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Pakui v State [1994] PGNC 168; [1995] PNGLR 321 (19 December 1994)

PNG Law Reports 1995

[1995] PNGLR 321 - Eton Pakui v The State�

[1995] PNGLR 321

N1288

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ETON PAKUI

V

THE STATE

Mount Hagen

Woods J

9 December 1994

19 December 1994

PRACTICE AND PROCEDURE - Striking out defence - Pleading the general issue - National Court Rules, O 8 rr 21, 28.

Facts

The plaintiff applied to strike out the defence as pleading the general issue contrary to O 8 r 28 of the Rules of the National Court. The plaintiff�s claim pleaded a police raid on a certain date which destroyed property and alleged negligence by the State. The defence made a general denial of paragraphs in the statement of claim without any reference to facts, but also specifically denied by asserting that the damage occurred in circumstances other than those alleged.

Held

N1>1.������ The defence did not merely plead the general issue.

N1>2.������ The defence was a pleading allowed by O 8 r 21 of the Rules of the National Court.

Cases Cited

Akipa v Lowa [1990] PNGLR 502.

Hornibrook Constructions P/L v Kawas Express Corp P/L [1986] PNGLR 301.

Counsel

D. L. O�Connor, for the plaintiff.

M. Pokia, for the defendant.

16 December 1994

WOODS J: The plaintiff has applied to strike out the defence on the grounds that the defence is too general, in effect that the defendant has pleaded the general issue, this being especially disallowed by Order 8 rule 28.

This submission requires a close look at O 8 rr 21, and 28.

Order 8

N2>Rule 21(2).���� A traverse may be either by a denial or by a statenment of non-admission, and either expressly or by necessary implication, and either generally or as to any particular allegation.

N2>Rule 28.�������� A party shall not plead the general issue.

These two rules have been discussed by Kapi DCJ in the cases: Hornibrook Constructions P/L v Kawas Express Corp P/L [1986] PNGLR 301 and Akipa v Lowa [1990] PNGLR 502.

In the Hornibrook case the Judge struck out the defence as in the circumstances of that case and on the pleadings the defendant has clearly made a general denial without reference to the facts pleaded, namely the reference to the contract the subject of the case. However in Akipa�s case the Judge went further into what is the general issue and referred to O 8 r 21(2) and said:

�I conclude from the cases I have referred to that pleading the general issue in defence is a plea which to use the words of Sugarman AP in the Rudenno case �merely state a conclusion from denials which are not stated�. For example; in an action for goods bargained and sold or sold and delivered, the plea in defence must deny the order or contract, the delivery or the amount claimed. To plead that the defendant �is not liable� or was �never indebted� is a conclusion which does not state the facts upon which such a conclusion is reached. However where the statement of claim pleads facts upon which the cause of action is based such as existence of an order or contract, the delivery or amount claimed in an action for goods bargained and sold or sold and delivered, a mere denial of these facts either generally or specifically is permissible under O 8 r 21(2) of the National Court Rules. Such a plea in my view does not offend O 8, r 28 of the Rules.�

In the case before me now the plaintiff has pleaded a police raid on a certain date which destroyed property and it is alleged that the State was negligent in supervising its officers.

In its defence the State says:

N2>2.������ The defendant denies paragraphs 4, 5, 6, 7, and 8 of the plaintiff�s satement of caim and says that the damages occurred in circumstances other than those alleged and that the defendant has no knowledge of the destructions alleged to be done by its agents or servants.

The defendant goes further than a general denial without any reference to facts but specifically denies by reference to the facts namely that it occurred in circumstances other than those alleged and denies the destruction alleged.

So the defence is clearly a statement of non-admission and by reference to the matters pleaded in the claim.

The defence is not therefore merely pleading a general issue within the meaning of r 28, but instead is pleading as allowed in r 21.

I dismiss the application.

Lawyer for the paintiff: D.L.O�Connor.

Lawyer for the defendant: Solicitor-General.