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

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: [1984] PNGLR 38
• Date: 29 February 1984
• Year: 1984

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

1 Defamation—innuendo—pleading of in statement of claim—true and false innuendos—position in PNG until 4 July 1983 was similar to that in UK prior to 1949—extrinsic facts need to be pleaded although proof thereof will be required during trial

2 Application to strike out pleading for failure to plead a cause of action, or because prejudicial and embarrassing not successful

3 DEFAMATION—Innuendo—Pleading of—In statement of claim—National Court Rules 1983—Position similar to UK pre–1949—False and true innuendoes distinguished—Extrinsic facts need not be pleaded—Extrinsic facts must however be proved—Defamation Act (Ch293)—National Court Rules (pre–1983).

4 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—National Court Rules—Constitution, s184.

5 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 (Ch37), s6(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 National Court Rules, O22, r31 and r32, as applicable prior to the introduction of the National Court Rules 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 QB 309, discussed and applied.

(4) Under the National Court Rules 1983, O8, r84(b), true or legal innuendoes must now be supported by particulars within the body of the statement of claim itself.

(5) The National Court Rules 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 s184 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 s6(1)(a) of the Supreme Court Act (Ch37).

The Government of Papua New Guinea and Davis v Barker [1977] PNGLR 386 at 393, applied.

Bligh v Router [1968] QWN 9, Bruce v Odhams Press Ltd [1936] 1 KB 697; [1936] 1 All ER 287; 105 LJKB 318; 154 LT 423; 52 TLR 224, Cairns v John Fairfax and Sons Ltd; Morosi v John Fairfax and Sons Ltd [1983] 2 NSWLR 708, Capital and Counties Bank v Henty (1882) 7 App Cas 741; 52 LJQB 232; 47 LT 662; 47 JP 214; 31 WR 157, HL, Dawson Bloodstock Agencies Pty Ltd v Mirror Newspapers [1979] 2 NSWLR 733, Grubb v Bristol United Press Ltd [1963] 1 QB 309; [1962] 3 WLR 25; 106 SJ 262; [1962] 2 All ER 380, Jones v Skelton [1963] 2 WLR 1362; 107 SJ 870; [1963] 3 All ER 952 PC, Ladd v Marshall [1954] 3 All ER 745; 98 SJ 870; [1954] 3 All ER 745; 71 LQR 166, CA, Lewis v Daily Telegraph Ltd [1964] AC 234; [1963] 2 WLR 1063; 107 SJ 356, Minister for Lands v Frame [1980] PNGLR 433, James Neap v The State (1982) SC228, Raphael Warakau v The State (1980) SC184, Re James Allan Sannga [1983] PNGLR 142, Sim v Stretch (1935–1936) 52 TLR 669; [1936] 2 All ER 1237; 80 Sol Jo 703, The State v Wik Kor [1983] PNGLR 24, Tei Abal v Anton Parau [1976] PNGLR 251, The Government of Papua New Guinea and Davis v Barker [1977] PNGLR 386, Tolley v Fry [1930] 1 KB 467 and Watkin v Hall (1868) LR 3 QB 396; 9 B & S 279; 37 LJQB 125; 18 LT 561; 32 JP 485. referred to

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, O22, r31 and r32, in proceedings for defamation.

___________________________

Kidu CJ and 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 wellknown 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 'CIS 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...