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Motor Vehicles Insurance (PNG) Trust v Menda [1994] PNGLR 268 (15 September 1994)

PNG Law Reports 1994

[1994] PNGLR 268 - MVIT v Tupia Menda 

[1994] PNGLR 268

N1265

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MOTOR VEHICLES INSURANCE (PNG) TRUST

V

TUPIA MENDA

Waigani

Kapi DCJ

15 August 1994

15 September 1994

PRACTICE AND PROCEDURE - Damages claim - Notice to the Commissioner of Insurance - Condition precedent - Application for extension of time - Which court has jurisdiction.

Facts

The respondent sued the MVIT pursuant to the provisions of the Motor Vehicles (Third Party Insurance) Act for damages sustained in a motor vehicle accident. At the hearing, the MVIT raised a preliminary point that the proceedings should be dismissed as no notice of an intention to make a claim was given to the Commissioner. The District Court which heard the matter concluded that notice of intention was a condition precedent to a claim under the Act, and went on to extend the time for the respondent to give notice.

The appellant argued that the Court should have dismissed the proceedings. It also argued that the jurisdiction to extend time to make a claim was in the National Court.

Held

1.       Notice to the Commissioner of Insurance of an intention to make a claim is a condition precedent to commencing an action, applying Rundle v MVIT [1988] PNGLR 20.

2.       When the claimant fails to give the required notice of intention, the correct procedure is to dismiss the action. The Court has no jurisdiction to extend the time for giving notice in that action.

3.       The District Court has power to extend the time in which to give notice if the claim is for an amount of K10,000 or under. A separate application for extension to time must be made to the Court.

Cases Cited

Rundle v MVIT [1988] PNGLR 20.

Counsel

V A Mirupasi, for the appellant.

No appearance by the respondent.

15 September 1994

KAPI DCJ:  This is an appeal from a decision of the District Court sitting in Mendi, Southern Highlands.

The respondent sued the appellant for damages arising out of a motor vehicle accident, pursuant to the provisions of Motor Vehicles (Third Party Insurance) Act Ch 295.

At the hearing of the matter, the insurance trust raised a preliminary point; namely that the proceedings should have been dismissed on the basis that the respondent failed to give notice of intention to make a claim to the Commissioner of Insurance, pursuant to s 54(6) of the Act.

The District Court concluded that the respondent failed to give such notice. The Supreme Court ruled in Rundle v MVIT [1988] PNGLR 20 that notice of intention to make a claim is a condition precedent to a claim made under the Act. Having reached this conclusion, the District Court then went on and considered whether it had jurisdiction to extend time in which to give notice to the Commissioner. The Court concluded that it had the jurisdiction and ruled that the proceedings should not be dismissed. It adjourned the matter to a date for further hearing.

The appellant appealed against the decision and made two basic submissions.

Firstly, having come to the conclusion that no notice of intention to make a claim was given to the Commissioner, the District Court should have dismissed the proceedings.

Secondly, the District Court had no jurisdiction to consider an application to extend time in which to give notice to the Commissioner. According to the appellant, the power to extend time is to be found in the National Court.

As to the first submission, I find that the District Court fell into error. When the Court concluded that no notice of intention to make a claim was given, as a matter of law there was no cause of action instituted in the proceedings before it. The District Court was bound by the decision of the Supreme Court in Rundle v MVIT to dismiss the proceedings. By not dismissing and adjourning the proceedings, the Court fell into error. I would allow the appeal on this ground and dismiss the proceedings now before the District Court.

As to the question of whether or not the District Court has power to extend time in which to give notice to the Commissioner under s 54(6) of the Act, in my view the key words are "the Court before which the action is instituted". The Act has not defined the word "Court". In my opinion, the word "Court" is to be interpreted within the words of the section that qualify it. The claim under the Act may be made by a person. As to which court has jurisdiction, this depends on the amount of damages that is claimed. If the claim is for K10,000 or under, the District Court has power to deal with the claim. However, for a claim beyond K10,000, the National Court has unlimited jurisdiction to deal with such a claim.

It follows from this reasoning that, in a case where the claim is under K10,000, a person has a choice of bringing an action either in the District Court or in the National Court. In this case, the respondent brought the action in the District Court. Therefore, in my view, the court for the purposes of s 54(6) would be the District Court. I find that the District Court did not fall into error as to the question of jurisdiction.

In this case, the District Court should have dismissed the proceedings then before it and allowed the respondent to make an application for extension of time in which to give notice under the Act in order to institute the proceedings in the District Court in the proper manner. The Court fell into error in simply adjourning the proceedings to a later date. I would allow the appeal, dismiss the proceedings now before the District Court, and indicate that the respondent is entitled to make an application for extension of time in which to give notice to the Commissioner under the Act. I further order that the respondent pays the cost of the appellant.

Lawyers for the appellant: Nii and Mirupasi.

Lawyers for the respondent: Mathew Tamutai.