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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS 312 OF 1987
WS 313 OF 1987
WS 290 OF 1987
WS 1059 OF 1988
BETWEEN:
PNG AVIATION SERVICES PTY LTD
DOUGLAS NEIL VALENTINE
YORK ANDREW MENDOZA
WALTER ANDREW LUSSICK
Plaintiffs
And:
MICHAEL THOMAS SOMARE - 1st Defendant
And:
INDEPENDENT STATE OF PAPUA NEW GUINEA - 2nd Defendant
Waigani
Sheehan J
19 July 1993
6 September 1993
20 December 1996
DEFAMATION - Defamation Act Defence of Privilige and or Qualified Privilige - Claim of Malice and or lack of good faith.
Counsel:
Mr I Molloy & Mr J Shepherd for Plaintiffs
Mr K Cullinane QC & Mr B Frizell for Defendants
20 December 1996
SHEEHAN J: On 16 August 1985 thme Mine Minister of Papua New Guinea the Hon Mr Michael Somare addressed Parliament in answer to questions that had been put to overnment by the Leader of the Opposition Mr Paias Wingti.
The Government was challehallenged in its dealings relating to the sale of purchase of government aircraft. The Opposition th its Lead Leader accused the government of accepting bribes in return for business favours. At time the issues raised ised by those questions were a matter of considerable public interes>
Mr Somare in his replyreply to the House denied any impropriety in Government’s or his own business dealings and launched a severe and scathing attack on the Opposition Leader. In the c of this speech hech he made equally severe and damaging assertions about the plaintiff company PNG Aviation Services and its directors Messrs Valentine Mendoza and Lussick.
Following tpeech in the House the Prim Prime Minister caused report of it published under the State crest in advertisements printed over three days in each of 4 newspapers circulating in PNG at the time. It reads as follows:
Statement by Prime Minister Michael Somare in reply to a statement by Opposition Leader Wingti, August 16, 1985
Dear Mr Speaker,
Yesterday, the Oppon Leader made a statement about Government negotiations leas leading to the sale of Kumul 1 and the purchase of Arava Aircraft for the Defence Force.
Sir, in that statement he made a number of vicious, dishonest and slanderers allegations about my conduct in this House. He accuseof deliberately lely lying to this House and of associating with criminals.
Sir, I believe the member for Hagen has - in his enthusiasm for the opposition role - overstepped the mark dramatically.
Sir, Mr Wingti is relatively inexperienced, and perhaps he doesn’t fully understand legal documents, so I would like to give him the chance to retract his statements (if he doesn’t offer to retract).
Mr Speaker, since the honourable member does not choose to retract his statement full responsibility for it must fall on his head. And, Sir, it ireadful resp responsibility. Thber for Hagen will for mfor many years regret his rashness and ill-considered words on this subject.
For, Sir, the l of tposition not only mislead this House on this issu issue - yesterday he deliberately misleadslead honourable members. He lied to House!!!
Sir, Mr Wingti lied repeatedly and he deliberately misinterpreted my statements and various legal documentsuit his own ends.
Sir, I will demonstrate to every member of this House how the meme member for Hagen has lied and I will use his own documents and words to do it!!!
Mr Speaker the dishonesty exhibited by the Opposition Leader is on a level rarely seen in this house previously. It is dishonesty which muit bring upon the Opposition leader's head the condemnation of all decent thinking citizens.
Sir, I will deal with his scurrilous allegations in the order they were delivered.
FiSir, I was accused of lyinglying to this House in a statement I made on June the seventh.
Sir, I do not lie!!!
I stand by every word of that statement. I have nothing to hide! ahd I have nothing to apologise for.
Sir, the Opposition Leader has been manipulated by a disreputable foreign owned company.
Sir, PNG Aviation Services have tried repeatedly to md and cheat this Governmentnment and when they failed to do that they have tried to embarrass us by leaking documents to the gullible members of the opposition.
Sir, yesterday Mr Wingti tabled a number of documents and claimed and here I quote: “These documents are total proof that PNG Aviation Services Pty Ltd was appointed the Sole Agent for the sale of Kumul 1”.
End of quote.
Sir, the member for Hagen continued to say that these documents proved I was lying.
Sir, that statement not only proved that Mr Wingti is not very wise it showed that he is rash and irresponsible. These documents demote onle only that PNG Aviation Services entered into a preliminary agreement - an escrow agreement with the Government of Papua uinea.
Sir, for the Opposition Leaders’ Information an escrow agreement is mers merely a conditional agreement. Itot a firm contract it isit is an agreement conditional upon certain actions.
Sir, in this case PNG Aviation Services did ulfil the conditions of the escrow and it lapsed.
Sir, to anyone who understood thes these documents and after serving the National Executive Council, the member for Hagen should understand them the import is quite clear.
The heading alone should be enough.
It says and Sir I have the document here ‘Seller’s Escrow Instructions’.
It is not a contract it is not a firm commitment it is a condition agreement as page two of the document makes quite clear.
Sir, I quote from the part headed ‘General Provisions’ Part Two:
‘Time is of the essence in this escrow’, unquote.
Sir, PNG Aviation Services had an escrow - and an escrow only - on the sale of the Kumul.
It was a limited escrow for three weeks from August the third, 1983.
The company failed to live up to the conditions of the escrow and because of this failure was not appointed as an official agent for the sale of Kumul 1.
Sir, the conditions of the escrow were not met so PNG Aviation Services failed in their bid to become an agent for the aircraft. The appointment documents signed by my colleague the Minister for Finance was conditional on the terms of the escrow being met.
They were not met an Aviation Services were not appointed as official agents.
Sir, the conditions the cohe company failed to meet are set out in part four of the general provisions. And here Sir, I quote n “five hundred thousand United States dollars, (US$500,000) and seven (7) days prior written notification to the Independent State of Papua New Guinea of proposed date of inspectiondetails of persons forming ming inspection team to enable the state to have its representative available for the inspection and acceptance flight test”. f quote.
Sir, that that company failed to meet the conditions of the escrow.
They were not official agents of the PNG Government then and to the best of my knowledge they have not been agents for the Government in relation to any other transaction.
Sir, my officials found that, not only did PNG Aviation Services fail to meet the conditions of the escrow, they tried to undermine them and sneak by without fulfilling their legal obligations.
Sir, PNG Aviation Services and its principals are completely untrustworthy and dishonest.
Their own documents prove this.
Sir, that company deliberately and with criminal intent sought to defraud the Papua New Guinea Government during the negotiations leading up to the sale of Kumul 1.
Sir, to substantiate these allegations I table two documents.
The first consists of information provided to a Minister, Sir Barry Holloway by Mr Valentine of PNG Aviation.
The second is the report of the official government inspection of the aircraft which was prompted by Mr Valentine's communication.
(Table documents)
Mr Speaker, it is typical of Mr Valentine’s behaviour that he did not operate through the correct channels he attempted to politically manipulate ministers just as he is manipulating the member for Hagen now.
Sir, document one makes a number of spurious allegations about the condition of Kumul 1. lentine claims the interioterior of the plane was in terrible condition, it had been left out on the tarmac and so on.
Sir, all these claims were later proven to be absolute lies!!
e intent of this document went we believe was to make us distrust the company we were dealing with and transfer our business to PNG Aviation Services.In other words having failed to win the business legitimately PNG Aviation Services were trying through slander and innuendo to undercut their rivals.
Sir, these were serious accusations so my department head, Mr Yauieb, immediately ordered an office of Civil Aviation official, Mr EC Johnston, superintendent of Air worthiness, to fly to Copenhagen to inspect the aircraft.
His report is Document 2.
Sir, this document shows that there was nothing whatsoever wrong with the aircraft.
It also shows that the information supplied to my Government by Mr Valentine was completely misleading and false. Valentine liedy Ministers.ters.
Sir, these lies caused this Government to spend a great deal of money as we had to ensure that the allegations were false.
Sir, PNG Aviation Services’ role in this incident can only be described as negligent or criminal.
The state solicitor has expressed a preliminary opinion that the state has civil legal rights against Mr Valentine for negligent misstatement and injurious falsehood or slander of title.
I have issued instructions for the state solicitor to be fully briefed and to institute proceedings if the brief confirms his preliminary opinion.
Sir, subsequent to the incident I described my departmental head decided on his own initiative and through no influence of mine that Mr Valentine and PNG Aviation Services were not trustworthy and recommended terminating dealings with them.
Sir, the NEC and the member for Hagen was at that meeting accepted these recommendations and terminated all dealings with PNG Aviation Services.
Sir, the reason for this termination was the company's complete failure to live up to the conditions of the escrow agreement.
We now believe PNG Aviation Services did not have the capacity to meet the conditions and did not at any stage intend to meet them.
An example of this is their attempts to avoid depositing money for inspections. Sir, I would like to table another document Number 3. (Table Document)
We now know what Mr Mendoza and Mr Valentine of PNG Aviation Services are like. There isuestion about them them. The qun is why does the Ophe Opposition Leader associate with these individuals? Why does he believe bsolutsolute nonsense that they feed to him.
Sir, one could dismiss the allegations by the Opposition Leader aser as merely being the mistake of an inexperienced and rash man.
However, I - considering the deep offence and pain that he gave me yesterday - am not inclined to do so.
I believe that the member for Hagen deliberately and dishonestly misinterpreted these documents - and that he deliberately misled the honourable members of this Parliament.
Sir, the member for Hagen went on to accuse me of another lie, in this instance he not only misinterpreted these documents and that he deliberately misled the honourable members of this Parliament.
He claimed that I had said things that I had not said. Sir, he deliberately liedhto this House!
The Opposition Leader did quote me accurately. He repeated my words as Ishad said them.
But, he then went to completely misinterpret them. He was either being eivelyively stupid or he wasberately twisting the facts.
I told this house that the company, Intercrop, which wach was the agent of Israell Aircraft Indus in this region, did not accept that PNG Aviation Services ices was their sub-agent.
Sir, that statement - I believe - is quite clear to all reasonably intelligent and sensible people.
Intercrop did not accept any claims regarding sub-agency agreements. PNG Aviation Servicviouslyously disagreed - as I stated on June seventh.
I did not side with either company in a dispute which is purely commercial and has nothing to do with the Papua New Guinea Government.
But, the Opposition Leader claimed that I did side with one company. He said I claimat no legallegal agreement existed between the companies.
That is an outright and damnable lie!!!
At the time of making that statement I knew there was an agreement. But, I knew it was a mattematter tter of legal dispute. Intercorp claims the agreeagreement is no longer valid due to the non-performof PNG Aviation Services.
PNG Aviation Services claim it is valid and have threateneatened to take legal action.
As yething has resulted.
S
Sir, as I have said many times before, this dispute has nothing to do with the Papua New Guinea Government, it would be beneath my dignity as Prime Minister to comment on it.
It is not a matter for the Government and I am not interested in it. It isspute between commercmmercial companies. It is not a matter forrnmeernment and never was a matter for Government.
I can only say I am extremely saddened by the Opposition Leader’s obvious gullibility and tenden believe anything he hears from individuals involved in sucn such a dispute.
Sir, such behaviour is beneath the dignity of a real Leader of the Opposition.
The member for Hagen’s behaviour in the last few days exposes his naivety and lack of experience.
Mr Speaker, Mr Wingti then went on to try and - in some way - tie me in with various people identified with Wings Australia in this part of his statement he grew even more reckless and vicious.
He tried to link me - The Prime Minister of Papua New Guinea - with people who are under suspicion of criminal behaviour!
Sir, the member for Hagen has not only exceeded the bounds of good taste, he has attempted to bring our nation into disrepute.
On June the seventh I did not defend the people involved in Wings Australia against the allegations made against them.
I did not defend them in any way - I did not have the information to do so - and even if I had - I would not have done so.
Sir, as Prime Minister of Papua New Guinea it is not my role to defend individuals accused of criminal offences.
It would appear that there are quite a few questions hanging over the principals involved in that venture.
There are serious allegations about various activities and I believe an individual - an Australian police sergeant - has been suspended pending investigation of these allegations.
Sir, I know nothing of these allegations other than what I have read in the Media and what my advisers have told me.
I do not know whether the allegations are correct or not and I do not wish to venture any opinion on them.
Sir if at the time of my dealings with these people, I had known about these allegations I certainly would not have met them.
I am always conscious of Papua New Guinea’s good reputation and very careful of it.
However, at the time, I was not aware of the allegations and I could see no reason not to see them.
I do not apologise for this. No one can see into tture.ture.
In the same spirit if I had known how the member for Hagen would behave in March 1985 I would not have allowedto join the Pangu Pati and I certainly would not have appointed him Department Prime Ministinister.
One can never tell who is going to prove to be a criminal or a turncoat.
Mr Speaker, the member for Hagen finished his ridiculous and totally unsubstantiated attack with all sorts of mud slinging and innuendo.
None of it logical, or proven, and none of it has anything to do with me.
He completed his diatribe with a demand for me to step down from my position pending an investigation.
Sir, it saddens me to say this - but I believe the person who should stand down is the Opposition Leader.
Not only has he failed as Deputy Prime Minister - he has failed as Opposition Leader.
Yesterday’s attack stripped him of any credibility that he may have left after his traitorous and disloyal behaviour in March.
The member for Hagen deliberately tried to mislead this House on serious matters. He is guif some of the grae gravest offences a Member of Parliament can commit.
The only investigation that could be launched is into PNG Aviation Services and how they have manipulated the Oppon into this ludicrous positposition.
Is the member for Hagen a mouthpiece or a business representative of Valentine, Mendoza or Lussick? Why has the Oppon Leader nder not censured his Deputy Leader for actions which may result in criminal charges for fraud? Mr Speaker, the Oppos is i is in disarray and I smell corruption at the highest levels.
Instead of being the clean force that Mr Wingti claimed it was going to be it has become mired in scandal and wild accusations. It has alleged itself ques questionable businessmen, allowed its Deputy Leader to get away with criminal behaviour with not a murmur and completely f to provide any serious policy alternatives.
Sir, to cover up for these failings thes the member for Hagen launched a vicious, dishonest and false attack on me yesterday.
Sir, this attack - because it was so unfair and such a low form of gutter politics - hurt me deeply.
I was shocked and saddened by it and today I move this motion with a heavy heart.
Sir, I move that this House censure the member for Hagen for deliberately misleading this House and lying to the Parliament of Papua New Guinea.
Sir, the matter must be referred to the privileges committee.
The member for Hagen is guilty of some of the most deliberately misleading and dishonest comments that have ever been uttered on the floor of this House.
Sir, he did not make them in a moment of honest emotion or passion.
He deliberately - and with underhand cunning - tried to mislead the honourable members of this House.
Sir, for the sake of this House for the dignity of the National Parliament - he must be disciplined.
Sir, that is why this matter must be referred to the privileges committee.
The issues debated in Parliament and raised in this speech became the subject of a Commission of Enquiry was constituted on 28th August 1985 and known as The Pelair Enquiry. It delivered its finding in September 1986. At the end of May t the behe beginning of June 1987 the Company PNG Aviation Services, Mr Mendoza and Mr Lussick commenced proceedings for defamation in respect of this spee160; lentine issued hied his writ in December of 1988.
By
By these proceedings the Plaintiffs seeks to vindicate their reputations. They claim that in thisch,eech, published throughout the country, the ordinary and natural meaning of words and comments made concerning them, amount to gross defamation. They are deed as disreputaeputable foreigners, completely untrustworthy and dishonest. It asserts that theany andy and those associated with it are dishonest and disreputable. It says that thre party te a deliberate ante and criminal attempt to cheat and defraud the Government of Papua New Guinea, that they were involved in a ct association with the Leader of Opposition, that the Plaintiffs were dishonestly trying tong to assert a false meaning to documents of contract entered into with the Government, in order to take improper advantage. It claiat the Plaintiff weff were party to either criminal or negligent in conduct in relations for negotiation for the sale of the Governments Aircraft “Kumul 11; a Gulfstream Jet Aircraft. Bir behaviour the the Plae Plaintiff had demonstrated questionable business ethics and were not fit to associate with reputable persons in commercial political or public life. They claim daman the sum osum of K2 million each.
In defence it was pleaded that the matter published was not defamatory or capable of the defamatory meanings asserted e Plaintiff. In the alternativewas cont contended thad that in so far as the speech was defamatory of the Plaintiffs then the Defendants rely on the statutory defences provided in the Defamation Act. The Defence states:4.(a) it was a fair t of the proe proceedings of the Parliament, published in good faith for the information of the public;
(b) ҈& was fomment: wnt: with respect to the pthe proceedings of the Parliament; (and rend relevanlevant matters under s 9 of the Defamation;
(c) & it was published in good good faith for the protectioection of the interests of the person making the publication;
(d) ټ i wasisublished foed for the protection of the interests of the first defendant;
(e) ҈& it was was publisublished for the protection of the interests of the second defendant;
(f) ; it ublished for thl pubooc good;
(g) ـt was was pubs pubs publishelished for the purpose of giving informati its rs wispect subject as to which those readers had, or were reasonably bely believelieved by d by the dthe defendants to have, such an interest in knowing the truth as to make their conduct in making the publication reasonable under the circumstances;
(h) ҈ s walisublished ined in the course of, or for the purposes of, the discussion of some subject of public interest, the publscussf whis for the public benefit and, so far as it consisted of comment, the cohe commentmment was was fair.
In reply the Plaintiffs maintained that it did not constitute a fair report for public information. It was merely vertisement ment filed for the purpose of attacking (inter alia) the Plaintiffs. Nor was it madgood faith, ith, rather it was with the knowledge that the ations in it were untrue or in reckless disregard of the trhe truth or falsity of the allegations. Tatement, it was assertas rtas made and published for tfor the purpose of attacking the character and reputation of the Plaintiffs.
The Plaintiffs plead the publication could not be claimed to be fair comment eith either, because no facts are claimed as true on which any comment might legitimately be based. In fhey say the publicatiocation does not constitute comment at all but simply consists of untrue assertions of fact concerning the Plaintiffs made in exaggerated and extravagant language.
In PNG the Defamation Act (Ch 293) which consolidates the law on defamation protects the rights of individuals to their good reputation. It restates the essentommocommon law principles in statutory form. It is the substantaw of deof defamation, but without provisions for such matts procedure, damages or even the absolute protection of Parliamentarians for speeches in thin the House, the Act is not an exhaustive in the way that Australianalian statutes on which it is modelled are said to be codes. Accordiwhere the act is nois not specific then common law not inconsistent with the Act is relevant. Eh decisions pursuant to s to schedule 2.2 of the Second Sch of the Constitution are therefore authoritative, while Ause Australian decisions and those of other jurisdictions maybe persuasive.
Tei Abal v Anton Parau 19au 1976 PNGLR 251
Telgraph Newspaper Co Ltd v Bedford [1934] HCA 15; 1934 50 C.L.R. 632
Clines v Australian Consolidated Press Ltd [1966] NSWR 481
Illustrative of this is the comment in Calwell v Ipec Australia Ltd 1975 CLR 321 regarding the 1958 NSW Defamation Act (which in respect of qualified protection was word for word with our section11). Thet said that whether or r or not the act should be intrepreted without any presumption based on pre-existing law, it is hardly poe to do otherwise since the “terms of the Act do not (themselves) throw any significaificant light on the problem”.
Chapter 293 commences with a definition of defamatory matter. Section 2 of the Act states:
“(a)   repun of t of that peat person is likely to be injured; or
(b) He is likely to be injin rion ode; or
(c) &; Ot0; Other peer persons are likely to y to be inbe induced to shun, avoid, ridicule or deshim, defam impun...&;
gain by s. 5 o. 5 of thef the Act Act publipublication of defamatory matter is prime rime faciefacie unlawful:“5. ҈& It is u is unlawfulawful to publish defamatory matter unless the publication is protected, justified or excused
by law./p> The Defendants at trial have formally acknowledged the Statement as defamatormatory, and that they caused publication of it in the
newspapers as the Plaintiffs claim. However thence claims the the protection accorded to publications of defamatory matter set
out in the Defamation Act. The Defence acknowledgement is appropriate. There can be no doubt thatallegations against the Plae Plaintiff, jointly and severally
are defamatory. It is not necessary tole ogle out and rule on eacividual statement defamatory of the Plaintiff but assertions such
as “PNG Aviation Seon Services and its principles are completntrustworthy and dishonest...” that it is “a di;a
disreputable foreign owned Company, that the Company deliberately - and with criminal intent - sought to defraud the Papua New Guinea
Government during the negotiations leading up to the sale of the Kumul 1” are of themselves seriously defamatory and indicate
the tenor of the assertions made throughout the statement regarding the Company and each of the individual Plaintiffs who are singled
out in a similarly harsh and defamatory manner. Itherefore the ruling of t of this Court that the “Statement by Prime Minister
Michael Somare in reply to statement by Oppon Leader Wingti, on August 16th 1985” and subsequently published outside of Parliameniament
is defamatory of the Plaintiff company and each Plaintiff individually. The absolute immunity Members of Parliament have from civil and criminal liability for any thing said or done in the course of Parliamentary
proceedings is not provided for in the Defamation Act. That comes the Constitutiotution (s. 115 (4)) and the common law. The Defon
Act provides furs further qualified protection or immuniom civil or criminal liability. The tial basis of this pros protection is
that defencefences will not be available if the defam statement is published othd other than in the circumstances the act provides
for, and will in any case be forfeited if publication is not made in good faith. The De specifically relieselies on the protection
afforded by sections 8, 9 and 11 of the Defamation Act. The first of these is the protection afforded to reports of matters of public interest. The relevant parts of section 8 of the Act
read as follows. Public Reports “8. ectotn: roports of matof puof public interest. (2) fer thpopur ofeshis tct, Act, Act, it is lawful to publish in good faiththe iationhe Pu
Sec 8 (largethat ovidiat:
“a publication is made in good faith for ther the info informatirmation ofon of the Public if the person by whom it is made is not actuated in making it by ill will to the person defamed or by any other improper motive, and if the manner of the publication is such is ordinarily and fairly used in the publication of news.”
The Defence says that the statement of the Prime Minister that was published was obviously a fair of report of proceedings of Parliament published with the intention of providing information for the Public. It must be a feport it wast was said since it was precisely identical with the speech given in Parliament and “nothing could be fairer than precision”. Obviouslypublic was informnformed by a report. He said thid this Court s ould be slow to attribute malice here in PNG. The evidence herws that inat in both d and its reporting, and on occasions, advertising, the lang language of politics and dispute in this country is often very robust. Ietimeurs that the newspapwspapers are selective and effectifectively partial, and that a fair report therefore can only be obtained i manner adopted. The defence warefore made made out and could only be defeated if thef the Plaintiffs could show first that it was not a publication “such as is fairly and ordinarily used in the publication of news” and secondly that it was not made in good faith.
Counsel for the Defence pointed out that the onus of establishing these issues lay with the Plaintiffs. As to the standard of that proof he submitted that notwithstanding that the standard of proof in civil matters need only accord to the balance of probabilities, the proof required in such matters as are before this Court should be appropriate to the seriousness of the matters to be proved. That is an apt descripof t of the standard required, in these matters and is adopted by this Court.
Counsel for the Plaintiffs accepted that while a fair and accurate report is protected by s 8 he maintainede is clearly a distinction tion between a report of a Parliamentary speech and a republication of that speech by its maker outside the House. No privilege or ption unde under the Act lies there.
I am satisfied that this is so. The position at commw is c is clear. RV Lord Abingd794) 170 ER 0 ER 337 and R Creevey (1815 ER 102) cited by both Counsel are long standing auty for the proposition that republication of Members speeches outside of Parliment is not pnot protected. These cases are also cited by Fleming on The Law of Torts (7th Edn 553) where it is said:
“Members of Parliament enjoy absolute immunity froml and criminal liability for anything said in the course of Parliamentary proceedings.  Thitection, however, does does not extend to republication by Members of their speeches out side the House.”
A more modern authority is Dingle v Assoc Newspaper Ltd 1961 2 QB 162 188 where Devlin LJ, states:
“Privilege attaches to form or occasion but not to substance. What a Member of Parlt sayt says in the House of Commons is privileged, the repetition of the very same words outside is not. A report of a judicialarliparliamentary proceeding may be privileged, but if the substance of the matter be cast into another form, the publication is subject to the ordinary law. Tject of the privilege is e is so that the public can obtain a fair report of what is said and decided in Parliament and in courts of law; it is not to confer a licence on anyone to handle the ct-matter thereafter in whan whatever way he wishes.”
At common law then, the publication complained of is not protected and the Plaintiff’s claims must succeed.
Turning to the defence claimed under the Act, section 8 of the Defamation Act protects a fair report published in good faith for the information of the Public. A r as distinguished from from comment is a factual recounting of events or proceedings. It need n a detailed, word word for word, account, but it must not bnted or distorted. It must be at leafair anal analysialysis or summary of the proceedings being reported.
As was said inrson v Nationwide News Pty Pty Ltd 1970 91WN (NSW):
“A fair report of...proceedings does not however require to be a verbatim account of those proceedings or their result. It is sufft to publish a fh a fair abstract, a fair analysis, a fair summary of those proceedings but to gain the proctections of [the Defamation Act] the abstract, analysis or summary must...retain subial accuracy in all materiaterial aspects. A report which contantrue true statements in a material particular...prejudicial to a Plaintiffs reputation must be regarded as an unfair report of proceedings as far as the Plaintiff is concerned.”
ess relates to the accuracyuracy of the report of what was said and done in the proceedings reported, not to the content or otherwise of statements made in those proceedings. The reporter thee must gett get the basic facts right.
“The report...must be substantially accurate, although of course the speech that is being reported may be riddled with falsehood.”leming Law of Torts 7th Ednh Edn)
Counsel for the Plaintiffs also pointed out that even if the publication was somehow permissable, it could hardly amount to a fair report of the proceedings of Parliament since it was limited to a repeat of only the First Defendant’s speech. That is the report of one speech in isolation not one in the context of debate. On the authorf R v Abingdoingdon and R v Creevey Counsel maintained that the report of a single speech out of several is not a fair repo a deor days proceedineedings and is not protected.
That is so, but there is reference toce to other speeches in the statement complained of and it describes itself as a ‘statement in reply to a statement’. Thas also evidence in this this Court that reports of other speeches on similar issues leading up to this statement had already been in the press. These tensuppoclaim of it f it being a report of an ongoing matter bter before the public.
Putting aside the challenge of republicationn insofar as the report is required to be substantially accurate, the verbatim report of thof the First Defendant’speech may well be said to be a “fair report” under section 8 as the Defence contends. It c accepted too, that itat it was published to disseminate the speech “for the information of the public” as provided in the section. However itnot bd that R “the manner of publication is such auch as is ordinarily and fairly used in the publication of news” as red by s. 8 (3).
In the first place it is an advertisement. It appears in all all the newspapers in the form of an advertisement and in three, under the emblem of the Independent State of Papua New Guinea. Further e Times of PNG on G on SatuAugust 18th 1985 the publication is headed “Advertisertisement”.
An advertisement, a paid announcement, is not theer in which proceedings of Parliament are ordinarily reporteported. In general, publication is made by journalists or other independent report rather than by the participants of the debate themselves. Though such advertise have have become more freqin recent years it was acknowledged by the First Defendant dant that this was not the case at the time of this speech. In evidee agrhat this was was the first time that any member of Paof Parliament had used an advertisement to publish a speech made in the Ho/p>
Again, the publication of the speech (in three newspapers) under the State emblem toem to my mind, further removes it from the scope of being a fair report, in terms of section 8. In ft enhances its being ving viewed as an assertion of fact or a statement, made with the authority of the State. Such an element ficial prol pronouncement inevitably must prejudice the fai that is required for a bala balanced report and the fairness required as to the manner of its publication.
There is the furthsue of good faith that is a is a concomitant of all the defences under the Act. It has been thrut the cent central submission of the Plaintiffs that the publication was motivated by ill will, and even if somehow there were, any privilege in the publicatioen that defence, that protection, was lost by the issue of e of the publication for improper and wrong motives, namely the deliberate attack on the character and reputation of the Plaintiffs. I will return to this later. Ben aside from the issue osue of good faith, for the reasons already set out I find that the statement is not a fair report published in the manner ordinarid faised in the publication of news. The protectotection oion of section 8 Defamation Act therefore cannot availed of by the Defence in respect of this publication.
The Defendants also rely on the defence of fair comment contemplated by s. 9 of the Defan Act.
FAIR COMMECOMMENT
It is a defence to an action of defamation to show that the words complained of constitute a fair comment on a matter of public interest. (Gatleyel and Slander 8th 8th edn 69). Section 9 of the Defamation Act gives statutory effect to this defence. The relevant part of sectisection provides:
9. ټ&#Protection: fair fair comment
(1) ـor ther the purpopurposes of s of this Act, it is lawful to publish a fommen>
160; ټ rting anng any of t of the matters with respect to w to which hich the pthe publication of a fair report in good faith for tformaof the public is a declared to be lawful by section 8; or
(b) &160; #160; s; reing:
(i)i) ټ&#t60; ube public coic conduct of a person who takes part in public affairs; or
(ii) &##16heactsursonurson,ar asar as his char characteracter appe appears in the conduct; or
(c)) < respectipg:( > (d) & resng asng a communication made to the public. (2) &##160; Whetherether a cr aecomms t is or is not fair within the mg of Act iuesti fact. (3) #160; If a comms nois not fait fait fair, anr, and is defamatory, the publication of it is ful. Gatley: para 69ra 692 cit2 cited by Defence Counsel sets out the basis of this defence. “692. What be pr  To s To succeed in a defefce of fair comment the defendant must show that the words are comment, and
not a statement of fact. He must alsw thare issis of fact for the comment, contained ined or reor referred to in the matter complained
ofed of. Fi, he must show that thme thment is on a matter of public interest, one which has expressly or implicitly put before thre
the public for judgment or is otherwisetter with which the public has a legitimate concern. 160; If, hr, the plaintiffntiff can
show that the comment was not made honestly or was actuated by malice, he will defeat the plea.” It must be emphasised that when pleading fair comment, andant is pleading a defencefence to comment only; a defence regarding an assertion
of opinion made about particular facts. Thert be a basis of true frue facts to support the comment. A commeown to be fair on p
on proven facts is protected by law, angation of defamatory facts is not. “In a defence of fair comment if the facts acts on which comment is based are stated, must be shown to be true.&rue. It is
sufficient that comment on them be fair. But the commentot be fair fair if the facts are misstated.” Gorton v ABC3 22 FLR 181].181]. In other words, if the facts on which comment is based are rue tfence fails.
The separation of fact and commentmment is vital. Comment must be recognisasle as comment. If fact and comare so mixe mixed up such that the one cannot be separated from the other, the publication will stand as an assertion of fad thi amenable to a defence of fair comment. The; The Privy Counsel visDavis v Shepstone 1one [1886] UKLawRpAC 12; 1886 11 AC 187 decleared:
“the distinction can not be too clearly borne in mind between comment or criticism and allegations of fact...it is one thing toent or criticise, even with with severity, the acknowledged or proved acts of public man and quite another to assert that he has been guilty of particular acts or misconduct.”
The essence of the defence of fair comment then is that the words challenged must be comments not assertions of fact, and not only must the comments be comment, but fair comment on facts truly stated.
Counsel for the Defence referred to Gatley (para 696) as providing a clear summation of the meaning of fairness. Ids (in summary) as followollows:
“Fair Comment.
Not all comment is protected; the comment must be fair...Whathe meaning of “fairness”... First the comment mustasedbased on facts, sts, stated or indicated in the matter complained of. If the facts are not ated ated or referred to, then a statement of opinion will be in the same position as an alion of fact...
SeconSecondly, the comment must be supported by the facts, or there must be a basis of fact sufficient to warrant the comment made...
Thirdly, the facts stated in the libel must be truly stated, or if some are not proved to be true then the Defendant must show that the expression of opinion is fair comment having regard to such facts...as are proved.
Fourthly the comment must be ‘such as can be fair called criticism, and not be merely invective’.
Finally, the fact that the comment was made maliciously - or is not the expression of the authors real opinion will also make the comment unfair.”
Except for reservations about the third proposition which I will return to, these propositions of the learned authors are unchallenged.
The Plaintiffs however denied that any of the defamatory material insofar as it relates to the Plaintiffs was in anyway an expression of opinion. It was mesertion of fact.&act. Nor had tfendants establisablished that the words complained of in the statement made would have been understood by any reasonable reader of the publication to be m exprns of opinion andn and not a bold statement of facts.
They said the statements made in respect of the Plaintiffs were not comments in respect of proceedings of Parliament (s. 9 (1) (a)) nor was any defence available under s. 9 (1) (b) (i) (ii)) since the Plaintiffs are not persons who had taken any part in public affairs.
Plaintiffs’ Counsel submitted that none of the matters postulated as comment could be said to be fair comments on facts, since the supposed comments made relate are founded on statements about a contract with the Government which were not true. These statemeere in any cany case not expressions of the First Defendant’s genuine opinion because all he did was read the speech prepared by others. There was pevides well thal that he was in fact motivated by an intentntention to harm the Plaintiffs.
Section 9 (1) (a) of the act proteair comment on matters contained in a fair report declared to be lawful by s. 8. In t In this ice the DefenDefendants statement has not been declared lawful in terms of s. 8 so the defence in respect of comment on this head is therefore no longer availabl>
But putting that aside and considering the defence in e in 9 (1) (a) on its own merits the strength of that defence rests on proof of fair comment on facts truly stated just as it also applies to the other defences put forward under s. 9.
The defence would plainly be available in respecting a communication to the public s. 9 (1) (h) and in respect of the character and conduct of a public officer (s. 9 (1) (c)) such as the Leader of the Opposition. Much is recordearding him him in the statement. However the Defence submit that comment on the Plaintiffs is permissable under s. 9 (1) (c) because contracting with thernment is “inevitably to participate in public affairffairs”. This is too sweeping a generalisation.
The Defence has suggested that when Mr Mendoza gave information to the Leader of the Opposition about the matters in issue he must have knowy would provoke public attention and would be raised in Parn Parliament. He was then entering tblicublic arena. While it is trat persons cons contracting with public bodies or those who may be the sources of a Parliamentarian’s material may be to sny, I do not accept that the mere fact of contracntract, or the answering of questions of, of, or supplying information to, a Member of Parliament, means that person is engaging in public affairs.
Public affairs are those matters and issues that are the concern of the community at large. The management and conof p of public bodies or services, and the conduct of national and local government are obvious examples. Persons holding or se publ public office are clearly taking part in public affai160; But where a personRn’s standing in relation to a public body or figure arises from contract alone I would hold that pers not taking part in publicublic affairs. A person or company sing oing office furniture or stationery to a Government Department can hardly be said to be taking part in public affairs nor in my view would be a person or company contracted to sell surplusrnment vehicles. Furt Further r, further ever evidence would be needed to shift that person to the public arena.
Accordingly I rule that a defence of fair comment is not open to the Defence under s. 9 (1) (b) or (c) in respect of the Plaintiffs. Iunder 9 (1) (h). Ob0; Obviouslye has been ceen communication to the public.
There was real dispute over truth of thts in this matter and in particular in respect of the contract of agency for the sale of thof the Kumul I. Defence Counsel contendednthe necessary basis of fact had been proved. He said:
&;Overwhelrwhelmingly the comments are based on factual matteferred to in the speech. The facts rue by and largelarge. Mathematprovisiovision is n is not required the arrangement wie Government that the PlainPlaintiffs had were restricted ones; the “escrow agreement” was ambiguous; the Plaintiffs had inaccly described the conditionstions of the aeroplane in Copenhagen; the Government had incurred considerable expense in checking on its condition; there was a purely commercial dispute between the Plaintiffs and others regarding any entitlements to commission; and, the government was exercising considerable caution in dealing with the Plaintiffs. This clear substratum of f of fact to support the comments that were made.”
The Defence has submitted that the facts just referred to are true ‘bylarge’ and support the comments made. But the dthe defencfair coir comment depends on the defendant proving that each and every statement of fact in the words complained of are true. Iefendant fails to prove tove the truth of any one of the stnts of facts alleged, the dthe defence fails.
Earlier I referred to reservations as to the statement in para 696 of Gatley reln by the Defence. Tha; That is if some factsfacts are not proved true, then the Defendant must show that the expression of opinion is fair comment simply having regard to such facts as are proved. This proposition ofeGatlkes itss its authority from s 6 of the UK Defamation Act 1952 which makes such a provision. Thend several Australian Dian Defamation Acts have similations0; There is no equivalent provision in chapter 29er 293.
. While btedly insignificanticant error would not preclude such a de, basic contentions supporupporting comment must be shown to be true, and not just ‘by and large’.
Turning to theement itself, on 16 August gust 1985 the 1st Defendant was replying first of all to an assertion by the Leader of the Opposition, quoted in the statement, that documents tabled by the Leader were:
“proof that PNG Aviation Services was appointed sole agent for the sale of Kumul 1.”
The 1st Defendant in the statement denies this was so. He said “the L of thof the Opposition has been manipulated by a disreputable foreign owned company” that “PNG Aviation Services hapeatedly tried to mislead and cheat this Government”. Suceement as the Gove Gove Government had with the Company he said was merely a “preliminary agreement,” “an Escrow agreement”, “merely a conditional agreement”#8220;not a firm contract, act, it is an agreement conditional on certain actions”. The sent continues “8220;PNG Aviation Services did not fulfil the conditions of escrow and it lapsed”. The statement goeto assertssert:
RG Aviation Services failed in their bid to become an agent gent for the aircraft.”
“PNG Aviation Services were notinted as official agents.”
“They were nore not official agents of the PNG Government.”
The evidence before this Court has shown that in fact PNG Aviation Services had been appointed official agent of the PNG Government for the sale of Kumul 1 on 3 August 1983 by the Minister for Finance. The instrument of appointment reads:
“The Independent State of Papua New Guinea has appointed PNG Aviation Services Pty Ltd. of Port Moresby, Papua New Guinea as sole agent to sn behalf of the said Independent State of Papua New Guinea inea and in accordance with the Escrow Instructions One (1) Gulf Stream II Aircraft presently in Copenhagen, Denmark, together with associated spares presently in Papua New Guinea.
This will involve arranging for the inspection of the Aircraft and spares at their respective locations and implementation of the Escrow procedure approved by the Independent State of Papua New Guinea.
MINISTER FOR FINANCE”
As is set out in that instrument the ‘Escrow procedure’ did not place any conditions on the appointment. That simply related to the conditions for implementation of sale.
Before the Court the 1st Defendant acknowledged that he was in fact aware of the appoit at the time of delivering the speech in the House. He acknowl too that his asis asss assertions of the conditional nature of the appointment were without any legal advice. The speech had brepared byed by his staff he said.
Passages from hisence show this:
Q.&#>Q. ;ټ T60; They (sey (staff) prepared this statement?
A. & & Yes.
Q.
Q. &##160; I60; It didn&;8217cu oco y to you to refer it to a legal officer?
A.ټ&##160;; No
Q0;   ; Ye& you7;ve stve statedtatedtated R ‘th16;the lege legal effect’ of these documents?
A. ;ټ&##160;
ـ#160; You&#ve 7;ve s;id Paid PNGd PNG AvNG Aviatioiation Sern Services had no agency and based on this have made damning statements?A. ـ҈ Y60; Yes.s. I m; I madeatement. 160; One in response t Oppe Opposition Leader.
Q. But one basedhon wout yid said were legal consequences?
A. &ـ /p>
Q.
Q.. ټ 160; You have had nhad no legal training?
A. ـ Y6s.
Q.  &ـ҈ ead tatee dore delivery?very?
A. < 1es; Yes.
Q.&#>Q. ;ou samade seof legal coal conseqonsequenceuences?
A. &##10;& Ye0;
.Q.
Q. ـ҈ A60; And basd based on these you made the stats set
&##160; & Yes.Q0ټ#160; Wou;d itld it not not havt have have been fair to have had a lawyer look over the stnt?A.&##160; &#I dealt wath tith the Stae Statement as it was prepared ared for mfor me. We have Justice Department lawyers and I would hot th lookt.
Q. ; B60 youtknow no lawyerawyerawyer look looked ated at the Statement before delivering it.
A. &##160; Yes.
Q... ټ&#Y60; nou know that that no one no lawyer looked at it first.
A.&ـ҈& I know in Parliament I can be vicious and say anything I likI like.
>
Q.Q. ـ You kn o no one looked oved over the speech before you delivered it who was a lawyer or who had legal training?
A. ;es
Iss eIss extion tion the 1st Defendant was reas referreferred to d to the pthe passage in the statement: The state solicitor has expressed a preliminpiniot thee has civil legal rights against Mr Valr Valentinentine fore for negligent misstatement and injurious falsehood or slander of title. I have issued instructions for the state solicitor to be fully briefed and to institute proceedings... He reasserted his f that lhat legal advice has been taken though he did not state that he had in fact given instructions to institute proceedings.
And regarding the appointment itself.
Q. &ـ D6d Did Did you you read the documents tabled by Mr Wingti on 15 August?
A. ;ټ I basedbased my remy reply on his statement I didn’t read all the ents.
Q.; #160; t   (Shown x 37 andr 4 of  further statement in anso r to amended interrogatories ie appointmenMinister of Finance). Did you read this document before making your speech. Its; Igned by Mr Bouraga Maga Minister for Finance?
A0; & I 8an’t r7;t recall,call, but I went through the documents.
Q. ټreadsAviatervices weps wepointed agent for PNG. You read this?
A. ʔ&160; #160;   &##160& Yes.
Q.  ҈&Sowould have beee been aware of Agen Agency ofcy of PNG PNG AviatAviation Services?
A. & Y60; Yes.
Q.ـ҈& 160; That That is contro w to what you say in 160; youtement?
A.&p>A. ҈& A60; After Pter Piatiovicesed to sellaircr#160; They did not not perfoperform, crm, certaiertain documents related to that time.
.Q. &ـha6ind tind thaumenaument [ent [appoiappointment] before delivering your speechpeech you couldn’t assert PNG Aviation Services had never been appoiagent
A0; Yes.
A. ;&e ny was apas appointeointed nted to seto sell thll the jet.
Plainly then to say the Company had not been an appointed agent was to mistate basic fa160; st Dent, then goes on to assert that:
R>“PN20;PNG Aviation Services and its principals are completely untrustworthy and dishonest.
That the company deliberately and with criminal intent - sought to defraud the Papua New Guinea Government during the negotiations leading up to the sale of Kumul 1.”
The 1st Defendant goes on to say that:
“...to substantiate these allegations I table two documents.”
Here, it might be said are allegations of opinion or comment followed by the fact basis said to justify them.
“The first consists of information provided to a Minister Sir Barry Holloway by Mr Valentine of PNG Aviation Services. econd is the report of thef the official Government inspection of the aircraft which was prompted by Mr Valentine... Sir, documne makes a numbenumber of spurious allegations about the coon of Kumul 1. Mr Valr Valentine clahe inhe interior of the plane was in terrible condition. It had left on the tarmd srmd so on.
Sir all thel these were later proven complete lies...PNG Aviation Services were trying through innuendo and slander to undt their rivals. Sir these were us accusatiusations, sns, so my department head Mr Yauieb immediately ordered an officer of Civil Aviation official Mr EC Johnston, superintendent of Airworthiness to fly to Copenhagen to inspect the aircraft. His report isment 2.
Sir this document shows there was nothing whatsoever wrong with the aircraft. It also shows the inform supplied to my Government by Mr Valentine was completely misleading and false... Sir; Sir, PNG AviaServicesvices role in this ent can only be described as criminal or negligent.”
The evidence shows that ihat in fact the two documents tabled to sutiate allegations of criminality or negligence do not bear bear them out. In the first documentalentalentine reports the concerns of a Mr Ford regarding the condition of the Kumul 1 when he (Ford) and a prospective purchaser viewed it in Copenhagen. letteorts Mr Fords suggestigestion that an inspection shoulshould be made to verify his concerns. Ths no statement by Mr Vinr Vine in the letter that amounts to a criticism of the aircraft by himself or PNG Aviation Seon Services. The second document, thort of Mr Johnston while not supporting Fords complaints ints in total found there was some basis for his concerns. At the timeAviatervices wees were already appointed agents for sale. That had oed just two two two days prior. The Company therefos “no rivals to undercut, libel or slander”. Arguably it woule been been been improper for the Plaintiff company hareceiuch a report to h to have suppressed it.
These matters were raised in the Pelair inqr inquiry and the relevant parts were put d acknowledged by the 1st D1st Defendant as correct. That porti the reporreport was exhibited without objection not as evidence of those matters in this trial but as evidence of what was said regarding them at that enquiry.
It is clear the de of fomment cannot stat stand. The fon which the supp supp supposed comments were made regarding agency and the state of Kumul 1 were simply not true. The Defence ailed to show show such a basis of true facts to support comment. When facts are mistated any comment cannot be claimed as fair and on this ground the defence must fail. There is also force e Plai Plaintiffs submissiot if these comments were prepared by the 1st Defendants staff, they cannot be said to be thbe the comments of the 1st Defendant.
t even if the summary of facts outlined above by Defence Coce Counsel were to be considered as a basis for comment, on any reading of it, there is nothing there on which to found the allegations of corrupt and dishonest motives on the part of the Plaintiffs. I am satisfied that the allegations that PNG Aviation Services was a disreputable foreign owned company whose principals were completely untrustworthy and dishonest, and acting with criminal intent etc.are not only unfounded in fact but are unproven. cannot be fairly describedribed as comment or criticism. They sa unfounded defamatoamatory allegation of fact and the defef fair comment fails.Next are the defences of qualified protection raised under secr section 11.
QUALIFIED PROTECTI>
While the law of d of defamation is primarily concerned with the proctection of the rights of individuals to their good reputation, it also provides for occasions when the publication of defamatory and untrue statements may be excused. The law reses that personsrsons should be allowed to speak freely on occasions when they have a duty to do so or where it is justifiable ience of some particular interest. But the immunity from liability on those occasions ions does not create opportunity for unrestricted invective or abuse. Theilege is qualified.. It is y conditional on then the use of the occasion being usoperly and in good faith.&#th. Lack of hobelief or impropmproper use of the occasion renders the publisher liable for defamatory stats.
In Horrocks v Lo v Lowe (1975) AC135 which is the definitive English decision on qualified privilege and which decision is also authoritative in Papua New Guinea, Diplock, LJ explains this as:
“The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What blished in good faithfaith on matters of these kinds is published on a privileged occasion. It t actionable even thoughhough it be defamatory and turns oube untrue...the privilege is not absolute but qualified.d. It is if the occasion whic which gives rise to it is misused.r in all cases of qualifiedified privilege there is some special reason of public policy why the law accords immunity from suit - thetence of some public or prir private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasio somr some other reason he loses the protection of the privilege.”
So, the motive with which the defendant on a pried occasion made a statement defamatory of the plaintiff becomes crucial. The protectotection m howe however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant inter#160; So he is entitled to be protected by the privilege unge unless some other dominant and improper motive on his part is proved. “Express malice” is the term of art descriptive of such a motive. Broadly spea it means mali malice in the popular sense of a desire to injure the person who a defamed and this is generally the motive which the plaintiff sets out to prove0; But to destroy the privilege the desire to injure must bust be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.
The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved thadid notd not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justifyn in telling deliberate ande and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person.
Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, “honest belief”. If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, ed as if he knew it to be false.
This qualified privilege under the common law is deis described in the Defamation Act (perhaps more appropriately) as qualified protection: excuse. Sec11 states:
11.. ـ “Qualifualified Protection: Excuse
(1) &##160;; For ther the purpopurposes this Act, it is a lawful excuse for the publicaof deory m if thef the publication is made in good faith:
(c) ټ for the the protection ofon of the interest of a person making the publication or of some other person, or for the public good; or
(e) ـ for thefpe of g infg infion to n to the pthe personerson to whom it is made with respect to some subject as to which that person has, or is believed on reaso grouy theon making the publication to have, such such an i an interenterest in knowing the truth as to make his conduct to making the publication reasonable under the circumstances; or
(h) ـ in the the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as defry maconsi commenomment, the comment is fair.
(2)) < &ـ Fo0; For the purpopurposes of this section, a publication is made in good faith, if:
(a) the matter publisher is anlevant to the matters the existef whiy excuse the publ publicatiication in good faith of defamatory matter; and
(b) ҈ if the the manner andnt lfpublin do not excess wess what ihat is reas reasonably sufficient for the occasion; and
(c) if the nersowhby m/is <&#> <&160; & ; is not not actuaactuaactuated by ill-will to the person defamed, or by any other improper motivd
ii)&##160;;ټ d believe the defamatory tory mattematter to be untrue.”Sectionction 11 p 11 providrovides a es a lawful excuse for the publication of defamatory matter, conditional on it being published in circumstances or on occasions provided for in the section, and conditional on it being published in good faith. If the defamatory r be come comment, the comment must be fair. The section does notect orct or excuse defamatory material if it is not relevant to the matters for which protection is claimed. The maand e of pation mion mion must be no more than is sufficient for the occasion and there can be n be no improper motive for publication.hat is, there must be no motive that would be an abuse of the occasion. Finally the Dthe Defendust must believe the defamatory material is true. Essentially the common lawn law of qualified privilage is now stated in section 11 of the Act.
Itor a Defendant to prove that the publication was made on a on a protected occasion and that the duty or interest relied on by the Defamation excused, not just any publication he might make but the specific publication actually made. If the occasion is privileged or protected then prima facie any defamatory statements are excused.
The absolute protection from liability for defamastatements made by a Member of Parliament in the House does not require or even permit exam examination or analysis of what was actually said. Because the occahas absolubsolute protection it follows that everything said on the occasion is protected. Howe defendant does not esot establish qualified protection to excuse defamatory statements under s 11 until he shows that the publin was made on a protected occasion, had valid reference to such an occasion and was publishblished in good faith. The fact thatccasion of quof qualified protection may arise does not constitute an occasion whereby a person is excused of any defamatory allon he may choose. As stated in & Lindseindsell, Torts 17 Edn 21-108.
R>“A communication on a privileged occasion, therefore, is not necessarily a privileged communication. It is not enough to have an interest, or duty in making a communication, the interest or duty must be shown to exist in making the communication complained of.” (emphasis added)
Trst trst task of the Court is to determine whether pubr publication was made on such a protected occasion. This is largelyestiolaw, aaw, and what is actually said or the truth of it will not usually be relevant innt in determining whether the occasion wasof qualified protection. As stan Pervan v The NorthNorth Queensland Newspaper (ATR 19TR 1991 CCH 6946) while the truth or belief in the truth “may have an indirect bearing on the nature of the occasion...they are not preconditions to the application of the section.”
Telegraph Newspaper Co Ltd v Bedford [1934] HCA 15; [1934 50 CLR 632].
In Pervan’s case cited above it was held that in ruling whether an occasion was protected.
“Questions of degree, public policy, propriety, moral rights and duties inevitably came into the judge’s decision. Factors such as the extent of the publication, the circumstances, including who published it, when, why and in what circumstances, and anything that assisted in indicting whether there wrelationship between the parties giving rise to a social oral or moral right or duty could all be relevant factors according to the particular plea under consideration... The trial Judge̵uling ling was therefore essentially a provisional ruling on the capability of the evidence of establishing the occasion to be a privileged one... The plaintifre the onus inus in relatioshowing absence of good faid faith, but in giving the provisional ruling this could prima facie by assumed in favour of the defendantotherwise established the privileged occasion. If goof good fais to be anbe an issue it was then for the plaintiff to prove the absence.”
But consideration of the facts and circumstances of publication including some which are also aspects of faith, such as relevance once or extend may also be necessary to determine if the occasion is protected.
In Justin v Associated Newspapers 1966 WN (Pt 1) (NSW) 17 p. 52, Jacobs J deals with the determination of an occasion of qualified protection under s. 17 of 1958 NSW Defamation Act. That section is word for word with our s. 11. He said: is a proper plac place for consideration of relevance and manner of extend of publication upon the issue of good faith and so the statute provides. ecausse arper quer questioestions for the jury on the issue of g of good faith, it does not follow the same matters may not arise upon thetions for the Judge which fall for determination of whether an occasion is protected or notr not.
With respect, it seems to me that this is correct. The that circumstances of s of a protected occasion may arise does not mean that
those circumstances alone are sufficient to create the protected occasion and that thereafter the only matter left is consider any
challenge to good faith. Case law shows this i so. Essentially the Court upon deciding such facts as maybe necessary, must decide whether an occasion carries protection or not, before
proceeding to consider the challenge of lack of good faith. Such a procedollows the cohe common law and the intent of section 11. The Plaintiffs Counsel maintained that the first Defendant couldclaim publication was for the protection of his interest any more
could the Second Defendanendant claim protection of its interest in peace order and good government. To establish the protectf n
of publication for the public good the Defendants needed to show that publication was made for the public good and that that was
the purpose of the Defendant. It was submitted that tfence had failed to show eiow either. The publication of defamatory assertions
(as is the case here) was seldom if ever justifir the public good (Traill v Australian Broadcasting Corporation [1988] Tas R 1) and
more rere relevantly the Defendants purpose in puing the defamatory matter wter was to denigrate (if not destroy) the Plaintiffs.
As for claims scussion of n of a subject of public interest - no discussion took place either before or after the publication which
could in any way give rise to an occasion alified privilege. There was incase only an a an adve advertisement an assertion of fact. The defences of qualified protection pleaded in paragraph 4 c, d and e, of the Defence fall under section 11 (I) (c); that is the
publication was published in good faith for the protection of the interests of the first and second Defendants and for the public
good. It is clear law that an attack on a defendant may be visited with a reply on the attacker in equally strong perhaps or even stronger
terms. a reply may be protected eted even if it contains defamatory, even untrue matter. But the prote does not afft afford an
opnity for retaliation without restriction. The reply must be made in good faith in tern terms of the section. As stated iney,
para 5p> “A person whose character and cond conduct has been attacked is entitled to answer such attack, and any deory sents he may make
make about the person who attacked him will be privileged, provided they ahey are published bona fide and are fairly relevant to
the accusations made. The law justifies a manepe repelling a libellous charge by a denial or an explanation. He has a qualified
privilege to answer the charge; and if he does so in good faith, and what he publishes is fairly an ansand is published for the puhe
purpose of repelling the charge, and not with malice, it is privileged, though it be false.” Reported decisions emphasise that while violence of language is not necessarily sufficient to take away protection and while it is
the case that extravagance might also provide evidence towards establishing malice, nonetheless protection can and will be lost if
the “defensive” reply becomes a counter attack raising allegations unrelated or insufficiently related to the attack
made on the defendant. “the privilege...extends only so far as to enable (a defendant) to repel the charges brought against him - not to bring fresh
accusations against his adversary. This privilege ifact a shia shield of defence, not a weapon of attack.” Dv Esmonde 1878
2ILR,
or as it was put in Brewer v Chase 1899 American St Report:
“It must not be supposed, that when a libellibellous article is published, the person libelled is at once authorised to publish any and all kinds of charges against the offender, upon the theory that they tend to degrade him and thereby discredit his libellous statements... Thng published must be some something in the nature of an answer like an explanation or denial. Wt said must have some cone connection with the charge that is sought to be repelled.”
While obviously the attack in instance was made by the Leader of the opposition, it was contended that the Plaintiffs mafs made themselves party to that attack. Defence Counsel summarised the facts that the Defence asserted were the basis of this defence:
“Mr Mendoza had supplied papers and information to Mr Wingti; who used those materials to bitterly attack Sir Michael in Parliament, alleging against him corruption of the most serious kind in his office as Prime Minister. He, Sir Michaelng only infy information provided to him by very senior civil servants whose reliability had never been questioned, strongly defended himself in Parliament.e attack which he sought to meet was made, not only upon hion him but also on the Government of the country. He is, Sir Michaelitled ined in his own and his Government’s interest, and for his, and the Government’s protection, to make the respoe did.”
Such circumstances of publication if proved, are capable of amounting ting to an occasion of qualified protection provided that the Plaintiff had actually allied themselves with and aided in the attack as claimed. There is no protecti excusexcuse for defaming persons not party to the attack.
In his evidence in chief the 1st Defendant said that followingtions in the House commencing on 4 June 1985 alleging improper influence in the sale and pund purchase of aircraft and involvement in drug matters:
“I couldn’t respond there and then. I put the questions e noti notice paper. I needed sto research.
.Q. ټ D60; Did you know of PNG iviation Services
A. 𧝼 Not personarsonally - I h d no information rion regarding the Company or the details oils of the Gulf sale.
Q. ⶌ&##160;recall on 6/on 6/6/85 6/85 (shown Hansard) Wingti raises aspersipersions of purchase of defence aircraft (aft (sse p. 20 & your answer on p. 21.
A. &#Y60; has tcors ctrrect.
Q. &ـ W6at waat was the the public reaction.
A. ټ&#M60; puch publicitlicity of these matters. I was not able to responddimmediately.
Q. ـ&;& Did you think thnk these matters got fair coverage in newspaper.
A. <ـ Yes; Yes.
Q. 𧝼 (Shown hown hown extract ransard 15/8/85 & attachetached documents) Wingti raises thter again gain - accused you of giansweter 4 and accuses you of lyof lying to Parliament.
A. s that that is correct rect I had not lied to Parliamep>
Q. &1600;n&#Di0; Did you you have any legal expertise.
A. ټ&##160; I60; I ho leho legpertirelied on expertise of legal advisers. The head of Prime Ministers Department and his assi assistantstant Mr Y Mr Yauieb and Mr Sarahofa, I relied on poal sto prepare informaformation tion for me. I have confidence in them. not recall any time they&#hey’d let me down. I personallyno informationation regarding the sales of aircraft or in respect of the matters in question apart from a denial of pel invent i allegallegationstions.
Q. (Shown statement of 1 ofug6 August 1985).
A. ټ I60; I caused my speech tr be reported to the press. I bed I should report the the speech so all the e wouow myonse and clear my name...”
“Q. Mr Wingti in his statemenl dealt with a member of matters not just a commission for PNG Aviation Services...you were not in there in the House at the time.
A. & I read it in ransard that that night.
Q. He alleges in7p. 3 hyouan d an involvement in drugs. I a term of reference for for the Parliam/p> <#160;; ـ YeQ.;.;ټ< gti hised tsed tsed thed this.
A.&p>A. #160; ҈ Yes.
Q.0;;ټ<&#Its a very grave allegation.
A. ҈ I60; It glt a f attention tion at the Pelaiuiry.
Q.;  re ceuld ould hardlhardlhardly be y be a worse allegation then that a Prime Minister is involved in drugs.
>
A.A. Yes
Q0;҈ &#He been makn making thng that allegation since June June.
>
A. &##160; Yes.
Q0; ҈&ـ (SExhib Statement of 16/8/16/8/85).&85). #160; This This is y is your rour response to Wingtis allegation of previous day.
A. &ـes.
Q
Q.. ere do you deal with With Wingti’s allegation re drugs.
A. ټ0; [no answer]swer]
Q. & I60; Its a replyreply to W to Wingti’s allegations.
A. &##16> &#p60; ـ Wh0; Wh0; Whe; Where do you deal with the drug allegatlegation. A. &ـ I6 a se a separaataraatemep> A.  & I death itwhe>e Q.&p>Q.&p>Q. #160; ҈ Refer you to Xtatement of t of 16/8/85) where you say “Is the Member agen th pir a bss
rentati Valentinentine Mene Mendoza doza and Land Lussicussick. Is that Wally Lussick A. ҈& Y60;
Q Q. ـ҈ W60; What doat do land dealings with Mr Lussick have to do with Wingti’s claim against you ty bef/p> <#160;ـ҈ When then the answ answer waer was prepared I went on that statement aent as it s it is written. Q. ҈& B60;calsically they they have nothing to do with the previous days statement. A. ;ټ A. I 0; I knew he was in busi business with them. Q. ـ Re allonations of questionstionable business practice and “criminal behaviour of PNMendolentissick. You knew
Lussick had n to day dealings with PNGAS. A.  
He was wieh the Company.
Q.ټ I put iy to you, new kothinothing about Lussick. A.  ټ Mr Lu is aated PNGA PNGAS versus government. Q.& & PNGAS versus government, ent, that&that’#8217;s ho;s how youw you saw it. A. &ـ 17;t say that.
60; ـhe onle only rele relevance is that that LussiLussick isck is a di a director of PNGAS. You werento diit thpany. 60; ;ټ You thou thought yght yout your response was perhaps justified for for what Mr Wingti and PNGAS had done. A.҈& Yes. Q. &ـ Y6u feeu feel thel thel that Wiat Wingti attacked you with the assistance of PNGAS. A. ټ Y60; Yes. Q. ;#1600; Y60; You didn’t know what individuals were involvou didn’t personally know if any had been personally involved
in those matters or notr not. A. ـ Y6s.
A. Thee thele ind in at tme.Q. #160;  dt You call called them questquestionabionable businessmen. Yve no reao say of ef ther thereasobeliech individual could be d be descriescribed abed as questionable businessman.
A.
A.  & ; Its the statememadeemade.
Q. ҈ Di0; Did you read thatementement before you caused it to be delivered to the news.
.ټ&##160;;recall pell perusinrusing it g it beforbefore delivering it...”Mr M>Mr Mendozendoza was closely questioned as to what part he had played in the attack on the Prime Minister. It was put tothat he was fwas fully aware that the material he had supplied to the Leader of the Opposition was to be the ammunition for that attack. He denied this. & The;evidence was as fs:
Q. You of the lead up to publ publication - Questions being asked the House by Win/p> <#160; Q
Q.. &160; oud yve gingtiiany informaformation.
A. ـ&##160;; Winame tand tand ame about the matter.
Q. ټ < &160; #What was ywas your understderstanding of the reason Wingti come to you.
A.;ټ <; I d217;t 17;t know hnow his particular reason for coming to me.
Q. &##160; How many tiid he.
A. &##160;; A60; About tout twice.
Q.   ـ Lussick knew Winellinell.
A.&ـ҈& Yes.
.Q
Q.. n&#Did Mr LuMr Lussickssickssick speak to Wingti before you.
A.ټ&##160;; I do I donRn’t kn;t know.
Q. ҈& W60; Was it s it your understanding after 2nd visit of Wingti he would refer toCompany in the House.
A. ҈& N60;e d he didndn’t say say anything about that. He said he wantme papers. Q. &160; neu ke w h asksng about sout something controversial. A. ـ& No I think that heat he just wanted some information.
Q. ټ H60; He wanted informatiou about the sale of the Gulf strea> 60;&##160; N> Q.&#>60;&160;&160;< #160; &##160;; Di0; Didn’t 17;t you pursue a claim for commission.A.&##160;; Not agains Government, fro, from a company Israel Air, in Australitralia.
> Q. ټ DidnRWingt abou&abou’s claim to commission for the Arava. A. #160;  I told himere hare havinficinficulth anraliant. Q. ʔ Did you have suve suspiciopicions of political involvement in reasons forpaymep> Q. &1160 #160;#160;   You tom you thought there here may liticterest. A. ; 160; Yes but thut the Coy Coy was concerned by the way we were being treated by the Australian Agent.&#Therehave some deal
behin back Q. & Y60;thou thou ht ight intt inter nter alia alia that that there may have been political influence and conveyed this to Mr
Wingti. A. &ـ Y60; Yes.
Q. ҈ Y60; You knew it wae like y he would raise the matter in Parliament. A. ҈& N60; No. Q. ;ټ mu60;must thot thoug was at least a possibility. A.
   ; Noreall> Q.&p>Q. &##160;; Y60 knot knoiticiiticiill raise controvntroversial subjects if possible. A A. ـ҈#160;#160; I&0; I’m an engineer - I didn’t. Q. &ـ҈ Yo0; You felu fell strl strangely about right to commission. A. ҈ Y60; Yes. Q.;#1600;#160;ـ You knew csion would come come from purchase moneys from Government. > A.  .&#t6t ive GoenGnmer sver sale - payment to t to the mthe manufaanufacturer who would distribute commissioission.
Q. ـ; You aw rthe qon ason asy Wingti on 5/6/85 6/85 in Pain Parliamrliament.&ent. #160; Shown extract from rdnsard. A. & s Dtug.
> Q. &##160;
B60; But it mes your Coy.&Coy. It says that ies of PNG ofNG of 2/6/85S werrivedommission.; You of Times
publicatiication.
A. Ye0; Yes. Q.& #160;   articlehen tme Tid saad saad said there was political influence. A. ;ټ I60; I only only know what you read /p> <#160; ;n’t w7;t write tite to Times omes or telr tell Winl Wingti tgti there was no politicial influence. A. ; /p> <#161;;&##10; So on 2/6/85 you knew tnew tnew the cohe commission was into the public area. A. & .
A
A. ـ ـ҈&160;& Yet you neit neither wrotewrote rote to pato paper nor told Wingti.
A. &1600; No.
.ټ&##1616u kn6u knew of no politiolitical ical influenfluence.A. &##10;& No0;/p>
Q.&p>Q. ҈&  suedhat groungrounds.
A. &160;   Yescause the ctrrect proceprocedures of payment of comon.Q.&##160; &&#So new Prime rime Ministinister waer was liks likely to have grave aspersions on him ahim and hind his government.
A. ;ټ - I6 - I #8217#8217;t.
Q. d#160; Did you speak teak to Wingti after the question in the house - Tell him hnRgot it right.
A. & < &160;&160; No.
.&#>Q0; #160; The questn the house suggesuggests a bA. &##160; W60; Was it derect P toe Mime Minister or someonemeone in Government.
Q. &ـ&#That&;hat&;s a a a allegation isn’t it.
Q.&p>Q.       So why di217;t youometh yoth you no reason to su Sir Michael Somare.
A. &160; #160; No.
A.&p>A. #160; .
Q. &##160; It0; It was thtreafn area area of major public controve/p> <#160;; > e e i ofinentine or M or Mr Lussick added noth nothing oing on then the issu issue supe supplyinplying infg information to the Opposition Leader.
The n all eviden respect of the assertion of publicatiication foon for ther the protection of the reputation and interest of the Defandents is that (1) the attack being replied to was that of Mr Wingti the Leader of the Opposition. The deory statement names ames itself as such. (2) There has been no ble ible evidence that gives any reasonable cause to believe that the Plaintiff’s andendoza in particular were party to that attack. Mr MeMr Mendoza deniy such such knowledge or participation. The 1st Defendant says re more than that he had no personal knowledge of the Company PNGAS or of the aircraft sales. H not aware of thel impionmpions of the documdocuments. He belieingti had attackedacked him with the assistance once of PNGAS though he did not know who, i, individuals from that company had been involved. He0; He believed his becaubecause his of what his staff had prepared in the statement for him.
The giving of contract information or the handing over of documents is not enough. The Defence has sifailelino link the Plaintifintiffs with the Leader of the Opposition’s attack. There is no proon under s.er s. 11 (1) (c)attacks on persons who have themselves made no attack. Even if it wee case that that that Mr Mendoza in speaking to the Leader e Opposition concerning the aircraft sales or by his showinhowing of documents to him had in some way added to, promoted full discuss or even provoked the contrcontroversy, the fact that Mr Mendoza himself made no attack on the 1st Defendant precluded any protected occasion arising for a defamatory reply whether by way of defence or retaliation. The sameies to PNGAS.
Simply stated that means, asking or answering questions; raising controversial issues without making any attack on a person does not gise to an occasion of qualified privilege under s. 11 (1) ((1) (c), for an attack in reply.
Loveday v Sun Newspaper (138) 59 CLR 513
Church of Scientology v Anderson (1980 WAR 81)
The Defence also pleaded that publication had been made for the public good. para (4 (e)). Defence counsel submitted:
“The question is whether the publication was made for the public good, and that does not require, as in a defence of justification, the proof of actual truth of the matter publish160; It was plainly for ther the public good (and in the public interest) that all of the circumstances surrounding the sale and purchase of valuable Government property, and the role of the Prime Minister, his Government, and other parties involved, be discussed and published.”
It is stated in Justin v Associated Newspaper 1966 that:
“The defence, ‘for the public good’ refers to occasion when the public or a section of the public have a interest in receiving the communication. Such an occasion is toistidistinguished from any private occasion which may justified of defamatory matter for protection of the interest of a person or a class of persons...however such a publication would not in my view be for the public good unless it be assumed that the public generally or a section of the public have an interest in receipt of the defamatory matter.”
On p. 53 the learned Judge goes on to say that to establish publication for the public good the defence must show:
“First there must be a purpose of serving the public good. Secondly there must be feceffect by the publication of serving the public good.”
In Bridges v Australian Consolidated Press 1967 2 NSWLR, it was said at p. 521:
&#The crucial question, therefore in the present case is whet whether it was for the public good that matter be published of and concerning the Plaintiff which...meant that the Plaintiff had conspired to cheat and defraud...
If it be true it might well be open to find that it was for the public benefit that it be published. However I cannot con that that it is for the public good that such allegations be made whether they be true or false...
In my view the cases where it may be for the public ghat a private individual should have defamatory matter publ published concerning him whether it be true or false are very limitdeed.”8221;
The first Defendant in fact gave evidence that he published his speech so the people would know his res and to clear his name. As Plais Counsel said, tha, that is not a declaration of publ publication for the public good. But I be that while this ihis is really a claim of personal interest, a reply to allegations of impropriety over the sale of the Governaircraft was a matter of public interest and arguably it would be for the public good that that a reply be made on that issue. remains to consider whethwhether the reply actually made is protected.
In essence the defence contention amounts to an aion that in answering the challenges of the Leader of the Oppositions “statement abou about government negotiations leading to the sale of Kumul 1 and the purchase of Arava Aircraft for the Defence force”, it was the 1st Defendant’s purpose, and that it was for the public good, that he make a statement not only concerning the circumstance surrounding sale of government property but also to make specific allegations that the party claiming to be government agent for sale of the Kumul was a “disreputable foreign owned company” which Company’s officers were “completely untrustworthy and dishonest” who “deliberately and with criminal interest sought to defraud the PNG Government” over the sale of Kumul 1. The public good would be a public informed of the unsavoury character of the claimants and thus would be then better able to assess the validity of the Leader of the Opposition’s assertion that PNGAS was the duly appointed government agent for that sale.
That is not so. As shown in Traill’s case, publication of defamatory assertions must clearly be justifiable and not made simply as a way of degrading or discrediting a perceived opponent. In my view tis no case here here made or the protection of the stae statements on the basis that it was made for the public good. The issuehe challenge and and replyned on the interpretation that should be given to the documdocuments tabled and relied on by the Opposition Leader and the 1st Defend#160; The reputation of PNGAS or the character of its princprincipals had no relevance to the Leader of the Opposition’s claim, and the 1st Defendants denial, that PNGAS was the lawful agent of the government for the sale of the Kumul. The public ca in such circ circumstance have any interest in receving non relevant defamatory matter. The digement of partieses̵eputations can not be said to have served the public good or enhanced its ability to properroperly evaluate the criticism and reply.
See also Sefton v Baskin [1917] NZGazLawRp 127; 1918 NZLR 157 and Brooks v MuldoMuldoon 1972 NZLR 1.
The relevance, or rather lack of relevance of defamatory assertions in that context can be seen further on in the same statement, where the 1st Defendant deals with the dispute regarding PNGAS’s sub agency in the Arava sales. ntrast the treatment of thof this latter issue is unexceptional. There the 1st Defendant answers on relevant matters without resorting to irrelevant defamatory assertions against parties
The 1st Defendant recogrecognised that it was “a dispute which is purely commercial and has nothing to do with the Papua New Guinea Government...I knew there was an agreement. But I also that it was a ms a matter of legal dispute. Intercorp claim the agreemgreement is no longer valid due to non performance of PNG Aviation Services. PNGAS claiis valid and havd haveatenetake legal actionction as yet nothing has resulted”.
The Defence also pleads pads pursuant to Section 11 (e) of the Act publication was made of matters of public interest, to the the public which the Defendant reasonably believed was interested in the truth of such matters. Accgly such publication waon was reasonable.
Defence Counsel’s submissions were:
“The matter was published to give information to the readers of newspapers. The subjecter was of GoverGovernment dealings, the dealings of others in Government porperty, and the serious allegations which had been made against the Government and itme Minister. All of the public,of the rthe readers, wrs, were reasonably believed by the Prime Minister, on his own behalf, and on behalf of the Government, to have an interest in knowing the truth about those matters. Andas reasonable for the Pthe Prime Minister to cause the publication to be made in light of all of these matters, and the matters set out in the preceding paragra these submissions.”
In my view the publicatiocation of the statement complained of can not be excused by the provision of s. 11 (e). That subsectelates to the the publication of defamatory matter. That is tothe plea in defe defence has to be that the defamatory matter was published for the purposes of giving information to persons interested in knowing the truth of defamatory matters. But the asons as to the suhe supe supposed unsavoury reputations of the Plaintiffs have no part in the subject matter of dealings in Government property or allegations against the Defendants.
The general public undoubtedly may well have an interest in receiving information on a subject of public officers, and as here, in the dealings relating to purchase and disposal of Government property, but defamatory matter not germane to that issue was not matter in which the public could be said to have a legitimate interest.
Further, no evidence was offered which indicated such a link, nor was there any credible evidence to show that the 1st Defendants publication of such defamatory matter was reasonable. The Privy Council said iniAustin v Mirror Newspapers Ltd 1986 1AC 299 at 317 that where a defence of fair comment has failed because the Court has found acts said to base the comments to be untrue then the circumstances leading to the publicatiication of those false facts should be scrutinised with care before concluding that it reasonable to publish them.
This is not introducing a test of truth, on belief in truth, into the process of deciding on whether the occasion was protected. It must bsidered that the the obligation on the part of the publisher to prove his publication reasonable. That must include evidence of some concern for the accuof his allegations of fact. If evidehows there were ware was no reasonable concern for accuracy, or as here evidence that the pher knew the facts were not true, it cannot be said publicablication was therefore reasonable.
It is unreasonable and no defence to say, without more, that he believed what someone else told him and was only repeating it.
Wright v ABC 1977 NSWLR 697
Morosi v Mirror Newspaper Ltd 1977 2 NSWLR 749
The defence in para 4 (h) restates the defence set out in Section 11 (h) of the Act namely that the publication was on a matter of public interest in the course of or for purposes of some public discussion for the public benefit.
Defence Counsel submitted that:
“Again the conditions are satisfied: there had been discussion, discussion continued, the subject was of high public interest, it was equally desirable and in the public interest that the matter be discussed and the comment was fair, within the extended meaning of that adjective.”
Clearly the subject matter was of public interest but as set out above, the publication was not made for the specific purpose of public discussion. The 1st Dent has said it w it was to let the people know his response to the Leader of the Oppositions allegations and to clear his name.
Nor can it be said to have been published in course of a public discussion.
Walsh J in Justin’s v Associated Newspapers points out that “in the course of” does not signify merely a coinciding of the publication and discussion in the temporal sense. There be some real relatiolationships or nexus between them.
The reality is there was no ongoing public discussion on this matter. There was no evidence of an ongoing discussion involvi for the benefit of the gene general public and the 1st Defendants publication was plainly not for the purpose of initiating or respo to such a public discussion. Hatement was simplsimply aply a republication, after the event, s responssponse to the speech of the Leader of the Opposition in the actual public discussion, the debate that took place in the House.
The question of rnce already dealt with in relation to the defence under s. r s. 11 (e) is simply further reason for declaring the occasion of publication was not one of qualified protection under Section 11 (h).
This defence also fails as being a publication excessive to need. It was said in Adaard 1917 1917 AC 309:
“a man who makes a statement on the floor of the House of Commons makes it to all the world.”
Thus it may be said that further publication of that statement in the press is excessive to the occasion and that any protection that might otherwise arise, is lost. I find thathe case in resp respect of this defence, as indeed it can be said of all the defences.
As shown the Abingdon and Creevey cases the absolute privilege forements in Parliament stops at the doors of the House. #160; But act of making a sg a statement in Parliament can also effect whether an occasion of qualified ption arises.
In StIn Stopforth v Goyer 1978 20 OR (2d) 262 a decision concerning defry statements arising out oout of Government contracts for the purchase of aircraft, a Minister of Government in response to questions by reporters outside Parliament made defamatory allegations against the Plaintiff in the same terms as he had in a statement in the House. When sued for defan he clae claimed qualified privilege. It was held that there w d no defence of qualified privilege for two reasons:
“(a) He had no do s tak oe the the occasion sued upon. H just dred a statement tont to the House of Commons on an occasion of a of absolute privilege of the same substance and to the same effect as tha whichas bued. A60; Any duny duty he had to make the statement sued sued upon was thereby discharged. Statemeade in the House ofse of Commons are a matter of public record. They are recorded in Hansard and reported by the news media. Tfendant added notwhen he n he spoke to the press in the Government lobby. I60; Indeed, the defe test testified that he spoke to the press on this occ to en his view of minf ministerial responsibility, not because ause he felt he had a duty to do so.
(b) he denendas hao flslefailefailed to established the reciprocal interest or duty in the press, or the Canadian public through the preo recthe sent spon. While it was a matter of public interest to learn earn what what occuroccurred ired in the DND-Lockheed transaction to cause it to be cancelled, there was no public interes in receiving the plaintiff’s identify or the plaintiff’s personal blameworthiness, if any.”
The rationale of this decision is compelling. It gives ar perspective onve on qualified protection, particularly with regard to the manner and extent of publication. It compliments tingdon andn and Creevey decs regarding absolute immunity and illustrates that the immu immunity on an occasion of qualified protection arises only to the extentssary to meet the needs of the occasion properly used.
I am satisfied that the defences raised under Section 11 of the Act cannot be sustained. Howit that were not so theo there remains the Plaintiffs challenge of lack of good faith.
GOOD FAITH
Except where the Act affords absolute protection for publication of defamatory matter defences under the Act have as an overriding condition for protection, that the publication be made in good faith.
Section 8 (3) states that publication for the information of the public is made in good faith if the publication “is not actuated by ill will...or any other improper motive”. That is also a requirement under s 11 but that section also stipulates further specific tests for good faith. The defamatoryrial must best be relevant to the matters for which protection is claimed. The mannerextent of cationation must must not exceed the needs of the occasion and as well as prohibiting ill will. The publisher must “elieve the defamatory matter to be untrue”.
Australian Courts have expanded thed this phrase to establish possible and psable states of belief or non belief falling short of the positive ‘honest beliefRf’ required in Horrocks v Lowe. A recent example of this is the findings in Pervan v North Queensland Paper Co Ltd 1991 Aust. Torts Reports 69, 103 where it speaks of various levels and types of belief being possible.
That view has lead to what Defence Counsel referred to as &#the extended meaning” of fair comment. Namely that from ae of nonf non registeristered belief in the truth or otherwise of the defamatory facts a defendant may proceed to make ‘fair’ comments on those ‘facts’.
The divee it seems to me is largelyrgely caused by the manner of drafting of the section. Restating thele negative iive in positive terms, is only to say that the person making the statement must believe in the truth of the matters published. For these reasnd be of thef the clear statement of Horrocks v Lowe that ahat an honest belief, is required for good faith, I consider PNG should nopersuaded to follow the Australian path. I am satisfied that Paent ment did not intenintend in this Act to provide two in forms of good faith or two forms of fair comment, only one of which is made on facts truly stated. Iqually satisfied that hadt hades of belief necessary fary for good fairth that evidence in any particular action may show be reconciled within the demand for poe honest belief.
By section 19 of the Act it is task task of the Plaintiff to prove absence of good faith. Overall the Piffs contend tend that the evidence plainly shows that all the defences advanced, whatever their merits as to privilege or other must fail because publication was not made in good faith. Thisevidenced by the the the extravagant and violent language used by the 1st Defendant, his lack of belief in the assertions made by him and his open admission in cross examination that the purof the publication was to h to harm the Plaintiffs.
For the Defence it was submitted (in regard to s. 8)that the fact it may be arguable that an advertisement was such a departure as might disentitle a publisher to rely on the defence of a fair report of Parliamentary proceedings was not evidence of malice. DefCounsel said Sir Michaeichael believed the matter to be true. H not recklessly publish nish not caring whether the words were true or false because he had made extensive and appropriate ries ose who ought to t to have known who claimed to have known and whom he believed to know thew the facts. Legal advice had been tn. The fact that the first Dafendant established the Pelair Inquiry is indicative of his good faith.
The evidencevant to this issue not already recorded here is as follows:
Q. Do you fee Pelair did thor thorough job overall?
A. ; Y60.Q. &##160; It0; It was naped.<ټ1660;&##160;; No one one was bwas biasediased.
.Q
Q.. ټ&#Y60; onu don’#8217;t have any criticism of Report.
A. ⶌ&##160; No, I set iset iset it up.t up.
Q. ҈& N60; No comp complaint on criticism of the report.
A. & & No.
Q. &##160;; Yo0; Your reply wassponse onse to Wingti.
A. ـ Yeeactee any humang.Q.&##160; &#That dedlu ed a ed a resp resporesponse tnse to anyo anyone wone who gave him information to launch that att/p> <#160;;ټ&##160;
Q.. <ـ &#Yo0; You thought thht thet they weey were &#re ‘fair game’ if they were involved.
A. ; Y60 if shey were involvedolved in a slanderous attack on my character. They desert too.
Q.
Q. ټ&##160; S60; Shown Xown X 9 ‘Niugini Nius’. See para 0;PNGAS have trie tried to cheat...”
Q. & ټ You hadu hadn&#adn&#adn’8217;t said this earlier. Youevey hae “repeatepeatedeated” attempts to cheat the Government”.
A. &##160;
I 0; I merely tead peech.
A. ;&#t it out.
60;&##1;&##160; < Yd nhabeli belief of whethwhether its true true or n or not yoot you just read it out.
A. &##161660; T8217;t I s/p>
Q.  ټ You hapeno pers pers personal onal beliebelief it it was true or not.
A.҈  had thde tat statement.ment.
Q. You didn̵n;t knew oy oway or another.
<#160;;ټ I relied on the statemen>Q. &160;   ’#8217;t it true true you reallnRbelie.
A. ;d [n0; [no answer]
<#160 < 1ou; Ydn&di217;8 believe ieve it was true because you didn’t ـ҈ There was a as a statesentement.Q. You didn’8217;t beli believe it to be true.
A. &##160;;&##160; I believed eved it.
Q. I put tut it yoi diouRn’t believe it to be true.
A. &##1660; I made this statemtatement. I had no n.&#on. I s; I stood by what it.
Q. ҈& C60;inaiminal alle allegations yonRknow ue or
A.     I ma I made the statementoI stood tood by what was given to me.
Q. &##160;;ټdidn’t217;teve it.
A. I beliebelieved wvat what what was gias given to me.
Q. ҈ut p to tou that nont none of the allegations were true true.
A. ;ټ I60; I was gwas given information and relied on it.
Q.;ټ&##160;; You didn’t check the the truthtruth of f of facts acts and you didn’t believe they were true.
A. & idn d8217#t form form form any opinion at the time.
Q. ـ Ydu di21’t question tion any ese sents the .
A. &##160;; N60; No.
.Q.
Q.  ټ Companlefailed ve u ve uphe es Isn it t it true you beou believed the Company had been appointed.
A. ;  0; I the Cohe Company hany hen aped attime but there hare had beed been some disagreement and when they wany wanted to apply again they were refused.
Q. ټټ&#But yow thew they had had been been agentagent at some stage.
A. ـ҈ Y60; Yes at s at one stage.
Q. ; &#“They were not offi official agentsts”. That was not true.
A. ـ ass sde mae sthteanateand I stand by it. I did17;t realise. W60; When yhen you’r217;r217;re a me a minister you make the statement given u.A.   I thoI mt e thds - I knew knew they’d been agents at one time.
Q. ټ “They wer agents of s of govnt thc.#160; meany werer agentsgents of g of governovernment ment for sfor sale oale of Kumul.
A. & T60; They were in an escgent ys - losingosing the the agencagency they applied again.
Q. & Y60;weru by t ose words srds saying they wever a.
A0; d T60; They whey were were oere once but after 30 days they were... “I stand those woerywoery w#8221
[Q.   several time wstnesweanswers same way.]
Q.   <ـe Company wany was never agenKumul
A0; s it was.
Q.. < Wou ygry ngry with Wingtiingti.
A.;ټ&##160; Wouldn&#t y.
Q.. ҈& W60; When When Valn ValenValentine tine serveserved you with those proceedings were you angry with him.
A.ټ&##160;; someone has done something ting to you before you feel angry and that that was hwas how I ow I felt.
Q. ټ&#W60; heen he serveserved you were angry.
A. ; Yes.60 #160; ټ&#So yoved him a Depa Deportation.
A. &##160; It0w It was ne of the reae reasons.
Q. &##160;;ټ That was the main reason.
A. ##16; & One One of thef the main reasons.
Q.&p>Q. &ـ T6e maie main reas reason.
A.;ټ&##160;; I c217;t rect recall now.
Q. &1160;##16;  Yo0; You felt tme anger ater at Valentine onice o writour angr anger ater at time time of publication.
A. Yes.
Q.ـټ Yot ang him on both occa iccasionssions.
A. ;ټ Y60; Yes.
Q. &##160; S60; Sily yotbang dith torectors of publication.
.ټ&##160; W6y shhuldhouldn’t I7;t I be if they were againagainst mest me.Q. ـin6enhem h/p>
A.&p>A. < ҈ to , plaixplain to people tple they were tryintrying to g to harm me.
Q. &ـ d harmethem anted nted to harm them.them.
A. ـ< 1el; Well Well if haif harf harm was what happened it happened.
.ټ&##160; But it our purpopurpose.A. &#I60; &#don7;t21now kf thaf that was intended.
Q0;҈ Your pu was to attack them them in the same way as Wingti.ngti.
A. &##160; &#Yes.
A. ҈
A. ⶌp>> <&##0;&##160;;&60;; Do yoD conuidersidersider ider that that your publication was excessive.
Q. &&#Asked
A0;҈&& I made made a statemeatemeatement replied in the same manner.
Q.&#>Q. Yoe exce.e spo Parlt -pynt publicublic 4 pa 4 papers.pers.
A. ; 160; I wanted pted public blic to know.
Q.҈&ـou ard pubion beforbefore dele deliveryivery of s of speechpeech.
.A. ; I gave unstrnstions for puor publication.
Q. ; W60ld yuu agree you commecomments re PNGAS were not relevant.
A. ټ&# NotingotingtiRi’t brought PNGAS in.e stat was prepared by the Department.
Q. < &160; #160; t I put it you didndn’t be any ur statement re.. re...was .was true.
A. ҈& I60; I made made a statement. I stand by what was pre.
.ټ < &160;u; Yoernevlieved ived it was true.true.A. ; I60eliebed it at the time time.
I am satisfied that on the evidence in this trial the Plaintiffs have clearly demonstrated that publication was made without good faith. The publicati my view fail fails to meetof the criteria set out in t in Sections 11 and 8 (3) whereby good faith may be measured.
The 1st Defendant in replying to a cnge by the Leader of the Opposition that PNGAS was duly appy appointed agent for the Sale of Kumul 1 categorically denied that this was so claiming that the actual documents on which any claim is based clearly demonstrate otherwise. But in making this assn, hon, he gratuitously in my view, proceeds to castigate the Plaintiffs as, a disreputable foreign owned company engaging and mlating politicians and a company whose principals are dishonest untrustworthy and who with with criminal intent sought to defraud and cheat the PNG Government. Such aspersions regarding the Plaintiffs are irrelevant to the issue of agency.
The evidence has shown that the claim that PNGAs was not the Government agent was not true. The evidenco shows that that this factknown to the 1st Defendant dant at the time he made the statement. Tcuments claimed to supporupport the assertions only confirmfact of agency. The allegations rega the Pthe Plaintiaintiffs are not founded in any matter put forward in the publication itser has any evidence been offn offered on which to ground them. They sas baseless allegatiegations made in extravagant terms.
While excessive language is not of itself conclusive of lack of good faith such language charging unproven fraudulent and criminas does carry weight in a cl a claim of lack of good faith. It itainly evidence of an f an improper use of an occasion that might otherwise be protected. In Tel v Anton Parau 1976 1976 PNGLR 251 it was held by Frost CJ that on allegation of acceptanca bribe by a political cand candidate was “intrinsie evidence of lack of good faith because the allegation of corruption is so extreme and goes far beyond the just requirements even of political controversy.”
I accept the submission of Plaintiffs Counsel that the manner and extent of publication was excessive for the occasion under section 8 or 11. Given that the stat had alad already been published in Parliament under full protection (which itself was publication to the whole of PNG) the repation in 4 newspapers over 3 days under the emblem of the State was not warranted. It0; It t be seen as e as excessive.
The 1st Defendant of course maintained throughout his evidence that the statement was not his own that he merely read it out0; But he acknowledged that he never checked the veracity oity of it. Despite error known to hin he never questioned his staff as to the correctness of the allegations of criminality against the Plaintiffs.
He never queried his staff over the main t of the statement. That is, the Plaintiff Comf ComanComany was never the agent of the Government when he knew that it was. Her checked through all thll the documents allegedly supporting the claim that no agency existed. He merely perused the Ratement shortly before delivering it in the House”.
As stated in Horrocks v Lo v Lowe what is required on the part of thamer is positive belief in the truth of what he publishes. Thatn
honest belief. The 1st Defendant asserts that he believed the statement of the time but that does not square with his answers in cross examination.
Explanation that hely ree the speech preparedpared by others and that he had no belief in whether the allegation were true or not
are not evidencpositonest nest belief, nor are the statements excused on grounds that he had no option butn but to stand by what
statement was prepaor him; or that “when you’re a minister you make the statement given to youRu”. Inside the House a member has absolute privilege. Oe he has the privileges ages and liabilities of every other citizen. For good
faith it is not enough to say I believed what someone else told me to say, particularly where obvious error in the assertions he
was to convey, wtent. The 1st Defendant was challenged on ‘wilful blindness’ only to repo repeat his reliance on the statement prepared for
him. I am satisfhe Plaintiffs hffs have shown that 1st Defendant did not have an honest belief in the defamatory matter. In terms
of Section 11eliebelieved it untrue. The Defence submitted that the Plaintiffs had failed to establish an absence of good faith on the part of the Defendants in fact the
First Defendant had throughhe proceedings disa disavowed any malice or ill will towards any of the Plaintiffs; that he didn’t
intend to harm or discredit the Plaintiffs. The iion ifact irrelevant.vant. It is thenary meaninganinganing of words that count.
The ordinary meanin fact oact of assertio cheating and criminal actions without basis belies the 1st Defendants claim that he bore
nore no and will. The 1st Defe acknowledged he was angry with the Plaintiffs and intendedended to harm them as Mr Wingti had with
their assistance harmed him. was sn Royuarium v Parkinson [1892] UKLawRpKQB 46; 1892 1 QB 431 that where a person through anger make makes asps aspersioersions of another people reckless whether they are true or false publication
will not be excused. I am satisfied too that in acknowledging that one of the main reasons for his ordering the Plaintiff Valentine deported was because
of his filing proceedings for defamation against him, is further evidence of lack of good faith on the part of the 1st Defendant. In the result the Plaintiffs case has been overwhelming. As for the second Dent, itt, it must be held vicariously responsible for
the actions of its Chief Minister. Judgmenentered for each ofch of the Plaintiffs against each of the Defendants. DAMAGES Publication of defamatory m is unlawful by section 5 of the Act. In fact by section 18 a p rson is guilty of an f an offence and
may be fined up to K600. If the person defamed is a member of Parliament the fine may extend to K1000. No proof of actual injury is necessaran action of defamation.n. The exof injury to reputatputation is next to impossible to ascertain;
to obtain an exact measure of adequate compensation is equally difficult. Damages are thereford to b to be at large. A fair apropriate
award murd must be based on all the circumstances. Inssing a proper award decd decided cases show the Courts should include in its
consider, thentiff, the injurynjury to his reputation, the PlaintiffRf’s own conduct, the nature of the defamatory allegations
made, and extent of publication, the absence of retraction or apology by the defendant and in fact the whole of the conduct of the
Defendant from the time the libel was published down to verdict. Gatlea 1451. The dehe defamatory allegations in this case are in my view among the most serious and damaging that can be made. A Company’s
reputation is dependent on its being resed as honest and fair in i in its dealings. Allegations that it is putreputable, dishonest,
and cheats in business is to attacusiness at its heart. To assert that its principals,pals, naming them individually, are also dishonest fraudulent criminal andts who consciously set abou
about to cheat the PNG Government is to make the most serious and damaging of charges. The charges were unwarranted not only because they were not true but also because they were known not to be true. The facts supposedling
risg rise to the charges were known not to be true and documentation offered supposedly as proof of the charges clearly and usly
did not do so. When the man in the street unjustly defames his neighbour the inhe injury is a serious matter having its own consequences. It will
r in an appropriatpriate an award in damages. However when the Sthrough ough its Prime Minister asserts untruthfully that a company
is dishonest and names it principals as criminal in statements published bearing the State e, on 3 consecutive days throughout the
nation, the impact oact of such charges on the reputation of company and individual can only be regarded as devastating. Such assertions
are in effect a pronouncement of the State; a conviction without the process of law for which the State is quarantor. I am satisfied that was the case here. The evidenows that the Come Company wopped in its tracks and eved eventually went out of business.
The twking principals Mess Messrs Mendoza and Valentine were leftout position or income, their business failed, their reputaeputations
wrecked. Mr Lussick as an advidirecdirector of the Compan perhaps not affected so muso much as to his income but his reputation
was, like the others, seriously injured. The Pelair Enqinvestigated by the 1st Defendant did in fact help to vindivindicate the Plaintiffs though that vindication did not
generate any change of heart in the Defendants by way of apology or recompense. In the normal course of an action for defamation
failure, even refusal, to retract or apologise for defamatory prior to verdict matter may not warrant adverse comment. But where,
as prion to proo proceedings being commenced there has been aeen a public enquiry where the findings, which the Defendants freely
accepeared the Plaintiffs of any wrong doing then, then in such case the failure to retract or a or apologise must be seen as serious
lack of good faith. Evidence was given as to the effect of the publication on the Company and the financial losses that it was said to have sustained.
nce was given also by each each of the Plaintiffs directors as to the impact of the publication on them, financially, and the resultant
isolation socially and in the business community. For PNGAS, Counsel submitted that an award should compensate the company for its loss of goodwill, the financial losses sustained
and for the company’s eventual closure. Defence Counsented out that that the company was in fact unprofitable. It hadained
losses in the the previous two years and was carrying heavy debt. I do not propose to traverse the evidence regarding the company finances. ce tothat I accept the Defe Defence contention that the
come company was, at the time of the publication certainly not making much moan wages for its staff. It was cially not strong. ong.
But notwithstanding the the extensive ation&#ion it was carrying, inscy wasy was far from inevitable. It was nonetheless a viable
operation being run in its development stages with the v and mination of its share holders with the guidance once of Mr Lussick an
experienced businessmnessman of long standing. I am satisthat d every chay chance ofce of developing into a strong profitable business
had this attack not occurred. I am satisfied on vidence that both Mr Mandoza and Mr Valentine had a wide acquaintance thoughout the communimmunity and were well
known in the aviation industry particularly. Iatisfied that their reputreputations did suffer from the publication. When persons
are defamed ynjury to reputation is not necessarily shown by the public or friends directly abusing or shunning the victim. It is
perhore oshown by frby friends and business associates avoiding the usual relationship and them themselves suddenly distancing themselvesavoiding
contact and the former easy contact. The earlier ease sociationation is lost lost. I t the Plaintiffs evidencidence that such was
the experience. Defence Counsel suggested that Mr Mendoza has a robust personality not readily put down0; Itsuggested too thao that he had in fact
suffered no financiaancial loss. If anything, he was rel ofed of a marginal business and subsequently able to undertake a position
paying him more. On a purely monetary and momentory basis this submission has accuracy. But restricting one&#s owns own drawings dugs during the early
stages of a business is accepted as usual and sound business practice to help meet the demands of a business. But thimission fails
to tato take into account the injury sustained in the loss of independence and satisfaction in conducting one’s own business.
As for Mr Men#8217;s resilresilience it nate that he has had that shat strong character trait to sustain him throughout this matter.
It is nmatter of mitigatiogation fe Defence. Evidence was adduced as to the effect pubt publication had on Mr Valentine’s health. I am satisfied thadid st tbut the evidence
also shows that he was already in y in ill health at the time of publication. That I believe aggravate condition but on the evidence
I am unable to conclude to what extent. Nonetheless thss the fact of an actual impact on his heas a matter to included in the assessment
of compensation. As for thed director, tor, tor, Mr Lussick, the Defence pointed out te had no financial interest in PNGAS, and
that he had not lnot let the publication interfere with his business or social way of life.; The effect of publicationation must
have been minimal since he has had significant honours conferred on him since. His reputais effectively iely impregnable and remains
unimpaired. Accordidamages if any shou should be nominal only. I accepte statements as to Mr Lussick. They rm the evidence he gahe gave himself with the dige dignity and assurance of a man confidentimself
and his achievementsments. Butrary to the submission sion that they are reasons for nominal damages they are reason for substantial
damages illustrating as they do that this was totally unwarranted attack on a prominent man of the community with a honourable reputation
built on achievement and integrity. There was a suggestion that the Plaintiffs were somehow guilty of delay in bringing these proceedings. That is not so. Following
pation there wase was the Pelair enquiry and from that reasonable hopes of recompense. When nothventuated these pese proceedings
were commenced. I do not see they can be a be ad of reasonable delay.elay.
Turning to the awards themselves it was submitted by the Defence that nothing is to be gained by attemp compare awards with those made in other jurisdictions.. Fu it was suggested that ghat given the few decisions on defamation it would be legitimate and appropriate that a comparison with personal injury awards be made citing Carson v John Fairfax &s Ltd 1993 ALJR 634. 160; Pursuo that submissioission he cited several cases brought under the Motor Vehicles Insurance Trust legislation.
While not discounting that it may often be valid to draw comparisons with personal injury cases I find those cited were unhelpful. The awardTei Abals case, Bse, Baker Lae Printing Pty Ltd 1979 PNGLR 16 and Cross v Zuideina 1987 PNGLR 361 were likewise of little value for this decision.
In my assessment this damaging attack on the Plaintiffs is one where the award in compensation should not only be appropriate to the injury sustained but signify and affirm the vindication of the Plaintiffs reputations.
Accordingly bearing in mind that Messrs Mendoza and Valentine are also the shareholders in PNGAS I award the damages to that Company of K50,000.00 Mr Mendoza and Mr Valentine and Mr Lussick. I cer should be equally coly compensated, and award to each the sum of K100,000.00. Interest, fromencement of t of proceedings until verdict to be at 8%.
here was a claim by the Plaintiffs for aggravated damages.&ges. I haund in this case that that all the matters raised in supporsuch a claim are essentialltially the same as arise in the ordinary course of the compensation award now made.There does howeemain the issue of costs.&#ts. is case costs of course wise will follow the event. However give circumstancesances of this case into now will traversed I consider it appropriate that those costs be on a solicitor client basis and I so order.
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