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Timon, (as Next Friend of Fred Timon) v Robert Laurie Company Pty Ltd [1990] PNGLR 120 (16 March 1990)

Papua New Guinea Law Reports - 1990

[1990] PNGLR 120 - Lamuo Timon, as Next Friend of Fred Timon v Robert Laurie Company Pty Ltd 

[1990] PNGLR 120

N872

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

LAMUO TIMON AS NEXT FRIEND OF FRED TIMON

V

ROBERT LAURIE CO PTY LTD

Lae

Doherty AJ

16 March 1990

INFANTS AND CHILDREN - Inherent jurisdiction of National Court - Powers - Ex gratia payment for benefit of infant - Whether power to order payment into court for protection of funds - Infants Act (Ch No 278), s 15 - Constitution, ss 155(4), 185.

PRACTICE - National Court - Inherent jurisdiction - Ad hoc directions - Ex gratia payment for benefit of infant - Power to order payment into court for protection of funds - Infants Act (Ch No 278), s 15 - Constitution, ss 155(4), 185.

Held:

(1)      In the absence of a statutory or other legal obligation to pay moneys (not being a verdict or judgment) into court on behalf of an infant, the National Court may in the exercise of its inherent jurisdiction to make such orders as are necessary to do justice, give ad hoc directions under s 185 of the Constitution, for the payment into court of such moneys for the protection and benefit of the infant where the particular circumstances so warrant.

(2)      Where an ex gratia payment was made in respect of the accidental death of the father of an unborn child and where pressure was being brought to bear on the mother and the trustee for release of the moneys, an order should be mades that the moneys be lodged in court and invested by the Registrar for the benefit of the infant.

Cases Cited

The following is the only case cited in the judgment:

Hall Brothers Steamship Co Ltd v Young [1939] 1 KB 748; [1939] 1 All ER 809.

Summons

This was an application for payment into court of moneys paid to an infant by way of ex gratia payment.

Counsel:

K Gamoga, for the applicant.

16 March 1990

DOHERTY AJ.: The applicant applies to this Court for an order that an amount of K4,200 be paid to the Registrar to be invested by him on behalf of the child Fred Timon until the child reaches the age of 18 years.

The application is an unusual one in that the judgment amount does not arise as a result of statutory obligation on the part of the defendant company, Robert Laurie Co Pty Ltd. The affidavits of the company secretary of the defendant and of the applicant (the mother of the child Fred Timon) show that the father of the child, Okake Timon, was killed in the course of a freak accident on 16 February 1988, some five months prior to the birth of the child.

At that time, the deceased was employed by the defendant company and was sleeping in company accommodation when a storm caused a tree to be uprooted and to fall on the house causing the death of the father.

It is acknowledged by counsel that this accident was an act of God and it does not give rise to any statutory obligation, for example, under the Workers’ Compensation Act (Ch No 179), or occupiers’ liability pursuant to the Wrongs (Miscellaneous Provisions) Act (Ch No 297). However, the defendant company made an ex gratia payment for the benefit of the unborn child and its mother in respect of the death of the father.

This ex gratia payment was invested under a voluntary trust with the agreement of the applicant mother. The applicant mother and the company secretary both state that, in the course of the past year, various people have come seeking to take money from the fund and there has been considerable pressure on the trustees and on the mother to release funds. The status of these people is not clear.

As a result, the mother now applies to the court for the protection of this money and asks that it be invested and under the control of the court.

The Infants Act (Ch No 278), s 15, provides for powers to enter judgment for damages and to have the court approve an order for settlement of the amount to be made for the benefit of the infant. There are provisions in the National Court Rules, O 20, providing for procedures for a testator’s family maintenance order and for implementation of the provisions of the Infants Act.

The Infants Act refers to “a verdict recovered on or judgment entered” for an amount as damages. Damages carries with it the connotation of an award by a court based on a statutory or common law obligation or remedy. It is stated in Hall Brothers Steamship Co Ltd v Young [1939] 1 All ER 809 at 814:

“ ‘Damages’ to an English lawyer, imports the idea that the sums payable by way of damages are sums which fall to be paid by reason of some breach of duty or obligation, whether that duty or obligation is imposed by contract by the general law, or by legislation.”

I am not asked to develop the Underlying Law and distinguish between damages in an English court and a Papua New Guinean one and leave this to another court. Suffice it to say that the situation before me is not founded on a statutory or legal obligation. As such, it does not appear to be covered by the provisions of s 15 of the Infants Act and on the face of it there is no statutory power to make an order as applied for. The National Constitution, s 166, provides that the National Court had jurisdiction as provided in s 22, Subdivision 111.3D, and in s 155 of the Constitution. Section 155(3) of the Constitution vests powers in the National Court including “such other jurisdiction and powers as are conferred on it by this constitution or any law.” In order to exercise a power, the Court must have jurisdiction vested in it by the Constitution or any law.

There are wide powers in s 155(4) to make, in such circumstances as seem proper, orders as are necessary to do justice in the circumstances of a particular case. On first reading, this wide power to make “such other orders as are necessary to do justice” is limited by the preceding provision that they are orders in the nature of prerogative writs. Without seeking to interpret s 155(4), which is a power vested in the Supreme Court and the National Court, but bearing in mind the obligation to give a fair and liberal meaning and the general duty of a court to protect an infant, I consider that the order sought is necessary to do justice to the applicant. I further consider this is a situation where s 185 of the Constitution permits me to give an ad hoc direction and I allow the moneys to be lodged in court for the protection and benefit of the infant applicant.

In considering this application, I have given very considerable thought to the “floodgate theory”, namely, that this precedent may lead to an influx of applicants seeking to protect similar infant funds from greedy or rapacious relatives. However, having considered this, I find that the situation before me is unusual and do not think it is likely to be repeated frequently.

According, I make the order as sought that the sum of K4,200 be invested by the Registrar for the benefit of the infant Fred Timon.

Direct that sum of K4,200 be invested by Registrar for benefit of infant

Lawyers for the applicant and defendant: Warner Shand.