Mathias v Justin [2011] PGDC 7; DC1062 (26 January 2011)

DC1062

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL (GRADE FIVE) JURISDICTION]
GFCi 107 of 2010

BETWEEN

SHARON MATHIAS
Complainant

AND

OXY JUSTIN
Defendant

Goroka: G.Madu

2010 : October 4, 25 November 17
: December15
2011 : January 26

CIVIL LAW – Cause of action – Defamation – publication – written letter
circulated – claim for damages - Ex parte hearing – damages awarded.

Cases Cited :

Wayne Cross –v- Wess Zuidema [1987] PNGLR 361.
Theresa John Baker –v- Lae Printing PTY ltd [1979] PNGLR 16.

References :

Nil

Counsel
Sharon Mathias, In Person for the Complainant
Nil Appearance, for the Defendant
26 January 2011.

REASONS FOR DECISION

G Madu,PM . : In this action Sharon Mathias claims against the defendant Oxy Justin a sum of K10,000.00 in damages for making defamatory remarks towards the complainant . It is claimed that the defendant in a letter dated on 8th October 2009 to the Provincial Education Advisor EHP falsely and with intention to discredit and tarnish the reputation of the complainant accused her of misusing more than K1000.00 of his money through her position as the Flexible Open & Distance Education ( FODE) Tutorial Program Co-ordinator. The letter also carbon copied to the FODE Co-ordinator, the Chairman of the Provincial Education Board as well as the complainant herself , read in part; “ Firstly, Ms Mathias lacks work ethics”. “Ms Mathias normally cashes my cheque at the bank. She then uses some money without my approval by giving her personal reason for the purposes as well as personal usages. By doing so she has misused more than K1,000.00 which is rightfully mine”.

The complainant claims that the defendant without substantiating the allegation has grossly tarnished and tainted the professional and personal reputation who is also the UNICEF Education representative in the Province entrusted with financial management of the UNICEF programs. The complainant as a result has suffered embarrassment, ridicule and anxiety and seek damages.

EX-PARTE HEARING

The case was first mentioned on 4th October 2010 and both parties made no appearances although affidavit of service was filed. The case was again mentioned on 25th October 2010 and the complainant was present whilst the defendant did not appear. The Clerk of Court issued a notice and the case was set for ex-parte hearing on17th November 2010 and the complainant was directed to file an affidavit which she did. The case was then further adjourned to 15th December 2010 for decision but was further adjourned to 26th January 2011 for decision. The defendant is well aware of this case because several notices were served on him but failed to appear in person in court. The defendant failed to file his defences and particulars of defence. He also did not file his affidavit in support of his case. The court under s.142 of the District Court Act proceeded ex-parte to hear the case.

COMPLAINANT’S EVIDENCE

The complainant in her affidavit evidence deposed that she is an Educationist by Profession and is currently the Flexible Open & Distance (FODE) Tutorial Coordinator of the Eastern Highlands Province. She is also the UNICEF representative in the province and also in charge of the UNICEF Child Friendly School Program and oversees the financial management of annual monetary grants that the United Nations HQ in New York, USA provides under its international children’s programs to the province.

On the 27th May 2008 the defendant who was a casual staff member was terminated from his employment for reasons of insubordination, abuse of position and privileges and unlawful

However soon after his termination, the defendant has continuously harassed, threatened, intimidated, disturbed and prowled the complainant at her work place, on streets and at her residence. The defendant even caused disturbances to other FODE staff as well as students during tutorial periods and working hours. A court order is now in force restraining the defendant from his arrogance.

As part of his vengeance towards the complainant the defendant wrote a defamatory letter dated 8th October 2009 addressed to the Provincial Education Advisor Mr. Condrad Esoke and a carbon copy to the Chairman of the E.H. Provincial Education Board, the FODE Coordinator and the complainant. The letter is attached and marked “annexure B”

In the letter the defendant accused complainant of misusing or stealing more than K1,000.00 of the defendant’s money in her official capacity. The two page letter read in part; “Firstly Ms Mathias lacks work ethics”. Ms Mathias normally cashes my pay cheque at the bank. She then uses some of my money without my approval by giving her reason been for the program purposes as well as personal usage. By doing that she has misused more than K1,000.00 which is rightfully mine. I have with me all the cheque butts to justify this claim”.

The complainant deposed that the tone of the defendant’s letter implies the following:

• she lack work ethics or do not know about performing her job, especially the working culture.
  
• That she normally cash the defendant’s pay cheques and use some of the money that she cashed or give reasons regarding her usage of the monies.
  
• That she had misused more than K1,000.00 of the defendant’s money, which the defendant had cheque butts to justify his claim against her.
  

The complainant deposed that the accusations has very negative implication and bearing on her as it has tainted and tarnished her reputation and professional job or position held both in the Government and her role with UNICEF.

The complainant further claimed that she has been perceived by her superiors and other fellow officers to have actually embezzled monies she has been entrusted to manage as part of her professional duties.

The complainant deposed that the defendant should have proven his accusation before promulgating such very sensitive and personal vendetta – related accusation against her but up to now the defendant has not proven this allegation with proof of cheque butts. The complainant claims she has bank statement to disprove the defendant’s allegation is not true and is baseless but pure vengeance.

The complainant deposed that the Provincial Education Advisor based on the defendant’s allegation had been continuously getting on her to refund the defendant’s money. Even the Goroka CID threatened to investigate the complainant should she fail to repay defendant’s money.

The complainant claims that as a result of defendant’s false accusation the complainant has suffered from embarrassment, shame, psychological trauma and anxiety and claims damages against the defendant.

Having considered the evidence from the complainant and the content of the letter there is no doubt that the defendant Oxy Justin did publish the letter by circulating the letters to complainant’s superior and that the letter had defamatory imputations.

The defendant has not come to court to give evidence to support that what he wrote in the letter were the truth of what actually happened and that the complainant was actually involved. In the absence of the evidence from the defendant I find on the balance of probabilities the letter did contained defamatory imputations of the complainant. Further the evidence has been disclosed that the Provincial Education Advisor has been pestering the complainant to refund the defendants money and that there were threat issue for the matter to be referred to CID. I all probability this evidence show that the complainant has suffered mental stress and find the defendant liable for defaming complainant’s character and reputation.

DAMAGES.

Complainant claims damages in the sum of K10,000.00 which is within this court’s jurisdiction. There are no set figures by the courts as a guide to assess damages. It will be based on good judgement by the court and considering the nature and seriousness of the complaint. I intent to used as a guide the following two cases. The first one being Theresa John Baker –v- Lae Printing Pty Ltd [1979] PNGLR 16. In this case the defendant published the defamatory statement in one of the national newspaper in which he described the plaintiff as a “revolting creature....” and the National Court awarded K6,000.00 as damages against the defendant. In the second case of Wayne Cross –v- Wess Zuidema [1987] PNGLR 361 the defamatory letter was written by defendant to the plaintiff and stated that he was using “Mafia tatics”, was copied and circulated to other people. The National Court awarded K4,000.00 damages against the defendant. The two cases mentioned are similar to the instant case. I am of the view that the nature of this cases is serious. In the light of the cases cited, I award damages in the sum of K8,000.00 to the complainant

Orders Accordingly

_____________________________
Lawyer for the Complainant Sharon Mathias In Person
Lawyer for the Defendant Oxy Justin Nil Appearance