SC953

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 124 OF 2007

DAVID LAMBU
Appellant

V

PAUL PAKEN TORATO
Respondent

Waigani: Gavara-Nanu, Davani & Cannings JJ
2008: 3 July, 28 November

PRACTICE AND PROCEDURE – default judgment – whether default judgment can be entered in an action for defamation.

PRACTICE AND PROCEDURE – summary judgment – whether summary judgment can be entered in an action for defamation. 

The appellant (then the plaintiff) commenced proceedings against the respondent (the defendant) in the National Court, claiming damages for defamation. The defendant failed to file a defence within the time permitted by the Rules and the plaintiff moved a motion for default judgment. The National Court refused the motion, holding that there must be a determination by the court on the question of whether any matter is or is not defamatory, and such a determination cannot be made in the course of a motion for default judgment. The plaintiff appealed against the refusal to enter default judgment. 

Held:

(1)	Default judgment can be entered in a defamation action, subject to the normal requirements for entry of default judgment, including the exercise of discretion, by the Judge hearing the motion, as to whether it is appropriate to enter default judgment.

(2)	In the present case, the primary Judge erred by deciding that entry of default judgment in a defamation action is prohibited. 

(3)	The appeal was accordingly allowed and the order of the primary judge quashed.

(4)	Per Gavara-Nanu J: the defendant in a defamation suit can make an interlocutory application before a judge before the trial itself to decide whether the matter complained of is defamatory. 

(5)	Per Davani J: in view of the special pleadings requirements in a defamation action, a Judge should exercise great care when exercising the discretion whether to enter default judgment and ensure that the statement of claim is carefully screened. 

(6)	Per Cannings J: despite some special features, a defamation action is much like any other civil action. If the defendant is in default of the Rules, the plaintiff is entitled to seek default judgment and the Judge hearing the motion is obliged to hear and determine it in much the same way as in any other civil proceedings.

(7)	Per Davani J and Cannings J: the appeal having been allowed and the decision of the primary judge quashed, the consequential orders should be for the matter to be remitted to the National Court and for the appellant to decide on the next step to take; and for the parties to bear their own costs of these proceedings.

(8)	Per Gavara-Nanu J (dissenting as to the nature of the consequential orders): the appropriate order would be that default judgment be entered in favour of the appellant/plaintiff, that the matter be remitted to the National Court for assessment of damages and that the respondent pay the appellant’s costs.

(9)	The order of the Supreme Court, by majority, was accordingly:

1. the appeal is upheld;

2. the order of the National Court of 9 November 2007 in OS No 892 of 2007 is quashed;

3. the matter is remitted to the National Court; 

4. the parties shall bear their own costs. 

Cases cited:

Papua New Guinea cases
Belta Kitipa v Vincent Uali & 3 Ors (1998) N1773 
Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002) N2182
Dolphin Enterprises Pty Ltd v Sound and The Independent State of Papua New Guinea [1990] PNGLR 77
Duma v Hriehwazi and Pacific Star Limited Trading as "The National" (2004) N2526 
Gabe v Clunn, Clockwork Orange and Pacific Gold Studios Pty Ltd [1995] PNGLR 153
Glenn B Watterston v Henry Moses (1982) N388
Henao v Coyle (1999) N1918
Kamea Gabe v Jack Clunn and Pacific Gold Studios Pty Ltd [1995] PNGLR 153
Kante Mininga v The State & Ors (1996) N1458
Kembo Tirima and Others v Angau Memorial Hospital Board and The State (2005) N2779
Kunton v Junias and The State SCA No 158 of 2004, 28.09.06
Map Makers Pty Ltd v Broken Hill Proprietary Company Ltd [1987] PNGLR 78
Morobe Provincial Government v The State (2008) SC943
Omben Kumbe v MVIL (2005) N2860 
Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694
Paraka v Madang Provincial Government (1997) N1596
Pawa Kombea v Semal Peke [1994] PNGLR 572
Pinoko v The State (1997) N1520 
Samiano v Dekuku (2001) N2057 
Telikom PNG Ltd v Thomas Tulin (2004) SC748
Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16
Tom Ilaisa v Maurice Kalubaku & Others, WS No 143 of 1990, 23.11.90
Waterston v Moses (1982) N388
William Mel v Coleman Pakalia and Others (2005) SC790

Overseas cases
Aitarama Ltd v Forsyth (1981) NSWLR 188
Asprotravel v Owners Abroad Group [1995] 4 All ER 728 
Ballantyne v Television New Zealand Ltd [1992] NZLR 455
Composite Buyers Limited and Ragg v Clarke [1988] Qd R 602
Coyne v WA Newspapers (1996) 15 WAR 51
Donald Campbell & Co v Pollack [1927] AC 732
Electricity Corp v. Geotherm Energy [1992] 2 NZLR 641
General Steel Industries v. Commissioner for Railways (NSW) (1964) 112 CLR 125
Hyams v Peterson [1991] 3 NZLR 648 at 656-657 and 
James v Nationwide News (1992) 110 FLR 274
Jones v Skelton [1963] SR (NSW) 644 at 650
Mapp v News Group Newspapers Ltd [1998] 2 WLR 260
Marshall Futures v Marshall [1992] 1NZLR 316 
Monte v Mirror Newspapers (1979) 2 NSWLR 663
Morris v Newcastle Newspapers (1985) 1 NSWLR 260
Morgan v Oldham’s Press Ltd [1971] 2 All ER 1164
Ritter v Godfrey [192] 2 KB 47
R Lucas & Son (Nelson Mail) v O’Brien [1978] 2 NZR 289
Roux and Others v. Australian Broadcasting Commission [1992] 2 VR 572
South Pacific Manufacturing Co v NZ Security Consultants and Investigations [1992] NZLR 282
Takaro Properties v Rowling [1978] 2 NZLR 314

References
Halsbury’s Laws of England, 4th Ed. Vol. 28

APPEAL

This was an appeal against a decision of the National Court to refuse a motion for default judgment in a defamation action. 

Counsel
D Lambu, the appellant, in person
N Kubak, for the respondent

28 November, 2008

1. GAVARA–NANU J: The appellant appeals against the whole of an interlocutory judgment by Sakora J given on 9 November, 2007, in WS NO. 892 of 2007, refusing to enter default judgment against the respondent. Leave to appeal was granted on 14 March, 2008. 

2. On 15 August, 2007, the appellant issued proceedings in WS NO. 892 of 2007, against the respondent claiming damages for defamation. The appellant’s claims arose out of statements allegedly made by the respondent about the appellant during the 2007 national general elections in which the appellant and the respondent contested the Enga Provincial seat. The appellant claimed that the respondent in his campaign speeches made defamatory statements against him in Engan language which is spoken and understood by the entire population of Enga Province, thus resulting in his loss in the election. 

3.	The relevant undisputed facts immediately leading up to 9 November, 2007 when Sakora J gave his judgment refusing to enter a default judgment against the respondent as disclosed by the affidavit sworn by the appellant on 6 October, 2007, are as follows. On 17 August, 2007, the appellant personally served a sealed copy of the writ on the respondent. On 13 September, 2007 the appellant was served with a sealed copy of the respondent’s Notice of Intention to Defend, but there was no defence filed by the respondent. On 11 October, 2007, the appellant did a search in the Court file at the National Court Registry and found that no defence was filed by the respondent. On the same day, the appellant wrote to the respondent’s lawyer Mr. Kubak and advised that the respondent had not filed his defence and warned that he would apply for a default judgment. The letter was hand delivered to Mr. Kubak’s office and was received by Mr. Kubak’s secretary Ms. Esther Simbi, who acknowledged receipt of the letter in writing. 

4.	Before 17 October, 2007, the appellant conducted another search in the Court file and found that still no defence or an application for leave to file a defence out of time was filed by the respondent. As a result, the appellant on 17 October 2007 filed a Notice of Motion seeking default judgment with damages to be assessed. 

5.	On 7 November, 2007, the appellant moved his Motion pursuant to O 12 Division 3 rr 24 and 25 (b) of the National Court Rules for a default judgment against the respondent for failing to file a defence. By then the respondent had also filed his defence, but it was out of time. On 7 November, 2007, the respondent also filed a cross Notice of Motion for leave to file his defence out of time. 

6.	When the appellant moved his Motion on 7 November, 2007, Mr. Kubak conceded the default by his client in failing to file a defence, however, it was submitted that default judgment could not in law be entered against his client because entry of default judgment was prohibited by O 12 r 37, which provides that actions for libel and slander cannot be summarily disposed of. 

7.	It was submitted that in a defamation suit a preliminary determination has to be first made to decide whether matters complained of in a Statement of Claim are defamatory. Mr. Kubak argued that in Papua New Guinea Defamation Act, Chapter No. 293 expressly provides that the question of whether any matter complained of by a plaintiff is or is not defamatory is a question of law, thus a default judgment cannot be ordered in a defamation suit. He submitted that this question of law must be decided first as a preliminary issue before the trial itself. He argued that the position in Papua New Guinea is different to United Kingdom (UK) and Australia where a default judgment can be entered in a defamation suit. Mr. Kubak specifically relied upon s.2 (3) of the Defamation Act, which provides:

"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".

8. Thus, it was submitted that the application for default judgment made by the appellant on 7 November, 2007 was misconceived. Mr. Kubak submitted that the matters complained of by the appellant in the Statement of Claim had to be tried first by the appellant seeking an order for an ex-parte trial of the matters so that the appellant could first show that the matters he complained of were defamatory or that they were capable of bearing defamatory meaning; so as to establish liability against the respondent after which damages could be assessed. 

9.	Mr. Kubak also relied upon the unreported judgment by Sheehan J, in Tom Ilaisa v. Maurice Kalubaku & 2 Ors. In that case, his Honour relying inter alia, on s.2 (3) of the Defamation Act set aside the default judgment saying that default judgment could not be entered in a defamation suit in Papua New Guinea. His Honour held that the default judgment was irregularly entered against the defendant because entry of a default judgment was prohibited by s.2 (3) of the Defamation Act. 

10.	Mr. Lambu in reply submitted that the respondent had failed to file a defence, therefore a default judgment should be entered against him, pursuant to O 12 Division 3 rr 24 and 25 (b) of the National Court Rules. 

11.	Mr. Lambu submitted that O 12 Division 4 of the National Court Rules which deals with summary disposals was distinguishable from O 12 Division 3 which deals with default judgments. He conceded that O 12 Division 4 expressly prohibits entry of summary judgments in defamation suits. The pertinent rules under this Division are rr 37 (a) and 38. It was submitted that his application was not for a summary judgment under O 12 Division 4, rather it was for a default judgment made pursuant to O 12 rr 24 and 25 (b) under Division 3 which allows for entry of default judgments. 

12.	The other point Mr. Lambu made was that s. 2 (3) of the Defamation Act, could not be relied upon by the respondent as a defence because it was not pleaded in a defence as there was no defence filed by the respondent. In support of this argument, Mr. Lambu cited Dolphin Enterprises Pty Ltd v. Sound and The Independent State of Papua New Guinea [1990] PNGLR 77, where Hinchliffe J, held that the defendants could not raise a statutory defence which had not been pleaded in their defence. His Honour said O 8 r 14 of the National Court Rules prohibited the defendants from relying upon such defence. 

13.	As I alluded to earlier, Mr. Lambu in drawing a distinction between O 12 Divisions 3 and 4 of the National Court Rules, said Division 3 allows for entry of default judgments in all proceedings commenced by a writ in the event of a default by a defendant in complying with the Rules, including a failure to file a defence, whereas Division 4 allows for summary disposal of matters. He argued that Division 3 does not provide exception to defamation suits. He conceded that O 12 r 37 (a) under Division 4 prohibited him from seeking a summary judgment for his claims but argued that, that did not prohibit him from seeking a default judgment under Division 3 rr 24 and 25 (b) after the respondent had defaulted in filing his defence. 

14.	Mr. Lambu further submitted that in Tom Ilaisa v. Maurice Kalubaku & Ors no cases were cited in support of the decision and argued that the decision offends against O 12 r 24. Authorities cited were Halsbury’s Laws of England 4th Ed. Vol. 28 paras. 171, 172 and Gatley on Libel and Slander 7th Ed., but they were cited in support of the court’s criticism of how the plaintiff pleaded the matters in the Statement of Claim. 

15.	Mr. Lambu argued that the position in Papua New Guinea is the same as in UK and Australia, in so far as default judgments are concerned, thus begging to differ from Tom Ilaisa v. Maurice Kalubaku & Ors (supra).

16.	The grounds of appeal are as follows:- 

a.	The learned judge after having correctly found that the respondent had defaulted in filing his defence within the legally prescribed time period, he has erred in law in dismissing the appellant’s application made under Order 12 Division 3 of the National Court Rules to enter judgement in default of defence by holding that a judgement in default of defence cannot be entered in this jurisdiction in an action for defamation because it is being prevented by the provisions of Order 12 Divisions 3 and 4 of the National Court Rules and also being prohibited by section 2 (3) of the Defamation Act.

b.	Further, the learned judge erred in law in holding that Order 12 Rule 38 of the National Court Rules prevented entry of judgment in default of defence in this action for defamation when the provision only prevents entry of a summary judgment;

c.	The learned judge after being satisfied that the appellant’s application for judgement in default of defence was being made under Order 12 Division 3 of the National Court Rules, he erred in law in applying the provisions of Order 12 Division 4 or more particularly Rules 37 (and 38) which prevents entry of summary judgements in actions for defamation.

d.	The learned judge after having correctly adopted the view of Sheehan J. in an unreported judgment in the case of TOM ILAISA v MAURICE KALUBAKU & 2 ORS – WS NO. 143 of 1990 dated 23rd November, 1990 that in the United Kingdom and elsewhere in the Commonwealth including Australia, a judgement in default of defence can be entered in an action for defamation, the learned judge erred in laws in holding that such a practice is not permitted by legislation in this jurisdiction (Order 12 Rule (37) 38 of the National Court Rules and or section 2 (3) of the Defamation Act).

4.	Orders Sought;

a.	The interlocutory judgement of his Honour Bernard Sakora J. dated the 9th November, 2007 refusing the appellant’s application for judgement in default of defence be set aside;

b.	Judgement in default of defence be entered against the respondent in favour of the appellant;

c.	Assessment of all damages as being pleaded in the statement of claim be done at the National Court;

d.	The proceeding WS No. 892 of 2007 be placed on the next National Court Civil call-over list at Waigani for fixation of a trial date for assessment of all damages (if cannot be settled out of court);

e.	Appellant’s legal and incidental costs of this proceeding and the National Court be paid by the respondent after taxed if not agreed;

f.	Any other orders favouring the appellant that this Honourable Court thinks appropriate.

Signed 
………………….
Appellant
In Person

Dated, this 28th March 2008.

17.	The pertinent parts of his Honour’s ruling appear at pages 53 and 54 of the Appeal Book. Starting from the middle of the third last paragraph at page 53 where his Honour said:

"…I did raise the issue of whether or not a claim for defamation is an appropriate claim to avail Order 12 rules 25, 26, 27 and 28 of the National Court Rules because of the very nature of the claim that is made and Mr. Kubak was able to come up with a judgment on point."

18.	His Honour, after discussing other issues proceeded to discuss whether in defamation suits a default judgment can be entered.

"What is significant is that the statement of claim as it stands not only does not contain the material facts necessary to obtain judgment, but there also has not been any ruling by the court as to whether or not the words on which this action is based are capable of being defamatory and are in fact defamatory. In brief, that means it is not possible to enter judgment by default."

19.	Then referring to the decision in Tom Ilaisa v. Maurice Kalubaku & Ors (supra), his Honour said:

"His Honour continued at page 5 of his brief judgment, and I respectfully cite from that judgment, page 5, second last paragraph, where his Honour said: "But in the case of defamation, assuming that pleadings are in order, it is not open to a plaintiff to enter judgment by default and have damages assessed, at least, in Papua New Guinea."

And his Honour adverted to the situation in the United Kingdom and elsewhere in the Commonwealth where such relief can be granted, and this is allowed by the authoritative exposition of the law found in the Halsbury’s Laws of England fourth edition volume 28, paragraphs 171 and 172 where at least in the United Kingdom and Australia, judgment can be entered in default on a claim for defamation but not here. Not here, simply because order 12 rule 38 of our National Court Rules says you cannot or should not."

20.	His Honour went on to say:

"Division 4, summary disposal under order 12 rule 37 in relation to the application of the rules for summary disposal reads: "This division applies to all proceedings except proceedings which include: (a) a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage; or (b) a claim by the plaintiff based on an allegation of fraud; or finally (c) a claim for damages arising in respect of the death of any person or in respect of personal injuries to any person."

So there we have it. In no uncertain terms, claims such as the one that has been instituted by Mr. Lambu cannot proceed to a court ordering entry of default judgment. And for very good reason too, with respect, because the damages whether special, general or even punitive damages that may be considered appropriate to award must proceed directly from a finding of liability. And finding of liability must arise from a determination of law by the court that from the facts that are available before it, in fact constituted defamation as defined.

Also, I omitted to mention in the Defamation Act itself; there is a prohibition, section 2 (3) of the Defamation Act does not allow entry of default judgment or indeed summary judgment on claims made under that legislation. So there has to be a determination – I am repeating myself – a determination of the question of law as to whether or not there was defamation of character. And you have to go through and find out whether and first things like publication took place, and all of those other factors associated with determining whether or not defamation has been committed before you can talk about liability and then proceed to determining whether or not damages should be assessed."
 
21.	It is plain from these excerpts of his Honour’s judgment that his Honour came to a view that there should first be a preliminary hearing to determine the issue of whether the matters uttered or published by the respondent about the appellant were defamatory. Once that issue was determined and liability against the respondent was established, the damages could then be assessed. His Honour relied upon Tom Ilaisa v. Maurice Kalubaku & Ors (supra) and s.2 (3) of the Defamation Act. His Honour also relied upon O 12 r 38 of the National Court Rules which he said expressly prohibited the entry of a default judgment. 

22.	There is no dispute that in UK and Australia a default judgment can be entered in defamation suits as it was noted in Tom Ilaisa v. Maurice Kalubaku & Ors (supra). 

23.	The question then is whether default judgments can be entered in Papua New Guinea in defamation suits. 

24. The appellant’s application for default judgment was made pursuant to O 12 Division 3 rr 24 and 25, which provide:

Division 3 – Default Judgment

24.	Application.

This Division applies to proceedings commenced by writ of summons.

25.	Default 

A defendant shall be in default for purpose of this Division – 

(a)	Where the originating process bears a note under rule 9 of Order 4 and the time for him to comply has expired but he has not given the notice;

(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)	Where he is required under rule 24 of Order 8 to verify his defence and the time for him to verify his defence in accordance with that Rule has expired but he has not verified his defence.

25.	Giving r 24 its plain and ordinary meaning, I have come to a conclusion that the rule does permit entry of default judgments in all proceedings or suits commenced by a writ of summons, including defamation suits. Rule 25 prescribes circumstances or situations in which a default judgment may be entered and in this case the respondent having failed to file his defence had defaulted pursuant to r 25 (b). 

26.	Rule 26 sets out the procedure a plaintiff may adopt to claim relief against a defendant in a case where the defendant has defaulted; by taking steps mentioned in rr 27 to 33 according to the nature of the claims made. 

27.	The appellant as I alluded to earlier conceded that he could not apply for a summary judgment because he was prohibited from doing so by O 12 rr 37 (a) and 38 under Division 4 of the National Court Rules, but argued that he was entitled to a default judgment under O 12 Division 3 rr 24 and 25.

28.	His Honour held that O 12 rr 37 (a) and 38 prohibited him from entering a default judgment against the respondent. These rules come under O 12 Division 4 which deals with Summary Disposal and are in these terms: 

Division 4 – Summary Disposal

Rule 37.	Application

This Division applies to all proceedings except proceedings which include – 

(a) 	a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage;

(b) 	a claim by the plaintiff based on an allegation of fraud; or

(d)	a claim for damages arising in respect of the death of any person or in respect of personal injuries to any person.

Rule 38.	Summary judgment

(1)	Where, on application by the plaintiff in relation to any claim for relief or any part of any claim for relief of the plaintiff –

(a)	there is evidence of the facts on which the claim or part is based; and

(b)	there is evidence given by the plaintiff or by some responsible 
person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed,

the Court may, by order, direct the entry of such judgment for the plaintiff on that claim or part as the nature of the case requires.

(2)	Without limiting sub-rule (1) of this Rule, the Court may under that sub-rule direct the entry of judgment for the plaintiff for damages to be assessed.

(3)	In this rule, "damages" includes the value of goods.

29.	Thus his Honour’s refusal to enter default judgment was based on two grounds. First, that O 12 rr 37 (a) and 38 of the National Court Rules prohibited a default judgment from being entered. Second, there was an express prohibition by s.2 (3) of the Defamation Act against a default judgment being entered because matters complained off by the appellant raised questions of law. 

30.	The case therefore in my respectful opinion turns on the application of O 12 Divisions 3 and 4 of the National Court Rules, particularly rr 24 and 25 (b) and 37 (a) and 38 respectively. 

31.	There is no issue that O 12 Division 3 applies to default judgments whereas Division 4 applies to summary disposals. These two Divisions are different by virtue of the nature of relief they permit. This distinction was reiterated recently by the Supreme Court in Morobe Provincial Government v. The State (2008) SC943. 

32.	With greatest of respect, this is where I find his Honour fell into error when he held that the combined effect of O 12 rr 37 (a) and 38 prohibited entry of a default judgement. 
 
33.	As to the application of s.2 (3) of the Defamation Act, I have also come to an inescapable conclusion that the Section does not prevent a default judgment from being entered in the event of a default by a defendant, including a failure to file a defence as in this case. I do not find s.2 (3) of the Defamation Act to be offending against O 12 r 37 (a) of the National Court Rules, in that whilst the Section defines a defamatory matter as a question of law, O 12 rr 37 (a) operates to regulate and gives effect to the Section by precluding claims for libel and slander, which would by virtue of the Section give rise to questions of law, from being summarily disposed of or determined. 

34.	I therefore find that as far as default judgments in defamation suits are concerned, the position in Papua New Guinea is same as in UK and Australia. In Papua New Guinea, the Defamation Act defines defamation. The situation is same in Queensland (s. 4 (1) of the Defamation Act) and Tasmania (s. 5 (1) of the Defamation Act). In other Australian States, defamation as in UK is defined or determined pursuant to principles of common law. 

35.	Default judgments can therefore be entered in Papua New Guinea just like in other common law jurisdictions, including UK, Australia and New Zealand. See, Roux and Others v. Australian Broadcasting Commission [1992] 2 VR 572; Composite Buyers Limited and Ragg v. Clarke [1988] Qd R 602 at 609; Jones v. Skelton [1963] SR (NSW) 644 at 650; Hyams v. Peterson [1991] 3 NZLR 648 at 656-657 and Ballantyne v. Television New Zealand Ltd [1992] NZLR 455 at 460.

36.	Needless to say that default judgements have been entered in Papua New Guinea in cases where defendants have defaulted in filing their defences. See, Glenn B. Watterston v. Henry Moses (1982) N388; Pawa Kombea v. Semal Peke [1994] PNGLR 572; Kamea Gabe v. Jack Clunn and Pacific Gold Studios Pty Ltd [1995] PNGLR 153; Loani Henao v. David Coyle and Ors N 1910. The default judgments in these cases were no doubt entered pursuant to O 12 Division 3 of the National Court Rules thus they provide judicial precedents which this Court must take note of in deciding the issues at hand. 

37. 	On the question of the procedure to be adopted to resolve the question of whether any matter complained of is or is not defamatory or is or is not capable of bearing a defamatory meaning, such being a question of law can by virtue of the established common law principles be determined as a preliminary issue prior to trial itself. However, this can only be done upon an application being made by a defendant to strike out a Statement of Claim on the basis that the matter complained of is not defamatory or is not capable of bearing a defamatory meaning. The question would be decided by a judge. In Papua New Guinea where a judge is both a tribunal of fact and law can deal with the question quite conveniently either before the trial itself or at the trial for assessment of damages depending on when the question is raised. 

38.	It is apparent that when Mr. Kubak in his submissions before his Honour, argued that the appellant could apply for an ex-parte trial to try the question of whether the matters complained of by the appellant were defamatory, he was referring to the procedure I have discussed above but the submission was clearly based on misapprehension of the law. There is abundant authority for the proposition that the question can be determined as a preliminary issue upon an application being made by the defendant. See, Halsbury’s Laws of England 4th Ed. Vol. 28 para. 224, which spells out the procedure very clearly:

"224. Ruling on Meaning. At any time after the service of the Statement of Claim, either party may apply to a judge in chambers for an order determining whether or not the words complained of are capable of bearing a particular meaning or meanings attributed to them in the pleadings. If it appears to the judge on the hearing of such an application that none of the words complained of is capable of bearing the meaning or meanings attributed to them in the pleadings, he may dismiss the claim, or make such other order or give such judgement in the proceedings as the case may be just." (my underlining). 	

39.	This paragraph is a complete replication of O 82 r. 3A of the English Rules of the Supreme Court, which came into force on 1 September, 1994 replacing the old O 18 r. 19, which provided for early interlocutory applications which were made by summons to strike out pleadings in plain and obvious cases. The effect of the new O 82 r. 3A which governs and regulates the practice in UK was discussed by the Court of Appeal in Mapp v. News Group Newspapers Ltd [1998] 2 W.L.R. 260. At 262, Hirst L.J. quite neatly summarized the procedure in this way: 
 
"In actions for defamation where questions as to the meaning of the words complained of are in issue, as they nearly always are, the functions of the judge and the jury have always been different. It is for the judge to rule, when asked to do so, whether the words are capable of bearing a particular meaning or meanings alleged in the statement of claim; in other words, to lay down the limits of the range of the possible defamatory meanings of which the words are capable. It is for the jury to determine the actual meaning of the words within that permissible range. The rationale behind this division of function was described by Diplock L.J. in Smith v. Daily Telegraph Ltd [1968] 2 Q. B. 157, 174:

"The decision as to defamatory meanings which words are capable of bearing is reserved to the judge, and for this reason, and no other, is called a question of law. The decision as to the particular defamatory meaning within that category which the words do bear is reserved to the jury, and for this reason, and no other, is called a question of fact." 

Traditionally, any such ruling has been sought and given at the trial itself unless tried as a preliminary issue. Any earlier interlocutory proceedings were confined to a summons to strike out under R.S.C., Ord. 82, r. 3A, which of course only applies in plain and obvious cases. However, by Ord. 82, r. 3A, which came into force on 1 September, 1994, it is now provided, under the heading "Ruling on Meaning:"

"(1) At any time after the service of the statement of claim either party may apply to a judge in chambers for an order determining whether or not the words complained of are capable of bearing a particular meaning or meanings attributed to them in the pleadings. (2) If it appears to the judge on the hearing of an application under paragraph (1) that none of the words complained of are capable of bearing the meaning or meanings attributed to them in the pleadings, he may dismiss the claim or make such other order or give such judgement in the proceedings as may be just." (my underlining).

40.	His Lordship at 262 went on to adopt the statement made by Lord Morris of Borth-y-Gest in Jones v. Skelton [1963] 1 W.L.R. 1362 at 1370-1371 where his Lordship said:

"It is well settled that the question whether words which are complained of are capable of conveying a defamatory meaning is a question of law and is therefore one calling for decision by the court. If the words are so capable then it is a question for the jury to decide whether the words do in fact convey a defamatory meaning." 

41.	See also Asprotravel v. Owners Abroad Group [1995] 4 All ER 728 and Morgan v. Oldham’s Press Ltd [1971] 2 All ER 1164 at 1168.

42. A defendant upon whose application such question is determined would carry a heavy onus because the application can result in the proceedings being summarily disposed of. The rationale behind this requirement is that the defendant not only has to persuade the judge of the incapacity of the matter conveying the imputations alleged by the plaintiff and the matter not having a defamatory meaning, but has to go further and satisfy the judge that the capacity issue is not even arguable. To do this, the defendant has to demonstrate that the plaintiff’s claim is so obviously untenable that it cannot possibly succeed or is manifestly groundless or cannot by any possibility be maintained. Such applications being interlocutory must be based on genuine grounds because, if they are not, they can be dismissed for abuse of process as they would only unnecessarily prolong and complicate the litigation process. See, General Steel Industries v. Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; South Pacific Manufacturing Co. v. NZ Security Consultants and Investigations [1992] NZLR 282 at 305 and 311; Electricity Corp v. Geotherm Energy [1992] 2 NZLR 641 at 645; Monte v. Mirror Newspapers (1979) 2 NSWLR 663 at 675; James v. Nationwide News (1992) 110 FLR 274; Coyne v. WA Newspapers (1996) 15 WAR 51 at 57; Marshall Futures v. Marshall [1992] 1NZLR 316 at 323; R Lucas & Son (Nelson Mail) v. O’Brien [1978] 2 NZR 289 at 294-295, 307; Takaro Properties v. Rowling [1978] 2 NZLR 314 at 316-317, 335. 

43.	It should also be said that such preliminary applications do occupy an important position in the law of defamation because not only can they lead to substantial savings in terms of time and cost, but they have also given rise to a wealth of case law setting out principles with respect to the elements of the plaintiff’s cause of action. See, Morris v. Newcastle Newspapers (1985) 1 NSWLR 260. 

44.	In the instant case, there was no such preliminary application by the respondent. That being the case, the respondent having failed to file his defence, the appellant was pursuant to O 12 rr 24 and 25 of Division 3 entitled to a default judgment. 

45.	For the foregoing reasons, I would with the greatest of respect beg to differ from Tom Ilaisa v. Maurice Kalubaku & 2 Ors (supra).

46.	I would allow the appeal.

47.	As to the issue of costs, the appellant applied for default judgment after the defendant failed to file a defence even after he was given a usual warning by the appellant of his (appellant’s) intention to apply for a default judgment. The respondent sat on his defence until the time to file his defence ran out on him. The warning is a procedural requirement which the appellant was required to accord to the respondent in fairness to the respondent as he had filed his Notice of Intention to defend. See, Map Makers Pty Ltd v. Broken Hill Proprietary Company Ltd [1987] PNGLR 78. The respondent failed to heed to that warning thus resulting in his failure to file a defence. Such attitude by the respondent in my respectful opinion leaves no room for sympathy by this Court. It is clear that this appeal has been totally occasioned by the respondent’s failure to abide by the rules and to heed the appellant’s warning. In the circumstances, it is only fair that costs should follow the event. I consider that this Court would not be exercising its powers properly if it was to deny the appellant his costs only because the Statement of Claim may not have been properly pleaded or drafted. No such issue arises before us. Furthermore, the respondent did not challenge the statement of claim before the trial judge nor has he filed a defence. Even if pleadings were challenged, I am of the opinion that the matters complained of were sufficiently pleaded in the Statement of Claim, thus disclosing a reasonable cause of action. I so find for the following reasons:

i)	The alleged defamatory words were uttered or published by the respondent; and
ii)	The words uttered concerned or referred to the appellant; and
iii)	The appellant was named by the respondent in his speeches while campaigning for the Enga Provincial seat; and
iv)	The words were uttered generally to the voters in the months of May, June and July, 2007 at various campaign locations within the Enga province; and
v)	The words uttered attacked the credibility of the appellant as a lawyer and a candidate for Enga Provincial seat.

These particulars as pleaded in my view sufficiently meet the requirements under O 8 r 84 of the National Court Rules. I have also had the benefit of reading the draft judgment by Davani J, in which her Honour refers to Halsbury’s Laws of England Vol. 28 para. 175, stating the general requirements for pleadings in libel and slander claims. With respect, I find that the requirements stated there have been satisfied by the appellant in his pleadings as I have discussed above. There are no special circumstances which can warrant this Court to depart from the settled practice that costs follow the event. See, Ritter v. Godfrey [192] 2 KB 47 and Donald Campbell & Co. v. Pollack [1927] AC 732. I am therefore of the firm opinion that the appellant deserves to have his costs. 

48.	 In this case, the respondent decided against moving his motion for leave to file his defence out of time. He instead by deliberate decision opted to challenge the application by the appellant for default judgment relying on O 12 r 38 and s.2 (3) of the Defamation Act. It would in my opinion be allowing the defendant to have a second bite of the cherry. That would be tantamount to this Court condoning abuse of its process by the respondent. I have also found that the matters complained of have been sufficiently pleaded. Thus, in my opinion, the matter should go back for assessment of damages. As I said earlier, and as is always the case, the appellant still bears the onus to prove his damages with credible evidence at the trial for assessment of damages. 

49.	In the result, having allowed the appeal, I order that the orders made by the trial judge on 9 November, 2007 be set aside and default judgment be entered for the appellant. I order that the matter be sent back to the Registry for it to be given a date for trial for assessment of damages. 

50.	Respondent to pay the appellant’s costs of the appeal.

_________________________________

51. DAVANI J:	The Appellant appeals against an order by the National Court, Waigani, refusing default judgment in proceedings WS 892 of 2007 between David Lambu and Paul Paken Torato, order made on 9th November, 2007.

52. Leave to appeal was granted on 14th March, 2008.

Background

53. David Lambu, a lawyer by profession, sued Paul Torato in the National Court, for defamation. The allegations of defamation were in relation to certain statements made by Paul Torato whilst campaigning in the 2007 National Elections. Mr. Lambu alleges that he lost the elections as a result of defamatory statements made by Mr Torato.

54. David Lambu filed the application for default judgment because Paul Torato had not filed a Defence. The application for default judgment was opposed by Paul Torato’s lawyer relying on s. 2(3) of the Defamation Act Chapter 293 (Defamation Act). I discuss this provision further below. Basically, this section states that whether a matter is or is not defamatory or capable of bearing a defamatory meaning, is a question of law.

55. His Honour the trial Judge relied largely on s.2 (3) of the Defamation Act in refusing default judgment. His Honour held that there must be a determination on the question of law as to whether or not, there was defamation of character. His Honour held that one would have to "go through and find out whether first things like publication took place, and all of those other factors associated with determining whether or not defamation has been committed before you can talk about liability and then proceed to determining whether or not damages should be assessed." (pg.54 of Appeal Book)

Grounds of Appeal

56. David Lambu raises four grounds of appeal which I summarise under the following subheadings:

i.	Summary judgment – That his Honour erred in law when holding that O.12 R.38 of the National Court Rules (‘NCR’) prevented entry of judgments in default when it only applies to applications for summary judgment.

ii.	Defamation Act - That s. 2(3) of the Defamation Act prevents the entry of default judgment in defamation cases.

Orders Sought

57. David Lambu seeks the following orders; 

i.	That the trial Judge’s orders refusing to grant default judgment be set aside;

ii.	That judgment in default of Defence be entered for David Lambu;

iii.	The matter be referred to the National Court for assessment of damages;

iv.	The matter be referred to the civil call-over list for allocation of a trial date for assessment of damages;

v.	Costs;

vi.	Other orders.

Issues

58. The general issue is whether default judgment can be entered in defamation claims. That is to be considered with the overall issue which is whether the trial judge erred when he refused the entry of default judgment.

Analysis of evidence and the law

Issue no. i:	 Whether default judgment can be entered in defamation claims.

59. As stated above, on 16th August, 2007, Mr Lambu instituted proceedings in the National Court, against Paul Torato, alleging defamation. The allegations of defamation are claimed to have arisen during the course of the campaigning for the 2007 National Elections. Mr. Lambu alleges that Mr Torato made false allegations and statements about him at various public gatherings in the electorate of Enga during the election campaign which were defamatory of him and which adversely affected his election chances. He claims both general and aggravated damages. He also claims special damages, which he assessed at K270,022.50.

60. Order 12 Division 3 of the NCR provides for default judgments. Basically, a defendant is in default if he is in breach of those rules by not filing a Notice of Intention to Defend or Defence within the time period prescribed by the NCR. Judgments are usually either liquidated or unliquidated. Judgments can also be for a mixed claim.

61. Order 12 Division 4 of the NCR provides for summary disposal of proceedings. Order 12, Rule 37 provides that Division 4 applies to all proceedings, except claims by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage (O.12 r.37 (a)). Usually, this is a claim by a plaintiff supported by affidavit material deposing that the defendant has no defence to the claim. I note that O.12 Division 3, the part on default judgments, is quite separate from ‘summary disposals’. I raise the significance of this later below.

62. Apart from the NCR referred to above, which the trial Judge considered, the trial Judge also relied on Tom Ilaisa v Maurice Kalubaku and Kaidama Elliott and Milne Bay Provincial Government, WS 143 of 1990 dated 23rd November, 1990, a decision of Justice Sheehan. In that matter, His Honour set aside a default judgment after finding that by s. 2(3) of the Defamation Act, 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. Section 2(3) of the Defamation Act reads;

"2. 	Definition of Defamatory Matter

 …

(4)	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."

63. His Honour raised this in comparison with the position in the United Kingdom which is restated in Halsbury’s 4th Edition vol. 28 at paragraph 238 which passage delineates or distinguishes the functions of a Judge and a Jury in defamation cases. It reads;

"(ii)	Functions of Judge and Jury

239.	Judges’ duty as to questions to be left to the Jury. The question whether the words complained of are defamatory of the plaintiff, is a question of fact for the Jury, but, before the question is submitted to the Jury, it is for the Judge to rule upon the evidence whether the words complained of are reasonably capable of referring to the plaintiff. Unless the question has already been determined at a preliminary hearing, he should also rule on whether the words are reasonably capable of bearing a defamatory meaning in the minds of reasonable persons in the circumstances of the particular case." (My emphasis)

64. Halsbury’s (supra) states further;

"…In construing the words complained of, so as to see whether the plaintiff has made out a case to be left to the Jury where nothing is alleged to give the words an extended meaning, the Judge must consider the statement as a whole, interpret the words in their natural and ordinary meaning, and ask himself whether a reasonable jury could reasonably come to the conclusion that the words were defamatory of the plaintiff. If the words are reasonably capable of being understood in a defamatory sense, he must leave it to the Jury to say whether they did, in fact, defame the plaintiff. If not, he must give judgment for the defendant without leaving the case to the Jury."

65. The quotations from Halsbury’s (supra) are based on the English Rules of the Supreme Court 1965 (RSC). Papua New Guinea’s NCR is based on the NSW Supreme Court Act 1970 and which in turn is based on the RSC. Order 82 Rule 3(A) of the RSC, provides (as restated at par. 224 of Halsbury’s (supra);

"224.	Ruling on Meaning. 

 At any time after the service of the Statement of Claim, either party may apply to a Judge in chambers for an order determining whether or not the words complained of are capable of bearing a particular meaning or meanings attributed to them in the pleadings. If it appears to the Judge on the hearing of such an application that none of the words complained of is capable of bearing the meaning or meanings attributed to them in the pleadings, he may dismiss the claim, or make such other order or give such judgment in the proceedings as may be just." 

RSC O.82 R. 3A(2) further states this;

"… it is common practice, if a meaning is struck out, to allow the respondent time to formulate another meaning and seek leave to amend. A Judge asked to rule whether words complained of were capable of bearing the meaning alleged by the plaintiff, should evaluate the words complained of and delimit the range of meanings of which they were reasonably capable, exercising his own judgment in the light of the authorities; the decision should not be treated in the same way as an application to strike out part of the proceedings." (see Halsbury’s vol. 4 para. 224 footnote 2)

66. This is the same in several Australian States. Eg the Defamation Act 2005 of New South Wales provides for the role of judicial officers and juries in defamation proceedings. I refer to s.22 which reads;

22.	Roles of judicial officers and juries in defamation proceedings

(1)	This section applies to defamation proceedings that are tried by jury.

(2)	The jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established.

(3)	If the jury finds that the defendant has published defamatory matter about the plaintiff and that no defence has been established, the judicial officer and not the jury is to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount.

(4)	If the proceedings relate to more than one cause of action for defamation, the jury must give a single verdict in relation to all causes of action on which the plaintiff relies unless the judicial officer orders otherwise.

(5)	Nothing in this section;

(a)	affects any law or practice relating to special verdicts; or

(b)	requires or permits a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer."

67. Section 21 of the same act provides that the plaintiff or defendant may elect for the proceedings to be tried by jury unless the Court orders otherwise. It reads;

21.	Election for defamation proceedings to be tried by jury

(1)	Unless the Court orders otherwise, a plaintiff or defendant in defamation proceedings may elect for the proceedings to be tried by jury.

(2)	An election must be;

(a)	made at the time and in the manner prescribed by the rules of court for the court in which the proceedings are to be tried; and

(b)	accompanied by the fee (if any) prescribed by the regulations made under the Civil Procedure Act 2005 for the requisition of a jury in that court.

(3)	Without limiting subsection (1), a court may order that defamation proceedings are not to be tried by jury if;

(a)	the trial requires a prolonged examination of records, or

(b)	the trial involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury."

68. Similar provisions are found in Queensland in the Defamation Act of 2005.

69. In fact in both legislations at s.3 which is the provision on the objects of the Act, it provides that its objects are to enact the provisions to promote uniform laws of defamation in Australia. For interest purposes, I set out s. 3 of the Defamation Act of 2005 of Queensland. It reads;

"3 . Objects of Act

The objects of this Act are;

(a)	to enact provisions to promote uniform laws of defamation in Australia; and

Note;

To maximize uniformity between this Act and Acts enacted in other jurisdiction to promote uniform laws of defamation in Australia;

The numbers of some provisions that are not enacted in this jurisdiction have not been used in the numbering of this Act.

This Act includes 3 references to schedules that are not enacted.

(b)	to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance; and

(c)	to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and

(d)	to promote speedy and non-litigious methods of resolving disputes about the publication of defamation matter."

70. No doubt, in common law countries and Australia, a Judge and a Jury are involved in the "screening" and hearing of defamation cases because of its very nature. The responsibilities of determining whether the statements are defamatory or not, are left to the Judge to screen, after which, upon being satisfied that the matters raised in the Statement of Claim are defamatory, then refers to the Jury. However, this is not the situation in Papua New Guinea. Section 2(3) of the Defamation Act states that whether the matter is defamatory or not, is a question of law, and Sheehan. J eloquently demonstrates this in Tom Ilaisa (supra), when he said;

"Thus in Papua New Guinea, the issue as to whether the words are defamatory or not, is no longer a question of fact that may be conceded by a defaulting defendant but a matter of law requiring the Court’s decision. Accordingly, judgment cannot be entered in the matter without the Court first ruling on whether or not the words complained of, are defamatory or not." (pg. 6)

71. The Defamation Act in Papua New Guinea speaks in clear terms, that the question whether any matter is or is not defamatory, is a question of law. That means this must be properly interpreted by the Court.

72. By way of comparison, other matters that require interpretation of statute, being questions of law, are usually referred to the Supreme Court by way of reference under s.18 of the Constitution. This is a similar situation, one where questions of law require interpretation.

73. The default provisions of the NCR do not provide for the exclusion of defamation cases. However, it is my view that before default judgment is entered, a judge must be satisfied that the requirements in relation to proper pleadings and the provision of particulars in relation to defamation claims is properly set out first before a default judgment can be entered, because of its very nature. That is where O.12 R.37, the rule on summary disposal, becomes relevant. It states that summary disposal applies to all proceedings except those for libel and slander, etc. The logic behind this is that a plaintiff cannot ask for orders, by way of interlocutory application, that the defendant has no defence to his or her claim or no defence except as to the amount of damages claimed. It makes sense that cases of this nature must go to a full hearing for a determination on whether the plaintiff does have a claim and the defendant, a good defence. The Defamation Act, in my respectful view, was drafted by draftsmen, who were very much aware of the peculiarities in the law of defamation and the dual role played by judges and jury in the common law jurisdiction, and the role played by a single judge of the National Court of Papua New Guinea, where there are no jury trials. It was drafted to be in cohesion and unity and to be harmonious with the existing defamation laws in this country, which includes the NCR.

74. Part 67 of the NSW Supreme Court Act, the part on Defamation, is the part on which our NCR O. 8 Division 7 (Default Judgment) is derived from. It states at Part 67.11B.3 that even where default judgment is entered, a defamation litigation "… can rarely, if ever, hold a judgment by default where the issue of defamation itself remains for the jury to determine: Australian Newspaper Co. Ltd v Bennett [1894] AC 284." It makes sense therefore that the entry of default judgments in defamation cases should only occur in very clear cases where the statement of claim is properly pleaded and particularized. The responsibility therefore, falls on all judges to properly and carefully exercise their discretion on whether or not to enter default judgment. Which then takes me to the issue of the Court’s discretionary power.

75. The Court has a wide discretion whether or not to enter default judgment. The Court always has discretion to refuse to enter default judgment. This can be for various reasons, some of which are;

i.	the effect of the default judgment would prejudice the rights of other co-defendant/s; or

ii.	The pleadings are so vague or do not disclose a reasonable cause of action; or

iii.	The default judgment cannot be sustained in law. 

(see Kante Mininga v The State & Ors (1996) N1458; Belta Kitipa v Vincent Uali & 3 Ors (1998) N1773)

76. So a Judge in Papua New Guinea can always refuse to enter default judgment if a pleading is not properly particularized, or requires further amendments. He has that discretion which must of course, be properly exercised, preferably by the issuing of directions.

77. Having said that, although the trial Judge did not review the Statement of Claim that came before him, in my view, the Statement of Claim, as it is, is either very general, or is so badly particularized, that an order for default judgment would have meant a grave injustice for the respondent. I say this because the Statement of Claim as pleaded, is in very general terms and makes general references to statements that were allegedly made but does not particularize when and where the statements were made. Halsbury’s 4th Edition vol. 28 at para. 175 states the general requirements for pleadings in a claim for libel and slander, in a statement of claim. It reads;

"175.	General requirements.

 A Statement of Claim in libel or slander must allege that the defendant published the words complained of, or caused them to be published. It must also allege that he published them of and concerning the plaintiff, that is that the words referred to the plaintiff. Unless the plaintiff is named in the words complained of, it is necessary to plead the fact and matters which established reference to him. It is unnecessary to state that the words were published "falsely and maliciously". The Statement of Claim should also indicate the circumstances in which the words were published and, except in a case of general dissemination, such as by newspaper or broadcast, should identify, with as much precision as possible, the persons to whom it is alleged that publication was made.

Where particulars of reference have been pleaded, the plaintiff may be required to identify those among the persons to whom publication was made, who understood the words to refer to the plaintiff. Where appropriate, it is permissible, but in a libel action, not essential, to plead that the words were published of and concerning the plaintiff in the way of his trade, profession or calling, and in relation to his conduct in it, as being relevant to damages. In a slander action, it is essential to plead that the words were so published, or were calculated to disparage the plaintiff in the way of his trade, profession or calling, unless the slander is otherwise actionable per se or has caused actual material loss."

78. Again, in relation to an action for defamation, Halsbury’s states that the actual words complained of, must be set out in verbatim in the Statement of Claim, not merely their substance. (para. 176 Halsbury’s 4th Ed. vol. 28). (my emphasis)

79. For example, I note, particularly paragraph 12 of the Statement of Claim, where Mr Lambu pleads that the entire population of about 300,000 people of Enga were made to believe various things spoken by the respondent, things which were defamatory in nature, some of which were that;

-	the plaintiff was not a genuine candidate but stood to split the defendant’s votes in order for Peter Ipatas to win;

-	the plaintiff is a conman and not a true leader;

-	the plaintiff is dishonest and not trustworthy.

80. These are all generalized statements concerning 300,000 people of Enga. Default judgment for defamation should not be entered on a pleading of that nature.

81. A statement of claim alleging defamation must be properly particularized as is the requirement under O.8 R.84 of the NCR.

82. All judicial officers including judges have a duty to carefully peruse statements of claims that come before them in applications for default judgments to determine whether these are statements of claims where default judgments can be entered or are ones that must be properly particularised or further amended. Default judgment should never be entered when a statement of claim is first put to the Court just because the rules of court have not been complied with. As His Honour Sheehan J said in Tom Ilaisa (supra);

"In an action for defamation like any other, the plaintiff must plead the material facts (National Court Rules Order 8 Rule 8). In defamation actions, the material facts required in the statement of claim start with an allegation that the defendants published the words complained of, or caused them to be published to a named third defendant identified with much precision as possible.

The actual words complained of, and not merely their substance must be set out precisely in the statement of claim. Where the plaintiff complains of a passage in a book, or a long article or as in this case, a submission of several pages, he must specify the passage or passages which he alleges to be defamatory rather than merely pleading the whole book, article or submission. (see Gatley on Libel and Slander 7th Ed. and see also Halsbury’s Laws of England 4th Edition vol. 28 pgs. 171 & 172). 

 It is also required of the plaintiff that he distinguish between situations where the words complained of are said to be defamatory in their natural meaning or in a secondary meaning derived from special facts or matters. That is, that there is a legal or true innuendo which is defamatory."

83. I am also aware of the many default judgments that have been entered on defamation claims, some of which were pointed out to the Court by Mr Lambu. With respect, I say that these default judgments were either, entered after the Court had carefully screened the Statement of Claim or where default judgments were entered in a situation of this nature where the defendant had merely, not complied with the NCR, i.e. defaulted in filing Notices of Intention to Defend and Defence or lastly, that default judgment could have been entered by the Registrar, which used to be the practice in this jurisdiction.

84. Nevertheless, generally speaking, default judgments can be entered in defamation cases, subject to a stringent and thorough examination of the Statement of Claim.

Issue no. ii: Whether the trial judge erred when he refused the entry of default judgment.

85. At page 54 of the appeal book, the trial judge referred to O.12 R.37 of the NCR, the rule on summary disposal of cases and appears to ‘lump’ together summary disposals and default judgments, when they are two (2) different principles of law, as discussed above (see Telikom PNG Ltd v Thomas Tulin (2004) SC748). In that respect, he has erred.

86. Secondly, at the same page, his Honour said that s. 2(3) of the Defamation Act prohibits the entry of default judgment. With respect, s.2(3) states only that whether any matter is or is not defamatory, is a question of law. It does not specifically prohibit the entry of default judgment. What is or is not defamatory is a matter of interpretation by the Courts as I portrayed above. Of course, if a defendant is aggrieved by the entry of default judgment, he can always apply to set it aside. (see Tom Ilaisa v. Maurice Kalubaku & Ors (supra)).

87. The entry of default judgments is governed by the NCR. The NCR does not state that default judgments should not be entered in defamation cases. Part 67 of the Supreme Court Rules (NSW), the part on defamation, on which our rules are based, is very detailed on the form of a Statement of Claim and Defence and the process to be followed after a writ alleging defamation is filed. That is not the same in our NCR. Which of course presents very serious difficulties to the parties and the Courts in PNG and which, in my view, means that a defamation case must be properly controlled by directions from the Court, from the moment it first goes before a judge, to when judgment is delivered. It also recommended that Rules of Court be created, to enable the easy progress of defamation litigation from when the Statement of Claim is drafted, to the issuing of directions and finally, the setting down for trial. This is supported by practice in Australia, more particularly New South Wales where Part 67 of the Supreme Court Rules (NSW), at Part 67.11B.3 which is the part on Directions and Judgments by Default in defamation cases, states that once directions are given in the Defamation List, it is inappropriate to enter judgment by default. But if default judgment is warranted, an application should be made for such judgment, to be directed in accordance with Pt. 17 r.9 which is the part on default judgments (see Aitarama Ltd v Forsyth (1981) NSWLR 188 at 191). We in PNG, should allow ourselves to be guided by mandated and prescribed practices, in this case, Rules of Court.

88. I find that the learned trial judge erred when he ordered as he did. However, his Honour’s reasoning leading to that finding, is correct where he said at pg. 54 of the appeal book that one would have to peruse the statement of claim to find out whether publication or other factors associated with determining whether defamation has been committed or not, did take place.

Conclusion

89. Where the Supreme Court makes a finding that a trial judge has erred, the appeal must be upheld. In this case, although the trial judge’s reasoning was correct, as I pointed out above, with respect, he appears to have reached that finding based on the incorrect premise, that a summary judgment is the same as a default judgment and that a court is prohibited from entering default judgment in a defamation claim because of s.2(3) of the Defamation Act.

90. So, having found that His Honour had erred, the appeal must be upheld.

Costs

91. The law is that costs follow the event. In this case, the appellant appealed because a default judgment was refused. The default judgment was refused because the unique position at law in relation to defamation cases, which I have just outlined, was not put before the trial judge by the appellant. In my view, the trial judge’s decision would have been different if the appellant had put proper submissions on the alternatives available to the Court. It was only Mr. Kubak who placed some submissions on the law before the trial judge which assisted him to a large extent. The trial judge was not assisted by the appellant. 

92. It is for those reasons that I find that the appellant should pay his own costs of this appeal, because he, in a way, contributed towards the matter proceeding this far.

Orders 

93. In view of the above, I would make the following orders:

i.	The appeal is upheld;

ii.	 The order of the National Court of 9th November, 2007 in OS No. 892 of 2007 is quashed;

iii.	The matter is remitted to the National Court;

iv.	The parties shall bear their own costs of the appeal.

I did not order the rehearing of the motion for default judgment, only remitting the matter to the National Court because I will leave it to the appellant to decide on the next step to take, after consideration of what I have said, more particularly the inadequacy of the pleadings, in the Statement of Claim.

____________________________

94. CANNINGS J: This appeal raises the issue of whether default judgment can be entered in a defamation case. The appellant, David Lambu, argues that default judgment can be entered in such a case. The respondent, Paul Torato, argues that it cannot be. 

95. Mr Lambu is appealing against a decision of Sakora J in the National Court, which upheld Mr Torato’s argument and refused Mr Lambu’s motion for default judgment. 

96. Mr Lambu and Mr Torato were unsuccessful candidates for the Enga Provincial seat in the 2007 general election. Mr Lambu alleges that during the course of the campaign Mr Torato made a number of defamatory statements in public against him, which, though false, many people believed and resulted in him losing the election. In August 2007 he filed a writ of summons and statement of claim seeking damages of about K3.5 million for defamation.

97. Mr Torato did not file a defence within the time allowed by the National Court Rules so Mr Lambu filed a notice of motion for default judgment. The motion came before Sakora J who refused the motion, holding that there must be a determination by the court on the question of whether any matter is or is not defamatory, and such a determination cannot be made in the course of a motion for default judgment. 

THE APPEAL 

98. Mr Lambu has appealed against the refusal to enter default judgment, arguing that his Honour erred by misconstruing two laws that regulate the conduct of defamation cases, the National Court Rules and the Defamation Act. 

DID THE PRIMARY JUDGE MISCONSTRUE THE NATIONAL COURT RULES?

99. In support of his conclusion that default judgment cannot be entered in a defamation case his Honour referred to Order 12, Rule 37 of the National Court Rules, contained in Division 12.4 (summary disposal), which states: 

This Division applies to all proceedings except proceedings which include – 

(a)	a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage; or
(b)	a claim by the plaintiff based on an allegation of fraud; or
(c)	a claim for damages arising in respect of the death of any person or in respect of personal injuries to any person.

100. His Honour appeared to be saying that a default judgment is a form of summary disposal of a case under Division 12.4 and that a defamation action (being "a claim by the plaintiff for libel [and/or] slander") cannot be disposed of summarily, by virtue of Order 12, Rule 37(a). 

101. With respect, however, I agree with Mr Lambu that that is a misconstruction of the Rules. 

102. A motion for default judgment, though it might be regarded as a method of summary disposal of a case, is not brought under Division 12.4 of the Rules. It is brought under Division 12.3 (default judgment), consisting of Rules 24 to 36. Rule 37 only applies if there is a motion for summary judgment under Rule 38 or a motion for some other form of summary disposal permitted by Division 12.4.

103. Default judgment and summary judgment are two different things. A default judgment can be entered where the defendant fails to file a notice of intention to defend or a defence within the time required by the Rules or where the defendant has been required to verify his defence but has not done so. They are the forms of "default" prescribed by Order 12, Rule 25. A summary judgment, on the other hand, which is entered under Order 12, Rule 38, is only appropriate where a defence is filed but it is not a good defence. That basic difference between the two forms of summary disposal was explained by the Supreme Court in Telikom PNG Ltd v Thomas Tulin (2004) SC748. 

104. Division 12.3 is, in effect, a self-contained code for moving motions for default judgment; and it has no rule in it equivalent to Rule 37. It follows that the Rules do not prevent the entry of default judgment in a defamation case; though they do prevent entry of summary judgment in such cases. 

105. Mr Kubak submitted that a motion for default judgment is similar to a motion for summary judgment and that the reasons the primary Judge gave for concluding that a default judgment is inappropriate in a defamation case apply with equal force to summary judgments. So the Rules should be interpreted the same, irrespective of whether the motion is for default judgment or summary judgment. However, that argument ignores the very real differences between a default judgment and summary judgment. It also ignores the clear dictates of the National Court Rules.

106. I consider that the learned primary Judge erred in law by misconstruing the National Court Rules. In my view the correct interpretation of the Rules is that they do not prohibit the entry of default judgment in a defamation case. 

DID THE PRIMARY JUDGE ERR BY MISCONSTRUING THE DEFAMATION ACT?

107. The other reason his Honour decided that a default judgment could not be entered in a defamation case was that the question of whether a statement made by a defendant is defamatory is a question of law, which can only be properly determined at a trial. His Honour referred to Section 2(3) of the Defamation Act Chapter No 293, which states:

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.

108. His Honour agreed with Sheehan J who decided in Tom Ilaisa v Maurice Kalubaku & Others, WS No 143 of 1990, 23.11.90, that the characterisation of the question of whether any matter is defamatory, as a question of law, means that the question can only be determined by a court at a trial. That case appears to be the only PNG case that has addressed this issue in any detail so it is instructive to consider Sheehan J’s reasoning carefully. 

109. Sheehan J made the ruling while upholding a motion to set aside a default judgment in a defamation case. He held that the statement of claim was defective but that, even if it was compliant with the Rules, he would have still set aside the default judgment as it cannot be entered in a defamation case.

110. Sheehan J stated:

But in the case of defamation, assuming that pleadings are in order, it is not open to a plaintiff to enter judgment by default and have damages assessed, at least in Papua New Guinea.

In the United Kingdom and most other Commonwealth jurisdictions the failure to defend defamation proceedings or to attend at trial can result in the plaintiff entering judgment by default with damages to be assessed. The position is clearly set out in Halsbury’s 4th edition para 225.

"The question whether the words complained of are defamatory of the plaintiff is a question of fact for the jury, but, before the question is submitted to the jury, it is for the judge to rule upon on the evidence whether words complained of are reasonably capable of referring to the plaintiff and are reasonably capable of bearing a defamatory meaning in the minds of reasonable persons in the circumstance of the particular case".

In the United Kingdom if the defendant fails to answer the plaintiff’s claim it is taken that he accepts that he defamed the plaintiff and accepts liability. Judgment is then entered by default.

But in Papua New Guinea the situation is different. By s 2(3) of the Defamation Act 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. …

Thus in Papua New Guinea the issue as to whether words are defamatory or not is no longer a question of fact that may be conceded by a defaulting defendant but a matter of law requiring the Court’s decision. Accordingly judgment cannot be entered in the matter without the Court first ruling on whether or not the words complained of are defamatory or not.

111. The primary Judge adopted Sheehan J’s reasoning and concluded:

In no uncertain terms, claims such as the one that has been instituted by Mr Lambu cannot proceed to a court ordering entry of default judgment. And for very good reason too, with respect, because the damages whether special, general or even punitive damages that may be considered appropriate to award must proceed directly from a finding of liability. And a finding of liability must arise from a determination of law by the court that, from the facts that are available before it, in fact constituted defamation as defined. 

… Section 2(3) of the Defamation Act does not allow entry of default judgment or summary judgment on claims made under that legislation. So there has to be a determination … of the question of law as to whether or not there was defamation of character. And you have to go through and find out whether … things like publication took place and all other factors associated with determining whether or not defamation has been committed, before you can talk about liability and then proceed to determining whether or not damages should be assessed. 

112. I follow the primary Judge’s reasoning, and also that of Sheehan J in Ilaisa’s case, and I agree that the Defamation Act makes it clear that the question of whether something is defamatory is a question of law. However, I have difficulty with the proposition that, because an element of a cause of action, such as defamation, is a question of law, the cause of action is one that cannot be made the subject of a default judgment. 

113. Every cause of action consists of questions of law. For example if a plaintiff brings a negligence action, seeking damages against a defendant, the elements that should be pleaded in the statement of claim are that:

•	the defendant owed a duty of care to the plaintiff;
•	the defendant breached that duty, ie was negligent;
•	the defendant’s conduct caused injury to the plaintiff;
•	the plaintiff’s injuries were not too remotely connected to the defendant’s conduct; and
•	the plaintiff did not contribute to his or her own injuries, eg by being contributorily negligent or voluntarily assuming the risk of injury.

(See Kembo Tirima and Others v Angau Memorial Hospital Board and The State (2005) N2779; Omben Kumbe v MVIL (2005) N2860.)

114. Some of those elements are necessarily questions of law, eg did the defendant owe a duty of care to the plaintiff? Were the plaintiff’s injuries not too remote? But that does not mean that if the defendant does not file a defence, default judgment cannot be entered.

115. Consider a breach of contract case. The elements of the cause of action normally would be that:

•	there was a contract between the plaintiff and the defendant;
•	the contract was breached.

116. The existence of the contract might be a straightforward question of fact but the question of whether it was breached is invariably a question of law, involving interpretation of a provision of the contract or perhaps a determination of whether the contract had implied or express terms. Again, the fact that a question of law is an integral part of the cause of action does not mean that the action cannot be the subject of default judgment. 

117. 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). 

(See Defamation Act, Section 24; Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16.) 

118. 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. As in the case of the two examples given earlier, I cannot, with due respect to the learned primary Judge, see how or why the characterisation of an element of a cause of action as a question of law drives the conclusion that that cause of action cannot be the subject of default judgment.

119. It must be borne in mind that a judge hearing a motion for default judgment is not engaged in an administrative task. It is not just a matter of ticking boxes and checking that the formal requirements (eg that the defendant has not filed a defence) for entry of default judgment have been met. It is a matter of judicial discretion. If all formal requirements are satisfied, the decision whether to enter default judgment is still a matter for the discretion of the primary Judge under Order 12, Rule 32 (general) of the National Court Rules. The Supreme Court in Kunton v Junias and The State SCA No 158 of 2004, 28.09.06, explained that in deciding how to exercise that discretion a Judge hearing a motion for default judgment can take into account a wide range of considerations, including:

•	whether the statement of claim raises serious allegations of fraud or deceit, in which case the interests of justice may require those allegations to be proved by evidence in a trial before judgment is given on the merits; 

•	the extent of the default by the defendant;

•	whether the defendant appears to have a good defence;

•	whether the statement of claim amounts to an abuse of process;

•	whether the plaintiff has prosecuted his case diligently; 

•	whether the entry of judgment would prejudice the rights of co-defendants; 

•	whether the interests of justice would be served by the entry of default judgment;

•	whether the pleadings are vague, ie whether the statement of claim discloses a reasonable cause of action.

120. The last consideration is something that, I think, a Judge hearing a motion for default judgment in a defamation case would need to check very carefully as there are special rules for pleadings in defamation cases (eg Order 8, Rule 84, which deals with what particulars of the publication and the innuendo relied on, are required in the statement of claim). In that regard I agree with Davani J (whose draft judgment in the present case I have had the benefit of reading) to the extent that her Honour suggests that a Judge should take special care before exercising the discretion to enter default judgment in a defamation case.

121. However, despite some special features, a defamation action is much like any other civil action. If the defendant does not file a defence or is otherwise in default of the Rules, the plaintiff is entitled to seek default judgment and the Judge hearing the motion is obliged to hear and determine it in much the same way as in any other civil proceedings. 

122. Perhaps the rationale for Sheehan J’s decision in Ilaisa’s case was to avoid questions of law in a defamation case being decided by the Registrar. The practice for many years until the mid-1990s in PNG was that applications for default judgment were dealt with by the Registrar or his delegate. They were not dealt with in the normal course of events by Judges. It was not until cases such as Pinoko v The State (1997) N1520 and Paraka v Madang Provincial Government (1997) N1596 that Judges such as Sevua J and Doherty J disapproved of the practice. Then the Supreme Court (Kapi DCJ, Hinchliffe J, Sheehan J) confirmed in Sir Albert Kipalan v AGC (Pacific) Limited and Kaime No 3 Pty Ltd SC583 that only a Judge can hear and determine a motion for default judgment. In 1990, however, when Ilaisa’s case was decided, the normal practice was that default judgments were entered by the Registrar.

123. If that was the rationale behind Sheehan J’s decision in Ilaisa’s case, I can appreciate it and accept that the case was probably correctly decided. However, times have changed, the Registrar no longer enters default judgments. All motions for default judgment go before a Judge, so I cannot see a good reason for such a motion in a defamation case not going before a Judge in the normal way.

124. The entry of default judgment in a defamation case would, just as in any other case, settle the question of liability, ie determine that the plaintiff has established a cause of action, with damages to be assessed. The role of the judge conducting the trial on damages then becomes:

•	to make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity; and

•	if the facts and cause of action are reasonably clear, liability should be regarded as proven, ie the default judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim;

•	only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability;

•	the plaintiff has the burden of producing admissible and credible evidence of the alleged damages;

•	any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability.

(See Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002) N2182; Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694, William Mel v Coleman Pakalia and Others (2005) SC790.)

125. Given that the Judge assessing damages has a residual but limited discretion to revisit the issue of liability, there is a further safeguard against the improper or arbitrary entry of default judgment; and this is another reason there should be no prohibition against entering default judgments in defamation cases. The learned primary Judge clearly thought that it created a serious problem of practice or procedure and that a defamation case, by its nature, does not lend itself to entry of default judgment. However, I do not agree with his Honour.

126. Mr Lambu pointed out in his submission that there are numerous examples of the National Court assessing damages for defamation following entry of default judgment, eg Waterston v Moses (1982) N388; Kombea v Peke [1994] PNGLR N1275; Gabe v Clunn, Clockwork Orange and Pacific Gold Studios Pty Ltd [1995] PNGLR 153; Henao v Coyle (1999) N1918; Samiano v Dekuku (2001) N2057; and Duma v Hriehwazi and Pacific Star Limited Trading as "The National" (2004) N2526.

127. None of those cases questioned the propriety or legality of entering default judgment in a defamation case. It seems to have been accepted without controversy that there is nothing wrong with it. That, of course, does not make it right. As seen with the entry of default judgments by the Registrar, sometimes practices that are, with the benefit of hindsight, wrong in law, are followed for years on end by lawyers and Judges. It is only when someone challenges it or a Judge realises that there is a problem and makes a ruling on it that the practice becomes clearly unlawful, and then the changed practice can be incorporated into the National Court Rules by appropriate amendment or the Registrar can issue a practice direction. But I am not convinced that such a scenario is being played out with default judgments in defamation cases.

128. I do not consider that the Defamation Act prohibits default judgments. In my view the learned primary Judge misconstrued the effect of Section 2(3) of that Act. 

CONCLUSION

129. In my opinion the appeal should be allowed and the matter remitted to the National Court. The appellant should then decide on the next step he wants to take in light of all that has been said by the Supreme Court. 

130. As to costs, the appellant to some extent contributed to the learned primary Judge being led into error. Also, in the current proceedings the respondent has validly raised a number of important issues. So I would order that the parties bear their own costs. 

The appellant in person
Norbert Kubak & Co Lawyers: Lawyers for the respondent