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South Pacific Post Pty Ltd v Nwokolo [1984] PNGLR 38 (29 February 1984)

Papua New Guinea Law Reports - 1984

[1984] PNGLR 38 - South Pacific Post Pty Ltd v Ephraim Ikenna Maduabuchi Nwokolo 

[1984] PNGLR 38

SC266

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SOUTH PACIFIC POST PTY LTD

V

EPHRAIM IKENNA MADUABUCHI NWOKOLO

Waigani

Kidu CJ Kapi DCJ Pratt J

23 November 1983

29 February 1984

DEFAMATION - Innuendo - Pleading of - In statement of claim - National Court Rules 1983 - Position similar to U.K. pre-1949 - False and true innuendoes distinguished - Extrinsic facts need not be pleaded - Extrinsic facts must however be proved - Defamation Act (Ch. No. 293) - Rules of the National Court (pre-1983).

PRACTICE AND PROCEDURE - National Court - Rules of Court - Rules constitute a code - Amendment of subject to sanction of Parliament - No power to develop underlying law in relation to - Rules of the National Court - Constitution, s. 184.

APPEALS - Evidence on - Fresh evidence - Application to strike out statement of claim - Appeal from dismissal - Defamation proceedings - Material sought to be adduced available at all times - Not fresh evidence - Supreme Court Act (Ch. No. 37), s. 6(1)(a).

In proceedings for defamation commenced by writ of summons filed in October 1979, the plaintiff (respondent) delivered a statement of claim in which he pleaded that a newspaper cartoon by “its caricature, numbers, initials, words and statements, in their natural ordinary and or inferential meaning had defamed him and further by way of innuendo it was understood to mean (here followed three meanings alleged by way of innuendo)”.

The defendant (appellant) sought pursuant to the Rules of the National Court, O. 22, rr. 31 and 32, as applicable prior to the introduction of the Rules of the National Court 1983 on 4 July 1983, to have the statement of claim struck out on the grounds that it disclosed no reasonable cause of action, that it showed a cause of action which was frivolous or vexatious, and/or that as a pleading it tended to prejudice, embarrass or delay the fair trial of the action.

On appeal against an order dismissing the application to strike out,

Held

(1)      The relevant law in Papua New Guinea prior to 4 July 1983 was that applicable in the United Kingdom prior to 1949.

(2)      In defamation proceedings based on a direct defamatory imputation or “false innuendo” the plaintiff was required in his statement of claim only to set out the words etc. upon which he relied and to ascribe to them what actual and ordinary meaning is placed upon them.

(3)      In defamation proceedings based on a true or legal innuendo which relies on a special meaning dependent upon extrinsic facts there was no requirement to plead the extrinsic facts though particulars could be ordered in appropriate cases: extrinsic facts had nevertheless to be proved by evidence thereof.

Grubb v. Bristol United Press Ltd [1963] 1 Q.B. 309, discussed and applied.

(4)      Under the Rules of the National Court 1983, O. 8, r. 84(b), true or legal innuendoes must now be supported by particulars within the body of the statement of claim itself.

(5)      The Rules of the National Court of Justice form a code of pleading practice and procedure which may be used as a guide in deciding matters of practice and procedure: the court cannot develop an underlying law of practice and procedure or formulate rules to fill gaps, for the power to alter such rules which is contained in s. 184 of the Constitution though given to the judges of the court is subject to the overriding sanction of Parliament.

(6)      The cartoon which was available at the hearing of the motion to strike out, but not put before the National Court, could not be received in evidence on the appeal as fresh evidence under s. 6(1)(a) of the Supreme Court Act (Ch. No. 37).

The Government of Papua New Guinea and Davis v. Barker [1977] P.N.G.L.R. 386 at 393, applied.

Cases Cited

Bligh v. Router [1968] Q.W.N. 9.

Bruce v. Odhams Press Ltd [1936] 1 K.B. 697; [1936] 1 All E.R. 287; 105 L.J.K.B. 318; 154 L.T. 423; 52 T.L.R. 224.

Cairns v. John Fairfax and Sons Ltd; Morosi v. John Fairfax and Sons Ltd [1983] 2 N.S.W.L.R. 708.

Capital and Counties Bank v. Henty (1882) 7 App. Cas. 741; 52 L.J.Q.B. 232; 47 L.T. 662; 47 J.P. 214; 31 W.R. 157, H.L.

Dawson Bloodstock Agencies Pty Ltd v. Mirror Newspapers [1979] 2 N.S.W.L.R. 733.

Grubb v. Bristol United Press Ltd [1963] 1 Q.B. 309; [1962] 3 W.L.R. 25; 106 S.J. 262; [1962] 2 All E.R. 380.

Jones v. Skelton [1963] 2 W.L.R. 1362; 107 S.J. 870; [1963] 3 All E.R. 952 P.C.

Ladd v. Marshall [1954] EWCA Civ 1; [1954] 3 All E.R. 745; 98 S.J. 870; [1954] EWCA Civ 1; [1954] 3 All E.R. 745; 71 L.Q.R. 166, C.A.

Lewis v. Daily Telegraph Ltd [1964] A.C. 234; [1963] 2 W.L.R. 1063; 107 S.J. 356.

Minister for Lands v. Frame [1980] P.N.G.L.R. 433.

Neap, James v. The Independent State of Papua New Guinea (Unreported Supreme Court judgment No. SC228 dated 3 May 1982).

Raphael Warakau v. The State (Unreported Supreme Court judgment No. SC184 dated 3 November 1980).

Sannga deceased, Re [1983] P.N.G.L.R. 142.

Sim v. Stretch (1935-1936) 52 T.L.R. 669; [1936] 2 All E.R. 1237; 80 Sol. Jo. 703.

State, The v. Wik Kor [1983] P.N.G.L.R. 24.

Tei Abal v. Anton Parau [1976] P.N.G.L.R. 251.

The Government of Papua New Guinea and Davis v. Barker [1977] P.N.G.L.R. 386.

Tolley v. Fry [1931] UKHL 1; [1930] 1 K.B. 467.

Watkin v. Hall (1868) L.R. 3 Q.B. 396; 9 B. & S. 279; 37 L.J.Q.B. 125; 18 L.T. 561; 32 J.P. 485.

Appeal

This was an appeal against the dismissal of a notice of motion seeking to strike out a statement of claim pursuant to the National Court Rules, O. 22, rr. 31 and 32, in proceedings for defamation.

Counsel

C. J. Coady, for the appellant.

P. D. Donigi, for the respondent.

Cur. adv. vult.

29 February 1984

KIDU CJ PRATT J: In October 1979 the respondent, by a writ of summons (No. 953 of 1979), commenced a defamation action against the appellant. Two years four months after the issue of the writ (on 15 February 1982) the respondent delivered to the appellant a statement of claim alleging as follows:

“(1)    The Plaintiff is a former Senior Lecturer in Law at the University of Papua New Guinea and a well-known barrister and solicitor who carries on practice in Port Moresby and elsewhere in Papua New Guinea.

(2)      The Defendant is a company duly incorporated in Papua New Guinea and is the proprietor of a national newspaper circulated in large numbers throughout Papua New Guinea, known as the Papua New Guinea Post Courier (hereafter called Post Courier Newspaper).

(3)      Between the months of July and September 1979 the plaintiff acted as defence counsel for John Rumet Kaputin who was charged and later convicted of disobeying a lawful order issued by a court and sentenced to ten weeks imprisonment starting on or about the 10 October 1979.

(4)      During the month of September 1979 a large number of prisoners escaped from lawful custody from the Bomana Corrective Institution and other similar institutions throughout Papua New Guinea, following the release of Nahau Rooney from the Bomana Corrective Institution on or about the 11 September 1979.

(5)      On 63 of the issue of the Post Courier Newspaper of Friday, 19 October 1979 the defendant by its servants and agents published an advertisement in the form of a cartoon under the caption ‘isuzu lu’.

(6)      In the cartoon the defendant falsely and maliciously printed and published of the plaintiff and of and concerning the plaintiff by way of his profession and calling:

(a)      a caricature represented as the Plaintiff walking arm-in-arm with a character being the numbers 791632 and the initials and word ‘c.i.s. Bomana’ on his clothing (hereafter referred to as his companion); and

(b)      statements in the following words falsely attributed to the plaintiff and purportedly addressed to his companion, to wit: ‘Sorry John, it’s the only way I could get you out’ and response in the following words, falsely attributed to his companion, to wit: ‘No waris wokabaut em i orait, tasol long fourmail bai mi ranawe’ meaning thereby ‘No worries the walk is a good idea, it means that at four mile I will run away’.

(7)      By the said caricature numbers, initials, words and statements, in their natural ordinary and or inferential meaning the defendant meant and was understood to mean that the plaintiff had assisted an inmate of the Bomana Corrective Institution No. 791632 to escape from lawful custody.

(8)      Further, by way of innuendo, the said advertisement so far as it concerned the Plaintiff, was understood to mean that:

(a)      the plaintiff had agreed for or permitted his portrait to be exhibited for the purpose of the advertisement of isuzu motor vehicles and that he did so for gain and reward and that he had prostituted his reputation as a lawyer for advertising purposes against the ethics of his profession and that he was seeking notoriety, gain and unfair advantage over his professional colleagues, by means of the said advertising and that he had been guilty of misconduct unworthy of his profession.

(b)      the plaintiff was a dishonest lawyer, who, unable to secure his client’s acquittal through professional exertions, resorted to or was capable of resorting to illegal means to enable his client to escape from justice; that the plaintiff was unfit to be a member of his profession.

(c)      the plaintiff in disregard of the law and the ethics of his profession associated on intimate terms with a prisoner and conspired with him to commit and aided and abetted him in committing a criminal offence, to wit, escape from lawful custody.

(9)      As a result of the publication, the plaintiff is likely to continue to suffer injury in his profession and calling and other persons have been and are likely to be induced to shun or avoid or ridicule or despise him. and the plaintiff claims damages of K200,000.”

By notice of motion dated 14 May 1982, the appellant on 21 May 1982 moved as follows:

“(1)    That pursuant to O. 22 r. 31 the plaintiff’s statement of claim be struck out on the grounds that it discloses no reasonable cause of action and/or alternatively that it shows a cause of action which is frivolous or vexatious.

(2)      That pursuant to Order 22 r. 32 the plaintiff’s statement of claim be struck out as being a pleading tending to prejudice embarrass or delay the fair trial of this action and/or alternatively that the pleading or parts thereof are unnecessary or scandalous.

(3)      That consequent upon orders being made under pars 1 and 2 hereof that the plaintiff’s cause of action be struck out.

(4)      For such further or other orders as this Honourable Court deems fit including an order for costs.”

The application was entertained by Bredmeyer J. and dismissed with costs. We are concerned with an appeal against this decision.

The notice of appeal and application for leave to appeal states, inter alia, as follows:

“The appeal is against his Honour’s judgment of dismissal of the appellant’s application and an order is sought that his Honour’s judgment be reversed and the costs of the application and of this appeal be paid by the respondent. The questions involved and the reasons why leave should be given in the grounds of appeal and in addition:

(1)      Questions of particular importance to the parties arise.

(2)      Questions of general importance arise.

(3)      The matters raised fall within Sch. 2.3 of the Constitution.

The Grounds of Appeal

(1)      That the judgment of the learned judge was wrong in law.

(2)      That the learned judge misdirected himself, took into account irrelevant considerations or ignored relevant matters:

(a)      In holding that the appellant was not embarrassed by the respondent’s statement of claim;

(b)      As to the requirements of pleading and innuendo in a defamation claim;

(c)      As to the general standard of pleading required in a defamation claim;

(d)      In holding that the inclusion of the word ‘influential’ was not embarrassing to plead to.

(3)      Such further or other grounds that may become apparent when the learned judge’s notes are available.

Reasons of Law

The Appellant repeats the particulars as stated in the nature of the case and says as follows:

(1)      It is a clear principle of law in defamation actions that:

(a)      defamation by way of innuendo does not arise unless there exist extrinsic facts giving rise to the innuendo, known by a particular person or genus of persons and there has been a publication to such person or persons;

(b)      the respondent’s statement of claim did purport to plead innuendo but failed to disclose extrinsic facts by reason of which the alleged defamation bears a special meaning and did not identify any person or persons to whom the material had been published who had knowledge of the facts.

(2)      The appellant will further rely upon rules of pleading as set out in the rules of the National Court of Justice and the underlying law pertaining thereto.

The appellant seeks in place of the judgment appealed from an order that the respondent’s statement of claim, alternatively the embarrassing parts thereof, be struck out and that the respondent pay the costs of the application and of this appeal.”

FRESH EVIDENCE

Mr Coady made a preliminary point that this Court should require the cartoon to be produced in order to determine whether the cartoon and words described in par. 6 of the statement of claim disclose a direct imputation alleged by the plaintiff in par. 7 of his statement of claim. He submitted that the court should call for the cartoon under s. 6 of the Supreme Court Act (Ch. No. 37):

“(1)    An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court:

(a)      to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; ...”

This Court has in The Government of Papua New Guinea and Davis v. Barker [1977] P.N.G.L.R. 386; Raphael Warakau v. The State (Unreported Supreme Court judgment No. SC184 dated 3 November 1980) and James Neap v. The Independent State of Papua New Guinea (Unreported Supreme Court judgment No. SC228 dated 3 May 1982), decided that the justifications for the reception of fresh evidence on appeal are:

“... first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.” Ladd v. Marshall [1954] EWCA Civ 1; [1954] 3 All E.R. 745 at 748 quoted in Barker’s case at 393.

The cartoon was available at the hearing of the appellant’s motion to strike out the respondent’s statement of claim but no action was taken to put it before the National Court. Despite the statement of the law above on the reception of fresh evidence on appeal, Mr Coady invited this Court to adopt a contrary view. We see no valid reason for departing from settled law and do not propose to do so.

We do not consider Bredmeyer J. erred in ruling that the respondent’s statement of claim “... discloses a cause of action and is not frivolous or vexatious”. In a defamation action based on direct defamatory imputation the plaintiff only has to set out in his/her statement of claim the words etcetera he/she relies upon and ascribe to them what natural and ordinary meaning is placed upon them. He/she is not required by law or practice to do anything else.

Mr Coady’s submission was that the cartoon and the words contained in it do not amount to any direct defamatory imputation — that is that the facts pleaded in par. 6 of the statement of claim do not support what is alleged to be the natural and ordinary meaning of the cartoon and words used as alleged in par. 7 of the statement of claim.

In our opinion there is no question that par. 6 of the statement of claim is capable in law of being considered to mean what is alleged to be the natural and ordinary meaning of the cartoon and the words contained in it. The cartoon, as described vividly in par. 6 of the statement of claim, does make it possible for one to conclude in accordance with par. 7 of the statement of claim — that is that a reader of Post Courier can say from this cartoon and the words it contains, that the respondent (plaintiff) aided an inmate or detainee from the Bomana Corrective Institution to escape from lawful custody.

A great deal of time and effort was spent in pressing the submission that no extrinsic facts were alleged in the statement of claim and especially that no extrinsic facts were specifically set forth as particulars to the paragraph which apparently asserted the legal innuendo. We are indebted to the appellant’s counsel for expounding upon the differences of approach which were required, firstly after the passing of the Common Law Procedure Act 1852 (Imp.) and secondly the amendment to the rules of the High Court of England with the addition in 1949 of a further paragraph numbered (2) to the then O. 19, r. 6, of the Supreme Court Rules (1965) (Imp.) as set out in the Annual Practice Vol. 1 until 1962, and from then after as incorporated in O. 82, r. 3. Nevertheless, despite the clarity of learned counsel’s submissions, we think there has been a tendency to lose sight of the fact that, (1) the action for defamation is based on our own Defamation Act (Ch. No. 293) and, (2) the Rules of Court, by which the learned motion judge was governed at the time, did not contain the additional paragraph added in 1949 to the United Kingdom rules and, (3) the distinction in the authorities, on the content of pleading in defamation actions between the passing of the Judicature Act 1873 (Imp.) and the amendment of O. 19, r. 6, on the one hand, and on the other hand, the content of the pleadings, especially the statement of claim, after 1949. It is our appreciation of the authorities that it was always necessary to prove extrinsic facts by calling evidence thereof where the existence of a true or legal innuendo was alleged. It was not, however, necessary to plead such facts before 1949, though particulars could be ordered in the appropriate case.

The Defamation Act (Ch. No. 293), is based on “The Defamation Law of Queensland Act 1889” and Ch. XXXV of the Criminal Code 1899 (Qld). Indeed the definition in s. 2 of our Act is an exact replica of s. 366 of the Criminal Code (Qld), subject to a more modern lay-out followed in the recent revision of the laws. The Act is headed, “To consolidate the law of defamation”; and as was pointed out by Frost C.J. in Tei Abal v. Anton Parau [1976] P.N.G.L.R. 251 at 253, the Act may well be “a complete repository of the principles of actionable defamation, although some modification of that proposition may be required”. It should be particularly noted that although the word “innuendo” does not appear in the wording of the section that word has long been held as a matter of practice to be synonymous with “insinuation”. Indeed, if one goes to the Shorter Oxford English Dictionary you find the following definition: “An oblique hint or suggestion; an insinuation, especially one of a depreciatory kind.” On the other hand, irony has the well-settled meaning in the language of a word being used, but the opposite is actually meant by the speaker, very often in the form of sarcasm or ridicule. Not surprisingly, therefore, in this jurisdiction it seems that the words “insinuation” and “irony” have been in use for many years as synonymous with “innuendo”. Whether or not s. 2(ii) of our Act establishes two causes of action namely, words defamatory in themselves, and secondly, words defamatory only by way of innuendo (insinuation or irony) as opposed to their natural and ordinary meaning remains for final ruling. Once again we do not feel it is necessary to depart from what has become established law for we tend to the view that this subsection of our Act contains, and thus continues, the two causes of action which came into existence after the Common Law Procedure of 1852 in the United Kingdom. The matter was not argued directly before us, nor does it affect the outcome of this appeal.

As was pointed out by Lord Upjohn in Grubb v. Bristol United Press Ltd [1963] 1 Q.B. 309 at 335:

“Some debate has taken place before us as to the number of causes of action alleged by a plaintiff in a defamation action, for this is highly important when considering questions of payment into court. It is unnecessary to pursue this subject here at length for it does not now directly arise.”

His Lordship goes on, at the bottom of the page, to note that if the allegation is of a true or legal innuendo which relies on a special meaning, dependent upon extrinsic facts, then plainly that constitutes a second cause of action.

We would like to make some observations at this stage about terminology. It is clear that some words are defamatory in themselves. It is well settled that certain words, whilst not immediately conveying a defamatory meaning, are nevertheless so capable when construed in their natural and ordinary sense by a reasonable man in the community in which the words are spoken. Such words in their natural and ordinary meaning have been said to “... include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words”: Jones v. Skelton [1963] 1 W.L.R. 1362 at 1371. In other words, although they are not blatantly defamatory, there is defamatory insinuation which is quite obvious to any ordinary listener or reader. Such an insinuation has been called a “false innuendo”, so called because the innuendo or insinuation is really so obvious that it should not in all honesty be given the name. On the other hand, there is what is called the true or legal innuendo which imputes defamatory material by virtue of some insinuation intended or irony; as for example, the publication of a picture of a man and a woman with an inscription underneath which indicates they are not married, whereas they are, in fact, married and are believed by all their friends and acquaintances to be married. The insinuation, or legal innuendo, of course, is that the lady in question is “living in sin”, although we appreciate that this particular type of example may be regarded these days as questionable (for example the recent decision of the New South Wales Court of Appeal, Cairns v. John Fairfax and Sons Ltd; Morosi v. John Fairfax and Sons Ltd [1983] 2 N.S.W.L.R. 708). There are properly some criticisms which can be levelled against the term “false innuendo” and, to some extent, these were dealt with by Lord Devlin in Lewis v. Daily Telegraph Ltd [1964] A.C. 234 at 280. His Lordship prefers the phrase “popular” innuendo rather than “false” innuendo and gives his reasons. However, this preference has not been followed by other judges of the House of Lords, nor by the standard text writers since that time, for example see Gatley Libel and Slander, (8th ed., 1981), at par. 95. We, therefore, prefer to remain with the term “false” innuendo, for we agree with Lord Devlin that, “It does not matter what terminology is used so long as it is agreed”. With great respect to his Lordship, we do not think anything is to be gained by adding yet another piece of terminology to the shoulders of the poor law student. We also agree with Lord Devlin that the true or legal innuendo has not been developed by the courts into three causes of action. The true innuendo is the one which forms a separate cause of action and is required to be proved by “extrinsic facts” namely facts outside general knowledge and outside the particular utterance or writing of the statement itself: See Levis at 279.

Until 4 July 1983, when a completely new set of rules was introduced, the National Court judges operated under rules which were based exclusively on the Queensland Supreme Court Rules (1932 vintage) and had been in existence as rules of the court prior to Independence in 1975. These rules were then declared to be Rules of the National Court of Justice by virtue of s. 10 of the National Court Act (Ch. No. 38) and s. 2 and the schedule to the Organic Law on Immediate and Transitional Constitutional Provisions. Alteration to the rules of court after Independence may be made by the judges of the National Court, who of course may also, incidentally, happen to be judges sitting in the Supreme Court, and must be forwarded to the Speaker for presentation to Parliament which may disallow all or any of the rules (Constitution, s. 184). Amongst the matters which may be covered in such rules are “(f) the methods of pleading;”. As unfortunately happens all too often in this jurisdiction, counsel for both sides submitted that in order to prevent an injustice being done to their clients, the judges must develop the law, as they are permitted, indeed directed under Sch. 2(4) of the Constitution. How it can be said that judges sitting in the Supreme Court should develop the underlying law of practice, procedure and pleading when such power is given, not only to the judges of the National Court, but to the overriding supervision of the Parliament, is difficult to follow. Happily however, both counsel in this appeal relied on this submission as a mere stab in the dark, a sort of final peroration to a set of most helpful submissions, and not as the usual camouflage for lack of work. Counsel proceeded on the refreshing basis that in order to develop something you must at least start with a knowledge of the particular principle of law to be developed.

The point of the above dissertation is to underline our view that for the judges of the National Court, the rules form a code of pleading, practice and procedure. A similar view was taken by Lord Justice Greer in Bruce v. Odhams Press Ltd [1936] 1 K.B. 697 at 704-705, where his Honour said:

“I am unable to attach any importance to the rules of practice prevailing before the Judicature Act. The Rules made under the Judicature Act form a code by which we are to be guided in deciding matters of practice and procedure.”

We feel that his Lordship’s words spoken in 1936, are particularly apposite; as the English rules at that time bore a much greater similarity to the rules which were before the learned motion judge than they do at present. A massive revision of the English rules took place in 1962.

Mr Coady has submitted on a number of occasions during this appeal that we must approach the problem in the light of the combined interpretation of rr. 1, 4 and 6 of O. 22 of the old National Court rules. The relevant rules read as follows:

“Rule 1 Pleading to state material facts and not evidence. Costs of prolix pleadings.

Every pleading shall contain a statement, as brief as the nature of the case will allow, setting out the material facts on which the party pleading relies to support his claim or defence, as the case may be, but not the evidence by which they are to be proved; and shall, when necessary, be divided into paragraphs, numbered consecutively, and each containing, as nearly as may be, a separate allegation. Dates, sums, and numbers may be expressed in figures or in words. Signature of counsel shall not be necessary. Every pleading shall be signed by the solicitor of the party, or by the party himself, if he sues or defends in person ...”

This rule was based primarily on the English O 19, r. 2 and r. 4, particularly the latter, extant in 1900. Our O. 22, r. 4, previously read:

“Rule 4 Relief founded on separate facts.

When the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct grounds, they shall be stated, as far as may be, separately and distinctly. And the same rule shall apply where a defendant relies upon several distinct grounds of defence or counter-claim founded upon separate and distinct facts.”

This is in exactly the same terms as the old English O. 20, r. 7. Despite counsel’s submissions we are still unable to see the relevance of this rule to the present problem. If one glances through the authorities, particularly the more modern ones dealing with the historical background material and the pre-1949 English authorities on defamation, no reference is ever made to this particular rule and a search of the White Practices prior to the 1962 revision which did away with the old O. 20, r. 7, is of no assistance as the authorities cited under this rule have no bearing on the point in issue. The simple answer must be that this is not a question of different facts or separate distinct grounds. Ours is a question of different interpretations which may be put upon the one set of facts or ground.

“Rule 6. Particulars to be given in certain cases.

If the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence and in all other cases in which particulars may be necessary beyond such as are examplified in the Forms, particulars, with dates and items if necessary, shall be stated in the pleading: Provided that, if the particulars are of debt, expenses, or damages, and exceed three folios, the fact shall be so stated, with a reference to full particulars already delivered or to be delivered with the pleading.”

This rule is an exact replica of the old English O. 19, r. 6, after the new rules of court were formulated in the United Kingdom following the enactment of the Judicature Act 1873. It was read alongside s. 61 of the Common Law Procedure Act 1852 when dealing with defamation actions. As the Chief Justice pointed out during argument, a cause of action in defamation is nowhere mentioned, and reliance on the phrase “other cases in which particulars may be necessary” may be likened to the gasp of a drowning man. It is essential to understand, however, that it was not until 1949 that a further subsection was added to the English rule, which had never been introduced to [our own rules. That subrule reads:

“(2)    In an action for libel or slander if the plaintiff alleges that the words or matter complained of were used in a defamatory sense other than their ordinary meaning, he shall give particulars of the facts and matters on which he relies in support of such sense.”

Introduction of this additional rule brought to an end ninety-seven years of what Holroyd Pearce L.J. termed “pleader’s ingenuity”. Prior to 1949 it was admitted that “defendants had little knowledge of what would be proved against them at the trial” (Holroyd Pearce L.J. in Grubb’s case [1963] 1 Q.B. 309 at 320). It is obvious however, that his Lordship’s statement has to be restricted to that type of case where the statement in question is open to a large number of innuendos. We would think there are an equal number of other cases where the defendant would have a very good idea of what he had to face before the first witness for the plaintiff was called and not because of the pleadings, but because of the very limited number of interpretations which reasonably flowed from the statement in issue. A counterpart of this English subrule has now been introduced in the National Court Rules 1983 under O. 8, r. 84.

It has also been argued by learned counsel for the appellant that the absence of this additional subrule, or a failure to read the content of such subrule into the existing rules, (and we have been asked to go that far), would lead to embarrassment of such a nature to the defendant that the pleading should be struck out. Such submission really requires the court to rule that the National Court Rules are so defective as to lead to such consequences despite the fact they have been in operation for many many years. It is either brave or foolhardy. In any case we do not consider the facts of this case encourage the success of such a submission. There may be occasions, factual situations, where such embarrassment would follow but in most instances they could be overcome by the giving of particulars. It is important to remind oneself in this case that the attack here by the appellant is based on a failure of the plaintiff to establish causes of action in his statement of claim, and he is not asking for particulars at all. In effect what he is doing is demurring to the entire statement of claim and saying for various reasons that this clause and that clause, should be struck out.

The effect of the 1852 Act in the United Kingdom was to do away with prefatory averments, namely introductory passages in the pleading which set out the manner in which the defamation could be applied and which were of necessity set out in the pleading in order to support the innuendo. A failure so to do, was fatal. Nor was it permissible to show that the words were used in a different sense from that stated in the declaration: see Blackburn J. in Watkins v. Hall (1868) 3 L.R.Q.B. 396 at 412. It is also clear that prior to the existence of the Act of 1852 there was only one cause of action whereas following the Act a second cause of action came into existence. Each action, of course, had to be put to the jury if the evidence supported it and a verdict obtained. A plaintiff was entitled to get separate judgments and damages. Indeed Watkins v. Hall is the authority which made it quite clear that there were two causes of action after the Common Law Procedure Act 1852, and such was acknowledged by Lord Atkin in the House of Lords in Sim v. Stretch (1935-1936) 52 T.L.R. 669 at 671:

“... a statement of claim alleging an innuendo is to be treated as containing two counts, one alleging a libel with the meaning alleged in the innuendo, the other alleging the same libel with the ordinary meaning which the words bear.”

As we said at the commencement of this judgment, it is important to bear in mind the distinction between proving extrinsic facts and pleading extrinsic facts. There has never been any doubt that during the trial it was always necessary to adduce evidence of extrinsic facts in order to prove a legal innuendo. Failure to do so may, of course, still leave the false innuendo validly standing as a matter upon which judgment can be entered: see Lewis v. Daily Telegraph Ltd [1964] A.C. 234. Since 1949 the practice has emerged of setting out the legal innuendo and then underneath setting forth the facts upon which one relies to support that legal innuendo. Atkins Court Forms (2nd ed.) at 141 of vol. 25, for example, shows that the listing of facts is headed in the statement of claim “Particulars pursuant to R.S.C. O. 19 r. 6(2)”. It is also clear from this precedent that any facts which have already been stated earlier in the statement of claim are repeated in the section dealing with particulars; even to the extent of re-asserting for example, that “the facts in par. I are repeated herewith”, without actually listing the facts specifically a second time:

“... the essential thing is that if a paragraph is unaccompanied by particulars it cannot be a legal innuendo since for a legal innuendo particulars are mandatory and the innuendo cannot be proved without them.” Per Devlin L.J. in Lewis’ case [1964] A.C. 234 at 281; see also Dawson Bloodstock Agencies Pty. Ltd v. Mirror Newspapers [1979] 2 N.S.W.L.R. 733.

To use a description earlier employed by his Lordship the particulars being appended to the statement of claim are the “hallmark of the legal innuendo”. As Holroyd Pearce L.J. makes clear in Grubb’s case [1963] 1 Q.B. 309 at 326, the introduction of subr. 2 to r. 6 allowed the defendants to discover before trial what was the real case they had to meet. Such a change of practice was the result of a deliberate alteration in favour of the defendants by the English judges. We have finally caught up with this more enlightened approach in our new rules, although if the appellant’s case holds true the practice in this jurisdiction has been in error for many years. The judges of the National Court have now had a change of heart, and as a result have brought into existence a new set of rules which will undoubtedly assist defendants in drawing their defence to legal innuendos alleged in statements of claim. Such innuendos should now be supported by particulars within the body of the statement of claim itself. One must bear in mind however, that the drafting of new rules is not something which happens overnight. Indeed, in this jurisdiction, the process occupied an approximate period of ten years. Until such new rules were brought into operation on 4 July 1983 all one can say is that the old ones were the Rules of Court and for better or worse they were the rules, which must guide all practitioners in advising their clients. The point was of course, that the introduction of subr. 2 to r. 6 brought about an alteration in the law, where the true innuendo was pleaded: see Lord Hodson in Lewis’ case [1964] A.C. 234 at 273. The object of the rule, says Lord Devlin at 279 of the same case “... was to require that extrinsic facts must not only be proved but pleaded, thus restoring the position before 1852”. Or again, to refer to a summation of the law in a few short words by Lord Upjohn in Grubb [1963] 1 Q.B. 309 at 331:

“Since the introduction of O. 19 r. 6(2) in 1949, facts or circumstances which led to such special meaning, that is, a meaning beyond their ordinary and natural meaning, must not only be proved but must be pleaded with proper particularity.”

What all this makes clear, therefore, is not only must one adduce evidence at the trial of the extrinsic facts supporting the legal innuendo but one must plead it under the post 1949 English rule. It is also clear however, this was not the case before the introduction of subr. 2 to the English O. 19, r. 6. Certainly one must adduce evidence of the extrinsic facts, but as Holroyd Pearce L.J. stresses when summarising a part of the judgment from Lord Blackburn in the undoubted leading authority Capital and Counties Bank v. Henty (1882) 7 App. Cas. 741 (at 322 of Grubb).

“Thus he ‘(Lord Blackburn)’ is saying that extrinsic facts must still be proved before the meaning of the words can be extended beyond their natural meaning, although as a matter of practice they need no longer be alleged in the pleading.”

What was lacking in Henty’s case was, as Lord Selborne pointed out, evidence of any extrinsic fact affecting reputation or credit. Nevertheless, the extrinsic facts required to be proved sometimes undoubtedly required the giving of particulars after pleadings were delivered, for example in Bruce v. Odhams Press Ltd. [1936] 1 K.B. 697, and in other authorities dealing with identification of the plaintiff. These authorities are not of any great assistance to us in the present problem as counsel for the appellant has conceded there is no question in this trial or the appeal, about the identity of the plaintiff, or linking him with the alleged defamatory cartoon. But these authorities do make it clear that where a legal innuendo is relied upon, then the relevance of extrinsic facts pre-1949 was a matter of evidence, whilst after 1949 it is a matter of both evidence and pleading. The legal innuendo is one which “... alleges an extension of the meaning of the words used and it must be supported by evidence of facts extrinsic to the words themselves”. (Holroyd Pearce L.J. at 328-329 of Grubb.) To paraphrase Lord Upjohn at 331 of the same case the extrinsic facts must prove circumstances or facts which are extrinsic to the meaning itself, for without such evidence the words would not actually bear any defamatory meaning. Nor, continues Lord Upjohn later in the same judgment (at 335), can one plead another part of the article to which exception is taken as extrinsic facts from which proof of the innuendo may be established. In Lord Upjohn’s words at 331 the facts or circumstances:

“... which lead to such special meaning, that is, a meaning beyond their ordinary and natural meaning, must not only be proved but must be pleaded with proper particularity.”

Holroyd Pearce L.J. at 326 put it this way:

“Whereas a pleaded innuendo unsupported by facts could not previously be run to earth by the defendants before trial, from 1949 onwards it could be discovered and attacked as soon as particulars had been delivered.”

His Lordship also makes it clear (327), that under the rule, in the absence of pleading such extrinsic facts, the pleading may be struck out in the interlocutory stages and this is indeed one of the objects sought to be achieved by the 1949 alteration.

In Gatley’s Libel and Slander (8th ed., 1981), at par. 105, the learned author sets out, with numerous authorities, the required content of “extrinsic facts” and sums it up as “facts passing beyond general knowledge”, “something outside the words”, or for the particular requirements of this Court, something outside the cartoon itself.

For the purpose of certain submissions only it was conceded by learned counsel for the appellant that par. 6 of the statement of claim may amount to the straight out defamation, and par. 7 the false innuendo. It would then appear that par. 8 is the paragraph setting forth the true innuendo and as such, is not accompanied by any particulars, or statement of extrinsic facts, supporting such innuendo. The first subparagraph in par. 8 of the statement of claim bears a striking similarity to the innuendo which formed the basis of a successful action in Tolley v. Fry [1931] UKHL 1; [1930] 1 K.B. 467 where a similar paragraph is set out on 480 of the report. Further on in that case Greer L.J. says concerning the matter of proof of extrinsic facts:

“No doubt if special facts were proved to be known to the persons to whom the information was sent, which would lead a reasonable person knowing those facts to conclude that the words impliedly stated that the plaintiff had been discharged for misconduct, the case would have been left to the jury, but as there was no such evidence, it was held that the words were incapable of a defamatory meaning. The evidence required is evidence of special facts, causing the words to have a meaning revealed to those who know the special facts, but not revealed by the words used in the absence of such knowledge.”

There was no suggestion in Tolley v. Fry, or in any other authority reported before 1949, at least as far back as 1852, that it was necessary to plead such extrinsic facts and indeed, an examination of the pleadings in Fry’s case leads to the inevitable conclusion that such was not the case. The extrinsic facts may well be scattered throughout the statement of claim but whether they are or they are not, it is clear it was not necessary to plead them. As Lord Hodson says at 272 of Lewis:

“After the passing of the Common Law Procedure Act until the year 1949 when O. 9, r. 6.(2), came into force there was in many cases no distinction to be found between the true and the false innuendo. No special facts had to be pleaded to support the innuendo and the distinction became blurred between the true innuendo and that which was very often nothing but a wordy explanation or attempted explanation of the words complained of in their natural and ordinary meaning.”

As Mack C.J. observed in the Queensland case dealing with a request for particulars under the same rule as the one before this Court in Bligh v. Router [1968] Q.W.N. 9, a similar blurring “seems to have occurred in Queensland. I have not been referred to any case where extraneous matter to support a true innuendo was ever either ordered or given in the statement of claim”. His Honour then goes on to review the situation in New South Wales before Queensland became a separate State and traces, very briefly, the introduction of the Common Law Procedure Act 1852 (Imp.) into Queensland and finally points out that whatever else the position is “... the only provision in our rules, regarding particulars, is now O. 22, r. 6, and this gives a discretion to the judge.” The application there before the Chief Justice, was an application for further and better particulars and not a demurrer; whereas the application before the learned motion judge and being argued on this appeal is in effect a demurrer to strike out. There is no application for further and better particulars.

The statement by Lord Justice Davies in Grubb’s case at 338-339 summarises the whole position in a nutshell:

“The result of these authorities is, as I have already said, that a plaintiff cannot succeed in establishing a defamatory meaning other than the ordinary and natural meaning of the words sued upon unless he proves extrinsic facts from which such secondary meaning is to be inferred. Before the passing of the Common Law Procedure Act 1852, such facts had to be averred, or, as we should now say pleaded. After the passing of that Act and up to the alteration of the Rules of the Supreme Court in 1949, it was not necessary to plead such facts; but they had nevertheless to be proved. As a result of that change in the rules, they have now once more to be pleaded as well as proved.”

It seems to us that the plaintiff/respondent in the present matter is clearly relying on the extrapolation of true innuendoes from the cartoon in par. 8 of this statement of claim and that in that paragraph and in other paragraphs, he has asserted a number of facts which are certainly extrinsic to the material contained in the cartoon. For example, he has pleaded as a fact that he is firstly a barrister and solicitor, that he is “well-known” as a barrister and solicitor, that he appeared professionally for the person with whom he is said to be linked arm-in-arm in the cartoon, during certain proceedings which resulted in that person’s imprisonment shortly before the time the cartoon was printed, and that there was a general prison breakout about that time. We are not sure, on the present state of the pleadings, how the cartoon is also said to be an advertisement involving Isuzu Lu. Of course, it may be the plaintiff will eventually say at the trial that he is merely pleading another false innuendo in the various parts of par. 8. During his address Mr Donigi, for the respondent, was forced to rely upon a number of alternative interpretations which could be laid on the various paragraphs and although to some extent this might be thought to underscore the appellant’s complaint that he doesn’t really know what it is he is to plead to, Mr Coady and his client are faced with a difficulty which has been faced and solved by numbers of people over the years since 1873. We frankly do not think the defence is in any genuine difficulty at all, other than such difficulties it has made for itself. We have not been aware of any case contested in Papua New Guinea since 1958, where the particular facts were set forth in the statement of claim in the manner asserted by Mr Coady. An examination of the pleadings behind the cases reported in the authorised volumes of our reports since 1963 confirms this belief, except for one tabulation of particulars annexed mysteriously to a reply set out in the pleadings of W.S. No. 247a of 1975 (p), Tei Abal v. Anton Parau [1976] P.N.G.L.R. 251. Of course, different interpretations may be placed on an alleged piece of defamation in its natural and ordinary meaning. This common occurrence was adverted to by Lord Devlin in Lewis v. Daily Telegraph Limited [1964] A.C. 234 at 281. Indeed his Lordship, taking up the complaint that the division of an innuendo into two paragraphs could be awkward for the pleader, after suggesting a solution continues that if the pleader is in doubt as to whether or not extrinsic facts on a matter of special knowledge may be required he can, if in doubt, plead two paragraphs, and then if at the trial it is agreed or ruled that the matter is of general knowledge, the legal innuendo can be dropped. His Lordship also makes it clear, at 282 as well as in the penultimate paragraph of his judgment at 286, that if there is more than one interpretation it is desirable to plead such interpretation to the false innuendo so that the defendant knows what is being alleged. No doubt since the decision in Lewis’ case, the practice of striking out false innuendos and only allowing the meaning of such innuendos to be pleaded in relation to true innuendos, ceased. It is certainly obvious to the authorities that prior to 1949 the innuendo, whether it be false or true, was often pleaded.

For these reasons we do not think that the law or the previous National Court Rules require any pleading of extrinsic facts where a true innuendo is alleged. In our view the ruling of the learned motion judge was correct. At most the defendant may be entitled to some limited particulars, but we are of the opinion that false and true innuendos have been pleaded and that two causes of action have been established in law by pars 6, 7, and 8 of the statement of claim. We would therefore, dismiss this appeal with costs.

KAPI DCJ: I agree with the conclusions and reasons reached in the joint judgment of Kidu C.J. and Pratt J. However, I have only the following matter to add. An alternative submission was made by counsel for the appellant, that, to the extent that the National Court Rules prior to 4 July 1983 do not make provision for pleading of extrinsic facts in defamation cases, this Court should formulate a rule to fill in the gap under Sch. 2.3 of the Constitution or develop a rule under Sch. 2.4. He submitted that in developing this we should adopt a rule that would have the same effect as O. 8, r. 84(b), of the new National Court Rules 1983 (counterpart of English O. 19, r. 6(2)).

The making of rules on matters of pleading is a delegated power of legislation. Under s. 184 of the Constitution, this power is delegated to the judges subject to the overriding powers of the Parliament. This power is different from the power exercised in judicial decisions or development of the underlying law by judicial act under Sch. 2 of the Constitution. Where the Constitution has specifically directed that a matter should be the subject of delegated legislation as in the case of method of pleadings, that matter can only be amended, abolished or added to by the same method or power. In this case, the requirement to plead extrinsic facts can only be made effective by the power of rule-making under s. 184 of the Constitution and not by judicial act or decision. I adopted the same approach on regulations made under an Act of Parliament: see Minister for Lands v. Frame [1980] P.N.G.L.R. 433. If there is a gap or a shortcoming in the Rules, this can only be remedied by the law-making power given under s. 184 of the Constitution. For a court of law to develop rules on method of pleading by judicial decision would be flying in the face of the rule-making power under s. 184 of the Constitution. These are distinct powers and must be clearly separated. I think it is for this reason, that is the separation of functions, that Sch. 2.4 expressly provided that a court may decline to develop a principle or rule of law if it is not proper to do so by judicial act. This may involve policy matters which are best left to the lawmaking powers of the Parliament: see The State v. Wik Kor [1983] P.N.G.L.R. 24 and Re Sannga deceased [1983] P.N.G.L.R. 142. For these reasons this submission must fail.

Appeal dismissed with costs.

Lawyers for the appellant: Kirkes.

Lawyers for the respondent: Peter D. Donigi.