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Copland v Bourke [1963] PGSC 5; [1963] PNGLR 45 (26 January 1962)

Papua New Guinea Law Reports - 1963

[1963] PNGLR 45 - Copland v Bourke

[1963] PNGLR 45

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

AIRLEE JEAN COPLAND

APPELLANT

AND

KEVIN SYLVESTER BOURKE

RESPONDENT

Port Moresby

Ollerenshaw J

26 January 1962

On appeal from Court of Petty Sessions.

WORKERS� COMPENSATION - Appeal where no rules - Corroboration of evidence of dependency if worker deceased - Workers� Compensation Ordinance 1951-1954 Section 22.

Section 22 of the Workers� Compensation Ordinance 1951-1954 provided that:

� . . . either party to the arbitration may appeal from the decision, order or award, on a question of law or fact, or both, to the Supreme Court, within the time and in accordance with the conditions prescribed by the Rules of the Supreme Court, and the appeal may be in the nature of a rehearing.�

The Appellant claimed compensation under the Workers� Compensation Ordinance 1951-1954 in respect of the death of her husband on the 31st January, 1959, by accident in the course of his employment with the respondent. At the time of the death the Appellant had been separated from her husband for a period of over eight years. During that time she substantially supported herself by her own earnings.

In an arbitration before the Court of Petty Sessions the Appellant gave evidence that until August, 1958 her husband sent her money regularly. She also gave evidence that her oral acknowledgements of the receipt of the money were passed to her husband by their daughter. The daughter was not called as a witness. The Court of Petty Sessions found that the Appellant had not established that she was a dependant of the deceased at the time of his death and dismissed her claim.

No Rules of the Supreme Court regulating appeals under Section 22 of the Workers� Compensation Ordinance 1951 had been made.

Held

N1>(1)����� Notwithstanding the absence of Rules of the Supreme Court prescribing procedure for appeal, the right of appeal exists and the Supreme Court should entertain appeals as justice and commonsense demand. Dictum of Jordan C. J. in Browne v. Commissioner for Railways[lviii]¹�applied.

N1>(2)����� Where the basis of the widow�s claim for compensation consists of transactions alleged to have taken place between her and her husband before her husband�s death, the Court, as a matter of practice, requires corroboration of the widow�s evidence of such transactions.

N1>(3)����� The Appellate Court must be loath to interfere with a decision of fact of the Tribunal of first instance where that decision depends on credibility of witnesses. Dearman v. Dearman[lix]²�and Donaldson v. Freeson[lx]³�applied.

Counsel

Cory for Appellant

Kirke for Respondent

OLLERENSHAW J:� This is an appeal by a widow against the decision of the Court of Petty Sessions, constituted by a Resident Magistrate, dismissing her claim for compensation under the Workers� Compensation Ordinance 1951-1952 in respect of the death of her husband, William Copland. He was killed on the 31st January 1959, by accident in the course of his employment with the Respondent.

The learned Magistrate, after arbitration, held before him on the 20th July, 1960, found that the Appellant had not established that she was a dependant of the deceased at the time of his death. This decision was given on the 21st July, 1960.

A Notice of Appeal to this Court was filed and served on the 19th August, 1960, and, on the 16th November, 1961, the appeal was entered for hearing.

When it came on for hearing before me on the 14th December, 1961, Counsel for the Respondent took a preliminary objection to the hearing of the appeal.

He maintained that the appeal did not lie because �the conditions precedent,� prescribed by Section 22 of the Ordinance, had not been complied with.

Section 22 provided that:

�. . . . either party to the arbitration may appeal from the decision, order or award, on a question of law or fact, or both, to the Supreme Court, within the time and in accordance with the conditons prescribed by Rules of the Supreme Court, and the appeal may be in the nature of a rehearing.�

Counsel for the Respondent argued that the Rules of the Supreme Court intended by Section 22 and applicable to this appeal were existing rules, either those comprised in 0.70 R. 32 of the Rules of the Supreme Court (Queensland, Adopted) or those enacted in Part IX of the Justices Ordinance 1912-1961 (Papua), and that in either case the entry of the appeal for hearing some fifteen months after its institution by the Notice of Appeal, was out of time.

The contention that this appeal was conditioned by the appeal provisions of the Justices Ordinance may be disposed of shortly by saying that these provisions are not Rules of the Supreme Court.

It is clear that O. 70 R. 32, made and amended long before the introduction of Worker�s Compensation Legislation, does not in terms or otherwise, relate to an appeal under the Worker�s Compensation Ordinance.

It is equally clear to my mind that Section 22 of the Ordinance contemplated that Rules of the Supreme Court would be made to meet the requirements of appeals under that section. I would agree, therefore, with the interpretation put upon the section by the draftsman of the Workers� Compensation Regulations, made under the Ordinance on the 18th March, 1952 in Regulation 69 (1) providing that appeals under Section 22 �. . . . shall be had in accordance with the provisions of the Rules of the Supreme Court relating thereto.� (See Laws of the Territory of Papua and New Guinea, 1952, Volume 1, Part A, page 215.)

No rules relating to such appeals have been made. This is not a novel situation. In such a case it has been established by the authorities, which were collected by the Chief Justice of New South Wales, in Browne v. Commissioner for Railways[lxi]⁴, that the right of appeal exists notwithstanding the absence of the contemplated procedural machinery and that the Court of Appeal should entertain appeals �. . . . as justice and commonsense demand�.

In my view an Appellant should take such steps as are reasonably practicable in the circumstances and, in questions of reasonable time, the times prescribed in existing provisions relating to other appeals to the Supreme Court may be taken into consideration.

In cases of special difficulty, or, where a reasonable doubt arises, a party desiring to exercise the right of appeal should apply to a Judge for directions; vide Inland Revenue Commissioners v. Joicey[lxii]⁵. The appropriate process would be an Originating Summons; Cf. 0.64 R.1 and the fourth paragraph of the Rules of Court (Wilson & Graham at p. 19).

In this matter a Notice of Appeal, containing the grounds of appeal, upon which the Appellant relied, was filed and served within a month after the decision of the Magistrate was given. In this respect the Appellant acted reasonably and promptly.

Thereafter, however, a period of fifteen months elapsed before the Appellant took steps to have her appeal brought on before the Court for hearing.

Her Counsel has offered these explanations for her delay: (a) That, because of the difficulties experienced by his principal in New South Wales in locating and communicating with his client, he did not receive instructions to proceed with the appeal until December, 1960, and (b) That since he received such instructions no further step was taken by him until November, 1961, because of the pressure of his work and inadvertence on his part. This latter contribution to his explanation is unusual, unconvincing and unacceptable.

In my view, and speaking generally, it would be contrary to �justice and commonsense� to allow an Appellant to proceed with an appeal after such unreasonable delay.

However, Counsel for the respondent has not suggested that his client has suffered any particular prejudice from this delay and, upon my indicating that I would reserve my decision upon the preliminary objection, both Counsel desired to, and did address me upon the merits of the appeal.

The appeal is brought against the Magistrate�s finding, as a matter of fact, that the Appellant was not wholly or partially dependent upon the deceased.

It appears in her evidence that from the time of the separation of the Appellant from her husband in November 1952, up to his death in January, 1959, the Appellant was in employment as successively, a housekeeper at Dorrigo, a shop assistant at Lochinvar and a banana-worker at Coffs Harbour, and, that she substantially supported herself by her own earnings. It also appears that during the relevant period her husband was in regular and gainful employment.

She claimed that her husband did send her some moneys up to the time of his departure from New South Wales for this Territory in August, 1958, a departure of which she was unaware until after his death, and that these contributions enabled her to �dress well� and to play golf. These moneys, of which she produced no record, were sent to her, she said, by her husband in cash in envelopes without any communication ever passing between them with the money or otherwise. Her changes of address and her oral acknowledgements of the receipt of the money were passed to her husband by their daughter.

The Magistrate, who saw and heard the Appellant in the witness box, was not impressed by her story, particularly as to the amounts of money she claimed to have received from her husband. I am, therefore, relieved of any restraint I may have felt if the Magistrate had been impressed by her veracity as a witness. I have in mind the principle enunciated and warning given in such cases as Dearman v. Dearman[lxiii]⁶�and Donaldson v. Freeson[lxiv]⁷�against interfering with a decision of fact of a tribunal of first instance where the decision depends upon the credibility of witnesses seen and heard by such tribunal.

I have considered the evidence, the arguments of Counsel and the judgment of the Magistrate and I find myself unable to accept the Appellant�s story to any extent, particularly in the absence of evidence from her daughter, who according to the Appellant�s evidence, was aged about twenty-four years at the date of the hearing of her application for compensation and could have corroborated her to a material extent.

In claims against the estates of deceased persons, where the survivor and not the deceased can give evidence of transactions alleged to have taken place between them, there is a rule of practice that requires a Court, more particularly where the Court is left in doubt upon the evidence of the claimant, to seek corroboration and to expect it when it is available; vide Phipson on Evidence, 9th Ed. at p. 508; Halsbury, 2nd Ed., Volume 13 at p. 765; Halsbury, 3rd Ed. Volume 15 at p. 450 and Volume 16 at p. 446. The Appellant�s claim is not against the estate of her deceased husband yet there is an analogy inasmuch as she and not he can give evidence of what is alleged to have taken place between them as the basis of her claim for compensation.

I think this is an appeal in which I may take into account that a witness, the daughter of the Appellant, who, according to the Appellant�s evidence, could have corroborated it to a material extent, was not called.

I am far from satisfied that, since their separation, the deceased had maintained the Appellant to any extent or that there was a reasonable probability that he would ever do so either voluntarily or under the compulsion of an enforceable obligation; Cf. New Moncton Collieries Limited v. Keeling[lxv]⁸�, I think that it is more probable that the Appellant had ceased to look to her husband for support and that he was not under any obligation to contribute to it.

I see no reason for differing from the conclusion reached by the Magistrate and I affirm the Order of the Court of Petty Sessions and order that the appeal be dismissed.

I order that the Appellant pay the respondent�s costs of the appeal.

Appeal dismissed.

Solicitor for the Appellant: Stan Cory.

Solicitor for the Respondent: C. P. W. Kirke.

[lviii]36 St. R (N.S.W.) 21 at page 28.

[lix]7 C.L.R. 549

[lx][1934] HCA 13; 51 C.L.R. 598 at page 609.

[lxi]36 St. R. (N.S.W.) 21 at page 28.

[lxii][1912] UKLawRpKQB 180; 1913 1 K.B. 445 at page 451.

[lxiii][1908] HCA 84; 7 C.L.R. 549 at page 553 et. seq

[lxiv][1934] HCA 13; 51 C.L.R. 598 at page 609.

[lxv][1911] UKLawRpAC 46; 1911 A.C. 648 at page 649.