Kono v Waine [2018] PGDC 44; DC8050 (30 August 2018)

DC8050

PAPUA NEW GUINEA

[IN THE DISTRICT COURT HELDAT KEROWAGI]
[SITTING IN ITS GR.V. CIVIL JURISDICTION ]

GVC NO: 13-21 OF 2018

BETWEEN

SAMUEL KONO & SINGIK GOGA
Complainants

AND

WILLIE WAINE ,WARI FRANCIS, GOGLA MAVI, ONGLO FRNACIS, BILL DUA, TAIA TEINE, PAUL GUNDU, RODNEY KIAK & MAIYON BALUA
Defendants

Kundiawa : B.TANEWAN- PM

2018: 30^th AUGUST

DEFAMATION- Councilors and Community leaders sued – defendants are councilors – letters signed by councilors & Community leaders for possible termination order motion, Education Advisor and Provincial Administrator- Letters alleges fraud, misappropriate, double dipping nepotism ,by complainants who are principal and Board chairman – letter give notice of fraud investigations to be instituted.

DEFAMATION –Complainants allege a letter requesting investigation is defamatory complainant sue councilors and community leaders – defamation by councilors, allege- defamation based on malice by another teacher interested in principal position.

DEFENCES- Fair comment , truth, qualified privilege , good faith – complainant allege malice and falsity in subject letter- Defendants only performing duties as councilors – Defendant’s actions justified , protected and excused by law- ss.9, 10,11,12 of the Defamation Act.

Legislations

Defamation Act 1962

Cases Cited:

Papua New Guinea Cases

PNG Aviation Services Pty Ltd & ors .v- Micheal Thomas Somare & ors (1996) N1493 Wyatt Gallagher Basset (PNG) Limited v. Benny Diau (2002) N2277

Arlene Pitil –v- Rutis Clytus (2003) N2422
David Lambu –v- Paul Paken Torato (2008) SC593
Rabaul Shipping Limited –vs- Cyril Mudalige (N02) (2009) N3783
Cyril Mudalige – vs- Rabaul shipping (2011) SC1132
SMY Luluaki Ltd –vs-Paul Paraka Lawyers (2011) N4360

Overseas Cases

Pullman and Anor –vs- Walter Hill & Co. Ltd
Hunt –vs- Star Newspaper (1908) 2KB 309
Hansen –vs- Border Morning Mail Pty Ltd (1988) ART 80, 188

Counsel ;

Mr. O. Amemai, for the plaintiff
Mr. W. Waine, for the himself and other 8 Defendants

DECISION

Held

1. The letter the subject of these proceeding was made falsely or maliciously knowing the facts to be false and knowing that the publication would harm the plaintiff’s reputation because it is not a fair comment, does not carrying the protection of ss 8 and 9 of the Defamation Act, the letter being a step to attacked the position and the character of the complainants.
2. That the allegations in this letter were conveyed to the defendants by a person who has vested interest in the principal position which was confirmed evidence hence amounts to malice and ill- will.
3. That the subject letter was not published in a good faith and with malice because the complainants have shown, on the balance of probabilities that there was malice against them in the manner in which the defendants conducted their business, hence the Defense of Qualified Privilege and Good Faith under ss .11 and 12 of the Act are not made out.
4. Councilors and community leaders are duty bound to convey their peoples grievances in relation to running institutions but through discreet letters and petitions but openly at forums sanction by the government system such as PNC and BOM meetings, thus the cloak of privilege is not available to the defendants in this case
   

Brief Facts

TANEWAN PM: Before the court for hearing on both liability and quantum is the complainant and Summons upon Complainant filed by the office of the Public Solicitors , Kundiawa on the 30^th April , 2018 for and on behalf of the Complainants’. Samuel Kino and Singik Goga, the complainants in these proceedings [the complainant’s], sue the nine defendants for defamation; alleging that a letter, signed and sent by the defendants in form of a petition was defamatory in content, as against the complainants.

The defendants Defense file on the 16^th of May 2018 plead protection under sections 9, 11 and 12 of the Defamation Act. I will discuss these further below.

Facts

The Defendants are councilors and community leaders of Kerowaghi District are sued by the plaintiffs, the Kerowaghi Secondary School Principal and Kerowagi Secondary School Board Chairman , who alleges that they defamed them when they sent a letter to the Provincial Administrator, copied to three others including the Provincial Education Advisor requesting an investigations into the allegations of mis management , misappropriation, nepotism and abuse of school funds. They further request for the removal and demotion of the complainants. The complainants claim K10-000.00 in the damages for defamation plus costs.

The Defendants say they are only acting on behalf of their Kerowaghi people as mandated leaders as well as themselves as parents of students attending the school. They further say Kerowaghi Secondary School is a public institution and they have a right to ensure it operates properly.

The defendants at the hearing raised the Defenses of ;

- Fair Comment under s.9 of the Defamation Act
- Qualified Privilege under s.11 of the Defamation Act
- Good Faith under s.12 of the Defamation Act.

Background

The complainants in their statement of claim stated; .

“You on or about 20^th of day of November, 2017 in a petition addressed by you copied and caused to delivered to the Provincial Administrator, Member elect of Kerowaghi, Kerowaghi District Administrator, Kerowaghi, District Education Officer and SPA and TVET did publish a defamation matter against the First and the Second complainant respectively, contrary to section 24 of the Defamation Act. You maliciously and falsely wrote, printed and published or caused to be printed and published of and concerning the complainant and of them in a way of their occupation, profession, business or office and in relation to their conduct. The complainant have been injured in their credits and reputation and have suffered hurt and embarrassment and have been publicly ridicule and condemned. To top it up, the complainants’ positions, promotions and standing and career is at stake and the embracement and mounting pressure the complainants and their families have been put through due to your acts or omissions”

The letter of petition which was tendered in court through Samuel Kono and labeled exhibit B, which I will summaries as follows;

Date Monday 20^th of Nov ,2017
To Mr. Joe Kunda Naur
Provincial Administrator
Simbu Provincial Administrator
PO BOX 192
KUNDIAWA, Simbu Province

Attention : PA- Education & Chairman SEB Appointment and Dissolving the

BOG – Kerowaghi Secondary School

PO BOX 192, Kundiawa

Simbu Province

SUBJECT: Joint Petition for Removal of Principal in the 2018 Appointment and

Dissolving the BOG- Kerowaghi Secondary School

We the undersigned councilors and community leaders of the two respective tribes of Silki and Pagalu surrounding the Kerowaghi Secondary School (KSS) are hereby officially lodging this petition for your prompt consideration before 2018 Teachers Appointment.

Other elected and community leaders are distant from this petition. They would be one way or another part and partial of the following allegations.this includes certain members of the KSS Interim Board.

There are concrete of allege ;Misappropriation and Misuse of School Funds and abused of Administration power (misconduct ) by both school Administrator [Principal] and the BOG since 2013.

Part A- ALLEGED MISAPPROPRIATE/ MISUSE;

Under Part A, it consists of the following;

- Non School Budget & Financial report since 2013.
- School Uniforms fees need to be accounted.
- Language fees collected since 2014-2016.
- Services fees collected during registration.
- K50-00 entry fee for grade 8 school leavers- Unaccounted.
- Debt of K293, 400 for the boys lodge since 2015.
- No P& C meeting – no excess refund.

Part B- ABUSED OF PRINCIPAL OFFICE OR AUTHORITY.

- Current BOG members are illegal since 2015
- School uniforms – 2014
- School vehicle – Ford Ute D/cab
- School Learning Improvement Plan- (SLIP)
- Principal is bullying enough
- Wantok System in the enrolment.
- Monopolizing School Administrative
- Enrollment of Ancillary staff
- Building Private house using Kerowaghi Secondary School’s resources
- Dangerous driving causing permanent injuries to a pedestrian at Minegende.
- Giving business outside of Kerowaghi.

In summary to our concern raised as allegation;

We petition that ;

1. The school principal MUST BE suspended for investigation and moved elsewhere in the 2018 Appointment. We do not like to see him here in 2018 academic year.
2. The school interim BOG be dissolved immediately and called for nomination and election in February 2018 by the new Principal.

We will appreciate your positive consideration.

Thank you.

Undersigned are ward councilors and community leaders from the two respective tribes of Paglau and Silku and the representatives of business houses surrounding Kerowaghi Secondary School.

______________	______________
Willie Waine	Wari Francis
Silku Central Ward 8	Silku Ward 4 Councillor
_____________	_________________
Gogla Wavi	Onglo Francis
Paglau Komkane Leader – Representing	Paglau Simbaiku former Councilor
Kerowaghi UrbanCommunity	a
___________	____________________
Andy Gagma	Bill Dua
Silku Ward 3	Councilor Leader & Kerowaghi Business Community Representative
________________	___________________
Taia Teine	Paul Gandu
Paglau Beganduku	Kerowaghi Urban W-2
Community & Youth Leader	Councilor
________________	_________________
Rodney Kiak	Maiyon Balau
Paglau Simbaiku Community Leader	Silku Leader & Former
And Youth Leader	Councilor

Cc: MP Kerowaghi	Hon: Bari Palma
Kerowaghi District Manager	Mr. James GumaKomane
Kerowaghi District Education Officer	Mr. Dilu Daka
SPA- Secondary & TVET	Mr. Apakure Mongi

..............end of letter ..................

ISSUES

The issues are the following;

1. Whether the content of the petition letter falls under the definition of the word in Defamation Act and thus is defamatory nature?
2. Whether the Defense raised by the defendants referred to above are available to the defendants?
   

Evidence

In support of the complainants claim their lawyer Mr. Amemai called the first defendant Samuel Kono. In his evidence he basically gave his education qualification and tendered certain documents (exhibit A) showing that he is of a level nine teacher category. He said it is not easy to attain such a level. He further says with his level he was appointed to run a big school like Kerowaghi Secondary School. Mr. Kono further tendered to court as exhibit B a letter from the SEB Chairman showing that this was not the first time such an allegation arose. Back in 2013 a similar allegation was raised but upon investigation the SEB found that he did was within his powers as the principal.

The second witness for the complainant Mr. Singigk Goga gave evidence that such allegations were framed by people who have vested personal interest and were not genuine about the good of the school. He gave evidence that as the chairman of the BOG, such allegations never raised so that the BOG can respond. He was surprised as to how figures and calculations were one by councilors on matters that only the school management has knowledge of.

Analysis of the Complainants Evidence and the Law

The complainants allege that the petition letter contains statements that are defamatory or damaging to their reputation as she is a well-respected people in their communities, being a principal and chairman of the BOM in one of the top secondary school in Simbu Province and Simon Kono being the treasurer of the SDA Church in Simbu Province and a Christian Leader. The complainants submit that the allegations are unfounded, hurtful and have weighed heavily on them both emotionally and professionally. the plaintiff submit that because the letter was copied to high ranking of people in the Province and the Provincial Education Division and because they deal with some of these officials daily in both business and other activities , that this has caused them much embarrassment.

The complainants submit that the content of the petition letter demonstrated the following imputations, which are to be interred from the statements made inthat petition letter. The complainants submit that the same statements in the petition letter in their ordinary and natural meaning and were understood to mean;

(1) That the complainants acted fraudulently in running the affairs of the Kerowaghi Secondary School.
(2) That the complainants committed a criminal offence of misappropriation when using the school funds;
(3) That the complainants ate not fit and proper persons to run the affairs of the school.

The complainants submit further that the words contained in the petition letter and the likely imputations inferred from a reasonable person’s point of view, is defamatory in that natural effect is that it injured the reputation of the complainants and satisfies section 4 of the Defamation Act (the Act). S. 4 of the Act reads;

“4. PUBLICATION.

For the purpose of this Act, publication is –

(a) In the case of spoken words or audile sounds, the speaking of those words or making of those sounds in the presence and hearing of a person other than the person defamed ; and
(b) In the case of signs, signals or gesture’s , the making of those signs, signals or gesture so as to be seen or felt by , or otherwise come to the knowledge of , a person that the person defamed; and
(c) In the case of other defamatory matter-

1. Exhibiting in Public ; or
2. Causing it to be read or seen ;or
3. Showing it or delivering it ; or
4. Causing it to be shown or delivered,

With the view to its being read or seen by a person other than the person defamed “

The complainats submit that just b the fact that the letter was copied to two other persons apart from Provincial Administrator, that the author of the petition letter intended that those persons read the letter and these persons therefore constitute third persons which therefore then falls within the definiation of publication as was held in WYATT Gallagher Basset (PNG )Limited –vs- Benny Diau(2002) N2277. In that judgment the court stated;

The defendants argument proceed on the well accepted principle that in order for there to be a case of defamation, there must be publication of the alleged defamatory material to a thirs party. These principles are stated in a large number of cases including , Pullman and Another –v- Walter Hill & Co, Limited [ 1891 / QB524 per Lord Esher arp527; Huth v Huth [1915] 3KB32, per Lord Reading CJ at p39;Powell v Gelston [1916] 2 KB615, per Bray J.at p 619;and Colthard v South Australia [1995]63 SASR 532, per Debelle J at p 555, which the defendants rely on. In so fact as is relevant s. 4of the Defamation Act restates these principles and the defendants also rely upon parts of that section.

The plaintiff on the other hand argues that , there was publication of letters by the reference to the undisputed fact of the defendants writing the letters to the Insurance Commissioner , who is a third party, or a person other than the plaintiff about which the defendants wrote the letters.

The issue of whether or not the letters were published in order to amount to defamation is dependent on whether or not, I find that the Insurance Commission is a third party. A determination of this issue is guided by what the case the defendants refer to and relies upon the other say about this issue.

In Pullman and Another v. Walter Hill & Co, Limited (Supra) the managing Director of the Defendant Company dictated a letter alleging false pretense against the plaintiffs to his secretary who typed it out. Unknown to the defendants, the plaintiffs were in partnerships with others. The letter was opened by a clerk in the ordinary cause of business and was read by two other clerks. The trail court found there was no publication. On appeal however, the court of Appeal reversed that decision and held that there was no defamation”

The complainants refers the petition letter , the complainant and the others who would have formed the view that the defendants , had by implications ,stated in the petition letter that the principal and the chairman BOG of Kerowaghi School had conspired with each other to mismanage and misuse funds of the school. The complainants submit that this is also publication of the petition letter to a third party.

In this case the complainants submit that as was held in Pullman & Anor- v- Walter Hill Co, Ltd (Supra), the definition of “ordinary course of business “ means that defamatory statements would have to be published to a third party. They submit that the said letter, in the ordinary course of things, has come into the hands of a third party being;

1. The letter is sent/served on the respective officers of those persons copied in the letter;
   
2. It is the ordinary course of business as a Government Department that the letter was served on all respective officers of those persons copied

.

3. That the letter is typed written/ word processed ,that the letter was published to the secretary or person who draft/ typed the said petition letter;
   
4. That he letter was signed by the defendants and in the ordinary course of business where the councilors and community leaders represented and made known to their communities at large.
   

Analysis of Submissions by all Parties

Defamation is a tort at common law. The Defamation Act Chapter 293 codifies the common law principles of defamation. However, where the Act is silent on a matter then one must look to the common law, as it is view expressed in PNG Aviation Services Pty Ltd & ors –v-Michael Thomas Somare & ors (1996) N1493 ; Wyatt Gallagher Bassett (PNG) Limited –v- Benny Diau (2002) N2277).

Generally publication is unlawful; useless it is protected, privileged or excused by law. In Wyatt Gallagher Bassett (PNG) Limited –v- Benny Diau (supra), the trail judge held:

“The law of Defamation and Defamation Act prohibits a person in effect from lawfully publishing a defamatory matter against a person. It follows therefor that a defamatory publication is unlawful unless the publication is protected, privileged or excused by law.....”

In the Supreme Court case of David Lambu –v- Paul Paken Torato (2008) SC 593, the Supreme Court said that the elements of a cause of action in defamation are;

- The defendant made a defamatory imputation of the plaintiff
- The defendant published it,
- The publication was unlawful that it was not protected, justified or excused by law).

“5. PUBLICATION OF DEFAMTORY MATTERS PRIMA FACIEUN LAWFUL

It is unlawful to defamatory matter unless the publication is protected, justified or excused by law.”

The defendant’s submitted in defense that section 9, 11 and 12of the Act are applicable in their case. I will discuss each one together with the evidence and make conclusions and findings also.

1. Defense of fair comment under Section 9 of the Act
   

3. The Defendants admit the allegations pleaded in Complainant and more over say:
   

(a) The allege letter was written based on instructions and overall concerns of the surrounding communities within the Kerowaghi Township and the School, they further state at these were also concerns raised by themselves as parents whose children also attend the school.

(b) The Defendants wrote a letter based on their communities concerns and at all material times believing such instructions to be valid.

(c) The comments attributed to in the alleged petition letter by the defendants are fair comments and the defendants pleaded protection under S.9 of the defamation Act 1962as the comments were fair based on instructions and representation of the communities’ views.

The defendants further submit that more particularly their comments contained in the petition letter relates to the Defense of fair comment, which is in my view provided in section 9 of the Act reads;

9. PROTECTION: FAIR COMMENT.

(1) For the purpose of this Act, it is lawful to publish a fair comment-

• (a) Respecting any of the matters with respect to which the publication of the fair report in good faith for the information of the public is declared to be lawful by section 8; or
• (b) Respecting –
• (i) The public conduct of a person who takes part in the public affairs ; or
• (ii) The character of any such person ,so far as his character appears in that conduct ;or

[c] Respecting –

(i) The conduct of a public officer or public servant in the discharge of his public functions; or

(ii) The character of any such person, so far as his character appears in that conduct; or
(d)- Respecting –
(i) The merits of a case, civil or criminal, that has been decided by a court; or
(ii) The conduct of a person a Judge, magistrate, party , witness, lawyer or officer of the court in any such case; or

(iii) The character of any such person , so far as his character appears in that conduct; or

(e ) respecting –

(i) Published book or other literary productions; or
(ii) The character of the author , so far as his character appears by the book or production ; or

(f ) Respecting -

(i) A composition or work of art or performance publicly exhibited ; or
(ii) The character of the author or a performer or exhibitor , so far as his character appears from the matter exhibited ; or

( g) respecting –

(i)any public entertainment or sports; or

(ii) the character of the person conducting or taking in any public entertainment or sports; or

( h) respecting a communication made to the public.

(2)Whether a common is or is not fair within the meaning of this Act is a question of fact.

(3) If a comment is not fair and is defamatory , the publication of it is unlawful”.

In a relation to the Defense of Fair Comment, I am mindful of the Supreme Court in Cyril Mudalige .v. Rabaul Shipping (2011) SC 1132 in which the court held that the Defense of Fair Comment must be considered on its own before a consideration of the Defense of truth . I will do likewise, in this case.

The defendants submit that the content of this petition letter are a fair comment based on concerns and instructions they received from community members of the surrounding Paglau and Silku tribes at the material time.

In saying that , the defendants submit that the letter was sent to the Provincial Administrator and the Provincial Education Authority relying on information provided to them by people within the school such as their own kids who are attending school there and that the letter was not published falsely ,maliciously or recklessly but rather it was published in good faith for the purpose of seeking remedy or redress from higher authorities on behalf of or for that communities benefit.