Graham Rundle v Motor Vehicles Insurance (PNG) Trust (No 1) [1988] PNGLR 20

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Bredmeyer J, Amet J
• Judgment Date: 04 March 1988
• Court: Supreme Court
• Citation: [1988] PNGLR 20
• Year: 1988
• Judgement Number: SC347

Full Title: Graham Rundle v Motor Vehicles Insurance (PNG) Trust (No 1) [1988] PNGLR 20

Supreme Court: Kidu CJ, Bredmeyer J, Amet J

Judgment Delivered: 4 March 1988 or 24 March 1988

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

GRAHAM RUNDLE

V

MOTOR VEHICLES INSURANCE (PNG) TRUST NO (1)

Waigani

Kidu CJ Bredmeyer Amet JJ

24-25 August 1987

4 March 1988

PRACTICE — Notice of action — Extension of time for — Personal injuries — Motor vehicle accident — Damages claim — Notice to Motor Vehicles Insurance (PNG) Trust — Application for extension of time — To whom and how made — Extension within discretion of court — Exercise of discretion — Motor Vehicles (Third Party Insurance) Act (Ch No 295), s 54 (1), (6).

LIMITATIONS OF ACTIONS — Actions for things done under statutes etc — Notice of intended claim — Personal injuries — Motor vehicle accident — Damages claim — Notice to Motor Vehicles Insurance (PNG) Trust — Application for extension of time — To whom and how made — Extension within discretion of court — Exercise of discretion — Motor Vehicles (Third Party Insurance) Act (Ch No 295), s 54 (1), (6).

The Motor Vehicles (Third Party Insurance) Act (Ch No 295), s 54 (1), provides that any claim for damages in respect of bodily injury arising out of the use of a motor vehicle shall be made against the trust and "any proceedings to enforce any such claim" shall be taken against the Trust. Section 54 (6) provides that no action to enforce any claim lies against the Trust:

"unless notice of intention to make a claim is given by the claimant to the Trust within a period of six months after the occurrence out of which the claim arose, or within such further period as:

(a) the Commissioner; or

(b) the court before which the action is instituted, on sufficient cause being shown allows."

Held

On a proper construction of s 54: (1) Notice of intention to make a claim is mandatory.

(2) (By Amet J, Kidu CJ agreeing; Bredmeyer J contra) Notice of intention to make a claim is a condition precedent to the institution or commencement of any "action to enforce any claim"; s 54 (6) (b) should be read as if the words "to be" were inserted, so as to read "by the court before which the action is [to be] instituted".

(3) (Bredmeyer J not deciding) The issuing and serving of a writ of summons cannot be deemed to be sufficient notice of intention to make a claim for the purposes of s 54.

(4) A claimant making an application for extension of time in which to give notice of intention to make a claim pursuant to s 54 (6) is not put to an election: he may apply once only to the Commissioner or to the court; if an application to the Commissioner fails or is granted and not complied with, a further application may only be made to the court; if an application to the court is refused the only second chance is an appeal to the Supreme Court.

Rundle v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 181, affirmed.

Rundle v Motor Vehicles Insurance (PNG) Trust [1987] PNGLR 44, affirmed.

(5) The power of the court under s 54 (6) to grant an extension of time in which to give notice of intention to make a claim is a discretionary one to be exercised according to proper principles and taking into account all the circumstances of the case.

Rundle v Motor Vehicles Insurance (PNG) Trust [1987] PNGLR 44, affirmed.

(6) On appeal from a decision of Kapi Dep CJ refusing an extension of time in which to give notice of a claim because of delay in making the application and failure of the lawyers for the claimant to comply with an order of the Commissioner, there had been demonstrated sufficient error of fact and an overemphasis on that error such as to have influenced the exercise of discretion of the judge and the appeal should be allowed and an extension of time in which to give notice of the intended claim should be granted.

Cases Cited

Lands, Minister for v Frame [1980] PNGLR 433.

Poti Hiringe v Motor Vehicles Insurance (PNG) Trust (unreported, 16 April 1987, Amet J).

Rundle v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 181.

Rundle v Motor Vehicles Insurance (PNG) Trust [1987] PNGLR 44.

Appeals

These were two appeals from decisions of Kapi Dep CJ which are reported at [1986] PNGLR 181 and [1987] PNGLR 44, relating to the refusal to grant an extension of time in which to give notice of intention to make a claim against the respondent under the Motor Vehicles (Third Party) Insurance Act (Ch No 295), s 54 (6).

Counsel

T Molloy, for the appellant.

D Ryan, for the respondent.

Cur adv vult

24 March 1988

KIDU CJ: I have had the benefit of reading the judgment of Amet J with which I agree. I have nothing further to add. I would reserve the questions of costs.

BREDMEYER J: These appeals are from two decisions of Kapi Dep CJ in the same cause (see [1986] PNGLR 181 and [1987] PNGLR 44). They involve the interpretation of s 54 (6) of the Motor Vehicles (Third Party Insurance) Act (Ch No 295). In order to see subs (6) in its cotext I also quote subs (1).

"54. Claims for Damages

(1) Subject to Subsection (2), any claim for damages in respect of the death of or bodily injury to any person caused by, or arising out of the use of:

(a) a motor vehicle insured under this Act; or

(b) an uninsured motor vehicle in a public street; or

(c) a motor vehicle on a public street where the identity of the motor vehicle cannot after due inquiry and search be established,

shall be made against the Trust and not against the owner or driver of the motor vehicle and, subject to Subsection (5), any proceedings to enforce any such claim for damages shall be taken against the Trust and not against the owner or driver of the motor vehicle.

...

(6) No action to enforce any claim under this section lies against the Trust unless notice of intention to make a claim is given by the claimant to the Trust within a period of six months after the occurrence out of which the claim arose, or within such further period as:

(a) the Commissioner; or

(b) the court before which the action is instituted,

on sufficient cause being shown, allows."

The facts which give rise to these appeals are as follows: The plaintiff Rundle was injured in a motor vehicle accident at Goroka on 14 September 1981. He failed to give notice of intention to claim against the Trust within the six months period prescribed by s 54 (6). He applied to the Insurance Commissioner under subs (6) for an extension of time and by a letter dated 5 October 1983 was granted a 28 day extension. That extension expired on 2 November. His lawyers failed to give the notice within that 28 day period but on 3 November they issued a writ and served it on the Trust the same day. The endorsement on the writ was brief — that the "plaintiff's claim is for damages for the negligence of the driver of a motor vehicle on the Highlands Highway at Goroka on or about 14 September 1981 wherein the plaintiff suffered personal injury". It gave no registration details of the vehicle or vehicles concerned nor details of the driver (s) or owner (s) concerned.

On 10 February 1984 the plaintiff served a statement of claim on the defendant which gave details of the accident. It said the plaintiff was sitting in the driver's seat of a Mazda RX4 vehicle and he was being towed by a Toyota Utility owned by Asaro Motors and driven by a Papuan. It said the Papuan man drove negligently causing the plaintiff's Mazda to roll off the road thereby injuring the plaintiff. The statement of claim did not give the registration number of either vehicle, the owner of the Mazda, or the name of the Papuan driver of the utility.

On 11 April 1984 the defendant served a defence on the plaintiff and pleaded that no action could be taken to enforce the claim because no notice of intention to claim had been given under s 54 (6). On 22 May, two months after getting the defence, the plaintiff's lawyers applied to the Insurance Commissioner for a further extension of time. On 23 August the Commissioner granted a further 28 day extension under s 54 (6). Incredibly no notice under s 54 (6) was given within that second 28 day period although during that period, on 10 September, the plaintiff's lawyer sent a copy of the Commissioner's letter of 23 August granting the extension, to the defendant's lawyer.

About a year later, 21 August 1986, the action came on for trial and the defendant raised a preliminary point that the action was incompetent as the plaintiff had failed to give notice under s 54 (6). Kapi Dep CJ, reserved on the point and on 11 December 1986 ruled that the Commissioner had no power to give a second extension under subs (6). He left open the question of whether the plaintiff in this case could then apply to the National Court for an extension.

On 19 March 1987 the plaintiff sought from the court by way of originating summons an extension of time to give notice under s 54 (6). In a judgment dated 29 April, Kapi Dep CJ ruled that a person who had failed to gain an extension from the...