National Court of Papua New Guinea

There is no doubt tubt that both the writ and the letter were therefore served on the State within 6 months from when the occurrence out of which the claim arises, namely within approximately 2 months and 3 months.

The State is submitting that under the terms of the legislation no action to enforce any laim can be pursued unless a notice of intention to make a claim has been served in accordance with the Act as the terms of the legislation makes the service oh a notice a mandatory condition precedent to any cause of e of action, namely a condition precedent to the effectiveness of any writ of summons. He submits the writ of sumf summons here is void and cannot be proceeded with. The State is relying on certain principles enunciated in the case Rundle v MVIT [1988] PNGLR 20 where similar provisions providing for notice of intention to a claim were considered. In thor Vehicles (Third Pard Party Insurance) Act Chapter 2ter 295 per section 54 there are similar provisions for the giving of notice before a claim can be enforced. In the circumstances of Rundle’s case and considering the intention and purpose of the relevant Act there was a requirement to give notice of intention before a valid writ could issu be proceeded with. In the circnces of that caat case case and considering the intention and purpose of the relevant Act there was a requirement to give notice of intention before a valid writ could issue and be proceeded with.

Whilst the provisions of the two separate pieces of legislation are similar I think that one must look at the whole of each Act and consider what is the object of the legislation.

The Motor Vehicle (Third Party Insurance) Act enables people who have suffered injuries or have a cause of action for personal injuries or death following a motor vehicle accident to issue proceedings against the Motor Vehicles Insurance (PNG) Trust and not against the driver or owner of the vehicle alleged to have been at fault. Such a rightue the Insuransurance Trust is therefore contrary to the normal principles of common law and the Wrongs Act. Therefore thet to he TrustTrust is a specific right granted by statute and by statute alone. ThereTherefore the pters oers of that right andconditions and procedures for the availment of that right must be found within the statute tute and nowhere else.

However the to proceed against the State for any wrong is a right at C at Common Law and protected in the Constitution and covered in the Wrongs Act. The right to sue thee is n is not a special privilege granted by statute, it is a right that has always existed. Thpose of the Claims By anBy and Against The State Act is to regulate and facilitate and present some conditions to a right that hways existed. Therefore the writ has isss issued in July must be a valid writ. 160; The purposthe time prme provision in Section 5 of the Act is to require claimants to take action within a certain time to enable the State to properly research the basis ch a claim before the facts that gave rise to the claim getm get forgotten or fade in people’s memory. Bearing in mind the State tate is in a different position than the usual defendant in that the State is responsible for the actions of so many peover the whole nation.

In this case before me now the writ was filed and served well well within a period of 6 months of the occurrence of the incident out of which the claim has arisen. In the circumstances therefore I am satisfied that the writ itself can be seen as notice and therefore there was no requirement to give any further notice. Orse the position wouldiffldifferent if no writ had been issued within that 6 months pehs period. However that is not a question for me to consider here.I find that in the circumstances of this claim under this this Act where a writ has been filed and served within the 6 months that arate notice is not required as the purpose of the provisionision has been satisfied by the issuing and service of the writ, namely the giving of notice or warning to the State that a claim is to be made.

Lawyer for the Plaintiff: Paraka Lawyers

Lawyers for the Defendants: Solicitors General’s Office