Wapula Akipa [Akipe] and Others v Lowa and Simon Kambe [1990] PNGLR 502

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ
• Judgment Date: 07 December 1990
• Court: National Court
• Citation: [1990] PNGLR 502
• Year: 1990
• Judgement Number: N962

Full Title: Wapula Akipa [Akipe] and Others v Lowa and Simon Kambe [1990] PNGLR 502

National Court: Kapi DCJ

Judgment Delivered: 7 December 1990

N962

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

AKIPA AND OTHERS

V

LOWA AND OTHERS

Waigani

Kapi DCJ

6-7 December 1990

PRACTICE AND PROCEDURE — Pleading — Pleading the "general issue" — Distinguished from general denial of pleaded facts — National Court Rules, O 8, rr 21 (2), 28.

The National Court Rules, relevantly provide:

O 8, r 28 — "A party shall not plead the general issue".

O 8, r 21 (2) — "A traverse may be either by a denial or by a statement of non-admission, and either expressly or by necessary implication, and either generally or as to any particular allegation".

Held

(1) The prohibition on pleading the "general issue" in O 8, r 28, is not a prohibition on pleading a general denial of pleaded facts, which is permitted under O 8, r 21 (2); it is a prohibition on stating a conclusion (viz, "not indebted" or "not liable") from denials which are not pleaded as matters of fact.

South Pacific Developments Pty Ltd v Rudenno (1968) 88 WN (Pt 1) (NSW) 538; [1968] 2 NSWLR 716, followed.

Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301, not followed.

(2) A defence which denied matters of fact alleged in the plaintiff's claim did not plead the "general issue" within the meaning of O 8, r 28.

Cases Cited

Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301.

Moore Road Machinery (NSW) Pty Ltd v Sourry (1960) NSWR 227.

South Pacific Developments Pty Ltd v Rudenno (1968) 88 WN (Pt 1) (NSW) 538; [1968] 2 NSWR 716.

Motion

This was an application on notice seeking to strike out certain defences to a statement of claim.

Counsel

J Reeve, for the plaintiffs.

P Lowing, for the fourth and sixth defendants.

Cur adv vult

7 December 1990

KAPI DCJ: By a notice of motion, filed 3 December 1990, the plaintiffs sought to strike out the defence of the fourth defendant and the sixth defendant.

The grounds relied upon for both defences are the same. In essence the objection is that both defences offend the terms of O 8, r 28 of the National Court Rules:

"A party shall not plead the general issue".

I considered the application of this rule in the case of Hornibrook Constructions Pty Ltd v Kawas Express Corporations Pty Ltd [1986] PNGLR 301.

I applied the rule without interpreting the meaning of the words "general issue". I propose to do that in this case. In the end result I may differ in the application of this rule.

The Rules do not define the nature of what is a "general issue".

There are no cases directly on point which may guide me in interpreting the precise nature of what is a "general issue".

It would appear from my earlier decision that a general denial of a fact could amount to pleading a "general issue".

My attention was not drawn to the terms of O 8, r 21 (2) of the Rules which provides:

"A traverse may be either by a denial or by a statement of non-admission, and either expressly or by necessary implication, and either generally or as to any particular allegation."

This rule deals with denial of fact either general or specifically. That rule on the face of it would be in conflict with the ruling in the earlier case in that the defence pleaded a general denial of fact.

If O 8, r 21 permits a denial of a fact generally (which it does) then an interpretation should be given to r 28 which does not conflict with r 21. It is a principle of statutory interpretation to construct the provisions of an Act so as to harmonise with one another.

The first point I note about r 28 is that it is not a prohibition on pleading a general fact. If that were so that would be in direct conflict with r 21. The term "general issue" must mean something different.

In Moore Road Machinery...