Cory v Blyth (No 4) [1976] PGLawRp 673; [1976] PNGLR 525 (19 November 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 525 - Cory v Blyth (No. 4)

[1976] PNGLR 525

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CORY

V

BLYTH (NO 4)

Waigani

Kearney J

9 November 1976

19 November 1976

PRACTICE AND PROCEDURE - Pleadings - Plaintiffs summons that defendant be ordered to apply for leave to amend his defence - Whether power in Court to order defendant to apply for leave - Power of Court to order amendment of pleadings, considered - Rules of Court O. 32.

In proceedings for oral defamation, the plaintiff sought, by way of summons, orders that the defendant be ordered to apply for leave to amend his defence, so as to add two defences listed in the summons, and failing compliance with such order, that the defendant be precluded from subsequently applying for leave to amend his defence and also from raising any of the defences at the trial of the action.

The two defences listed were s. 19 of the Defamation Act 1962, and that no action lay by virtue of s. 46 of the Constitution, as to which Raine J. had refused leave to allow amendments to the defence on 22nd June, 1976, (see Cory v. Blyth (No. 3) [1976] P.N.G.L.R. 463). An appeal from the interlocutory judgment of Raine J. to the Supreme Court, was struck out as being out of time, on 27th August, 1976.

By letter dated 8th September, 1976, the defendant’s solicitor advised the plaintiff’s solicitor inter alia — “This letter is to advise that the defendant still intends to rely on the two defences ... at the subsequent trial of the action ...”

Held

N1>(1)      The Court has no power to order the defendant to apply for leave to amend his defence, it being inherent in the adversary system that it is for the defendant to formulate and manage his own case within the rules as to pleadings.

Semble

The Court possesses coercive power under O.32, r. 1 of the Rules of Court, to order amendment to pleadings where it is necessary to ensure that the real points at issue are raised.

N1>(2)      The order sought that the defendant should be ordered to apply for leave to amend his defence should be refused.

Summons

This was a summons, in proceedings for defamation, in which the plaintiff sought an order that the defendant be ordered to apply for leave to amend his defence, so as to add two defences listed in the summons and, failing compliance with such order, that the defendant be precluded from subsequently applying for leave to amend his defence, and also from raising any of the listed defences, at the trial of the action. A full history of the proceedings appears in the reasons for judgment hereunder.

Counsel

The plaintiff in person.

MF Campbell for the defendant

Cur. adv. vult.

19 November 1976

KEARNEY J: By summons taken out on 21st October, and now returned before me, the plaintiff asks that the defendant be ordered to apply for leave to amend his defence, so as to add the defences listed in the summons; and that should the defendant not comply with the order, he be precluded from subsequently applying for leave to amend his defence, and also from raising one of the listed defences, at the trial of the action.

It is an extraordinary application and can be understood only in the light of the pleadings, the proceedings to which they have given rise and the courses taken by the parties as a result. A resume is therefore necessary.

By writ of summons dated 26th November, 1975 the plaintiff instituted an action against the defendant for defamation. The usual consent order following a summons for directions was made on 2nd January, 1976. Thereafter pleadings were served, the statement of claim being delivered on 16th February.

In his statement of claim the plaintiff set out as material facts that he was a Barrister and Solicitor, and a Senior State Prosecutor; that the defendant was the Assistant Provincial Commissioner at Angoram; that the defendant published certain material defamatory of the plaintiff at the Angoram Club one afternoon in November 1975; and that the plaintiff was thereby injured in his reputation and profession, and brought into public ridicule and contempt.

The defence was delivered on 26th March. The defendant admitted that he was the Assistant Provincial Commissioner at Angoram; he did not know and could not admit that the plaintiff was a Barrister and Solicitor, and a Senior State Prosecutor; and he denied all other allegations. There is of course no difference in effect between a traverse by way of refusal to admit an allegation, and a denial.

The plaintiff joined issue on this basis on 23rd April, and the action was set down for trial at Angoram in June.

On 3rd June the defendant gave notice that he would apply for leave to amend his defence by adding, as alternatives to the defence of denial he had already pleaded, two further defences, Nos. 5 and 6. Number 5 was the special statutory defence under s. 19 of the Defamation Act 1962; No. 6 was that the Constitution s. 46 authorised any publication he had made, and the Constitution barred any action against the defendant. On 22nd June, leave to amend was refused by Raine J. His Honour considered the proposed defence No. 5 inconsistent with the explicit denial of publication pleaded on 26th March, and that the defendant must know whether or not he published the words. As regards No. 6, his Honour considered that on its proper construction Constitution s. 46 does not license defamatory comment and that the Defamation Act 1962, which makes unlawful publication of defamatory matter actionable, was adopted, and is in force, as an Act of Parliament under Constitution Sch. 2.6 (2), although it does not comply with Constitution s. 38. His Honour refused to refer defence No. 6 to the Supreme Court, holding that it was “vexatious” and possibly “trivial”, within the meaning of those words in Constitution s. 18 (2).

From that judgment the defendant appealed to the Supreme Court on 20th July, without seeking leave to appeal. The appeal was struck out by the Supreme Court on 27th August, for reasons which did not go to its merits: the judgment of 22nd June was of an interlocutory nature and therefore leave to appeal was required; such leave should have been sought within 40 days; this had not been done and, consequently, the appeal was incompetent.

Meanwhile, on 5th August the defendant had delivered 20 interrogatories; the plaintiff answered them on 3rd September and on 17th September Prentice J. ruled that the plaintiff’s answer to two of these interrogatories, in respect of which the defendant had sought further answer, was adequate.

On 27th August the plaintiff delivered 4 interrogatories. The first interrogatory was as follows:

“To the best of your knowledge, information and belief:

1.       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 paragraph 3 of the Statement of Claim, or some and which of them, or words to the like effect?”

The defendant’s answer of 8th September to that interrogatory was as follows:

N2>“1.      I can recall only that on or about the 14th day of November, 1975 during late afternoon over a glass of beer at the Angoram Club, Angoram, I made some remark about the Mitiam case and the breaking of louvres being linked with the Plaintiff’s then apparent mental condition. There were several people present, probably including Mr. John Benson but I cannot recall the names of such persons.”

The plaintiff sought further answer and on 17th September Prentice J. ordered further answers in respect of two of the plaintiff’s interrogatories, including the first. Further answer to the first interrogatory was made by the defendant by affidavit dated 28th September, but filed on 1st October and presumably delivered on or prior to that date, as follows:

N2>“1.      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.”

The plaintiff, no doubt taking the view that the case now being made by the defendant was inconsistent with the defence of denial of publication of 26th March, gave notice on 30th September that he would apply to have that defence struck out as frivolous and vexatious and an abuse of the process of the Court. He withdrew that application on 5th October, before Saldanha J., apparently hoping thereby to avoid delay in the trial of the action; see paragraphs 3 and 4 of his affidavit of 14th October. On 19th October, it then appearing that the action could not be tried in 1976, he applied to the Chief Justice seeking further answer to, inter alia, his first interrogatory; his Honour ordered that no further answer to that interrogatory was necessary.

Meanwhile, the plaintiff was taking steps on another aspect of his case. On 22nd June the defendant had been refused leave to add two further (alternative) defences; and his appeal against that refusal had been struck out on 27th August. By letter dated 8th September, 1976 the defendant’s solicitor wrote to the plaintiff’s solicitor as follows (material parts only):

“I refer to the appeal in the above matter which was recently struck out by the Supreme Court. You will recall that the two main issues in the appeal arose from a failure of Raine J. to allow amendments to the defence by pleading:

(a)      Section 19 of the Defamation Act, and

(b)      That no action lay by virtue of Section 46 of the Constitution.

This letter is to advise that the defendant still intends to rely on the two defences listed above at the subsequent trial of the action.”

This letter is annexure “B” to the plaintiff’s solicitor’s affidavit of 13th October. The plaintiff approached the problem, which the last sentence of this letter presented, in two ways. First, on 19th October before the Chief Justice, he applied for particulars of the s. 19 “defence” and asked that should these particulars not be supplied, the defendant be precluded from giving evidence in support thereof at the trial; his Honour noted that although no such defence appeared on the pleadings, notice had been given of it, and, on the defendant undertaking to supply such particulars within 14 days, the application was adjourned until 2nd November.

On 2nd and 3rd November, the application came before Raine J. Particulars were supplied by the defendant — they are not before me — on 1st and 3rd November. His Honour noted that the defendant had not sought to file amended pleadings and that the particulars supplied were irrelevant to the pleadings as they stood; and ordered that the purported particulars supplied, be rejected. His Honour further noted that in view of the final paragraph of the letter of 8th September, the plaintiff had not acted unreasonably in seeking further and better particulars through the Court.

The second thing the plaintiff did was to take out the summons now before me.

The plaintiff appeared in person. In essence he argued that the defendant had clearly said in the last sentence of the letter of 8th September, that he intended to rely on two additional defences at the trial; the defendant would require leave to do so from the trial judge and the plaintiff preferred that leave be sought now. In the summons he did not restrict the defences, which he sought to be pleaded, to those specifically mentioned in the letter of 8th September, because he then believed that the plaintiff would be seeking leave to rely at the trial upon further defences. This belief was in fact well founded; on 21st October, the plaintiff was handed a document entitled “Amended Defence” by the defendant’s solicitor, which set out the defences the defendant would be seeking to advance at the trial.

In this document, tendered and admitted before me, the defendant as a first defence admits to speaking “some words to the like effect” to those contained in the statement of claim, but denies that they were defamatory “in view of the circumstances under which the said words were so spoken”. Further and alternatively, the defendant advances defences based on ss. 14 (1) (b), (c) and (d), 16 (1) (c), (e) and (h), and 19 of the Defamation Act 1962. While now admitting that the plaintiff is a Barrister and Solicitor and a Senior State Prosecutor, the plaintiff denies all other allegations in the statement of claim, and thus, inter alia, denies publication of the words alleged therein.

The plaintiff submitted that he was presently faced with the necessity to meet the defences pleaded in the defence delivered on 26th March, the defences indicated in the letter of 8th September (which included a Constitution s. 46 defence) and the defences set out in the “Amended Defence”. His desire is to know which of these are to be relied upon, so that he will know the case he has to meet, and make preparations to do so.

Miss Campbell, for the defendant, argued as follows:

The plaintiff’s application is misconceived; the Court has no power to order the defendant to apply for leave to plead particular defences, if he does not choose to do so. The defendant does not have to amend his defence, prior to trial; he can seek leave to do so at the trial — O. 32 r. 13 indicates that this is so, and the issue is really one of costs. It is sufficient that the plaintiff has now been given notice of the defences which will be sought to be advanced at the trial; the plaintiff has had ample notice, and all particulars which he has sought, have been given. The major reason for not seeking leave to amend the defence at this stage, is to keep down costs: the defendant has been subjected to innumerable interlocutory applications, and seeks to avoid having to face any more. As regards the Constitution s. 46 defence, referred to in the letter of 8th September, it is not presently the defendant’s intention to raise it at the trial, but he can not say now that it will not then be relied upon.

Miss Campbell offered before me to apply now for leave to amend the defence, so as to substitute the “Amended Defence”, if the plaintiff would undertake to make no interlocutory applications in respect thereof; this undertaking the plaintiff indicated he could not give, and, in fact, he said, if the defence were amended, he would seek particulars of the various new defences pleaded, as he already had for the proposed s. 19 defence. The plaintiff contended that it was the failure of the defendant properly to answer interrogatories and supply particulars, which had forced the plaintiff to return repeatedly to the Court.

It is clear, in my opinion, that the Court should not order the defendant to apply for leave to amend his defence. In general it is for the defendant to decide whether or not he wishes to do so, and, if so, when. It is for him to formulate and manage his own case, within the rules as to pleadings; this is inherent in the adversary system. However, the words “or direct either party to ... amend ... any pleadings” in O. 32 r. 1 indicate that the Court possesses coercive power to order amendment: I conceive that it would do so where that is necessary to ensure that the real points at issue are raised. It is clear from the circumstances I have mentioned that the real points at issue in this case do not presently appear upon the pleadings.

Parties to litigation are bound to observe the Rules of Court, which embody much of the procedural law by which civil justice in the National Court is administered. The system set up by the Rules involves pleadings by the parties, the chief purpose of which is to elicit at their close and prior to trial, clearly and precisely, the real points at issue between the parties, so that they may prepare and present their cases for adjudication by the Court. Thus expense and delay are reduced, certainty and finality achieved on all matters in controversy, and the Court is made aware of the only issues before it. The system also assists in implementing Constitution s. 37 (11) — the right to a fair hearing — by ensuring that each party is not taken by surprise at the trial as to material facts at issue, since the case can be decided only on the issues on the record. The central and vital role of pleadings in the adversary process of civil litigation is very well delineated in an article written some years ago by Master Jacob[dlxiv]¹.

While the defendant does not propose to seek to amend his defence at this stage, he intends to do so at the trial. He does not seek to dispense with pleadings; nor is this the type of case where that would be appropriate. In a proper case, and upon suitable terms, the Judge at trial will give leave to amend; though, perhaps, not readily in circumstances such as obtain here — see e.g. Hipgrave v. Case [dlxv]². In pursuing his present course, the defendant runs a very real risk of being ordered to pay substantial costs, assuming the trial Judge grants leave.

The defendant apparently considers that his course of action will result in his overall costs being reduced; in that I consider he is mistaken.

The result of his endeavours, if successful, will be increased expense and delay in this litigation, and the defeat of the chief purpose of pleadings. The truth can best be found, and the chances of sensible settlement improved, by full pre-trial, disclosure and exchange of information. The defendant embarks upon the opposite course and it is wholly pernicious: the plaintiff will have no opportunity to clarify the fresh defences prior to trial, or to properly prepare his case; and in the absence of defined issues the Court will not know what has to be determined. The rules of pleading can be enforced: see O. 32 r. 1, and the inherent jurisdiction of the Court under Constitution s. 155 (5) to do justice by protecting its process from abuse.

I refuse the orders sought in para. 1 of the summons. I adjourn the summons until next Tuesday, to give the parties an opportunity to examine what I have said, and to decide upon their course of action in the light thereof; I will hear any further applications and submissions at that time, and deal with the question of costs.

Orders accordingly.

Solicitor for the plaintiff: White Reitano & Young.

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

R>

[dlxiv] I. H. Jacob: “The Present Importance of Pleadings” (1960) 13 Current Legal Problems 171.

[dlxv] [1885] UKLawRpCh 46; (1885) 28 Ch. D. 356, at p. 361.