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Motor Vehicles Insurance (PNG) Trust v Bure [1999] PGLawRp 671; [1999] PNGLR 273 (28 April 1999)

[1999] PNGLR 273

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

MOTOR VEHICLE INSURANCE (PNG) TRUST

V

JOSEPH BURE

WAIGANI: KAPI DCJ; JALINA AND KIRRIWOM JJ
28 April 1999

Facts

The appellant in this appeal, the Motor Vehicle Insurance (PNG) Trust appeals against the decision of the National Court in Lae delivered on 24 May 1996 refusing to set aside an earlier judgment of the National Court of 12 December 1995. The judgment that the appellant sought to set aside followed an ex parte hearing where the appellant was unrepresented and in which the presiding judge granted the respondent who was the applicant in an application for an extension of time pursuant to s 54(6) of the Motor Vehicles (Third Party Insurance) Act (Ch. 295) to give notice of its intention to claim against the Trust. The appellant was desirous of being heard on the application of extension of time as it was its contention that first, the respondent had already been given an extended period of 28 days which was allowed to lapse and, second, the respondent’s claim was baseless and unmeritorious. However, the appellant did not appear on 5 December 1995 due to insufficiency of notice and the case proceeded ex parte and decision was made against it. Application to set aside that ruling was rejected on the 24 May 1996. The appellant has appealed against this decision.

Held

1. On the evidence, the appellant has good explanations for not appearing at the hearing for extension of time to give notice.
   
2. The respondent did not serve the notice of the application in accordance with the requirements of Order 4 r 29(1) of the National Court Rules.
   
3. Appeal upheld.
   

Papua New Guinea cases cited

Green v Green [1976] PNGLR 73.

Mapmakers Pty Limited v Broken Hill Pty Company Limited [1987] PNGLR 78.

Counsel

A Kandakasi, for the appellant.
S Tedor, for the respondent.

28 April 1999

BY THE COURT. The appellant in this appeal, the Motor vehicle Insurance (PNG) Trust appeals against the decision of the National Court in Lae delivered on 24 May 1996 refusing to set aside an earlier judgment of the National Court of 12 December 1995. The judgment that the appellant sought to set aside followed an ex parte hearing where the appellant was unrepresented and in which the presiding judge granted the respondent who was the applicant in an application for an extension of time pursuant to s 54(6) of the Motor Vehicles (Third Party Insurance) Act Ch 295 to give notice of its intention to claim against the Trust. The appellant was desirous of being heard on the application of extension of time as it was its contention all along that, first, the respondent had already been given an extended period of 28 days which was allowed to lapse and, second, the respondent’s claim was baseless and unmeritorious. However, the appellant did not appear on 5 December 1995 due to insufficiency of notice and the case proceeded ex parte and decision was made against it. Application to set aside that ruling was rejected on the 24 May 1996. The appellant has appealed against this decision.

After hearing counsel on the merits of the appeal, counsel for the respondent conceded that the appeal should be allowed. On the basis of this concession, we allowed the appeal, quashed the decision of the trial judge and indicated that we would publish our reasons for decision at a later date.

We now publish our reasons for decision.

The appellant’s grounds of appeal are set out in the notice of appeal, which are:

(a) His Honour erred in refusing to set aside the orders of Justice Sevua on 12 December 1995, when there was sufficient and ample reasons and or grounds for setting aside the ruling;

(b) The defendant was entitled to be heard on the application for extension of time; and

(c) The plaintiff was not entitled to extension of time, as the plaintiff did not show sufficient cause for extension.

Mr Kandakasi invited the Court to apply the principles applicable to setting aside default judgment established in Green v Green [1976] PNGLR 73 and the many cases that have followed that authority since such as Mapmakers Pty Limited v Broken Hill Pty Company Limited [1987] PNGLR 78 with modifications. He submitted that in an application to set aside an ex parte judgment the applicant must show:

(a) There must be reasonable explanation for allowing the matter to proceed ex parte;

(b) Application must be made promptly; and

(c) There is an arguable case for the application on the merits of the substantive case.

Counsel for the respondent did not contest these submissions. We accept Mr Kandakasi’s submissions on the applicable principles.

In refusing to set aside the judgment, the trial judge held that the appellant was given ample opportunity to protect its interest but chose not to appear at the hearing.

We find that the appellant has good grounds of appeal. First, the appellant had good explanation for not appearing at the hearing. According to the affidavit material filed in support of the application to set aside judgment, the evidence established that the lawyers for the appellant had an understanding with the lawyers for the respondent that the application for extension of time in which to give notice would be listed for hearing in February 1996. The evidence also established that lawyers for the appellant only received notice of hearing of the application to extend time at 6:17 pm the day before the hearing of the application at 10:00 am the next day, 5 December 1995. It is clear from this evidence that appellant’s lawyers did not have enough notice of the hearing of the application. Second, the appellant had good grounds for opposing the application for extension of time to give notice. One needs only to look at the chronology of events to appreciate the appellant’s grounds for wanting to oppose the application.

Chronology

• 10/10/92 - Alleged date of accident
  
• 02/09/93 - Insurance Commissioner granted extension of time for twenty-eight (28) days for plaintiff to make claim against Trust.
  
• 15/10/93 - Respondent sought legal assistance from David Poka from Milner & Associates Lawyers with instructions to act for him.
  
• 06/10/93 - Mr Poka finally gave notice to Trust.
  
• April ‘94 - Mr Poka advised respondent that the claim did not stand a chance of succeeding.
  
• May ’94 - Respondent changed lawyers and instructed Gamoga & Co Lawyers to act for him.
  
• 23/07/94 - Gamoga & Co. filed and issued Writ of Summons (WS No. 557 of 1994)
  
• 05/09/95 - Hinchliffe J dismissed the Writ of Summons.
  
• 13/10/95 - Salis Tedor & Associates now representing the respondent filed and issued Originating Summons – OS No. 419 of 1995 seeking extension of time.
  
• 19/10/95 - Return date of Summons, date vacated by consent and set down for 1 December 1995.
  
• 01/12/95 - Matter adjourned on request of appellant’s lawyer to 04/12/95.
  
• 04/12/95 - Respondent obtained hearing date of 5th December 1995 without first notifying the appellant.
  
• 05/12/95 - Sevua J granted the extension of time to make claim in the absence of the appellant.
  
• 08/12/95 - Appellant’s lawyers wrote to the respondent’s lawyers requesting for a consensus setting aside so that both parties can present arguments.
  
• 12/12/95 - Judge Sevua made the order granting extension.
  
• 20/12/95 - Appellant again write to set aside judgment by consent but in vain.
  
• 17/05/96 - Application was made in Court for judgment to be set aside before Sawong J in Lae.
  
• 24/05/96 - Decision was delivered rejecting the application to set aside.
  

In addition to all these considerations, we also point out that the respondent did not serve the notice of the application in accordance with the requirement of the O 4 r 29 (1) of the National Court Rules.

For these reasons we upheld the appeal and quashed the trial judge’s decision of 24 May 1996. The consequences of this ruling is that we set aside the judgment of Sevua J dated the 12 December 1995 which granted the extension of time to the respondent to make a claim against the Trust. The practical results are that the application for extension of time (OS No. 419 of 1995) is remitted back to the National Court to be heard inter partes.

Counsel for respondent indicated to the Court that the respondent will not be seeking to have this application determined as the time in which to make a claim within 6 years of the motor vehicle accident has now expired. We observe that the respondent’s claim could not have been time barred if the lawyers for the respondent had taken up the suggestion made by lawyers for the appellant in a letter dated the 17 May 1996 to set aside the judgment in question so that the application for extension of time could be heard well before the expiration of the limitation period. We order costs in favour of the appellant.

Lawyers for the appellant: Young & Williams.
Lawyers for the respondent: Sialis Tedor & Associates.