Pup v Motor Vehicles Insurance (PNG) Trust; John v Motor Vehicles Insurance (PNG) Trust [1996] PGNC 74; N1415 (15 March 1996)

N1415

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

(1) OS NO: 521/95

BETWEEN:

KOROWA PUP
- Applicant -

AND:

MOTOR VEHICLES INSURANCE (PNG) TRUST
- Respondent -

(2) OS NOS: 28 & 29 of 1996

BETWEEN:

BAGA JOHN & WALEP KOGLOP
- Applicants -

AND:

MOTOR VEHICLES INSURANCE (PNG) TRUST
- Respondent -

AND

IN THE MATTER OF Applications pursuant Section 54 (6) (b) of the Motor Vehicles (Third Party Insurance) Act Ch. No. 295 for extension of time to give notice of claim to the Motor Vehicle Insurance (PNG) Trust.

MOUNT HAGEN: INJIA, J.
1996: MARCH 8TH, 15TH

Practice - Notice of action - Extension of time for - Personal injuries - Motor Vehicles Accident - Damages Claim- Application to the Court for extension of time - Evidence - "Sufficient cause" - Courts’ discretion - Whether court bound by technical rules of evidence - Motor Vehicles (Third Party Insurance) Act (Ch. 295), S. 54 (6) (b).

Practice - Application to court to extend time to give notice of claim to Motor Vehicles Insurance (PNG) Trust - Whether application should be heard ex parte the Trust - Motor Vehicles (Third Party Insurance) act (Ch. 295), S.54 (6) (b).

Held:

(1) The Court is not bound to apply technical rules of evidence in considering an application under S.54(6)(b) of the Motor Vehicles (Third Party Insurance) Act (Ch. 295);

(2) The production of the subject Police Accident Report and Medical Report and any other relevant letters and information exchanged between the applicants or their lawyers and the Trust or the Insurance Commissioner, through the affidavit of either the applicant or his lawyer, is admissible evidence for purposes of an application to the Court under S.54(6)(b) of the Motor Vehicles (Third Party Insurance) Act (Ch. 295);

(3) The Motor Vehicles Insurance (PNG) Trust has a right to be heard in relation to an application under S.54(6)(b) of the Motor Vehicles (Third Party Insurance) Act (Ch. 295).

Cases Cited
Rundle -v- Motor Vehicles Insurance (PNG) Trust (1988) PNGLR 20
Michael Ivia -v- MVIT, N 1357 (1995).

P. Dowa for the Applicants (In OS No. 28 & 29 of 1996)
P. Kunai for the Applicant in OS No. 521 of 1995
P. Smith for the Respondent

15 March 1996

INJIA, J.: The applications in OS 28 & 29 of 1996 arise out of the same motor vehicles accident whereas OS 521 of 1995 relates to a different accident. They were heard separately on 8 March 1996, but because the objection taken by counsel for the respondent ("The Trust") in relation to the admissibility of certain documentary and other evidence in all three matters were similar, I intend to make a joint ruling. I will later proceed to determine each application separately.

Counsel for the respondent objected to the admissibility of the relevant Police Accident Report, the medical report and copies of correspondences exchanged between the respect lawyers and the Trust or the Commissioner ("the Commissioner") which were annexed to the affidavits of the applicants. He also objected to the admissibility of the Police Accident Report and the Medical Report annexed to the respective affidavit of the applicants or their lawyers. The basis of the objection is simple. In the case of the Police Accident Report, it contains hearsay information. In relation to the medical report, it can only be tendered through its author. In relation to the copies of correspondences exchanged between the lawyers and the Trust or the Insurance Commissioner, they cannot be tendered through the applicants but only through the lawyers themselves because the applicants are not the authors nor the addressees of those letters. He submits that the Court’s discretion under S.54 (6) (b) of the Motor Vehicles (Third Party Insurance Act Ch. No. 295 (hereinafter referred to or "the Act) is a judicial discretion which must be exercised on evidence which is properly admitted into evidence in accordance with the rules of evidence. Counsel for the applicants submit that the applicants should not be required to or the court should not require the applicants to strictly adhere to technical rules of evidence but inform itself in whatever manner it sees fit in order to arrive at its decision.

The Court is given a discretion by S.54 (6) (b). It is a judicial discretion which "like any other judicial discretion, must be exercised according to proper principles and taking into account all the circumstances of the case: Rundle -v- Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 20 at p.24. The Court has a wide discretion. The expression "sufficient cause" in S. 54 (6) is to be widely interpreted which will enable the court to take into account all the relevant circumstances of the case which includes the cause for the delay and any prejudice that may have been caused or may be caused to the Trust: Michael Iva -v- MVIT N 1357 (995). The onus is on the applicant to establish "sufficient cause" for the delay in giving notice to the Trust, on the civil standard of proof - on the balance of probabilities.

The applicant has a right to choose between applying for extension of time to the Commissioner or the Court. If he applies to the Commissioner and the Commissioner refuses the application or that the Commissioner grants the extension but the applicant fails to give notice of the claim to the Trust within the time extended by the Commissioner, he may re-apply afresh to the Court and the Court will hear and determine the application: Rundle -v- Motor Vehicles Insurance Trust, Supra. However, there are differences in the form and procedure by which the Commissioner and the Court will deal with the application.

In Rundles case, Amet J explained the nature of those procedures in the following terms (at P. 29-30):

"He has a right to choose which of them he should first make application to. If he should choose first to make application to the Insurance commissioner, which would be easier and less time consuming, he retains the right to make further application to the Court should that become necessary. The application to the Commissioner was intended to be a lot easier, not so difficult and time consuming than the longer more complex application necessary before a court with all the attendant legal formalities".

The presence of long complex formal legal and procedural rules of the court in relation to civil proceedings in place from time immemorial in this jurisdiction and elsewhere is acknowledged. Those rules of procedures are a necessary part of the Court’s process and they are there to be adhered to by litigants who come before the Court. The parties to these proceedings in particular the applicants, do not take issue with those procedures. Indeed they have complied with the rules pertaining to institution of the proceedings without difficulty.

The only issue is whether the court should require the parties, in particular the applicants, to strictly adhere to technical rules of evidence in producing relevant material or information to assist the court in determining the application. The Act, S.54(6) is silent on this aspect. In my view, the applicants should not be required to. Provided the material or information is relevant to the matter before the court, they should readily be admitted. And the subject Police Accident Report, medical report and copies of all letters or materials and information exchanged between the applicants and the Trust or the Commissioner, or between the applicant’s lawyer and the Trust or the Commissioner, or between the applicants and their lawyers are all relevant maters for the purpose of S.54(6)(b). Copies of these documents or letters or details of these information may be relayed to the court through he affidavit of the applicant or his lawyer and admitted into evidence without strict adherence to the technical rules of evidence. The reason for this is simple. The nature of the Court’s discretion, albeit its judicial character, is in substance no different to the Commissioner’s discretion which is purely administrative. The strictures of legal procedural requirements do not materially alter the nature of the discretion in either situation.

Therefore, the judicial discretion to be exercised by the court is relatively low and equivalent to the Commissioner’s administrative discretion. Of course the standard will vary depending on whether the application is made to the court at first instance (or it is made after the refusal by the Commissioner) or it is made after the time extended by the Commissioner had lapsed without the applicant giving notice of claim because in the latter situation, the applicant would have "a much harder roe to hoe" (Rundles’ case, per Amet J, p. 30) but even then, that does not mean that the applicant has to strictly adhere to technical rules of evidence.

The intended purpose of an application under S.54(6) either to the Commissioner or the Court is not to require the applicant to demonstrate a prima facie claim. It is to allow the applicant opportunity to satisfactorily explain why he failed to exercise his right to give notice of the claim within the required period. Whether or not the applicant has a good claim to pursue is not the primary consideration at this stage. For the Commission or the court to require the applicant to locate all the witnesses to the accident, the vehicles driver and owner to produce statements in affidavit or ordinary statement form, or to locate the policemen who compiled the Police Accident Report and the Doctor who examined and treated the applicant and require them produce further statements or affidavits identifying and verifying their respective reports is far too cumbersome a task for the applicant and certainly not the intended purpose of S.54(6).

For these reasons, I dismiss the objections raised by counsel for the respondent and admit all the parts of the evidence and documents objected to in the various affidavits.

There is one other objection raised by counsel for the applicant in OS 521 of 1995, Mr Kunai, which is that an application to the Court under S.54(6)(b) should strictly be made ex parte. He submits that such an application is similar to an application for leave for judicial review under Order 16 of the National Court Rules 1983 which is made ex parte. Again, there is no provision for this in S.54. On an application at first instance to the Commissioner, the usual practice is that the Trust is not heard on the application before the Commissioner makes its decision. It could be argued that by way of analogy the Trust should not have a right to be heard in an application before the Court.

In my view however, now that the matter has gone beyond the realm of the administrative area to the courts, the Trust may wish to be heard in the application. Again, there is no hard and fast rule on his. The Court needs to be informed of all relevant circumstances and it is only fair and proper that the Trust which no doubt has an interest in such proceedings is given notice of the application and allowed, as a matter of right, to be heard on the application. For these reasons, I dismiss the objection raised by Mr Kunai and allow the Trust to be represented in these proceedings.

Having decide don the objections, I now proceed to determine each application. An applicant must show sufficient reasons for the delay in giving notice within the 6 months time or with the time extended by the Commissioner or the Court as the case may be. Have the applicants in each case satisfied the court to that effect?

OS 521 of 1995: Re Korowa Pup

The motor vehicle accident in which the applicant sustained injuries occurred on 14 September 1993. After some unsuccessful attempt to obtain the legal services of the Public Solicitor, the applicant engaged his present lawyer to pursue the claim. By this time, it was some six months after the time limit of six months had expired. On 30 November 1993, the plaintiff’s lawyer wrote to the Commissioner seeking extension of time. The Commissioner received this letter and granted the extension and notified the applicant’s lawyer by letter dated 15 December 1994. The applicant’s lawyer, supported by their filing clerk Hotley Pora, say they never received that letter. In ignorance of that letter, the applicant’s lawyer wrote several letters to the Commission seeking an answer to their letter of 30 November 1994. On 3 November 1995, the Commissioner wrote back referring to its letter of 15 December 1994 and advised the applicant’s lawyer to apply to the court for another extension. On 28 November 9195, the applicant’s lawyer filed this application.

Meanwhile the respondent’s Claims Manager, Eric Vegoa, says in his affidavit that it is almost three years since the accident occurred and they cannot locate the subject motor vehicle to insect its mechanical condition. In the police accident report, the accident is attributed bad mechanical fault. Mr Smith for the respondent submits that the respondent’s position has been prejudiced by the delay and the extension sought should be refused.

I am satisfied that sufficient cause has been shown for the delay in giving notice within the time extended by the Commissioner. I am satisfied that the applicant’s lawyers were keen on pursuing the claim and were under a genuine misapprehension that the Commissioner had not yet made its decision in relation to their request. And once the truth came to their knowledge, they promptly filed proceedings in this court.

In so far as the likely prejudice to be suffered by the Trust is concerned, I agree that it is some three years back since the accident occurred.

However, as I have said, that delay has been satisfactorily explained by the applicant. But that does not solve the respondent’s problem. Nevertheless, the identity of the subject vehicle, its driver, and owner and all the necessary details are provided in the Police Accident Report and the respondent should not have much difficulty tracing the whereabouts of the vehicle and its owner. And even though the police declined to lay criminal charges against the driver or the owner, the Trust may well be found liable in a civil action for damages in which the standard of proof is much lesser than the criminal standard.

For these reasons, I grant the extension sought. I grant the Applicant 21 days to give notice of his claim to the Trust as from today.

Each party will bear their own costs.

OS 28 & 29 of 1996 Re Paka John and Walep Kolgup

These proceedings arise from OS No. 505 of 1995 Re Walep Kolgup & Paka John where His Honour Woods J requested the applicants to file separate proceedings following similar objections raised by counsel for the respondent as to the admissibility of certain documents. Now that I have ruled on those objections, the outcome of these proceedings will effectively terminate those proceedings in OS 505 of 1995.

The applicants were passengers in the subject motor vehicle, a Mazda 15 seater bus, Reg. No. P1007N which was involved in an accident at Kultipina near Paiakona on the Mount Hagen/Wabag road on 22 February 1995. The accident was reported to Mount Hagen traffic Police which surveyed the scene, interviewed the driver and passengers and filed a Police Accident Report on 22 March 1995. According to the Police Accident Report, the applicant Walep Kolgup is listed as ‘WAGAP KURUP’ under the "Passenger Casualties" section as well as the "Witness" section and the applicant Baga John is listed as "Paka John" under the "Witnesses" Section only. Both applicants say they received injuries in the accident and were taken to the Mount Hagen General Hospital where they received medical treatment. A copy of their respective medical report is annexed to their respective affidavits.

They say they are illiterate villagers and were not aware of the time limit of 6 months. They engaged their lawyer, Paulus M. Dowa Lawyers between 28th-30th August 1995. Mr Dowa immediately wrote to the commissioner seeking an extension of time under S.54(6)(9) of the Act. On 11 October 1995, the commissioner refused to grant the extension sought on their grounds that both applicants names did not appear on the casualty list whether a passenger or pedestrian whereas their names only appeared as witnesses to the accident.

Mr Dowa for the applicants submits that the Commissioner was wrong in coming to the conclusion because in the case of Baga John, his name appears on the Passenger Casualty section as well. In the case of Walep Koglup’s, he submits that even though his name appears on the "Witness" section only, he h ad clearly established that he had sustained personal injuries in the subject accident by providing his medical report.

Mr Smith relies on the affidavit of the Trusts’ Claims Manager, Paul Butler, sworn on 15 December 1995 and submits that the Trust will be severely prejudiced in that they cannot locate the driver and the owner of the subject vehicle despite attempts to do so by two letters.

This court is not here to review the decision of the Commissioner because these applications are made afresh. Nevertheless, the court may take into account the reasons for refusal as a relevant factor in exercising its discretion. I am satisfied with the explanation given by the applicants as to the delay. I am also of the view that the irregularities in the Police Accident Report is only in respect of Walep Kolgup but he has provided a medical report which relates him to the date and time of the accident. That is sufficient for the purposes of these proceedings.

As for the likely prejudice which may be suffered by the Trust, its only one year since the accident and the vehicle is a public motor vehicle. A more meaningful effort than writing letters to the driver and owner of the vehicle on the address shown on the accident report may result in the identification of the vehicle’s driver and owner and location of the subject motor vehicle.

For these reasons, I grant the extension sought. I grant the applicants 21 days from today to give notice of the claim to the Trust.

Each party shall bear their own costs of these proceedings.

******************************

Lawyer for the Applicants: PAULUS M. DOWA Lawyers; KUNAI & Co. Lawyers
Lawyer for the Respondent: YOUNG & WILLIAMS