Amory v Maynes [2020] PGNC 402; N8635 (19 November 2020)

N8635
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 267 OF 2017 (CC2)

BETWEEN:
DONNA AMORY
Plaintiff

AND:
JEANETTE MAYNES
First Defendant

AND:
NEALE BROWN
Fifth Defendant

Waigani: Shepherd J
2020: 23^rd October, 19^th November

PRACTICE AND PROCEDURE - application to strike out defence – Order 8 Rule 27(1)(a) National Court Rules – defence should only be struck out if so ambiguous or lacking in particularity that real issues raised by the defence cannot be identified – application to strike out defence must address adequacy of pleading not merits of the case.

Cases Cited:

Esso Highlands Ltd v Willie (2015) N6010
Gari v Motor Vehicle Insurance Ltd (2005) Unreported and Unnumbered
Handy Finance Ltd v Lupari (2015) N6185
Kitipa v Auali, Supply and Tenders Board of Western Highlands Provincial Government & Ors (1998) N1733
Lero v Stagg (2006) N3050
White Corner Investments Ltd v Haro (2006) N3089

Counsel:

Ms D. Doiwa, for the Plaintiff
Ms M. Hiob, for the First Defendant

19 November, 2020

1. SHEPHERD, J: This is a decision on an application by the plaintiff to strike out the fifth defendant’s defence and for default judgment to be entered against the fifth defendant on the issue of liability, with damages to be assessed. The application is opposed by the fifth defendant although he was not represented at the hearing of the application. The first defendant neither supports nor opposes the application.
   

Background

2. The plaintiff commenced this suit alleging that she was defamed on social media by the first, second, third and fifth defendants during December 2015 and that she was further defamed by the fourth defendant in a television program which was broadcast in Papua New Guinea by the fourth defendant on 15 December 2015.
   
3. The plaintiff’s claims against the second, third and fourth defendants in this proceeding have been settled, leaving the plaintiff’s claims against the first and fifth defendants to be progressed to trial. The second, third and fourth defendants are no longer parties to this suit.
   

The plaintiff’s claim in defamation against the fifth defendant

4. The text of the plaintiff’s statement of claim, insofar as it relates to the fifth defendant, is reproduced below without typographical correction:
   
   7. The Fifth named Defendant is an Australian citizen living and carrying on business in Australia and has the legal capacity to be sued and sue in his name and style.

...

32. Further to paragraph 7 as aforesaid, the Fifth Defendant, being a total stranger to the Plaintiff has made it his business to publish highly defamatory and derogatory statements with every intention to defame the Plaintiff and is in breach of the Defamation Act Chapter No. 293.
    

33, On or about 15th December 2015, the Fifth Defendant shared in the First Defendant’s blog and wrote:

33.1 “Oh dear, this woman is the devil. Hope they aren’t trusting her near money as she has a shocking history where ever she goes. Don’t clubs or potential employers google “before” they hire these days?”

33.2 “... They have been scamming for over 20 years too Michelle, goes from Dawin to Perth to South Australia back to Mackay and they “ALWAYS” leave without paying bills, they were paid in full for the Motel (Troppix) and left Ingham with tens of thousands owing and court cases left right and centre. They will never pay so we will hound them to the end of the earth until they are put in Jail where they both belong so they can stop ruining other people’s lives”.

33.3 “...Donna and Gary Amory, are liars, frauds and cheats. I do not blame you for thinking otherwise thought because they are very good at what they do”.

34. The words used by the First Defendant to describe the Plaintiff meant and were understood in their original and literal meaning to mean she was and is a –

(a) thief

(b) con woman

(c) deceitful woman

(d) rips of people

(e) dishonest

(f) a laughing stock

(g) left a trail of debts and deceits

(h) scamming for over 20 years

(i) liar

(j) fraudster

(k) cheater

(l) woman who should not be employed anywhere in Papua New Guinea as she has a trail of bad record in the way she conduct business in Australia and ran away to Papua New Guinea and coned her way into finding employment there.

35. By reason of the unfounded allegations of highly and unsubstantiated defamatory statements made of the Plaintiff, the Fifth Defendant was in breach of the Defamation Act Chapter No. 293 and by which the Plaintiff was injured in her credit and reputation and her further employment chances under the “draft New Contract” of employment was lost.
    
36. Further to paragraphs 33 and 34 as pleaded herein the Plaintiff has suffered damages and will continue to suffer loss and damage to her reputation.
    
5. The defence of the fifth defendant pleads in answer to the allegations contained in the plaintiff’s statement of claim as follows:
   
   6. The Fifth Defendant admits he is an Australian citizen and resides in Australia but cannot admit the other allegations in paragraph 7 of the Statement of Claim.
      
   7. The Fifth Defendant refers to paragraphs 32 and 33 of the Statement of Claim and states as follows:
      
      1. The content of the alleged comments were true and fair at the time of the publication on 15 December 2015. The Fifth Defendant pleads the defence of protection of public interest, fair comment, truth, excuse and good faith under section 5, 8(2)(c), 9(1)(a)(b)(ii)(c)(ii), 10, 11(1)(a)(b)(c)(e)(h)(2)(a)(b)

(c)(i)(ii) and 12 of the Defamation Act Chapter 293 (the Act);

2. The Fifth Defendant states that the alleged comments were removed more than 12 months ago when the First Defendant removed the post on her blog or website. There is no way to prove the accuracy, content or author of the alleged comments;
   
3. The Fifth Defendant states that the Plaintiff did not sue Channel Nine who aired the current affair program (The full A current Affair footage will be produced at trial);

iv. The Fifth Defendant states that the Plaintiff is known to him and recalls she publicly and loudly verbally abused him with the term ‘Scumbag’ at the Castletown Townsville Shopping Centre in January 2014. The Plaintiff’s husband was also present. For the Plaintiff to state that the Fifth Defendant is a total stranger is false, misleading and dishonest;

5. On or about 28 March 2013 the Plaintiff’s husband sent a threatening text message to the Fifth Defendant, which was reported to the police;
   
6. The Fifth Defendant states that the Plaintiff’s claim is dishonest and borders on extortion.
   

8. The Fifth Defendant denies the allegations in paragraphs 34, 35 and 36 of the Statement of Claim.
   
6. The fifth defendant’s notice of intention to defend this proceeding was filed by the Port Moresby law firm of Fiocco & Nutley Lawyers on 9 June 2017. By the filing of that notice without objection, the fifth defendant submitted to the jurisdiction of this Court, notwithstanding that no prior leave of the Court had been obtained by the plaintiff under Order 6 Rule 20(2) of the National Court Rules (NCR) to serve notice of her writ in Form 12 outside of Papua New Guinea as required by Order 6 Rule 20(6).
   
7. Order 6 Rule 20 NCR provides:
   

20(1) Service outside Papua New Guinea of originating process is not valid under this Division unless –

(a) the service is in accordance with the prior leave of the Court given under Sub-rule (2); or

(b) the Court confirms the service under Sub-rule (7); or

(c) the person served waives objection by giving notice of an intention to defend.

[underlining added]

The plaintiff’s motion

8. The plaintiff’s motion seeks orders that the fifth defendant’s defence be struck out pursuant to:
   

(1) Order 12 Rule 1 NCR and Order 8 Rule 27 NCR for disclosing no reasonable defence; and

(2) Rule 10 of the ADR Rules of the National Court because of the fifth defendant’s failure to participate in Court-ordered mediation,

and that judgment by default be entered in favour of the plaintiff against the fifth defendant pursuant to Order 12 Rules 24 and 25 NCR. The plaintiff also seeks costs against the fifth defendant on an indemnity basis.

Service of the plaintiff’s motion on the fifth defendant

9. The affidavit of service of Kevin Patrick Bailey, a bailiff resident at Ingham, Queensland, sworn by him on 9 October 2020 establishes that earlier that day he served on the fifth defendant at the latter’s residence situated at 10 Fanning Street, Ingham, Queensland a letter dated 7 October 2020 from Makap Lawyers and a copy of the Order made by this Court on 5 October 2020 which set down the plaintiff’s subject motion for hearing as a special fixture on 23 October 2020. A digital copy of Mr Bailey’s affidavit was filed in this proceeding on 11 October 2020.
   

The fifth defendant’s communications regarding his intention to continue to defend this proceeding

10. A copy of Makap Lawyers letter dated 7 October 2020 to the fifth defendant is annexure “KPB-1” to Mr Bailey’s affidavit of service. That copy letter, with reference to this proceeding WS No. 267 of 2017, states:
    

We note that you were personally served on 13th December 2019 by Bailiff Ian de Courcey, with our client’s application to strike out your Defence and for default judgment to be entered against you.

We appeared before His Honour Justice Shepherd on 5th October 2020 and obtained directions to hear this application as well as progress this matter to substantive trial. The application to strike out your Defence is set for hearing on Friday 23 October 2020 at 1.30pm. Directions to progress this matter to trial will also be given on this returnable date. We enclose a copy of the Orders of 5th October 2020.

You are requested to appear and/or engage appropriate legal representation by or before the returnable date as our client intends to move her application without further delay. Failure to do so may result in default judgement being entered against you.

You may contact Ms Doiwa of our office for any queries you may have on [phone] or ddoiwamakaplawyers.com.

11. Instead of contacting Ms Doiwa, the fifth defendant belatedly sent an email direct to me as the presiding judge at my PNG judiciary email address at 6.10 pm on 22 October 2020, the eve of the hearing of the plaintiff’s present motion. The fifth defendant apologised for sending his email to me direct but said that he had been unable to find any other email address in connection with this case “that may be correct at this time”. The fifth defendant stated in his email that he needed to address the Court regarding his ability to defend himself and that he had been unsuccessful in his recent attempts to locate a lawyer in Port Moresby to represent him in his defence of the plaintiff’s claim against him. He said he was still endeavouring to secure a new lawyer to act for him in connection with this suit.
    

15. On the morning of 23 October 2020 my associate, on my instructions, sent an email to the fifth defendant at 9.34 am, which stated as follows:

Dear Mr Brown,

I advise that Justice Shepherd received your email at 6.09 pm [last night]. His Honour has instructed me to inform you that he has taken note of your request, which will be considered by him when the Plaintiff's application seeking an order that default judgment be entered against you with damages to be assessed at a later date returns before His Honour for hearing this afternoon at 1.30 pm.

I will notify you by email of His Honour's ruling after it has been made this afternoon.

As you have indicated that you wish to resume defending the plaintiff's defamation claim against you, no matter what His Honour's ruling may be this afternoon, it will be necessary under our National Court Rules for you to file an address for service within 15 kilometres of the National Court Registry at Waigani, NCD at which address all Court process can be served on your local agent. If you appoint a new lawyer to act for you, the office address of that lawyer can be your address for service. If you do not wish to appoint a new lawyer, you can appoint a local agent who must be an adult person having a readily identifiable street address with 15 kilometres from the National Court Registry, a local postal address, a functioning email address and contactable PNG telephone or mobile numbers.

In view of current Covid-19 border restrictions in both Queensland and Papua New Guinea which require 14-days quarantine on arrival in each jurisdiction coupled with the cost factor in your travelling to and attending the National Court at Waigani, Port Moresby NCD, it may be more practicable for you to participate in future Court appearances by on-line video conference using any of the Zoom, Skype or Microsoft Teams platforms - if you have access to them. This on-line facility is now available in the National Court although the Court will still need to issue special directions in that regard. If that would be more appropriate to your circumstances, please notify me accordingly by return mail.

In conclusion I need to stress that in future you must not under any circumstances seek to communicate direct with His Honour by email, telephone or any other means regarding this Court case. I am puzzled as to why you did not seek to communicate with the National Court Registrar if you wished to indicate your intention to resume your defence of this proceeding. The Registrar's contact details are readily available on the internet. Be that as it may, you may now communicate with me by email on any administrative matters in connection with this case pending the filing of your latest notice of address for service and/or any notice of change of lawyer now acting for you.

Regards,

Numana Kilavanwa Jnr
Associate to Justice J.L. Shepherd

The parties’ representation at the hearing of the plaintiff’s motion on 23 October 2020

12. When the plaintiff’s motion was called by this Court in the afternoon of 23 October 2020, Ms Dakan Doiwa of Makap Lawyers appeared for the plaintiff. The plaintiff attended in person with Ms Doiwa.
    
13. Ms Ethel Hiob of Fiocco & Nutley Lawyers appeared for the first defendant. Ms Hiob indicated to the Court that the first defendant took no position either for or against the plaintiff’s motion. Ms Hiob confirmed that Fiocco & Nutley Lawyers did not presently have instructions to resume acting for the fifth defendant.
14. I proceeded to hear the plaintiff’s motion on 23 October 2020 notwithstanding the absence of the fifth defendant as I was satisfied from the affidavit of service of Ingham-based bailiff Kevin Bradbury filed herein on 12 October 2020 that the fifth defendant had been on notice of the date for the hearing of the plaintiff’s application to strike out his defence since 9 October 2020. I expressed the view that in my opinion the fifth defendant had not fully availed himself of the opportunity in the interim to have re-engaged local counsel in Port Moresby to act for him or to have communicated with either Makap Lawyers when invited to do so in their letter to him of 7 October 2020 which he received on 9 October 2020 or to have taken other steps such as contacting the Registrar of this Court to convey his intention to continue his defence of this proceeding.
    

Consideration

15. The plaintiff’s motion relies primarily on Order 12 Rule 1 NCR and Order 8 Rule 27 NCR as the source of the Court’s jurisdiction to strike out the fifth defendant’s defence.
    
16. Order 8 Rule 27(1)(a) is the most relevant Rule. It provides as follows:
    

27. Embarrassment, etc

(1) Where a pleading –

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(b) ...

(c) ...

the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.

17. The plaintiff cites numerous reported and unreported defamation cases in support of her motion. However, none of those cases address the well-established principles applicable to motions to strike out pleadings pursuant to Order 8 Rule 27 NCR. Those principles are to be found in the following oft-cited passage of Lay J. in Gari v Motor Vehicle Insurance Ltd (2005) Unreported and Unnumbered referred to by Gabi J. in White Corner Investments Ltd v Haro (2006) N3089:

The jurisdiction of the Court under O8 r27 is to see if the pleadings plead an almost incontestably bad cause of action which cannot possibly succeed, and cannot be cured by amendment (PNG Forest Products Pty Ltd and Inchcape Berhad v The State and Jack Genia [1992] PNGLR 85), assuming the truth of the facts pleaded in the statement of claim (Gabriel Apio Irafawe v Yawe Riyong (N1915), and to a lesser extent, in the defence, as explained by any evidence adduced on the application solely for the purpose of explaining the pleadings. It is not a demurrer procedure and should not be applied where the pleading is arguable but, on the evidence, the chances of success are slight. If the pleading is arguable and not otherwise embarrassing or vexatious, an application under O8 r27 ought not to succeed (Brimson v Rocla Concrete Pipes Ltd: Supreme Court Proceedings New South Wales Vol.2 [13.029] of 30 April 1983).

18. This exposition of the principles applicable to Order 8 Rule 27 NCR by Lay J. in Gari v Motor Vehicle Insurance Ltd, as approved by Gabi J. in White Corner Investments Ltd v Haro has been applied in numerous subsequent cases. See for example Handy Finance Ltd v Lupari (2015) N6185; Esso Highlands Ltd v Willie (2015) N6010.
19. In Lero v Stagg (2006) N3050 Kandakasi J (as he then was) enunciated the principles this way:

A statement of claim or a defence (as the case may be) must therefore clearly plead the form of action by pleading the necessary legal elements of the action and relevant and necessary facts (not the evidence) giving rise to the form of action. It follows therefore that where a statement of claim or defence is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, and instead leaves it to guess work, it should be struck out.

20. From a perusal of the pleadings, it is clear that the plaintiff’s statement of claim has set forth the necessary legal elements required to be pleaded to found her causes of action in defamation against all defendants, including the fifth defendant. But it is equally clear that the fifth defendant’s defence has similarly pleaded with precision a response to each and every paragraph in the plaintiff’s statement of claim as concerns him.
21. The fifth defendant has expressly pleaded statutory defences available under the Defamation Act. These are defences raised in response to the plaintiff’s allegations based on her cause of action in defamation. The remainder of the fifth defendant’s formal defence has responded with clarity to all other allegations made against him in the plaintiff’s statement of claim. I find that there is no ambiguity or failure to provide particulars in the fifth defendant’s defence. There is no guesswork involved in identifying the real issues which involve the fifth defendant and which need to go forward to trial. The defence of the fifth defendant has disclosed a reasonable defence.
22. The plaintiff’s submissions in support of her motion to strike out the fifth defendant’s defence all go to the merits of the case, not to any defect of pleading on the part of the fifth defendant. I find that the defence has been adequately pleaded and, in the absence of any application for leave to amend, will continue to stand as is. The merits of the plaintiff’s claims based on the tort of defamation and the defences of the first defendant and the fifth defendant to those claims will be determined at trial on the evidence. The pleadings provide the framework for that determination. The interests of justice require that the plaintiff’s allegations of defamation be tested on evidence at trial before judgment can be given on the merits: Kitipa v Auali, Supply and Tenders Board of Western Highlands Provincial Government & Ors (1998) N1733.
23. I note that a secondary reason why the plaintiff’s motion seeks an order that the fifth defendant’s defence be struck out is because of the fifth defendant’s failure to have cooperated with the Court-ordered mediation process. I observe in this regard that the plaintiff did not pursue this source of the Court’s jurisdiction to strike out the defence in her submissions in support of the motion. The plaintiff’s submissions are silent on this issue, although there is affidavit evidence to this effect. In any event, as I have not had the benefit of receiving any evidence or submissions from the fifth defendant on this issue, I will exercise the Court’s discretion under Rule 10(7)(b) of the ADR Rules and will take this failure by the fifth defendant to attend mediation into account when later awarding costs in the proceedings at the conclusion of the trial. The fifth defendant may well have had compelling reasons to not attend the mediations either in person or by some form of telecommunication link if he was not resident in Papua New Guinea at the time those mediations were held.
24. One final point arising from the plaintiff’s motion requires comment. The plaintiff seeks in term 2 of her motion that default judgment be entered against the fifth defendant pursuant to Order 12 Rules 24 and 25 NCR. I consider that those Rules have no application to the circumstances of this case. There is no allegation by the plaintiff that the fifth defendant defaulted in the filing of his defence within the time allowed by the NCR.
25. It is not disputed that the fifth defendant’s defence was filed within time. The plaintiff’s statement of claim endorsed on the writ of summons filed on 23 March 2017 was served on the fifth defendant at his residence at 10 Fanning Street, Ingham, Queensland, Australia on 19 May 2017 by John Edward Kinbacher, the bailiff of Ingham Magistrate’s Court, who deposed to that effect in his affidavit of service sworn on 22 May 2017.
    
26. The defence of the fifth defendant was filed within time on 30 June 2017.
    
27. I have found that the defence of the fifth defendant is a satisfactory pleading. The defence has not been withdrawn by the fifth defendant. The defence has remained on the record as a valid pleading for this proceeding. It will continue to do so, particularly in view of the fifth defendant’s belated notification to the Court of his intention to re-engage a lawyer in Port Moresby to represent him at trial.
    
28. The fact that Fiocco & Nutley Lawyers filed notice of ceasing to act for the fifth defendant in this suit on 10 December 2019 and that the fifth defendant is presently without legal representation in this proceeding does not affect the validity or competence of his defence.
    
29. For these reasons I am not persuaded that the fifth defendant’s defence discloses no reasonable defence, as required by Order 8 Rule 27(1)(a) NCR, or that this Court should impose the extreme sanction of striking out the fifth defendant’s defence under Rule 10 of the ADR Rules. The plaintiff’s motion will be refused, the costs of the motion to be reserved for determination at trial.
    

Order

30. The terms of the formal Order of the Court are these:
    

(1) The relief sought in the plaintiff’s notice of motion filed on 11 December 2019 is refused.

(2) The costs of and incidental to the plaintiff’s notice of motion are reserved for determination at trial.

(3) The time for entry of this Order is abridged to the time of signing by the Court, which shall take place forthwith.

____________________________________________________________
Makap Lawyers: Lawyers for the Plaintiff
Fiocco & Nutley: Lawyers for the First Defendant