Tala v Apu [2000] PGDC 49; DC354 (13 November 2000)

DC354

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 180 OF 1998

BETWEEN

James Tala
Complainant

V

Ope Apu
First Defendant

Bromely & Manton P/L
Second Defendant

Mt. Hagen: Appa, P.M.
2000: 13th November

JUDGMENT

The complainant is claiming damages for an alleged defamatory matter published or uttered by the first defendant being an employed of the second defendant.

It was alleged that on or about 04th of January 1998 the first defendant had asked the complainant to be transferred to Kundiawa and transfer took effect the next day without conducting save balance during the hand over takeover by agreement.

Some three days later the complainant was recalled to Mt. Hagen for reason that there was some money went missing from the save. The amount allegedly went missing was K5,700.00. The first attendant then blamed the complainant and he reported to Police and police charged the complainant for stealing.

He appeared before the Mt. Hagen District Court (committal) and eventually the case was thrown out or struck out due to lack of evidence.

The complainant accused the defendant for referring him to the Police and for treating him a thief whereby he claimed his reputation was tarnished. He claimed that during his appearances in court and the fact of the news spread among other employees of the second defendant and the public, he was thought of being of a bad or evil character and his leadership qualities and future prospect of employment were lost or questionable.

In defence, it is submitted that for public policy reason the claim be dismissed.

After considering the whole evidence, I find that as far as the second defendant is concerned there could be a defamation case against it. People are and should feel free to lodge complaints with police and its up to the police to investigate and if found there was sufficient prima facie evidence they make arrest and lay charges. If however, police found no evidence or fact but went ahead and made arrest and laid charges for other reason, the acquitted person could sue the police and State.

Complainant’s lawyer Mr. Bonggere then ceased to act) did indicate his intention to file proceeding in the National Court and this proceeding had been adjourned sine die but nothing eventuated so after six months delay it was reactivated.

I further find from the evidence that in defamation case, the second defendant cannot be held liable for the actions of its employees negligent in duties outside the people of employment or could sanction its employees to gossip or to spread false rumours about fellow employees. If the complainant was entitled to any damages it had to be a personal ground.

There is sufficient evidence that the first defendant was careless or negligent in not requiring the conduct of save balance at the hand over take over. The complainant said he did ask for that but first defendant trusted him and agreed not to do so. If there was anything missing from the save, it was the responsibility of the first defendant since he was the last person to have had access to the save key.

He also failed to comply with the normal (company) handover takeover procedures. I find that because of the first defendant’s negligent act the complainant was made to suffer the consequences which is the basis of this proceeding.

I therefore find that the first defendant is personally liable for this action.

On quantum, the complainant claims K10,000.00 in damages including loss of earnings. It is often difficult to place monetary value on defamation action but it really depends on extend of publication and seriousness of the damages complained of.

There was cross section of communities who learned of the allegation and who knew the complainant filled affidavits to say they thought less about the complainant as a dishonest person. Previously he was regarded as a leader and honest person.

I consider a global figure of K3,000.00 as being not too unreasonable. The complainant is also entitled to recover his cost of this proceeding from the first defendant. I allow interest at 8% to run from date of summons to judgment date which is a period of two years and 3 months which is about K500.00.

I enter judgment for the complainant for a sum of K3,500.00 plus cost yet to be assessed. The judgment debt is to be paid by the first defendant within 30 days from the date of service of the order.

Bonggere & Co. Lawyers: Complainant
Warner Shand Lawyers: Defendant