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Basefan v Kimus [2009] PGDC 88; DC983 (9 June 2009)

DC983

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS CIVIL JURISDICTION

DCCi 28 of 2009

BETWEEN:

SASPAR BASEFAN
Complainant

AND:

TONY KIMUS
1^st Defendant

AND:

JANT LIMITED
2^nd Defendant

Madang: E Wilmot

2009: 9 June 2009

CIVIL – Application to Dismiss Proceedings for show no cause of Action

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Counsel
In Person, for the Complainant
Ilaisa Lawyers, for the Defendant

9 June 2009

E Wilmot DCM: This is an application to dismiss the proceedings filed by the Defendants through Ilaisa Lawyers. The application was heard on the 6 of June 2009.

The substantive, matter was brought by the complainant seeking damages for defamation.

The Defendants submit that this application made pursuant to section 22 of the district courts act be dismissed.

They rely on the affidavit if Tony Kimus filed 15 May 2009. The facts are as follows that on 10 August 2008 between 3-4 four the complainant was instructed to truck in the last logs to the chip mill to meet the requirements of the day.

The manager was informed that the complainant would bring the last load. The manager instructed the worker at the weight bridge till the complainant came. They waited till 830pm. the complainant did not come. The workers had to be sent home.

The next day the division manager called the 1st defendant into his office and asked why the loads were not brought down. He was advised by the 1st defendant of what happened. The Division manager asked the 1st defendant to terminate the complainant.

The 1st defendant pleaded with eth division manager and the decision was reconsidered, but he ordered that the complainant be suspended for 2 days.

The defendants rely on section 22 – the general jurisdiction of the court to bring further that order 12 of the National court rules. It is true; the district court follows the national court and ant higher court. A comparison can be drawn from application to set aside default judgement. It is now practice in the district court that where an application is made to set aside and ex parte order, there are three requirements that must be satisfied. These requirements were taken from the practice in the National court. It is now established law in district court.

But can this be made in theses circumstances. First and foremost before a district court magistrate can consider issuing orders under section 22 the subject matter before him must be within his jurisdiction. Under the defamation act there is no specific court that has jurisdiction to do with defamation.

Secondly the claim made by the complainant for the words he is asserting to be defamatory is for K5000. That too is within my jurisdiction. I am satisfied that I can go ahead and deal with this application.

I must now look at the defendants are rising in their submission.

Firstly that the words uttered by the first Defendant were not defamatory. That the defendant had a history of being suspended for various occasions. And states three instances where the defendants have been suspended.

On relying on this submission they submit that because the statement is not defamatory there is no cause of action.

Secondly because of his history in suspension, the records speak for themselves. The words uttered were made in good faith that the 1st defendant was discharging his duty when telling him that he was suspended. There fore it is frivolous.

That thirdly that case cannot be substantiated. He knows that he was suspended for disobeying instructions. He should be satisfied with the two day suspension he was given. Therefore this claim is vexation in that he harassing the defendants.

In response the defendant made oral response stating the following. I took the defendants to court for suspending. The statements were defaming my name in front of my workmate. I was ashamed that I left work. That is why I brought this case.

I look at the defendant’s submission and I disagree.

How was the statement delivered? I have read the claim. I have also read the witness statement. The statement was delivered loud, and it was received or published before the complainant’s co-workers.

The statement was made orally. It was made in front of his peers and made loudly. I disagree with counsel; it is irrelevant whether the complainant has a history of being suspended. One must consider how the words were delivered and how was received not only by the complainant by how it is perceived. This can only be made at trial proper.

I dismiss the Application with cost.

_________________________________________
Lawyer for the Complainant in Person
Lawyer for the Defendant Ilaisa Lawyers