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Mumunipa v Makele [2005] PGDC 49; DC224 (24 August 2005)

DC224

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 17 OF 05

Lawson Mumunipa

V

Vincent Makele

Lae: M. M. Pupaka
2005: 24th August

Civil proceedings – Defamation case – Need for particularization of claim – Direction for particularization of claim stating the nature and extend of the defamatory utterances, manner and circumstances of publication and the nature and extend of injuries suffered not complied with.

Practice and Procedure – Un represented parties – Circuit case – Direction for particularization & presentation of affidavit evidence etc – Parties seemingly given little time to comply with directives – Real likelihood of prejudice to un represented parties apparent – Serious issues for trial – In the interests of justice the complainant ought to be granted leave to issue properly pleaded fresh proceedings.

24th August 2005

M. M. PUPAKA: This is the other of two defamation cases reserved for disposal by this Court during the two-week circuit that commenced on 15th August 2005.

Like in the other matter the cause of action in this was also not pleaded and particularized properly. The nature and extend of the defamatory utterances, manner and circumstances of publication and the nature and extend of injuries suffered were only generally pleaded. Further the defendant had not sufficiently or at all traversed the allegation of defamation. He too had only merely pleaded a general denial. He also did not seek particularization of the complainant’s claim in light of the ambiguous pleadings but instead was quite prepared to allow the matter to proceed to trial on the general issue.

The matter was adjourned to the 22nd of August 2005 for hearing, and for the convenience of all concerned and for the speedy conclusion of the matter, I directed that the parties filed evidence by way of affidavits. The parties have each filed an affidavit. They are both not represented by council.

The case was not ready for hearing at the 15th August call-over. Nevertheless a date for hearing was fixed. However it was necessary then to direct that particulars of the claim including the nature and extend of the defamatory utterances, manner and circumstances of publication and the nature and extend of injuries suffered to be filed and served. Further, as alluded to above, the parties were directed to file their evidence by way of affidavits. This Court is on circuit and as the resident Principal Magistrate cannot hear this particular matter, this Court must deal it. Toward that end and also to shorten hearing time and ensure that an outcome /decision is ready by circuit’s end, the direction for filing of evidence in the form of affidavits was considered imperative at the time.

However it has now become clear the parties, unrepresented as they are; would be greatly prejudiced. The directions of the Court, well intentioned and altogether quite appropriate as these were, have confused and unduly pressured the parties. For one they have not been given sufficient time and opportunity to perhaps seek professional advice and prepare and file the materials directed to be filed. Further, due to the shorter time frame there is a sense of manifested unfairness evident.

The case, especially given its current form of pleadings, ought not to be allowed to progress to trial. The pleadings need to be amended to reflect the actual defamatory utterances and circumstances and instances of publication.

There are no real prejudices against the defendant apart from the inconveniences caused and perhaps the costs. However these considerations are shadowed by the seriousness of the level of defamation asserted. As it is, though he has filed and served a defense, the defendant has not adequately traversed the allegations, as much as he could do so at this still early stage, such as to have the benefit of the doubt.

All things considered, in all the circumstances of this case, it is only fair to strike this proceeding down with directions that the complainant issue fresh proceedings in the manner explained to him by the Court. I must order so accordingly. Not much cost seems to have been incurred thus far by either side so I make no orders as to costs. However I must order that the costs of these proceedings necessarily become costs in the fresh proceedings that are to be issued in compliance with the terms of this ruling.

So ordered and entered under my hand this 24th day of August 2005.

M. M. Pupaka
Principal Magistrate