Motor Vehicles Insurance (PNG) Trust v Viel Kampu [1998] PGSC 49; SC587 (29 October 1998)

Unreported Supreme Court Decisions

SC587

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA 32 OF 1996
BETWEEN: MOTOR VEHICLES INSURANCE (PNG) TRUST
APPELLANT
AND: VIEL KAMPU
RESPONDENT

Waigani

Kapi DCJ Sheehan Jalina JJ
29 October 1998

CLAIM under MVI (PNG) Trust Act Chpt 295 – appeals against grant of leave for extension of time to give notice of claim – application to be determined judicially.

Counsel

Mr A. Kandakasi for the Appellant

Mr P. Kopunye for the Respondent

KAPI DCJ SHEEHAN JALINA JJ: This is an appeal against the decision of the National Court made at Mt. Hagen on 19^th April 1996 which allowed the Respondent an extension of time to give notice of claim to the Appellant Trust under s. 54(6)(b) of the Motor Vehicles Insurance (PNG) Trust chpt. 295. The grounds of the appeal are set out below.

“(a) His Honour erred in law in admitting into evidence documentation .... Which was not in proper admissible form.

(b) His Honour erred in law in following ......case decision ... decided on wrong principles and .....

(c) His Honour erred in holding ... that the Respondent’s lawyers had the locus standi to make the application on behalf of the Respondent who had not given Instructions to make that application.

(d) The learned trial Judge erred in finding that the Respondent showed “sufficient cause” in not giving the Appellant notice of his intention to make a claim against the Respondent, when there was no or insufficient basis to arrive at that finding.

(e) His Honour erred in both fact and in law in failing to find that the Respondent’s failure to promptly notify the Appellant of his intention to make a claim against it, prejudiced the Respondent’s position in relation to such a claim ....

(f) His Honour erred in finding that the Respondent was one and the same person as Piel Kambu when there was no or insufficient evidence to support that finding.

(g) His Honour erred in law and in face in holding that the relevant time factor to determine the period of delay commences from the date of the Insurance Commissioner’s refusal letter.

The first two assert that an application to the Court for an extension of time constitutes a formal application for the Court’s intervention, not merely an administrative function exercised by the Court as an alternative to that of Insurance Commissioner. We are satisfied that that is so. Section 54(6) of the Acts provides:

“(6) No action to enforce any claim under this section lies against the Trust unless a Notice of Intention to make a claim is given by the claimant to the Trust within a period of six(6) months after the occurrence out of which the claim arose or within such further periods as –

(a) the Commissioner; or

(b) the Court before which the action is constituted;

on sufficient cause been shown, allows.”

Thus unless a Notice of Intention to make a claim is made within six(6) months, the MVIT may decline to entertain such a claim. A claimant may then have recourse to the Insurance Commissioner who is constituted under s. 4(1) of the Insurance Act Chpt. 255 or to the Court, to explain why the statutory time was allowed to lapse and show that despite delay an extension of time granted would not unduly prejudice the Trust.

The opportunity for recourse to the Insurance Commissioner is recourse to the independent administrator of the Insurance industry, and while such an application to the Commissioner may be administratively or procedurally straight forward, nonetheless in determining whether to grant an extension or not he must weight the merits of the case judicially. Of course any application to the Court falls to be decided judicially and like any other application before the Courts must comply with the appropriate rules as to procedure and proof of fact. That is, “with all the attended legal formalities” Rundle v MVI (PNG) Trust (No:- 1) 1988 PNGLR 20.

Those legal formalities include the obligation to follow rules of procedure and evidence. As was said by this Court in SCA 26 of 1996 Motor Vehicles Insurance (PNG) Trust v Korowa Pup:

“..... the Court must act judicially. It hears evidence and arguments from both the Applicant and the Trust insofar as the application under s. 54(6) of the Act is concerned and gives its ruling according to the evidence before it. ...... it is not an administrative decision. ..... we are of the view that the Learned Judge erred in holding that the Court powers under s. 54(6) are merely administrative.”

The Supreme Court also ruled in that case that a Police accident report and medical reports were relevant and admissible in an application for extension of time to show “sufficient cause” required by s. 54(6).

Nonetheless the validity of any documents sought be relied on in Court must be established according to the law of evidence. That is, original documents must be produced by an appropriate witness or reason shown for their presentation by another. Likewise copies have to be authenticated according to the rules, and sections 61 and 84 of the Evidence Act maybe relevant. Indeed there is nothing complex or unduly technical about the rules of evidence in regard to production of documents. All that is required is the party producing them as evidence, establish them as valid and relevant to the issues before the Court.

In this case the annexure of those documents to the affidavit of Counsel for the Applicant raises not only the issue of admissibility of evidence but an issue of status as well. Plainly Counsel cannot without explanation produce as evidence on behalf of his client, documents not of his making and more particularly documents or copies of documents made by others. This admissibility issue also arises in respect of ground (f) where the identity of a person noted in the Police accident report as being injured is named as “Piel Kampu”. While a conclusion that that person must be the same as the Respondent Viel Kampu in these proceedings may well seem to be obvious, a Court could come to that conclusion only on proper evidence, for example if the Respondent or some person having particular knowledge were to give evidence stating that he is one in the same person. That did not occur in this case.

As for showing “sufficient cause” we have said in Korowa Pup’s case (referred to above) that to show “sufficient cause” refers to the obligation of an applicant to establish satisfactory reason why an extension should be granted to the statutory six months. In doing so an Applicant does not have to establish a prima facie case for a claim against the Trust.

Nonetheless in making out “sufficient cause” an Applicant for extension of time will have to show that he or she is “a claimant” under the Act, and to do that will have to give at least an indication of a cause of action. Indeed if a Plaintiff fails to plead a cause of action “in the Court before which the action is constituted” (s. 54 (6)) the action is liable to be struck out on that ground alone.

But the most compelling ground in this appeal is that challenging the status of Counsel who made the application to the Court for extension of time. The challenge here is twofold. In the first place the Appellant asserts that s. 54(6) specifically requires that the application for extension of time be made by the claimant. Secondly, Counsel in any event acted without instructions from a client and therefore had no authority to make the application to the Court. When submission was made in the National Court that the Respondent Counsel had acted without instructions, the Learned Trial Judge ruled that “such matters went the Lawyer – client relationship which this Court should not interfere with, but trust the judgement of the lawyer and assume that he represents client.”

As to who can make application, we were referred to a decision of Salika, J. Veronica Lapiso v Motor Vehicles Insurance (PNG) Trust OS 410/96 (unreported) where he said:

“Section 54(6) speaks of a “claimant” giving notice and a “claimant” giving sufficient cause”. Veronica Lapiso is the claimant who should be giving notice of intention to make a claim against the Defendant. She is not doing that in this case. If she is disabled from bringing her own action, then the provisions of Or 5 R 18-32 cater for persons such as her. The Lawyers have not used those provisions. Again, this is basic ............ fundamental to this proceedings.”

We are satisfied that this correctly states the law and is directly relevant to the situation in this appeal.

On the challenge to Counsels authority in the matter, and the actual locus standi of the Respondent, the learned trial Judge found that the application was made by Counsel on behalf of the claimant. In his decision the Learned Trial Judge states that when the Insurance Commissioner on 20^th June 1995 refused extension of time in which to give notice of intention to claim, Counsel advised his client of that refusal.

“On 16^th October 1995, Mr Kopunye advised the Applicant about the refusal and sought a fee deposit. That was the last he saw of his client. The Applicant never returned with the fee deposit. Mr Kopunye however, decided to protect his client’s interest because his client sustained injury which “were quite serious and..... If nothing is done, it could or may affect his general livelihood” ....... so on 11^th March 1996, he (Mr Kopunye) instituted these proceedings”.

In fact Counsel was not empowered or authorised to seek an extension of time on behalf of the Respondent. Any application had to be made by the Respondent himself or explanation given as to why he was unable to do so in person. It is plain in this case that Counsel made application without any instructions do so. From his own affidavit it is obvious that he had no such instructions. He was plainly without any authority to make a claim and or give notice of claim. In our view it was not open on the facts before the learned trial Judge to assume that there was in place a lawyer/client relationship. Counsel before us sought to argue that he was acting on a “standing instruction”. We do not accept that. Had that been the case, application could have been made to the National Court in June or July of 1995. That was not done and even if there had been such an instruction there has been no explanation for the excessive delay between then and March 1996 in bringing an application to the Court.

In the result the appeal is upheld, and the decision of the National Court set aside.

There will be an order of costs in favour of the Appellant in this Court and the Court below.