Unreported National Court Decisions
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 the following day, the Commissioner received a letter from the lawyers for the Trust seeking to be heard on the question of leave and in fact setting out material which the Trust considered relevant to that question.
In the event the Commissioner deposed to facts that he took into account in exercising his discretion, facts which he found from a reading of the claimants solicitor's letter. That letter under hand of Joseph K Pakau, an associates lawyers, recited that they acted for Mr Paulus Namba who was injured in a motor vehicle accident on 23 October, 1989 and enclosed a police accident report with various medical reports. The letter shortly went on to seek leave pursuant to s 54(6)(b) of the Act.
The Commissioner further deposed that he was not obliged to give the Trust notice when considering whether or not to grant leave of time to such a claimant.
These circumstances highlight the issues which the plaintiff says are firstly whether the defendant is a public authority against whom judicial review lies, secondly if so, are the rules of natural justice applicable to the defendant's decision, and thirdly if so, did the defendant fail to comply with the rules of natural justice specifically the audi alteram partem rule when making his decision.
There is no question of a review of the merits of the Commissioner's actual decision, rather the proper purpose is only to review the Commissioner's-decision making powers pursuant to s 54(6) and any impediment to such powers. Mr Ninai for the Commissioner did not argue against the plaintiff's first contention that the Commissioner was a public authority or body against whom judicial review lies, nevertheless I have to be so satisfied.
There is an abundance of authorities to support the plaintiff's contention. I accept the argument advanced by Ms Thompson when she relied to a large extent, on the decision of Ridge v Baldwin [1964] A.C. 40. She said "relying on Lord Reeds's judgment in that case at pp.74,75 "wherever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, act in excess of their legal authority, they are subject to ... these writs". She referred me to Sausau v The Police Commissioner [1985] PNGLR 327 and Okuk and The State of Papua New Guinea v Fallscheer [1980] PNGLR 274 in support of the application of the principles in Baldwin's case in this jurisdiction. I am consequently satisfied, since the Commissioner may extinguish a claimant's only right to seek compensation or make a decision which adversely could affect the Trust by allowing claims which may otherwise be statute barred s 54(6), that the Commissioner is such a legal authority so characterised and thus one against whom judicial review lies.
The answer to the 2nd question however is complicated by the reasoning in Graham Rundle v The Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 20. The headnote para 5 states -
(5)      The power of the Court under s 54(6) to grant an extension of time in which to give notice of intention to make a claim is a discretionary one to be exercised according to proper principles and take into account all the circumstances of the case. 
The Supreme Court on appeal on that point affirming Rundle v Motor Vehicles Insurance (PNG) Trust [1987] PNGLR 44. Mr Ninai relied on the earlier Rundle's case (hereafter Rundle No.2) as authority for the proposition that notice to the Trust would delay and frustrate a simple procedure envisaged, by virtue of the an amendment incorporated in the Motor Vehicle Third Party Insurance (PNG) Trust Bill during the 2nd reading speech, and thus affect the Commissioner's function to entertain late claims.
Ms Thompson says that the Supreme Court did not consider that question, it had not been determined by Kapi Dep. CJ. Secondly a right to be heard is one thing the manner of hearing another. I must agree with her first point. Despite the possibility of a view, on reading Hansard, (quoted by Kapi Dep. CJ in Rundle No.2 at p.47) that the amending part introduced by the Hon. Minister was intended to give an unfettered discretion, such a discretion must impute legal connotations and thus carries with it the need to act judicially. The amendment when passed provided for a further period of notice to the Trust as (a) the Commissioner or (b) the Court shall on sufficient cause being shown, allow. The Supreme Court when dealing with these appeals agreed with Kapi Dep. C.J., the judge of first instance where he said that the applicant is not put to an election. He can claim an extension of time from the Commissioner and if that fails he can claim an extension of time from this Court. Both Justice Bredmeyer and Justice Amet (with whom the Chief Justice agreed) considered the judge of first instances statement correct in principle. Justice Amet said at 29 "I too, agree with Kapi Dep. C.J., that the applicant is not put to an election between applying to the Insurance Commissioner or to the Court. He has the right to choose which of them he should first make an application to. If he chose first to make an application to the Insurance Commissioner, which would be easier and less time consuming, he retains the right to make a further application to the Court should that become necessary". Amet J. relied on the intention and purpose to be deduced from the Hansard quotation.
The Supreme Courts reasons, give rise to the implication that the defendant wishes me to draw. Mr Ninai says the Commissioner had an unfettered discretion and the Commissioner may deny the Trust a right to be heard. The defendant says in fact it would only become necessary to apply to the Court if the Commissioner refused leave. But that ignores the fact that if leave is granted by the Commissioner in the first instance the trust is precluded from arguing the question of sufficient cause, for leave. Only from a decision of the Court, considering the leave question, can an appeal lie to the Supreme Court. See Bredmeyer J. at 24 and Amet J. at 30.
Amet J.'s reference to a "higher tribunal" at p.30 (dealing with appeals) cannot in my view support this defendant's contention. The Judge of first instance was not concerned with the real question, the Commissioner's obligation to act judiciary, but rather the steps available to an applicant. Both review bodies are subject to the same obligation, to allow leave to give notice although out of time, to claimants on sufficient cause being shown. Sufficient course presupposes a need to consider issues. Ms Thompson refers the Court to Dunne v Nominal Defendant (1954) 71 W.N.(NSW) 87, there the Court said that the object of the section (in similar form to our s 54(6)) was to guard against sham claims being made which could never be adequately investigated by a person in such circumstances as the "nominal defendant", (our Trust) and to enable "the nominal defendant" who, unlike an ordinary defendant, knows nothing of the accident, to investigate fully before the "scent is cold". Further she says the Insurance Commissioner cannot properly conduct his decision making process by finding the facts and drawing the appropriate inference of law, as to whether they show sufficient cause, without having heard from the Trust. The duty imposed on the Commissioner is no different to that duty imposed on the Court constituted by s 54(6)(b), both are under the same obligation to allow claims on "sufficient cause being shown." Consequently I am satisfied that the judicial character of the duty lying with the Commissioner under s 54(6) is apparent from the nature of the duty resting on the Court. The section makes no distinction between review bodies. The Commissioner accordingly must act judicially. The Commissioner's order allowing an applicant leave, removes the immunity of the Trust from suit afforded it by s 54(6) of the Motor Vehicle (Third Party Insurance Act). In Hall v The Nominal Defendant (1966) 117 C.L.R. 423 Barwick CJ when considering similar New South Wales legislation said at 428 "An order extending the time operating under the Act thus restores the right of the applicants to sue and exposes the nominal defendant to liability to suffer judgment. These are respectively the right and the liability which result from the grant of the application". The same right and liability appertains in PNG under the Motor Vehicles (Third Party Insurance) Act. The obligation to act judicially connotes with it an obligation to afford the Trust the right to be heard.
The Counsel for the Trust sought further guidance on the question of sufficient cause, but the matters relevant were canvassed by Kapi Dep. CJ, at 48/49, Rundle's No.2, where he referred to various overseas authorities dealing with similar provisions to our s 54. Kapi Dep. CJ then considered and applied those principles to the facts of Rundle's case. While the Supreme Court on appeal found different facts it was careful to confirm the Deputy C.J's approach as correct. Those guidelines then would appear to be adequate for the Commissioner's assistance without fettering him. 
I wish to go back to the manner in which the Commissioner will conduct his hearing. Mr Ninai says, if I should find against the Commissioner on the substantive point, he asks that the Commissioner's manner of dealing with these applications not be hedged about with undue formality or hearings involving parties personally present. Ms Thompson supports Mr Ninai's address, for the Trust she says "can be required to simply put its views in writing in the same way as the claimant". That would appear to be eminently suitable, provided the Trust has notice of the material advanced by the applicant which the Commissioner intends to entertain.
It follows then and I accordingly order into this Court and quash the decision of the Insurance Commissioner of the 3 September, 1991, whereby leave was granted one Paulus Namba to give notice of claim pursuant to s 54(6) of the Motor Vehicles (Third Party Insurance) Act. I further order pursuant to O.16 r.9(4) that the application of the said Paulus Namba be remitted and is hereby remitted to the Insurance Commissioner for reconsideration in accordance with law. The plaintiff shall have its costs of these proceedings.
Lawyer for the plaintiff: Young & Williams
Lawyer for the defendant: State Solicitors Office