Konga v Motor Vehicles Insurance (PNG) Trust [1995] PGNC 27; N1349 (1 August 1995)

Unreported National Court Decisions

N1349

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 128 OF 1995
MICHAEL KONGA - Plaintiff
V
MOTOR VEHICLES INSURANCE (PNG) TRUST - Defendant

Mount Hagen

Woods J
16 June 1995
1 August 1995

PRACTICE - application to set aside default judgement - irregular judgement - no Notice of Action - non-compliance with requirements of legislation - role and power of Trust to act.

Cases Cited:

Dick v MVIT [1993] PNGLR 443

Rundle v MVIT [1988] PNGLR 20

Counsel:

P Kopunye for the Plaintiff

A Kandakasi for the Defendant

1 August 1995

WOODS J: This is an application by the Defendant to set aside a Default Judgement ordered by the Court on 26 April 1995. The applicais initially maly made on the grounds that the judgement so ordered was irregular because tquirement of Notice, a prer prerequisite to the right of action has not been complied with.

The circumstances of the default judgment are that a writ was filed in March 1995 seeking damages for personal injuries received in a vehicle accident in December 1991. The writ was served on tfi office of the Defendant on 17 March 1995. Then in default oftice of e of intention to defend or a Defence, application was made and granted on 26 April for a judgement by default for damages to be assessed. I mightthat g waited for ofor over 3 years since the accident the the action of the Plaintiff in rushing to the default judgement in 4 week rather precipitous.

The Defendant promptly filed a Notice of Intention to Defend annd and this Motion in May. The writ ainst the Motor Vtor Vehicles Insurance (PNG) Trust by virtue of the provisions of Section 54 of the Motor Vehicles (Third Partyrance Act which abrogated the normal rule of proceeding against the owner or driver or negl negligent party in Tort, but provides in Section 54 that in certain circumstances claims arising out of the death or personal injury caused by or arising out of the use of a motor vehicle should be made against the Trust and not against the owner or driver. Ts an exception to the nore normal rule of law that claims for damages should be made against the party who caused the injury or damages.

The section setshow such claims are to be made and subsection (6) clearly prly places limitations on such claims:

“Section 54 (6) 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 6 months after the occurrence out of which the claim arose, or within such further period as:

(a) ـ&#1he Come Commissioissioner; or

(b) &#160 couet before which thch the action is instituted, on sufficient cause being shown, allows.”

Therefore unless a claimant clearly comes within secti of tt then be ght to claim against the Trus Trust andt and any any purpopurported proceeding or right must be unenforceable.

In this case now the plaintiff is alleged to have been injured in a motor vehicle accident in December 1991. It is claimed by the Trust and this is not disputed by the lawyer for the plaintiff, that no Notice was given to the Trust in the following 6 months, so thre initially there can be no action against the Trust. There waetter sent to theo theo the Trust in September 1992 purporting to be notice of intention to make a claim and this letter did make reference to the need to seek an extension of time from the Coioner. Of course apar apart froingiving the Trust the opportunity to commence its investigation in case an extension was granted this letter can mean nothing here was no l no liability or obligation on the Trust to consider the claim being as it is a Corporation set up under legislation and dealing with what are in effect public monies and therefore accountable under the Act to only consider claims properly lodged under Section 54. In due cothe lawyer for thor the plaintiff did receive approval from the Insurance Commissioner to proceed with a claim within 28 days of the date of the approval letter. However no Notice of intn to make a claim was made made in that 28 days. It has been made qulear thar that such an approval does not have the effect ofving any earlier purported notice, it is merely an approval of an extension of time in whic which to give notice of intention to makeaim. This was considensidered in the case Rundle v MVIT [1988] PNGLR 20 and as Amet J stated in that case, “In any event what is more important is that the Commissioner granted a 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 Noof any kind was serveserved on the Trust within the further extended time.“ I adopt the pples that thet these words highlights namely that an approval of an extension of time is wh says, an approval of an exan extension of time in which to send a notice of claim, but not a retrospective approval of any communication that may have been made previously but which did not comply with Section 54 (6). There wasefore no notice oice of intention to make a claim which complies with the requirements of Section 54 of the Act. As was stated by the Supreme Court in Rundle&#8 case above referred to, “Notice of intention to make make a claim is a condition precedent to the institution or commencement of any action to enforce a claim”.

There have been a number of cases that have come before the Court since Rundle’s case where the Court has considered the requirements of notice of intended action and has been asked to exercise its discretion to extend time. In v MVIT [1993] PNGLR 443R 443 the Insurance Commissioner had granted an extension of time and there had been no notice of intended action made to the Trust within that extended time. It was maear in that case case that a later approval for an extension of time does not revive an earlier invalid notice. There has thus ample warniwarning to lawye Cases of the dangers of disregarding the requirements of n of notice in section 54.

As I have said above the right to proceednst the Trust and not directly against the owner or driver iver or other negligent party is an abrogation of the normal position at law. The right is a right gby S by Statute so the parameters of that right must be found within the legislation and section 54 is quite specific. The Trust is in effect dealing with the accumulated funds of thousands of motor vehicle owners and this must be akin to public monies so the Trust is itself bound by the legislation to only deal with such monies strictly in accordance with the parameters of the legislation.

It is submitted that the Trust knew about the claim by virtue of the earlier purported notice and had been communicating accordingly. This mayo but that would buld be expected when the Trust knew it could still be faced by a claim out of time with the approval of the Commissioner or the Court. The Trlways has an obligatligatioall premium payers and the the public to be prepared and to do its own research to more easily resolve matters once the statutory rements are met. As I have said tust can onan only act act in accordance with the Act and therefore there must first be compliance with the Act by claimants. S mere fact that it has coas conducted correspondence and sought details before a proper claim has been lodged cannot override the strict requirements of the legislation.

For the above reasons the writ itself has no basis in law and must be irregular. Therefore I order that the default judgement of 26 April 199set aside.&ide. Whilst I may inct have foue found that there is no basis for the writ I will not strike the whole proceedings out but I give the Defe 21 dn whi file aile and serve its Defence.

Lawyer fyer for the Plaintiff: P Kopunye

La

Lawyer for the Defendant: Young & Williams