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

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: [1990] PNGLR 502
• Date: 07 December 1990
• Year: 1990

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

National Court: Kapi DCJ

Judgment Delivered: 7 December 1990

1 Practice and procedure—pleading the general issue under National Court Rules O8 r28

2 PRACTICE AND PROCEDURE—Pleading—Pleading the "general issue"—Distinguished from general denial of pleaded facts—National Court Rules, O8, r21(2), r28.

The National Court Rules, relevantly provide:

O8, r28—"A party shall not plead the general issue".

O8, r21(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 O8, r28, is not a prohibition on pleading a general denial of pleaded facts, which is permitted under O8, r21(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 O8, r28.

Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301, Moore Road Machinery (NSW) Pty Ltd v Sourry (1960) NSWR 227 and South Pacific Developments Pty Ltd v Rudenno (1968) 88 WN (Pt 1) (NSW) 538; [1968] 2 NSWR 716 referred to

Motion

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

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