Gene v Motor Vehicles Insurance (PNG) Trust [1997] PGNC 99; N1604 (22 August 1997)

Unreported National Court Decisions

N1604

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 291 OF 1997
SALOME GENE - APPLICANT
V
MOTOR VEHICLES INSURANCE (PNG) TRUST - RESPONDENT

Goroka

Sawong J
8 August 1997
22 August 1997

Cases Cited

Rundle v The Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 20

Counsel

B Tabai for the Applicant

R Thompson for the Respondent

22 August 1997

SAWONG J: This was an application by the applicant for an extension of time within which to notify the Trust of her intention to make a claim against the said Trust.

The facts are not really in dispute. The applicant says she is the widow of one Gene Robert Kamane. He was allegedly killed in a motor vehicle accident that occurred on 22 July 1995.

As a result of his death, the Trust paid the sum of K5,000.00, being the amount due under the provisions of the Basic Protection Compensation Act.

This money was not paid to the applicant as the widow of the deceased. It was however, paid to the deceased’s mother, uncle and brother. I will say a little more on this aspect later on in my judgement.

The applicant says in her evidence that she is the widow of the deceased. It is however, not very clear from her evidence whether she was married to the deceased at the time of his death, but I infer that she was. The essence of her evidence is that soon after the incident, she collected the Police Accident Report and the Medical Report. She did this in the month of September 1995. In August 1995, she saw and gave instructions to a lawyer in the Public Solicitor’s Office in Goroka to lodge her claim. She says she followed up her claim a number of times during 1995 and the first part of 1996. However, no action was taken by the Public Solicitor and in July 1996, she instructed her current lawyers.

The evidence shows that the current lawyers acted promptly and diligently on her behalf. These lawyers wrote to the Insurance Commissioner seeking his approval for extension of time. The Commissioner responded and granted the extension sought. Unfortunately, the letter containing the approval of extension was never received by the applicant’s lawyers.

They made further enquires and send further correspondences to the Commissioner. The Commissioner sent a copy of his earlier correspondence to the lawyers, but when that was received, it was discovered that the period of extension granted had expired. Thus this application.

It is trite law that the applicant bears the onus to show the court several factors before the Court can exercise its discretion in favour of an applicant. The principles applicable are set out in Rundle v The Motor Vehicles Insurance (PNG) Trust [1988] PNGLR20.

Such an applicant must give reasonable explanation as to why he or she did not give the requisite notice within the prescribed period. When the period has expired, the applicant must act promptly in seeking an extension of time within which to give the requisite notice, and it must not be prejudicial to the defendants interests. It was also equally clear that the Court’s discretion to grant an extension is a discretionary power, which must be exercised according to proper principles and taking into consideration all the circumstances of the case.

It has been submitted by Mr Tabai, that the applicant has discharged the onus upon her.

She has given a reasonable explanation of what she did, and why the time was allowed to lapse. Furthermore, her current lawyers acted promptly and diligently upon receiving instructions and realising that the time had expired.

The defendant’s argument, as I understood is this. Firstly, Ms Thompson has submitted that because of the payment of K5,000.00 to the other relatives of the deceased, the Defendant would be prejudice. The prejudice arises because in the event the applicant succeeds in her action against the Defendant, that amount cannot be recovered from her as she did not receive it. In any case, it would be difficult to recover the money from the relatives. Consequently, the Defendant would be prejudiced.

The second leg of her argument is that the applicant did not acted diligently and followed up her case with the lawyers from the Public Solicitors Office. She also submitted that there was no independent affidavit from the Public Solicitor, (more accurately, the lawyer from that office who received the instructions from the applicant) and that there was no explanation.

I accept that there is no independent evidence from the Public Solicitors Office to support her evidence in that regard. But in my view, that is not fatal to her claim, because I accept her evidence that she did in fact saw them and instructed them.

Whilst I accept that the Defendant would be prejudiced, in that it might not recoup the money it has paid to the other relatives, I consider that at this preliminary stages, that point ought not to be used as a grounds to refuse her the extension she seeks.

Whether she will succeed in her action against the defendants is purely speculatively at this juncture, because she will need to prove her case. In these circumstances, I consider that it would be just to grant her the extension of time.

I am reinforced in that conclusion, because of the peculiar circumstances which gave rise to this application. By that I mean that the Insurance Commissioner had given an approval, which approval was not received until the extended period had expired.

In all the circumstances, I would in the exercise of my discretion grant the extension sought.

For those reasons, I order that the Plaintiff be allowed fourteen (14) days from today to give Notice of Intention to make a Claim to the Trust under S54 (6) of the Act.

In the circumstances, I order that each party bear their own costs.

Lawyers for the Plaintiff: Pryke & Co

Lawyers for the Defendant: Young & Williams