Pitil v Clytus [2003] PGNC 85; N2422 (1 August 2003)

N2422

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 1046 of 2000
BETWEEN:
ARLENE PITIL
Plaintiff

AND:
RUTIS CLYTUS
First Defendant
AND:
NANCY SIMEON
Second Defendant
AND:
MARGARET LUKU
Third Defendant
AND:
ISLANDS RECRUITMENT MANAGEMENT SERVICES ENTERPRISES LIMITED
Third Defendant
WAIGANI: KANDAKASI, J.
2003: 27th May
1st August

DEFAMATION – Letter to plaintiff with copies circulated to third parties including statutory authorities making false allegations – Whether that amounts to defamation? – If defamatory whether protected under s. 11 of the Defamation Act? – Letters were defamatory and not protected by s. 11 of the Defamation Act – Protection under s. 11 is not available when the publication of the defamatory material is actuated by malice or ill will or with knowledge that the material published has no factual foundation – Defamation Act s.11

DAMAGES – Damages for defamation – Measure of – Actual costs and or expenses incurred and general damages for injury caused to reputation and or good will in the case of a business – K50,000.00 awarded for damage reputation.

Papua New Guinea Cases Cited:
Takai Kapi v Gregory James Shepherd & Ors (20/01/03) N2323.
The State v. Kauva Lavau & Kamo Kauva (26/09/96) N1523.
The State v. Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (16/10/01) N2298.
The State v. Kevin Anis and Martin Ningigan (7/04/03) N2360.
Wyatt Gallagher Bassett (PNG) Limited v Benny Diau and Moresby Claims Adjustment Partners Ltd (16/08/02) N2277.
PNG Aviation Services Pty Ltd & Ors v. Michael Thomas Somare & Ors (20/12/96) N1493.
David Coyle & Ors v. Loani Henao (30/11/00) SC655.
PNG Aviation Services Pty Limited v Michael Thomas Somare (?/12/00) SC658.
Lin Wan Xin & Anor v. Wang Yanhong, & Ors (07/12/01) N2160.

Other Cases Cited:
Pullman and Another v. Walter Hill & Co., Limited [1890] UKLawRpKQB 193; [1891] 1 QB 524.

Texts Cited:
Street on Torts, H. Street, 7th Edn. Butterworths, London 1983.
The Law of Defamation in Canada, Raymond E. Brown, Carswell, 1987.

Counsels:
Mr. L. Manua for the Plaintiff.
No appearance for the Defendants.

1st August 2003

KANDAKASI J.: The plaintiff is claiming damages for defamation. She alleges that the defendants defamed her by circulating a copy of a letter written to her dated 2nd July 2002. The letter was jointly written by the first, second and third defendants, using the fourth defendant’s Islands Recruitment Management Services Enterprises Limited (IRMSEL) letterhead. She also claims that she was defamed when the first defendant deposed to an affidavit filed in the Port Moresby District Court. These materials contain various allegations of mismanagement of the fourth defendant’s funds, breached of immigration and Investment Promotion Authority laws and regulations.

In their defence, the defendants deny publishing and defaming the plaintiff. At the same time, they plead in the alternative that what they published was true and they published it to be circulated to the various third parties, who needed to know of its contents for redressing an injury or harm done to them and for their protection.

Issues

These present to a number of issues for me to determine. The first is whether the defendants published the kind of defamatory material Mrs. Pitil complains of? Secondly, whether the material published was and is protected under any of the known defence to a claim of defamation? Thirdly, subject to a determination of the first and second issues, what are the plaintiff’s damages?

These questions can only be answered by reference to the facts and the applicable law. I will firstly deal with the relevant facts and then the relevant and applying law followed by a decision on the issues raised.

The Evidence and Relevant Facts

The relevant evidence is only in the affidavit of the plaintiff sworn on 21st and filed on the 22nd of May 2003. This was the only evidentiary material admitted into evidence in this case. Following the failure to turn up for the trial by the defendants and or their lawyer when the matter was called for hearing on the 27th of May 2003. The trial date was confirmed at a status conference I conducted on the 5th of May 2003. All the parties were represented at that conference. Mr. Manua appeared for the plaintiff while Ms. Rakanou appeared for the defendants. The trial date was allocated at a call-over conducted in January 2003 by my brother, Justice Gavara-Nanu when the matter was tentatively fixed for hearing on the 27th of May 2003. There being no communication forwarded to the Court or the plaintiff by the defendants explaining theirs or their lawyer’s non-appearance, I granted the plaintiff her application to proceed ex parte.

After the plaintiff’s affidavit was admitted into evidence, the plaintiff closed her case and asked for an adjournment to enable her to file written submissions in support of her claim. Her application was granted. In line with the orders, the plaintiff filed her submission on the 2nd of June 2003 through her lawyer. As I was away on circuit in June, I did not get around to considering the submissions and work on a decision until late last month. In the meantime, I had expected an application by or for the defendants to either set aside the ex parte proceedings and or be given leave to participate in the hearing in terms of filing and serving their affidavits and submissions. Neither of these has happened. I have therefore, proceeded to consider judgement and this is the judgement of the Court in this matter.

The plaintiff is 45 years old and comes from the Philippines and is married to Mr. Patilia Pitil, who comes from the New Ireland Province. She has been married to her husband for 26 years. Out of her marriage, she has three children, aged 25, 20 and 13 years old respectively. She is a Christian by religion and goes to the Praise Centre Church, CLC at Waigani, here in the National Capital District.

She has applied for a PNG citizenship and has followed up on that on a number of occasions. No decision has yet been made on her application. The Citizenship Committee has not considered hers and others applications for citizenship as yet due to lack of funds. She regards herself as a Papua New Guinean as she has been married to a Papua New Guinean for 26 years and has grown-up children, who are Papua New Guineans and that she has no reason to leave the country.

The plaintiff is an Accountant by profession. She graduated from the Queensland University of Technology in 1997. Presently, Islands Nationair employs her as its finance and administration manager. This is a contract position and has a current work permit number 04090764, which has an expiry date in September 2004. Prior to this employment, she was employed as a consultant to IRMSEL. For that employment, she had a valid work permit number 03020155 with an expiry date in February 2003. That was issued under her family consultancy firm, Pitil and Associates Enterprises Ltd. But well before that employment, she was employed by a company called Workman Ltd as its finance manager in 1999. The first, second and third defendants were also employed by that company.

In 2000, the plaintiff resigned from her employment with Workman Ltd. Upon her resignation, she and her husband decided to form a recruitment company. The first, second and third defendants learned of that and approached her husband and her and asked if they could join them in that business. Driven by a desire to help these defendants with a view to providing them the opportunity to improve their livelihood and their lives, should this business venture become successful in the future, the plaintiff and her husband decided to accept them into the business. This decision led to the formation of IRMSEL.

The plaintiff prepared all the necessary company registration forms. Her husband lodged the application for approval by the Investment Promotion Authority (IPA).

The plaintiff and her husband contributed 70% of the financial capital that was required to start up the business. They met the necessary operational expenses of office rentals and bond paid to Ray White, advertising costs, telephone, installation and bonds paid to Telikom, office partition and front desk counter; office stationery, company seals and stamps, locks and keys and office sign board sign. The couple also provided their own complete computer package for the company’s use. This consisted of 1 computer, 1 monitor, 1 keyboard, 1 mouse and 1 coloured Cannon bubble jet printer. The first to third defendants contributed toward the purchase of an additional computer, 1 monitor, and 1 keyboard with a mouse.

Although the plaintiff and her husband contributed more toward the formation and commencement of IRMSEL’s business operations, they decided that each of them, that is the first to the third and the plaintiff and her husband should have shares of 20% each. It was further agreed that actual acquisition of the plaintiff’s shares would be delayed until IRSMEL was able to generate enough income to meet the financial requirements for having a non-citizen as a shareholder.

This arrangement was formalized with the IPA on the 1st July 2002. That is when a duly competed Form 15 and Form 16 under the Companies Act 1997 were lodged together with a letter dated 7th March 2001 signed by the plaintiff’s husband and the first to the third defendants. That is the time when the plaintiff was appointed as a director of IRSMEL.

In the formative and infancy stages of IRSMEL, it was agreed by all the parties that the plaintiff should be IRSMEL’s Financial Controller/Consultant. This was in acknowledgement of she and her husband’s major contributions as well as she being a professional accountant. At the same time, it was agreed that the plaintiff’s husband, who is an expert in human resource management should hold the position of managing director of IRMSEL. Then IRMSEL through its managing director and the plaintiff as its financial controller, appointed the first defendant as its corporate manager, the second defendant as the recruitment & marketing manager and the third defendant as its payroll manager.

In her capacity as IRMSEL’s financial controller and on the approval of the managing director, the plaintiff laid down standard rules and regulations to monitor and control the financial affairs of IRMSEL in terms of its bank accounts and other financial transactions. Consistent with those guidelines, the managing director issued a number of specific financial guidelines and all of the parties agreed to abide by them. In the course of operations, however, the plaintiff found out that the first to the third defendants were not adhering to the financial guidelines. She found out for example that, on several occasions, cheques were raised by these defendants without first obtaining the approval of the managing director and even cheques were signed by them. She also found out for example that they released purchase orders without first obtaining approval from the managing director. The plaintiff therefore reported the matter to the managing director.

In a bid to avoid further breaches of the guidelines and to ensure proper accountability, the managing director decided to keep the cheque books and the relevant financial records and files. In the meantime, the plaintiff was tasked to update and post all the financial records in the yearly financial reports of IRMSEL and to check and account for the application of IRMSEL’s funds in breach of the guidelines. This decision was triggered by an instance in which the first defendant left for a special leave in the latter part of April 2002 without handing over the cheque books and contractors’ pay packets to the managing director. The keys to her office desk drawer were instead handed over to the second defendant who had no financial authority. After checking through, the managing director and the plaintiff discovered that the second defendant had used one of the contractor’s cash wages without approval from the managing director. The first defendant was aware of the act committed by the second defendant even before the first defendant left for leave. During this time, the first defendant was also responsible for the issuance of a purchase order used to purchase a return local air ticket for her niece, Margaret Biskum, a receptionist with IRMSEL. This action was also done without the managing director’s prior approval.

The first to third defendants reacted angrily to the actions of the managing director. The first defendant in the office of the IRMSEL threatened the plaintiff saying he would be out to destroy her if she did not give the cheque books back. He and the second defendant also issued verbal threats against the plaintiff in front of her husband, the managing director, the third defendant, her son, Karl Pitil and the receptionist, Margaret Biskum.

Consequential on this and as a means of ensuring financial restrain and transparency and accountability in the carrying out of each of the director’s responsibilities, the plaintiff was instructed by the managing director to provide a special written circular clearly outlining each of the director’s individual responsibilities and obligations to IRMSEL. The plaintiff prepared and issued the circular, specifically emphasizing the exact level of financial contributions each director’s have made to IRMSEL. That circular clearly stated to all the directors that their financial contributions have caused a significant impact to their actual level of shareholding in IRMSEL.

This circular was given to all the directors to clarify their shareholding status in IRMSEL based on their contributions. It was intended to be an information paper, simply restating the facts as at the time of the formation of IRMSEL. The first to third defendants did not necessarily accept this.

This developed into a situation of all manner of accusations and threats leveled against the plaintiff and her husband but more so the plaintiff by the first to third defendants. By then, it became clearer that she could not trust the first to the third defendants anymore. She and her husband thus decided to resign from IRMSEL effective 5th July 2002. Their reasons for doing so were these:

1. they could no longer trust the first, second and third defendants because of the false accusations and fabricated lies published by them;
   
2. the increasing level of IRMSEL liabilities owed to its suppliers and to its shareholders which were becoming too excessive that it was not worth fighting a legal battle with these defendants to remain in the company; and
   

100. they could not tolerate the level of misappropriation that was being perpetuated by the defendants.
     

Upon their resignation, the IRMSEL released them of all liabilities and obligations. This was placed on IRMSEL’s letterhead and signed for by the first to third defendants. Prior to that on the 2nd of July 2002, the first and third defendants using IRMSEL’s letterhead wrote to the plaintiff with copies forwarded to the Department of Labour and Employment and the IPA, levelling a number of allegations against her. This is the letter that is the center of this claim. That letter reads in relevant parts:

"Dear Arlene

RE: TERMINATION OF YOUR SERVICES

The Board has unanimously passed a resolution for your immediate removal in handling any of the company affairs. Effective immediately (02/072002), you are ceased from transacting any business dealings with IRMSE or its joint venture Landowner companies. You have totally misled the company as a so called business consultant in not exposing or providing advice on company operational matters instead you have opted to conspire and advise another director which is your husband to remove company confidential accounting records to your Island Nationair office and your house without authority.

Your intentions have been obvious as a foreigner here, in trying to pay yourself dubious unwarranted consulting fees with no approval by the Board.

The Board has been lenient in many ways for you to realize and put in place certain sensitive issues relating to foreigners and we have every reason to believe that you have purposely trying (sic) to avoid requirements. However, you have chosen to be arrogant and have decided with intent to falsify living in this country while married to a Papua New Guinea to take advantage of that simple fact and engage in other illegal company operation matters.

As majority of Papua New Guinea Directors/Shareholders who want to run honest business, we cannot sit back and watch scrupulous person, especially foreigners like yourself who simply want to spoil things for the rest of Papua New Guineans.

Your services will no longer be required for obvious reasons, which are contrary to the Company Act, Bad Management decisions on daily operations and Labour and employment act.

Main reasons for your immediate removals are:

1. You are illegally employed in the country without a work permit for several years contravening one of the company’s policies that employment of foreigners must satisfy the PNG Government requirements through Labour and Employment and IPA before they are even considered. We are surprised you have been illegally around and employed this long.
   
2. You have purposely and obviously made a mockery of the country’s laws with intent to conceal by being employed by two companies at the same time in Islands Nationair Ltd and IRMSE contravening again the labour and employment act and defrauding IRC for possible tax evasion.
   
   3. You have acted improperly by purporting to be the owner of the company and in most cases assuming the role of the company director/company secretary without being legally appointed.
      
4. You have obviously trying (sic) to hide and have a support from your Husband/Director to make decisions regarding management without the board’s approval. You have been trying to lodge documents without the board’s approval.
   
5. As a Foreigner with no standing with hidden motives, you have purposely tried to override the directors without any authorized instructions.
   
6. Without the Board’s decisions you have conspired with your husband/director in both of you signing cheques without the knowledge of executive directors responsible for their sections, which are also signatories. The control measures have been totally ignored and only one thing in mind is you are trying to defraud the company. This is totally unacceptable.
   
7. You have again hidden behind your husband/director and with no authority removed all company books especially the cheque books, wages books from the office causing inconvenience to employees being stranded and confused. This is unauthorized and conspiring with another director to defraud the company with only you know the intentions.
   
8. You have purposely misled the company directors/shareholders in the shareholding status in inaccurately compiling the financials with inflated figures to the advantage of your husband/director and without the board’s acceptance of those figures and the financials, you tried to have your husband accept them which he had no authority. Items significantly affected were the initial capital equity.
   
9. Without authority you have diverted funds to other costs centres not budgeted for leaving employees stranded for the salaries being partially paid.
   
10. All your actions have contributed and painted a negative image on the employees hired out to various Mining Resource Companies.
    
11. Your actions have also contributed to these employees frustrated turning up at the office drunk.
    

These are very serious matters, which have warranted your immediate dismissal.

The Board is instructing you to return all the company books in cheque books, wage books, payment vouchers etc by 10.00 am on Tuesday 2/07/02 voluntarily.

All other parties have been advised today (02/07/02).

You are advised to seek legal advice but if I were you I would not think about.

(Signed) (Signed) (Signed)

Rutis Clytus Margaret Luki Nancy Simeon

Director Director Director

Copy to: Dr Rona

Secretary

Labour and Employment

P O Box

Port Moresby

NCD

Copy to: The Registrar of Companies

Investment Promotion Authority

P O Box

Port Moresby"

The contents of this letter were repeated in an affidavit that was deposed to and filed in the Port Moresby District Court by the first defendant on the 3rd July 2002 with the full knowledge, consent, and/or authority of the other defendants. This is expressly stated in paragraph 2 of the affidavit. A copy of that affidavit is annexure "E" to that affidavit. But I will not take this aspect of the claim and evidence into account because of the immunity that is attached to participants in judicial proceedings and in particular witnesses. See Street on Torts, H. Street, 7th Edn. Butterworths, London 1983, at p.323 and Takai Kapi v Gregory James Shepherd & Ors (20/01/03) N2323, at pp. 6 & 7. I will therefore proceed only on the basis of the letter of 2nd July 2002.

These publications hurt the plaintiff and caused her mental distress as she now realizes she was being branded as a criminal, when she knew she was not. She was not given the opportunity to raise and discuss any of the matters covered in the letter with the defendants before publishing them. She says she suffered loss of business and income when she and her husband resigned.

Upon learning of these publications, the plaintiff instructed her lawyers and demanded an apology from the defendants by letter dated 22nd July 2002. In that letter, she also demanded the withdrawal of the publications. The defendants refused to apologise and or withdraw their publications. The plaintiff says she is under constant distress and hurt as she has fears of being seriously affected in her professional standing, her Christian faith and her status in the country and her chances of becoming a citizen.

Finding of Facts

There is no evidence for and on behalf of the defendants that rebuts any of the plaintiff’s evidence. So the Court is left with the plaintiff’s evidence, uncontested as it is. This does not necessarily mean that the Court should accept her evidence. Instead, the law requires the Court to consider whether her evidence is credible. If the Court accepts her evidence as credible, only then can it act on her evidence. For authorities on this proposition see for example, The State v. Kauva Lavau & Kamo Kauva (26/09/96) N1523, The State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (16/10/01) N2298 and The State v Kevin Anis and Martin Ningigan (7/04/03) N2360.

The defendants do not deny writing the letter of the 2nd of July 2002. They however deny having published it and plead in the alternative that the material published is true and in any case published for their protection and redress. The pleadings however, are not evidence. They must be supported by evidence. There is no evidentiary foundation for what the defendants plead in the alternative. The same can not be said of the plaintiff.

Documents such as her work permits do support what she deposes to in her evidence. Parts of what she says in her affidavit is admitted in the defendants’ amended defence, such as her being married to a Papua New Guinean and having lived in the country for about 26 years and that the letter of 2nd July 2003 was of and or about the plaintiff. There is nothing before me that casts a doubt over what the plaintiff deposes to or raise some question marks over the credibility of her evidence. Accordingly, I find her to be a credible witness and accept her evidence as credible. The relevant facts are as those deposed to in her evidence less the reference to the affidavit filed at the Port Moresby District Court.

The Law: Generally

In Wyatt Gallagher Bassett (PNG) Limited v. Benny Diau and Moresby Claims and Adjusters Partners Limited (16/08/02) N2277, I noted that defamation is tort at common law. Upon our independence, we adopted into our jurisdiction the relevant principles governing the law on defamation by virtue of s. 9 and sch. 2.2 of the Constitution. I agreed with Sheehan J.’s observations in PNG Aviation Services Pty Ltd & Ors v. Michael Thomas Somare & Ors (20/12/96) N1493 that the:

"Defamation Act (Ch 293) which consolidates the law on defamation protects the rights of individuals to their good reputation. It restates the essential common law principles in statutory form. It is the substantive law of defamation, but without provisions for such matters as procedure, damages or even the absolute protection of Parliamentarians for speeches in the House, the Act is not an exhaustive code in the way that Australian statutes on which it is modeled are said to be codes. Accordingly, where the act is not specific, then common law not inconsistent with the Act is relevant. English decisions pursuant to schedule 2.2 of the Second Schedule of the Constitution are therefore authoritative, while Australian decisions and those of other jurisdictions maybe persuasive."

I further observed in the Wyatt Gallagher case that the law on defamation and the Defamation Act prohibits a person from unlawfully publishing a defamatory matter against another. Hence, a defamatory publication is unlawful unless the publication is protected, privileged or excused by law. A person, natural or legal, who is unlawfully defamed and suffers injury, damage or loss in the consequence to his or her reputation is entitled to damages.

First Issue: Publication

One of the issues the Court must address first in any case of alleged defamation is the question of publication unless it is not in issue. I stated the law on this issue in the Wyatt Gallagher case. I need not repeat them here except only to refer to it.

In this case, publication or not is an issue. I therefore address that issue first. As earlier noted, the defendants plead in their defence that they did not publish the alleged defamatory material. The suggestion therefore is that since there was no publication of the letter, there was no defamation. Unlike in the Wyatt Gallagher case, the letter of 2nd July clearly was copied to persons other than its addressee, the plaintiff. There is no evidence of the copies not in fact being sent to the intended authorities. Indeed, in the alternative pleadings of the defendants, they claim that these authorities needed to be informed for the defendant and others protection against the plaintiff. I take from this pleading that they were in fact published to these third parties.

Further, going by the authorities such as Pullman and Another v. Walter Hill & Co., Limited [1890] UKLawRpKQB 193; [1891] 1 QB 524, which I cited and followed in the Wyatt Gallagher case, I find that the defendants further published the material to the secretary, who typed out the letter. Likewise, the material was published to the respective secretaries of the authorities to whom the letter was copied. For it would have been in the contemplation of the defendants that these persons would open the mail and read the contents in the normal course of business and place it before the addressees. This is because as, his Lordship, Lord Esher M.R said in Pullman and Another v. Walter Hill & Co., Limited (supra) in answer to the question "What is the meaning of ‘publication?’":

"The making known of the defamatory matter after it has been written to some person other than the person of whom it is written. If the statement is sent straight to the person of whom it is written, there is no publication of it; for you cannot publish a libel to a man himself."

Having found that the alleged defamatory were published, I now need to consider whether the publication is protected by law. This is the subject of the second issue in these proceedings.

Second Issue: Whether the publications are protected by law?

The defendants’ argument in terms of their defence is that, copies of the letters were given to the Department of Labour and Employment and the Investment Promotion Authority (IPA) to advise them of the plaintiff’s conduct for their protection. I have no difficulty accepting the argument that such authorities are entitled to receive any such complaints in their official capacities. But the question is, does this necessarily mean that they are or should be provided with complaint that has no factual foundation? In other words, does the right in a person to complain to such authorities entitle him or her to bring false and highly defamatory publication of another person, natural or legal? If so, does it necessarily follow that people who provide such information are protected from criminal and or civil liabilities?

As far as my research goes, the various industrial and labour laws and the Investment Promotion Authority Act are silent on these questions. I had a similar situation in the Wyatt Gallagher case. There, I turned to the Defamation Act, in particular s. 11 for assistance. After considering the provision, I said this of that section:

In Section 11 of the Defamation Act provides the circumstances in which a person may be excused from publishing defamatory material of another. These principles, as already noted, have been extracted from a large number of cases including some of the cases the parties have referred me to, such as Pullman and Another v. Walter Hill & Co., Limited (supra), and Adam v. Ward [1916-17] ALL E.R. Rep. 159. But underlying all of these is the requirement that the publication must be made in good faith. This means acting "honestly and on reasonable grounds" believing that what is published is true and necessary for the purposes of his redress of a wrong to him or her or for the public interest or good: see Lord Atkinson at page 173 in Adam v. Ward (supra). The Supreme Court in ... [Yakham v. Merriam (No. 2) (1999) SC 617] repeated this, citing Lord Atkinson in Adam v. Ward with approval."

This is an important principle underpinning a claim for qualified privilege. It takes person years if not a lifetime to build up a reputation in society and or a good will for a business. But it takes only a careless stroke of a pen or a simple unguarded utterance of a word to destroy all of that in no time. Therefore, the law has developed in the way it has to protect a person’s reputation and the good will of a business so as to ensure nobody publishes anything adverse against another, unless it is true and made in good faith or is made without malice. This is why the authorities such as Penton v. Calwell [1945] HCA 51; [1945] 70 CLR 219 and in our jurisdiction PNG Aviation Services Pty Ltd & Ors v. Michael Thomas Somare & Ors (supra), make it clear that the defence of privileged protection can be lost if the defamer is actuated by malice. So the protection is there only, as long as the author of the defamatory material acts in good faith, that is to say truthfully and honestly with no intend to destroy the party being defamed, irrespective of to whom it is made. This is why even in criminal cases the law allows for damages for any false or malicious prosecution."

In this case, the defendants have pleaded the material they published as being truthful and that they have published them without any ill will or malice against the plaintiff. Since the pleadings are not evidence, the defendants were required, as a matter of law, to establish their claims of the material published to be true and that they were not actuated by any malice or ill will against the plaintiff. I discussed, adopted and applied this procedure in the Wyatt Gallagher case. In that case, I found that the defendants did not have any factual basis to publish certain defamatory material against the plaintiffs. Consequently, I found that malice or ill will toward the plaintiffs actuated the defendants when they published the defamatory material because these are the opposites of acting in good faith. Accordingly, I found that their defences were not made out.

In this case, the plaintiff is a qualified accountant. She has years of work experience in PNG. She is married to a Papua New Guinean for more than 26 years now and has grown up children. She considers herself a Papua New Guinean by reason of her marriage to a Papuan New Guinean and grown up children out of that marriage. Papua New Guinea is a Christian nation by a deliberate declaration in the Constitution. Christianity, through the bible teaches that, when a man and a woman get married, the two become one flesh. It should follow therefore that the PNG citizenship of the plaintiff’s husband qualifies her to be citizen of PNG as well from a biblical perspective. But this is subject to the specific provisions man has made in the Constitution and other laws that separates a man and a woman in a marriage from each other when it comes to things like citizenship, for very good reasons.

In the publication of the defendants against the plaintiff, they allege that the plaintiff is a thief, a deceit and an alien who can steal and destroy IRMSEL or anybody and leave the country. They have also branded her a criminal and without any standing in the community and is an impostor. They further claim that she has obtained money through dishonest and irregular means and has defrauded IRMSEL. This was possible according to their publication, because of her relationship with her husband despite not being a fit and proper person to marry him and have children out of that marriage. Furthermore, they allege that she has no valid authority to be in the country but has been working and leaving in the country illegally. She should therefore be deported.

These are very serious and very damaging allegations. But there is not a shred of evidence establishing any of these allegations. There is therefore no factual foundation in these allegations. Indeed, I note that the defendants have failed to turn up in Court despite having notice of the date set for hearing and further opportunity being given to them before this judgement to do so. Consequently, I find that the defendants’ claim of what they published being truthful can not and is not supported by any evidence.

This then raises the question of why did they publish it if there was no truth in what they claimed? Could they have been actuated by malice or ill will toward the plaintiff that they were prepared to publish such very damaging material against her? The answer to these questions can be ascertained from the undisputed facts before me. The undisputed facts are that, the plaintiff and her husband were the main persons behind the formation of IRMSEL. They contributed in a large way toward the formation and eventual establishment of it as a company and going concern. It was in business generating income evidenced by its ability to employ both the plaintiff and her husband and the first to third defendants as its employees. It is also evidenced by the proper management and control of its finances in particular its expenditure issues that have eventually led to the plaintiff and her husband resigning from IRSMEL. The plaintiff and her husband decided to get out of IRSMEL because they could no longer trust the first to the third defendants under the umbrella of IRSMEL. The first to the third defendants eventually came to totally control IRSMEL and wanted the plaintiff and her husband totally out of IRSMEL. I find this caused these defendants to go as far as writing the letter of the 2nd of July 2002. That was their motivation.

This is very sad because the defendants bit the very hand that got them started and contributed a lot toward the formation and existence of IRMSEL. This kind of behaviour is very bad business because it destroys friendship, trust and confidence between people who enter into a joint venture or business. This destroys in effect any desire to do any business with Papua New Guineans because it creates a bad impression of Papua New Guineans. When that happens, it destroys the chances of the country improving economically.

As I observed in the Wyatt Gallagher case, the kind of attitude adopted by the defendants is bad business. I find this to be yet another case of Papua New Guineans using the issue of nationality or citizenship as an entitlement to gain more than one who contributes more and happens to be a non-national. I observed in that case also that:

"If a national has these qualities, no doubt the market’s forces will see to all or a majority of the job or business going to such a person. The mentality of nationals saying "because I am national, I must get all the job or business without the necessary expertise and competence" has no basis in our society. If a national is appropriately qualified and has the necessary expertise and competence to perform any given task, he or she should have no difficulty in securing a job or business. Publishing highly defamatory and damaging material for a greater or increased share of work or business is bad business. As such, it has no place in our society."

In the present case, there is no evidence of what expertise or skills the first to the third defendants brought into IRSMEL. Similarly, it is not clear as to what other financial and physical contributions these defendants made toward IRSMEL in terms of its formation and existence as a company apart from a computer set. In the absence of any evidence to the contrary, I find that the defendants did not have an honest and reasonable belief that what they were about to say were true. They were reckless as to the truth or otherwise of what they wrote and published. They had no way of knowing that, what they said was true. Yet they stated these allegations as matters of fact. It is reasonable to infer, and I do so in terms of the addressees of the letter of 2nd July 2002, understood these allegations to be factual. That could have changed their previous perception of the plaintiff. She therefore has every reason to be hurt and have fear over the kind of impression the publications could have created and could create over her as a person, an accountant, a wife, a mother and a Christian.

In these circumstances, I find that the defendants acted with bad faith, or ill will or malice against the plaintiff. I find therefore that the defence of qualified protection under s. 11 of the Defamation Act 1962 is not available to the defendants. Hence, I find them liable to the plaintiff in damages, which is the subject of the third issue.

Third Issue: Damages

The question is what are the plaintiff’s damages as a result of the defendants’ publication of the defamatory publication? The law is that damages are recoverable by a natural person for injury to its reputation and injury to his or her feelings. The Supreme Court judgement in David Coyle & Ors v. Loani Henao (30/11/00) SC655 adopted from "The Law of Defamation in Canada, Raymond E. Brown, Carswell, 1987, the following principles of law governing the assessment of damages in defamation cases:

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

Having regard to these and other principles, the Supreme Court affirmed an award of K50, 000.00 in damages reasonable and within the discretion of the National Court. In so doing, it noted in particular, that there is no requirement in defamation cases to establish actual injury or losses as a result of a defamatory publication as long as three elements are met. These are (1) consolation for the personal distress and hurt caused to the plaintiff by the publication, (2) reparation for the harm done to the plaintiff’s personal and (if relevant) business reputation and (3) vindication of the plaintiff’s reputation.

A month later, the Supreme Court in PNG Aviation Services Pty Limited v Michael Thomas Somare (?/12/00) SC 658, taking into account similar considerations, was of the view that an award of K50, 000.00 in damages to be too low and increased it to K100,000.00. That was in a case where there was clear evidence of loss and damages in fact being suffered and the plaintiff company being cut short in its progress, representing losses in millions of Kina.

Being guided by these Supreme Court judgements, the National Court has since awarded damages for defamation at K50,000.00 as a form of consolation for the personal distress and hurt caused to a plaintiff by the publication of defamatory material, reparation for the harm done to a plaintiff’s personal and (if relevant) business reputation and vindication of a plaintiff’s reputation. Examples of such judgements are my brother, Justice Sevua’s in Lin Wan Xin & Anor v. Wang Yanhong, & Ors (07/12/01) N2160 and my own in the Wyatt Gallagher case. In both these cases, general damages of K50,000.00 were awarded in addition to proven losses and damages.

In the present case, the highly defamatory material were circulated and therefore published to the IPA and the Department of Labour and Employment. No doubt this would have caused these authorities to form a negative opinion of the plaintiff from what they might have heard of her previously. Her standing in the community was also tarnished with no good reason but out of what I could describe as jealousy and a desire for more money at the expense of the plaintiff’s reputation. Although there is no evidence of the actual financial loss she has suffered and stands to suffer as a result of the defamatory publications, I have little doubt that she suffered and will suffer such loss. This is especially so, when she and her husband’s respective training, experience and resources were committed to bringing into existence IRMSEL. I also accept her evidence that these publications have injured her feelings and would have caused her much mental distress and pain. She therefore needs to be compensated by way of consolation, a possible reparation and vindication of the harm and damage done to her reputation and standing in the community as a person, a mother of three grown up Papua New Guinean citizens, a loving wife and professional account, who has taken PNG has her home and country but for the formalization of her citizenship.

The plaintiff is asking for a sum of K400, 000.00 in damages and K80,000.00 in exemplary damages. There is no contest on this claim. That does not however, mean that the Court should accept it. Instead, the Court in the exercise of the powers vested in it is duty bound to be satisfied that a case has been made out for such an award. In this case, no case has been made out for an award of damages beyond those that have been already awarded. For example, there is no pleading and evidence of the actual economic loss and damages the plaintiff has suffered or will suffer as a result of the defamatory publications. Likewise, no case has been made as to why there should be an award for exemplary damages. From what I know, exemplary damages are usually awarded against people in public authorities as a form of punishment for failing in their respective duties.

In these circumstances, I am not persuaded to award any damages beyond K50,000.00. I therefore make an award of K50, 000.00 in damages. I also award interest at 8% from the date of the issue of the writ to date of judgement. If the judgement is not satisfied within 21 days as prescribed under the relevant legislation from the date of a service of the formal orders, then interest at 8% will continue to run until the judgement is satisfied. I further order costs against the defendants. This judgement and orders are against each of the defendants both jointly and severally.
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Lawyers for the Plaintiffs: Harricknen Lawyers
Lawyers for the Defendants: Jubi Lawyers