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Cory v Blyth (No 1) [1976] PNGLR 274 (22 June 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 274 - Stan Cory v John Blyth 

[1976] PNGLR 274

N50

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CORY

V

BLYTH (NO 1)

Waigani

Raine J

8 June 1976

15 June 1976

22 June 1976

CONSTITUTIONAL LAW - Independent State of Papua New Guinea - Action for defamation - Effect of ss. 38[cccxiv]¹ and 46[cccxv]² of the Constitution on right to bring action for defamation - Whether matter should be referred to Supreme Court under s. 18[cccxvi]³ of Constitution - Whether “vexatious” or “trivial”.

DEFAMATION - Action for - Effect of ss. 38[cccxvii]⁴ and 46[cccxviii]⁵ of the Constitution on right to bring action.

PRACTICE AND PROCEDURE - Referal of question involving interpretation of Constitution to Supreme Court - Whether question “vexatious” or “trivial” - Constitution s. 18[cccxix]⁶.

PRACTICE AND PROCEDURE - Pleading - Defences - Amendment - Completely different set of facts - Action for defamation - Embarrassing, unfair and oppressive to plaintiff.

In the pleadings in an action for defamation, the defendant denied absolutely the publication and uttering of the offending words, and issue having been joined by the plaintiff on the denials, the defendant sought leave to add the following defences by way of amendment to the defence:

“In the alternative:

5.       The defendant says that the publication complained of was made on an occasion when and in circumstances in which the plaintiff was not likely to be injured by the publication. And

6.       The defendant says that any publication made by him is permitted by s. 46 of the Constitution of Papua New Guinea and no action lies against him by virtue of the said Constitution of Papua New Guinea.”

Held

(1)      As to the proposed defence 6:

(a)      Section 46 of the Constitution of the Independent State of Papua New Guinea (Freedom of expression) does not license defamatory comment.

(b)      Section 38 of the Constitution merely puts limitations on the right to freedom of speech given by s. 46, it does not indicate on an “expressio unius” basis, that the Defamation Act 1963, having been repealed by the Laws Repeal Act 1975, remains repealed.

(c)      The matter should not be referred to the Supreme Court of Justice under s. 18 of the Constitution which gives original jurisdiction to the Supreme Court on any question relating to the interpretation or application of any provision of a Constitutional law, and requires all other Courts to refer such questions to the Supreme Court unless the question is trivial, vexatious or irrelevant; the questions raised by the defence being “vexatious “ and possibly “trivial”.

(d)      The application to amend should be refused.

(2)      As to the proposed defence 5:

(a)      The effect of the proposed pleading was to plead two completely different sets of facts, in such a way as to be embarrassing, unfair and oppressive to the plaintiff.

In re Morgan; Owen v. Morgan [1887] UKLawRpCh 113; (1887) 35 Ch. D. 492 and Child v. Stenning [1877] UKLawRpCh 112; (1878) 5 Ch. D. 695 referred to.

(b)      The application to amend should be refused.

Application to Amend Pleadings

This was an application to amend pleadings re an action for defamation by adding the alternative defences set out herein at pp. 275-76.

Counsel

The plaintiff in person

MFJ Campbell for the defendant

Cur. adv. vult.

22 June 1976

RAINE J:  This is an application by the defendant in a defamation action to amend existing defences already filed by adding two more. I should say that we are concerned with alleged slander. The application is opposed by the plaintiff, who is a lawyer, and who appeared in person, although he has a firm of solicitors on the record.

There is no need to set out the original pleadings. The statement of claim was quite straightforward, with no unnecessary frills. It alleged that the defamatory words were published in the Angoram Club and that they injured the plaintiff in his professional and personal capacities.

The defence was quite terse. One matter alleged, about which I imagine there will actually be no dispute, was not admitted, on a “do not know and cannot admit” basis. Another matter, of which the defendant had complete knowledge, was admitted, but the publication and uttering of the alleged, offending words was denied absolutely. Issue was joined by the plaintiff on the denials.

Thus it will be seen that on the pleadings as filed, however vexed be the questions of fact, the legal issues were very simple. Nothing special at all.

The defendant seeks amendments as follows:

“In the alternative:

5.       The defendant says that the publication complained of was made on an occasion when and in circumstances in which the plaintiff was not likely to be injured by the publication. And

6.       The defendant says that any publication made by him is permitted by s. 46 of the Constitution of Papua New Guinea and no action lies against him by virtue of the said Constitution of Papua New Guinea.”

The plaintiff’s arguments went to the root of the matter, the very validity of the proposed, additional defences. He made no complaint about the application being late in the day. He did not suggest there was anything tricky about the lateness of the proposed new defences. He is experienced, and well appreciates that proposed defence 5, based on s. 19 of the Defamation Act, 1962, was an afterthought, it had not occurred to the pleader when the defence was first drafted. He also appreciated that proposed defence 6 had been inserted when the pleader became aware, early in the month, of a similar point being taken in another defamation action which received a great deal of publicity, but where the point was not decided, for the case was settled. Nor did the plaintiff suggest that this was the sort of matter where he would suffer irretrievably were the amendment granted, and suffer to an extent that could not be cured by an award of costs or by inflicting special terms on the defendant. I thought that his attitude was sensible and correct as to the fifth defence now proposed, but, of course, defence 6 could be fatal to the claim.

I will deal with defence 6 first, because I am not prepared to allow this amendment, and no further argument on it can arise, whereas defence 5 might lead to some argument, or, at any rate, to applications for orders and directions if I am prepared to allow it to be added as a defence.

PROPOSED DEFENCE 6

This is based on s. 46 of the Constitution. That section reads:

“46.    Freedom of expression.

(1)      Every person has the right to freedom of expression and publication, except to the extent that the exercise of that right is regulated or restricted by a law:

(a)      that imposes reasonable restrictions on public office-holders; or

(b)      that imposes restrictions on non-citizens; or

(c)      that complies with Section 38 (general qualifications on qualified rights).

(2)      In Subsection (1), ‘freedom of expression and publication’ includes:

(a)      freedom to hold opinions, to receive ideas and information and to communicate ideas and information, whether to the public generally or to a person or class of persons; and

(b)      freedom of the press and other mass communications media.

(3)      Notwithstanding anything in this section, an Act of the Parliament may make reasonable provision for securing reasonable access to mass communications media for interested persons and associations:

(a)      for the communication of ideas and information; and

(b)      to allow rebuttal of false or misleading statements concerning their acts, ideas or beliefs,

and generally for enabling and encouraging freedom of expression.”

I apprehend that this section strikes at any attempt, for instance, by Parliament, to extinguish, wholly or partially, freedom of speech. It protects newspapers from a Government that resented criticism, it protects the candidate for election from having his handbills seized, it protects the open air speaker, one thinks of the speakers in Sydney’s Domain and on Melbourne’s Yarra Bank. And so on.

But it does not license defamatory comment. It is inconceivable that this was contemplated by the Founding Fathers, and, in any event, I do not believe the wording of the section supports the proposition Miss Campbell contends for.

But Miss Campbell’s argument was not limited to a consideration of s. 46 alone but involved, in the ultimate, a consideration of s. 38 which, of course, is tied in with s. 46. It reads:

“38.    General qualifications on qualified rights

(1)      For the purposes of this Subdivision, a law that complies with the requirements of this section is a law that is made and certified in accordance with Subsection (2), and that:

(a)      regulates or restricts the exercise of a right or freedom referred to in this Subdivision to the extent that the regulation or restriction. is necessary —

(i)       taking account of the National Goals and Directive Principles and the Basic Social Obligations, for the purpose of giving effect to the public interest in:

(A)     defence; or

(B)      public safety; or

(C)     public order; or

(D)     public welfare; or

(E)      public health (including animal and plant health); or

(F)      the protection of children and persons under disability (whether legal or practical); or

(G)     the development of underprivileged or less advanced groups or areas; or

(ii)      in order to protect the exercise of the rights and freedoms of others; or

(b)      makes reasonable provision for cases where the exercise of one such right may conflict with the exercise of another,

to the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.

(2)      For the purposes of Subsection (1), a law must:

(a)      be expressed to be a law that is made for that purpose; and

(b)      specify the right or freedom that it regulates or restricts; and

(c)      be made, and certified by the Speaker in his certificate under Section 110 (certification as to making of laws) to have been made, by an absolute majority.

(3)      The burden of showing that a law is a law that complies with the requirements of Subsection (1) is on the party relying on its validity.”

Miss Campbell’s argument comes to this, namely that the Defamation Act, 1962 having been repealed by the Laws Repeal Act, 1975, at the time of Independence, that s. 38 makes no specific reference to defamation, which is not dealt with otherwise in the Constitution, for it is silent as to the protection of peoples’ characters and reputations. She submits that s. 38, while permitting certain restraints on freedom of expression makes no reference to defamation. She further submits that a consideration of s. 20, Sch. 2.2 and 2.6, and ss. 11 and 10 and Sch. 1.5, together with the specific exceptions in s. 38, which do not include defamation, clearly indicates that Parliament must legislate the repealed Defamation Act, or something like it, into existence if it is desired, as was the case before 16th September, 1975, to have a remedy available for persons whose character and reputation is assailed.

Miss Campbell does not contend that a Defamation Act, or the 1962 Act, could not be enacted or re-enacted. She agrees that it could, under s. 38.

I cannot agree that s. 38, on an “expressio unius” basis, indicates that the Defamation Act remains repealed, although appreciating that s. 38 (1) (a) (i) (A) to (G) does not refer to the protection of character and reputation. In my opinion s. 38 merely puts limitations on the right to freedom of speech given by s. 46, for instance s. 38 (1) (a) (A) deals with the very necessary right to legislate in relation to defence and impose restrictions deemed necessary to protect the public interest, a necessary provision indeed.

Miss Campbell then referred me to s. 18 of the Constitution. It reads:

“18.    Original interpretative jurisdiction of the Supreme Court

(1)      Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

(2)      Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.” (The underlining is mine.)

Well, I am not going to refer this matter to the Supreme Court. I think the question raised by the defence is “vexatious”, and possibly “trivial”, and I say this because I cannot see for a moment, until better instructed, that s. 46 inhibits actions for defamation, and this absolutely. It is unimaginable that s. 46 declares an open season on people who are defamed. Nor, as I have indicated, do I accept the s. 38 argument, ably presented though it was.

I refuse the application to amend in relation to proposed defence 6.

PROPOSED DEFENCE 5

This brings s. 19 of the Defamation Act, 1962 into play, at any rate, it attempts to. Section 19 reads:

“In any case other than that of words intended to be read, it is a defence to an action or prosecution for publishing defamatory matter to prove that the publication was made on an occasion when and in circumstances in which the person defamed was not likely to be injured by the publication.”

Now, apart from the matters the plaintiff complains of, it seems to me that the defendant’s application of the section to the pleading is unexceptionable, and that defence 5 is quite neatly pleaded, and follows s. 19, although more facts should have been pleaded, setting out the nature of the occasion and the circumstances existing at the material time.

When I suggested this to Miss Campbell she indicated that she was unwilling to particularize further. I had imagined that it would be suggested by the defendant, as an example, that on the occasion the alleged words were uttered that there was a rather noisy party in progress at the Club and that in all the circumstances the whole thing was a storm in a teacup, or something along these lines. I asked “Why this reticence?” “Why should the particulars not be supplied?” Miss Campbell tells me that I have misconceived the situation, in fact, it was the alleged behaviour of the plaintiff at or about the time of publication that is said to have moderated the effect of the alleged words. Miss Campbell, therefore, does not want to plead or particularize the plaintiff’s behaviour, she fears damages, if any, could be increased. Whilst appreciative of this, the plaintiff must be given the information if the amendment is allowed, he could not possibly prepare his case in an adequate way.

What concerns me greatly is the attempt by the defendant to raise two competing sets of facts on the pleadings. Proposed defence 5, as amended, gives the lie to defence 4. Defence 4 denies the publication quite explicitly. Proposed defence 5 admits it.

I well appreciate that there can be alternative defences. I appreciate just as keenly that there can be cases where the defences set up facts that differ strongly.

Two situations often face the pleader. Firstly, the pleader is often not sure, for example, whether, on a single set of facts, there is a breach of a fundamental condition going to the root of a contract, or whether there is merely a breach of warranty. Or, in the Indermaur v. Dames[cccxx]⁷ situation he is often unsure whether a plaintiff is an invitee or a licensee, or, in the allurement cases, a trespasser. Thus, if he is wise, he pleads in the alternative.

But often there is a second situation where the pleader has to assume that the best case that might be made out might not be accepted. This is a very real problem, it involves the future trial judge’s interpretation of the law, the judge’s findings on questions of fact, and, of course, so often, the pleader will have proofs from possible witnesses which, even if much of a muchness, could lead to different conclusions on questions of fact and law. In such a situation the pleader might deem it wise to have as many options open to him as possible.

Thus, it is trite to say that defences will not necessarily be struck out, or amended defences refused when sought, because they are inconsistent with others. I must say that I am a strong believer in the verification of all defences. Here the defendant would be very hard put to verify both 4 and 5. But be that as it may, here the pleadings do not have to be verified.

I gain assistance from In re Morgan; Owen v. Morgan[cccxxi]⁸ where the Order under consideration was in much the same terms as O. XXII r. I of our Rules.

Lindley L.J. with whom Bowen L.J. agreed, said, at pp. 499, 500:

“I think that in this case the learned Judge in the Court below has taken too strict a view of the Order as to pleadings. He has evidently proceeded on the principle that inconsistent defences are embarrassing and ought not to be allowed. That view appears to me not to be warranted by the Orders when properly construed.

The learned Judge has relied in particular upon Order XIX, r. 4, the important part of which runs thus: ‘Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.’

Now I cannot myself construe that Order as prohibiting inconsistent pleadings. One sees perfectly well what is meant by it, viz., that each party is to state succinctly and concisely and in a summary from the material facts on which he relies. Now a person may rely upon one set of facts, if he can succeed in proving them, and he may rely upon another set of facts, if he can succeed in proving them; and it appears to me to be far too strict a construction of this Order to say that he must make up his mind on which particular line he will put his case, when perhaps he is very much in the dark. Let us take this particular case — an action by the executor of one person against the executor of another person — and let us assume, what may well happen, viz., that the defendant, who is the executor of the husband, really knows nothing at all.

Now what is he to do? He cannot safely and consistently with the pleading rules do nothing and say to the plaintiffs, ‘Prove that you are entitled to recover this money from my testator’s estate’ for the rules as to pleading do not allow that. If he thinks the facts will establish affirmative defences, such as payment, or release, and so on, he must plead such defence: otherwise, when he comes to trial it will be said against him: ‘You cannot avail yourself of that defence, because you have not pleaded it.’ Now what is he to do? It appears to me that he can in such a case only do that which in substance he has done here, that is to say, forecast, as well as he can, what possible defences may arise out of the evidence to be given at the trial, and put these down under short heads as the material facts on which he relies at the time at which he puts in his defence. At the trial he will rely upon such of them as he can prove or as may come out on the evidence.

I quite see that that power may be very much abused. It may be abused to such an extent as to be embarrassing and unfair and oppressive to the other side. To correct that, there is r. 27 of the same Order which enables a Judge to strike out as embarrassing any pleading, whether it is an alternative pleading or whether it is not. But to go the length of saying that no inconsistent pleading can be pleaded, which is the view taken by the learned Judge in the Court below, appears to me not warranted by the rules and contrary to the established practice of the Courts.” (The underlining is mine).

(See also, Child v. Stenning,[cccxxii]⁹).

This judgment of a great judge, concurred in by another great judge, seems to me to give me much room within which to move.

Before reaching a conclusion, I might add that the plaintiff submitted, and I suppose he put this on a discretionary basis, that the proposed defence was, in a sense, always available to the defendant because even if the plaintiff succeeds he still has to establish some damage. With respect, this is not to the point at this stage. Even if, at the trial, it was clear to the trial judge that damages would be quite minimal were the plaintiff to succeed, the fact is that a verdict, even if very small, would be entered against the defendant, and, however small those damages might be, they could carry the costs. So there is a clear distinction. If allowed, 5 might both win the day, be it in a small amount, and the costs. There is a clear distinction between the s. 19 defence, and the general situation “qua” damages. Section 19 gives a complete defence if it succeeds. If it fails, matters raised under it only go to quantum.

I do not believe this amendment should be allowed.

The defendant must know whether he published the words.

It is not the sort of case one has seen so often where a party is unsure of the factual situation. Here the defendant seeks to say both “I did not” and “I did”. One or other must be false. It is black or it is white. And the alleged defamatory words are quite specific, and their meaning is clear.

Here, in the original amended defence sought to be added, it is not without significance that the proposed defence read:

“5.      The defendant says that any publication made was made on an occasion when and in circumstances in which the plaintiff was not likely to be injured by the publication.”

This was plainly embarrassing, and Miss Campbell substituted “any” for “the”, and the words “complained of” for the other word I have underlined, namely “made”.

I therefore dismiss the notice of motion. I order the defendant to pay the respondent plaintiff’s costs of the motion. I order that no costs of the motion be taxed until the action is concluded.

Motion dismissed.

Solicitors for the plaintiff: White Reitano and Young.

Solicitor for the defendant: N. H. Pratt, Acting Public Solicitor.

[cccxiv]Infra p. 277.

[cccxv]Infra p. 276

[cccxvi]Infra p. 278.

[cccxvii]Infra p. 277.

[cccxviii]Infra p. 276.

[cccxix]Infra p. 278.

[cccxx][1866] UKLawRpCP 32; (1866) L.R. 1 C.P. 274.

[cccxxi](1887) 35 Ch. D. 492.

[cccxxii][1877] UKLawRpCh 112; (1876) 5 Ch. D. 695.