here the mother (“next friend” as she has been called in argument) preferred to rely on the decision of the trial judge rather than to accept the solicitor’s advice. I am unable to say that she acted unreasonably or against the children’s interest in doing so. One is unable to exclude, in addition, the possibilities on the one hand that a cross appeal might have been attracted whereby the damages verdict might have been cut down, and on the other of the jeopardy being run as to incurring costs should the appeal prove unsuccessful. There is also the question of a comparison of the likely costs being incurred with the amount of the possible or probable gain in verdict from an appeal. Without deciding the point, I would think there is much to be said in favour of the suggestion that s. 14 of the Law Reform (Miscellaneous Provisions) Act 1962 acts to suspend in any event the operation of s. 24 of the Statute of Frauds upon such “compensation to relatives” actions. (Compare Darke v. Eltherington & Another[dxlviii]⁷).

In my opinion the appeal should be dismissed.

SALDANHA J:  I concur. I agree with the reasons stated by the Deputy Chief Justice. I have nothing to add.

KEARNEY J:  I also concur.

Appeal dismissed. Appellant to pay respondent’s costs of appeal.

Solicitor for the appellants: N. H. Pratt, Acting Public Solicitor

Solicitor for the respondents: White, Reitano & Young

[dxlii] Infra p. 489.

[dxliii] Infra p. 489.

[dxliv] [1976] P.N.G.L.R. 120.

[dxlv] (unreported) S.C. 27 Aug. 1976.

[dxlvi] (1889) 22 Q.B.D. 577.

[dxlvii] (1874) 18 L.R. Eq. 573.

[dxlviii] [1963] Qd. R. 375.