N11589
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
 
WS NO. 309 OF 2022

BETWEEN:
KEE BENG NG 
First Plaintiff   

AND:
KENNY PNG LIMITED
Second Plaintiff

AND
ANNETTE SETE
First Defendant

AND 
MAKU GIFTS LIMITED
Second Defendant

LAE: DOWA J
17 OCTOBER 2024; 14 NOVEMBER 2025

CIVIL PROCEDURE AND PRACTICE-pleadings in defamation proceedings

DEFAMATION – an attack on reputation and integrity by use of Facebook a social network – necessary to plead actual texts or extracts where there is direct defamatory imputations-where defamation action is based on legal innuendos; they be supported by particulars-plaintiff has burden of proof-failed to provide evidence that defamatory matter is false-that publication carry defamatory imputations

Held: 

Plaintiff failed to set out the text of the defamatory imputations and particulars-and failed to prove allegations on its merits as well-proceedings dismissed.

Cases cited
Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694
South Pacific Post Pty Ltd v Nwokolo [1984] PNGLR 38
Yooken Paklin v The State (2001) N2212
 Jonathan Mangope Paraia v The State (1995) N1343
 Samot v Yame (2020) N8266.

Counsel
K Kiendip, for the plaintiffs 
T.Waisi, for the defendants 

JUDGMENT

1.	DOWA J:	This is a judgment on both issues of liability and damages on allegations defamatory publication.

	Facts

2.  	The first Plaintiff is the owner of the second Plaintiff company. The Plaintiffs design materials and fabrics based on PNG cultural designs and concepts and sell products based on those designs in various shops in Lae and Port Moresby. The Plaintiffs source their products from local PNG artists under contractual arrangements and have copyrights for all artwork designs. 

3.	On 1st and 3rd February 2022, the first Defendant posted lengthy defamatory posts on Facebook accusing the Plaintiff of copyright infringements of Reggiana and Wanaku Designs. The Plaintiffs allege that the posts were defamatory and have injured their personal and business reputation, resulting in loss of income.

4.	The Defendants filed a defence denying liability. In particular, the Defendants pleaded that the statement of claim does not disclose a cause of action in defamation. 

Trial

5. 	The trial was conducted by tender of Affidavits. The Plaintiff tendered the Affidavit of Kee Beng Ng filed 22nd October 2022, Exhibit P1. The Defendant offered no evidence. Both parties presented their submissions thereafter with liberty granted to the Plaintiff to file written submissions within two weeks.

Submissions of Counsel

6.	Counsel for the Plaintiffs submitted that the posts on the Facebook were done with malicious intentions to be read by the public, consequently defaming the Plaintiffs. As a result, more than 300 responded and ridiculed the Plaintiffs. That the publications were unlawful and false and the Defendants offered no evidence to justify the defamatory publications.                                                 

7.	Counsel for the Defendants submitted that the Plaintiffs did not plead a cause of action in defamation and that the proceeding be dismissed on this ground alone relying on the Supreme Court authority in Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694.

Issues

8.	The issues for consideration are:

a. Whether the Plaintiffs pleaded a cause of action in defamation
b. Whether the Defendants are liable on the merits of the claim.

a. Whether the Plaintiffs pleaded a cause of action in defamation.

9.	The Defendants urged the Court to dismiss the proceedings for lack of proper pleading. Although the matter has gone past the pleading stage, it is an important competency issue that the Court cannot ignore once it is raised. The Plaintiffs will not be prejudiced as the Defendants have specifically raised the issue of lack of pleadings in the statement of Defence. The Plaintiffs did not take serious note of the Defence. The Court notes also that the Plaintiffs have not addressed the Court on the issue of sufficiency of the pleadings, even though the Court allowed them 14 days to file their submissions after the Defendants presented their submission.
 
10.	Defamation is a tortious action. The relevant law is the Defamation Act. Sections 2 and 3 are relevant and they read:

	“2. DEFINITION OF DEFAMATORY MATTER.

(1) An imputation concerning a person, or a member of his family, whether living or dead, by which –
 	(a) the reputation of that person is likely to be injured; or 
(b) he is likely to be injured in his profession or trade; or 
(c) other persons are likely to be induced to shun, avoid, ridicule or despise him, is a defamatory imputation. 

(2) An imputation may be expressed directly or by insinuation or irony.

(3) The question, whether any matter is or is not defamatory or is or is not capable of bearing a defamatory meaning, is a question of law.

 3. DEFINITION OF DEFAMATION. 
A person who – 
(a) by spoken words or audible sounds; or 
(b) by words intended to be read by sight or touch; or 
(c) by signs, signals, gestures or visible representations; or
(d) by use of electronic systems or devices, publishes a defamatory imputation concerning a person defames that person within the meaning of this Act.”

11.	Under section 2 an imputation concerning a person by which the reputation of that person is likely to be injured or where other people are likely to be induced to avoid or ridicule him is a defamatory imputation. Under section 3 a person is defamed when the defamatory imputation is published by either spoken or written words or by signs and gestures. Section 5 provides that it is unlawful to publish a defamatory statement unless the publication is protected, justified or excused by law.

12.	For defamation claims, the Plaintiffs are required to plead defamatory words published and the particulars of imputation pursuant to Order 8 Rules 29 and 84 of the National Court Rules.  Rule 84 is relevant, and it reads as follows:

		“84. Particulars; publications and innuendo (67/2) 

The particulars required by Rule 29 in relation to a statement of claim shall include—

(a) sufficient particulars of the publications in respect of which the proceedings are brought to enable the publications to be identified; and 

(b) 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.”

13.	Did the Plaintiffs plead a proper cause of action for defamation against the Defendants in accordance with Rules 29 and 84 of the National Court Rules. Did the Plaintiffs properly set out the defamatory words published and how they have injured or defamed them. 

14.	The Plaintiff pleaded in paragraph 9 of the statement of claim that defamatory words were published in the Facebook on 1st and 3rd February 2022 by the Plaintiffs against the Defendants.  Paragraph 9 is set out below: 
	
	“9. On the first of February 2022, and the 3rd of February 2022 respectively, the first Defendant posted two lengthy posts on Facebook, accusing the first Plaintiff of copying the designs of the Defendants and other PNG designers. The First Defendant accused the first Plaintiff in the social platform stating that he is ‘confusing and deceiving the market’ where these designs sell”

15.	Paragraph 9 is a summary and paraphrased statement. The texts or extracts or contents of the defamatory statements of 1st February 2022 and 3rd February 2022 were not set in the statement of claim. 

16.	It is also noted that the statement of claim does not set out particulars of imputations that are defamatory from the alleged publications. That is, for example, there is no specific pleading that the defamatory statements are understood in their ordinary and natural sense means that the first Plaintiff is a thief or a liar or conducts his business unethically or that others would shun or avoid or despise them. While paragraph 12 appears to contain some imputations, it is not clear whether these accusations are from the 1st February or 3rd February 2022.

17.	Furthermore, the statement of claim does not name the persons to whom the defamatory words were published except for a Facebook social media platform, although it is open to argument that it is addressed to those that subscribe to the Facebook social media platform. 

18.	Finally, the Plaintiffs did not plead in the statement of claim that the alleged defamatory publications were false and unlawful as prescribed in sections 5 and 24 of the Defamation Act

19.	In my view the statement of claim did not clearly set out a cause of action for defamation as required by Order 8 Rules 29 and 84 of the National Court Rules. I note the first Plaintiff annexed to his Affidavit extracts of the Facebook statements of 1st and 3rd February 2022. Should the evidence be allowed to make up for the lack in the pleadings. 

20.	The law on pleadings is settled in this jurisdiction by the Supreme Court in PNGBC v Jeff Tole (supra) and other cases, both the Supreme and National Courts that without a proper foundation in pleadings, evidence and reliefs shall not be allowed. 

21.	In PNGBC v Tole (supra), the Court said:

	” First Two Issues – Pleadings
	The first two issues are closely related. They involve the issue of pleadings so they are being dealt with together. The law on pleadings in our jurisdiction is well settled. The principles governing pleadings can easily be summarized in terms of, unless there is foundation in the pleadings of a party, no evidence and damages or relieves of matters not pleaded can be allowed. This is the effect of the judgements of this Court in Motor Vehicles Insurance (PNG) Trust v. John Etape [1995] PNGLR 214 at p.221 and Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370 at pp. 373 –374. These judgements re-affirmed what was always the position at common law and consistently applied in a large number of cases in our country. The list of such cases is long but reference need only be made to cases like that of Repas Waima v. Motor Vehicles Insurance Trust [1992] PNGLR 254 and Carmelita Mary collins v. Motor Vehicles (PNG) Insurance Trust [1990] PNGLR 580 at p. 582 for examples only.
	This position follows on from the objects behind the requirements for pleadings. As the judgement in Motor Vehicles Insurance (PNG) Trust v. James Pupune (supra) at p. 374 said in summary, pleadings and particulars have the object or functions of:
	"1. 	they furnish a statement of the case sufficiently clear to allow the 	other party a fair opportunity to meet it;
2.	they define the issues for decision in the litigation and, thereby, enable the relevance and admissibility of evidence to be determined at the trial; and
3.	they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. See Dare v. Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664."
	It is clear law that, where a plaintiff’s claim is special in nature, such as a claim for loss of salaries or wages, they must be specifically pleaded with particulars. Unless that is done, no evidence of matters not pleaded can be allowed and relief granted. That is apparent from the judgements in the James Pupune and John Etape cases. These cases adopted and applied principles enunciated in those terms in authorities such as Ilkiw v. Samuel [1963] 2 All ER 879, per Diplock L J at pp. 980-891 and Pilato v. Metropolitan Water Sewerage and Drainage Board (1959) 76 WN (NSW) 364, per McClemens J at 365. This follows in turn from the fact that, our system of justice is not one of surprises but one of fair play. Reasonable opportunity must be given to each other by the parties to an action to ascertain fully the nature of the other’s case so that, if need be, a defendant can make a payment into Court.”

22.	In South Pacific Post Pty Ltd v Nwokolo (1984) PNGLR 38, the Supreme Court held that:

(1)	In defamation proceedings based on a direct defamatory imputation or false innuendo the plaintiff was required in his statement of claim only to set out the words etc. upon which he relied and to ascribe to them what actual and ordinary meaning is placed upon them.
(2)	......
(3)	Under the Rules of the National Court 1983, O. 8, r. 84(b), true or legal innuendoes must now be supported by particulars within the body of the statement of claim itself.”

23.	In the present case, the Plaintiffs pleadings are not clear. If the claim is based on direct defamatory imputation as alleged, then those defamatory words needed to be set out in the statement of claim and ascribe to them what the actual and ordinary meaning is placed on them. This has not been done. If the claim is based on legal or true innuendos or insinuations it is necessary for the Plaintiffs to plead the particulars as required by Order 8 Rule 84 (b) of the National Court Rules which the Plaintiffs failed to plead.

24.	The lack of proper pleading makes it difficult for the opposing party to plead their Defence. This is exactly what happened in the present case. The Defendants explicitly stated in their Defence that the Plaintiffs failed to plead a proper cause of action in defamation. I reiterate that the Plaintiffs were put on notice by the Defendants in their Defence of the lack of proper pleading. The Plaintiffs had the opportunity to correct their pleadings. They chose not to improve on their pleadings. Even during the hearing, the Plaintiffs failed to respond to the submissions of the Defendants in respect of the issue of lack of pleadings. The onus is on the Plaintiffs to establish their claim based on proper pleadings. 

25.	In the end, I find that the pleadings are insufficient and fail to disclose a reasonable cause of action in defamation. There is no foundation in the pleadings for the Court to allow evidence and to grant the reliefs sought.  I am bound by the Supreme Court decision in PNGBC v Jeff Tole that where there is no foundation in the pleadings, no evidence and reliefs shall be allowed. 
 
26.	The result, the proceedings shall be dismissed for lack of proper pleadings.
	
b. Whether the Defendants are liable on the merits of the claim.

27.	Even if I am wrong about my conclusions in respect of the competency of the proceedings, I will also dismiss the claim on the merits. 

28.	The Plaintiffs rely on the affidavit evidence of the first Plaintiff. I have carefully perused the contents of the affidavit and note that the first Plaintiff did not expressly state that the defamatory matters published on 1st February and 3rd February 2022 were false and unlawful. In my view this is a notable omission. For a defamation claim to succeed, the Plaintiffs must expressly depose that the defamatory words published was false.

29.	Next, the first Plaintiff did not state clearly that the alleged defamatory publication carried any imputations. That is, the first Plaintiff did not state in his evidence what the alleged defamatory publication entails and to ascribe to them what the actual and ordinary meaning is placed on them. For example, he did not depose that by such publication, ordinary people will have a low opinion of him, or that he is a man without personal integrity or without business ethics, etc. 

30.	Although the first Plaintiff deposed the defamatory publication affected their reputation and business, he did not elaborate further the extent of the damage.

31.	One final matter. The allegations are made against the first Defendant only. There is virtually no allegations or evidence brought against the second Defendant.

32.	The burden of proving the claim rests on the Plaintiffs and they must discharge the burden on the balance of probabilities. Refer: Yooken Paklin v The State (2001) N2212,  Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.

33.	I am not satisfied that the Plaintiffs have satisfactorily discharged the burden of proof on the balance of probabilities. I find the Defendants are not liable and the proceedings shall be dismissed on the merits of the claim as well.

Costs

34.	The Defendants succeeded in defending the proceedings and shall be awarded the costs of the proceedings.

Orders

35.	The Court orders that:

1.	The Plaintiff’s proceeding is dismissed
2.	The Plaintiffs shall pay the costs of the proceeding to be taxed, if not agreed.
3.	Time is abridged.

Lawyers for the plaintiffs: Gamoga & Co Lawyers
Lawyers for the defendants:   Waisi Lawyers