Steven Charles Pickthall v Lae Plumbing Pty Ltd

• Jurisdiction: Papua New Guinea
• Judge: Doherty J, Sakora J, Sevua J
• Judgment Date: 05 March 1994
• Citation: [1994] PNGLR 363
• Court: Supreme Court
• Year: 1994
• Judgement Number: SC462

Supreme Court: Doherty J, Sakora J, Sevua J

Judgment Delivered: 5 March 1994

SC462

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA 51 OF 1991

STEVEN CHARLES PICKTHALL v LAE PLUMBING PTY LTD

WAIGANI : Doherty, Sakora and Sevua, JJ

28 October 1993 & 5 March 1994

An appeal against an interlocutory application to join the respondent to claim damages in excess of the statutory limit provided by the Motor Vehicles (Third Party Insurance) Act Ch. 295. An objection on competency was filed. The facts are set out in the judgement of Sevua, J upholding the objection on competency.

HELD: 1. Section 54(5) Motor Vehicles (Third Party Insurance) Act Ch. 295 is dependent upon an assessment of damages by the trial judge and an awarded in excess of the Statutory limit can only be made by a Court.

2. Meaning of "award" in the Motor Vehicles (Third Party Insurance) Act Ch. 295 is an award made by a court and does include payment accepted between the parties.

3. The owner of the vehicle should have been joined in the action if it was intended to seek damages against him.

4. The plaintiff cannot recover damages not pleaded in the Statement of Claim.

5. Discontinuance of an action is not a bar to the same cause of action but there is no specific provision for a discontinuance by consent being set aside by consent in the National Court Rules.

6. Meaning of "Cause of action" considered. It is limited to an action between the Plaintiff and the defendant.

CASES CITED:

Owners of the Kronprinz (1887) 12 App. Cas. 256.

Cooke -v- Gill [1763] L.R.8.C.P. 107.

Kerr -v- Motor Vehicles Insurance (PNG) Trust and another [1979] PNGLR 251.

Collins -v- M.V.I.T., Unreported N 953.

Waima -v- M.V.I.T., Unreported N 1075.

ROFA Sports Management AG and Anor -v- DHL International (U.K.) and Anor [1989] AII ER 945.

Straits Contracting (PNG) Pty Ltd -v- Branfil Investment Ltd [1988] PNGLR 239.

Hadmor Productions Ltd & Ors -v- Hamilton & Ors [1982] AII E.R. 1042.

Mr. Birch for the Appellant

Miss Thompson for Respondent

DECISION

This is an objection to competency of an appeal against the decision of Brown, J. on 5th April 1991. The appeal and application for leave to appeal were lodged on 13th may 1991.

A notice of objection to competency was filed by the respondent on 15th May 1991. It is that objection only that is now before the Court. The history of the proceedings are more fully set out in the judgment of Sevua, J. and chronologically are as follows:-

The Plaintiff had a road accident of 5th December 1983 involving a motor cycle he was driving and a vehicle owned by Lae Plumbing Pty Ltd and driven by its employee.

A writ WS 250 of 1985 was issued on behalf of the Plaintiff on 17th May 1985 against the Motor Vehicles Insurance (PNG) Trust.

A letter was written by the Plaintiff's lawyers on 4th November 1985 informing Lae Plumbing the claim could exceed the Statutory limit provided by the Motor Vehicles (Third Party Insurance) Act Ch. 295.

Lae Plumbing Pty Ltd acknowledged that letter.

The Plaintiffs lawyers wrote to the Insurers of Lae Plumbing on 4th February 1988 again informing them of a possible claim. It was acknowledged.

A deposit was paid into Court by the Motor Vehicle Insurance Trust on 1st November 1989. That deposit was accepted on 14th November 1989.

A letter was written to Lae Plumbing Pty Ltd on 20th July 1990 by the Plaintiff's lawyers giving notice that the Plaintiff's condition had deteriorated and a claim against them would be formulated. The Writ W.S. 250/85 between the Plaintiff and Motor Vehicle Insurance (PNG) Trust was discontinued on 19 October 1990 by consent.

A motion was filed on 25th February 1991 for orders against Lae Plumbing Pty Ltd seeking "Orders in respect of the further Conduct of these proceedings between the Plaintiff and Lae Plumbing Pty Ltd ...." and, inter alia, "leave to file an amended statement of claim that will properly plead the liability of this action of Lae Plumbing ..." The motion was returnable on 4th March 1991. Leave was refused on 5th April 1991.

That decision was appealed against and this is an objection to competency of appeal.

Both counsel agree that the respondent in these proceedings was never served, joined or in any way made a party to these proceedings when they were first instituted against the statutory corporation the Motor Vehicle Insurance (PNG) Trust. Clearly therefore they had no opportunity to speak in any way in the proceedings leading up to the discontinuance on 19th October 1990.

There is no doubt in my mind that the proceedings against Lae Plumbing Pty Ltd arising from the accident are now statute barred by virtue of the provisions of the Statute of Frauds and Limitations Act 1988.

Order 8 Rule 61 of the National Court Rules provides for discontinuance.

The effect of that discontinuance is provided in O 8 r 66 which provides that discontinuance "shall not, subject to the terms of any leave to discontinue be a defence to proceedings for the same or substantially the same, cause of action".

Hence the discontinuance in itself is not a bar to the same cause of action. This discontinuance was by consent. I note the Supreme Court Practice 1993 of United Kingdom (on which this rule is based) at para 21/2-5/14 notes that an order for discontinuance by consent may be set aside by a subsequent order by consent and the cause of action may proceed. However the authority relied on, the Owners of the Kronprinz (1887) 12 App Cas. 256, turns on the facts and the reason for discontinuance. In their decision the House of Lords considered there was an agreement between the parties supported by consideration.

The rules of the Supreme Court of the United Kingdom, like our National Court Rules makes no specific provision that a discontinuance by consent may be set aside by consent.

Since discontinuance is not a bar to proceedings for the same or substantially the same cause of action, what then is the "cause of action". The term is not defined in the National Court Rules although the term is used in other rules [e.g. O 8, r 53(5)] as well as O 8, r 66.

"Cause of action" has been held to mean "every fact which is material to be proved to entitle the Plaintiff to succeed — every fact, which the defendant would have a right to traverse" (Cooke -v- Gill [1873] L.R.8.C. p. 107. I consider this definition appropriate in this case.

A "Cause of action" is an action between the Plaintiff and the defendant. The defendant in the action in W.S. 250/85 was the Motor Vehicles Insurance (PNG) Trust, there was no cause between the Plaintiff and Lae Plumbing Pty Ltd on W.S. 250/85 which can be continued and defended. There can be no cause of action to continue hence the question of leave cannot arise.

The appellant relies heavily on Kerr -v- Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251 but clearly in that case the owner of the vehicle was a party of those proceedings and represented throughout. they had an opportunity to be heard.

I consider this application was misconceived I uphold the objection on competency.

SAKORA, J.: I have read the judgements of Doherty and Sevua, JJ and concur with them.

SEVUA, J.: The appellant appeals against the decision of Brown, J. given on 5 April, 1991 refusing leave to join and proceed against the respondent as owner of the motor vehicle involved in an accident in which he sustained personal...