N578

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

GRAEME RUNDLE

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Waigani
Kapi DCJ
21 August 1986

PRACTICE - Notice of action - Personal injuries - Damages claim - Notice to Motor Vehicles Insurance (PNG) Trust - No action unless notice within six months of accident - Extension of period by Commissioner - Second extension not permitted - Motor Vehicles (Third Party Insurance) Act (Ch No 295), s 54(6).

LIMITATION OF ACTIONS - Action for things done under statutes etc - Notice of action - Personal injuries - Damages claim - Notice to Motor Vehicles Insurance (PNG) Trust - No action unless notice within six months of accident - Extension of period by Commissioner - Second extension not permitted - Motor Vehicles (Third Party Insurance) Act (Ch No 295), s 54(6).

Under the Motor Vehicles (Third Party Insurance) Act (Ch No 295), s 54(6), 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

(1) On its proper construction the requirement of notice under s 54(6) of the Motor Vehicles (Third Party Insurance) Act is a condition precedent to the right of action provided in s 54(1); it requires the plaintiff to show, at the hearing of the action, that he has given the required notice of intention to make a claim against the Trust.

(2) Where a plaintiff has applied to the Commissioner for an extension of time under the Motor Vehicles (Third Party Insurance) Act, s 54(6), and fails to give notice within the extended period, he cannot apply to the Commissioner for a further extension.
Hall v The Nominal Defendant (1966) 40 ALJR 102 at 104, considered and applied.

Cases Cited

Hall v Nominal Defendant (1966) 117 CLR 423; (1966) 40 ALJR 102; [1966] ALR 705.

Statement of Claim

At the hearing of a claim for damages for personal injuries arising out of the use of a motor vehicle, the defendant raised as a preliminary point the competence of the proceedings in view of alleged non-compliance with the Motor Vehicles (Third Party Insurance) Act (Ch No 295), s 54(6).

Editor’s Note

An appeal has been lodged.

Counsel

T Molloy, for the plaintiff.
D Ryan, for the defendant.
Cur adv vult

21 August 1986

KAPI DCJ: The plaintiff instituted proceedings for a claim of damages under Pt IX of the Motor Vehicles (Third Party Insurance) Act (Ch No 295).

At the hearing of this action, a preliminary point was raised by counsel for the defendant, namely, that the present action is incompetent, in that, the plaintiff has failed to comply with the terms of s 54(6) of the Motor Vehicles (Third Party Insurance) Act. It is convenient to set out this provision:

"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 the 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 plaintiff was injured in a motor vehicle accident on 14 September 1981 at Goroka in the Eastern Highlands Province. No notice of intention to make a claim against the Trust was given within six months of the accident. By a letter dated 8 July 1983, lawyers for the plaintiff applied to the Commissioner for Insurance to extend the time in which to give notice of claim to the Trust under s 54(6) of the Act. By a letter dated 5 October 1983, the Commissioner extended time in which to give notice within twenty-eight days from 5 October 1983. However, the plaintiff did not comply with the giving of notice and the extended period expired on 2 November 1983. On 3 November 1983, the plaintiff issued a writ in the National Court and served it upon the Trust on the same day. This action was instituted without any notice being served on the Trust pursuant to s 54(6) of the Act. This was the first time the Trust became aware of the action. It appears from the evidence that the Trust instructed Young & Williams to act as its lawyers in the matter. Young & Williams became involved with the plaintiffs lawyers in this matter from about 30 November 1983 when they advised that they acted for the Trust. The plaintiffs statement of claim in the matter was delivered to the defendant’s lawyer on 10 February 1984. In a letter dated 11 April 1984, the defendant’s lawyers delivered their defence to the plaintiffs lawyers. In this defence, the defendant denied liability on the basis that the plaintiff had not given notice of intention to claim to the Trust within six months of the accident and therefore no action could be enforced against it under s 54(6) of the Act. The plaintiff sought to resolve this by applying in a letter dated 22 May 1984, for a further extension of time in which to give notice to the Trust under s 54(6) of the Act. After correspondence between the Insurance Commissioner and the plaintiffs lawyers the Commissioner finally granted a further extension of twenty-eight days from 23 August 1984. No formal notice as such has been given to the Trust that the plaintiff intends to make a claim within the twenty-eight days.

Counsel for the defendant has argued that as no notice of intention to make a claim against the Trust has been given under s 54(6), no claim can succeed against the Trust. On the other hand, counsel for the plaintiff argues that the writ of summons served on 3 November 1983, the delivery of pleadings and correspondence between the parties, constitute notice of intention by the plaintiff that he intends to make a claim.

A number of issues arise for consideration:

(1) Is it permissible to institute proceedings for a claim under the Act, before notice of intention to claim is given to the Trust?

(2) What constitutes a notice of intention to make a claim under the Act?

(3) Where the Commissioner has once exercised power to extend the period and that period has expired, does he have any further power to extend for another period under s 54(6) of the Act?

(4) Can a plaintiff who has once applied to the Commissioner for an extension of time under s 54(6) of the Act and has failed to give notice within the extended period, then apply to the court for a further extension?

The first issue can be resolved by determining whether or not the requirement of notice under s 54(6) of the Act is,

(a) a condition precedent to the plaintiffs cause of action; or

(b) an essential ingredient of the cause of action.

If it is an essential element of the cause of action, no right or cause of action arises or can arise until such notice is given. It would follow that no cause of action may be instituted before the notice is given. However, if it is a condition precedent to the cause of action, it would not be necessary to serve notice before the commencement of the action. This issue is to be resolved by giving a proper construction of s 54(6) of the Act. I have reached the conclusion that the cause of action which entitles a person to institute proceedings under the Act is set out under s 54(l) of the Act. This subsection speaks of "... any proceedings to enforce any such claim for damages ...".

It seems to me that subs (6) is not an essential ingredient of the cause of action set out under subs (1). The words "no action to enforce any claim" under subs (6) presuppose an action already instituted to enforce the right. This construction is strengthened by s 54(6)(b), "The court before which the action is instituted," this supports the view that the notice of intention to make a claim is not an essential part of the cause of action. Therefore, the requirement of notice under subs (6) becomes a condition precedent to the right of action under s 54(1). That is to say, that at the hearing of the action, the plaintiff must show that he has given notice of intention to make a claim against the Trust. Without the notice, he will not be entitled to an award of damages. The end result of my reasoning then is that the plaintiff in the instant case was entitled to institute proceedings on 3 November 1983. Therefore, the present writ of summons is competent.

The next question is whether or not the plaintiff has complied with the condition precedent to his cause of action. That is to say, whether or not the plaintiff has complied with the required notice under s 54(6) of the Act.

In the present case, the plaintiff failed to give notice within the six months of the injury and further failed to comply with the service of notice within the period which was extended by the Commissioner for Insurance. During both instances, the plaintiff failed to give notice to the Trust. It appears that a further application was made by the plaintiff to the Commissioner for Insurance for a further extension. Such an extension has been given. The question then arises whether or not a party who has successfully applied for an extension of time from the Commissioner is entitled as a matter of law to make a fresh application for a further extension. There appears to be no authority directly on this point. The only authority which has been referred to me is an obiter dictum of Barwick CJ in the case of Hall v The Nominal Defendant (1966) 40 ALJR at 102; [1966] ALR 705. In that case the plaintiff made an application to extend time in which to give notice to the Nominal Defendant. The application was refused. Under the legislation in question the application had to be made before a court. Barwick CJ, at 104; 708, said:

"The questions for the court upon such an application are whether a sufficient reason has been given for the failure to sue in time and, if so, whether it is just in all the circumstances to grant or refuse the application. All the facts relating to each of these questions must actually exist at the time of the application whether or not the applicant has assembled all the evidence he might have obtained as to them. This must be so, even if the nature of the applicant’s injuries is a material fact in determining whether or not it is just to make the order extending time. If the injuries are not fully manifest, they are in posse and the probabilities are quite capable of estimation. There is therefore no reason in justice why an unsuccessful applicant for an extension of time should have further opportunities. On the other hand, there is reason why the situation of the nominal defendant should be rendered certain, a circumstance which the statute emphasises in fixing a short period within which the action against him must be commenced. There is thus reason to construe s 65a as not giving the court or a judge power to reopen upon a subsequent application the matters determined upon an application to extend the time. On this view, s 20(a) of the Interpretation Act 1931 would not have any relevant operation: but in any case, in my opinion, it would not be apt of itself to empower a judge or a court to extend the time in a subsequent independent proceeding after an application for such an extension had been refused."

With respect I would adopt the line of reasoning by Barwick CJ. It is clear from s 54(6) of the Act, that notice of intention to make a claim against the Trust must be given within six months. It is clear that the legislature intended there should be finality on the question of any person who wishes to make a claim against the Trust under the Act. The Act also provides an opportunity for a plaintiff who does not give notice of intention to claim within the six months required, to get an extension of the period in which he or she may give notice to the Trust. In this particular case, the Commissioner for Insurance gave such an extension to the plaintiff to give notice to the Trust. It is difficult to imagine why the Commissioner should be given further power after having granted such an extension to consider a fresh application for a further extension. In my view a person who has been given an extension upon application to give notice of intention to the Trust should do so within that extended period and there is no proper reason in justice to enable the Commissioner to have further power to consider a further extension. Such a construction would render the time limitation intended by the Act to an indefinite period which would be determined by the number of fresh applications that may be made. Having come to this conclusion on the construction of s 54(6) of the Act, the provisions of the Interpretation Act (Ch No 2), s 32 and s 35, are inapplicable. Under s 2 of the Interpretation Act, the Act is applicable to all statutory provisions except where the contrary is clearly intended in that particular statutory provision. It would follow from this reasoning that the plaintiff would not be successful in proving his entitlement to a claim for damages because he has not complied with the condition precedent to the claim under s 54(6). He has failed not only to give notice within the six months but also failed to give notice within the further extended period given by the Commissioner for Insurance. It would follow from my reasoning that the Commissioner for Insurance had no jurisdiction or power to consider a fresh application to extend for a second period of time in which to give notice to the Trust. It is therefore not necessary for me to consider whether the service of the writ on 3 November on the Trust and other subsequent pleadings between the parties can be considered as proper notice given within the further extension given by the Commissioner for Insurance.

The question then arises whether or not the plaintiff may, having exhausted the power to extend time in which to extend the six months period, now apply to the court under s 54(6)(b) to get an extension of time. At this stage, this issue has not risen before me and therefore it is hypothetical. This matter can be fully argued when and if the plaintiff wishes to make a fresh application to the court to consider an extension of time under s 54(6)(b) of the Act.

Orders accordingly

__________________

Lawyers for the plaintiff: Kirkes.
Lawyers for the defendant: Young & Williams.

[1986] PNGLR 186 - Toare Karakara as Leader of the Luipi Clan v The State