Gabe v Clunn [1995] PGNC 87; N1378 (2 November 1995)

N1378

PAPUA NEW GUINEA
[National Court of Justice]

WS NO. 815 OF 1992

KAMEA GABE
-Plaintiff-

-V-

JACK CLUNN ANORS
-1st Defendant-

AND

PACIFIC GOLD STUDIOS PTY LIMITED
-2nd Defendant-

Waigani: Brown J.
1995: 4, 5, 6, 28 Sep, 2 Nov.

Defamation - Cassette recording and sale of song - Motuan lyrics obscene - Lyrics referring to "Kamea of Elevala" afford, in the circumstances no denial that they relate to the plaintiff –

Damages - Defamation - Assessment where plaintiff Rahobada or senior elderly leader of motuan society - Malicious statement asserting plaintiff exhibited perverted sexual tendencies towards young children - Qualified defence not available.

Defamation Act Chapter 293.

The facts appear from the judgment.

Held:

(1) No qualified defence of unlikelihood of harm made out.

(2) In the circumstances of this case, an appropriate award is K6,000 plus interest and costs.

(3) In the 2nd defendants cross claim for indemnity from the 1st defendants, the publisher shall bear 60% of the judgment, interest and costs and the band members 40%.

Cases Cited:

Overseas Cases -
Uren v. John Fairfax & Sons Pty Ltd (1966) 117 CLR 18
Australian Consolidated Press Limited v. Uren [1967] UKPCHCA 2; (1968) 117 CLR 221.

PNG Cases:
Baker v. Lae Printing Pty Ltd [1979] PNGLR 16.
Wayne Cross v. Wess Zuidema [1987] PNGLR 361.

Statement of Claim - Tort
Action for Damages for Defamation

E. Kamburi, for the plaintiff
K. Kua, for the 2nd defendant
No appearance of 1st defendants.

REASONS FOR DECISION

BROWN J.: This is an action for defamation which became one of assessment of damages after the second defendant Pacific Gold Studios Pty Ltd (Pacific Gold) admitted liability for a defamation which arose out the recording and production of a song "Tiny Bubbles" by the Clock Work Orange Band and its sale in cassette form by Pacific Gold.

The first defendants, the band members ("the band") have not defended the proceedings and consequently by default, a verdict restricted to liability, was entered against them, with damages to be assessed. Pacific Gold filed a defence and the trial proceeded on that basis. After the plaintiff had given some evidence Pacific Gold quite properly abandoned its defence on liability. The trial consequently proceeded on an assessment of damages.

In Pacific Gold’s case, some of the band members were called to give evidence.

The Obscene Material

The plaintiff’s statement of claim relates that in about April of 1992 Pacific Gold released a cassette album entitled "Clock Work Orange" recorded by the band in the studios of Pacific Gold in Port Moresby. Amongst the songs was one entitled "Tiny Bubbles" sung partly in English and Motu. The motuan lyrics were obscene and highly offensive. I do not propose to compound the offensiveness by reiterating the Motu or translated English lyrics, suffice to say that in their ordinary meaning, the words sung are obscene. Included in two verses of the song are the lines "Kamea the elderly man from Elevala" and "Kamea the elderly man, the Elevala dog ...", a description which has brought the plaintiff to Court since in Elevala Village, they could refer to no-one else, and they relate the obscenity to him. The plaintiff alleges no innuendo, rather relies on the plain and ordinary meaning of the words used. The nature of the lyrics relates to sexual proclivities of a perverted nature and involve indecencies on young children.

The defence of unlikelihood of harm (s.14, Defamation Act Chapter 293), whilst not pursued on liability was taken up, in a sense, by Pacific Gold, on the question of the extent of hurt to the plaintiff. While conceding the obscene and offensive nature of the lyrics, Mr Seeto says that Motuan custom sees the words complained of as humorous or funny. Consequently no damage has in fact, been suffered in this case for the plaintiff is Motuan. In that society, no harm is intended despite the ordinarily obscene effect.

The plaintiff is an elderly man living in Elevala Village, the large neighbouring village to Hanuabada, on the shores of Fairfax Harbour, Port Moresby. He is aged in his middle sixties and has lived at Elevala all his life. He had a distinguished career with the Public Service between 1946 and 1983. As well he has held and holds various community positions. He is currently a Deacon in his church. He has seven children and some twenty-three grand children. He is, I am satisfied a highly respected member of his community, well known in his village and neighbouring villages and he is entitled to be called "Rahobada" which I understand, is customarily reserved to describe an elderly man of high standing in the Motuan community. As well as the plaintiff, Tom Morea, Gima Kila and Pastor Vavine Goada all gave evidence which satisfied me that the plaintiff has attained to the position of Rahobada. He had served the government of Papua New Guinea over a period of thirty seven years.

The Effect on the Plaintiff

There is no doubt that his sensibilities have been seriously hurt by the words of this song. I am satisfied harm has been caused. As he says, when he first heard the song played in his village, he stopped and had reason to return to his house for he was "upset, angry and embarrassed". As a consequence members of his family tried to fight with the persons broadcasting the cassette but the plaintiff intervened to prevent the fight. Since April 1992 the song has been played and heard about Elevala Village and the neighbouring village. I am satisfied the plaintiff suffered distress, anxiety and continuing embarrassment as a result of the distribution and sale of the cassette. Whilst the plaintiff has given evidence of having had his appetite affected, I am not satisfied that the ridicule caused him has physically affected him, to that extent. I am satisfied that a man of his age and sensibilities would have aggravated feelings of distress both on his own account and on his family and clans part, because of his importance as a "Rahobada". The defendants must take the plaintiff as they find him. Gima Kila’s evidence summed up the more mature attitude of the villagers, at Elevala, where he said that he was "angry, upset and felt sorry for the plaintiff". That attitude answers Mr Seeto’s assertion that Motuans should not take offence in situations such as this. Harm has been seen to be caused to the plaintiff. I take account of the continuing humiliation, for a period in excess of some two years. The plaintiff was susceptible to the taunts and jibes of children and other juveniles about the village.

The Defence Claim to Mitigate

Pacific Gold’s managing director, Mr Greg Seeto gave evidence. He was of the opinion that the words complained about were rude but not obscene or defamatory of any person. All I can say is that he must have a very high threshold where offensive material is concerned, for the choice of words and the manner in which they are coupled in the lyrics is in my view, highly obscene especially so when spoken of a stranger who happens to be, in the plaintiff’s position, a Rahobada. Mr Seeto’s evidence, then that he made no further enquiry of the band to satisfy himself that the Motuan lyrics, (which he did not understand), were not offensive to any particular person, after having been told that they were "rude" has little weight when I take account of his personal views, that the lyrics are humorous, rather than obscene. Had he caused to enquire of the band just what the words were, would, on his evidence before me, not have stopped the publication, for he does not see the lyrics as offensive in any event.

The Extent of the Defamation

Pacific Gold produced and sold some fifteen hundred copies of the cassette to retail outlets in Port Moresby and a few in other provinces. The cassettes were not withdrawn from sale and remain with retail outlets. It is hardly likely that they could effectively be withdrawn at this time. They were available for sale, and sold to members of the public. They were in fact, sold to people about Elevala Village for instance. They have certainly been "published" for the purposes of the Defamation Act. On Mr Seeto’s evidence however I am satisfied the cassette was not a "hit" as commonly understood, but rather bought by those familiar with and keen to buy Clock Work Orange material. Obviously this group would include Motuan people, for the lyrics were in Motu and Mr Jack Clunn has motuan roots. Mr Seeto did rely on the apparent failure of the Censorship Board "to do anything about the song". I should say straight away that whether or not the Censorship Board acts its immaterial in a personal claim for defamation and cannot be pleaded in defence. To that end, the Defamation Act, Chapter 293 is a Code and sets out defences available.

Pacific Gold endeavoured to show that the lyrics in fact, could alternatively be seen funny and humorous. The original song, "Tiny Bubbles", which I categorise as a light love song, was never intended as funny or humorous. The last two verses, the Motuan verses would, if funny or humorous, change the nature of the song part way through. I am not willing to accept the defendants arguments that whilst the lyrics are obscene, at a stretch, they could be viewed as humorous in a Motuan context. That ignores the effect on this plaintiff. The reliance for this argument, on a chant sung during village cricket matches (when a batsman is dismissed, where Motuan participants condone relatively offensive derisive comments, is misplaced. Cricket matches have little connection with love songs sung, recorded and published commercially to all members of the public, not just one ethnic group. That peculiar behaviour at cricket matches however, cannot be relied upon as justifying the publication of material offensive to strangers in cassette recordings of love songs.

I do not accept that a qualified defence is available to ameliorate as it were, the effect of this song on the plaintiff. Mr Jack Clunn, the leader of the band, Clock Work Orange says he does not know Kamea Gabe and that the lyrics were picked at random. He had no idea they actually referred to a living person. If that were the case, his choice of Kamea in a Motuan context coupled with the obscenities in the song leave me in little doubt that there has been contemptuous disregard of the real possibility of an association with somebody in Elevala and that contemptuous disregard is blame worthy.

I am consequently satisfied that the plaintiff has been maliciously defamed within the meaning of the Defamation Act.

Damages

The plaintiff is entitled to damages. Both counsel referred to a number of overseas decisions which were of assistance. They were Uren v. John Fairfax & Sons Pty Ltd (1966) 117 CLR 18 were Windeyer J explained what is meant by injury to reputation and the Privy Council on appeal case of Australian Consolidated Press Limited v. Uren [1967] UKPCHCA 2; (1968) 117 CLR 221. Papua New Guinea reported cases include Baker v. Lae Printing Pty Ltd [1979] PNGLR 16; and Wayne Cross v. Wess Zuidema [1987] PNGLR 361. Both of those Papua New Guinea cases dealt with facts different to these but they did touch on the proper method for assessment of damages which can be seen as one of solartium. Solartium is more commonly understood in cases involving the loss of children in accidents for instance, where parents are entitled to recover damages on that basis. Solartium is compensation for mental suffering. In cases such as this, it is compensation for the injury to the plaintiff’s feelings. He is not compensated because of his damaged reputation (which has clearly happened in any event) but rather because he, subjectively, is seriously injured in his feelings and his burden of knowing that there is a general odium attaching to him as a result of this obscene song about him.

Had liability been contested throughout then I may have been obliged to reproduce the words but since liability been conceded as I say, I am not prepared to include in this judgment, the obscene words, complained of.

The plaintiff has been shamed and ridiculed for in excess of two years. At this stage of his life, he is entitled to bask in some satisfaction of a life served in a worthwhile way. That has been ridiculed by the offensive song. It is clear that the song has been widely circulated and published in the Motuan area. The defamation has affected him in a very significant way at Elevala where he lives. His standing in the community has been undermined, through no fault of his own.

In Cross’s case an award was reduced on appeal to K4,000.00 where a prominent businessman in Kimbe was alleged to have used "mafia tactics". In Bakers case the plaintiff, a well known Lae businesswoman recovered some K6,000.00 (including K1,000.00 for loss of business reputation) where she was painted as a disagreeable or unpleasant woman. In my view the damages which the plaintiff here is entitled to recover, exceed those previous, for the plaintiff is a Rahobada and of importance in Motuan society which is entitled to have its custom recognised and protected when affected by outsiders.

I come back to the "solartium" aspect. A proper amount for solartium were a child has died, has been recently increased by the Supreme Court to K3,000.00 compensation. In my view the plaintiff is entitled to more for he has suffered the ridicule and shame for some four years. He is an innocent victim of a cheap trick, as it were, by the band to engender interest in its songs by such underhand means. The Motuan status of a Rahobada has been ridiculed in a most offensive way. I consider an appropriate award for damages in this case to be K6,000.00 (There is no loss of business or trade).

A verdict against the defendants was previously entered. I entered a verdict against the second defendant on the 5 September. There shall be judgment for the plaintiff in the sum of K6,000 against both defendants plus interest at the rate of 8% p.a. from the date of the proceedings. Pacific Gold has cross claimed against the band for indemnity in relation to the whole amount of damages. I propose to apportion (viz. a vis. the two defendants) liability for the damages 60% to Pacific Gold and 40% to the band. The dissemination of the tapes even after it became obvious that the song was offensive, calls for the producer to bear the greater share of these damages. The letter of the lawyer, purporting to apologise was no apology and does not affect the scale of damage. The band members shall indemnify the second defendant to an amount equal to 40% of the judgment, interest plus costs.

The plaintiff shall have his costs of the proceedings on the National Court scale from both defendants.

____________________________________

Lawyer for the Plaintiff: Habuka Lawyers
Lawyer for the Defendants: Fiocco, Posman & Kua Lawyers