N1288

PAPUA NEW GUINEA
[In the National Court of Justice]

WS No. 569 of 1994

ETON PAKUI
Plaintiff

V

THE STATE
Defendant

Mt Hagen: Woods, J
9th & 19 December 1994

Practice and Procedure - Striking out Defence - Pleading the general issue.

Cases cited:
Akipa v Lowa [1990] PNGLR 502.
Hornibrook Constructions P/L v Kawas Express Corp P/L [1986] PNGLR 301.

D. L. O’Connor for the Plaintiff
M. Pokia for the Defendant

16 December 1994

WOODS, J: The Plaintiff has applied to strike out the Defence on the grounds that the Defence is too general, in effect that the defendant has pleaded the general issue, this being especially disallowed by Order 8 rule 28.

This submission requires a close look at Order 8 Rules 21, and 28.

Order 8
Rule 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.

Rule 28. A party shall not plead the general issue.

These two rules have been discussed by Kapi DCJ in the cases: Hornibrook Constructions P/L v Kawas Express Corp P/L [1986] PNGLR 301 and Akipa v Lowa [1990] PNGLR 502.

In the Hornibrook case the Judge struck out the defence as in the circumstances of that case and on the pleadings the Defendant has clearly made a general denial without reference to the facts pleaded, namely the reference to the contract the subject of the case. However in Akipa’s case the Judge went further into what is the general issue and referred to Order 8 Rule 21 (2) and said:

"I conclude from the cases I have referred to that pleading the general issue in defence is a plea which to use the words of Sugarman AP in the Rudenno case ‘merely state a conclusion from denials which are not stated’. For example; in an action for goods bargained and sold or sold and delivered, the plea in defence must deny the order or contract, the delivery or the amount claimed. To plead that the defendant ‘is not liable’ or was ‘never indebted’ is a conclusion which does not state the facts upon which such a conclusion is reached. However where the statement of claim pleads facts upon which the cause of action is based such as existence of an order or contract, the delivery or amount claimed in an action for goods bargained and sold or sold and delivered, a mere denial of these facts either generally or specifically is permissible under O 8.r 21(2) of the National Court Rules. Such a plea in my view does not offend O 8, r 28 of the Rules."

In the case before me now the Plaintiff has pleaded a police raid on a certain date which destroyed property and it is alleged that the State was negligent in supervising its officers.

In its Defence the State says:

2. The defendant denies paragraphs 4, 5, 6, 7, and 8 of the plaintiff’s Statement of Claim and says that the damages occurred in circumstances other than those alleged and that the Defendant has no knowledge of the destructions alleged to be done by its agents or servants. 

The Defendant goes further than a general denial without any reference to facts but specifically denies by reference to the facts namely that it occurred in circumstances other than those alleged and denies the destruction alleged.

So the Defence is clearly a statement of non-admission and by reference to the matters pleaded in the claim.

The defence is not therefore merely pleading a general issue within the meaning of rule 28, but instead is pleading as allowed in rule 21. 

I dismiss the application.

*************************

Lawyer for the Plaintiff: D.L.O’Connor
Lawyer for the Defendant: Solicitor-General