Motor Vehicles Insurance (PNG) Trust v Viel Kampu (1998) SC587

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Sheehan J, Jalina J
• Judgment Date: 29 October 1998
• Citation: (1998) SC587
• Court: Supreme Court
• Year: 1998
• Judgement Number: SC587

Full Title: Motor Vehicles Insurance (PNG) Trust v Viel Kampu (1998) SC587

Supreme Court: Kapi DCJ, Sheehan J, Jalina J

Judgment Delivered: 29 October 1998

SC 587

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 32 OF 1996

BETWEEN:

MOTOR VEHICLES INSURANCE (PNG) TRUST

- Appellant —

AND:

VIEL KAMPU

- Respondent —

WAIGANI KAPI, DCJ, SHEEHAN, JALINA, JJ

1998: 29 October

Claim under MVI (PNG) Trust Act Chpt 295 — appeals against grant of leave for extension of time to give notice of claim — application to be determined judicially.

Mr A. Kandakasi for the Appellant

Mr P. Kopunye for the Respondent

BY THE COURT: This is an appeal against the decision of the National Court made at Mt. Hagen on 19th April 1996 which allowed the Respondent an extension of time to give notice of claim to the Appellant Trust under s. 54(6)(b) of the Motor Vehicles Insurance (PNG) Trust chpt. 295. The grounds of the appeal are set out below.

"(a) His Honour erred in law in admitting into evidence documentation …. Which was not in proper admissible form.

(b) His Honour erred in law in following …...case decision … decided on wrong principles and …..

(c) His Honour erred in holding … that the Respondent's lawyers had the locus standi to make the application on behalf of the Respondent who had not given Instructions to make that application.

(d) The learned trial Judge erred in finding that the Respondent showed "sufficient cause" in not giving the Appellant notice of his intention to make a claim against the Respondent, when there was no or insufficient basis to arrive at that finding.

(e) His Honour erred in both fact and in law in failing to find that the Respondent's failure to promptly notify the Appellant of his intention to make a claim against it, prejudiced the Respondent's position in relation to such a claim ….

(f) His Honour erred in finding that the Respondent was one and the same person as Piel Kambu when there was no or insufficient evidence to support that finding.

(g) His Honour erred in law and in face in holding that the relevant time factor to determine the period of delay commences from the date of the Insurance Commissioner's refusal letter.

The first two assert that an application to the Court for an extension of time constitutes a formal application for the Court's intervention, not merely an administrative function exercised by the Court as an alternative to that of Insurance Commissioner. We are satisfied that that is so. Section 54(6) of the Acts provides:

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

(a) the Commissioner; or

(b) the Court before which the action is constituted;

on sufficient cause been shown, allows."

Thus unless a Notice of Intention to make a claim is made within six(6) months, the MVIT may decline to entertain such a claim. A claimant may then have recourse to the Insurance Commissioner who is constituted under s. 4(1) of the Insurance Act Chpt. 255 or to the Court, to explain why the statutory time was allowed to lapse and show that despite delay an extension of time granted would not unduly prejudice the Trust.

The opportunity for recourse to the Insurance...