MVIT v Dixon Popo as The Insurance Commissioner (1992) N1048

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Brown J
• Judgment Date: 28 February 1992
• Citation: (1992) N1048
• Judgment Number: N1048
• Year: 1992

Full Title: MVIT v Dixon Popo as The Insurance Commissioner (1992) N1048

National Court: Brown J

Judgment Delivered: 28 February 1992

N1048

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MOTOR VEHICLES INSURANCE PNG TRUST

V

DIXON POPO AS THE INSURANCE COMMISSIONER

Waigani

Brown J

14 February 1992

28 February 1992

PRACTICE — Notice of action in motor vehicle accidents when time expired — Extension of time for action — Personal injury damages claim — Notice to Motor Vehicles Insurance (PNG) Trust (Nominal Defendant) — Application for extension of time made to Insurance Commissioner — How made — Trusts entitlement to notice and right to be heard on application for extension — Motor Vehicles (Third Party Insurance) Act ch 295 s 54 (1), (b).

JUDICIAL REVIEW — Administrative act — Insurance Commissioners refusal to give notice to Motor Vehicles Insurance (PNG) Trust of claimants application to extend time to give Notice of action — Commensurate denial of right to be heard — Commissioner acting on written statement of applicant's lawyers — Extension of time granted — Application for judicial review — Commissioner's decision amenable to review — Principle on which Commissioner to consider application for extension — Commissioner to act judicially.

NATURAL JUSTICE — Audi alteram parteim rule

Facts

This is an application in the nature of certiorari to quash a decision of the Insurance Commissioner granting an extension of time to an aggrieved party, thus allowing him to give notice of intention to claim against the Motor Vehicles Insurance Trust (Trust). The Motor Vehicles (Third Party Insurance) Act ch 295 s 54 (b) provides statutory immunity from suit in the Trust's favour in the absence of notice of action within a prerequisite time after accident. Such time may be extended in the discretion of the Insurance Commissioner or a Court on sufficient cause being shown. The Commissioner considered an application to extend time in which to give such a notice of action and made a decision without the knowledge of the Trust. On hearing the Commissioner argued that he was under no obligation to hear the Trust in any event.

Issues

Whether defendant is a public authority against whom judicial review lies.

Whether the rules of natural justice are applicable to defendant's decision.

Whether defendant failed to comply with the rules of natural justice, specifically, the audi alteram partem rule in making his decision.

Held

1. The Commissioner in exercising powers pursuant to s 54 (6) of the Act is such a public authority whose decisions are amenable to judicial review.

2. There is a right of immunity from suit in the Trust. That right is capable of being affected by extending an out of time notice for an action. The Commissioner or the Court may extend time for such notice or just cause being shown. Such expression "just cause" presupposes a duty to act judicially when determining whether or not to permit notice of action although past time.

3. Where the Commissioner has application for extension of time to serve notice of motion pursuant to s 54 (6) the duty to act judicially includes the requirement to give notice to the Trust as a body with a vital interest in the outcome. Consequently the Trust has a right to be heard.

Cases Cited

PNG cases referred to in judgment

Sausau v The Police Commissioner [1985] PNGLR 327

Okuk & State of PNG v Falscheer [1980] PNGLR 274

Graham Rundle v Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 20.

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

Other cases referred to

Dunne v The Nominal Defendant (1954) 71 W.M. (NSW) 87.

Hall v The Nominal Defendant (1966) 117 C.L.R. 423.

Ridge v Baldwin (1964) A.C. 40

Counsel

Ms R. Thompson, for the plaintiff.

Mr J. Ninai, for the defendant.

Notice of Motion

Leave having been granted, this was an application for judicial review of the Insurance Commissioner's failure to give notice to the Motor Vehicles Insurance Trust of his consideration and decision to grant leave to serve notice required under s 54 (6) of the Act although the notice was out of time.

28 February 1992

BROWN J: This application in the nature of certiorari is to quash a decision of the Insurance Commissioner made on 3 September, 1991 whereby an extension of time was granted one Paulus Namba allowing him to give notice of intention to claim against the Motor Vehicles Insurance Trust, although out of time. Such claim is for damages for personal injuries arising out of a motor vehicle accident which occured a long time ago.

The plaintiff says that the Commissioner's decision was given without the knowledge of or notice to the Trust and that the Trust, being a body entitled to be heard on the question, has suffered by the Commissioner's act being in breach of the audi alteram partem rule.

FACTS

On reading his affidavit in support of his notice of intention to defend, Mr Dixon Popo, the Insurance Commissioner said in part, that Mr Paulus Namba's lawyers wrote requesting an extension of time to lodge a claim for personal injuries against the Trust and that on the basis of that letter of request, on the 3 September 1991, leave was granted to give a notice pursuant to s 54 (6) of the Motor Vehicles (Third Party Insurance) Act Ch 295. On...