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Pickthall v Motor Vehicles Insurance (PNG) Trust [1991] PNGLR 113 (11 April 1991)

Papua New Guinea Law Reports - 1991

[1991] PNGLR 113 - Stephen Charles Pickthall v MVIT 

[1991] PNGLR 113

N971

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PICKTHALL

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Waigani

Brown J

5 March 1991

11 April 1991

PRACTICE AND PROCEDURE - Leave to join party - Proceedings discontinued - Damages claim - Motor vehicle accident - Proceedings against Trust only permitted - Claim for excess against owner to be specifically pleaded - Effect of discontinuance - Motor Vehicles (Third Party Insurance) Act (Ch No 295), s 54(5) - National Court Rules, O 5, r 3; O 8, r 66.

The Motor Vehicles (Third Party Insurance) Act (Ch No 295), s 54, provides that claims for damages for personal injuries shall be made against the Motor Vehicles Insurance (PNG) Trust only and s 54(5) provides:

“Where an award of damages is made by a Court in respect of a claim under Subsection (1) which exceeds the amount of liability of the Trust specified in Section 49(2)(a), the Court shall, at the time it makes the award, determine against whom (if anyone) the excess shall be awarded and that award shall operate as a judgment against that person for all purposes.”

The National Court Rules, O 3, r 5, permits discontinuance of proceedings and O 8, r 66, provides:

“A discontinuance under this Division as to any cause of action shall not, subject to the terms of any leave to discontinue, be a defence to proceedings for the same, or substantially the same, cause of action.”

A plaintiff in proceedings against the Trust accepted the payment into court of the maximum amount payable by the Trust and filed a notice of discontinuance of proceedings against the Trust. On an application for leave to file an amended statement of claim in the discontinued proceedings against the Trust for the purpose of recovering damages in excess of the maximum allowable from the owner of the motor vehicle involved,

Held

Leave should be refused:

(a)      on claims for damages under the Motor Vehicles (Third Party Insurance) Act, the plaintiff’s only entitlement to damages in excess of the maximum allowable under s 49 is to plead specifically the excess allowed by s 54(5) and to seek an award of the Court;

(b)      the joinder of parties “in any proceedings” under O 5, r 2 of the National Court Rules is not available once proceedings are discontinued;

(c)      proceedings to which O 8, r 66 of the National Court Rules applies must be fresh proceedings.

Cases Cited

Caledonian Collieries Ltd v Fenwick (1959) 76 WN (NSW) 482.

Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251.

Brambles Constructions Pty Ltd v Helmers [1966] HCA 3; (1966) 114 CLR 213.

Notice of Motion

This was a notice of motion whereby the plaintiff to discontinued proceedings sought leave to file an amended statement of claim in the discontinued proceedings.

Counsel

J Bray, for the applicant.

R Thompson, for the respondent.

Cur adv vult

11 April 1991

BROWN J: The plaintiff/applicant claimed an unspecified amount of damages for personal injuries suffered in a motor vehicle accident which happened on 5 December 1983.

By notice of acceptance dated 15 November 1989, the plaintiff took moneys paid into court by the defendant and on 30 October 1990 filed a notice of discontinuance of these proceedings. The plaintiff now seeks, by notice of motion, leave to file an amended statement of claim in these discontinued proceedings, an amended statement of claim which in effect seeks to now join and proceed against the owner of the motor vehicle allegedly responsible for these injuries, Lae Plumbing Pty Ltd. Such claim is solely related to damages found by this Court which would exceed K100,000, the maximum for which the Trust can be held liable by legislation. Notice of the plaintiff’s intention to seek damages beyond that statutory maximum, was given both to Lae Plumbing Pty Ltd and the Trust prior to the payment into Court.

The plaintiff acknowledges that the payment in was the maximum for which the Trust could be held liable (Motor Vehicles (Third Party Insurance) Act (Ch No 295), s 49) and that as against the Trust, proceedings were stayed. In fact by the notice of 30 October 1990 they were discontinued.

By virtue of O 8, r 66 of the National Court Rules, such discontinuance shall not operate as a defence to proceedings for the same, or substantially the same, cause of action. Such proceedings however must be fresh proceedings, and as Miss Thompson, for the Trust, says any fresh proceedings are statute barred. These proceedings are no longer on foot. They have been discontinued, to say otherwise would be to make a fiction of the notice.

Mr Bray says they have not been discontinued against Lae Plumbing Pty Ltd, for instance.

That company has not been sued nor can it be under the provisions of the Motor Vehicles (Third Party Insurance) Act. Section 54(1) is quite clear. Separate pleadings so couched to include the excess claimed beyond that statutory maximum may be contemplated but nowhere in these discontinued proceedings does the plaintiff particularise a claim beyond that maximum nor seek to nominate anyone against whom an award of damages contemplated by s 54(5) is sought, from this Court (see Caledonian Collieries Ltd v Fenwick (1959) 76 WN (NSW) 482) so that in view of the course these proceedings have taken there may of necessity be fresh process.

Mr Bray relies strongly on Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251 at 291 where the Supreme Court says:

“We would firstly say that we believe certain provisions of the Act are inadequately drafted. Mr Griffin claims that the words `as though they were a party to the action’ in s 55 by necessary implication must mean that an owner who seeks to be represented under that section is not a party. We do not agree. Under s 54(5), where a claim is of such magnitude that an award of damages in excess of the amount of liability of the Trust, specified in s 49(2)(a) may be made the excess can be awarded against an owner and it operates as a judgment,”

and the judgment goes on to say:

“Why the Act does not provide that an owner in such a case is a defendant we do not really understand.”

The Supreme Court recognises perhaps an anomaly that at some stages in the proceedings when it becomes apparent to the court that an award of damages is likely under s 54(5) an order, on natural justice principles, should be made under O 3, r 5, joining an owner for instance.

But I am also of the view that such a claim should be specifically pleaded in the originating action.

The defendant quite rightly says that the plaintiff’s only entitlement to moneys in excess of K100,000 in motor vehicle accident cases is to plead the excess allowed by s 54(5) and to seek the court’s award.

Such a claim must specifically plead the statute. Whether the various notices of intent contained in the plaintiff solicitor’s letters would now permit a further claim by this plaintiff I need not decide in this cause. But I note the High Court of Australia’s comments in Brambles Constructions Pty Ltd v Helmers [1966] HCA 3; (1966) 114 CLR 213.

The plaintiff further relies on O 5, r 2 of the National Court Rules giving as it does a method of joining parties after the commencement of proceedings. But such procedure is no longer available once proceedings are discontinued.

I am satisfied the proceedings in which the plaintiff seeks leave to amend the statement of claim have been discontinued, he must start again if possible.

I refuse the motion.

Costs shall follow the event.

The respondent shall have his costs of the motion.

Motion refused

Lawyers for the applicant/plaintiff: Kirkes.

Lawyers for the respondent/defendant: Young & Williams.