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Cory v Blyth (No 3) [1976] PNGLR 463 (8 October 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 463 - Stanley George Cory v John Blyth 

[1976] PNGLR 463

N68

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CORY

V

BLYTH (NO 3)

Waigani

Saldanha J

5 October 1976

8 October 1976

PRACTICE AND PROCEDURE - Payment into Court - Denial of liability - Action for defamation - Principles applicable - Rules of Court O. XXVI, r. 1.

On an application for leave to pay money into Court pursuant to O. XXVI, r. 1 of the Rules of Court, in an action for defamation in which the defence was one denying liability, the plaintiff contended that the defendant should not be allowed to pay the money into court, on the ground that the defence was a sham because in answer to interrogatories, the defendant had admitted that he did say “words to the like effect” as those alleged as being defamatory.

Held

(1)      The purpose and function of interrogatories being to enable answers thereto to be put in evidence at the trial (O. XXV, r. 5 of the Rules of Court), it would be premature on an application for leave to pay money into court to consider them with a view to ascertaining whether or not a defence is a sham.

Attorney-General v. Gaskill [1882] UKLawRpCh 59; (1881-82) 20 Ch. D. 519 at p. 528 and Gannon v. Gannon and Anor [1971] HCA 76; (1972) 46 A.L.J.R. 57 at p. 62 referred to.

(2)      Further, the question whether or not words are capable of a defamatory meaning, depending upon all the circumstances in which the words are uttered, is a matter for the trial judge to decide and is not a proper subject to be taken into account in interlocutory proceedings.

Morris and Anor v. Sanders Universal Products [1954] 1 All E.R. 47 referred to.

(3)      In the circumstances the plaintiff was not likely to be prejudiced by the payment into Court.

(4)      Leave to pay money into Court should be granted.

Summons for Leave to pay Money into Court

This was an application for leave to pay money into Court pursuant to O. XXVI, r. 1 of the Rules of Court, in an action for defamation in which a defence denying liability had been delivered.

Counsel

The plaintiff in person

MF Campbell for the defendant

Cur. adv. vult.

8 October 1976

SALDANHA J: The plaintiff, who is a barrister and solicitor of the National Court and was a Senior State Prosecutor in the Department of Law, has brought an action for slander against the defendant, who was an Assistant Provincial Commissioner stationed at Angoram. He alleges that he has been injured in his reputation and in his profession and has been brought into public ridicule and contempt as a result of defamatory words uttered about him by the defendant. He claims damages. The words that the defendant is alleged to have uttered are as follows:

“Mitiam was acquitted, what else could you expect with a Prosecutor like Cory who is a nut case and has gone long long — do you know what he did last night? He smashed the glass louvres in his room about midnight and I was called out. I tell you he is long long.”

In his defence the defendant denied uttering these words, denied that the plaintiff had been injured in his reputation, etc. and denied that he had suffered any damage.

The defendant now seeks leave to pay money into Court. The defendant could have paid money into Court without leave if he had paid it before or at the time of delivering his defence. The defence was delivered on 26th March, 1976. But now he must get leave: O. XXVI, r. 1. So the Court has a discretion whether or not to give leave.

The defence is one denying liability. At one time there was a rule that money could not be paid into Court with a defence denying liability. It is not disputed that now there is no such rule.

The plaintiff contends that the Court in the exercise of its discretion should not allow the money to be paid into Court on the ground that the defence is a sham. He says the defence is a sham for the following reasons.

The plaintiff administered interrogatories to the defendant. By one of them the plaintiff asked:

“Did not you on or about Friday, 14th day of November, 1975 between 4.00 p.m. and 6.00 p.m. or on some other and what date, or at some other and what time at Angoram Club, Angoram in the presence and hearing of Mr John Benson speak the words set out in para. 3 of the Statement of Claim, or some and which of them, or words to the like effect?”

The defendant answered as follows:

“I did not say the words specified in para. 3 of the Statement of Claim but I did say words to the like effect between 4.00 p.m. and 6.00 p.m. on or about the 14th day of November, 1975 in the Angoram Club and that on information received by me Mr John Benson was then and there present.”

Because of this answer the plaintiff had at one stage made an application that defendant’s defence be struck out, judgment be entered for the plaintiff on the question of liability and the suit set down for hearing for assessment of damages. But because counsel for the defendant applied for an adjournment to take instructions and file an affidavit in reply the plaintiff withdrew his application because he did not wish to delay the trial which had been set down for the November sittings of the National Court at Wewak. It is plaintiff’s contention that the defendant’s admission in his answer that he did say “words to the like effect” is a contradiction of his defence that he did not utter defamatory words about the plaintiff. He contends that his answer amounts to an admission of liability and hence that the defence is a sham.

The purpose of administering interrogatories is to obtain answers which can be used in evidence at the trial: O. XXXV, r. 25. In my opinion to look at interrogatories at this stage with a view to finding out whether or not a defence is a sham is premature. “Interrogatories are not, like pleadings, confined to the material facts on which the parties intend to rely; they should be, and generally are, directed to the evidence by which the party interrogating desires to establish such facts at the trial:” Odgers on Pleading and Practice, 13th ed., at p. 234.

In the above cited passage Odgers refers to Attorney-General v. Gaskill[dxix]¹. In this case Cotton L.J. says at p. 528: “... The object of the pleadings is to ascertain what the issues are, the object of interrogatories is not to learn what the issues are, but to see whether the party who interrogates cannot obtain an admission from his opponent which will make the burden of proof easier than it otherwise would have been ...” In Gannon v. Gannon and Another[dxx]², albeit in circumstances different to those in the present case, Menzies J. said at p. 62: “... For my part I am not prepared to put admission in answer to interrogatories on the same footing as an admission in a pleading ... Furthermore, however, and more fundamentally, pleadings determine what is in issue; answers to interrogatories do not. An answer could not do so at the time of its delivery ...”

It is clear from the authorities that the function of interrogatories is to enable answers to be put in evidence at the trial. It may be that the plaintiff has obtained a damaging admission from the defendant. It is not for me to decide at this stage the full legal effect of defendant’s admission in an answer to an interrogatory that he uttered words to the like effect. I am not persuaded that an admission that he uttered words to the like effect is an admission, even by implication, of liability. Before finding that this answer amounts to an admission of liability I would have to know much more. I would need to know what the words are which have been admitted to have been uttered and said to have the like effect. I would also need to know the circumstances in which the words had been uttered. Only a trial judge can decide this after hearing the evidence and seeing the answers to interrogatories, if and when they are put in. No doubt the trial judge will have the benefit of seeing the controversial answer in this case.

Even at the trial the question whether or not words are capable of a defamatory meaning is not a proper subject to be disposed as a preliminary point: Morris & Another v. Sanders Universal Products[dxxi]³. Much less is it a proper subject to be taken into consideration in an interlocutory matter.

The circumstances in which it has been decided that a defence is a sham are vastly different to the circumstances in this case. Thus in Critchell v. London and South Western Railway Company[dxxii]⁴ it was held that the defence was a sham defence and must be struck out as being an abuse of the process of the Court. The facts of the case — I quote from the head note — were as follows:

“The defendants in an action to recover damages for negligence brought by a foreigner residing out of the jurisdiction, after obtaining an order that the plaintiff should give security for costs (with which he complied), delivered a defence in which they denied the negligence and paid a sum of money into Court with a denial of liability. With the defence was delivered a letter written by the defendants’ solicitor in which, after stating that the traverse of negligence was a technical plea merely to secure that the money paid into Court should remain there until the trial unless taken out by the plaintiff in satisfaction of his claim, he unreservedly undertook on behalf of the defendants not to contest liability at the trial:”

Here it was patently and abundantly clear from the letter which accompanied the defence that the defence was a sham and had been put in for reasons other than to contest liability.

Another question is: Is the plaintiff likely to be prejudiced? I do not see how he can be. He is not compelled to take the money out. He is at liberty to fight to the bitter end if he wishes to do so. If the amount paid in is a sizeable amount he can take it out and avoid the expense, inconvenience and anxiety of a lengthy trial away from home. In the event of his choosing to proceed to trial the only risk he runs is that if he recovers less than the amount paid into Court he may have to pay the costs. Even then the Court has a discretion regarding costs. But the plaintiff is an experienced barrister and solicitor of many years standing, and the effect of paying the money into Court may be a challenge to his ability to assess in monetary terms the damage, if any, that his reputation has suffered. He can take the money out with a half-cock vindication of his character or fight to the bitter end, and have his character fully vindicated with the possibility of having to pay all the costs. It is not for the first time that it has happened that sometimes the only choice a man has is Hobson’s choice.

I give leave to pay money into Court. The money must be paid within 14 days with liberty to apply for extension of time.

Orders accordingly.

Solicitor for the plaintiff: White, Reitano & Young.

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

[dxix] [1882] UKLawRpCh 59; (1881-82) 20 Ch. D. 519 at p. 528.

[dxx] [1971] HCA 76; (1972) 46 A.L.J.R. 57 at p. 62.

[dxxi] [1954] 1 All E.R. 47.

[dxxii] [1907] UKLawRpKQB 39; [1907] 1 K.B. 860.