David Lambu v Paul Paken Torato (2008) SC953

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu, Davani & Cannings JJ
• Judgment Date: 28 November 2008
• Citation: (2008) SC953
• Docket Number: SCA NO 124 OF 2007
• Judgement Number: SC953

Full Title: SCA NO 124 OF 2007; David Lambu v Paul Paken Torato (2008) SC953

Supreme Court: Gavara-Nanu, Davani & Cannings JJ

Judgment Delivered: 28 November 2008

SC953

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 124 OF 2007

DAVID LAMBU

Appellant

V

PAUL PAKEN TORATO

Respondent

Waigani: Gavara-Nanu, Davani & Cannings JJ

2008: 3 July, 28 November

PRACTICE AND PROCEDURE – default judgment – whether default judgment can be entered in an action for defamation.

PRACTICE AND PROCEDURE – summary judgment – whether summary judgment can be entered in an action for defamation.

The appellant (then the plaintiff) commenced proceedings against the respondent (the defendant) in the National Court, claiming damages for defamation. The defendant failed to file a defence within the time permitted by the Rules and the plaintiff moved a motion for default judgment. The National Court refused the motion, holding that there must be a determination by the court on the question of whether any matter is or is not defamatory, and such a determination cannot be made in the course of a motion for default judgment. The plaintiff appealed against the refusal to enter default judgment.

Held:

(1) Default judgment can be entered in a defamation action, subject to the normal requirements for entry of default judgment, including the exercise of discretion, by the Judge hearing the motion, as to whether it is appropriate to enter default judgment.

(2) In the present case, the primary Judge erred by deciding that entry of default judgment in a defamation action is prohibited.

(3) The appeal was accordingly allowed and the order of the primary judge quashed.

(4) Per Gavara-Nanu J: the defendant in a defamation suit can make an interlocutory application before a judge before the trial itself to decide whether the matter complained of is defamatory.

(5) Per Davani J: in view of the special pleadings requirements in a defamation action, a Judge should exercise great care when exercising the discretion whether to enter default judgment and ensure that the statement of claim is carefully screened.

(6) Per Cannings J: despite some special features, a defamation action is much like any other civil action. If the defendant is in default of the Rules, the plaintiff is entitled to seek default judgment and the Judge hearing the motion is obliged to hear and determine it in much the same way as in any other civil proceedings.

(7) Per Davani J and Cannings J: the appeal having been allowed and the decision of the primary judge quashed, the consequential orders should be for the matter to be remitted to the National Court and for the appellant to decide on the next step to take; and for the parties to bear their own costs of these proceedings.

(8) Per Gavara-Nanu J (dissenting as to the nature of the consequential orders): the appropriate order would be that default judgment be entered in favour of the appellant/plaintiff, that the matter be remitted to the National Court for assessment of damages and that the respondent pay the appellant’s costs.

(9) The order of the Supreme Court, by majority, was accordingly:

1. the appeal is upheld;

2. the order of the National Court of 9 November 2007 in OS No 892 of

2007 is quashed;

3. the matter is remitted to the National Court;

4. the parties shall bear their own costs.

Cases cited:

Papua New Guinea cases

Belta Kitipa v Vincent Uali & 3 Ors (1998) N1773

Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002) N2182

Dolphin Enterprises Pty Ltd v Sound and The Independent State of Papua New Guinea [1990] PNGLR 77

Duma v Hriehwazi and Pacific Star Limited Trading as "The National" (2004) N2526

Gabe v Clunn, Clockwork Orange and Pacific Gold Studios Pty Ltd [1995] PNGLR 153

Glenn B Watterston v Henry Moses (1982) N388

Henao v Coyle (1999) N1918

Kamea Gabe v Jack Clunn and Pacific Gold Studios Pty Ltd [1995] PNGLR 153

Kante Mininga v The State & Ors (1996) N1458

Kembo Tirima and Others v Angau Memorial Hospital Board and The State (2005) N2779

Kunton v Junias and The State SCA No 158 of 2004, 28.09.06

Map Makers Pty Ltd v Broken Hill Proprietary Company Ltd [1987]

Morobe Provincial Government v The State (2008) SC943

Omben Kumbe v MVIL (2005) N2860

Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694

Paraka v Madang Provincial Government (1997) N1596

Pawa Kombea v Semal Peke [1994] PNGLR 572

Pinoko v The State (1997) N1520

PNGLR 78

Samiano v Dekuku (2001) N2057

Telikom PNG Ltd v Thomas Tulin (2004) SC748

Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16

Tom Ilaisa v Maurice Kalubaku & Others, WS No 143 of 1990, 23.11.90

Waterston v Moses (1982) N388

William Mel v Coleman Pakalia and Others (2005) SC790

Overseas cases

Aitarama Ltd v Forsyth (1981) NSWLR 188

Asprotravel v Owners Abroad Group [1995] 4 All ER 728

Ballantyne v Television New Zealand Ltd [1992] NZLR 455

Composite Buyers Limited and Ragg v Clarke [1988] Qd R 602

Coyne v WA Newspapers (1996) 15 WAR 51

Donald Campbell & Co v Pollack [1927] AC 732

Electricity Corp v. Geotherm Energy [1992] 2 NZLR 641

General Steel Industries v. Commissioner for Railways (NSW) (1964) 112 CLR 125

Hyams v Peterson [1991] 3 NZLR 648 at 656-657 and

James v Nationwide News (1992) 110 FLR 274

Jones v Skelton [1963] SR (NSW) 644 at 650

Mapp v News Group Newspapers Ltd [1998] 2 WLR 260

Marshall Futures v Marshall [1992] 1NZLR 316

Monte v Mirror Newspapers (1979) 2 NSWLR 663

Morris v Newcastle Newspapers (1985) 1 NSWLR 260

Morgan v Oldham’s Press Ltd [1971] 2 All ER 1164

Ritter v Godfrey [192] 2 KB 47

R Lucas & Son (Nelson Mail) v O’Brien [1978] 2 NZR 289

Roux and Others v. Australian Broadcasting Commission [1992] 2 VR 572

South Pacific Manufacturing Co v NZ Security Consultants and Investigations [1992] NZLR 282

Takaro Properties v Rowling [1978] 2 NZLR 314

References

Halsbury’s Laws of England, 4th Ed. Vol. 28

APPEAL

This was an appeal against a decision of the National Court to refuse a motion for default judgment in a defamation action.

Counsel

D Lambu, the appellant, in person

N Kubak, for the respondent

28 November, 2008

1. GAVARA–NANU J: The appellant appeals against the whole of an interlocutory judgment by Sakora J given on 9 November, 2007, in WS NO. 892 of 2007, refusing to enter default judgment against the respondent. Leave to appeal was granted on 14 March, 2008.

2. On 15 August, 2007, the appellant issued proceedings in WS NO. 892 of 2007, against the respondent claiming damages for defamation. The appellant’s claims arose out of statements allegedly made by the respondent about the appellant during the 2007 national general elections in which the appellant and the respondent contested the Enga Provincial seat. The appellant claimed that the respondent in his campaign speeches made defamatory statements against him in Engan language which is spoken and understood by the entire population of Enga Province, thus resulting in his loss in the election.

3. The relevant undisputed facts immediately leading up to 9 November, 2007 when Sakora J gave his judgment refusing to enter a default judgment against the respondent as disclosed by the affidavit sworn by the appellant on 6 October, 2007, are as follows. On 17 August, 2007, the appellant personally served a sealed copy of the writ on the respondent. On 13 September, 2007 the appellant was served with a sealed copy of the respondent’s Notice of Intention to Defend, but there was no defence filed by the respondent. On 11 October, 2007, the appellant did a search in the Court file at the National Court Registry and found that no defence was filed by the respondent. On the same day, the appellant wrote to the respondent’s lawyer Mr. Kubak and advised that the respondent had not filed his defence and warned that he would apply for a default judgment. The letter was hand delivered to Mr. Kubak’s office and was received by Mr. Kubak’s secretary Ms. Esther Simbi, who acknowledged receipt of the letter in writing.

4. Before 17 October, 2007, the appellant conducted another search in the Court file and found that still no defence or an application for leave to file a defence out of time was filed by the respondent. As a result, the appellant on 17 October 2007 filed a Notice of Motion seeking default judgment with damages to be assessed.

5. On 7 November, 2007, the appellant moved his Motion pursuant to O 12 Division 3 rr 24 and 25 (b) of the National Court Rules for a default judgment against the respondent for failing to file a defence. By then the respondent had also filed his defence, but it was out of time. On 7 November, 2007, the respondent also filed a cross Notice of Motion for leave to file his defence out of time.

6. When the appellant moved his Motion on 7 November, 2007, Mr. Kubak conceded the default by his client in failing to file a defence, however, it was submitted that default judgment could not in law be entered against his client because entry of default judgment was prohibited by O 12 r 37, which provides that actions for libel and slander cannot be summarily disposed of.

7. It was submitted that in a defamation suit a preliminary determination has to be first made to decide whether matters complained of in a Statement of Claim are defamatory. Mr....