SC764

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA 112 of 2003

BETWEEN

DICKSON MUNIAKALI
Appellant

AND

MOTOR VEHICLES INSURANCE LIMITED
Respondent

Waigani	:	Sevua, Sawong & Davani, JJ
2004		:	25th February & 1st October

PERSONAL INJURIES – Practice and procedure – Notice of intention to claim – Notice given outside time limit – Same notice annexed to letter to Motor Vehicles Insurance Trust Limited after extension of time approved by Insurance Commissioner – Whether an invalid notice is valid in law – Whether its subsequent delivery to Motor Vehicles Insurance Limited constitutes notice pursuant to s.54(6) Motor Vehicles (Third Party Insurance) Act, Chapter 295.

Legislation Cited:
Motor Vehicles (Third Party Insurance) Act, s.54(6).

Cases referred to:
Rundle v. Motor Vehicle Insurance Trust [1988] PNGLR 20.
Stanley Tendi v. Motor Vehicle Insurance (PNG) Trust [1996] PNGLR 379.
Judy Yopole v. Motor Vehicle Insurance (PNG) Trust, unreported, N1758, 18th September 1998.
Cathy Robert Kolum v. Motor Vehicle Insurance (PNG) Trust Limited; unreported, N1998, 27th October 2000.
Joy Kawai v. Motor Vehicle Insurance (PNG) Trust, unreported, SC588, October 1998.

Counsel:
A. Manase for Plaintiff
M. Titus for Respondent

1st October 2004

BY THE COURT:	The appellant sued the respondent in the National Court for damages arising out of a motor vehicle accident, which occurred on 12th February 1997 at approximately 3pm along the Okuk Highway, when the vehicle he was a passenger in, collided head on with an on-coming vehicle near the Dobel Mobil Service Section at the junction of Mt. Hagen Airport road and Mt. Hagen-Kudjip road.

On 24th May 2000, he, through his lawyers, Pato Lawyers, gave notice in writing to the Motor Vehicle Insurance (PNG) Trust Limited purportedly, pursuant to s.54(6) of the Motor Vehicles (Third Party Insurance) Act, Chapter 295 (the Act). On 13th July 2000, the respondent acknowledged the appellant’s notice of 24th May 2000, but advised that the notice was out of the 6 months time limit stipulated under the Act and suggested that the appellant seek an extension of time from the Insurance Commissioner.

Subsequently, the appellant wrote to the Insurance Commissioner on 14th June 2000, requesting an extension of time to give notice of intention to make a claim. Following several letters from Pato Lawyers to the Insurance Commissioner, he eventually, in his letter of 20th June 2001, granted an extension of 28 days to the appellant.

The appellant then on 25th June 2001, wrote to the respondent and (omitting formal parts) said:-

"We refer to your letter of 13th July 2000 and enclose a copy of a letter dated 20th June 2001 received from the Insurance Commissioner granting extension of 28 days to the injured to lodge his notice of intention to (sic) out of time claim.

Hence we request that you treat our letter to you of 24th May 2000 as the relevant notice of intention to claim.

Please let us have your comments by return.
(Signed Alfred Manase)"

Again several letters from Pato Lawyers to the respondent, including one containing submissions on quantum dated 4th September 2002 went unanswered. Consequently, the appellant filed its writ of summons on 30th June 2003. On 5th September 2003, Mirupasi Lawyers, on instructions, wrote to the appellant’s lawyers and pointed out that the appellant did not give the mandatory notice to the respondent and therefore it intended to apply to have the proceedings dismissed.

On 26th September 2003, the respondent’s application to dismiss the proceedings came before Kandakasi, J., who dismissed the proceedings on the basis that he was not satisfied that notice had been given by the appellant.

The appellant has now appealed against that decision on the ground that he says that the trial Judge erred in fact and in law in that he failed to find that there was no s.54(6) statutory notice.

There are four grounds of appeal which we do not intend to set out because we consider that the issue is a narrow one and so, despite the fact that there are different grounds, we are of the view that all the grounds raise the one principal issue of notice under s.54(6) of the Act.

The issue for deliberation by this Court is therefore, whether the appellant’s notice dated, 24th May 2000 and given outside the 6 months time limit, constitute notice under s.54(6) of the Motor Vehicles (Third Party Insurance) Act, Chapter 295. Collateral to that is the issue whether the annexing of that notice, invalid as it were, to the appellant’s lawyer’s letter to the respondent following an extension of 28 days by the Insurance Commissioner, validates the original defective notice.

Mr. Manase, counsel for the appellant has referred the Court to a number of National Court decisions in respect of what notice under s.54(6) should or should not be. These are Stanley Tendi v. Motor Vehicle Insurance (PNG) Trust [1996] PNGLR 329; Judy Yopole v. Motor Vehicle Insurance (PNG) Trust; unreported, N1758, 18th September 1998; per Kapi, DCJ; and Cathy Robert Kolum v. Motor Vehicle Insurance (PNG) Trust; unreported, N1998, 27th October 2000; per Sevua, J.

The law is that notice to make a claim must be lodged within 6 months from the date the cause of the action arose. Section 54 (6) is in these terms:-

"No action to enforce any claim under this Section 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 occasion out of which the claim arose, or within some further periods as……………"

In the present case, the accident occurred on 12th February 1997. The time limit of 6 months stipulated in s.54 (6) of the Act expired on 12th August 1997. However, the appellant did not exercise his right until 24th May 2000, some 3 years and 3 months later. The respondent quite correctly pointed out that the notice was out of time.

However, the appellant did apply to the Insurance Commissioner and was subsequently given an extension of 28 days within which to give the requisite notice. But the appellant again failed to act within the extended period, and instead requested the respondent to treat his lawyers notice of 24th May 2000 as the required notice under s.54 (6). Clearly this is not the spirit and intention of the legislation.

As far back as 1988, the Supreme Court had established the law as to this statutory notice. In Graham Rundle v. Motor Vehicle Insurance (PNG) Trust No. 1 [1988] PNGLR 20 the Supreme Court held that on a proper construction of s.54 (1) notice of intention to make a claim is mandatory.

It was therefore compulsory for the appellant to give the required notice within the 6 months time limit. However, since he did not, he was given another opportunity to exercise his right when the Insurance Commissioner granted him 28 days extension to give that mandatory notice. He did not. Therefore he cannot, as his counsel has submitted, rely on the notice given outside the 6 months time limit as a valid notice. The appellant’s notice given on 24th May 2000, more than three years after the accident is defective, and we hold that it is not a proper or valid notice in pursuance of s.54(6).

The Court also held in Rundle’s case that the giving of this statutory notice is a condition precedent to the right to instituting or commencing an action in Court to claim damages. See the judgment by Amet, J (as he then was) at pages 28 and 29 of that case.

Mr. Manase of counsel for the appellant attempted to convince the Court on what the Supreme Court said in Joy Kawai v. Motor Vehicle Insurance (PNG) Trust, unreported, SC588, October 1998. In that case, the Court was dealing with a similar situation however, the decision of the Court was not what counsel for the appellant in the present case was putting to us.

In that case, the appellant’s lawyer Mr. O’Connor had written a letter to the Trust on 25th February 1993 purporting it to be a s.54(6) notice. The Trust did not receive that letter so did not respond to it. At about the same time, Mr. O’Connor also wrote to the Insurance Commissioner seeking extension of time to make a claim. The Insurance Commissioner granted an extension of 28 days on 6th May 1993. However, Mr. O’Connor did not give the required notice within that period. Instead, he sent the Insurance Commissioner’s letter to the Trust on 24th May 1993. Subsequently, he was advised that his letter of 25th May 1993 did not constitute notice.

In Court, Mr. O’Connor conceded that his letter of 25th February 1993 to the Trust did not constitute notice under s.54(6). However, he argued that the Trust should have had that letter in its file so that his subsequent letter of 24th May 1993 would have been to validate or convert his earlier letter to a s.54(6) notice.

In addressing that issue, the Court said at page 2 –

"That submission by Mr. O’Connor would have been valid had he sent a copy of the letter of 25th February together with the letter of approval by the Insurance Commissioner to the Trust. As it turned out he did not."

The Court then went on to cite what the National Court said in the original trial, which we do not wish to quote because with respect, we disagree with the trial Judge and the affirmation by the Supreme Court in that case.

But nevertheless, we consider that the paragraph we have cited here did not constitute the conclusion by the Court nor was it the conclusion by the Court. In a way, we consider that Mr. Manase was trying to mislead the Court because he omitted (intentionally or otherwise) to not refer to the second last paragraph of the Court judgment at page 3, where the Court said:

"In our view, s.54(6) of the Motor Vehicle (sic) (Third Party Insurance) Act is clear. Unless a notice of intention to make a claim is given within a period of 6 months after the occurrence of death or injury, no claim lies against the Trust. Where the Commissioner or the Court decided to extend the period, the notice of intention to make a claim must be lodged within the extended period.

If no notice is lodged within the extended period, no action lies against the Trust." (our emphasis)

With respect to counsel, we consider that statement to be the important part of the decision in that case, which counsel did not allude to in his oral submissions. We are of the opinion that, that is the correct statement of the law, so far as it relates to an extension of time to give a notice of intention to make a claim against the Trust, whether and extension of time to lodge a notice of intention to make a claim against the Trust is given by the Insurance Commissioner or the Court. But see the comments of Amet, J (as he then was) in Rundle’s case at page 29, regarding the reference to the Court in s.54(6)(b).

In the present appeal, we hold the view that the appellant’s lawyers letter of 25th June 2001 to the Trust annexing his earlier letter of 24th May 2000, does not constitute valid notice. Because the second letter was not a notice, but merely annexed the first letter which was given way out of time, thereby legally invalid? We consider that Mr. Manase’s submissions are therefore misconceived and without any legal basis, because the first letter of 24th May 2000, was out of time by more than 3 years. It could not in law be treated as the relevant notice as it was given outside the within 6 months time limit. We are of the view that counsel’s submissions is not only unmeritorious, but also preposterous and spurious. In essence, there is no basis for that contention.

What the Court said in Kawai v. MVIT (supra), which we have already alluded to accords with our own view in the present case. We therefore reiterate that where the Insurance Commissioner has granted an extension of time to lodge a notice of intention to make a claim against the Motor Vehicles Insurance Trust Limited, a claimant must give notice within that period. If he fails to give a notice within that period, he cannot institute legal proceedings against the Motor Vehicles Insurance Trust Limited to claim damages.

Secondly, where the claimant does not give a notice within the extended period, but simply annexes or attaches a previous invalid notice, ie, a notice which was given outside the 6 months time limit stipulated by s.54(6) of the Act, and requests the Motor Vehicles Insurance Trust Limited to treat the invalid notice as the relevant notice, or requests the Motor Vehicles Insurance Trust Limited to validate that invalid notice, is not a valid notice under s.54(6).

There are three fundamental reasons for those conclusions. Firstly, the scheme of this legislation reflects the notion of a statement liability and therefore the claimant must strictly comply with the mandatory requirements of the Act. Secondly, the extension granted by the Insurance Commissioner or the Court is an extension of time to lodge a notice of intention to make a claim. It is not, and must never be treated as a period of extension where the claimant sends an earlier notice which was given outside the time limit.

Finally, the Motor Vehicles Insurance Trust Limited has no authority under the Motor Vehicle (Third Party Insurance) Act to validate a notice earlier given outside the 6 months time limit. No such power exists in s.54(6). Therefore it is a misconception to think that Motor Vehicles Insurance Trust Limited can validate an invalid notice or treat an earlier notice given outside the time limit as a relevant notice under s.54(6).

It is for these reasons that we do not agree with the National Court decision in Stanley Tendi v. Motor Vehicle Insurance (PNG) Trust [1996] PNGLR 329; especially where the trial Judge held inter alia that –

"3. However, a copy of a letter purporting to give notice outside the six months time limit, which is annexed to the Commissioner’s letter giving extension of time, both of which are forwarded to the Trust within the extended period is sufficient notice under s.54(6) of the Motor Vehicle (Third Party Insurance) Act Ch. 295."

With respect, that is giving a wider definition of notice which s.54(6) does not define. Besides, it is contrary to the spirit and intention of that particular provision, which the requirement to give notice is 6 months, or within such time as the Insurance Commissioner approves. We adopt the Court’s decision in Cathy Robert Kolum v. Motor Vehicle Insurance (PNG) Trust Limited, unreported, N1988, 27th October 2000, only in respect of that issue.

In all the circumstances, it is our opinion that no proper or valid notice was given to the Trust, and accordingly, we dismiss the appeal with costs.
____________________________________________________________________
Lawyer for Appellant		:	Pato Lawyers
Lawyer for Respondent	:	Mirupasi Lawyers