Papua New Guinea Law Reports - 1988-89
[1988-89] PNGLR 480
N778
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
PIERCE
V
MOTOR VEHICLES INSURANCE (PNG) TRUST
Waigani
Brunton AJ
17 November 1989
PRACTICE AND PROCEDURE - Parties - Application to join defendant - Personal injuries claim - Application outside limitation period - Whether application may be made - Discretionary powers - Relevance of statutory procedure against Trust - Onus of proof - Explanation for delay - National Court Rules O 5, rr 8, 11(3) - Motor Vehicles (Third Part Insurance) Act (Ch No 295), ss 54(1), 55 - Statutes of Frauds and of Limitations Act (Ch No 330), s 16(1).
Under the Motor Vehicles (Third Party Insurance) Act (Ch No 295), actions for damages for personal injuries caused by a motor vehicle accident are to be brought against the Motor Vehicles Insurance (PNG) Trust (the Trust) and not against the owner or driver; s 55 provides that the owner or driver may be served with the claim and may be represented on any hearing.
Under the Statutes of Frauds and of Limitations Act (Ch No 330), proceedings under the Motor Vehicles (Third Party Insurance) Act must be brought within six years of the date on which the cause of action accrued.
The National Court Rules, O 5, provides relevantly for the addition of parties in the following terms:
“r8      Addition of Parties
(1)      Where a person who is not a party:
(a)      ought to have been joined as a party; or
(b)      is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon,
the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.”
“r11(3)          . . . where a party is added pursuant to an order under Rule 8 ... the date of commencement of the proceedings so far as concerns him shall be the date of filing of the originating process amended so as to add him as a party or, where an amended originating process is not filed, the date of the amendment adding him as party.”
On an application to add the owner of a motor vehicle to a claim against the Trust after the expiration of the six-year time limit,
Held
(1)      Order 5, r 11(3), of the National Court Rules is not to be applied so as to prevent a plaintiff who has otherwise properly instituted an action under the Motor Vehicles (Third Party Insurance) Act within the limitation period prescribed by the Statutes of Frauds and of Limitations Act from joining the owner or driver of the motor vehicle in question when that owner or driver has been served with a copy of the claim within that time limitation.
(2)      Whether a person may be joined as a party pursuant to O 5, r 8, of the National Court Rules is a matter within the discretion of the court, as to which, the applicant carries the burden of persuading the court.
(3)      Where a plaintiff, in a claim against the Trust, applies to join an owner or driver of the motor vehicle in question as a party defendant under O 5, r 8, of the National Court Rules and that application is outside the time limitation under the Statutes of Frauds and of Limitations Act, the applicant must explain the delay in bringing the application to the satisfaction of the court in order to succeed on the application.
(4)      In the circumstances, in the absence of any explanation for the delay in bringing the application, the application should be refused.
Cases Cited
Liff v Peasley [1980] 1 WLR 781; [1980] 1 All ER 623.
Motion
The plaintiff, in an action for damages for personal injuries sustained as the result of a motor vehicle accident sought, by motion on notice, to join the owner of the motor vehicle involved in the accident as a defendant to the proceedings.
Counsel
R C Gunson, for the applicant/plaintiff.
R Thompson, for the respondent/defendant and Karawari Lodge Pty Ltd.
17 November 1989
BRUNTON AJ: The plaintiff, by notice of motion dated 2 November 1989, moved for an order that Karawari Lodge Pty Ltd be joined as a party to these proceedings as second defendant.
The writ of summons in these proceedings was filed on 18 April 1989, and served on the Motor Vehicles Insurance (PNG) Trust on 27 April 1989.
The writ alleged that the defendant had acted negligently towards the plaintiff. The plaintiff was alleged to be a passenger in a motor vehicle owned by Karawari Lodge Pty Ltd on 13 May 1983. She was involved in an accident in which she was thrown off the back of the vehicle and sustained injuries. She is a resident of the United States of America and at the time of the accident would have been about 77 years old.
The real question in this application is whether or not, by force of the Statutes of Frauds and of Limitations Act (Ch No 330), the plaintiff is now time-barred from joining Karawari Lodge Pty Ltd as a defendant to the action.
Section 16(1) of the Statutes of Frauds and of Limitations Act (Ch No 330) in essence reads:
“(1)    ... an action
(a)      that is founded on simple contract or on tort;
 . . . shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.”
The action by the plaintiff against the defendant in negligence is an action founded in tort. The cause of action accrued to the plaintiff on 13 May 1983. The writ of summons was filed on 18 April 1989. The action against the Motor Vehicles Insurance Trust was brought within six years of the date on which the cause of action accrued.
The joinder is necessary from the plaintiff’s point of view because the defendant denies liability on the basis that the vehicle was uninsured and that the accident occurred on a private road. This issue is now the subject of an order under O 10, r 21, of the National Court Rules, and is to be decided as a preliminary issue.
If it is decided that the road in question was not a public road within the meaning of s 1 of Motor Vehicles (Third Party Insurance) Act (Ch No 295), then the issue of whether or not the plaintiff can join Karawari Lodge Pty Ltd becomes vital to the plaintiff.
A party may be joined to an action by the application of O 5, r 8, of the National Court Rules:
“8.      Addition of Parties
(1)      Where a person is not a party:
(a)      ought to have been joined as a party; or
(b)      is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon,
the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.”
Order 5, r 11(3), is also relevant and reads:
“(3)    ... where a party is added pursuant to an order under Rule 8 ... the date of commencement of the proceedings so far as concerns him shall be the date of filing of the originating process amended so as to add him as a party or, where an amended originating process is not filed, the date of the amendment adding him as a party.”
The question therefore arises whether O 5, r 8 and r 11(3), are procedural in nature, or whether they are substantive and create new rights, or a new cause of action.
The plaintiff’s case is that she was injured while a passenger in either an insured motor vehicle, or an uninsured motor vehicle travelling on a public road.
The statement of claim reads:
“2.      At all material times the Plaintiff was a passenger in a motor vehicle owned and operated by Karawari Lodge Pty Limited and driven by the Acting Manageress of the said Lodge (hereinafter referred to as the Defendant’s vehicle).
3.       At all material times the Plaintiff was riding in the back of the Defendant’s vehicle travelling from the airport pick up point on the Karawari River to the Karawari Lodge situated at the foot of the Hunstein Mountains near Amboin in the East Sepik Province.”
The Motor Vehicles (Third Party Insurance) Act (Ch No 295), s 54(1), in essence reads:
“54(1) ... any claim for damages in respect of the death of or bodily injury to any person caused by or arising out of the use of:
(a)      a motor vehicle insured under this Act; or
(b)      an uninsured motor vehicle in a public street;
... shall be made against the Trust and not against the owner or driver of the motor vehicle ...”
Section 55 is also relevant:
“55.    Where a claim for damages under s 54(1) is made against the Trust, a copy of the claim shall, where possible, be served on the owner, and where the owner is not the driver also on the driver, and the owner and driver may be represented on the hearing of the claim as though they were parties to the action.”
There is then a special legal r‚gime for starting actions for damages arising from motor vehicle accidents where the vehicle is insured under the Act, or uninsured and on a public road. The claim may only be made against the Trust, and quite specifically is not to be made against the owner or driver.
The affidavit of Mr Gunson dated 22 October 1989 has annexed to it, at “D”, a letter from the plaintiff’s lawyers to the defendant’s lawyers. In that letter there is the assertion that:
“Our instructions clearly indicate that the road in question falls within the definition of ‘public street’ contained in Section 1 Motor Vehicles (Third Party Insurance) Act (Chapter No 295).”
That then is the basis of the plaintiff’s action. It is before me annexed to an affidavit on this application. Accordingly, the claim and the action have been brought in accordance with the provisions of the Motor Vehicles (Third Party Insurance) Act, and are not time-barred by the Statutes of Frauds and of Limitations Act.
Further, in accordance with s 55 of the Motor Vehicles (Third Party Insurance) Act, the plaintiffs served a copy of the writ on Karawari Lodge Pty Ltd on 9 May 1989, four days within the six-year time-limitation imposed by the Statutes of Frauds and of Limitations Act. Legally, Karawari Lodge Pty Ltd had notice of the action within time.
THE UNDERLYING LAW
In 1980, Brandon LJ, in Liff v Peasley [1980] 1 All ER 623 at 639 a-b said:
“It is an established rule of practice that the court will not allow a person to be added as defendant to an existing action if the claim sought to be made against him is already statute-barred and he desires to rely on that circumstance as a defence to the claim. Alternatively, if the court has allowed such addition to be made ex parte in the first place, it will not, on objection then being taken by the person added, allow the addition to stand. I shall refer to that established rule of practice as ‘the rule of practice’.”
Brandon LJ added that there were alternative bases for the rule of practice. The first was that if a plaintiff was allowed to join a new defendant, the action would relate back so that the action would be deemed to have begun as against the person added, not on the date of amendment but on the date of the original writ. The effect of that would be to deprive an added party of “an accrued defence” — namely, the claim was statute-barred — which would be unjust. The second basis of the rule of practice was if a defendant could be joined out of time, the defendant would have a defence that the action was time-barred, and therefore it would serve “no useful purpose” to allow the joinder (at 639 b-d).
In Papua New Guinea (and New South Wales which has similar Rules) that issue appears to be covered by O 5, r 11(3):
“the date of commencement of the proceedings so far as concerns him shall be the date of filing of the originating process amended ...”
In New South Wales these words have been applied literally, and for the purpose of the Limitation Act 1969 (NSW), the proceedings against the additional defendants commence only when the amended originating process is filed: Ritchie’s Supreme Court Procedure NSW (vol 1, par 8.11.2).
New South Wales law is not part of the Underlying Law of Papua New Guinea, although when the statutes are in pari materia, then the case law may be of assistance in formulating an appropriate rule of law: Constitution, sch 2.3 1(d).
The practice of the English court is not necessarily part of the Underlying Law of Papua New Guinea. Brandon LJ was careful to formulate his rule not as a rule of law, or of common law, but as an established rule of practice. But even if the label “rule of practice” does amount to being included within the phrase “the principles and rules of common law and equity in England”, which were in force in England before Independence Day, it is still necessary to test them against the Constitution, sch 2.2(1)(b), because such rules would not be part of the Underlying Law:
“if, and to the extent that: (b) they are inapplicable or inappropriate to the circumstances of the country from time to time”.
I tend to the view that when the English courts refer to “rules of practice” they are referring to a category of legal norms outside of English common law or equity. Rules of practice are part and parcel of the running of the English courts and have been fashioned to suit English conditions and the English (as distinct from the Scottish or Irish) temperament or traditions. England and Wales, as distinct legal parts of the United Kingdom of Great Britain and Northern Ireland, are quite different geographically, demographically, climatically, economically and socially from Papua New Guinea.
The English practice is based on the notion that the Statute of Frauds and Limitations vests an “accrued defence” (Liff v Peasley [1980] 1 All ER 623 at 639 b) in a defendant, and that it is unjust to strip a person of a defence. But to characterise the policy of the limitations statute in terms of accrued rights may not reflect the true intent of the statute which is to protect parties from actions which, because of the effluxion of time, it may be difficult to defend. In the context of tortious actions in negligence arising out of motor vehicle accidents, Papua New Guinean law requires that they be brought in accordance with the provisions of the Motor Vehicles (Third Party Insurance) Act, which have been referred to in this judgment. There is a particular régime.
The English rule of practice prefers as a matter of policy to vest rights in the defendant. But, for us in Papua New Guinea, there is no absolute about that practice in terms of justice. For example, to apply the practice without anything more, could deprive a plaintiff of a cause of action because of the mistake of lawyers which is common enough in limitation cases. As a matter of justice, judges are loath to visit upon parties the indiscretions or lapses of their lawyers because it is unjust that a person should suffer for the acts or omissions of another, although when there are competing injustices that may have to be so.
Similarly, there is nothing inherently valuable in the New South Wales practice. Ritchie merely cites an unreported decision of one of the Masters as authority. The provision in the New South Wales Rules, which is the same as our O 5, r 11(3), does not specifically address the Statute of Frauds. The New South Wales practice has been adopted to suit the New South Wales legal temperament and conditions. Again, there are many differences between New South Wales and Papua New Guinea and their rules of practice have no inherent validity in this country.
Perhaps a better way of approaching a reconciliation of the Papua New Guinea statutory material is to regard the Motor Vehicles (Third Party Insurance) Act as the substantive legal norm for claims arising from motor vehicle accidents. That Act tells plaintiffs what they must do. The claim, by writ of summons, has to be made against the Trust, and where possible, a copy has to be served on the owner or driver. That is the process which establishes the claim.
In that context, O 5, r 8, is a matter of practice, or procedure — indeed, the constitutional mandate, under which the National Court Rules are promulgated (s 184 of the Constitution), gives power to the judges to make rules “with respect to the practice and procedure”. There is no constitutional mandate for the National Court Rules to create or destroy vested legal rights.
It may follow then, that if the right to make a claim accrues under the Motor Vehicles (Third Party Insurance) Act, and the plaintiff follows the terms of that Act, and issues process within time according to the Statutes of Frauds and of Limitations Act, then the words of O 8, r 11(3), should not, in themselves, be used to stop a plaintiff who has properly instituted an action under the Motor Vehicles (Third Party Insurance) Act from joining as a second defendant the owner or the driver of the vehicle who has been properly served under the Motor Vehicles (Third Party Insurance) Act. Order 8, r 11(3), should not be used as method of stopping the joinder of the owner or the driver of the vehicle.
As to whether or not the joinder should be permitted under O 5, r 8(1), that is another matter. It calls for the exercise of a discretion. In this case the plaintiff has not offered any explanation for the delay. The plaintiff carries the burden of convincing the Court it should exercise its discretion. She has not discharged the burden. She has not explained why now, over six years after the accident, she finds herself in a position where she suddenly needs to join Karawari Lodge Pty Ltd. Was it because she was in the United States of America? Was it because she was waiting for her injuries to subside? Was it because of some default of the defendant? Was it because of communications problems within Papua New Guinea? Was it because of some error, mistake, default of her lawyers either here, or possibly overseas? I simply do not know.
On the other hand, to be faced with an action over six years after the cause of action accrued may place a potential defendant in a difficult position. The plaintiff must prove her case. She has not done so. The application is dismissed with costs on this part of the notice of motion to Karawari Lodge Pty Ltd.
Application dismissed
Lawyers for the plaintiff: Blake Dawson Waldron.
Lawyers for Karawari Lodge Ply Ltd: Young & Williams.