Plaintiff v Alice [1997] PGDC 2; DC11 (28 February 1997)

Unreported District Court Decisions

[1997] PNGDC 16 - PLAINTIFF V ALICE

[1997] PNGDC 16

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

PLAINTIFF

V

ALICE

DEFAMATION - Qualified privilege defeated.

DAMAGES - Libel - Actionable PE SE.

It is not part of the Plaintiff’s case to establish the defendant’s statement was untrue.

Held

Written publication defamatory of the Plaintiff.

General Damage awarded.

Cases Cited

Rimbink Pato v Umbu Pupu Sc329 (unreported)

Wayne Cross v Wess Zuidema N642 (reported)

Baker v Lae Printing Pty Ltd (WS37 of 1978) (188) 13 App Cas. 222

Bourhil v Young 1994 SC395

Counsel

M.E. Negai, for the Applicant.

Defendant appeared in person.

FUNDAMENTAL FACTS

The Plaintiff made an allegation that a publication of statements in a letter dated 24 October, 1995  addressed to Mr Michael Kiwen was defamatory of her.

Mr. Michael Kiwen was the Assistant Secretary,  Division of Social Welfare.  At the time of the publication Mr Kiwen was away on Recreation Leave and knew nothing about it until he returned.  Mrs Julie Kai was then Acting Assistant Secretary of the Division when she received the letter from the Defendant.  The Defendant is and was the Catholic Youth Co-ordinator based in the diocese of Aitape and was appointed as a Chairman of the Provincial Youth Council in 1986.

The letter was written in pidgin dialect which reads:

“Dear Mr. Kiwen,

Diocesan Youth Co-ordinator Mr. Gerald Towun, ino amamas long we, pasin na toktok blong Mrs Frida Kambou, itok long mi long sarere de 07th long mun October, 1995 long Vanimo Air Link Office long 11.15 am.

Provincial Youth Council Fund

Mr. Michael Kiwen, wanem disisin yu bin wokim long Frida Kambou, long bekim moni bipo em I yusim nating emi mas bihainim, sopos emi no bihainim em I bilong onem? Mi tokim yu stret nau, wanem samting yumi bin pasim long taim bilong miting, emi samting bilong miting: maski long pulim ol toktok igo nambaut long olgeta hap.

Mi lik lukim olgeta Divicen bilong Social Service Officer, oli mas wok bung wantaim na oli mas wokim ol gutpela programme long ol yangpela yut or women, sport, an welfe bilong ol gen kamap gut insait long province.

Long namba 2th igo inap 10th October, 1995 Mrs Kambou in bin wok long Youth Office, planti ol wok bilong yut i paul nambaut na mi bin painim hat tru.

Nau mi askim yu long tokim Mrs F Kambou, emi gat bigpela tingting long wok yet wantaim mipela long provinces or emi les long wok wantaim mipela, sopos emi less orait emi mas pinis nau long office na igo marit na lukautim ol famili long haus.

Tenk yu tru

Mr Gerald Towun

PYC Chairman

Diocese Catholic

Youth Co-ordinator

Aitape

Sandaun Province.”

Mrs Freda Clara Kambou during the time of publication was a public servant employed by the Department of West Sepik as a Community Development Officer Grade 2.  She was made a permanent officer of the Department on the 8th August, 1974.

Between 30th May and 19th June, 1994  the plaintiff conducted a Provincial Youth Workshop.  For the purpose of conducting that workshop she was authorised by the Division of Social Development to use about Seven-Thousand-Five-Hundred-Kina  (K7,500.00).

After the workshop she furnished an acquittal to the Department of Finance in Vanimo as is the case with all Government Departments after committing public funds for official purposes.  Some shortfalls were discovered by the examiner from the acquittal.  The plaintiff’s  own affidavit at p.8  did not state the actual figure of the shortfall nor were there evidence from Mrs Julie Kai and Mr Michael Kiwen in that regard.

No evidence were called to interpret the two acquittals dated 20th June,  1994 to illustrate what they mean or supposed to mean.

KEY ISSUES

N1>1.       Is the letter by Mr Gerald Towun dated 24th October, 1995 defamatory of the plaintiff?

N1>2.       Is the defendant privileged in writing the letter?

N1>3.       Are the comments actuated by malice?

N1>4.       Is the Plaintiff’s action justified and the comments he made fair comments?

LAW

The Law of Defamation firstly seeks to protect a person’s  reputation.  Accordingly to the common Law principles,  defamation consist of false statements made by the defendant which injures the plaintiff’s  honour and reputation:  Baker v. Lae Printing P/L (W.S.  37 of 1998).

A person may be defamed by either spoken or written words or by some conduct of the defendant. (Ibid.) 

Defamation is of two kinds, namely, libel and slander.  It is said that the former is addressed to the eye and the latter to the ear.(Ibid.)

To be accurate, libel has a permanent form, whereas slander has a transitory form.  In libel, the defamatory statements are conveyed by writing,  pictures,  printing or drawings.  On the other hand, in slander it is conveyed by spoken words or other transitory forms such as gestures,  actions and signals.(Op cit.)

Libel and slander are governed by the same principles.  However,  the important distinction between the two is that, libel is actionable pe se, without proof of damage, and is both a crime and a tort; slander, on the other hand, is neither actionable pe se nor is it a crime. (Ibid.)

What is defamatory is defined in s.2 (1) of the Defamation Act, Ch. No. 293, in the following words:

“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

(c)      other persons are likely to be induced to shun, avoid, ridicule or despise him is a defamatory imputation.”

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: ss 2(2).

Section 3 spells out the definition of defamation which states:

“A person who:

(a)      by spoken words or audible; or

(b)      by words intended to be read by sight or touch; or

(c)      by signs, signals, gestures or visible representations,

publishes a defamatory imputation concerning a person defames that person within the meaning of this Act.”

Section 5 makes it unlawful to publish defamatory matter unless the publication to be protected,  justified or excused by law is again a question of law.  I will come to them later when I discuss the defences. In the meanwhile, let me say at the onset that our law of defamation is based on the Queensland model.

The Act deals with almost all the aspects of Criminal and Civil Defamation.  Here I am concerned with Civil Defamation only. The Common Law principles governing the tort of defamation are relevant only to explain ambiguities and as a guide to the understanding of the analogous principles mentioned in the Act.

This undoubtedly is a case of Libel or defamation by Libel because the information conveyed to Mr Michael Kiwen about the Plaintiff takes a permanent form in a written document.  As such it is irrelevant or inappropriate to compile list of damages or proof of damages.  An action in Libel is actionable  PE SE.  That is where a party or a plaintiff substantiate a cause of action in a defamatory matter and the Court is convincingly satisfied on the balance of probabilities it should proceed to determine damages according to the merits of the case based of course on the materials available in court.

In consideration of this case,  I am reminded also of the fact that even if this suit is proven to be what the plaintiff claims  the award of damages is solely the prerogative of the Court based on the decided principles taking into account of the proofs adduced.  I am not trying to say that in assessing damages the court should totally brush aside what may come in a form of material evidence.  The discretion to award damages is and should be a judicial discretion as oppose to personalised discretion.

Here I must honestly admit that I ran into some considerable pains in analysing various documents relating to the statement of claim and the defences filed by the parties.  This case is quite unlike most cases that I have done,  but this is a case where I am required to rely heavily on points of law in order to ascertain from the content of the letter whether it lawfully gives rise to defaming the plaintiff which injures her honour,  reputation and feelings.

Taking into account the dates in which the plaintiff told the defendant at the Airport on 7th October, 1995  that she would summon him to court.  In consequence of what had happened transpired at the airport actuated the publication of the letter addressed to Mr. Michael Kiwen.  Mr Towun’s  own evidence in-chief on 28 February, 1997  virtually supported the contention that he wrote the letter to her boss because after it has been settled,  Mrs Kambou got crossed at me on  7th October 1995  at  11.15 am.  She wanted to summon me.  So I went to Aitape and wrote a letter to her boss and outlined my worry and hers so the boss can settle it.  I do not find this statement compatible to the content of the letter.  There is nothing which sounded like outlining his worries and hers to Mr Kiwen.  He was most evasive when cross examined by Mr Enda and did not answer accurately to the questions put to him.

Here are the extracts from the record of cross-examination:

Cross-Examination

N2>Q.       What amount are your referring to?

N2>A.       I referred to K8,000.00 for 16 youth leaders who spent it in one week.

N2>Q.       Are you sure it is K8,000.00?

N2>A.       Yes, that belong to the office to settle.

N2>Q.       Is it K8,000.00 or K7,000.00?

N2>A.       I signed the withdrawal form.

N2>Q.       Who else signed the withdrawal?

N2>A.       Michael Kiwen - he looks after the paper work.

N2>Q.       Peter Simbi and Michael Kiwen signed it, not you?

N2>A.       True.

N2>Q.       What was the purpose of your letter, about what?

N2>A.       I told her, it is an official matter to bring it to the administration to determine.

N2>Q.       Your letter talked nothing about the incidence at the Airport, but about something else, true?

N2>A.       Not true.

N2>Q.       In your letter of 25th October, 1995, did you say something about working together with the officer?

N2>A.       Paragraph 2 referred to that.

N2>Q.       You gave a copy of your letter to Bishop in Aitape, true?

N2>A.       Yes, he is my boss.

N2>Q.       How many people have access to the file?

N2>A.       It is the Bishop’s property.

N2>Q.       Which money did Mrs Clara Kambou use for nothing?

N2>A.       K6,000.00, there was record, K2,000.00 was in question.

N2>Q.       Any proof to that effect?

N2>A.       It is the duty of my officer to verify.

N2>Q.       What role of the youth was not in order?

N2>A.       I pointed it out to the boss to take note.  It is the Provincial level matter.

No other questions.

Signed.

Gerald Towun.

The defendant persistently argued that the letter was an official letter and as a Chairman of the Provincial Youth Council he is authorised to make such publication.  He is in effect seeking protection under s.11 of the Defamation Act  (ch. 293)  as an official matter and in his capacity as a Chairman of the Provincial Youth Council.

The subject heading of the letter very concisely refers to the incidence of  7th October, 1995  at Air Link Office in Vanimo.  But the body of the letter is the complete opposite nor is it suggestive of the defendant’s  oral evidence of 28th February, 1997.

Consistent with my findings,  I am satisfied that the words used by Mr Towun in the first paragraph of his letter are capable of bearing the imputation that the plaintiff used the money for purposes not intended for or that she misappropriated it for her own personal gain which she must make it good from her own pocket.

I am further satisfied that the words in the third paragraph of the same letter are capable of bearing the imputation that Mrs Clara Kambou  (plaintiff)  has not been consistent and faithful worker in the office of the Youth Affairs as the result the work of the Youth are not in the expected order which the defendant found it difficult.  The letter did not clarify what in particular were not in order.

I am satisfied also that the last paragraph leads to imply that the plaintiff has been lazy and not attending to duties well that suggested her to resign from her employment.

The publication had purported to revive a dead issue,  a year after it was already settled.  Mr Michael Kiwen summed it all when he said in the evidence in-chief that when I resumed,  there were questions about the acquittal of the money used in the Youth Workshop.  I saw questions from the Finance.  I called Mrs Kambou,  Mrs Kai and Gerald to tell them about a query from the Finance Department.  I told them it was now an administrative matter. It was already settled.  A year after,  in about mid October, 1995,  the matter came up again from the letter.  So I then knew there was such a letter.

I have reached the conclusion that when Towun made the defamatory communication to Mrs Clara Kambou through Mr Michael Kiwen he was not acting in good faith.  He was not using the occassion for the benefit of the youths,  Mrs Kambou or himself,  but in the exercise of some animus against the plaintiff.

The defendant abused the purpose of the privileged,  because he did not act in good faith for the purpose of protecting the interest for which the privilege is given,  then he destroyed it.  Even though the defendant did believe his statement to be true,  this court is satisfied that his dominant motive was an improper purpose and so that privilege is lost.  He did not use the occassion in accordance with the purpose for which the occassion arose.  The letter was written with malicious intention and actuated by the airport incidence.

For purposes of justification,  there is no part of the plaintiff’s  to establish that the defendant’s  statment was untrue:  The plaintiff has merely to prove the publication of a statement defamatory of her.  If,  however,  the defendant can prove that his statement is true he has a complete defence.

I now come to the final leg of my reasoning.  That relates to award of damages.  As I have indicated,  an action in Libel is actionable  PE SE.  That is without proof of damages.  The court may make an order according to the seriousness of the defamatory statement.

DAMAGE

The Complainant claims:

ble>

class=BodyP1>She is claiming in total a sum of Seven-Thousand-Four-Hundredndred-and Eighty-Six-Kina (K7,486.00).

Distress, Depression and mental anguish are all related I think to injury to nervous system or emotional stress.  This case is no different to other cases requiring the proof of damages[i]1.

In spite of the lack of proof adduced by the plaintiff to substantiate her claims there is also a difficult problem of proving a casual link between the conditions of her claim and the defendant’s  defamatory remarks.  If claims for mental injury were allowed the difficulty which often exists in the case of alleged physical and mental injury of determining whether it was caused by the defamatory act would be greatly increased,  and a wide field opened for imaginary claims.

If every plaintiff who establishes he or she has suffered distress, depression and mental anguish as a result of the defendant’s action can recover damages, there is the danger of a never ending chain of actions.

Influenced by the problems referred to above,  I have decline to treat claims relating to distress,  depression and mental anguish in quite the same way as regular claims for physical  injuries,  because the Counsel for the plaintiff has chosen not to deliver arguments as to the precise scope of legal liability of the defendant particularly in cases of defamation.

The two cases cited to me by the learned counsel for the plaintiff who made references to  Rimbink Pato  v.  Umbu Pupu,  an unreported Supreme Court Case No. 329  and  Wayne Cross  v.  Wess Zuidema,   an unreported Case No. N.642  were of little value which have the effect of illustrating what relevant principles that I ought to dwell upon.  Having being placed in an handicap position,  it is only fair when confronted with the problem of this kind to do my own research from whatever little materials I can lay my hands on to better equip my mind to deliver my findings on Law at least to the best of the little knowledge I have.  I have to do this which I have done for the sake of fairness and justice to the parties.

Accordingly, I think an award in the region of One-Thousand-Kina to the plaintiff as a general damage would be in my view reasonably proper in the given circumstances.

As to the question of cost,  I order that the cost be in the lost.

Solicitor for the Applicant:  Negai Lawyers

Solicitor for the Defendant:  In Person

N1>[i]1 Street on Torts (9th Edition) p.442.