Rabaul Shipping Ltd v Mudalinge [2009] PGNC 165; N3778 (20 July 2009)

N3778

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 20 OF 2005

BETWEEN

RABAUL SHIPPING LIMITED
First Plaintiff

AND

PETER ROBERT SHARP
Second Plaintiff

AND

CYRIL MUDALINGE – ACTING PRINCIPAL SHIPS SURVEYOR & SAFTEY OFFICER
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

(No 1)

Kokopo: Makail J,
2009: 20th July

PRACTICE & PROCEDURE – Trial – Acting for defamation – Application for leave to raise preliminary objection to defence of fair comment – Defence of fair comment not particularized – Exercise of Judicial discretion – Proper principles for application discussed – Arguable grounds – Reasonable explanation for delay – Prejudice to other party – Application for leave refused – National Court Rules – Order 8, Rule 86 – National Court Amendment Rules, 2005.

Cases Cited:

Avia Aihi -v- [1981] PNGLR 81
Anderson Agiru -v- Commission (2002) SC687
Rueben Kaiulo as Electoral Commission -v- John Yaluma (2008) N3507

Counsel:

Mr D. Lidgett & Ms E Takoboy, for the Plaintiffs
Mr K. Iduhu, for the First Defendant
Mr F. Chereake, for Second Defendant

RULING ON APPLICATION FOR LEAVE TO RAISE OBJECTION TO DEFENCE OF FAIR COMMENT

20th July, 2009

1. MAKAIL J: This matter comes before the Court for trial on liability and assessment of damages on an action for defamation. On 01st June 2009, this matter came before the National Civil call over whereby by consent of the parties of Court endorsed a "Consent Court Directions" which inter alia directed that ‘the matter shall return for further mention on the 06th July 2009 to confirm the 20th and 21st July 2009 as the dates for trial of this matter". At the commencement of the National Court circuit on Monday 06th July 2009, I conducted a National Court civil call over. From the Court’s record in the Court file endorsement, Ms Takoboy appeared for the Plaintiffs, Mr Iduhu appeared for the First Defendant and Mr Cherake for the Second Defendant.

Apart from the Court ordering by consent of the parties that the paragraph 5 of the Statement of Agreed and Disputed Facts be deleted on that date, the Court also confirmed the trial dates of Monday 20th July 2009 and Tuesday 21st July 2009 and directed the Plaintiffs to file and serve any Affidavits in response by or before Wednesday 15th July 2009.

2. At the commencement of the trial this morning, Mr Lidgett who appeared with Ms Takoboy for the Plaintiffs raised a preliminary objection to the Defendants’ defence for fair comment on the basis that the Defendants had not pleaded the particulars of the defence of fair comment in accordance with the procedural requirements of Order 8 rules 86 & 87 of the National Court Rules so as to enable the Plaintiffs to properly identify the basis of the defence of fair comment and prepare their case for the trial.

3. Order 8, rule 85 states:

"(1) Where a defendant pleads fair comment (whether by way of rolled-up plea or otherwise), the particulars required by Rule 29 shall include –

(a) if, as the basis or part of the basis for the comment, he relies on facts not stated in the matter complained of - particulars stating those facts; and

(b) if, as the basis or part of the basis for the comment, he relies on facts stated in the matter complained of - particulars stating which words in the matter complained of he alleges are statements of fact and on which of those alleged statements he so relies; and

(c) particulars of the facts and matters on which he relies to establish the truth of the facts on which relies as the basis for the comment.

(2) Where a defendant pleads truth and public benefit, the powers of the Court under rule 36 shall extend to orders in relation to particulars of the facts and matters on which relies to establish –

(a) that the publication was made for the public benefit; and

(b) that the matter complained of was true."

4. He submitted that it is mandatory that the Defendants plead particulars of the defence of fair comment. Since, the Defendant had not, he submitted that the Plaintiffs objection must be heard before the trial of the substantive action.

5. He also submitted that the issue of particulars of the defence of fair comment was not raised with the Defendants earlier than today because he was not counsel having the carriage and conduct of this matter for the plaintiffs until last week Thursday when he was briefed on the matter.

6. Also, prior to Thursday of the last week (09th July 2009), he was not at work because he was away attending a funeral. When he took charge of the matter, he discovered that the issue of particulars of the defence of fair comment was never raised and decided by the Court prior to the trial today, hence he has raised it today so that parties be given the opportunity to argue it as a preliminary matter before the commencement of the trial.

7. Obviously, the Plaintiffs’ preliminary application was met by stiff opposition from the Defendants who jointly argued through their counsel, Messrs Iduhu and Cherake that this is a belated application that should not be entertained by the Court. Today is the dates for trial and the Defendant have come ready to proceed with the trial. They have also declined the Plaintiffs’ request for the brief adjournment to consider the preliminary objection.

8. They further argued that if the Plaintiffs considered that the Defendants’ defence was lacking in so far as the defence of fair comment is concern, they had all the time in the world since pleadings closed on 01st February 2005 (which is the date of the filing of defence since the Plaintiffs had not filed a Reply), to raise the issue or perhaps more appropriately filed a formal application to struck out the defective pleading in so far as the defence of fair comment is concern.

9. For these reasons, they argued that the Court should not entertain the preliminary objection. The Court should proceed to hear the substantive action without any further delay.

10. This preliminary objection to the defence of fair comment is a belated one. It comes as a surprise not only to the Defendants but also to the Court because no formal notice by way of a Notice of Motion as required under Order 4, rules 38,39, 40 and 42 of the National Court Rules has been given by the Plaintiffs. Before the preliminary objection may be heard, I must decide whether to grant leave to the Plaintiffs to move the preliminary objection without notice.

11. It is no wonder the Defendants were not in a position to either consent to the hearing of the preliminary objection or consent to the preliminary objection. They came ready for the trial.

12. But in my view, the Court may hear any preliminary applications whether there was prior notice or on short notice prior to the commencement of trial. This may be done pursuant to the Court’s inherent power under section 155 (4) of the Constitution. For it has been held in many cases in this jurisdiction that the Court’s exercise of its inherent power must be exercised judicially to do justice to the parties in a given case. See Avia Aihi -v- The State [1981] PNGLR 81.

13. The inherent power of the Court, "is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity." See Anderson Agiru -v- Electoral Commission (2002) SC687.

14. In the present case, should the Court grant leave to the Plaintiffs to raise the preliminary objection to the defence of fair comment prior to trial? Before I answer this question, it is instructive to note that I have been assisted by counsel as to what principles of law I should take into account to decide the application. Given the time constrains, I have been unable to find any case authorities to guide me to make a decision in respect of the Plaintiffs application for leave but I am disposed off following the principles of law applied in applications to set aside regularly entered default judgments in the present application. I did that in the case of Rueben Kaiulo as Electoral Commissioner -v- John Yaluma (2008) N3405 which was an application for leave to file an application to review taxed costs out of time under Order 22 of the National Court Rules and I see no impediment to do likewise here.

15. Proceeding on this premise, I consider the proper principles of law by which the Court should take into account in this kind of application are:

1. Whether the preliminary application raised arguable grounds;

2. Whether the party seeking to raise the preliminary objection has offered a reasonable explanation for the delay in raising it.

3. Whether the other party will be prejudiced by the preliminary objection.

Arguable grounds of objection

16. In relation to the first consideration, I am satisfied that the preliminary objection which the Plaintiffs seek to raise prior to trial is arguable because it challenges the pleadings of the Defendants in so far as the defence of fair comment is concerned. I accept the Plaintiffs’ submission that is mandatory that the Defendants plead the particulars of the defence of fair comment under Order 8, rule 86 of the National Court Rules, to enable the Plaintiffs to appreciate the basis of the defence.

17. I observe here that in paragraph 5 of the Defendants’ defence filed on 01st February 2005, they plead the defence of fair comment but whether the Defendants have particularized that aspect of their defence is another matter and not before me at this point in time to decide. All I am concerned with here, is whether the preliminary objection raises an arguable ground and I am satisfied it does. This consideration favours the Plaintiffs.

Reasonable explanation for the delay

18. In respect of the second consideration, I am of the view that this is a critical one because it may determine the outcome of the application for leave to raise the preliminary objection.

19. I do not accept the explanation offered by the Plaintiffs for the delay in raising this preliminary objection. According to the documents in the Court file, the mater was registered at the Kokopo National Court by Gillian M. Maki Kaspers Lawyers on 10th January 2005. The pleadings closed on 01st February 2005 when the Defendants filed their defence and the Plaintiff had not filed their Reply. See Order 8, rule 23 of the National Court Rules.

20. According to Order 10, rule 4 of the National Court Rules, a party may, after the pleadings are closed, file a notice requesting that the matter be set down for trial and serve a copy on the other party. It seems to me that neither party had filed a notice to set down for trial as there is none in the Court file.

21. Nevertheless, it is apparent that since 01st February 2005 up until today or at least last Thursday, when Mr Lidgett took charge of this matter, no one let alone the Plaintiffs or their lawyers, took notice of the purported lack of pleadings in the Defendants’ defence of fair comment.

I have referred to Order 10, rule 4 of the National Court Rules because as far as that rule is concern, once a Notice of Set Down for Trial is filed and served on the other party, it means that the matter is ready for trial. It implies that the matter is ready to be given a date(s) for the trial. It also means, all interlocutory matters such as issues relating to pleadings, discovery of documents etc are completed and the only outstanding matter to be determined is the substantive action.

22. If we apply the strict application of Order 10, rule 4 of the National Court Rules, and assuming that a Notice of Set Down for Trial has been filed, the Plaintiffs would be precluded from seeking leave to raise this preliminary objection. This is because they had the opportunity to raise it there and then but failed to do so.

23. But presently, since the introduction of the National Court Amendment Rules in 2005, there are additional requirements that parties must meet before a matter is ready for trial and allocated a trial date. First, there is the requirement to comply with the listing Rules of 2005 like the filing and service of Affidavits, filing and service of Statement of Agreed and Disputed Facts, compilation of pleadings books to name a few. All of these take place at the Directions hearing and once completed, the matter is refereed for Pretrial Conference where a "final check" is done to ensure that all is well for the matter to be set down for trial and allocated a trial date.

24. The point of pointing the parties to these addition procedural requirements of which I have not doubt counsel are fully aware of is that, in this case, the Plaintiffs had the opportunity to raise this preliminary objection during the various stages of the proceeding. They did not until today. In my view the opportunity was there all along but the Plaintiffs and their lawyers failed to make use of that opportunity. This means, that it is not only too late but unacceptable that a preliminary matter such as this was left undetected until today.

25. I also do not accept Mr Lidgett’s submission that he was recently briefed on the matter, hence had insufficient time to consider and raise this preliminary objection prior to trial. Here is a case where the Plaintiffs were represented by lawyers. Gillian M. Maki Kaspers Lawyers were the initial lawyers and according to the Court documents in the Court file, Ms Takoboy was lawyers on record until Mr Lidgett officially took over on 20th July 2009 when he filed a Notice of Appearance which is in the Court file.

26. Again, the point is, the Plaintiffs had lawyers acting for them and the lawyers should have picked up the purported defective pleading in the Defendants’ defence in the course of the proceeding. If it was not picked up, it can be fatal to the Plaintiffs case and cannot be rectified in the manner in which the Plaintiffs attempted to do today. It might be a different story if the Plaintiffs were unrepresented by lawyers. In my view also, their "silence" amounts to acceptance that the matter such as the preliminary objection that require immediate attention and determination by the Court.

27. For these reasons, I am not satisfied with the explanation offered by the Plaintiffs for the delay in raising the preliminary objection. The explanation is unsatisfactory. Therefore, I must find against the Plaintiffs in respect of the second consideration.

Prejudice to the other party

28. The final consideration is the prejudice to the Defendants. I have no difficulty in finding the Defendants will be prejudiced by the preliminary objection if leave is granted to the Plaintiffs to move the preliminary objection. The reason is simple and straight forward. Today is the first day of the trial of this matter, noting that the matter commenced before this Court in 10th January, 2005. That is some four (4) and half years ago.

29. The Defendants must have their day in Court as they cannot be kept waiting. As I understand from the Defendants’ counsel, witnesses are on standby to give evidence and, in my view time and money have been expanded to bring witnesses to attend Court today. Any further delay would surely prejudice the Defendant’s defence if the Court is to entertain the preliminary objection today because the witnesses may not be available next time if the Court hears and grants the preliminary objection.

For there reasons, I am not satisfied that the Defendants will not be prejudiced if the Court grants leave to the Plaintiffs to raise the preliminary objection.

30. In the end, the unsatisfactory explanation of the Plaintiffs for the delay in raising the preliminary objection coupled with the prejudice to the Defendants have persuaded me to rule against the Plaintiffs objection for leave to raise the preliminary objection in respect of the defence of fair comment. I would add in concluding that such practice should not be encouraged by lawyers as it not only is tantamount to an abuse of the judicial process but also delay completion of matter coming before the Court, like in this case.

31. Accordingly, I refuse the application for leave to raise the preliminary objection to the defence of fair comment and order that trial shall proceed forthwith.

Ruling accordingly.

_________________

Warner Shand Lawyers: Lawyers for the Plaintiffs
Fairfax Legal Lawyers: Lawyers for the First Defendant
Acting Solicitor General: Lawyers for Second Defendant