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Telikom PNG Ltd v Newsat Ltd [2007] PGNC 159; N3450 (7 May 2007)

N3450

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1644 OF 2006

TELIKOM PNG LIMITED
Plaintiff

AND

NEWSAT LIMITED
Defendant

Waigani: Cannings J
2007: 25, 26 April, 7 May

RULING

PRACTICE AND PROCEDURE – National Court – leave sought to file amended defence – National Court Rules, Order 9, Rules 51 and 52.

Telikom is suing Newsat, seeking injunctions and declarations on the ground that Newsat is providing telecommunications services in PNG contrary to the Telecommunications Act 1996. Newsat filed a defence within the time permitted by the National Court Rules. It now seeks leave, the pleadings having closed, to file an amended defence.

Held:

(1) Leave to amend a defence should be refused if the draft defence is so vague and lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified.

(2) That is the case here. The vagueness and ambiguity of the defence cannot be cured by a request for particulars.

Cases cited
No cases are cited in the judgment.

NOTION OF MOTION
This was a motion seeking leave to file an amended defence.

Counsel
C Scerri QC, I Molloy and A Mana, for the plaintiff
D Cooper SC, G Poole and T Imal, for the defendant

7 May, 2007

1. CANNINGS J: Telikom is suing Newsat, seeking injunctions and declarations on the ground that Newsat is providing telecommunications services in PNG contrary to the Telecommunications Act 1996. Newsat filed a defence within the time permitted by the National Court Rules. It now seeks leave, through a notice of motion filed on 19 April 2007, to file an amended defence.

2. It needs leave as the pleadings having closed and the case does not fit into any of the situations prescribed by Order 8, Rule 51 of the National Court Rules (amendment of pleading without leave).

WHAT CHANGES DOES NEWSAT WANT TO MAKE TO ITS DEFENCE?

3. They want to maintain their existing defences but add two entirely new ones:

• that the Telecommunications Act 1996 and two other laws are unconstitutional;
  
• that the regulatory contract entered into between Telikom and ICCC, which gives Telikom the exclusive right to operate as a general carrier under the Telecommunications Act 1996, is void and of no effect due to its inconsistency with that Act and the Independent Consumer and Competition Commission Act 2002.
  

SHOULD THE FIRST SET OF AMENDMENTS BE ALLOWED?

4. No. I dealt with practically the same issue in related proceedings WS No 1350 of 2006, in which Newsat is suing Telikom for breach of contract. I upheld a motion by Telikom to strike out the part of Newsat’s statement of claim, which raised the same sort of constitutional issues they want to agitate through their amended defence. I held that the claim was too vague and lacking particularity to disclose a cause of action.

5. Newsat’s motion for leave is the other side of the same coin. Leave to amend a defence should be refused if the draft defence is so vague and lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified. That is the case here. The vagueness and ambiguity of the defence cannot be cured by a request for particulars. Newsat is seeking to raise constitutional issues and a party wanting to do that must do so with care and precision.

SHOULD THE SECOND SET OF AMENDMENTS BE ALLOWED?

6. No, for similar reasons as for the first. The second set of amendments does not raise constitutional questions, as such. But it is still very vague, leaving the plaintiff, Telikom, guessing as to what the defence is.

7. Order 8, Rule 27 of the National Court Rules allows the court to strike out a defence or part of a defence if it does not disclose a reasonable defence. The proposed amendment is not disclosing a reasonable defence. It is too vague. Therefore, I will not allow the amendment.

ORDERS

(1) Leave to file an amended defence, per the notice of motion filed on 19 April 2007, is refused.

(2) Newsat shall pay Telikom’s costs on a party-party basis, to be taxed if not agreed.

(3) The time for entry of this order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Ruling accordingly.

Allens Arthur Robinson: Lawyers for the plaintiff
O’Briens Lawyers: Lawyers for the defendant