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Tongayu v Gubon [2012] PGNC 184; N4873 (7 September 2012)

N4873

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

W.S. NO. 548 OF 2011

BETWEEN:

ALEX TONGAYU
Plaintiff

AND:

FLORIAN GUBON
Defendant

Waigani: Kariko, J
2012: 12th April & 7th September

PRACTICE & PROCEDURE – CIVIL JURISDICTION – Claim for libel - Application to dismiss under O12r40 National Court Rules

PRACTICE & PROCEDURE – CIVIL JURISDICTION – Application to dismiss claim for failing to reply to a defence

Facts:

The defendant applied for dismissal of the proceeding in which the plaintiff alleges libel by the defendant in publishing a defamatory letter concerning the plaintiff.

Held:

(1) Summary disposal of a proceeding pursuant to Order 12 r40 of the National Court Rules does not apply to proceedings for libel.

(2) Order 8 rule 22(1) of the National Court Rules provides that where no Reply is filed, there is an implied joinder of issue on the Defence.

(3) Applications to dismiss refused.

Cases cited:

No cases cited in this judgement

Counsel:

No appearance for the plaintiff
Mr J Poiye, for the defendant

7th September, 2012

1. KARIKO, J: In this suit the Chairman of the Securities Commission of Papua New Guinea, Alex Tongayu alleges libel by the defendant Florian Gubon for publishing a defamatory letter concerning Mr Tongayu.
   
2. Dr Gubon has filed a notice of motion seeking to dismiss the proceeding on two grounds:
   
   • (a) That pursuant to O12 r40 of the National Court Rules, it does not disclose a reasonable cause of action, it is frivolous and vexatious, and is an abuse of process.
     
   • (b) That the plaintiff did not file a Rely to the Defence within the prescribed time under O8 r5(1) of the National Court Rules.
     

Application to dismiss – O12 r40

3. In respect of the first part of the application to dismiss, Dr Gubon filed an affidavit in which he asserts that the alleged defamatory letter:
   
   • Was not intended to defame the plaintiff's character or reputation in public;
   • Was not intended for public consumption;
   • Was not published to any member of the public;
   • Does not contain any defamatory words or statements.
     

Dr Gubon also states that he should have been given the opportunity to apologise under section 25 of the Defamation Act.

4. These are clearly matters Dr Gubon may raise in defending the claim against him and he has in fact pleaded them in his Defence.
   
5. In my view, the Statement of Claim discloses a reasonable cause of action and I do not consider the proceeding as frivolous and vexatious nor is it an abuse of process.
   
6. In any case, O12 r40 cannot be applied as it is found under O12 Division 4 – Summary Disposal and O12 r 37(a) clearly states that this Division does not apply to proceedings for libel.
   

Application to dismiss – Failure to file Reply to a Defence

7. Dr Gubon also argued that the Writ of Summons should be dismissed for failure of the plaintiff to file a Reply to his Defence.
   
8. This argument is misconceived as O8 r22(1) provides that where no Reply is filed, there is an implied joinder of issue on the Defence.
   

Orders

9. In the circumstances, I order as follows:
   
   1. The defendant's notice of motion filed 21st September 2011 is dismissed.
      
   2. Costs shall be in the cause.
      
   3. The matter is adjourned to 23rd August 2012 for directions hearing.
      
   4. The parties shall consider consent directions for the court's endorsement on the return date.

___________________________________________________

Elemi Lawyers: Lawyer for the plaintiff
Gubon Lawyers: Lawyer for the defendants