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Koralyo v Motor Vehicles Insurance (PNG) Trust [1997] PGNC 126; N1666 (3 October 1997)

Unreported National Court Decisions

N1666

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 19/97
BETWEEN: WIN KORALYO
PLAINTIFF/APPLICANT
AND: MOTOR VEHICLES INSURANCE (PNG) TRUST
DEFENDANT/RESPONDENT

Mount Hagen

Injia J
13 June 1997
26 September 1997
3 October 1997

ADMINISTRATIVE LAW - Practice and Procedure - Sending of letters - Letter of statutory significance - Insurance Commissioner’s letter of extension of time to give notice of claim against Motor Vehicles Insurance (PNG) Trust issued to applicant pursuant to S. 54(6) of Motor Vehicles (Third Party Insurance) Act (Ch. No. 295) - Letter posted by ordinary post not received by applicant’s lawyer - Safer method of sending letter by post discussed - Motor Vehicles Insurance (Third Party Insurance) Act (Ch. No. 295) S. 54(6); Interpretation Act (Ch. No. 2) S. 5.

Cases Cited

Rundle -v- MVIT [1988] PNGLR 20

Counsel

P. Kopunye for the Plaintiff

A. Kandakasi for the Respondent

3 October 1997

INJIA J: The Plaintiff applies for extension of time to give notice of claim to the Defendant pursuant to S. 54(6) of the Act. This follows the refusal to grant approval by the Insurance Commissioner. This application is made afresh: see Rundle -v- MVIT [1988] PNGLR 20.

The circumstances giving rise to this application are as follows:

(a) On 11/3/95, the Plaintiff sustained severe leg injuries in a motor vehicle accident which occurred on the Wapenamanda/Ilnda Road, Enga Province. The Plaintiff is a an ordinary villager and subsistence farmer. The Plaintiff was unaware of the 6 months time limit and did not give notice of claim to the Defendant in the required 6 months.

(b) In July 1996, the Plaintiff instructed Kopunye Lawyers to pursue his compensation claim against the Defendant.

(c) On 26 July 1996, upon realising that the claim was out of time, Mr Kopunye wrote to the Insurance commissioner seeking extension of time. He provided all the necessary particulars of the accident and a copy of the relevant Police Accident Report and Medical Report. He also gave detailed reasons why his client did not give notice of the claim including his client’s lack of knowledge of legal requirements as to time limit, difficulty and delay in obtaining medical report which was not available until 25 March 1996.

(d) Unknown to Kopunye Lawyers, by letter on 9 August 1996 addressed to Kopunye Lawyers, Insurance Commissioner granted an extension of 28 days. According to Mr Kopunye, his firm did not receive this letter, otherwise, if he did, he would have given notice of the claim to the Defendant within the extended period.

(e) Under the impression that the Insurance Commissioner had not received his letter dated 26 July 1996, Mr Kopunye wrote another letter to the Insurance Commissioner on 6/9/96 enquiring about his previous letter. This letter was followed by another similar letter dated 21/10/96.

(f) On 25/10/96, the Insurance Commissioner wrote to Mr Kopunye saying he had already granted an extension of 28 days on 9/8/96 and could not grant a second extension. A further extension requested by Mr Kopunye was refused. This prompted the present application.

(g) Between 31/10/96 and December 1996, Mr Kopunye could not file this application because his client could not deposit sufficient funds in his Trust Account to pursue this application. This was done in December 1996 and this application was filed on 28/1/97 soon after the expiration of the court vacation period from 19/12/96 - end of January 1997.

It seems ironic that Mr Kopunye did receive other letters from the Insurance Commissioner addressed to his office except this most important letter dated 9/8/96. However, there are those cases where letters posted by ordinary post do get lost. It is possible that this letter was posted or lost by the Insurance Commissioner’s mailman on his way to the Post Office. It is possible that the letter was lost in the mail by the Post Office agency. It is possible that Mr Kopunye’s mailman or his Secretary misplaced or lost it - after receiving it. All these possibilities are open. In the absence of any proof that the Insurance Commissioner’s letter was actually posted and received by Mr Kopunye, I accept Mr Kopunye’s word and find that he didn’t receive this letter.

The Insurance Commissioner’s letter to Mr Kopunye dated 9/8/96 has statutory significance. This letter was issued by the Insurance Commissioner in the exercise his statutory power vested in him by S. 54(6) of the Motor Vehicle (Third Party Insurance) Act (Ch. No. 295) namely, the power to extend statutory time limit of 6 months required to give notice of claim to the Motor Vehicles Insurance (PNG) Trust. It was necessary incident of the exercise of this power that a time limit was prescribed by the Insurance Commissioner within which the injured person or his lawyer was to give notice of claim to the said Trust.

The Motor Vehicles (Third Party Insurance) Act (Ch. No. 295) does not prescribe the mode of giving or sending the letter issued under S. 54(6) to an Applicant. If this Act were to prescribe sending other letter by post, then the sending of this letter would become effective upon the posting of the letter. This is provided for in s. 5 of the Interpretation Act (Ch. No. 2) which provides:

“5. Meaning of “service by post”, etc.

(1) Where a statutory provision authorizes or requires a document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used), then unless the contrary intention appears the service shall be deemed to be effected by properly addressing pre-paying (except where under a law the document may be sent by post free of charge) and posting the document as a letter.”

In the present case, it was imperative that the Insurance Commissioner employed a much more safe system of mail postage which would ensure that the letter was posted and so received by the Applicant or his lawyer or the addressee e.g. by pre-paid registered mail. The Insurance Commissioner would then easily prove the postage and receipt of the letter through independent and reliable sources. For these reasons, I find that Mr Kopunye did not receive the Insurance Commissioner’s letter dated 9/8/96. I am satisfied too that if Mr Kopunye had received this letter, he would have given notice of his client’s claim to the Defendant within the period extended by the Insurance Commissioner.

It is submitted for the Defendants based on Mr Eric Vegoa’s affidavit that there has been a long delay of more than 2 years and this will prejudice the Defendant in defending the claim which they say after all has no prima facie basis. I consider these arguments secondary to the main issue of why Mr Kopunye failed to give notice within the extended time and not necessary to be considered. In any event, I find that the delay in giving notice of the claim in the first place, has been satisfactorily explained. If it was satisfactorily explained to the Insurance Commissioner to warrant him to grant an extension, then it must also satisfy this Court. I find that Mr Kopunye has with reasonable expediency, in the given circumstances, applied for an extension to this Court and I do not see why I should not exercise my discretion in his client’s favour. For these reasons, I grant an extension of 28 days to the Plaintiff to lodge a claim with the Defendant. Costs are ordered in favour of the Plaintiff.

Lawyer for the Plaintiffs: P. KOPUNYE Lawyers

Lawyer for the Respondent: YOUNG & WILLIAMS