N10228

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 108 OF 2013

BETWEEN:
MALCOM LESLIE LEWIS
Plaintiff

AND:
GAUVIN FLORES & MAJORIE FLORES
Defendants

Lae: Kangwia J.
2023: 10th March

PRACTICE AND PROCEDURE – jurisdictional issue - forum non conveniens – plaintiffs claim based on defamation against defendants – motion by defendants seeking orders National court has no jurisdiction to hear substantive matter – defendants application argued at trial as preliminary issue – parties though are expatriates, they are domiciled in PNG - reputation purportedly suffered by the Plaintiff is in PNG and not Philippines – PNG courts have jurisdiction to hear the defamation proceedings

Cases Cited 

Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd [1995] SC488.

Counsel

C. Sopa, for the Plaintiff
T. Dawidi, for the Defendants

10th March, 2023

1.      KANGWIA J:  The Plaintiff claimed damages for defamation. By notice of motion the Defendants moved that the National Court had no jurisdiction to hear the substantive matter. An application for leave to review that decision was refused. One of the reasons was that the issue of jurisdiction could be argued at trial. Based on that ruling, the hearing was adjourned for the substantive hearing.  

2.    When the hearing re-commenced the issue of jurisdiction resurfaced. What was argued in the earlier National Court were re-submitted for consideration. From the varying arguments presented in the backdrop of cited cases the main contentions seem to be these. 

3.     The defendant’s contention was that since the words were published in the Philippines this court lacked territorial jurisdiction and the case should be heard in the Philippines.  

4.     The Plaintiff argues that even though the defamatory word were published in the Philippines the National Court under its inherent jurisdiction can determine the matter as the publications connected PNG and as all parties being residents of this Country, it would be less costly to mount a trial in PNG. 

5.    Out of those contentions the Defendants further argued s 109 (4) of the Constitution as supporting their proposition that since the laws of Papua New Guinea only applied within the territorial jurisdiction of Papuan New Guinea the Court did not have jurisdiction over a publication made in the Philippines.  The cited provision is in the following terms:

S109 (4)	Each law made by the Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit, and there is no presumption against extra-territoriality.

6.    On this argument the Plaintiff led the Court among others to the case of Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd [1995] SC 488 which dealt with the principle of “Forum non conveniens” as supporting its argument that the Country which has the most real and substantial connection was the appropriate forum to deal with the matter, and because the present case had the most connection with Papua New Guinea the Court had jurisdiction. 

7.     The further argument was that the jurisdictional issue was belated by 8 years and great injustice would be caused the Plaintiff if the matter was dismissed because of jurisdiction. 

8.    The issue is whether this Court has jurisdiction to deal with the matter? 
 
9.    My brief research on section 109 (4) of the Constitution is that there is a dearth of case law in this country.  Whatever the intent of the constitutional provision is, also scant. In such situations the only helpful assistance comes from Sch.1.5 of the Constitution which states:

Sch.1.5. Fair meaning to be given to language used.
(1)	Each Constitutional Law is intended to be read as a whole.
(2)	All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning.

10.    My view of a fair and liberal meaning of s 109 (4) is that the provision relates to construction and interpretation of laws to give its true intent, meaning and spirit to serve the interest of a specific law. Not implementation of a law. 
On the words “extra-territorial” used under s 109 (4) the Oxford Dictionary of Law defines it as a theory of international law explaining immunity on premises of foreign missions. The present case does not in any way relate to any diplomatic immunity. Based on those views, s 109 (4) of the Constitution does not come to the aid of the Defendants. 

11.     In the Stettin Bay Lumber Company case, the Supreme Court adopted a passage in Halsbury’s Laws of England, 4th Edition, Volume 1 at paragraph 353 while addressing “forum non conveniens” principle on a stay application. Relevant parts of what the Court said are reproduced as follows:

“The Court may stay an action if there is another forum in which the case can be more conveniently tried. Account is taken not only of convenience and expense, but also of other factors, such as the law governing the transaction, which point to the most appropriate or natural forum. In ascertaining the most appropriate forum, the Court searches for the country with which the case has its most real and substantial connection. If a foreign Court is found to be a more appropriate forum, a stay may still be refused if its effect would be to deprive the plaintiff of some real legitimate personal or juridical advantage available to him…. particular weight may be attached to juridical advantages which do not involve a corresponding disadvantage to the defendant”. 

12.     In my limited research, I have found no better decided case in Papua New Guinea on the principle of “forum non conveniens”.  For this reason, although the issue under consideration is not about a stay, in the absence of any other binding decision, I will follow the Supreme Court decision as good law and binding; that this Court is the most appropriate and natural forum for litigating the defamation case for the reasons that:

1.	The parties even though expatriates are domiciled in PNG and therefore the laws of PNG including the Defamation Act applies to them during their tenancy in this country.
2.	The reputation purportedly suffered by the Plaintiff is in PNG and not Philippines. Where one resides in one country and the other in another country damages suffered as a result of defamation is where the reputation was damaged and not where the defamation was published. 
3.	It would be an expensive and time-consuming exercise for both parties to be engaged in fresh Court proceedings again in the Philippines from PNG even if it were transferred.
 
13.     Even in the unlikely event that the Defendants interpretation of s 109 (4) was correct, the substantial connection of the case to PNG would still have rendered the s 109 (4) argument irrelevant. 

14.     For those reasons the substantive proceeding shall proceed from any further hindrance.  
________________________________________________________________
Plaintiffs In house Lawyers: Lawyers for the Plaintiff
Dawidi Lawyers: Lawyers for the Defendants