N1265

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

Appeal No. 109 of 1994

BETWEEN:

MOTOR VEHICLES INSURANCE (PNG) TRUST
Appellant

AND:

TUPIA MENDA
Respondent

Waigani: Kapi, DCJ
15 August, 15 September 1994

Damages Claim - Notice to Motor Vehicle Insurance (PNG) Trust - Application for extension of time - Which Court has jurisdiction.

Held:

1.	Notice of intention to make a claim is a condition precedent to commencement of an action.

2. 	District Court has power to extend time in which to give notice if the claim is for an amount of K10,000 or under and the claim is instituted in the District Court.

V.A. Mirupasi for the Appellant
No Appearance by the Respondent

KAPI, DCJ: This is an appeal from the decision of the District Court sitting in Mendi, Southern Highlands. 

The respondent sued the appellant for damages arising out of a motor vehicle accident pursuant to the provisions of Motor Vehicles (Third Party Insurance) Act (ch 795). At the hearing of the matter the appellant raised a preliminary point; namely that the proceedings should have been dismissed on the basis that the respondent failed to give Notice of Intention to make a claim to the Commissioner of Insurance pursuant to s 54 (6) of the Act. 

The District Court concluded that the respondent failed to give such notice. According to the case of Rundle v. MVIT [1988-89] PNGLR 20, Notice of Intention to make a claim is a condition precedent to a claim made under the Act. Having reached this conclusion, the District Court then went on and considered whether it had jurisdiction to extend time in which to give notice to the Commissioner. The Court reached a conclusion that it had the jurisdiction and ruled that the proceedings should not be dismissed and further adjourned the matter to a date for further hearing.

The appellant appealed against the decision and made two basic submissions.

Firstly, that having come to the conclusion that no Notice of Intention to make a claim was given to the Commissioner, the District Court should have dismissed the proceedings.

Secondly, that the District Court had no jurisdiction to consider an application to extend time in which to give notice to the Commissioner. According to the appellant the power to extend time is to be found in the National Court.

As to the first submission, I find that the District Court fell into error. When the Court concluded that no Notice of Intention to make a claim was given, as a matter of law there was no cause of action instituted in the proceedings before it. The District Court was bound by the decision of the Supreme Court in Rundle v. MVIT (supra) to dismiss the proceedings. By not dismissing and adjourning the proceedings, the Court fell into error. I would allow the appeal on this ground and dismiss the proceedings now before the District Court.

As to the question of whether or not the District Court has power to extend time in which to give notice to the Commissioner under s 54 (6) of the Act, in my view the key words are "the Court before which the action is instituted". The Act has not defined the word "Court". In my opinion the word "Court" is to be interpreted within the words of the section that qualify it. The claim under the Act may be made by a person. As to which Court has jurisdiction, this depends on the amount of damages that is claimed. If the claim is for K10,000 or under the District Court has power to deal with the claim. However, for a claim beyond K10,000, the National Court has unlimited jurisdiction to deal with such a claim.

It follows from this reasoning that in a case where the claim is under K10,000, a person has a choice of bringing an action either in the District Court or in the National Court. In this case, the respondent brought the action in the District Court. Therefore, in my view the Court for the purposes of s 54 (6) would be the District Court. I find that the District Court did not fall into error as to the question of jurisdiction.

In this case, the District Court should have dismissed the proceedings then before it and allow the respondent to make an application for extension of time in which to give notice under the Act in order to institute the proceedings in the District Court in the proper manner. The Court fell into error in simply adjourning the proceedings to a later date. I would allow the appeal, dismiss the proceedings now before the District Court and indicate that the respondent is entitled to make an application for extension of time in which to give notice to the Commissioner under the Act. I further order that the respondent pays the cost of the appellant.

Lawyers for the Appellant: Nii and Mirupasi
Lawyers for the Respondent: Mathew Tamutai