Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 108 OF 2013
BETWEEN:
MALCOLM LESLIE LEWIS
Plaintiff
AND:
GAUVIN FLORES
First Defendant
AND:
MAJORIE FLORES
Second Defendant
Lae: Dowa AJ
2020: 2nd June &7th August
PRACTICE AND PROCEDURE – motion by Defendant- application to dismiss proceedings on the grounds of lack of jurisdiction – defendants argue National Court in PNG does not have jurisdiction to hear matter as the alleged defamation of the plaintiff’s character occurred in the Republic of Philippines - Whether or not the National Court in Papua New Guinea has jurisdiction to deal with a cause of action which took place outside of Papua New Guinea - the act of publication of alleged defamatory matters took place in the Republic of Philippines - matters that gave rise to the complaint occurred in Papua New Guinea - Plaintiff based in Papua New Guinea - personal and business reputational damage allegedly suffered by the Plaintiff is done and felt in Papua New Guinea – National Court in Papua New Guinea has jurisdiction to hear matter - defendants application to dismiss proceedings is dismissed
Cases Cited:
Papua New Guinea Cases
Trinity Grammar School v Tomai (2019) N7819
Steamships Trading Ltd v Inter Oil LPOP (2018) N76516
Settin Bay Lumbar Company Pty Ltd v Arya Ship Management Ltd (1995) PGSC7 SC488
Overseas Cases
Dow Jones & Company Inc v Joseph Gutnick [2002] HCA 56
Counsel:
S. Tanei, for the Plaintiff
T. Dawidi, for the Defendant
RULING
7thAugust, 2020
1. DOWA AJ: This is a ruling on a preliminary issue of jurisdiction raised by the Defendants. If the Defendants application is successful, the proceedings will be determined in its entirety.
CAUSE OF ACTION
2. The Plaintiff is claiming damages against Defendants arising out of defamatory publication allegedly published by the Defendants in the Republic of Philippines. The Defendants raise the defence that there is no publication in Papua New Guinea and the National Court in Papua New Guinea does not have jurisdiction to hear the matter.
FACTS
3. The Defendants were employed by Lae International Hospital as Chief Medical Officer and Gynaecologist respectively between December 2008 and March 2010.
ISSUES
LAW
“Each law made by Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law, according to its true intent, meaning and spirit, and there is no presumption against extra territoriality.”
“2A. LAW TO OPERATE WITHIN BOUNDARIES, AIRSPACE, SHIPS AND AIRCRAFT,
(1) Subject to Subsection (2), it shall be presumed, unless the contrary intention appears, that a provision is intended to operate-
- (a) Through the land territory under the sovereignty of the State; and
- (b) Within the area of the internal waters and territorial sea; and
- (c) Throughout the super jacent airspace of the land territory, the internal waters and territorial sea; and
- (d) In relation to all ships and aircraft (wherever located) which have Papua New Guinea nationality and in particular to all persons and things for the time being on board those ships and aircraft.
(2) Subsection (1) does not apply to_
- (a) An adopted Act which embodies the terms of a pre-independence law of the former Territory of Papua or of the former Territory of New Guinea; or
- (b) A subordinate enactment made under an Act referred to in Paragraph (a): or
- (c) Provincial Government laws, Local Government rules or to nay other subordinate enactment made under a power which is limited to the making of statutory instruments to operate in or for the purposes of an area smaller than the country.
(3) This section shall not be construed-
- (a) As limiting the operation which an adopted Act or subordinate enactment has apart from this section; and
- (b) As extending any power to make subordinate enactments.”
DEFENDANTS SUBMISSION
Plaintiff’s Submissions
REASONS FOR DECISION
“Argument of the appeal proceeded from an acceptance, by both parties, of certain principles. First, it is now established that an Australian court will decline, on the ground of forum non conveniens, to exercise jurisdiction which has been regularly invoked by a plaintiff, whether by personal service or under relevant long-arm jurisdiction provisions, only when it is shown that the forum whose jurisdiction is invoked by the plaintiff is clearly inappropriate. Secondly, it is now established that in trying an action for tort in which the parties or the events have some connection with a jurisdiction outside Australia, the choice of law rule to be applied is that matters of substance are governed by the law of the place of commission of the tort.”
“44. In defamation, the same considerations that require rejection of locating the tort by reference only to the publisher’s conduct, lead to the conclusion that ordinarily, defamation is to be located at the place where the damage to reputation occurs. Ordinarily that will be where the material which is alleged to be defamatory is available in comprehensible form assuming, of course, that the person defamed has in that place a reputation which is thereby damaged. It is only when the material is in comprehensible form that the damage to reputation is done and it is damage to reputation which is the principal focus of defamation, not any quality of the defendant’s conduct. In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed.”
“48. As has been noted earlier, Mr Gutnick has sought to confine his claim in the Supreme court of Victoria to the damage he alleges was caused to his reputation in Victoria as a consequence of the publication that occurred in that State. The place of commission of the tort for which Mr Gutnick sues is then readily located as Victoria. That is where the damage to his reputation of which he complains in this action is alleged to have occurred, for it is there that the publications which he complains were comprehensible by readers. It is his reputation in that State, and only that State, which he seeks to vindicate. It follows, of course, that substantive issues arising in the action would fall to be determined according to the law of Victoria. But is also follows that Mr Gutnick’s claim was thereafter a claim for damages for a tort committed in Victoria, not a claim for damages for a tort committed outside the jurisdiction. There is no reasons to conclude that the primary judge erred in the exercise of his discretion to refuse to stay the proceeding.”
The authors of HALSBURYS LAWS OF ENGLAND 4TH EDITION VOL 1 at PARA 353 set out the principles which apply in ascertaining the most appropriate forum especially where a stay is sought. Thus:
“353. Forum non conveniens
The court may stay an action if there is another forum in which the case can be more conveniently tried. Account is taken not only of convenience and expense, but also of other factors, such as the law governing the transaction, which point to the most appropriate or natural forum. In ascertaining the most appropriate forum the court searches for the country with which the case has its most real and substantial connection.
If a foreign court is found to be a more appropriate forum, a stay may still be refused if its effect would be to deprive the plaintiff of some real legitimate personal or juridical advantage available to him by suing in England. A common instance of this in Admiralty proceedings is the opportunity for the plaintiff to secure his claim by the arrest of the vessel as an action in rem. Other examples from the decided cases are the availability in England of a more generous limitation period, a speedier or cheaper trial, a more generous measure of damages, or a more favourable rule of substantive law. Particular weight may be attached to juridical advantages which do not involve a corresponding disadvantage to the defendant. Normally however the court will not compare the quality of justice available in England with that dispensed elsewhere, and allegations that a fair trial would not be obtainable in the foreign jurisdiction must be supported by cogent evidence. Ultimately, the courts task is to weigh in the balance the factors both for and against a stay, so that even if the plaintiff can point to a legitimate advantage in suing in England, this will not be decisive if another jurisdiction is clearly the more appropriate forum.”
ORDERS
34. It is ordered that:
________________________________________________________________
Corporate In-house Lawyers: Lawyers for the Plaintiff
Dawidi Lawyers: Lawyers for the Defendant
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2020/249.html