What If I Miss the Six-Month Notice Period?

Missing the six months is common. Injured people are in hospital, families are in mourning, and the law is not widely known. The Act anticipates this, and the courts have developed a workable body of principle about when time will be extended.

The sequence: Commissioner first, then the court

Rundle v Motor Vehicles Insurance (PNG) Trust (No 1) [1988] PGSC 28; [1988-89] PNGLR 20 fixed the order of events. A late claimant is not put to an election. He may apply once to the Insurance Commissioner. If the Commissioner refuses, or grants an extension which the claimant then fails to use, the claimant may apply to the National Court; he may not go back to the Commissioner a second time. If the court refuses, the only second chance is an appeal to the Supreme Court. Most applicants start with the Commissioner because, as the Court noted, it is the simple procedure Parliament intended.

The application to the court is a separate proceeding, usually by originating summons, made before or independently of the damages action. MVIT v Menda [1994] PGLawRp 614; [1994] PNGLR 268 holds that the court hearing a damages action without a valid notice must dismiss it and cannot extend time within it. MVIL is entitled to be served with and heard on the application: Pup v MVIT [1996] PGLawRp 705; [1996] PNGLR 66 and MVIT v Bure [1999] PGLawRp 671; [1999] PNGLR 273.

What “sufficient cause” means

The Supreme Court summarised the test in Motor Vehicles Insurance Ltd v Kuma [2000] PGLawRp 405; [2000] PNGLR 1: the claimant must show (a) a reasonable explanation why the six-month period was allowed to lapse, and (b) that an extension will not prejudice the interests of the insurer. Earlier National Court decisions had already said the expression is to be “widely interpreted” because it deals with the justice of the case: Ivia v MVIT [1995] PGLawRp 681; [1995] PNGLR 183 and Nul v MVIT [1998] PGLawRp 764; [1998] PNGLR 264. The onus is on the applicant.

Factors that have counted in the claimant’s favour

Ignorance of the requirement. A claimant who did not know of section 54(6), and pursued the claim once aware, “should readily” be granted an extension: Kalalyo v MVIT [1996] PGLawRp 743; [1996] PNGLR 368.
Remoteness and lack of legal services. An applicant from an isolated area with scarce access to lawyers: Pato v MVIL [2008] PGNC 93; N3403.
Customary obligations after a death. A father occupied with raising pigs and gardens for his son’s funeral feast, who had also made due search for the hit-and-run vehicle: Paru v MVIL [2008] PGNC 100; N3407.
MVIL already knows. Where the insurer had the essential information early, for example from a writ served within six months, Bredmeyer J in Rundle thought an extension would readily be granted because there is no prejudice.

Factors that have counted against

Lawyers’ default. The Supreme Court in Kuma said that the failure of the claimant’s lawyers to give notice in time “cannot be a good basis” for an extension. The point is harsh but consistent: the client’s remedy is against the lawyer. Long unexplained delay. In Rawa v MVIT [1994] PGNC 21; N1276 the first application to the court came three and a half years after the accident; the court examined the police report to decide whether the Trust had really lost the chance to investigate. Prejudice is measured over the whole period from the accident to the giving of notice, and, as Ivia said, no fixed period is decisive; it depends on whether witnesses, records and the vehicle can still be traced.

Evidence on the application

The court is not bound by the technical rules of evidence on a section 54(6) application. Pup v MVIT held that the police accident report, medical reports and the correspondence with the Trust and the Commissioner may all be put in through the affidavit of the claimant or the lawyer. But the Supreme Court in MVIT v Viel Kampu [1998] PGSC 49; SC587 insisted that the application is a formal one to be decided judicially, that the material must be in admissible form, and that lawyers must actually be instructed by the claimant. The Commissioner too must act judicially and must hear the insurer before deciding: MVIT v Popo [1992] PGNC 6; N1048.

After the extension is granted

An extension is not a notice. It is permission to give one. The notice must then be given within the extended period; an earlier out-of-time letter is not revived, and forwarding the Commissioner’s approval letter is not enough: Laime v MVIT [1995] PGLawRp 686; [1995] PNGLR 224, Kawa v MVIT [1998] PGSC 24; SC588 and Muniakali v MVIL [2004] PGSC 10; SC764. Extensions are typically short — 14 days in Rundle, Paru and Taemae v MVIL [2013] PGSC 8; SC1224; 21 days in Pato; 28 days from the Commissioner in Rundle — so the notice should be ready to send the day the extension arrives.

The extension does not extend the limitation period

Section 54(6) governs notice, not the time for issuing a writ. The writ must still be filed within six years of the accident for an injury, or three years of the death for a fatal accident. In Lama v MVIL [2025] PGNC 461; N11612 the court refused an extension because, even with notice, the dependency claim was already statute-barred. See how long do I have to sue MVIL.

Sources

Check the section yourself

Before relying on anything here, read the current text of the Motor Vehicles (Third Party Insurance) Act (Chapter 295) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.