South Pacific Post Pty Ltd v Ephraim Ikenna Maduabuchi Nwokolo [1984] PNGLR 38

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Kapi DCJ, Pratt J
• Judgment Date: 29 February 1984
• Court: Supreme Court
• Citation: [1984] PNGLR 38
• Year: 1984
• Judgement Number: SC266

Full Title: South Pacific Post Pty Ltd v Ephraim Ikenna Maduabuchi Nwokolo [1984] PNGLR 38

Supreme Court: Kidu CJ, Kapi DCJ, Pratt J

Judgment Delivered: 29 February 1984

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SOUTH PACIFIC POST PTY LTD

V

EPHRAIM IKENNA MADUABUCHI NWOKOLO

Waigani

Kidu CJ Kapi DCJ Pratt J

23 November 1983

29 February 1984

DEFAMATION — Innuendo — Pleading of — In statement of claim — National Court Rules 1983 — Position similar to U.K. pre-1949 — False and true innuendoes distinguished — Extrinsic facts need not be pleaded — Extrinsic facts must however be proved — Defamation Act (Ch. No. 293) — Rules of the National Court (pre-1983).

PRACTICE AND PROCEDURE — National Court — Rules of Court — Rules constitute a code — Amendment of subject to sanction of Parliament — No power to develop underlying law in relation to — Rules of the National Court — Constitution, s. 184.

APPEALS — Evidence on — Fresh evidence — Application to strike out statement of claim — Appeal from dismissal — Defamation proceedings — Material sought to be adduced available at all times — Not fresh evidence — Supreme Court Act (Ch. No. 37), s. 6 (1) (a).

In proceedings for defamation commenced by writ of summons filed in October 1979, the plaintiff (respondent) delivered a statement of claim in which he pleaded that a newspaper cartoon by "its caricature, numbers, initials, words and statements, in their natural ordinary and or inferential meaning had defamed him and further by way of innuendo it was understood to mean (here followed three meanings alleged by way of innuendo) ".

The defendant (appellant) sought pursuant to the Rules of the National Court, O. 22, rr. 31 and 32, as applicable prior to the introduction of the Rules of the National Court 1983 on 4 July 1983, to have the statement of claim struck out on the grounds that it disclosed no reasonable cause of action, that it showed a cause of action which was frivolous or vexatious, and/or that as a pleading it tended to prejudice, embarrass or delay the fair trial of the action.

On appeal against an order dismissing the application to strike out,

Held

(1) The relevant law in Papua New Guinea prior to 4 July 1983 was that applicable in the United Kingdom prior to 1949.

(2) In defamation proceedings based on a direct defamatory imputation or "false innuendo" the plaintiff was required in his statement of claim only to set out the words etc. upon which he relied and to ascribe to them what actual and ordinary meaning is placed upon them.

(3) In defamation proceedings based on a true or legal innuendo which relies on a special meaning dependent upon extrinsic facts there was no requirement to plead the extrinsic facts though particulars could be ordered in appropriate cases: extrinsic facts had nevertheless to be proved by evidence thereof.

Grubb v. Bristol United Press Ltd [1963] 1 Q.B. 309, discussed and applied.

(4) Under the Rules of the National Court 1983, O. 8, r. 84 (b), true or legal innuendoes must now be supported by particulars within the body of the statement of claim itself.

(5) The Rules of the National Court of Justice form a code of pleading practice and procedure which may be used as a guide in deciding matters of practice and procedure: the court cannot develop an underlying law of practice and procedure or formulate rules to fill gaps, for the power to alter such rules which is contained in s. 184 of the Constitution though given to the judges of the court is subject to the overriding sanction of Parliament.

(6) The cartoon which was available at the hearing of the motion to strike out, but not put before the National Court, could not be received in evidence on the appeal as fresh evidence under s. 6 (1) (a) of the Supreme Court Act (Ch. No. 37).

The Government of Papua New Guinea and Davis v. Barker [1977] P.N.G.L.R. 386 at 393, applied.

Cases Cited

Bligh v. Router [1968] Q.W.N. 9.

Bruce v. Odhams Press Ltd [1936] 1 K.B. 697; [1936] 1 All E.R. 287; 105 L.J.K.B. 318; 154 L.T. 423; 52 T.L.R. 224.

Cairns v. John Fairfax and Sons Ltd; Morosi v. John Fairfax and Sons Ltd [1983] 2 N.S.W.L.R. 708.

Capital and Counties Bank v. Henty (1882) 7 App. Cas. 741; 52 L.J.Q.B. 232; 47 L.T. 662; 47 J.P. 214; 31 W.R. 157, H.L.

Dawson Bloodstock Agencies Pty Ltd v. Mirror Newspapers [1979] 2 N.S.W.L.R. 733.

Grubb v. Bristol United Press Ltd [1963] 1 Q.B. 309; [1962] 3 W.L.R. 25; 106 S.J. 262; [1962] 2 All E.R. 380.

Jones v. Skelton [1963] 2 W.L.R. 1362; 107 S.J. 870; [1963] 3 All E.R. 952 P.C.

Ladd v. Marshall [1954] 3 All E.R. 745; 98 S.J. 870; [1954] 3 All E.R. 745; 71 L.Q.R. 166, C.A.

Lewis v. Daily Telegraph Ltd [1964] A.C. 234; [1963] 2 W.L.R. 1063; 107 S.J. 356.

Minister for Lands v. Frame [1980] P.N.G.L.R. 433.

Neap, James v. The Independent State of Papua New Guinea (Unreported Supreme Court judgment No. SC228 dated 3 May 1982).

Raphael Warakau v. The State (Unreported Supreme Court judgment No. SC184 dated 3 November 1980).

Sannga deceased, Re [1983] P.N.G.L.R. 142.

Sim v. Stretch (1935-1936) 52 T.L.R. 669; [1936] 2 All E.R. 1237; 80 Sol. Jo. 703.

State, The v. Wik Kor [1983] P.N.G.L.R. 24.

Tei Abal v. Anton Parau [1976] P.N.G.L.R. 251.

The Government of Papua New Guinea and Davis v. Barker [1977] P.N.G.L.R. 386.

Tolley v. Fry [1930] 1 K.B. 467.

Watkin v. Hall (1868) L.R. 3 Q.B. 396; 9 B. & S. 279; 37 L.J.Q.B. 125; 18 L.T. 561; 32 J.P. 485.

Appeal

This was an appeal against the dismissal of a notice of motion seeking to strike out a statement of claim pursuant to the National Court Rules, O. 22, rr. 31 and 32, in proceedings for defamation.

Counsel

C. J. Coady, for the appellant.

P. D. Donigi, for the respondent.

Cur. adv. vult.

29 February 1984

KIDU CJ PRATT J: In October 1979 the respondent, by a writ of summons (No. 953 of 1979), commenced a defamation action against the appellant. Two years four months after the issue of the writ (on 15 February 1982) the respondent delivered to the appellant a statement of claim alleging as follows:

" (1) The Plaintiff is a former Senior Lecturer in Law at the University of Papua New Guinea and a well-known barrister and solicitor who carries on practice in Port Moresby and elsewhere in Papua New Guinea.

(2) The Defendant is a company duly incorporated in Papua New Guinea and is the proprietor of a national newspaper circulated in large numbers throughout Papua New Guinea, known as the Papua New Guinea Post Courier (hereafter called Post Courier Newspaper).

(3) Between the months of July and September 1979 the plaintiff acted as defence counsel for John Rumet Kaputin who was charged and later convicted of disobeying a lawful order issued by a court and sentenced to ten weeks imprisonment starting on or about the 10 October 1979.

(4) During the month of September 1979 a large number of prisoners escaped from lawful custody from the Bomana Corrective Institution and other similar institutions throughout Papua New Guinea, following the release of Nahau Rooney from the Bomana Corrective Institution on or about the 11 September 1979.

(5) On 63 of the issue of the Post Courier Newspaper of Friday, 19 October 1979 the defendant by its servants and agents published an advertisement in the form of a cartoon under the caption 'isuzu lu'.

(6) In the cartoon the defendant falsely and maliciously printed and published of the plaintiff and of and concerning the plaintiff by way of his profession and calling:

(a) a caricature represented as the Plaintiff walking arm-in-arm with a character being the numbers 791632 and the initials and word 'c.i.s. Bomana' on his clothing (hereafter referred to as his companion); and

(b) statements in the following words falsely attributed to the plaintiff and purportedly addressed to his companion, to wit: 'Sorry John, it's the only way I could get you out' and response in the following words, falsely attributed to his companion, to wit: 'No waris wokabaut em i orait, tasol long fourmail bai mi ranawe' meaning thereby 'No worries the walk is a good idea, it means that at four mile I will run away'.

(7) By the said caricature numbers, initials, words and statements, in their natural ordinary and or inferential meaning the defendant meant and was understood to mean that the plaintiff had assisted an inmate of the Bomana Corrective Institution No. 791632 to escape from lawful custody.

(8) Further, by way of innuendo, the said advertisement so far as it concerned the Plaintiff, was understood to mean that:

(a) the plaintiff had agreed for or permitted his portrait to be exhibited for the purpose of the advertisement of isuzu motor vehicles and that he did so for gain and reward and that he had prostituted his reputation as a lawyer for advertising purposes against the ethics of his profession and that he was seeking notoriety, gain and unfair advantage over his professional colleagues, by means of the said advertising and that he had been guilty of misconduct unworthy of his...