Unreported National Court Decisions
N1349
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS 128 OF 1995
MICHAEL KONGA - Plaintiff
V
MOTOR VEHICLES INSURANCE (PNG) TRUST - Defendant
Mount Hagen
Woods J
16 June 1995
1 August 1995
PRACTICE - application to set aside default judgement - irregular judgement - no Notice of Action - non-compliance with requirements of legislation - role and power of Trust to act.
Cases Cited:
Dick v MVIT [1993] PNGLR 443
Rundle v MVIT [1988] PNGLR 20
Counsel:
P Kopunye for the Plaintiff
A Kandakasi for the Defendant
1 August 1995
WOODS J:  This is an application by the Defendant to set aside a Default Judgement ordered by the Court on 26 April 1995.  The application is initially made on the grounds that the judgement so ordered was irregular because the requirement of Notice, a prerequisite to the right of action has not been complied with.
The circumstances of the default judgment are that a writ was filed in March 1995 seeking damages for personal injuries received in a vehicle accident in December 1991.  The writ was served on the office of the Defendant on 17 March 1995.  Then in default of a Notice of intention to defend or a Defence, application was made and granted on 26 April for a judgement by default for damages to be assessed.  I might add that having waited for over 3 years since the accident the action of the Plaintiff in rushing to the default judgement in 4 weeks was rather precipitous.
The Defendant promptly filed a Notice of Intention to Defend and this Motion in May.  The writ is against the Motor Vehicles Insurance (PNG) Trust by virtue of the provisions of Section 54 of the Motor Vehicles (Third Party Insurance Act which abrogated the normal rule of proceeding against the owner or driver or negligent party in Tort, but provides in Section 54 that in certain circumstances claims arising out of the death or personal injury caused by or arising out of the use of a motor vehicle should be made against the Trust and not against the owner or driver.  This is an exception to the normal rule of law that claims for damages should be made against the party who caused the injury or damages.
The section sets out how such claims are to be made and subsection (6) clearly places limitations on such claims:
“Section 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 6 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.”
Therefore unless a claimant clearly comes within section 54 of the Act there can be no right to claim against the Trust and any purported proceeding or right must be unenforceable.
In this case now the plaintiff is alleged to have been injured in a motor vehicle accident in December 1991.  It is claimed by the Trust and this is not disputed by the lawyer for the plaintiff, that no Notice was given to the Trust in the following 6 months, so therefore initially there can be no action against the Trust.  There was a letter sent to the Trust in September 1992 purporting to be notice of intention to make a claim and this letter did make reference to the need to seek an extension of time from the Commissioner.  Of course apart from giving the Trust the opportunity to commence its investigation in case an extension was granted this letter can  mean nothing and there was no liability or obligation on the Trust to consider the claim being as it is a Corporation set up under legislation and dealing with what are in effect public monies and therefore accountable under the Act to only consider claims properly lodged under Section 54.  In due course the lawyer for the plaintiff did receive approval from the Insurance Commissioner to proceed with a claim within 28 days of the date of the approval letter.  However no Notice of intention to make a claim was made in that 28 days.  It has been made quite clear that such an approval does not have the effect of reviving any earlier purported notice, it is merely an approval of an extension of time in which to give notice of intention to make a claim.  This was considered in the case Rundle v MVIT [1988] PNGLR 20 and as Amet J stated in that case, “In any event what is more important is that the Commissioner granted a second extension of 28 days on 23 August 1984 to run from that date and not retrospective to extend from 2 to 15 November 1983.  No Notice of any kind was served on the Trust within the further extended time.“  I adopt the principles that these words highlights namely that an approval of an extension of time is what it says, an approval of an extension of time in which to send a notice of claim, but not a retrospective approval of any communication that may have been made previously but which did not comply with Section 54 (6).  There was therefore no notice of intention to make a claim which complies with the requirements of Section 54 of the Act. As was stated by the Supreme Court in Rundle’s case above referred to, “Notice of intention to make a claim is a condition precedent to the institution or commencement of any action to enforce a claim”.
There have been a number of cases that have come before the Court since Rundle’s case where the Court has considered the requirements of notice of intended action and has been asked to exercise its discretion to extend time.  In Dick v MVIT [1993] PNGLR 443 the Insurance Commissioner had granted an extension of time and there had been no notice of intended action made to the Trust within that extended time.  It was made clear in that case that a later approval for an extension of time does not revive an earlier invalid notice.  There has thus been ample warning to lawyers in Cases of the dangers of disregarding the requirements of notice in section 54.
As I have said above the right to proceed against the Trust and not directly against the owner or driver or other negligent party is an abrogation of the normal position at law.  The right is a right given by Statute so the parameters of that right must be found within the legislation and section 54 is quite specific. The Trust is in effect dealing with the accumulated funds of thousands of motor vehicle owners and this must be akin to public monies so the Trust is itself bound by the legislation to only deal with such monies strictly in accordance with the parameters of the legislation.
It is submitted that the Trust knew about the claim by virtue of the earlier purported notice and had been communicating accordingly.  This may be so but that would be expected when the Trust knew it could still be faced by a claim out of time with the approval of the Commissioner or the Court.  The Trust always has an obligation to all premium payers and the public to be prepared and to do its own research to more easily resolve matters once the statutory requirements are met.  As I have said the Trust can only act in accordance with the Act and therefore there must first be compliance with the Act by claimants.  So the mere fact that it has conducted correspondence and sought details before a proper claim has been lodged cannot override the strict requirements of the legislation.
For the above reasons the writ itself has no basis in law and must be irregular.  Therefore I order that the default judgement  of 26 April 1995 be set aside.  Whilst I may in effect have found that there is no basis for the writ I will not strike the whole proceedings out but I give the Defendant 21 days in which to file and serve its Defence.
Lawyer for the Plaintiff: P Kopunye
Lawyer for the Defendant: Young & Williams