Gibb v Paul Francis Conboy and Kumbak Plantations Pty Ltd [1977] PGLawRp 546; [1977] PNGLR 311 (27 September 1977)

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[1977] PNGLR 311 - Lanita Karen Gibb v Paul Francis Conboy and Kumbak Plantations Pty Ltd

INFANTS AND CHILDREN - Sanctioning of settlements - Practice and procedure - Impartial opinion of independent counsel required - Another member of firm acting for infant sufficient.

PRACTICE AND PROCEDURE - National Court of Justice - Infants and children - Sanctioning of settlements - Impartial opinion of independent counsel required - Another member of firm acting for infant sufficient.

In proceedings to sanction settlements involving compromises, on behalf of infant plaintiffs, the impartial opinion of independent Counsel that the terms of the proposed compromise are for the benefit of the infant is required; because of the small members in the profession in Papua New Guinea, the opinion of another member of the firm acting for the infant will be sufficient to satisfy this requirement.

This was a motion for the approval of a settlement on behalf of an infant plaintiff, in an action claiming damages for injuries arising out of a motor vehicle accident.

KEARNEY J: On 2nd March, 1972, the plaintiff infant by her next friend issued a writ against the defendants, claiming damages for injuries allegedly sustained in a collision between two motor vehicles on 28th June, 1971.

The defendants, ultimately, did not deny liability, and paid certain moneys into Court.

On 22nd September, 1977, the parties appeared before me, the plaintiff seeking approval of a proposed compromise of the action. In support thereof, the plaintiff relied solely upon an affidavit by Mr. Evans, the solicitor for the plaintiff.

I should say at the outset that it is clear that Mr. Evans has examined the law and the facts carefully, in reaching his conclusion that the proposed compromise is for the benefit of his client.

However, I adjourned the matter until today because it appeared to me that, in considering whether to approve a compromise of an infant’s claim, something more than an affidavit by her solicitor might be necessary. In Ping Lokawa v. Tokowa Kore and Anor.[cccviii]¹, I dealt generally with the question of obtaining the approval of the Court to a proposed compromise of an infant’s claim. As far as I am aware, it is the common practice of this Court to require for its assistance when considering this question, the impartial opinion of independent counsel that the terms of the proposed compromise are for the benefit of the infant. Because of the small numbers in the profession here, I consider that the opinion of another member of the firm acting for the infant is sufficient to satisfy this requirement, though this be contrary to the practice in some other places[cccix]². This requirement of an independent opinion is in addition to the affidavits to be sworn respectively by the solicitor for the infant and the next friend, who is himself no mere cypher, expressing their personal opinions that, having gone carefully into the matter, the compromise proposed is for the benefit of the infant.

These requirements appear to accord with those of long standing, in other similar jurisdictions; see In re Birchall: Wilson v. Birchall[cccx]³.

Accordingly, I adjourn the present application sine die in order that the opinion of independent counsel and an affidavit by the next friend may be obtained.

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[cccviii]Unreported—Kearney J. 30th July, 1976.

[cccix]For example, in South Australia; see Pfitzner v. Sergeant [1941] S.A.S.R. 286.

[cccx][1880] UKLawRpCh 252; (1880) 16 Ch.D. 41 per Jessel M.R. at p. 43.

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Papua New Guinea Law Reports

Gibb v Paul Francis Conboy and Kumbak Plantations Pty Ltd [1977] PGLawRp 546; [1977] PNGLR 311 (27 September 1977)

Papua New Guinea Law Reports - 1977