Henao v Coyle [1999] PGNC 92; N1918 (20 October 1999)

Unreported National Court Decisions

N1918

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 578 OF 1999
LOANI HENAO - PLAINTIFF
-V-
DAVID COYLE – FIRST DEFENDANT
RIMBINK PATO - SECOND DEFENDANT
ALFRED MANASE - THIRD DEFENDANT

Waigani

Woods J
5 October 1999
20 October 1999

DEFAMATION – an attack on reputation and integrity – a lawyer – actionable per se – presumption of damage - damages.

Counsel

N Cooke QC with M Varitimos for the Plaintiff

S Carter for the Defendants

20 October 1999

WOODS J: The Plaintiff is seeking damages for defamation following the publication of a letter in which it was suggested that the plaintiff was prepared to engage in improper conduct, was unethical, was dishonest, was prepared to engage in unprofessional conduct, and was prepared to assist a client in making false allegations in court proceedings which the plaintiff knew to be false. This letter was published to certain persons and through this publication would have come to the knowledge of many other people. The letter was caused to be published by the three defendants as the principal partners in the firm of lawyers entitled ‘Pato Lawyers’ and the letter was entitled under their firm letterhead and was signed by the first defendant on behalf of the partners and was addressed to the Attorney General of Papua New Guinea with cc.s to The Commissioner of Police, to the Plaintiff’s firm, and to Maladinas Lawyers.

The writ of summons was filed in June 1999 and was served on the defendants shortly after filing. Whilst the defendants did file a Notice of Intention to Defend they did not file a Defence and in due course a default judgement was signed against the defendants for damages to be assessed. The matter has now come before me on the assessment of damages.

The plaintiff has given evidence of receiving instructions from the Attorney- General to act for certain policemen in proceedings instituted by the Second Defendant numbered OS 565 of 1998. It appears that these proceedings were related to some criminal investigations being carried out by the police in connection with allegations over certain activities at the time of the 1997 National Elections. The plaintiff’s firm did act as requested for the police and certain material was filed in the proceedings. Then the proceedings were discontinued. However then the defendants wrote the alleged defamatory letter to the Attorney-General. The plaintiff took immediate exemption to the letter and the contents and expressed shock and dismay that the defendants would see fit to write direct to the Plaintiff’s client recommending amongst other matters that the Attorney-General withdraw his instructions to the plaintiff. The plaintiff gave evidence of his shock and dismay at receiving the letter especially realising that the way it was copied to other parties it would receive a wide circulation. Evidence was led of the position of the plaintiff as a leading lawyer in the country, and of the various areas in which he is involved through being one of the leaders of the profession, all matters that are well within the knowledge of the court.

In this letter sent to the Attorney –General the defendants stated:

‘the fierce advocacy and promotion by these lawyers of their clients falsehoods and the promotion of very serious charges against a citizen in the apparent absence of any reasonable grounds...’

This statement is clearly calculated to disparage the plaintiff in his profession as an officer of the court. It suggests a complicity in the presentation of falsehood to the court, knowing they were false. This would clearly be contrary to a lawyers duty to the court. By writing this letter to the Attorney-General who was the client of the plaintiff it could be inferred that the defendants were seeking to influence the Attorney-General against the interests of the plaintiff and perhaps to withdraw his instructions and further would have been suggesting that the plaintiff was not merely unreliable but also of a very doubtful integrity. It could imply that the Attorney-General should not brief the plaintiff in matters in future.

Another part of the letter suggested complicity in the use of public funds being used for the private misconduct of the plaintiff’s clients. The letter persistently implied that the plaintiff knew that the allegations being made were false and therefore he participated with full knowledge in the preparation of false affidavits.

I am satisfied that the material in the letter was a scurrilous attack on the reputation and integrity of the plaintiff and is actionable per se. Whilst there is no evidence that certain highly placed persons thought any the less of the plaintiff the court must recognise the offensive nature of the allegations. And further whilst there is no evidence that because of the matters alleged in the letter the Attorney-General will not brief the plaintiff in any further matters and thus there is no actual evidence of any loss of business by the plaintiff the law does presume that some damage will flow in the ordinary course of things from the mere invasion of the plaintiff’s absolute right to reputation. Radcliffe v Evans [1892] UKLawRpKQB 131; [1892] 2 QB 524 & 528.. And further the material in the letter are clearly disparaging words spoken of a person in the way of his profession, in contemplation of law damage has accrued to the person defamed. Watkin v Hall [1868] LR 3 QB 396 & 399.

Following the letter the plaintiff did attempt to make direct contact with the defendants however he states that there was never any return of his attempts, So there has never been any attempt to mitigate the import of the allegations or statements or any suggestion of an apology. Whilst the letter was only forwarded to three persons, because of the status of those persons and the ease with which people relate and communicate within the legal community it could reasonably be expected that the contents of the letter would get a wide coverage. Of course this is somewhat different to a letter in a national newspaper.

It is always very difficult to make a mathematical calculation for defamatory or malicious remarks. There can never be any mathematical certainty. It is a matter of considering an amount which whilst expressing the community and the courts criticism of such behaviour does not create a market of excessive payments. On the other hand the amount should not be so low as to make people wonder whether the court considers the behaviour can be tolerated at a small fee.

In the circumstances and considering the very high status of the plaintiff in the legal community, the nature of the attack on his very position and integrity as a lawyer and an officer of the court, but without creating a market of excessive damages I will assess a figure of K50,000 for damages for the defamation.

Judgement for the plaintiff against the defendants in the sum of K50,000 together with costs.

On the matter of costs there has been an application for costs of overseas counsel. There must be exceptional circumstances shown for this court to award costs for overseas counsel. The matters referred to the court for consideration include the fact that this was a matter of defamation between two very senior practicing lawyers in a relatively small community which could create difficulties for any other person within that community to act and it would be preferable for the matter to be handled by someone unconnected with this community. I fully agree with this and also in view of the fact that I regard defamation actions as being matters that are easier to deal with if handled with a sensitive approach by persons who have a sufficient distance from the parties. I therefore certify for one overseas counsel.