N7873

PAPUA NEW GUINEA
[IN NATIONAL COURT OF JUSTICE]
MP 1 of 2019
BETWEEN:
IN THE APPLICATION PURSUANT TO ORDER 5 RULES 21 (6) AND  22 (3) OF THE NATIONAL COURT RULES FOR HARRY MERIA TO BE DECLARED THE NEXT FRIEND OF THE MENTAL IMPAIRED MAPA AKOPE MERIA.
Applicant/Plaintiff

Waigani:	Thompson J
2019:     16 May

Application to declare person as mentally infirm – Entitlement of mentally infirm person to be paid superannuation – Failure of statute to provide procedure – S 155 (4) of Constitution to aid enforcement of primary right

Counsel

Mr S D Uyassi, for the Applicant/Plaintiff

16 May, 2019

1.	THOMPSON J:	The Applicant has established that he is the spouse of Mapa Akope Meria (“the wife”), who is a member of Nambawan Super Ltd.

2.	The Applicant has established that his wife’s last employment was terminated on 24 May 2017, when she was aged about 60, and that she has been clinically diagnosed as suffering from Senile Dementia since 2016, which diagnosis has been confirmed by two doctors including the Director Health Services at the University of Papua New Guinea.

3.	The Applicant has established that since his wife ceased work and was given sick leave in 2016, he has been responsible for her care, initially at his daughter’s home in Port Moresby and subsequently in his village in Hela Province.

4.	In response to his enquiries about receiving his wife’s superannuation entitlements, Nambawan Super has confirmed that his wife is entitled to the withdrawal of all her benefits, as she has attained eligibility age and has been unemployed for over 12 months. However, Nambawan Super Ltd has refused to pay out the entitlements, because they say that the wife is mentally incapacitated, and that the Superannuation (General Provisions) Act 2000 (“The SGP Act”) does not provide any procedure for members with mental incapacity to apply for withdrawal.  They therefore proposed that the Applicant apply for an order under the Public Health Act.  

5.	The Public Health Act did indeed provide a procedure under Part VIII Section 102, whereby the National Court could make an order for the payment of monies owned by a person of unsound mind, to such person as the Court thinks fit, without the need for the appointment of a Committee of the estate of a person of unsound mind.  

6.	However, Part VIII of the Public Health Act has been repealed by the Public Health (Amendment)  Act 2015, and replaced by the Mental Health Act 2015.  In its preamble, the Mental Health Act is stated to be intended to provide for the administration and infrastructure for mental health care services and for the admission of persons  of unsound mind to mental health care centres.  It provides, inter alia, for a Mental Health Tribunal consisting of a Judge or Magistrate, two physiatrists, a clinical psychologist, social worker, lawyer of 5 years experience, PNGDF and community members, and their role is to deal with matters relating to the admission and treatment of patients, and to investigate complaints of a person being admitted against their will to a mental health centre. 
 
7.	The Tribunal can appoint members to an Accounts Committee, which will deal with patients monies.    Where the patient’s next of kin requires monies, he has to apply to the Chief Executive Officer of the Committee, who shall refer the application to the Accounts Committee for consideration, and who may authorize payment.  

8.	There is no evidence that such Mental Health Centres and Committees have been set up and are operating, and it seems improbable that this will happen any time soon.  

9.	The Act does not make specific provision for dealing with persons who are not admitted to mental health centres, which were previously covered by the provisions in the Public Health Act.  

10.	I have therefore turned to the SGP Act.  Section 90 (1) says that a member may withdraw the full amount on ceasing to be employed etc., including in Section 90 (1) (d) if permanently incapacitated due to mental infirmity, “in accordance with certification procedure prescribed in the regulations”.  

11.	Unfortunately, the Regulations do not prescribe any certification procedure.  There is in fact no reference to the procedure at all.  

12.	This Court is conscious of the need to protect mentally impaired persons from abuse.  However, in this case, the medical and other evidence is sufficient to show that the Applicant’s wife has dementia, is incapable of managing her affairs, is being looked after at home, and that there would be no benefit in attempting to admit her to a Mental Health Centre, even assuming that such centres exist and are functional. 
 
13.	In a case where Nambawan Super agrees that the Applicant’s wife is eligible and mentally incapacitated, it cannot be right that a Superannuation Fund governed by the SGP Act, is unable to comply with its admitted statutory obligation to pay out a member’s entitlements, simply because there is no provision in the Regulation for the appropriate certificate.  

14.	This seems to be a prime example where the provisions of Section 155 (4) of the Constitution may be validly utilized.  In the Supreme Court Reference for the Mineral Resource Authority (2019) PGSC 14, the Supreme Court considered the application of Section 155 (4), and confirmed that it  confers jurisdiction on the Court to issue facilitative orders in aid of the enforcement of a primary right conferred by a law.  The Court approved the decisions in Medaing v Ramu Nico Management (MCC) Ltd (2011) SC 1156 and Behrouz  Boochani v The State  (2017) SC 1566, whereby it was stated that Section 155 (4) exists to ensure that the rights and interests conferred by laws are enforced or protected if existing laws are deficient to render protection or enforcement.  

15.	That is the position here.  The member, by her spouse, has been shown to be permanently incapacitated due to mental infirmity, and therefore has a statutory right under Section 90 (1) (d) of the SGP Act to withdraw the full amount of her superannuation entitlements.  The member by her spouse is unable to exercise this right, only because the prescribed procedure referred to in Section 90 (1) (d) does not exist.  That procedure is an administrative requirement to enable enforcement of the primary statutory entitlement. In this case, it is incapable of ever being utilized, because it does not exist, and until Parliament amends the Regulation to include the procedure, mentally infirm members and their spouses may never be able to receive their statutory entitlements.
  
16.	In the circumstances of this particular case, Section 155 (4) can be utilized to do justice.  

17.	Having found that the Nambawan Super Ltd member, Mapa Akope Meria, is permanently incapacitated due to mental infirmity, a Declaration is granted pursuant to Section 155 (4) of the Constitution and pursuant to Section 90 (1) (d) of the Superannuation (General Provisions) Act 2000 that the member by her spouse Harry Meria may withdraw the full amount standing to her credit in Nambawan Super Ltd as the authorized Superannuation Fund.  
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S Douglas Uyassi Lawyers:	Lawyers for the Applicant/Plaintiff