N586

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

GRAEME RUNDLE

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Waigani
Kapi DCJ
19 March 1987
29 April 1987

STATUTES - Interpretation - To resolve ambiguity - Use of parliamentary debates - Where will determine mischief to be remedied - Motor Vehicles (Third Party) Insurance Act (Ch No 295), s 54(6).

PRACTICE - Notice of action - Extension of time for - Personal injuries - Damages claim - Notice to insurance trust - Period extended by Commissioner - Extension not complied with - Application to court for extension competent - Motor Vehicles (Third Party) Insurance Act (Ch No 295), s 54(6).

LIMITATION OF ACTIONS - Actions for things done under statutes - Notice of claim - Extension of time - Personal injuries - Damages claim - Notice to Motor Vehicles Insurance Trust - Period extended by Commissioner - Extension not complied with - Application to court for extension competent - Motor Vehicles (Third Party Insurance) Act (Ch No 295), s 54(6).

The Motor Vehicles (Third Party Insurance) Act (Ch No 295), s 54(6), provides:

"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."

Held

(1) The general rule that when interpreting statutes to ascertain the intention of Parliament, resort may not be had to parliamentary debates, may be departed from where resort to parliamentary debates would resolve any ambiguity or uncertainty in ascertaining the mischief sought to be remedied.

Warner v Metropolitan Police Commissioner [1969] 2 AC 256 at 279, considered.

(2) The Papua New Guinea House of Assembly Debates on the amendments to the Motor Vehicles (Third Party Insurance) Act, s 54, revealed that the amendments made were not intended to provide an applicant for an extension of time in which to give notice thereunder with alternative methods for so doing and the section should be so construed.

(3) Accordingly, a plaintiff who has been refused an application for extension of time in which to give notice by the Commissioner under s 54(6)(a) may thereafter apply to the Court for such an extension under s 54(6)(b).

(4) On an application under s 54(6)(b) the onus is on the plaintiff to establish "sufficient cause".

(5) The expression "sufficient cause" is to be widely interpreted as dealing with the justice of the case within the context of the circumstances of each case; it requires that there be some positive reason for concluding that as between the parties it would be just to extend the period for giving notice.

Sophron v The Nominal Defendant (1957) 96 CLR 469 at 475, applied.

(6) Conflict of lawyers in failing to apply within time or in failing to comply with an order of the Commissioner, though relevant, will not of itself amount to sufficient cause.

(7) In the circumstances, the plaintiff had failed to discharge the onus of showing that there was sufficient cause to allow the period to be extended.

Cases Cited

Beswick v Beswick [1968] AC 58; [1967] 3 WLR 932; [1967] 2 All ER 1197.
Martin v The Nominal Defendant (1954) 74 WN (NSW) 121.
Minister for Lands v Frame [1980] PNGLR 433.
Onassis v Drewry (1951) 183 LJ 85.
Rundle v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 181.
Sophron v The Nominal Defendant (1957) 96 CLR 469.
Warner v Metropolitan Police Commissioner [1969] 2 AC 256; [1968] 2 WLR 1303; [1968] 2 All ER 356.

Application for Extension of Time

This was an application pursuant to the Motor Vehicles (Third Party Insurance) Act (Ch No 295), for an order extending the time in which to give notice of intention to make a claim for damages for personal injuries against the Motor Vehicles Insurance (PNG) Trust.

Counsel

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

29 April 1987

KAPI DCJ: This is an application by the plaintiff under s 54(6) of the Motor Vehicles (Third Party Insurance) Act (Ch No 295) for an order extending time in which to give notice of intention to make a claim against the defendant.

The plaintiff in his original proceedings instituted a claim for damages under the provisions of the Motor Vehicles (Third Party Insurance) Act. This action came on for hearing before me and the defendant raised the incompetence of the action as the plaintiff failed to comply with notice of intention to claim against the defendant under s 54(6) of the Motor Vehicles (Third Party Insurance) Act. The circumstances under which that issue was considered are contained in my judgment namely, Rundle v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 181. I ruled that as the Commissioner for Insurance gave an extension of 28 days in which to give notice, the Commissioner had no further jurisdiction to entertain a fresh application. I indicated at the end of my judgment (at 185):

"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 arisen 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".

The plaintiff has now made such an application before me.

JURISDICTION

Counsel for the plaintiff has submitted that I have jurisdiction to entertain this application. Counsel for the defendant has submitted that as the application to extend time was made before the Commissioner pursuant to s 54(6)(a) of the Act, this Court has no jurisdiction to consider the matter.

Let me set out the relevant part of s 54:

"(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."

Counsel for the plaintiff has submitted that an applicant is entitled to apply both to the Insurance Commissioner and then to the court for an extension of time. He submitted that the intention of the Parliament was that an applicant would apply to an Insurance Commissioner as a convenient way of getting an extension speedily but if he failed to obtain such an extension, he would be entitled to apply to the court. It is submitted that the wording of the subsection does not make it quite clear that this is a question of electing to go before either of the tribunals for purposes of an extension of time.

On the other hand, counsel for the defendant has submitted that the Act has clearly set out two different types of tribunals and once an applicant has elected to take the matter to any one of these tribunals, he is bound to pursue the matter in accordance with the principles of law which govern respective tribunals. As I understand it, it is submitted that if a party elects to go before the Commissioner, the only way the decision of the Commissioner can be reviewed is by way of judicial review in accordance with the common law principles or in accordance with s 155(4) of the National Constitution. It can be seen straight away from the nature of this application that the grounds upon which a decision of the Commissioner may be reviewed by a court are limited. On the other hand, if an applicant goes before a court, the exercise of the discretion of that court is subject to review by the Supreme Court: See s 155(2)(b) of the National Constitution. Merits of an application would much more readily be reviewed by the Supreme Court on an appeal. As I understand the submission of counsel for the defendant, the nature of the two types of tribunals and the principles which govern them are so distinct that this in itself makes it quite clear that an applicant should have a clear choice of which tribunal he would apply to for an extension of time.

I have considered submissions made by counsel for the plaintiff and there is merit in those submissions. He submitted that where the Commissioner has considered the application, this of itself does not preclude the court from entertaining a fresh application. Although, he was unable to find a similar case in terms of the type of tribunal and the type of issue that is before me, he supported his submissions by referring to a decision in respect of s 1(1) of the Administration of Justice (Appeals) Act 1934 (25 Halsbury’s Statutes, 3rd ed 750). See Onassis v Drewry (1951) 183 LJ 85 (referred to in 9 Halsbury’s Laws of England (3rd ed) at 369). However, I do not find this decision persuasive because this section deals with leave to appeal and the nature of the tribunals, that is the Court of Appeal and the House of Lords, are the same type of tribunal and in any case, the House of Lords is the final authority to review a decision and therefore would have power to deal with the question of leave even after the Court of Appeal has dealt with the issue.

On the other hand, I also find the submissions made by counsel for the defendant have some merits. In fact, I find the submissions by counsel for the defendant very convincing. However, when this original section was passed by the Parliament, provision was made only for an applicant to apply to the court for an extension of time. This, however, was amended to include the Commissioner as an alternative tribunal to which an applicant may apply for extension of time. If I were to accept the submissions by counsel for the defendant, I would be adopting the view that the Parliament intended that the party who applied to the Commissioner would have a disadvantage in not having the merits of his application reviewed in the same way as a party who applied to the court and may have a right of appeal to the Supreme Court to have the application reviewed on its merits.

On the wording of this provision, it would be open for me to adopt any one of the submissions that have been made. In my view, the provision is not so worded clearly on the question of choice, I find myself reluctant to adopt any one of these views by a mere construction of the section as it stands. As I have stated, I could go either way.

The intention of the Parliament is revealed in the words used in the statute. It is a well settled principle of interpretation that a court needs only to look at the words and interpret what they mean. A court may not look at Hansard and the reasons for these are stated by Lord Reid in Beswick v Beswick [1968] AC 58. However, there is an exception to this rule which is also stated by Lord Reid in Warner v Metropolitan Police Commissioner [1969] 2 AC 256 at 279:

"And the authorities show that it is generally necessary to go behind the words of the enactment and take other factors into consideration. That being so the layman may well wonder why we do not consult the Parliamentary Debates, for we are much more likely to find the intention of Parliament there than anywhere else.... I am bound to say that this case seems to show that there is room for an exception where examining the proceedings in Parliament would almost certainly settle the matter immediately one way or the other."

I followed this proposition in Minister for Lands v Frame [1980] PNGLR 433 at 462 and also see Pratt J at 488. The parliamentary debates in the Hansard are very helpful on this point. Mr Julius Chan, the Minister for Finance as he then was, in introducing the amendment to this provision which enables the Commissioner to extend time, said the following:

"Mr Speaker, another amendment proposed is to allow the Insurance Commissioner discretion to allow late report of claims before it becomes necessary to apply to the court for enforcement of late claims as this procedure is time consuming and would only contribute to delays in claims settlement."

See Papua New Guinea House of Assembly Debates (Third House) Vol 3, No 44 pp 5758 to 5759. It is clear from the second reading of the bill by the Minister that this amendment was not intended to give an applicant an election. It was intended as a convenient method for parties; instead of having to come to the court which may involve delays as well as expense for the parties, it enables them to go quickly to the Commissioner to ask for such an extension. There is no intention by the Parliament to deprive any party who decides to go quickly to the Commissioner to get an extension from going to the court on a fresh application if he is not successful before the Commissioner. The matter is put beyond doubt by this second reading and so that the intention of the Parliament was not to provide an election in the sense that has been submitted by counsel for the defendant. In my view, this conclusion is consistent with the conclusion I reached in Rundle v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 181. That is to say, that the Commissioner is not a forum where parties may be entitled to make further applications. It is intended only to get a quick remedy of extending time. If the application before the Commissioner is refused, I find it difficult to see how the same party would re-apply to the Commissioner to get an extension on the same facts. Similarly, where a party has obtained an extension and has not given notice of intention to claim within that given period, it is difficult to see any reason why the same applicant should go back to the Commissioner. Such a party would seek his remedy in the court. This is the intention of the Parliament in enacting this amendment to this provision. Whether a party who chooses to go to the National Court and does not get the extension, may go before another court is a question which I do not have to decide.

I find that I have jurisdiction to entertain this application.

The principles governing the exercise of discretion to extend time in which to give notice of intention to claim are well settled. Section 32(b)(ii) of the Motor Vehicles (Third Party Insurance) Act 1942 (NSW) is similar to our s 54(6) of the Motor Vehicles (Third Party Insurance) Act. In interpreting this provision, the High Court said the following in Sophron v The Nominal Defendant (1957) 96 CLR 469 at 475:

"The expression 'upon sufficient cause shown’ does, of course, connote that the facts amounting to sufficient cause must be made positively to appear. It connotes too that the 'cause’ must in any given case suffice to authorise the allowance of the particular 'further period’ for which the court does in fact extend the time.

But it is a mistake to attempt to reduce the expression 'sufficient cause’ to a closer or more rigid definition than the legislature has chosen to provide. The words no doubt are concerned with the justice of the case. There must be some positive reason for concluding that as between the parties it would be just to extend the period for giving notice. Fault on the part of the claimant in failing to give notice within three months must be an element affecting the justice of extending the time and so on the other side must be the prejudice which the nominal defendant has or may have suffered because of that failure. The justice of extending the time may be affected too by what happened after the expiration of the three months. You cannot leave entirely out of account the time which has been allowed to pass in addition to that period....

The power which the Supreme Court was called upon to exercise is one involving the formation of a judgment into which a measure of discretion must enter."

In the present case, the applicant was injured on 14 September 1981. He was admitted to the Goroka Base Hospital and after a couple of days was flown to Cairns Hospital In Queensland. He was subsequently discharged from the Cairns Hospital about mid October 1981. The plaintiff received various medical treatments in New Zealand as well as in Sydney. According to advice received from doctors in New Zealand and in Sydney, it was estimated that he would at least need another 12 months before his condition stabilised. His first approach to see a firm of solicitors was in July 1982 in Sydney. By this time, the six months period had long since expired. The explanation given by the plaintiff himself is that he was not familiar with lawyers and had no knowledge of Papua New Guinea law which require that a notice of intention to claim had to be given to the Motor Vehicles Third Party Insurance Trust within six months of the injury. He consulted two firms in Sydney on the claim for damages. The firm which substantially took up his claim was Messrs Hickson, Lakeman and Holcombe. Apparently, this firm of solicitors did not apply to have the period extended in order to give notice of intention to claim because legislation in New South Wales had been amended and there is no longer any requirement to give notice of intention to the Nominal Defendant. The requirement to give notice of intention was pointed out by Kirkes, Lawyers of Port Moresby. Kirkes, Lawyers received instructions to act in this matter in June 1983. When Kirkes took control of this matter, the lack of notice of intention to make a claim was quickly noticed and Hickson, Lakeman and Holcombe advised of the requirement. An application by Kirkes to extend time in which to give notice to the Trust was made to the Insurance Commissioner the following month. Up to this point in time, I consider that inaction by the plaintiff himself was reasonable as he himself was not familiar with the requirement that notice had to be given within six months of the injury and that he followed the advice of the doctors that he should not make a claim until his injuries had stabilised. I think it is just that the time should be extended at this point. Similarly, although solicitors in Sydney failed to apply for the notice of intention to claim promptly, I consider that it was a bona fide mistake on their part and this is explained by the fact that in the jurisdiction in which they practice there is no longer the requirement to give such notice. Inaction on the part of the solicitors cannot be attributed to negligence. Up to this point in time, there was sufficient cause for the period to be extended in which to enable the plaintiff to give notice to the Trust. I am sure the Insurance Commissioner exercised his discretion correctly when he gave his approval for extension of time for a period of 20 days in which to enable the plaintiff to give notice to the Trust. The approval for the extension of time was extended by the Commissioner and Kirkes were advised of this extension in a letter dated 5 October 1983. This extension was allowed to expire and Kirkes took no action to notify the Trust of their intention to claim damages. The present application before me is necessitated by the failure of Kirkes in complying with the required notice. It would appear from the facts that this application to the court has been caused solely by the actions of Kirkes. There is no fixed formula when considering conduct of lawyers. On the one hand, it does not follow that where fault is ascribed to the lawyer and not the applicant, that that necessarily amounts to sufficient cause within the meaning of s 54(6) of the Motor Vehicles (Third Party Insurance) Act. Nor does it follow that the fault of the lawyer in not complying with the notice necessarily results in not granting the extension of time to the applicant: see Sophron v The Nominal Defendant (1957) 96 CLR 469 at 475, Martin v The Nominal Defendant (1954) 74 WN (NSW) 121. The only explanation given by Mr Coady in his affidavit is lack of attention on his part to comply with the required notice because of pressure of work. There was also failure on the part of the registration clerk at Kirkes for not making arrangements to have the writ issued in the National Court and served within the 20 days. There is no suggestion in Mr Coady’s affidavit that he had wrongly thought that it was necessary to have the writ issued and then have it served to comply with notice of intention.

It is clear from the evidence that no attention was given to this matter either by Mr Coady or the registration clerk during the 20 days. In my view, the explanation that there was pressure of work is not a good excuse. It is not proper for a lawyer who has plenty of other work to do, to take on such a matter, especially, where the law requires that immediate action be taken to give notice within a specific period.

It is also clear from the facts that the need to apply promptly to the court for an extension of time arose at the date when I gave my judgment on 21 August 1986. There has been a period of about seven months before this application was filed in court. No satisfactory explanation has been given for the long delay in applying for this extension to the court. Having regard to all the circumstances, I do not consider that the plaintiff has discharged the onus of showing that there is sufficient cause to allow the period to be extended.

__________________

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