N9352
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.106 OF 2019

BETWEEN:
SYLVESTER HARRY KOMBA
Plaintiff

AND:
ALICE KIMBU
First Defendant

AND:
LISANDRA KOT
Second Defendant

AND:
RUTH PUKARI
Third Defendant

AND:
ALFRED KIMBU trading as KIMBU & ASSOCIATES LAWYERS
Fourth Defendant

Waigani:  David, J
2021: 14th October & 19th November

PRACTICE AND PROCEDURE – application to for leave to amend amended statement of claim - National Court Rules, Order 8 Rule 50.

PRACTICE AND PROCEDURE – application to strike out pleadings relating to a claim for defamation (libel/slander) National Court Rules, Order 8 Rule 27(1)(b) and (c) and (2).

Cases Cited:
Papua New Guinea Cases

New Guinea Limited v Thomason [1975] PNGLR 454
The State v Peter Painke [1976] PNGLR 210
Theresa John Baker v Lae Printing Pty Ltd [1979] PNGLR 16
SCR No.2 of 1981 [1982] PNGLR 150
Uma More v UPNG [1985] PNGLR 401
National Executive Council and Luke Lucas v Public Employees Association [1993] PNGLR 264
Komboro George v MVIT [1993] PNGLR 477
PNG Aviation Services Pty Ltd & Ors v Michael Thomas Somare & Ors (1996) N1493
Theresa’s Pty Ltd v Rio Vista Pty Ltd [1998] PNGLR 283
Henzy Yakham v Merriam [1999] PNGLR 592
Anderson Agiru v The Electoral Commission & The State (2002) SC687
PNGBC v Jeff Tole (2002) SC694
The Papua Club Inc. v Nasaum Holdings Ltd [2002] PNGLR 42
Application by Anderson Agiru (2003) SC704
Michael Kewa v Elias M. Kombo (2004) N2688
Lome v Kundi (2004) N2776
Wassey v Aigilo (2005) N2876
Vari Gari v Motor Vehicle Insurance Ltd (2005) Unreported and Unnumbered, June 2005
Telikom PNG Ltd v ICCC (2008) SC906
White Corner Investments Ltd v Haro (2006) N3089
Kerry Lerro v Philip Stagg (2006) N3050
Rage Augerea v The Bank South Pacific Ltd (2007) SC869
Philip Takori v Simon Yagari (2008) SC905
David Lambu v Paul Paken Torato (2008) SC953
MVIL v Kauna Kiangua (2015) SC1476
Nae Ltd v Curtain Bros Papua New Guinea Ltd (2015) N6124
Sylvester Harry Komba v Alice Kimbu & Ors, WS 106 of 2019, Unreported and Unnumbered, 10 August 2020

Overseas Cases Cited:

Knowles v Roberts (1888) 38 Ch D 263
Leetham v Rank (1912) 57 SJ 111 CA
Tolley v Fry [1930] 1KB 467 CA
Willoughby v Eckstein [1936] 1 All ER 650
Weidenhofer v Commonwealth (1970) 122 CLR 172
Apel v Ready (1971) 1 NSWLR 288
Gunns Ltd v Marr [2005] VSC 251

Counsel

Sylvester Harry Komba, Plaintiff in Person
Alice Kimbu, First Defendant in Person
Don Rake, for the Second, Third and Fourth Defendants

19th November, 2021

1.	DAVID J:	INTRODUCTION: These proceedings stem from the filing of an election petition by way of OS (EP) No.06 of 2017, Sylvester Harry Komba v David Wakias, Election Manager-Southern Highlands Province & Ors (the Election Petition) on Saturday, 8 July 2017 challenging the validity or otherwise of the conduct of polling in the Nipa-Kutubu Electorate in the Southern Highlands Province on a Sunday during the 2017 National General Elections (the General Elections).  The plaintiff unsuccessfully contested the Southern Highlands Provincial seat in the General Elections.  The first, second, third defendants are lawyers who at the material time were all employed by the fourth defendant law firm.  The first defendant is also the plaintiff’s wife.  The plaintiff claims that without his knowledge, consent and authority, the first defendant forged his signature and signed all documents requiring his signature, which she drafted, including the Election Petition, Notice of Motion, Undertaking as to Damages and the Affidavit in Support of Sylvester Harry Komba and filed them at the Registry on 8 July 2017.  The plaintiff also claims that the first defendant also drafted other affidavits, forged the signatures of the purported witnesses and had all the affidavits including the one in his name sworn before lawyers employed by the fourth defendant. The plaintiff claims that the defendants in particular the first defendant filed the Election Petition and the supporting documents without his knowledge, consent and authority principally to financially benefit from the proceedings.   The plaintiff seeks damages under various heads as a result.   

APPLICATIONS

2.	This is a ruling on two contested applications; one by the first defendant to strike out the pleadings for defamation pursuant to Order 8 Rule 27(1)(b) and (c) and (2) and Order 12 Rule 1 of the National Court Rules and if successful, dismiss the entire proceedings; and the other by the plaintiff to amend his pleadings pursuant to Order 8 Rule 50 of the National Court Rules and Section 155(4) of the Constitution.  The first defendant’s application which was moved pursuant to a notice of motion filed on 22 September 2021 is supported by the second, third and fourth defendants.  The plaintiff’s application was moved pursuant to a notice of motion filed on 24 September 2021. 

EVIDENCE

3.	In support of the application, the first defendant relies on and reads the following affidavits:

	1.	Affidavit in Support of Alice Kimbu sworn and filed on 18 July 2019;
2.	Affidavit in Support of Alice Kimbu sworn on 18 November 2019 and filed on 19 November 2019;
3.	Affidavit in Support of Alice Kimbu sworn on 15 July 2021 and filed on 7 September 2021;
4.	Affidavit of Alice Kimbu sworn and filed on 13 September 2021; and
5.	Affidavit in Support of Alice Kimbu sworn and filed on 22 September 2021.
	
4.	The second, third and fourth defendants did not rely on any affidavit.

5.	In opposing the first defendant’s application and in support of his application, the plaintiff relied on and read the following affidavits:

1.	Affidavit of Joel Wanpis sworn on 25 July 2019 and filed on 26 July 2019;
2.	Affidavit of Alvis Sapunaik sworn on 25 July 2019 and filed on 26 July 2019; and
3.	Affidavit in Support of Sylvester H. Komba sworn and filed on 24 September 2021. 

PLEADINGS

6.	These proceedings were commenced by writ of summons endorsed with a statement of claim on 20 February 2019 and amended by amended writ of summons and statement of claim filed on 18 October 2019 (Amended Statement of Claim) by leave of the Court which was granted on 9 October 2019.

7.	The defendants have filed their respective defences to the Amended Statement of Claim all denying liability.  The first defendant’s amended defence was filed on 30 October 2019.  The second and third defendants’ respective defences were filed on 18 November 2019.   The fourth defendant’s defence was filed on 31 October 2019.

8.	The plaintiff has joined issue with matters raised by the defendants in their respective defences.

PREVIOUS APPLICATIONTO DISMISS PROCEEDINGS

9.	On 10 August 2020, following the hearing of applications by the first and fourth defendants to dismiss these proceedings in their entirety under Order 12 Rule 40(1)(a), (b) and (c) of the National Court Rules and s155(4) of the Constitution which was contested by the plaintiff, I dismissed all claims for relief sought for failing to disclose any reasonable cause of action in law under Order 12 Rule 40(1)(a) except for the claim for defamation in light of the express prohibition under Order 12 Rule 37(a) of the National Court Rules which provides that the summary disposal of proceedings under Order 12 Rule 40 does not apply, among others, to proceedings for defamation, ie, libel and slander. 

APPROACH TAKEN FOR DETERMINATION OF APPLICATIONS

10.	I will consider the plaintiff’s application to amend the pleadings in the amended statement of claim first.  

PROPOSED AMENDMENT TO AMENDED STATEMENT OF CLAIM 

Submissions

11.	The plaintiff seeks leave to amend the pleadings in relation to his claim for defamation as the proposed amendment will not raise any new issues, but will accord with facts and evidence already before the Court in particular a letter purportedly from himself to the fourth defendant dated 21 August 2017 which will be pivotal if brought into evidence by the first defendant in her affidavit of 13 September 2021 as annexure A.  The plaintiff also submits that the proposed amendment is necessary to enable the Court to fully and properly determine the real questions in controversy between the parties and will correct any defects or errors in the proceedings. In addition, the plaintiff contends that the proposed amendment will not result in injustice or prejudice to the defendants, but will put the plaintiff’s case in proper perspective and make the issues for trial a lot clearer.      

12.	The first defendant supported by the second, third and fourth defendants submits that the application should be refused as; the plaintiff is prevented by his conduct or the manner in which these proceedings have been progressed given this is the plaintiff’s second application seeking leave to amend his pleadings; and no draft further amended statement of claim has been attached to the plaintiff’s affidavit to demonstrate the amendments proposed.

Reasons for ruling

13.	It is settled law that Section 155(4) of the Constitution is not the source of primary jurisdictional power and can only be relied on to protect primary rights of parties where there is a vacuum in law that had to be filled or in the absence of other relevant law.  In addition, Section 155(4) confers jurisdiction on the Court to issue facilitative orders in the exercise of its inherent power in aid of enforcement of a primary right conferred by law, whether such right be conferred by statute or subordinate legislation enacted under an enabling legislation:  SCR No.2 of 1981 [1982] PNGLR 150 at 154, Uma More v UPNG [1985] PNGLR 401 at 402.

14.	The power of the Court to either grant or not to grant the leave sought by the plaintiff is derived from Order 8 Rule 50 of the National Court Rules. Sub-rule (1) of Order 8 Rule 50 provides that at any stage of the proceedings, the Court may grant leave to a party to make an amendment to any document in the proceedings either on application of a party or of its own motion in such manner as the Court thinks fit. Sub-rule (2) then provides that all necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.

15.	The Court’s power under this rule is discretionary and broad and in exercising that discretion, the Court has the duty to do so judicially and on proper principles, so that justice is done in the case even at the late stage of the proceedings: see New Guinea Limited v Thomason [1975] PNGLR 454; Komboro George v MVIT [1993] PNGLR 477.

16.	In The Papua Club Inc. v Nasaum Holdings Ltd (2002) PNGLR 42, Gavara-Nanu, J set out five considerations to be taken into account when deciding whether or not to grant leave to amend.  These are:  

1. 		Will the amendment enable the Court to determine the real question in controversy between the parties? 
2.	Will the amendment correct any defect or error in the proceedings?
3.	Will the amendment cause real prejudice or injustice to other party?
4. 		Is the application for such amendment made mala fide or bona fide?
5.	Can the other party be fairly compensated with costs for such amendment?

17.	Three other considerations were added to that list by Cannings, J in Michael Kewa v Elias M. Kombo (2004) N2688.  These are:

1.	Is the party applying prevented by its conduct or the manner in which the proceedings have been progressed from being permitted to amend its pleadings?
2.	Where do the interests of justice lie?
3.	Is the proposed amendment efficacious? That is, is it a proper amendment?   

18.	I will apply the above eight considerations in the following manner.

19.	Will the amendment enable the Court to determine the real question in controversy between the parties? I do not have before me a draft of a further amended statement of claim to assist me in determining the application.   One ought to have been attached as I do not know what kind of amendment is being proposed.  The plaintiff has referred to a letter purportedly written by him to the fourth defendant dated 21 August 2021, but besides stating that it is pivotal to his case, how it is to be accommodated by way of an amendment has not been mentioned.  The plaintiff has not satisfied this consideration.

20.	Will the amendment correct any defect or error in the proceedings?  I adopt my observations for the first consideration and apply them here.  The plaintiff has not satisfied this consideration.

21.	 Will the amendment cause real prejudice or injustice to other party?  I adopt my observations for the first consideration and apply them here.  The plaintiff has not satisfied this consideration.

22.	Is the application for such amendment made mala fide or bona fide?  Given my observations in relation to the first, second and third considerations, I will treat this application as being made mala fide.   

23.	Can the other party be fairly compensated with costs for such amendment?  No position on this question was taken by the plaintiff.  Given my observation in relation to the first, second, third and fourth considerations, this consideration is taken against the plaintiff. 

24.	Is the party applying prevented by its conduct or the manner in which the proceedings have been progressed from being permitted to amend its pleadings?  Yes.  This is the plaintiff’s second application for leave to amend the pleadings since the first amendment was sanctioned by the Court on 9 October 2019.   While an application for leave may be made at any stage of the proceedings under Order 8 Rule 50(1) of the National Court Rules, for reasons I have given already, this application has no merit. 

25.	Where do the interests of justice lie?  The interests of justice lie in refusing the application.

26.	Is the proposed amendment efficacious? That is, is it a proper amendment?   No.  For reasons I have stated already, the application has no merit.  

27.	All considerations have been considered against the plaintiff.  Consequently, the plaintiff’s application for leave to amend the amended statement of claim is refused.

APPLICATION TO STRIKE OUT PLEADING

Submissions

28.	The first defendant, supported by the second, third and fourth defendants, submits that the Court, in the exercise of its discretionary power under Order 8 Rule 27(1)(b) and (c) and Order 12 Rule 1 of the National Court Rules and in the exercise of its inherent jurisdiction to protect and safeguard any abuse of its processes, strike out the whole of the plaintiff’s pleadings on defamation as:
	
1.	they are inadequate; and
2.	wrong parties have been sued for publications none of the defendants is responsible for. 

29.	The plaintiff submits that the application should be refused and dismissed for being an abuse of the process of the Court as the issue is res judicata, the Court having made a determination on a similar application on 10 August 2020.  

Reasons for ruling

30.	Order 12 Rule 1 of the National Court Rules is a general provision and does not contain a concise reference to the court’s jurisdiction to grant the order specifically sought.   Order 8 Rule 27 of the National Court Rules is the appropriate rule that does. 

31.	Order 8 Rule 27 states as follows:

“27.	Embarrassment, etc. (15/26) (1) 
(1)	Where a pleading —
(a)	discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(b)	has a tendency to cause prejudice, embarrassment or delay in the proceedings; or
(c)	is otherwise an abuse of the process of the Court,
the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.
(2)	The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).”

32.	Order 8 Rule 27 applies to pleadings.

33.	Order 8 Rule 27 is very similar to Order 12 Rule 40 of the National Court Rules.

34.	Order 12 Rule 40 states as follows:

“(1)     Where in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings- 
(a)     No reasonable cause of action is disclosed;
(b      the proceedings are frivolous or vexatious; 
(c) 	the proceedings are an abuse of the process of the Court.
the court may order that the proceedings be stayed or dismissed   generally or in relation to any claim for relief in the proceedings.

(2) 	The court may receive evidence on the hearing of an application for an order under sub-rule (1).”

35.	The Court’s power to strike out pleadings under any of the grounds specified in Order 8 Rule 27(1) and Order 12 Rule 40(1) is discretionary and also by its inherent jurisdiction, it has power to protect and safeguard any abuse of its processes.  Under Order 8 Rule 27(2) and Order 12 Rule 40(2), evidence may be brought before the Court at the hearing of an application for an order under sub-rule (1) of either of those two rules.

36.	The principles to apply are therefore similar except that the outcomes are different.  Under Order 8 Rule 27(1), the Court may at any stage of the proceedings, on terms or otherwise, strike out the whole or any part of a pleading. Under Order 12 Rule 40(1), the Court may either stay or dismiss the proceedings generally or in relation to any claim for relief in the proceedings. 

37.	The relevant principles were summarised by Kandakasi, J in Kerry Lerro v Philip Stagg (2006) N3050 and endorsed by the Supreme Court in Rage Augerea v The Bank South Pacific Ltd (2007) SC869 and Philip Takori v Simon Yagari (2008) SC905 and I referred to and adopted them in Sylvester Harry Komba v Alice Kimbu & Ors, WS 106 of 2019, Unreported and Unnumbered, 10 August 2020.  For convenience, I set them out again below:

“1.	Our judicial system should never permit a plaintiff or a defendant to be “driven from the judgment seat” in a summary way, “without a Court having considered his right to be heard.” A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land.  The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside. 
2.	At the same time however, the law such as the Rules under consideration provide for and the Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court.
3.	The object of these rules are therefore “to stop cases which ought not to be launched — cases which are obviously frivolous or vexatious or obviously unsustainable.”  In other words “the object of the rule was to get rid of frivolous actions.”
4.	A claim may be frivolous if it can be characterized as so obviously untenable that it cannot possibly succeed or that the claim or defence is bound to fail if it proceeds to trial.   
5.	A claim or defence may be vexatious if the case amounts to a sham or one which cannot succeed and is one that amounts to harassment of the opposing party who is unnecessarily put to the trouble and expenses of defending or proving the claim.   
6.	With regard to the issue of disclosing a reasonable cause of action or defence, the Court must be clear that there are two (2) parts to the phrase “cause of action”.  First, it entails a right given by law such as an entitlement to reasonable damages for breach of human rights under s.58 of the Constitution, commonly referred to as the “form of action”. Secondly, it entails the pleadings disclosing all the necessary facts which give rise to the form of action.
7.	The phrase “cause of action” could thus be defined in terms of a legal right or form of action known to law with:
“every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.  It does not comprise of every piece of evidence which is necessary to prove each fact, but every fact is necessary to be proved.”
8.	A statement of claim or a defence (as the case may be) must therefore clearly plead the form of action by pleading the necessary legal elements or ingredients of the action and relevant and necessary facts (not the evidence) giving rise to the form of action.  It follows therefore that, where a statement of claim or a defence is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, and instead leaves it to guess work, it should be struck out. 
9.	These rules provide a summary judgment procedure or remedy which is available to a plaintiff or a defendant, and one which vests and calls for an exercise of a discretion by the Court.
10.	The discretion must be exercised sparingly and only in a case where the statement of claim or the defence (as the case might be) is “obviously and almost incontestably bad.”  In other words this discretion can be exercised only in cases that “are plain and obvious so that the master or Judge can say at once that the statement of claim [or defence] as it stands, is insufficient, even if proved, to entitle the plaintiff [defendant] to what he asks for.  

38.	To these principles, His Honour added:

“[T]he pleadings must be so bad and or vague and is not a case of lack of particulars or a lack of better pleading which cannot be cured by a request and or orders for further and better particulars and or amendment respectively under O.8, rr. 36, 50 or 51 of the Rules.  Lack of particulars or lack of better pleadings is distinctly separate from a failure to disclose a reasonable cause of action or an action that is frivolous, vexatious or harassment. As such, clear and separate consequences follow. There is provision under the rules for requesting and or orders for further and better particulars or better pleadings as opposed to a right in a defendant or an opposing party to apply for a dismissal straightaway. A party must be careful not to ask for and the Court must stop to ensure that it is not being asked to dismiss a claim because of lack of particulars or lack of proper pleading which can be cured by appropriate amendments to the pleadings.   Regard must also be had to the fact that the Rules are not an end in themselves but a means to an end and by reason of which a strict compliance of the Rules can be dispensed in the interest of doing justice in accordance with O.1, r.7 of the Rules in appropriate cases.”  

39.	The Supreme Court in Anderson Agiru v The Electoral Commission & The State (2002) SC687 summarised the basic principles to apply when considering whether the proceedings were an abuse of process of the court as follows:

“Those principles in essence are that, the court’s inherent power is its authority to do all things that are necessary for the proper administration of justice.  Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity.  Essential to those inherent powers is the court’s duty to protect itself by ensuring that vexatious litigants do not abuse the court’s process by instituting frivolous or vexatious suits.  It behoves litigants therefore to carefully choose their causes of action before they commence proceedings in this court purporting to enforce their rights.  The court should summarily dismiss the proceedings it considers frivolous, vexatious or is an abuse of process.  (see generally, Ronney Wabia v BP Exploration Operating Co. Ltd & Ors, Unreported National Court Judgment N1697 dated 28 March 1998). 
In The State v Peter Painke [1976] PNGLR 210, O’Leary AJ emphasized that:

“mere motive, however reprehensible, will not be sufficient” (to constitute abuse of process) it must be shown that, in the circumstances in which the interposition of the court is sought, the remedy would be unsuitable, and would enable the person obtaining it fraudulently to defeat the rights of others, whether legal or equitable.”        

The court must ensure that a multiplicity of proceedings is not commenced by unsuccessful litigants.  That is that a litigant having selected one mode of proceeding and having failed to obtain a remedy, cannot generally be entitled to then institute an alternative proceeding seeking the same remedy that was denied in the earlier proceeding.”

40. 	In general terms, the words of Order 8 Rule 27(1)(b) describe the whole of a pleading or part of which is unintelligible, ambiguous, does not inform the opposite party what it is alleged against him, contains irrelevant material or makes a claim which the party pleading is not entitled to make:  Willoughby v Eckstein [1936] 1 All ER 650; Weidenhofer v Commonwealth (1970) 122 CLR 172; Apel v Ready (1971) 1 NSWLR 288.
  
41.	In Knowles v Roberts (1888) 38 Ch D 263 at 270-271, Bowen LJ said:

“It seems to me that the rule that the Court is not to dictate to parties how they should frame their case, is one that ought always to be preserved sacred.  But that rule is, of course, subject to this modification and limitation, that the parties must not offend against the rules of pleading which have been laid down by the law; and if a party introduces a pleading which is unnecessary, and it tends to prejudice, embarrass, and delay the trial of the action, it then becomes a pleading which is beyond his right.” 

42.	In Nae Ltd v Curtain Bros Papua New Guinea Ltd (2015) N6124, in dealing with an application to dismiss the proceedings or to strike out the statement of claim under Order 12 Rule 40(1), Hartshorn J referred to Gunns Ltd v Marr [2005] VSC 251 at para 14-15 where the Court said:

“A pleading is embarrassing where it is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him.”

43.	In White Corner Investments Ltd v Haro (2006) N3089, Gabi J, while considering an application to dismiss the proceedings under Order 8 Rule 27, cited Vari Gari v Motor Vehicle Insurance Ltd (2005) Unreported and Unnumbered, June 2005, where Lay J made some useful observations in relation to the jurisdiction of the Court, which I respectfully concur with, in the following passage:

“The jurisdiction of the Court under O8 r27 is to see if the pleadings plead an almost incontestably bad cause of action which cannot possibly succeed, and cannot be cured by amendment (PNG Forest Products Pty Ltd and Inchcape Berhad v The State and Jack Genia [1992] PNGLR 85), assuming the truth of the facts pleaded in the statement of claim (Gabriel Apio Irafawe v Yawe Riyong (N1915)), and to a lesser extent, in the defence, as explained by any evidence adduced on the application solely for the purpose of explaining the pleadings. It is not a demurrer procedure and should not be applied where the pleading is arguable but, on the evidence, the chances of success are slight. If the pleading is arguable and not otherwise embarrassing or vexatious an application under O8 r27 ought not to succeed (Brimson v Rocla Concrete Pipes Ltd: Supreme Court Proceedings New South Wales Vol.2 [13.029] of 30 April 1983). A cause of action is a right which is given by law (the “form of action”) and which should be pleaded disclosing all of the necessary facts which give rise to the form of action (Patterson Lowa, Minister for Minerals and Energy & Ors v Wapela Akipe & Ors [1991] PNGLR 265).” 

44.	In The State v Peter Painke (1976) PNGLR 210 at 213, it was held that any use of the process or procedures of the Court for an improper purpose or in any improper way will amount to an abuse of the process of the Court.

45.	An abuse of the process of the Court can exist in many different ways: National Executive Council and Luke Lucas v Public Employees Association (1993) PNGLR 264, Telikom PNG Ltd v ICCC (2008) SC906.  So, it is not wise to indicate the circumstances that may amount to abuse of the process of the Court as this can be developed on a case by case basis:  National Executive Council and Luke Lucas v Public Employees Association (1993) PNGLR 264, Telikom PNG Ltd v ICCC (2008) SC906.

46.	A defendant who moves the Court to strike out or dismiss proceedings for want of compliance with any rule of practice or procedure bears the onus of proving the circumstance of non-compliance:  Theresa’s Pty Ltd v Rio Vista Pty Ltd (1998) PNGLR 283; Lome v Kundi (2004) N2776; Wassey v Aigilo (2005) N2876.

47.	At common law, the defence of res judicata is a complete defence to an action:  per Injia, CJ in Telikom PNG Ltd v ICCC (2008) SC906.  Usually, where a court upholds a defence of res judicata, it will also find that the proceedings are an abuse of process:  Application by Anderson Agiru (2003) SC704. However, the rejection of a defence of res judicata will not necessarily result in rejection of a submission that the proceedings are an abuse of process of the court because, as I have alluded to earlier, an abuse of process can exist in many different ways:  National Executive Council and Luke Lucas v Public Employees Association [1993] PNGLR 264.

48.	The principles on res judicata which apply in this jurisdiction were succinctly summarised by Injia, CJ in Telikom PNG Ltd v ICCC (2008) SC906.  In order for the defence of res judicata to succeed, a party must demonstrate that:
	
	1.	the parties in both matters are the same;
	2.	the issues in both matters are the same;
	3.	the previous judgment or decision extinguished the foundations of the claim or the right to set up an action.  The result is therefore final and conclusive and it binds every other Court; and
	4.	a court of competent jurisdiction made the first decision.

49.	As I have alluded to already, on 10 August 2020, I dismissed all claims for relief sought for failing to disclose any reasonable cause of action in law under Order 12 Rule 40(1)(a) except for the claim for defamation due to the express prohibition under Order 12 Rule 37(a) of the National Court Rules which provides that the summary disposal of proceedings under Order 12 Rule 40 does not apply, among others, to proceedings for defamation, ie, libel and slander.  The pleadings on defamation were not considered on their merits. Consequently, the plaintiff’s submission that the issue is res judicata has no merit and is rejected.

50.	The question that I need to determine now is whether the pleadings on defamation are framed in such a way that they are unintelligible, ambiguous, vague or too general, do not inform the opposite party what it is alleged against them, contain irrelevant material or make a claim which the party pleading is not entitled to make to warrant them to be struck out.  

51.	The pleadings on defamation are found at paragraphs 17 to 23A of the amended statement of claim.  They concern a purported publication of a letter allegedly authored by the first defendant addressed to the fourth defendant dated 18 July 2017 advising of the intention to withdraw the election petition proceedings citing conflict of interest between the plaintiff and the first and fourth defendants (the Letter) and which was allegedly published in print and social media platform namely, Loop PNG and online on NBC and the Post Courier newspaper.  It is alleged that the publication of the content of the Letter was; likely to injure the reputation of the plaintiff as an upcoming young elite politician from the Southern Highlands Province; likely to injure the plaintiff in his political career and future endeavours; and was likely to induce other persons to shun, avoid, ridicule or despise the plaintiff. 

52.	It is alleged that another article appeared in The National on 16 August 2017 relating to the election matter court proceedings which misreported certain facts and this prompted the fourth defendant to advice the first defendant to withdraw the election matter proceedings as the fourth defendant was already engaged by the Electoral Commission on election related matters and to avoid possible conflict of interest.

53.	In order to make an informed determination regarding the issue under consideration it is, in my view, helpful and necessary to discuss the law on defamation in some detail.   Defamation is a tort at common law.  The relevant principles governing the law on defamation have been adopted in our jurisdiction by virtue of Section 9 and Schedule 2.2 of the Constitution and have essentially been codified in the Defamation Act.  A statement to that effect which I respectfully agree with was made by Sheehan, J in PNG Aviation Services Pty Ltd & Ors v Michael Thomas Somare & Ors (1996) N1493 and is restated as follows:

“the Defamation Act (Ch 293) which consolidates the law on defamation protects the rights of individuals to their good reputation.  It restates the essential common law principles in statutory form.  It is the substantive law of defamation, but without provisions for such matters as procedure, damages or even the absolute protection of Parliamentarians for speeches in the House, the Act is not an exhaustive code in the way that Australian statutes on which it is modelled are said to be codes.  Accordingly, where the act is not specific then common law not inconsistent with the Act is relevant.  English decisions pursuant to schedule 2.2 of the Second Schedule of the Constitution are therefore authoritative, while Australian decisions and those of other jurisdictions maybe persuasive.”

54.	There are special pleading requirements in proceedings for defamation under the National Court Rules which the parties must comply with:  see Order 8 Division 7 (Rules 83-91).

55.     The elements of a cause of action in defamation are set out in Sections 5 and 24 of the Defamation Act:  see also Theresa John Baker v Lae Printing Pty Ltd (1979) PNGLR 16.  In David Lambu v Paul Paken Torato (2008) SC953, the Supreme Court, per Cannings J at paragraph 117, set out the elements of a cause of action of defamation as follows:

“As for defamation, the elements required to sustain a cause of action are that:

•	the defendant made a defamatory imputation of the plaintiff; 
•	the defendant published it;
•	the publication was unlawful (ie it was not protected, justified or excused by law).” 

56.	At paragraph 118 of that judgment, Cannings, J also said:

“The first element is a question of law by virtue of Section 2(3) of the Defamation Act. Invariably, though it is not expressly stated in the Act, so is the third…”

57.	Section 24 of the Defamation Act provides that the unlawful publication of defamatory matter is an actionable wrong.  

58.	Section 2 of the Defamation Act defines what a defamatory matter is.  It states:
	
“2.	Definition of defamatory matter.

(1)	An imputation concerning a person, or a member of his family, whether living or dead, by which—
(a)	the reputation of that person is likely to be injured; or
(b)	he is likely to be injured in his profession or trade; or
(c)	other persons are likely to be induced to shun, avoid, ridicule or despise him,
is a defamatory imputation.
(2)	An imputation may be expressed directly or by insinuation or irony.
(3)	The question, whether any matter is or is not defamatory or is or is not capable of bearing a defamatory meaning, is a question of law.”

59.	Section 3 of the Defamation Act defines defamation.  It states:

“3.	Definition of defamation.

A person who—
(a)	by spoken words or audible sounds; or
(b)	by words intended to be read by sight or touch; or
(c)	by signs, signals, gestures or visible representations; or
(d)	by use of electronic systems or devices,
publishes a defamatory imputation concerning a person defames that person within the meaning of this Act.”

60.	Section 4 of the Defamation Act provides how a defamatory matter is published.  It states: 

“4.	Publication.

For the purposes of this Act, publication is—
(a)	in the case of spoken words or audible sounds, the speaking of those words or making of those sounds in the presence and hearing of a person other than the person defamed; and
(b)	in the case of signs, signals or gestures, the making of those signs, signals or gestures so as to be seen or felt by, or otherwise come to the knowledge of, a person other than the person defamed; and
(c)	in the case of other defamatory matter—
(i)	exhibiting it in public; or
(ii)	causing it to be read or seen; or 
(iii)	showing or delivering it; or
(iv)	causing it to be shown or delivered; and
(d)	any of (a), (b) or (c) generated through the use of an electronic system or device,
with a view to its being read or seen by a person other than the person defamed.”

61.	Section 5 of the Defamation Act provides that the publication of a defamatory matter is unlawful unless the publication is protected, justified or excused by law. 

62.	A publication is defamatory if it lowers the claimant in the estimation of the ordinary right-thinking members of the community generally:  Henzy Yakham v Merriam (1999) PNGLR 592 at 607.  

63.	In Tolley v Fry [1930] 1KB 467 CA at 479 Greer LJ said:

“Words are not defamatory, however much they may damage a man in the eyes of a section of the community, unless they also amount to disparagement of his reputation in the eyes of right-thinking men generally.   To write or say of a man something that will disparage him in the eyes of a particular section of the community but will not affect his reputation in the eyes of the average right-thinking man is not actionable within the law of defamation.” 	

64.	In Leetham v Rank (1912) 57 SJ 111 CA at 112 Farwell LJ said:

“It is not enough to prove that the words rendered the plaintiff obnoxious to a limited class: it should be proved that the words are such as would produce a bad impression on the minds of average reasonable man.” 

65.	The law protects the reputation which a person possesses in the general community and not the esteem with which he views himself:  Henzy Yakham v Merriam (1999) PNGLR 592 at 607-608.

66.	Pleadings and particulars play a very important role in a party’s case, be it a plaintiff or a defendant:  MVIL v Kauna Kiangua (2015) SC1476.  The effect of not properly pleading can be disastrous to a party.  It is trite law in this jurisdiction that pleadings form the foundation for a plaintiff’s claim as they bring out the issues between the parties and also lay the foundation for the calling of evidence and the awarding of damages:  PNGBC v Jeff Tole (2002) SC 694. Hence, where there is any lack of pleading, no evidence can be called and no damages can be awarded. 

67.	A statement of claim must clearly plead the form of action by pleading the necessary legal elements or ingredients of the action and relevant and necessary facts (not the evidence) giving rise to the form of action.   It is clear from the current pleadings that the plaintiff has failed to demonstrate that.  The pleadings are unintelligible, ambiguous, vague or too general, do not inform the opposite party what it is alleged against them, contain irrelevant material or make a claim which the party pleading is not entitled to make to warrant them to be struck out.  I accept the first defendant’s submissions.  Consequently, the pleadings on defamation are struck out. 

CONCLUSION

68.	The combined effect of refusing the plaintiff’s application for leave to amend the amended statement of claim and the striking out of the pleadings on defamation is that there are no adequate or proper pleadings in the amended statement of claim for the plaintiff to pursue his claim on defamation.  In the circumstances, the entire proceedings are dismissed.

ORDER

69.	The formal orders of the Court will be that:
	
1.	The whole of the plaintiff’s pleadings on defamation is struck out.
	2.	The proceedings founded on defamation are dismissed.
3.	Except for specific costs orders that may have been previously ordered, costs shall follow the event in relation to this application and these proceedings.

Judgment and orders accordingly
___________________________________________________________________
Sylvester Harry Komba: Self-represented, Plaintiff
Alice Kimbu: Self-represented, First Defendant
Kimbu & Associates:  Lawyers for the Second, Third and Fourth Defendants