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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN TH NATIONAL COURT OF JUSTICE]
WS 264 OF 2018
BETWEEN:
PAUL ALISER
Plaintiff
AND:
SEVERIN SIPIAN
Defendant
Kavieng: Kangwia J
2019: 04th September
2020: 19th February
DAMAGES CLAIMED FOR DEFAMATION - Whether default judgement should be entered - Grant or refusal to grant default judgement discretionary - Whether requirements to satisfy entry of default judgement for defamation satisfactorily complied with.
Cases Cited:
David Lambu v Paul Torato [2008] SC953
Counsel:
M. Titus, for the Plaintiff
No Appearance, for the Defendant
19th February, 2020
1. KANGWIA J: The Plaintiff by notice of motion filed on 29 May 2018, moved for default judgement against the Defendant pursuant to Order 12 Rule 25 (a), (b) & (c) and Rule 27 (2) of the National Court Rules (NCR herein).
2. The Defendant pursuant to Order 07 Rule 06 (2) of the National Court Rules filed a notice of motion on 02 August 2018 for leave to file its defence out of time. Both motions were set for hearing on 04 September 2019. The facts in brief are these.
3. By a Writ of Summons the Plaintiff, claimed the following relief:
4. The claim arose out of a letter written by the Defendant to the Police which alleged among others that the Plaintiff misappropriated funds and materials belonging to the Provincial Government. The Plaintiff claimed that the contents of the letter contained matters that were libellous of him and claimed the orders sought as damages in defamation.
5. By way of background the events leading to the applications are these:
1.The Writ of summons was filed on 27 March 2018 and served on the Defendant on 28 March 2018.
2. On 25 May 2018 the Defendant filed its notice of intention to defend.
3. Since then the Defendant did not file any defence.
4. The Notice of Motion for default judgement was filed on 29 May 2018.
5. Both motions were set for hearing on 04 September 2019.
6. On the hearing date the Defendant nor his counsel made any appearance. However, it was discovered that a defence and an affidavit in support had been filed on 02 August 2018 with the application for leave. The Plaintiff applied for dismissal of the Defendant’s Application for leave for want of prosecution which was granted in the exercise of discretion. The Plaintiff then moved its motion for default judgement.
7. In support of the application for default judgement the Plaintiff relied on the affidavits of the Plaintiff Paul Aliser sworn on 06 September 2018, Lucas Ruia sworn on 10 September 2018, Noel Kipie sworn on 29 may 2018 and the extract of arguments filed on 22 May 2019 by Michael Titus as counsel for the Plaintiff. They are briefly set out as follows;
8. His affidavit related to the Defendants Notice of Motion for leave to file defence out of time and the statement of claim in the writ of summons. He contended that the explanations by the Defendant for the delay were unreasonable and should not be accepted as his lawyer was present at his office which was next to the Provincial Administrators Office. There was no evidence of the alleged misappropriation to confirm the defence of truth and justification alleged in the proposed defence.
9. The only material evidence alleged by the Plaintiff was a printout of a letter without any other evidence.
10. He deposed that the proceedings against him in the committal proceedings were withdrawn for lack of a hand up brief.
11. He further contended that the allegation on the misuse of building materials were vague and too general; that no invoices or quotations were referred to by the Plaintiff, hence there was no meritorious defence.
12. Their affidavits related to their service of various documents on behalf of the Plaintiff.
13. On the Plaintiff’s behalf Mr Titus submitted that the Defendant was served the writ of summons on 28 March 2018. The 30-day time period for the Defence to file a notice of intention to defend lapsed on 27 April 2018. Two searches were conducted at the Court registry which found that no notice of intention to defend or defence had been filed. Therefore, the Defendant was in default and the Plaintiff was entitled to default judgement in line with the case of David Lambu v Paul Torato [2008] SC 953.
14. Even though the Defendant did not move his motion, the draft defence and supporting affidavit filed by the Defendant with the application for leave has been challenged in the Plaintiff’s affidavit hence in the exercise of discretion it is appropriate that the contents of the Defendants defence and affidavit be referred to in this decision.
15. The records on the Court file also show that the Defendant’s notice of motion for leave, defence and the affidavit in support by the Defendant were all filed on 02 August 2018.
16. The record also shows that the Defendant filed its notice of intention to defend on 25 May 2018 after the lapse of the 30 days allowed for filing of a notice of intention to defend. These records negative the affidavits of search by Noel Kipie and Michael Titus for the Plaintiff who averred that there was no notice of intention to defend or defence filed by 29 May 2018. It is apparent that a proper search was not conducted on the part of the Plaintiff amounting to an abuse of process. Those oversights give further basis for the Court to refer to the Defendants defence and affidavit in support in its determination.
17. In the affidavit of the Defendant he admitted to writing the letter the subject of this proceeding to the police. He explained that the letter was written in his capacity as the Special Duties Officer in the New Ireland Governor’s office at the direction of the Governor.
18. He also stated that what he wrote in the letter were true in substance and did not make up false allegations against the Plaintiff after there were grounds to believe that funds and building materials were misappropriated.
19. He further stated that his letter arose out of a Namatanai District Treasury computer printout which showed that the Defendants Company McJan Limited was paid K180, 000. 00 on 30 October 2013 for youth poultry and fishing projects from which no such projects existed. The money and property involved were of substantial value belonging to the public which were misused.
20. Therefore, it was submitted in his affidavit that the statement he made in the letter to the police was genuine for the police
to investigate and not defamatory of the Plaintiff.
Be that as it may the Defendant defaulted by not filing its notice of intention to defend within the prescribed time period.
21. The main issue arising for consideration is whether the Plaintiff was entitled to default judgement for defamation?
22. The law in this country is that where a Defendant defaults in filing a notice of intention to defend within the prescribed time period the Plaintiff was entitled to default judgement for defamation as in other cases. In a unanimous decision in line with the decisions in a number of overseas cases the Supreme Court in David Lambu v Paul Torato [2008] SC 953 held that a Plaintiff was entitled to default judgment in a defamation case.
23. In the case referred to, the Appellant appealed against a decision of the National Court which ruled that default judgement could not be entered in defamation claims. The Supreme Court overturned the National Court decision and held that a Plaintiff in a defamation claim was entitled to default judgement.
24. However, the Court further held that entry of default judgement was subject to the normal requirements of entering default judgements including the exercise of discretion of the judge hearing the application as to whether it was appropriate to enter default judgement. It was further held that the Plaintiff must show that the matters alleged were defamatory or were capable of bearing a defamatory meaning to establish liability from which damages could be assessed.
25. In the present case before any default judgement is entered the onus is on the Plaintiff to fully satisfy or comply with the requirements under the National Court Rules.
26. Motions for Default Judgements are guided by the rules under Order 12 Division 3 rules 24 and 25 of the National Court Rules. The relevant parts for the present application are as follows:
Rule 24. Application of division 3
This division applies to proceedings commenced by writ of summons.
Rule 25. Default
A defendant shall be in default for the purpose of this division-
(a) where the originating process bears a note under Order 4 Rule 9, and the time for him to comply has expired but he has not given the notice; or
(b) where he is required to file a defence and the time for him to file his defence has expired but he has not filed his defence; or
(c) ...
27. In the present case the Court records show that the Defendant did not file any notice of intention to defend or defence since the writ of summons was served on him and a default had been committed.
28. Following the default, the Plaintiff applied for default judgement pursuant to Order 12 Rules 24 and 25 of the National Court Rules.
29. The grant or refusal to grant default judgments is an exercise of discretion pursuant to Order 12 Rule (1) of the NCR which is in the following terms:
ORDER 12 JUDGEMENTS AND ORDERS
The Court may at any stage of any proceedings, on the application of any party, direct the entry of such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process.
30. The requirements for an application for default judgement are provided under Order 12 Rules 25 and 34 and Rule 49 (3) (i) of the National Court Rules for which the relevant parts are as follows:
25. Default
A defendant shall be in default for purposes this division –
34. Proof of service of writ
Judgement shall not be entered against a defendant under this Division unless-
(a) an affidavit is filed by or on behalf of the plaintiff proving due service of the writ of summons or notice of the writ on the
defendant; or
(b) the plaintiff produces the writ endorsed by the defendant solicitor with a statement that he accepts service of the writ on the
defendant’s behalf,and an affidavit is filed by or on behalf of a plaintiff proving the default of the defendant on which the
plaintiff relies.
(49) (3) Default Judgement procedure
(i) An application for default judgement shall file the following documents;
- (1) Notice of motion
- (2) Affidavit of service
- (3) Affidavit of search before filing the motion
- (4) Affidavit in support (to also attach copy of the letter to the other party forewarning of the application if a notice of intention to defend has been filed).
- (5) A draft order for default judgement.
(ii) ...
(iii) ...
(iv) The affidavit of service must strictly comply with Order 12 Rule 34 of the National Court Rule i.e. the affidavit must prove due service of the writ, i.e. it must depose to date and time of service and whom the writ was served. A copy of the writ must be attached to the affidavit of service.
30. The cited rules are clear and mandatory. Firstly, there must be a default committed by the Defendant before an application for default judgement can be mounted.
31. It is also a mandatory requirement that for default judgement to be entered there must be proof of service pursuant to Order 12 Rule 34 and Rule 49 (3) of the NCR.
32. In the present case the Plaintiff was served the writ of summons on 28 March 2018. The thirty days to file a notice of intention to defend lapsed on 28 April 2018. It is apparent that the Defendant was in default by more than 30 days.
33. The records also show that the Plaintiff had satisfactorily complied with the requirements for default judgement. Therefore, the Plaintiff would be entitled to default judgement in line with the case of David Lambu v Paul Torato.
34. However, the Court in that case also held that although default judgement can be entered in a defamation case it was subject to the requirements in claims for default judgement. It is obvious that that the requirements for default judgement must be satisfactorily complied with before a default judgement could be entered.
35. In the present case no argument was advanced on the requirements for a claim in defamation. The Plaintiff relied on the Defendant’s default to seek entry of default judgement.
36. The National Court Rules under Order 8 Division 7 – (Defamation) provides the requirements in a claim in defamation for the Plaintiff and the Defendant. The relevant parts are reproduced as follows:
83. Application of Division 7
This Division applies to proceedings for defamation.
84. Particulars required by Rule 29 in relation to a statement of claim shall include-
(a) sufficient particulars of the publication in respect of which the proceedings are brought to enable the publication to be identified; and
(b) where the plaintiff alleges that the matter complained of was used in a defamatory sense other than its ordinary meaning -particulars of the facts and matters on which he relies in support of that sense.
85. Protection, justification and excuse
A defendant shall specifically plead any defence of protection, justification or excuse of law
.
86. Particulars of defence.
(1) ...
(2) Where a defendant pleads truth and public benefit, the powers of the Court under Rule 36shall extend to orders in relation to particulars of the facts and matters on which he relies to establish-
(a) that the publication was made for the public benefit; and
(b) that the matter complained of was true.
37. The combined effect of those provisions is that the Plaintiff must show that matters alleged were defamatory or were capable of bearing defamatory meaning to establish liability from which damages could be assessed.
38. In the present case the Defendant failed to appear and could not present his defence in the claim so Rule 36 did not apply. Despite that the contents of his defence and affidavit in support which were filed with his Notice of Intention to defend were referred to and challenged by the Plaintiff through his affidavit relied on to seek default judgement. This therefore inadvertently places the Defendant’s defence and evidence to the attention of the Court which cannot be avoided from consideration.
39. In the statement of claim under items 4 and 5 (a) to (m) the Plaintiff pleaded the natural and ordinary meaning of the words alleged from the Defendants letter.
40. Without pleadings whether those words in the natural and ordinary meaning were defamatory, the Plaintiff proceeded in the alternative to plead that the matters complained of were used in a defamatory sense under items (6) (i) to (xiii) of the statement of claim.
41. Under those items the Plaintiff pleaded that the words complained of meant or understood to mean that he deceitfully and with intent to swindle, con and steal public monies allocated for the Tanga Youth Poultry and Fishing project to take the following actions:
(i) approached the Namatanai District Development Authority (NDDA).
(ii) requested from NDDA K200,000. 00 for Tanga Youth poultry
(iii) submitted to the NDDA that he would coordinate and manage Tanga Youth Poultry.
(iv) NDDA approved the deceitful request made.
(v) NDDA paid him or McJan Ltd. a cheque in the amount of K180,000. 00 allocated to Tanga Youth Poultry and Fishing.
(vi) The NDDA informed the Plaintiff of payment to Chief Collector of Taxes.
(vii) No signs of poultry or fishing projects on Tanga Island evidencing payment of money.
(viii) Knowingly and fraudulently misappropriated K180, 000.allocated for Tanga Youth Poultry and Fishing.
(ix) Deceitfully won a substantial building contract
(x) Conspired with Principal of Tanir High School and removed building materials worth K474, 436. 45.
(xi) Purchased and relocated building materials.
(xii) Directed another to sell three quarters of building materials belonging to the Provincial Government.
(xiii) Used building materials belonging to the Provincial Government.
42. On the back of those pleadings it was further pleaded that by reason of the publication of those words the Plaintiff has been seriously injured in his character, credit and reputation and has suffered damage.
43. The Plaintiff also claimed punitive damages by pleading various facts that the Defendant did not have any proper standing and qualification to print those words; that the words written did not have any evidence of reference or proof to substantiate the claims.
44. The Plaintiff further claimed that he personally or as chairman of McJan Ltd had no interest or business with Tanga Youth Poultry and Fishing projects.
45. For these reasons the Plaintiff also claimed aggravated damages and other orders sought in the statement of claim.
46. The law on pleadings in a claim for default judgement in defamation cases are prescribed under order 8 Rule 84 as referred to
above.
The pleadings relied on to claim default judgement must be supported by particulars within the body of the statement of claim to attract
default judgement.
47. In the case of South Pacific Post Pty Ltd v Nwokolo [1984] PNGLR 38 the Supreme Court held that:
“Under Rule 84 (b) true or legal innuendos must be supported by particulars within the body of the statement of claim itself.
48. In the case of A/S Kristian Jebsen Rederi trading as the Jebsen line v Heenan Corkhill and Steamships Trading Co Ltd [1986] PNGLR 61, the Court held that:
“In proceeding for defamation, where the Plaintiff relies upon the natural and ordinary meaning of the words complained of as being defamatory, there is no requirement in the Defamation Act (Ch No 293), or in the National Court Rules, that a defamatory imputation should be pleaded.”
49. In the present case the Plaintiff did not rely on the natural and ordinary meaning of the words complained of as defamatory. If he did rely on the natural and ordinary meaning, he would not be required to plead a defamatory imputation.
50. He has in the alternative pleaded defamatory imputation in the words alleged as follows:
“the words complained of meant or understood to mean that the Plaintiff deceitfully and with intent to swindle, con and steal public monies allocated for the Tanga Youth Poultry and Fishing project did what was alleged by the defendant.”
51. Therefore, pursuant to Order 8 Rule 84 (b) the imputation must be supported by particulars within the body of the statement of claim.
52. At the outset the pleadings are convoluted and ambiguous. The pleading is unclear as to what was defamatory in the alleged
letter to police.
From a perusal of the body of the statement of claim it does not disclose any particulars to show that the Plaintiff did not deceitfully
took the steps he was alleged to have taken.
53. Also, there are no particulars to show that the Plaintiff did not have an intention to swindle, con and steal public monies allocated to Tanga Youth Poultry and fishing.
54. The Plaintiff made no denial nor did he offer an explanation on the content of the letter in the statement of claim from which the Court could be satisfied that allegations in the letter contained defamatory imputations.
55. Furthermore, in the statement of claim there are no particulars of the damages suffered or injury suffered to the Plaintiffs character, credit and reputation.
56. Then there is the undisputed fact referred to in the statement of claim. On a document entitled ‘Expenditure Transaction Details’ from DSIP Namatanai, it showed that on 30 October 2013, K180, 000. 00 was paid to McJam Limited a company the First Defendant was associated with. How did that transpire? Was the document relied on by the Defendant to write to police a con document? Was the document widely circulated? These unanswered questions render the proceeding as ambiguous and uncertain as to what the cause of action is. It further goes to show that the Plaintiff has no genuine claim in defamation.
57. In reference to the Expenditure Transaction document from NDDA, it was claimed in items (e) to (m) of the statement of claim, that the Plaintiff personally or in his capacity as an officer of McJan Limited had absolutely no interest or business with Tanga Youth poultry and Fishing project.
58. This claim effectively contradicts the unchallenged information in the Expenditure Transaction document referred to which shows that K180, 000. 00 for Youth Poultry and Fishing was paid into the company that the Plaintiff was associated with. That information appeared in the letter to the police as a complaint for investigation. A complaint to police is not restricted to any specific class of persons. Any member of the public is entitled to lay a complaint with police for investigation. It is a normal police duty to investigate any complaint. The Defendant made no error in the way the complaint against the Plaintiff was laid.
These considerations lead this Court to the conclusion that the statement of claim is not genuine. It further leads to the conclusion that the Plaintiff failed to establish that the letter the subject of this proceeding contained the defamatory imputations alleged by the Plaintiff.
59. In view of all that has been considered this Court is of the view that it should not exercise its discretion in favor of the Plaintiff.
60. The formal orders are:
________________________________________________________________Titus Lawyers: Lawyers for the Plaintiff
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