Gone v Alick [1994] PGLawRp 656; [1994] PNGLR 545 (22 April 1994)

PNG Law Reports 1994

[1994] PNGLR 545 - Koine Gone v Gidion Alick 

[1994] PNGLR 545

N1208

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KOINE GONE

V

GIDION ALICK

Mount Hagen

Woods J

17 February 1994

22 April 1994

INFANTS AND CHILDREN - Affiliation proceedings - Maintenance - Limitation of action - Frauds and Limitations Act 1988.

Facts

The complainant claimed that the defendant was the father of her child and left it without maintenance. The action was started 10 years after the birth of the child. It was argued by the defendant that the action was statute barred. The District Court magistrate, however, decided that, as maintenance is payable up to the child's 16th birthday, the action was not statute barred. On appeal:

Held

N1>1.       The cause of action was to establish paternity, which must be proved before an order of maintenance could be made.

N1>2.       Maintenance proceedings, which rely on proof of parenthood, are governed by the general limitation period of six years. Therefore, the claim was statute barred.

Counsel

A Kandakasi, for the appellant.

22 April 1994

WOODS J:  This is an appeal from a decision of the District Court at Mount Hagen, made on 31 August 1993, dismissing an application to have proceedings for maintenance dismissed as being time barred.

On 15 February 1993, Koine Gone filed a complaint claiming that Gidion Alick, being the father of a child, David, born on 13 February 1983, had left the child without any means of support. The complaint was, therefore, claiming maintenance for the child pursuant to s 51 of the Child Welfare Act Ch 276.

Lawyers for the defendant filed a defence to the complaint, saying that he was never married to the complainant and could not have fathered the child, and pleading the Frauds and Limitations Act 1988 (No 3 of 1988), which places a six-year limit on the commencement of proceedings. The latter was argued before the District Court as a preliminary point, and it is from the ruling then made that this appeal has been instituted.

It is submitted that the complaint, firstly, fails to disclose the circumstances leading to the allegation of fatherhood; such as, there was no date or time given for the alleged sexual contact made as a result of which the child could have been conceived. There are no details of any previous attempts to seek support for the child. So the complaint is just a bare allegation with no reference to any corroborative support that could be available.

The main submission is that, this being a claim for money recoverable by virtue of an enactment, namely the Child Welfare Act, such an action cannot be brought after the expiration of six years commencing on the date on which the cause of action occurred: see Frauds and Limitations Act s 16. And as the child is alleged to have been born in February 1983, the delay until 1993 to seek compensation means the complaint must now be statute-barred.

The magistrate, in considering whether there was a six-year time limit commencing on the date on which the cause of action occurred, found that this being a maintenance action for a child where maintenance could be awarded until the infant reached the age of 16 years, this action was thereby an ongoing thing. The magistrate said that this limitation is not applicable in maintenance proceedings, as the Child Welfare Act states that a child is maintainable until he or she reaches 16 years. The magistrate seems to be finding that the cause of action can arise at any time during the first 16 years of the infant's life.

However, what is the cause of action? The action arises under the Child Welfare Act s 51, and is seeking maintenance against the defendant on the basis that he was the father of the illegitimate child and left him without any lawful means of support from the date of the birth. This is what is called an affiliation proceeding. Such means that it must be proved that the defendant is the father of the child. That is the starting point of the claim and, thus, must be the basis for the cause of the action. In this case, even if the plaintiff says let's not worry about any maintenance for the first ten years but claim from now on, the paternity must be proved, and that is from the date of the birth. The Child Welfare Act s 56 only says the duration of the order for maintenance is till the child is 16 years, but this is not the cause of action. The order itself derives from the cause of action under s 51.

There is no particular provision in the Child Welfare Act which excludes the Frauds and Limitations Act. And there must be valid public policy and practical considerations why the time limitation of six years should still apply. Firstly, if a party waits for more than six years, can we really be sure that they are serious about the claim, or are they merely being opportunist? Secondly, the limitation periods are put into place to give parties a chance to defend actions before too many years pass and memories fade. As the years pass, it becomes harder and harder for people to remember exactly what they did and exactly when. Witnesses move on and cannot be found. It is an exceptional hardship for a person to suddenly have to try and remember exactly what they did many years ago.

Commonsense says that such a maintenance proceeding, which relies on proof of parenthood and not on any more specific agreement of more recent origin, must still be governed by the general limitation period that applies to most other claims for the recovery of money.

I rule that the Frauds and Limitations Act 1988 applies to maintenance proceedings under the Child Welfare Act, and I find that the magistrate erred in dismissing the application to have the matter dismissed.

I uphold the appeal, and I am satisfied on the material before the magistrate that I can make the orders the magistrate should have made. I dismiss the original complaint as being time-barred.

Lawyer for the appellant: Young & Williams.