A/S Kristian Jebsens Rederi trading as the Jebsen Line v Heenan, Corkill and Steamships Trading Co Ltd [1986] PNGLR 61 (28 February 1986)

Papua New Guinea Law Reports - 1986

[1986] PNGLR 61 - A/S Kristian Jebsens Rederi trading as the Jebsen Line v Peter Heenan James Corkill and Steamships Trading Co Ltd 

[1986] PNGLR 61

N528(L)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

A/S KRISTIAN JEBSENS REDERI TRADING AS THE JEBSEN LINE

V

PETER HEENAN AND JAMES CORKILL AND STEAMSHIPS TRADING CO LTD

Waigani

McDermott AJ

14 February 1986

28 February 1986

DEFAMATION - Defamatory statements - Imputations - Pleading of - Where natural and ordinary meaning relied on - No pleaded imputations necessary - Defamation Act (Ch No 293) - National Court Rules, O 8. r 84.

Held

In proceedings for defamation, where the plaintiff relies upon the natural and ordinary meaning of the words complained of as being defamatory, there is no requirement in the Defamation Act (Ch No 293) or in the National Court Rules, that a defamatory imputation should be pleaded.

Allsop v Church of England Newspaper Ltd [1972] 2 QB 161 at 167-168, applied.

South Pacific Post Pty Ltd v Nwokolo [1984] PNGLR 38 at 48, considered.

Cases Cited

Allsop v Church of England Newspaper Ltd [1972] 2 QB 161.

Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937.

Jones v Skelton [1963] 1 WLR 1362.

Rubber Improvement Ltd v Daily Telegraph Ltd [1964] AC 234.

Slim v Daily Telegraph Ltd [1968] 2 QB 157.

South Pacific Post Pty Ltd v Nwokolo [1984] PNGLR 38.

Notice of Motion

This was an application by defendants in proceedings in defamation to have the statement of claim struck out pursuant to the National Court Rules, O 8, r 27.

Counsel

R Thompson, for the plaintiff/respondent.

M Hirst, for the first defendant/applicant.

J Goodman, for second and third defendants/applicants.

Cur adv vult

28 February 1986

MCDERMOTT AJ: By motion, the second and third defendants seek to have the statement of claim struck out pursuant to the National Court Rules, O 8, r 27, in that the pleading discloses no reasonable cause of action. The action is a claim for damages for defamation arising out of the publication by telex of information received about the plaintiff. The information complained of appears to be a republication of information. It reads:

“Following rcvd from Tokyo News:

Jebsen Line

The situation surrounding the ill fated Jebsen Line of Norway has finally come to a disastrous end with the company unable to trade its way out of serious financial difficulties encountered during the first half of this year STP the line’s cash flow problems experienced early this year have now come to a head with no payments to leasing companies, charters etc. having been made for the last three months STP the three major Japanese banks involved:

(1)      Mitsubishi Corp and Ryoshin Co

(2)      Marubeni Corp

(3)      Tokyo Lease Company

have been forced to foreclose with all the companies assets frozen including new vessels presently under construction STP Jebsens currently have some 22 vessels operating 9 world wide routes including Europe, Asia, Australia, New Zealand and the South Pacific STP Bankers representatives world wide have instructed their agents to withhold the departure or unloading of all vessels STP already 9 vessels have had Summons issued with another 3 pending the vessel’s arrival at their next port of call. We believe these to be 2 vessels involved in their Asia/Sth Pacific Trade Jebsen Napier and Jebsen Tauranga STP We will advise further details when to hand but it would appear Jebsens run has come to an end

Kaiji Press

Tokyo

Steamos NE22198”

A party is required to plead the necessary particulars of any claim. The National Court Rules, O 8, r 84(a), further requires:

“Sufficient particulars of the publications in respect of which the proceedings are brought to enable the publications to be identified.”

It is submitted that in the statement of claim no imputation has been pleaded and therefore there has been a failure to plead a cause of action. The defendants apparently do not know what par 6 (the telex) in the statement of claim means, as it is submitted that no imputation has been pleaded. But is this necessary?

The defendants submit that the Defamation Act (Ch No 293) requires a plaintiff to ascribe to the words complained of their natural and ordinary meaning and requires a plaintiff to state what is imputed and therefore requires this imputation to be pleaded. But it is clear from the pleadings that the plaintiff relies upon the ordinary meaning of the words complained of and thus there was no need to comply with O 8, r 84(b), by including:

“where the plaintiff alleges that the matter complained of was used in a defamatory sense other than its ordinary meaning, particulars of the facts and matters on which he relies in support of that sense.”

The Act provides for the cause of action. The rules of court provide the machinery for the action to be brought.

The defendants are concerned with the imputations arising from the material in question and with the subsequent defences available to them. They are not content to face only the natural and ordinary meaning of the telex as pleaded. There is concern as to what is attributed to the words “ill fated”, “disastrous”, “way”, “frozen”, and “run”. One would have thought that the meanings of these words, used in the context of the telex and with knowledge as to whom it was sent, would be obvious. The defendants are presently unable to ascertain from the telex the meaning of these words, whether it be literal or one of implication from the literal, (the false innuendo) or indeed the true innuendo.

Whilst it is clear that the plaintiff has pleaded as required by the rules, nevertheless more particulars can, if necessary be ordered, although this is not what is asked of me. I have been referred to Allsop v Church of England Newspaper Ltd [1972] 2 QB 161, a case relevant to this jurisdiction. The article in question there referred to a television broadcaster’s “pre-occupation with the bent”, which in the context was pornography, violence, sex and obscenity on television. The meaning of “bent” was obviously an important factor in the action. The plaintiff pleaded according to the Rules of the Supreme Court (UK), O 82, r 3, which is in similar terms to r 84(a) of the National Court Rules which I have quoted. The defendants then sought particulars of “each and every, innuendo or indirect meaning going beyond the literal meaning of the words complained of” which were claimed to be inherent in them and upon which reliance was to be placed at the trial”. After referring to Rubber Improvement Ltd v Daily Telegraph Ltd [1964] AC 234 and Slim v Daily Telegraph Ltd [1968] 2 QB 157, Lord Denning MR, with whom the other members of the Court of Appeal agreed, concluded at 167-168:

“All this satisfies me that in most cases it is not only desirable, but also necessary, for the plaintiff to set out in his pleading the meaning which he says the words bear. At any rate, he should do so when there are two or more ordinary meanings, which the words bear. The only exception is when there is only one ordinary meaning which is clear and explicit.

...

Seeing that the words may be grossly defamatory, or only slightly defamatory, or not defamatory at all, I am clearly of opinion that the plaintiff should give particulars saying what is, or are, the meaning, or meanings, which he says that the words bear. That is only fair to the defendants so that they should be able to know what to do. They may wish to plead fair comment or to apologise; or if it is grossly defamatory, they may still want to apologise even more humbly. At any rate, they ought to be able to know the case which is going to be put against them.”

The use of a slang term quite obviously caused difficulties in meeting an action based upon it. But this is not the case before me. The words to which I have referred earlier add a little colour to the narrative but the purport and thrust of the telex stands without these words. The problems seen by the defendants appear to me to be illusory. The plaintiff relies upon the natural and ordinary meaning of the telex, ie in the meaning in which reasonable men of ordinary intelligence, with the ordinary man’s general knowledge and experience of worldly affairs, would be likely to understand them. See Gatley on Libel and Slander (8th ed 1981), par 93. The natural and ordinary meaning may also “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”. See Jones v Skelton [1963] 1 WLR 1362 at 1371.

After referring to the situation where an alleged defamatory statement was open to a large number of innuendos, Kidu CJ and Pratt J in South Pacific Post Pty Ltd v Nwokolo [1984] PNGLR 38 continued (at 48):

“We would think that 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.”

I believe that to be the case in this action.

It is well to remember that the general burden of proof is on the plaintiff and, if relying upon the natural and ordinary meaning, it is for him to show that the telex conveys a defamatory imputation or if it is disputed what defamatory imputation is conveyed, that it conveys the most serious imputation on which he relies. The plaintiff relies upon the telex as it stands and upon the ordinary meaning which can be drawn from it. That is the case which the defendants have to meet.

Whilst I appreciate that defamation proceedings elsewhere have been further refined as a result of changes in defamation legislation, that is not the case here and by analogy, Pt 67, r 11 of the Supreme Court Rules 1970 (NSW) is not a requirement here, nor a guide to the type of pleadings necessary in this instance.

This is not an application for further and better particulars as was the position in Allsop (supra). It is an application to strike out, but in submissions Mr Goodman appears to resile and ask for the statement of claim to be amended as the defendants cannot plead to it. Order 8, r 27 is inappropriate for this purpose. On what is before me I am unable to see that the pleading of the telex, without more, “has a tendency to cause prejudice, embarrassment or delay in the proceedings” (O 8, r 27(a)(b)). On this rule see generally the judgment of Cross J in Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 941-943.

I dismiss the application and order the applicants, the third and fourth defendants to pay the plaintiff’s costs in this application.

Orders accordingly

Lawyers for the plaintiff: Young and Williams.

Lawyers for the first defendant: Gadens.

Lawyers for the second and third defendants: Beresford Love Francis & Co.