SC1100

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA 14 OF 2010

BETWEEN:

JOE KEROWA
Appellant

AND:

MOTOR VEHICLES INSURANCE LIMITED
Respondent

Waigani: Kirriwom, Gabi & Hartshorn JJ
2010: 28th June,
: 18th November

APPEAL – estoppel – s.54 (6) Motor Vehicles (Third Party Insurance) Act – whether estoppel able to be invoked in respect of a statutory condition precedent

Facts:

The Appellant, Mr. Joe Kerowa, appeals against the dismissal of his National Court proceeding against the Defendant, Motor Vehicles Insurance Ltd (MVIL). The proceeding sought damages for personal injuries sustained in a motor vehicle accident. The proceeding was dismissed as it was found that the Appellant had failed to provide to MVIL the requisite notice of intention to make a claim pursuant to s. 54 (6) Motor Vehicles (Third Party Insurance) Act. 

Held:
 An estoppel cannot be invoked in respect of a statutory condition precedent. The appeal is dismissed. The Appellant shall pay the Respondent's costs of and incidental to this appeal.

Cases cited: 
Papua New Guinea Cases

Graham Rundle v. MVIT [1988] PNGLR 20 
Paul Kumba v. Motor Vehicles Insurance (PNG) Trust (2001) N2132
MVIL v. Sanage Kuri (2006) SC825 

Overseas Cases

Bataman v. Hunt (1904) 2 KB 530 
Hughes v. Metropolitan Railway Co. (1877) 2 App Cas 439 
Kosmar Villa Holdings Plc v. Trustees of Syndicate 1243 [2008] EWCA Civ 147
Longman v. Bath Electric Trams (1905) 1 Ch 646
Pickard v. Sears (1837) 6 Ad & E 469
Wylie v. Wake [2000] EWCA Civ 349 

Counsel:
 
Mr. P. M. Dowa, for the Appellant
Mr. K. J. Peri, for the Respondent

18th November, 2010

1. BY THE COURT: The Appellant, Mr. Joe Kerowa, appeals against the dismissal of his National Court proceeding against the Defendant, Motor Vehicles Insurance Ltd (MVIL). The proceeding sought damages for personal injuries sustained in a motor vehicle accident. The proceeding was dismissed as it was found that the Appellant had failed to provide to MVIL the requisite notice of intention to make a claim pursuant to s. 54 (6) Motor Vehicles (Third Party Insurance) Act (MVIL Act), (Notice).

2. The Appellant relies upon 5 grounds of appeal. All of the grounds concern whether the trial Judge erred in finding that MVIL was not estopped from raising the issue of whether the Appellant had given Notice in time.

3. Section 54 (6) MVIL Act is as follows: 

"(6) No action to enforce any claim under this section lies against the successor company unless notice of intention to make a claim is given by the claimant to the successor company 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."

Brief facts

4. It is common ground that:

a) the Appellant lodged his Notice with MVIL on 22nd December 2004, which was 6 days after the further period of time allowed by the Insurance Commissioner.

b) by letter dated 7th January 2005 MVIL informed the Appellant that his Notice had been given outside of the period of time allowed by the Insurance Commissioner and that liability was denied.

c) on 16th August 2006 MVIL wrote to the Appellant on a without prejudice basis and offered to settle the claim for K10,000.

d) on 4th October 2006 the Appellant commenced District Court proceedings seeking leave to give his Notice out of time pursuant to s. 54 (6) (b) MVIL Act.

e) on 24th October 2006 MVIL wrote to the Appellant's lawyers and advised that the Appellant gave notice within time after approval from the Insurance Commissioner, that MVIL had been liaising directly with the Appellant and that a  settlement offer had been made but that no response had been received. MVIL further asked the Appellant's lawyers to discontinue proceedings as there was no basis for the application.

f) on 21st July 2008 the District Court proceeding was dismissed for want of prosecution.

g) on 18th June 2008 the National Court proceeding was filed by the Appellant. MVIL pleads in its defence that the Appellant commenced the proceeding without satisfying the condition precedent required by s. 54 (6) MVIL Act. 

Estoppel

5. The Appellant's submission that MVIL is estopped from raising the issue of whether the Appellant had given Notice in time, only has a likelihood of succeeding if the doctrine of estoppel is able to be invoked in respect of a condition precedent that is prescribed by a statute, such as that prescribed by s. 54 (6) MVIL Act as to Notice.

6. That s. 54 (6) MVIL Act does prescribe a condition precedent as to Notice, has been so held by this court in Graham Rundle v. MVIT [1988] PNGLR 20 and MVIL v. Sanage Kuri (2006) SC825.

7. The cases cited by the Appellant in support of his estoppel submission, Bataman v. Hunt (1904) 2 KB 530, Longman v. Bath Electric Trams (1905) 1 Ch 646 and Pickard v. Sears (1837) 6 Ad & E 469 are not on point as to whether an estoppel can be invoked in respect of a statutory condition precedent.

8. In Paul Kumba v. Motor Vehicles Insurance (PNG) Trust (2001) N2132, Davani J. quoted the following passage from Halsbury's Laws of England (Fourth Edition) Volume 16 paragraph 926 which in our respectful view, is on point:

"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 court's statutory jurisdiction under an enactment which precludes the parties from contracting out of the provisions."

9. The proposition that an estoppel cannot be invoked in respect of a statutory condition precedent has further support from the decision of the English and Wales Court of Appeal in Wylie v. Wake [2000] EWCA Civ 349. That case concerned the giving of a notice of proceedings under s.152 (1) (a) Road Traffic Act 1988. The Court stated amongst others, that s. 152 (1) (a) is not a statutory defence but is a condition precedent to liability and as such, what is being considered is, "a state of affairs which by statute had to exist before the relevant insurers became liable to pay." The Court held that in such circumstances, no estoppel could arise.

10. That the above proposition is correct in our view, is reinforced when the principle of equitable estoppel, associated with the leading case of Hughes v. Metropolitan Railway Co. (1877) 2 App Cas 439, as described in Kosmar Villa Holdings Plc v. Trustees of Syndicate 1243 [2008] EWCA Civ 147 is considered in relation to the position of MVIL. The principle is:

"… where a person, having legal rights against another, unequivocally represents (by words or conduct) that he does not intend to enforce those legal rights; if in such circumstances the other party acts, or desists from acting, in reliance upon the representation, with the effect that it would be inequitable for the representor thereafter to enforce his legal rights inconsistently with his representation, he will to that extent be precluded from doing so."

11. When MVIL's position is considered in light of the above principle, MVIL only becomes liable if a certain state of affairs by statute exists. MVIL is not given the ability to waive the requirements of the MVIL Act by that Act, and in that sense does not have legal rights against a person who gives Notice. Consequently, MVIL does not come within the parameters of the above principle. 

12. After considering the submissions of counsel and the various authorities referred to, we are of the view that an estoppel cannot be invoked in respect of a statutory condition precedent. Consequently, the Appellant is not able to succeed. Given this finding it is not necessary to consider the other submissions of counsel.

13. The appeal is dismissed. The Appellant shall pay the Respondent's costs of and incidental to this appeal.

____________________________________________________________
Paulus M Dowa Lawyers: Lawyers for the Appellant 
Warner Shand Lawyers: Lawyers for the Respondent