Coyle v Henao [2000] PGLawRp 407; [2000] PNGLR 17 (30 November 2000)

[2000] PNGLR 17

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

DAVID COYLE;

RIMBINK PATO; and
ALFRED MANASE

V

LOANI HENAO

WAIGANI: LOS, JALINA, KIRRIWOM JJ
28 November 1999; 30 November 2000

Facts

Respondent sued the appellants for defamation and was awarded K50,000 in damages. Appellants appealed on the grounds, inter alia, that the amount was excessively high.

Held

1. The amount is not well above the trial court's discretionary range or so inordinately high such as to evoke an exclamation of astonishment from the ordinary people to be considered manifestly excessive.
   
2. The appellants have failed to show or demonstrate to the Supreme Court that the trial judge had acted on wrong principles of law or was misled by misapprehension of facts.
   

Appeal dismissed.

Papua New Guinea cases cited

Bruce Tsang v Credit Corporation (PNG) [1993] PNGLR 112.
Christopher Haiveta v Paias Wingti (No.2) [1994] PNGLR 189.
Lowa v Akipe [1992] PNGLR 399.
Motor Vehicles Insurance (PNG) Trust v Salio Tabanto [1995] PNGLR 214.

Other cases cited

Carson v John Fairfax & Sons Ltd (1992-1993) 178 CLR 44.
Coyne v Citizen Finance Ltd [1991] HCA 10; (1990) 172 CLR 211.
Dingle v Associated Newspapers Ltd [1964] AC 371.
Evans v Bartlaw [1937] AC 473.
Pfeiffer v Midland Railway Co., [1886] UKLawRpKQB 170; (1886) 18 QBD 243.
Sutcliffe v Pressdraw Ltd [1991] 1 QB 153.
Taylor v John Summers & Sons Ltd [1957] 1 WLR 1182.
Television New Zealand Ltd v Quinn [1996] 3 NZLR 24.

Counsel

P Young, for the appellants.
M Cooke, QC with N Varitimos, for the respondent.

November 30, 2000

BY THE COURT. This is an appeal against an award of damages of K50,000 made by the National Court following an assessment hearing in a libel action. The suit was filed by the respondent, a lawyer practising under the firm name of Henao Lawyers, against the principals or partners of another law firm namely Pato Lawyers, the appellants herein. Liability was not contested in the National Court due to failure of the appellants and their lawyers to file their defence and the respondent obtained judgment by default. We note for the record that a belated attempt to set aside the default judgment was abandoned by counsel for the appellants on the eve of the hearing on the assessment of damages.

Grounds of Appeal

The appellants have premised their appeal on these two broad grounds:

3. (a) His Honour's award granted in favour of the Respondent was manifestly excessive.

(b) His Honour misdirected himself and/or was wrong in law.

Ground 3(b)

We deal firstly with this ground of the appeal. Counsel for the respondent submits that ground 3(b) ought not stand as it offends against Order 7 rr 8-9 of the Supreme Court Rules. In the light of the overwhelming authorities discussed herein, we are of the view that this ground must be struck out, as it is clearly incompetent. The law is already well established in Christopher Haiveta v Paias Wingti (No.2) [1994] PNGLR 189; and the case of Taylor v John Summers & Sons Ltd [1957] 1 WLR 1182 is in fact right on the point. The pleading in ground 3(b) offends against O 7 r 8 and r 9 of the Supreme Court Rules. We set out the rules hereunder for easy reference.

Order 7 Rules 8(c) provides:

"The notice of appeal shall -

(c) state briefly but specifically the grounds relied upon in support of the appeal."

Order 7 Rule 9 provides:

"Without affecting the specific provisions of Rule 8, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law."

It is submitted that O 7 r 9 must be complied with to the letter. It is not sufficient to simply allege that a judgment is wrong in law without specifying the reasons why it is alleged to be wrong. This is the respondent's contention with respect to ground 3(b) of the appeal. It is further submitted that O 7 r 8(c) similarly reinforces what is stated in r 9. Although the ground must be brief, it must state specifically what it is that is wrong that has necessitated the appeal.

The contention is that the ground as pleaded fails to meet the requirement of the rules under both Order 7 rule 9 and also rule 8(c). It is clear from the wording of ground 3(b) which reads: "His Honour misdirected himself and or was wrong in law" - quite clearly falls under rule 9 because the ground as pleaded does not specify as to why the appellants say that the judgment is wrong in law. This is precisely the kind of pleading that this rule is indeed meant to avoid. The appellants have not submitted otherwise and we note the respondent's argument remains unchallenged.

Objection to Ground 3(b)

The power of this court to determine objections to competency issues is provided under Order 7 rule 14. Rule 14 reads:

"14. A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service on him of the notice of appeal-

(a) file an objection in accordance with form 9;

(b) serve a copy of the objection on the appellant."

The respondent in this appeal did not give any notice of objection to competency to the appellants. But even if he did now, he is already way out of time. However, the issue of objection to competency of an appeal continues to run throughout the appeal whether it is raised or not. This is clearly implied or envisaged in Order 7 rule 18 which reads:

"18. If notice of objection is not given and the appeal or the notice of application for leave to appeal is dismissed as incompetent, the respondent shall not receive any costs of the appeal unless the court on special grounds orders otherwise."

In Bruce Tsang v Credit Corporation (PNG) [1993] PNGLR 112 the Supreme Court held:

"We note from the record that the respondent filed a notice of objection to competency of the notice of appeal on 22 October 1991. This matter came on for hearing on 31 October 1991, but the Supreme Court dismissed the notice on the basis that it was filed outside the 14 days limit set by O 7 r 14 of the Supreme Court Rules.

However, this does not prevent the respondent from raising the same issue at this stage. The issue of the competence of an appeal remains open, and the Court may address it at any time before judgment; see Lowa v Akipe [1992] PNGLR 399. The respondent filed another notice of objection to competency of the supplementary notices on 16 June 1992. It is this objection which has been raised by the respondent for determination by this Court."

However the submission by Mr. Cooke for the respondent which is akin to raising an objection to the competency of a part of this appeal was squarely addressed in Christopher Haiveta v Paias Wingti (No 2) (supra) where the Supreme Court made the following observation:

"Counsel for the respondents submitted that these grounds of appeal were not given ‘in the manner prescribed by the rules of Court’, as required by s 17 of the Act. In particular, they submitted that they do not comply with O 7 r 8 and r 9. Order 7 r 8 and r 9 are in the following terms:

"8. The notice of appeal shall

(a) state that an appeal lies without leave or that leave has been granted and or annex appropriate order to the notice of appeal;

(b) state whether the whole or part only and what part of the judgment is appealed from;

(c) state briefly but specifically the grounds relied upon in support of the appeal;

(d) state what judgment the appellant seeks in lieu of that appealed from;

(e) be in accordance with form 8;

(f) be signed by the appellant or his lawyer; and

(g) be filed in the registry.

9. Without affecting the specific provisions of Rule 8, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law."

Counsel for the respondents submitted that O 7 r 8(c) prescribes that a notice of appeal shall "state briefly but specifically the grounds relied upon in support of the appeal" and, further, that O 7 r 9 stipulates that "it is not sufficient to allege that judgment is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law." Counsel further submitted that the requirements of the Rules, in accordance with which an appeal under s 17 of the Act must comply, are thus specific and clear and require distinct particularity. Any notice of appeal or grounds in a notice of appeal that do not satisfy these clear requirements of the Act and the Rules is, thus, incompetent.

Counsel for the respondents submitted that these grounds are incompetent on two bases. Firstly, they do not state whether the decision is an error in law or in fact. Secondly, even if the grounds are drafted in a form, which raises questions of law, they do not comply with O 7 r 9 of the Rules, in that the grounds do not specify the reasons why it is alleged that these grounds are wrong in law.

As to the first point, it is true that these grounds of appeal do not specifically state whether the error is in law or in fact. However, it is clear from the nature of the grounds expressed that they relate to errors in law. In fact, counsel for the respondents, in their submissions, understood these grounds of appeal as asserting errors of law.

The basis for the second ground of objection in relation to these grounds of appeal is found in O 7 r 9 of the Rules. There are two reasons for this rule. The first is, if an appellant alleges an error in law, he must specify the basis for this allegation in order to inform the respondent(s) the basis of the appeal so that they can prepare for proper arguments on appeal. The second reason is to inform the Court of the issues in law that would be argued by both parties on appeal. If a ground of appeal does not give these particulars in accordance with O 7 r 9 of the Rules, the grounds would be incompetent unless the appellant makes an application for leave to amend the grounds of appeal in order to comply with the requirements of the Rules."

In the case of Taylor v John Summers & Sons Ltd (1957) 1 WLR 1182 the notice of appeal simply stated as one of its grounds of appeal that the judge misdirected himself. The respondent who was disadvantaged in the preparation of its case indeed had to request for further and better particulars. At p 1184 Jenkins LJ says (referring to the counsel’s submissions):

"He relies in particular on paragraph 1 of the grounds of appeal: ‘That the judge misdirected himself in law and on the facts; and he draws an analogy between the particulars required of a motion for a new trial. He has referred us to Pfeiffer v Midland Railway Co. [1886] UKLawRpKQB 170; (1886) 18 QBD 243, where it was held that: ‘A notice of motion for a new trial on the ground of misdirection should state how and in what manner the judge misdirected the jury;’ and it appears from the judgement of Huddleston B. that the only objection stated in the original notice of motion was misdirection. One can appreciate that a general allegation of misdirection, without saying in what respect and the judge misdirected the jury, might well be held (as it was held in that case) to be insufficient."

And His Honour held at p 1185:

"From those authorities it seems to me to be reasonably plain (if authority were needed) that if the only ground alleged in the notice of appeal in the present case had been the first- namely, that the judge misdirected himself in law and on the facts — that, standing alone, would not have been sufficient notice of the grounds of appeal."

The appellants have not addressed the issue of competency as raised by the respondent but have pursued this appeal in an attempt to knit-pick possible errors that the trial judge may have fallen into which in whole may have affected His Honour's sound evaluation of the case in an objective manner. But the court is not going to waste its time to direct its mind to this submission particularly when the issues of law raised are founded upon the same defective or incompetent ground of appeal.

This court is thus convinced that ground 3(b) is incompetent and must therefore be struck out. We therefore proceed to ground 3(a).

Ground 3(a)
Excessive Damages

The appellants contend that the award of K50,000 imposed on them by the National Court is excessive. Whether or not the amount as awarded is excessive must be viewed not only from the precedents of past awards in defamation cases in this jurisdiction or from other jurisdictions or in the light of the circumstances of this country per se, it must however be considered and determined in the light of the circumstances of this particular case at the relevant time and place this libel is found to have been published. This requires the court to at least appraise itself of the background history of the case that gave rise to the cause of action proven against the appellants.

Background to the Defamatory Allegation

On the eve of the 1997 National Elections in Papua New Guinea 13 soldiers of Papua New Guinea Defence Force were arrested in Enga Province and charged with the criminal offence of being members of an illegal army. These soldiers were not part of the contingent of army personnel officially deployed to assist the civilian police force in ensuring a smooth and orderly election in the Highlands generally, more particularly in Enga and Southern Highlands Provinces. The soldiers concerned were detained in Mt. Hagen and consequently tried there. But in the course of the investigation of this case police had reasons to believe that the appellant Rimbink Pato was either directly or indirectly involved or responsible for the setting up of this illegal army during the 1997 National Elections (Appeal Book page 86.14 Affidavit of Detective Chief Superintendent Raphael Huafolo sworn 24th November, 1998 filed in connection with the civil proceedings instituted by the appellant Rimbink Pato as plaintiff seeking injunctive relief against three policemen tasked with the case to investigate him from continuing their investigation of him under the proceedings titled O.S. No. 565 of 1998 in the National Court).

The appellant Rimbink Pato alleged that the police investigation of him was a political smear of his name or witch-hunt spearheaded by his political rivals and he named the Honourable Peter Ipatas, Regional Member and Governor of Enga Province and the Honourable Masket Iangalio, MP Member for Wapenamanda. Consequently both members became parties to this suit as fourth and fifth respondents/defendants. The defendants were represented in the National Court as follows:

1. The three policemen investigators namely Anthony Manjin, Abraham Hauapmomi (also referred to as Abraham Momi) and someone named only as Brunu (a male) were represented by Mr. Chris Coady of Henaos Lawyers.
   
2. The Governor of Enga Province, the Honourable Peter Ipatas, MP was represented by Mr. Loani Henao, the respondent in this appeal.
   
3. Honourable Masket Iangalio MP was represented by Mr. Greg Sheppard of Maladinas Lawyers.
   

The interim injunction restraining the police from investigating Mr Pato was granted by the National Court on 23 October 1998, pending further orders. The proceedings were vigorously contested which ultimately ended up in the Supreme Court on the issues of, inter alia, the continuation of the injunction to restrain the police from investigating and interviewing Mr. Pato. On 30 April 1999, the Supreme Court comprising Sheehan, Sevua and Akuram, JJ. unanimously held that the order of a civil court restraining the police from carrying out their investigative functions to interview and if need be to charge Mr. Pato for an alleged crime was not only 'outrageous and spurious' but it was also constitutionally flawed in that it interfered with the police carrying out their constitutional function (see Appeal Book page 86.30 Supreme Court Judgement Number SC622).

By letter dated 29 April 1999, a day before the Supreme Court handed down its decision referred to above, a letter emanating from Wabag Police Station was sent to Mr. Pato and signed by Detective Sergeant Anthony Manjin of Wabag Police, CID Branch, advising that the investigation by the police against him would henceforth cease as there was no basis to continue, and, at the same time, requesting that the civil case against him and the other two policemen be forthwith withdrawn. This letter was also copied to several persons namely: Messrs Henaos (Mr Henao & Mr Coady), Messrs Maladinas (Mr. Sheppard), The Honourable Peter Ipatas, MP and The Honourable Masket Iangalio, MP.

The Defamatory Publication

Following this letter from Sgt Manjin, Pato Lawyers wrote a letter dated 19 May 1999 to the Attorney General. This letter concerned was signed on behalf of the firm by the First Appellant David Coyle and carbon copied to the Commissioner of Police, Henaos Lawyers and Maladinas Lawyers. The content of this letter was the subject of defamation action in the National Court. The essential paragraphs of that letter are pleaded in the Writ of Summons and partly reproduced herein.

"The situation is that there are three defendants who are policemen and two who are Members of Parliament. Messrs Henaos represent the policemen plus one of the Members and Messrs Maladinas represent the other Member. The Policemen say that Mr Pato has been cleared of any wrongdoing and that there is no basis for further investigations.

It is clear that the Members have orchestrated this sordid affair for political profit. We have advised Mr Pato that he has a very strong case against them for both declarations and damages. Our client will assume (until told otherwise) that the Members will (as the other 4.5 million citizens of PNG are bound to do) respect both a National Court declaration enforcing his Constitutional rights and orders of the National Court regulating the conduct of third parties.

Messrs Henaos and Maladinas — The fierce advocacy and promotion by these lawyers of their client's falsehoods, and their promotion of very serious charges against a citizen in the apparent absence of any reasonable grounds, are serious matters that must be dealt with in due course.

We suggest that Henaos cannot now represent the policemen and their Member client unless that client accepts the policemen's conclusions and the solution they proposed. If Henaos are instructed by their Member client to accept the solution recommended by the Attorney, we are willing to talk to them. If not, we suggest that they can act no further in the matter.

However, one matter of immediate concern is that these lawyers' fees are apparently coming from the public purse, that the State and/or from the Enga Provincial Government is paying the costs occasioned by the private misconduct of their own clients.

This is both improper and unfair, especially when their opponent must fund from his own resources litigation arising from falsehoods invented by their clients. Indeed, looking at the evidence, we fail to see how these lawyers could have been unaware of the falsity of their client's allegations against Mr Pato. Our client knew when he entered politics that it can be a dirty business, but if he is to abandon his damages claims against these parties in the public interest and meet his own costs, his opponents should at least do the same.

Summary — Mr Pato will support a solution that will, in the public interest, allow that the Force proper was not involved in the misconduct, that will end the silly allegations being made against Mr Pato and that will extricate the three policemen from this whole unhappy mess.

This leaves the ball in the Members' court so far as the residue of the litigation is concerned. Mr Pato will consider a solution that will bring a just end to the claims against the Members, but it is up to them to make the next move. Until they do so, the actions against them must continue.

Yours faithfully

PATO LAWYERS

David Coyle cc: - Commissioner of Police

- Henaos Lawyers

- Maladinas Lawyers "

Upon reading this letter from Pato Lawyers, the respondent Mr. Henao, through his firm objected to the insinuation and the innuendo in the said letter against himself and he demanded an apology. No such apology was forthcoming, hence the libel suit now the subject of this appeal.

The Innuendo

The respondent took issue with the statement in the appellants' letter to the Attorney General, partly reproduced above, that read: "Messrs Henaos and Maladinas — The fierce advocacy and promotion by these lawyers of their client’s falsehoods, and their promotion of very serious charges against a citizen in the apparent absence of any reasonable grounds, are serious matters that must be dealt with in due course."

The respondent’s contention was that in their natural and ordinary meaning the words in the publication meant and were understood to mean that the plaintiff was:

(a) prepared to engage in improper conduct;

(b) unethical;

(c) dishonest;

(d) prepared to assist a client in making false allegations in court proceedings which the plaintiff knew to be false.

The Issue

The real issue in this appeal, however, is addressed in the appellants’ purported grounds of appeal, i.e. whether the sum awarded is excessive. The appellants argued that the injuries, if any, suffered by the respondent was not that serious in view of the limited publication of the defamatory material. It was submitted that there was no evidence proving that the respondent had suffered loss in his business nor was any evidence produced to show that his reputation had been badly affected by the defamation both as a person in his community and as a lawyer.

The Law

It is a known and recognised fact that there is no fixed measure for damages in an action for defamation. The law as is understood is best stated by Raymond E Brown in his textbook: The Law of Defamation in Canada in Volume II of the book at p1004:

"‘A good name proverbially is rather to be chosen than great riches, but loss may require heavy financial solace.’ Actions for libel and slander are maintained principally for the purpose of protecting and vindicating the personal reputation of the defamed plaintiff. An award of damages may partially compensate him for the decline in his esteem in which he may be held by others, and provide solace for his wounded feelings, grief and annoyance. However, the reputation of any person is necessarily an evanescent thing, and it is difficult to calculate an appropriate financial equivalent for its loss. An award must have regard for both probable past and prospective damages."

Whether damages is an appropriate remedy in defamation is a subject of on going academic discussions as in other disciplines of the law but until some other appropriate remedy is universally accepted to substitute damages, the courts are bound to apply the law as they find it. As Lord Radcliffe said in Dingle v Associated Newspapers Ltd [1964] AC 371 at 396:

"A libel action is fundamentally an action to vindicate a man’s reputation on some point as to which he has been falsely defamed, and the damages awarded have to be regarded as demonstrative mark of that vindication."

The Respondent's Argument

The respondent submitted that the defamation in this case was probably the worst type of case imaginable. And the crux of this whole case can be summed up in these few words of counsel for the respondent:

"It was-

(a) made by one lawyer about another;

(b) the most scurrilous accusations that could be made against a lawyer; if true, he could be struck off the role of practitioners;

(c) made to the leading law officer in PNG and the Police Commissioner;

(d) made about a senior and highly respected lawyer — a former President of the National Law Society.

No apology was ever given."

It was also submitted that the assessment of damages is essentially a matter of impression and of common sense. Where the law entrusts the assessment to the discretion of a judge an appeal court should not interfere unless it is clearly satisfied that he was wrong. The court was referred to the case of Evans v Bartlaw [1937] AC 473 where Lord Wright said at 489:

"A discretion necessarily involves a latitude of individual choice according to the particular circumstances, and differs from a case where the decision follows ex debito justitiae once the facts are ascertained."

The appellants bear the onus of convincing the appellate court with substantial grounds for it to override the assessment of a single judge who is better placed to hear evidence and make value judgment on the critical issue of credibility and demeanour. The trial judge heard and saw the respondent give evidence and also called reputable witnesses whose testimony the court accepted without rebuttal by the appellants. The general inference then was that the appellants accepted the award. And on this aspect of whether an appeal court can interfere with a decision of a trial court on damages, the Supreme Court in Motor Vehicles Insurance (PNG) Trust v Salio Tabanto [1995] PNGLR 214, where it was hearing an appeal arising out of a personal injuries claim from a motor vehicle accident, said at 223:

"We cannot disturb the damages awarded by the trial judge unless we are of the view that the amount awarded is so inordinately high that it is a wrong estimate of the damages."

It was submitted that this principle was consistent with the decision in Dingle v Associated Newspapers Ltd (supra) which stem from a judge sitting alone in an assessment of damages case although in defamation cases a slightly different approach was taken where as long as the award is within the court's discretionary range that could be regarded as appropriate, the appeal court must not interfere and references were made to Coyne v Citizen Finance Ltd [1991] HCA 10; (1990) 172 CLR 211; Sutcliffe v Pressdraw Ltd [1991] 1 QB 153 and Television New Zealand Ltd v Quinn [1996] 3 NZLR 24 where the appellate courts have also urged trial judges to have regard to the purchasing power of the proposed awards and to direct them to personally injury awards.

In summary it was contended for the respondent that this court must be guided by the following principles in determining whether the award in this case in inordinately high or excessive:

1. The Supreme Court will not substitute its own view of damages for that of the trial judge;
   
2. The court will not interfere unless it can be demonstrated that the trial judge acted on a wrong principle of law or a misapprehension of fact;
   
3. The court will review the award of the trial judge only in exceptional cases where the award is so greatly outside the discretionary range "as to evoke an exclamation of astonishment".
   

We are grateful to Mr. Cook's helpful submissions, in particular, as to the suggested approach to be taken by the Supreme Court in the development of our own underlying law as stipulated above. These principles are based on sound and persuasive authorities from both overseas and local cases. It is also our view that this Court must be slow to overturn an award of damages of the National Court in libel action without proper consideration of the history of the case. The fact that damages in defamation cases are said to be at large does not imply, by any stretch of imagination, that the Supreme Court is at liberty to substitute its own award of damages in place of the one by the trial judge simply because it's view is different. That is precisely what the appellants are asking the Supreme Court to do here contending that the respondent should only get K5,000. It is our view that the amount proposed is inordinately low given the serious nature of the case and therefore we do not entertain the appellants' submission with regard to the excessiveness of the award. This argument in our view is reflective of the appellants' contumelious attitude towards the respondent. It is this attitude that has landed the appellants in the situation they are in now when an apology could have saved unnecessary litigation but they chose to ignore the injury they caused the respondent by their publication of the letter concerned. As Brennan, J said in Carson v John Fairfax & Sons Ltd (1992-93) 178 CLR 44 at p 71:

"Damages may be aggravated or mitigated by the manner in which the defamatory matter was published and by the subsequent conduct of the defendant: Triggell v Pheeney (1951) 82 CLR at p 514. Conduct of the defendant from the time of publication until verdict (including conduct at the trial, to which reference will be made) is relevant: Praed v Graham [1889] UKLawRpKQB 176; (1889) 24 QBD 53 at p 55. In Broome v Cassell & Co. [1972] AC at p 1085, Lord Reid, speaking of the bracket within which any sum could be regarded as not unreasonable compensation said:

‘It has long been recognized that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.’"

When one considers the buying power of the amount proposed by the appellants in the light of the current value of the kina and the depressed economy in comparison with the turn-over by the respective firms locked in this dispute, the sum of K5,000 is nothing but an insult to the respondent. The law does not say that the person defamed must prove injuries before he can be compensated. Damages awarded in defamation serve three purposes, which overlap considerably in reality and ensure that "the amount of a verdict is the product of a mixture of inextricable considerations", Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR at p 150 per Windeyer J. The three purposes are (i) consolation for the personal distress and hurt caused to the appellant by the publication, (ii) reparation for the harm done to the appellant's personal and (if relevant) business reputation; and (iii) vindication of the appellant's reputation: Carson v John Fairfax & Co (supra) at p 60 per Mason CJ, Deane, Dawson and Gaudron JJ.

The trial judge in our view had not fallen into any error for this court to interfere with his award of damages. Indeed His Honour was entitled and quite properly was conscious of the appropriate amount that could be justified in the circumstances such as not to penalise the appellants for their conduct as was submitted by the appellants, but simply to adequately compensate the hurt caused to the respondent, a person of reputable standing in Port Moresby and in the country as well. If the sum awarded is construed as punitive rather than compensatory it is unfortunately unavoidable because in reality the distinction is often not easily identifiable. His Honour as it seems was treating the defamation as being aggravated by the subsequent conduct of the appellants. As McHugh,J expressing a minority view stated thus:

"In my opinion, the element of punishment is often a legitimate factor in an award of aggravated damages even in New South Wales where s 46(2) of the Act provides that damages are to be ‘recoverable in accordance with the common law, but limited to damages for relevant harm’. A jury which increases its award of damages in a defamation action commits no error if it thinks that the plaintiff cannot be properly compensated for the harm done to him or her unless the damages contain an amount to punish the defendant for the hurt which he or she has inflicted on the plaintiff. Nor does the jury commit any error if it increases the damages because the conduct of the defendant towards the plaintiff arouses its anger or indignation." (ibid) at p 102 per McHugh J.

The amount awarded is not so greatly outside the discretionary range "such as to evoke an exclamation of astonishment". This appeal must therefore fail as the appellants have failed to show or demonstrate that the trial judge had erred by acting on a wrong principle of law or through misapprehension of facts. In the circumstances we dismiss the appeal and confirm the award of K50,000.

We award cost to the respondent and certify one overseas counsel’s appearance in the appeal.

Appeal dismissed.

Lawyers for the appellants: Allens Arthur Robinson Lawyers.
Lawyers for the respondent: Henaos Lawyers.