N2132

PAPUA NEW GUINEA

[In the National Court of Justice Mount Hagen]

WS. NO. 353 OF 1994

BETWEEN:

PAUL KUMBA
Plaintiff

AND:

Motor VehicleS (PNG) Trust
Defendant

Mount Hagen: Davani J
2001: 16 & 21 May

PRACTICE AND PROCEDURE – Plaintiff failed to give notice under s.54(6) of the Motor Vehicle (Third Party Insurance) Act Chapter 295 – Defendant continued to liaise with Plaintiff – Equitable remedy of estoppel by conduct not available - Mandatory, by statute, that notice shall be given.

Cases cited:
Carol Laime an infant by her next friend, Willie Laime v. MVIT [1995] PNGLR 224.
Rundle v. MVIT [1988] PNGLR 20.
MVIT v Martha Kuma SC650 9th August 2000
Irwin Ruap v. MVIT 5th September 1998
Oakland Metal Co Ltd v. D. Benaim & Co. Ltd (1953) 2 All ER 650
Halsbury’s 4th Edition, volume 16

Counsel
M. Tamutai, for the Plaintiff/Respondent
P. Honey, for the Defendant/Applicant

21 May 2001

DECISION

DAVANI J:	This is an application by Defendant to have the proceedings dismissed because of the Plaintiff’s failure to give notice under s. 54(6) of the Motor Vehicles (Third Party Insurance) Act Chapter 295. ‘(The Act)’

The Defendant’s move on their Notice of Motion filed on 28 September 1998 and rely on Muriso Pokia’s affidavit sworn on 22 September 1998 and filed on 28 September 1998.

The Plaintiff opposes the application and relies on his lawyer Mathew Tamutai’s affidavit sworn and filed on 19 October 1998.

This matter came before me as a trial on 16 May 2001. In court, I was informed by both Counsel that the Defendants Application now before me had yet to be determined by the court and that although Notice of Trial was filed, it was filed under the mistaken belief that the application had been dealt with.

On that note and by agreement from both parties, I vacated the trial date with no order as to costs. I then adjourned to consider the written submissions that the Plaintiff and Defendants lawyers had filed on 22 October 1998 and 26 October 1998, respectively.

Facts:

The application arises from the Defendants contentions that the Plaintiff failed to give the mandatory notice required to be given under s. 54(6) of the Act.

Section 54(6) states:

"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."

The Plaintiff claims this notice was given and opposes the Defendants application.

I set out in chronological order the relevant facts. The letters set out in the chronology below are attached as annexures to the both affidavits relied on by both Counsels in this application.

1. 13 January 1990 -	Date of Motor Vehicle accident in which Plaintiff allegedly sustained injuries.

2. 16 July 1990 -	Date the Plaintiff should have given notice of the claim to the Defendant.

3. 6 May 1991 -	Date of Plaintiffs lawyer’s letter to the Defendant giving notice that it may be necessary to make a claim against the Trust.

4. 22 May 1991 -	Date of Defendants letter to Plaintiffs lawyer requesting:
 original and subsequent medical reports
 copy of official Police Road Accident Traffic Report
 copy of letter of approval from Insurance Commissioner to lodge claim out of time.

5. 27 April 1993 -	Date of Plaintiffs Lawyers letter to Defendant enclosing copy of letter from Insurance Commissioner to him (Plaintiffs Lawyer) dated 22 April 1993 giving him a further extension of 28 days within which to give notice.

6. 26 July 1993 -	Date of formulated claim from Plaintiffs lawyer to the Defendant.

7. 1 June 1994 -	Date Plaintiffs Lawyer filed Writ of Summons and Statement of Claim.

8. 9 August 1994 -	Date Defendant’s lawyer filed Notice of Intention to Defend and Defence for the Defendants. Note that in this Defence, the Defendant did not plead the statutory Defence of s. 54(6) of the Act.

9. 28 August 1995 -	Filing date for Defendants motion to have proceedings dismissed for want of prosecution.

10. 11 September 1995 -	Date when court ordered that proceedings be set down for trial within 14 days and plaintiffs pay the Defendants costs of the application (to dismiss).

11. 13 November 1997 -	Trial date vacated by consent.

12. 7 August 1998 -	Date Defendant made Application for leave to amend their Defence and consent orders were made (to plead the Statutory Defence of s.54(6) of the Act).

13. 28 September 1998 -	Filing date for defendants Notice of Motion seeking orders to dismiss the proceedings for failure to give notice under s. 54(6) of the Act.

14. 16 October 1998 -	Court’s order to file and serve affidavits and written submissions in support or to oppose the Defendant’s motion to dismiss proceedings.

15. 8 July 1999 -	Trial date (obtained under mistaken belief that court had ruled on the Defendants application to dismiss).

On reviewing the factual materials before me, including the written submissions, the following issues are apparent;

1.	Was the Plaintiff’s lawyer’s letter to the Defendant of 27 April 1993 sufficient notice within the meaning of s. 54(6) of the Act?

2.	Is the Defendant estopped from raising the Defence of s. 54(6) of the Act considering its conduct throughout.

I will deal with the both issues together.

It is apparent from the facts that on receipt of the Defendant’s letter of 22 May 1991 requesting, amongst others, letter of Insurance Commissioner to lodge claim out of time, the Plaintiff’s lawyer then applied to the Insurance Commissioner for an extension of time. He, in effect, when writing the letter of 6 May 1991 giving notice to the trust, ought to have known then that if the accident had occurred on 13 January 1990, then a letter giving notice of the claim should have been sent before 16 July 1990.

I do not know when the Plaintiff instructed his lawyers, but a lawyer, on receipt of instructions should ascertain when the accident occurred and when notice should have been given. That is crucial. If he or she was instructed after the expiration of the six month notice period, then he or she should then, seek an extension of time, from the Insurance Commissioner and if granted, to give notice to the Defendant trust. As it is, the Plaintiff’s lawyer’s letter of 6 May 1991 is not a valid notice as it was sent ten (10) months after the accident. I have no evidence before me to explain why this occurred.

It is apparent from the facts that after receipt of the Defendants letter of 22 May 1991, the Plaintiffs lawyer, sent a letter to the Defendant of 27 April 1993, enclosing the letter from the Insurance Commissioner. The Plaintiffs lawyers letter read; "Further to your letter of 22 May 1991, I enclose herewith permission from the Insurance Commissioner to proceed in this matter. I am quantifying the claim and will forward supporting details in the near future."

The letter from the Insurance Commissioner to the Plaintiffs lawyer dated 22 April 1993 read in part; "Pursuant to Section 54(6) of the Motor Vehicles (Third Party Insurance) Act Chapter 295, approval for you to proceed with a claim within twenty eight days of the date of this letter is hereby granted". 

 The legally correct thing to do then was for the plaintiffs lawyer to reissue to the Defendant, a letter giving notice, enclosing to that letter, copy of the Insurance Commissioner’s letter granting the extension of time. The letter of approval from the Insurance Commissioner is not a revival of any earlier purported notice. (re Carol Laime an infant by her next friend, Willie Laime v MVIT [1995] PNGLR 224 at pg. 226). Unless a claimant clearly comes within s. 54(6) of the Act, there can be no right to claim against the Trust, and any purported proceeding or right must be unenforceable. (re Carol Laime v MVIT, Supra).

There have been a number of cases that have come before the National and the Supreme Court which decided on the issue of notice, one being Rundle v MVIT [1988] PNGLR 20. Amet J (as he then was) stated at pg 31: "In any event, what is more important, is that the Insurance Commissioner granted the 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" (My stress).

In the Supreme Court Appeal of MVIT v Martha Kuma SC650, a decision of 9 August 2000, their Honours Kapi DCJ, Jalina J and Sawong J discussed the scheme and intention of the Act when they stated at pg .7; 

"The Parliament intended that the Trust should not be liable under the Act. Unless notice of intention of claim is given within the prescribed period, the Trust cannot be liable for any claim for damages arising out of a motor vehicle accident. Whatever the Court may feel about the requirement and the prescribed period for notice, there can be no doubt that the Parliament intended to protect the Trust against any claim that may be brought after six months".

In this case, the Plaintiffs lawyer argues that proper notice was given and that the court should not be too "legalistic" in its approach. He relies on several of Injia J’s judgments in supporting that proposition and submits that:-

-	the letter of 27 April 1993 is sufficient notice
-	the Defendant did not object to the lack of notice allowing proceedings to proceed this far, and that therefore, it is estopped from pursuing this application.

Although I have discussed the aspect of the lack of notice, it was done without reference to the authorities quoted by the Plaintiffs lawyers. I now do so and will distinguish those cases with other authorities quoted, on point.

The Plaintiffs lawyer relied on Irwin Ruap v MVIT, Injia Js decision of 25 September 1998. In that case, upon application for an extension of time, the Insurance Commissioner granted such an extension on 24 April 1993, for a further 28 days. On 27 April 1993, within the extended period (my stress), the Plaintiffs lawyer gave notice of the claim to the MVIT enclosing a copy of the extension letter and later submitting a quantified claim by letter dated 5 July 1993.

In this case, extension of a further 28 days was given to the Plaintiff by the Insurance Commissioner, by letter dated 22 April 1993. The Plaintiffs lawyer should have given fresh notice within 28 days from the date of that letter as his letter of 6 May 1991 purportedly giving notice was not a valid notice within the ambit of s. 54(6) of the Act. The Defendant’s lawyer’s letter to the MVIT of 27 April 1993 only enclosed the Insurance Commissioners letter. It did not give notice of the claim and did not provide the other relevant particulars required when giving notice. These particulars are set out in the case Stanley Tendi v MVIT N1423 at pg. 4. There his honour Injia J said; 

"A notice under Section 54(6) should be accorded its ordinary meaning. It means to inform or to make the Trust aware of the claimants intention to make a claim against it. The form the notice should take may vary depending on the circumstances which includes the claimants level of sophistication, geographical location and whether he is represented by a lawyer or friend or relative. It maybe made orally or in writing. Whatever form the notice takes, it should sufficiently set out the relevant particulars of the motor vehicle accident, the nature of the injuries received and medical treatment received, if any, and the claimants desire or intention to make a claim". 

The Plaintiffs formulated claim dated 26 July 1993 which sufficiently contains all the particulars was dated and sent, well outside the 28 day extension (which expired on 20 May 1993). That letter is not a valid notice. 

In this case, the Plaintiffs Lawyer has failed in all respects when giving notice.

In support of their argument on estoppel, the Plaintiffs lawyers rely on Irwin Ruap v MVIT (supra) where Injia J in discussion, stated that because the MVIT did not take issue with the form of the notice of claim in April 1993, that it should not raise that in its Application to dismiss in 1998.

In Defence, the Defendants lawyer quoted Halsbury’s Laws of England Vol. 15 3rd Edition at paragraph 338. In the 4th Edition it is referred to in Volume 16, paragraph 995 which defines "equitable estoppel" as being:-

"Where a person has by words or conduct made to another a clear and unequivocal representation of fact, either with knowledge of its falsehood or with the intention that it should be acted upon, or has so conducted himself, that another would, as a reasonable person, understand that a certain representation of fact was intended to be acted upon and the other person has acted upon such representation and thereby altered his position to his prejudice, an estoppel arises against the party who made the representation, and he is not allowed to aver that the fact is otherwise than he represented it to be".

A simple definition of this principle was devised by Lord Birkenhead LC in the case Maclaine v Gatty [1921] 1 AC 376 at 386 -

"Where A has by his words or conduct justified B in believing that a state of fact exists, and B has acted upon such belief to his prejudice. A is not permitted to affirm against B that a different state of facts existed at the same time".

Discussion of the above would be applicable to factual circumstances where a party made representation(s) and which was relied on by another party to his or her detriment. The first party cannot change those set of facts. But what of parties involved in litigation. How are they affected by Estoppel? Halsbury’s states at paragraph 1055 -

"Parties to litigation who have continued the proceedings with knowledge of an irregularity of which they might have availed themselves are estopped from afterwards setting it up".

Halsbury's states further;

"… and a fortiori, on a somewhat different principle, such a party cannot take advantage of an error to which he has himself contributed".

To distinguish the application of this principle to a dispute or claim not dependent on statute and a claim dependent on statute, I refer to the case of Oakland Metal Col. Ltd v D. Benaim & Co. Ltd (1953) 2 ALL ER 650, a case decided by Parker J on 2 July 1953. In that case, by a Contract dated December 6 1951, the parties agreed to buy Zinc ingots from sellers. A clause in the contract provided that disputes under the Contract would be settled by Arbitration in accordance with the Rules and Regulations of the local National (Metal) Association. Soon thereafter a dispute arose and an arbitrator was appointed, by agreement of both parties, the matter was heard and deliberated under the National Associations Rules and Regulations. An award was made in favour of the sellers. The buyers then sought a Declaration that the award was a nullity. The court held that the buyers throughout had acted and accepted that the arbitrator was qualified to act and therefore it was not open for them to contend after the award was made that he did not have the necessary qualifications and that therefore the award was valid. 

Applying these common law principles to this case and to the Plaintiffs submissions on the Defendants conduct, I am informed that between 22 May 1991 to 20 August 1998 when the court granted leave to the Defendant to amend its Defence, the Plaintiff’s lawyer and the Defendant’s lawyer either exchanged correspondence or appeared at court. At no time did the Defendant admit liability or agree that the Plaintiff had given notice. This is confirmed by paragraph 5 of Muriso Pokia’s affidavit of 1 July 1998, where he deposes that "The Defendant has not accepted being duly notified of the Plaintiffs intention to make a claim". The Plaintiff does not deny that.

Furthermore, I find that the Plaintiffs conduct confirms his acceptance of the Defendants contentions that the Plaintiff did not give the mandatory s. 54(6) notice. Apart from the Plaintiffs acceptance of the Defendants contentions on the lack of notice from the Plaintiff the Plaintiff also consented to the Defendants application to amend its Defence to include and plead the failure to give notice. He cannot now come back and claim Estoppel. In effect, the application to amend the Defence was the appropriate arena for the Plaintiff to raise these objections, not now. This confirms the principles taken from Halsburys that "… a party cannot take advantage of an error to which he himself contributed" (re Halsburys 4th Edition, Volume 16, paragraph 1055).

However, we have a situation where legislation has provided for the giving of notice, which therefore makes it mandatory that notice is given. In Carol Laime v MVIT (Supra), the court held that the Defendant Trust has no legal basis to deal with its monies outside the scope of legislation. It is legally disabled to ignore notice. There are no exceptions.

I agree with the Defendants lawyer that "…the principles of equitable estoppel if applied to the facts of this case will be inconsistent with s. 54(6) of the Act. There is no gap in the law".

This is confirmed in Halsburys 4th Edition volume 16 at paragraph 962 which states;

"The doctrine of estoppel may not be invoked to render valid a transaction which the legislature has, on grounds of general public policy, enacted is to be invalid, or to give the court a jurisdiction which is denied to it by statute, or to oust the courts statutory jurisdiction under an enactment which precludes the parties from contracting out of its provisions".

This being the principle, it follows then that the principle of Equitable Estoppel is not applicable in this instance as s. 54(6) is a mandatory provision a claimant must comply with. The doctrine of Equitable Estoppel cannot be invoked when statute expressly forbids it.

The principle of Estoppel is an equitable remedy. It is an agreed principle at law that "He who comes to Equity must come with clean hands". The Plaintiff has not. He cannot seek relief in equity.

I therefore dismiss the Plaintiffs claim in its entirety.

Costs of course follow the event in that the Plaintiff shall pay the costs of the proceedings to be taxed if not agreed upon.
________________________________________________________________________
Plaintiff/Respondent:	Tamutai Lawyers
Defendant/Applicant:	White, Young & Williams.