Anton v Tiki [2016] PGDC 30; DC3054 (19 October 2016)

DC3054

PAPUA NEW GUINEA
[In the District Court of Justice]
[Sitting in it’s Civil Jurisdiction]

GVC No: 8 of 2016

Between:

CHRISTINA ANTON

-Complainant-

And:

MARIA TIKI
- Defendant-

Kundiawa: B. Tanewan - Magistrate

2016: 9^thSeptember, 27^th September & 19^th October

Defamation – Claim for damages arising out of use of defamatory comments – words uttered in Chinese vernacular amongst Papua New Guineans

Defamation Act - sections 2 – Definition of defamation - Section 3– Defamatory matter

Practise & Procedures – Issue of whether comments were defamatory in nature or not- Definition of defamatory matter- defamatory comments –comments did not amount to a defamatory matter – matter dismissed in its entirety

Legislations

Defamation Act, 1962

Cases Cited

Green & Co Pty Ltd (Receiver Appointed) v Roger Britain Green [1976] PNGLR] 73

PawaKombea v. Semal Peke [1994] PNGLR 572

Wyne Cross v. WessZudema [1987] PNGLR 361

DECISION

INTRODUCTION

TanewanM:This is the ruling on liability on a claim for damages for defamation under theDefamation Act.
BRIEF FACTS

The Complainant, Christina Anton filed proceedings on 29^th March, 2016 following claims that the Defendant Maria Tiki defamed her character when she uttered the words “ Yu kaikaikanblo mama bloyu” directing these words towards her.
The Complainant alleges in her Complainant that these words were said to her since 2013 up to 2015. Both the defendant and the complainant are employed as shop assistants at the Chinese shop called HK Trading at Kundiawa town in Simbu Province.

Therefore, the Complainantseeks damages in the sum of K10, 000.00 plus cost of proceedings.

On 23^rd June 2016, the Court made ex-parte orders against the Defendant in sum of K2, 000 and on 29^th August, 2016 the Defendant filed a Notice of Motion seeking to set aside the ex-parte orders. After hearing the Defendant’s motion to set aside the Court was satisfied that all three (3) requirements in Green v. Green were met so set aside the ex-parte orders of 23^rd June 2016.
Trial date was fixed and trial conducted on 9^th September 2016, in which the Complainant called two witnesses whilst the Defendant called five witnesses.

THE ISSUES

In such matters of defamation, the pertinent issue as I see is;

(i) Whether the comments in Chinese vernacular are defamatory in nature?

THE LAW

The relevant Law is the Defamation Act as it deals with defamation.
Sections 2 and 3 are relevant provisions in this case as they cover all the issues in the case and I set the out as follows;

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,

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

THE EVIDENCE

At trial the Complainant gave sworn evidence that she hails from Karilmaril and has been an employee of HK Trading since 2009 and prior to that she was employed with Bromely&Menton and TNA. She gave evidence that she was working when Maria Tiki’s husband came to manage the store then Maria Tiki came and joined later in 2013.
Christina Anton in her evidence also stated that the whole thing started when she asked Maria Tiki to make her coffee one morning but she refused.

Following that their relationship was not so good and Maria was continuously badmouthing her and that made her husband Willie Anton suspicious that Christina could have been having affairs with Maria’s Chinese husband and actually assaulted her.

At one stage the Complainant stated that the Defendant was drunk and told her that “Yu jealousmeriya, yupamuk.” She further gave evidence that Maria Tiki used some Chinese words “ Levapanene”against her which she said the words meaning “Yu kaikaikanblo mama bloyu.”

In support of the Complainant’s evidence her husband Willie Anton gave sworn evidence also and his evidence basically is that he was present at that time when the Defendant uttered the Chinese words “ Levapanene”. He further gave evidence of him witnessing his wife being put under enormous pressure whilst at work.
He also gave evidence that because of the no co-operation between the employees of HK Trading the Manager forced his wife, the Complainant to resign.

On the other end the Defendant and all her witnesses gave similar evidence to that of the Complainant’s witnesses, however said that the words used by the Defendant against the Complainant were retaliatory comments. The Defendant agreed that her relationship with the Complainant was not good from the beginning and suspected her of being jealous as she was a young girl straight from school to becoming the manager’s wife. The defence witnesses gave evidence that the words said by the defendant were swearing words that are normal in any day to day arguments between people in their class.

ANALYSIS OF EVIDENCE IN LIGHT OF LAW AND ISSUES

In doing so the Court firstly addresses the issue as to what is defamation under the Defamation Act. Section 3 (a) states;

“ A person who–

(a) by spoken words or audible sounds; or

(b) publishes a defamatory imputation concerning a person defames that person within the meaning of this Act.

Thus in this instance, Complainant alleges that the defendant Maria Tiki uttered the words “Leva Panene” in Chinese language telling her to eat her mother’s virgina , and so I ask does this amount to defamation under the Defamation Act?

In order to establish whether such words amount to defamation or not, I am prompted to find out what is a defamatory matter and such is defined under section 2 of the Act which provides;

“(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.

In the National Court case of PawaKombea v. Semal Peke [1994] PNGLR 572,the cases follows from a malicious prosecution alleging that the Plaintiff eloped with a lady who was not his wife against her will. The Plaintiff sued for defamation as such amounted to defamation of character as a public servant.

The Court found that the Plaintiff was defamed as he missed out on an opportunity to attend the World Trade Fair in England and his application for a bank loan was refused due to his outstanding court case. He was awarded damages of K10, 000.

In another case of Wyne Cross v. WessZudema [1987]PNGLR 361 where an action for damages for defamation was brought by a prominent, successful and respectable businessman in respect of a letter addressed to him as the Chairman of Directors of a company owning a hotel in Kimbe and containing the following:

“This, however, is the first time ... I have had the old ‘Mafia’ tactic applied ...”

Copies of the letter were forwarded to four other people and no apology was made or offered. The Court in dealing with this case held that;

1. The words complained of were defamatory of the plaintiff within the meaning of the Defamation Act (Ch No 293).
   
2. As the defendant had no facts to justify the use of the words “Mafia tactic” and did not believe those words to be true a defence of protection, justification or excuse had not been made out.
   
3. In the circumstances damages should be assessed at K4,000.

Therefore, in applying the above precedence to this caseI ask;

Firstly, did the Chinese words ‘Leva Panene” injured the reputation of the Complainant? No,

evidence does not show that her reputation as a shopkeeper and mother or wife was injured.

Secondly, did the words Leva Panene” injure the profession or trade of the Complainant?

No, the evidence did not show that her trade as a long time shopkeeper has been injured. She can easily find a similar job without much trouble at all.

Thirdly, did the words “Leva Panene” prompt or have the tendency to make other people to shun, make fun of, ridicule, despise or reject the Complainant?

No, evidence did not show that she was made fun of ridicule or rejected by her friends and family.

Furtherstill, the words uttered must be made within the presence of other people apart from the Complainant. Thus the question is, were the words “Leva Panene” uttered when other people were around? Yes, evidence shows that the words were said in the shop and other employees and customers were also there. However, these words are Chinese words and all persons in that shop could have not a slightest clue as to what the words meant, except for the Chinese persons in the shop.

In answering all the questions raised above the Court must also know what “Leva Panene” means and in this case, the Court does not have a clue as to what the words meant. There was no Chinese speaking person to give evidence to support the Complainant’s statement.

The Complainants evidence that the words meant “Yu kaikaikanblo mama bloyu”, and if that is so, these words cannot amount to defamatory matter within the meaning under the Defamation Act.

CONCLUSION

The Court is therefore left to conclude that this case involves words and actions that may fall under use of insulting words or behaviour under the Summary Offences Act, which may have been dealt with as a police matter.

Therefore, the Complainant has fallen short of proving defamation against the Defendant within the meaning under the Defamation Act. The Court hence makes orders in the following terms;

1. The Claim for Damages for Defamation is dismissed in its entirety.
2. Each parties to meet their own costs
   

Orders accordingly