PacLII Home | Databases | WorldLII | Search | Feedback

National Court of Papua New Guinea
You are here:  PacLII >> Databases >> National Court of Papua New Guinea >> 2014 >> [2014] PGNC 325

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Salika v Pacific Star Ltd [2014] PGNC 325; N5699 (10 January 2014)

N5699


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO. 176 OF 2007


BETWEEN:


THE HONOURABLE JUSTICE GIBBS SALIKA
Plaintiff


AND:


PACIFIC STAR LIMITED T/AS THE NATIONAL
First Defendant


AND:


DAVID KORIMBAO, ACTING EDITOR IN CHIEF OF THE NATIONAL
Second Defendant


AND:


HARLYNE JOKU
Third Defendant


Waigani: Davani, .J
2013: 22nd May,
2014: 10th January,


CIVIL PROCEEDINGS—defamation—plaintiff, a Judge of the National and Supreme Courts of Papua New Guinea - assessment of damages after entry of default judgment—wide circulation of defamatory article - defamatory article published once in newspaper—reporter did not check facts—defendants did not apologize—injury to the plaintiff's reputation as a judge and private citizen—award of general and aggravated damages and interest of K471, 143.
Facts:


The Plaintiff, a Judge of the Court, brought proceedings against the defendants for damages for defamation said to be contained in a letter written by the third defendant and published by the first and second defendants. The letter contained imputations that the plaintiff was unfit to be a judge and was sitting on a case where he knew he had a conflict of interest and deliberately delayed the case for the benefit of one of the parties. Default judgment had been entered and the matter came for trial on assessment of damages.


Held:


  1. Entry of default judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim except where the cause of action pleaded does not make sense or an assessment of damages would be a futile exercise, at [19];
  2. The purpose of an award of damages for a human plaintiff are:
    1. to protect and vindicate the personal reputation of the plaintiff, that is reparation of the harm done to the plaintiffs personal and (if relevant) business reputations; and
    2. to provide solace for wounded feeling, grief and annoyance and consolation for personal distress and hurt;
    1. to compensate the plaintiff for past and prospective losses caused by publication of the defamatory material.
  3. An apology soon after the defamation is published can result in a lesser award, at [26];
  4. Damage to reputation is not a commodity having a market value; Reputation and money are in that sense incommensurable. Secondly, comparisons between awards for defamation are difficult. Every defamation and every award of damages for defamation is necessarily unique. Thirdly, because the available remedy is damages, courts can and must have regard to what is allowed as damages for other kinds of non-pecuniary injury." (at 58) per Hayne .J in Rogers v. Nationwide News Pty Ltd (2003) 77ALJR 1739.
  5. A judge's reputation is indeed one that must be zealously, closely and safely guarded, at [74]
  6. Where the media proposes to publish matters alleging incompetence of a judge they must first confirm that the source of information is correct, at [77];
  7. The offending article was published without the reporter checking the facts, a very irresponsible act, at [80];
  8. There was complete apathy and indifference by the defendants to a request for an apology and the effect the article had on the plaintiff, at [79-82];
  9. A journalist and reporter has a responsibility to the public to publish accurate and correct reports meaning they must conduct their own investigations to ensure that what they report is correct, at [87]
  10. Aggravated compensatory damages may be awarded in defamation if the defendants' conduct aggravates the subject hurt, at [86,88];
  11. An award of K250,000 for general damages, at [85];
  12. An award of K50,000 for aggravated damages, at [88];
  13. Interest at 8% for 7 years 1 month 21 days in the sum of K171,143, total judgment of K471,143, at[ 90];

Cases cited
Papua New Guinea cases:


Tei Abal v. Anton Parau [1976] PNGLR 250
Theresa Joan Baker v. Lae Printing Pty Ltd [1979] PNGLR 16
Glenn B. Watterston v. Henry Moses (1982) N388;
Wayne Cross v. Wess Zuidema [1987] PNGLR 361
Pawa Kombea v. Semal Peke [1994] PNGLR 572;
Kamea Gabe v. Jack Clunn & Pacific Gold Studios Pty Ltd [1995] PNGLR 153;
PNG Aviation Services Pty Limited v. Michael Somare [1997] PNGLR 515;
Loani Henao v. David Coyle & Others (1999) N1918
David Coyle, Rimbink Pato and Alfred Manase v. Loani Henao [2000] PNGLR 17
William Mel v. Coleman Pakali & Others (2005) SC 790
David Lambu v. Paul Paken Torato (2008) SC 953
Lina Kewakali v. the State (2011) SC 1091
SMY Luluaki Ltd v. Paul Paraka Lawyers (2011) N4360
SMY Luluaki Ltd v. Paul Paraka Lawyers (2012) N4685


Overseas cases:


Rooks v. Barnard [1964] UKHL 1; [1964] AC 1129
Broome v. Cassell & Co. Ltd [1972] UKHL 3; [1972] AC 1027,
Carson v. John Fairfax & Sons Ltd [1993] HCA 31; (1992-3) 178 CLR 44
Crampton v. Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176
John Fairfax & Sons Ltd v. Vilo (2001) 52 NSWLR 373
Rogers v. Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327; 77 ALJR 1739
Konstantinidis v Foreign Media Pty Limited and Ors [2004] NSWSC 835
John Fairfax Publication Pty Ltd v. O'Shane (No. 2) [2005] NSWCA 291


Counsel:
Mr S. Malaga, for the plaintiff
Mr B. Frizzel, for the first, second and defendants


DECISION


10th January, 2014


  1. DAVANI .J: Before me is Writ of Summons and Statement of Claim filed on 28th February, 2007 by Henaos Lawyers for and behalf of the plaintiff. For hearing is the plaintiff's claim for assessment of damages, default judgment having been entered against the first, second and third defendants on 11th May, 2007.
  2. The defendants filed an application to set aside the default judgment however, this was dismissed by the National Court on 8th October, 2007.
  3. On 16th November, 2007, an appeal was filed in the Supreme Court, SCA 117 of 2007 against the National Court's order of 8th October, 2007. However, the appeal was dismissed by the Supreme Court on 3rd July, 2009, with costs.

Background facts


  1. This is a claim for defamation filed by the plaintiff, presently the Deputy Chief Justice of Papua New Guinea. Then, when the action was filed, he was a Judge of the National Court of Papua New Guinea.
  2. He filed this action after publication by the National Newspaper on Friday, 24th November, 2006, of an article that mentioned or discussed a case that was before him in Court.
  3. The title of that article "Custody hearing denied, says mum" was in relation to a custody matter. The full text of this article is attached to the plaintiff's affidavit sworn on 14th December, 2009 and filed on 23rd February, 2010 as annexure 'B'.
  4. Below is the full text of the article:

"A frustrated mother has written to the Chief Justice expressing her concern that the court system has denied her a hearing related to the custody of her children. Vagi Aruai, the mother of three children, who were abducted and kidnapped by their estranged father and taken out of PNG to Fiji for over a year, sent her letter on Tuesday. Ms Aruai said the court's inability to deal with the matter expeditiously was a bad reflection of the Court's inability and incompetence. That should be brought to the attention of the Ombudsman Commission and other relevant authorities to deal with, she said. She referred to her case OS 654 of 2006 Vagi Aruai v. Sam Pepena – outstanding application. Since the filing of the writ of summons at the National Court last September, Ms Aruai has yet to get a hearing date. "This case concerns the welfare of my children who were abducted and kidnapped by their estranged father and taken out of the country for over a year. I, as a citizen have been fighting this case on my own without support from the Government because of the legal system's inability to provide me legal aid. Then when I get some help, the court system deliberately denies me the opportunity to get my case heard at the earliest time possible", Ms Aruai claimed. With the court vacation approaching fast she needs to know why this case has not been given a hearing date. "My checks with the National Court Registry have continuously revealed that the file is with Justice Gibbs Salika, a church member and friend of the defendant. "Surely if this is the case, the Honourable judge would have disqualified himself and get someone else to hear the case, "Ms Aruai claimed. She further asked the Chief Magistrate how long it took a citizen to get a case heard. "How much longer do my children have to suffer and why does the court think it is at its disposal to decide how long a citizen should wait without any proper notice explaining why, "she asked. Ms Aruai said she had asked for her matter to be listed for hearing immediately and the matter be given to Justice Catherine Davani or another Judge due to conflict of interest. Ms Aruai told the National that while the nation celebrated the International Children's Day and protection of children's rights and welfare, the reality she faced now saddened her."
(the 'Article')


  1. The imputations that allegedly arise from this claim are set out at paragraph 6 of the statement of claim and which read as follows:

"6. The words of the said article in their natural and ordinary meaning meant and were understood to mean;


(a) that the plaintiff was deliberately and corruptly delaying the delivery of justice to the fourth defendant;

(b) that the plaintiff had sat, and continued to sit, on a case in which he was a friend of, and member of the same church as, one of the litigants;

(c) that the plaintiff lacked the ability and competence to deal with the fourth defendant's litigation;

(d) that the plaintiff was sitting on a case in which he knew he had a conflict of interest;

(e) that the plaintiff was unfit and unworthy to be a Judge;

(f) that the plaintiff was deliberately delaying the resolution of court proceedings;

(g) that the plaintiff, through his said actions, was causing suffering to the children the subject of the proceedings."
  1. The plaintiff pleads further at par. 7 of the statement of claim that:

"7. By reason of the publication of the said words, the reputation of his Honour has been injured and is likely to be injured in his office, profession and in the community including his church and other person are likely to be induced to shun, avoid, ridicule or despise him."


Evidence


  1. Several affidavits were tendered and relied on by both parties.
  2. The plaintiff relies on the following affidavits:
  3. The defendants rely on the affidavit of Andy Ng sworn on 11th May, 2010 and filed on 12th May, 2010, marked exhibit '1'.

Issues


  1. The only issue before the Court is as to whether the plaintiff is entitled to damages and if so, how much.

Analysis of Evidence and the Law


  1. The plaintiff, then a Judge of the National Court, filed these Court proceedings because he believed that as a result of the publication of the Article, that he was the subject of ridicule and embarrassment.
  2. There are certain parts of the Article which refer specifically to the plaintiff and which reads:

"my checks with the National Court Registry have continuously revealed that the file is with Justice Gibbs Salika, a church member and friend of the defendant.


Surely if this is case, the honourable Judge would have disqualified himself and get someone else to hear the case Ms Aruai claimed.


How much longer do my children have to suffer and why does the Court think it is at its disposal to decide how long a citizen should wait without any proper notice explaining why" she asked.


  1. However, my view is that the whole Article must be read together in its entirety, to then appreciate that plaintiff's contentions that the general effect of the Article is that it was the plaintiff who delayed the hearing of the custody case because of the manner in which he dealt with it.
  2. Ordinarily, if a plaintiff is out to prove that certain statements that were published have had the effect of tarnishing his reputation, he must call evidence to prove that. In this case, default judgment was entered. What is the effect of that?
  3. On an application for default judgment, the applicant is effectively telling the Court that the defendant has not complied with the rules of Court and that therefore, the plaintiff is entitled to default judgment (See Lina Kewakali v. the State (2011) SC 1091). It means also that the matter was not proven on the merits.
  4. The general assumption is also that on the entry of default judgment, that this resolves all questions of liability on the matters pleaded in the statement of claim. That the Judge assessing damages should only make a cursory enquiry to be satisfied that the facts and cause of action are pleaded with sufficient clarity. (SMY Luluaki Ltd v. Paul Paraka Lawyers (2011) N4360). However, the trial Judge sometimes finds that he or she must revisit the entry of default judgment because the cause of action pleaded does not make sense or would make an assessment of damages a futile exercise (Moses Luluaki v. Pacific Star and the State (2011) N4360).
  5. There have been cases decided in this jurisdiction where default judgment was entered on defamatory actions. Some of these cases are Glenn B. Watterston v. Henry Moses (1982) N388; Pawa Kombea v. Semal Peke [1994] PNGLR 572; Kamea Gabe v. Jack Clunn & Pacific Gold Studios Pty Ltd [1995] PNGLR 153; Loani Henao v. David Coyle & Others (1999) N1918. The Court then proceeded to award damages. I refer to and discuss some of these cases, later below. However, what is demonstrated in these cases is that the allegations made, although not tested in a trial, were relied on by the Court and consideration had to factors that were mitigating and aggravating. The plaintiffs were also categorized as 'human plaintiffs' and 'corporate plaintiffs'.
  6. What kind of damages are payable by defendants to plaintiffs who are aggrieved by defamatory statements or in this case, publications?
  7. The Supreme Court in David Coyle, Rimbink Pato and Alfred Manase v. Loani Henao [2000] PNGLR 17 held that the purposes of an award of damages for defamation in favor of a human plaintiff are:

i. to protect and vindicate the personal reputation of the plaintiff, that is reparation of the harm done to the plaintiffs personal and (if relevant) business reputations; and


ii. to provide solace for wounded feeling, grief and annoyance and consolation for personal distress and hurt;


iii. to compensate the plaintiff for past and prospective losses caused by publication of the defamatory material.


  1. The Courts in Papua New Guinea have always awarded a global sum that reflects all the above factors.
  2. In Coyle & Ors v. Henao (supra), the Supreme Court (Los. J, Jalina .J, Kirriwom .J) dismissed an appeal against an award of K50,000.00 made by Woods .J in the National Court in favour of the respondent, Loani Henao, a prominent lawyer and former president of the PNG Law Society who was allegedly defamed by members of a rival law firm in a letter to the Attorney General. The rival law firms contentions was that Mr Henao was prepared to engage in improper, unethical, dishonest conduct and to assist a client make false allegations in court proceedings, which he knew to be false.
  3. The decision in Coyle v. Henao (supra) has drawn a fine line between damages that can be aggravated and mitigated. It held the following:

- the manner and extent of publication of the defamatory material were, if it is published on multiple occasions in the media, the damages to be awarded will be more that if it is published in a letter with limited circulation.


- the Court also looks at the defendant's attitude and the effect the statement had on the plaintiff, whether that statement was made maliciously, in bad faith and/or was deliberately insulting. This would then require a higher award of damages as opposed to a publication made with a lesser degree of intention to harm.


- The defendants' conduct immediately after the publication.
  1. There are those defendants who apologise soon afterwards. These defendants can expect to have lesser awards made against them than those who publish a statement of regret or who continue to repeat the defamatory statements in another publication.
  2. In SMY Luluaki Limited v. Paul Paraka Lawyers (2012) N4685, the National Court discussed the distinction between human plaintiffs and corporate plaintiffs. The Court in that case analyzed how the National Court and the Supreme Court in previous cases decided on damages to be awarded and the principles those Courts took into account when making those awards.
  3. The several cases where the Court awarded damages for defamation to human plaintiffs during the period 1975 to 1995 were:

i. Tei Abal v. Anton Parau [1976] PNGLR 250, National Court per Frost CJ.


In that case, the Court awarded K1,000.00 to the plaintiff who, at a political rally attended by many villagers from Enga, and where the defendant told the crowd that the plaintiff was "in the pay of the Europeans. He received $2,000 or $3,000 from them. That is why he supported provisional citizenship. The watch he is wearing was given to him by the Europeans. He is not fit to represent the people".


The Court took into account the seriousness of the allegations including bribery and the fact that the plaintiff, a member of parliament, was a public figure. The statements were widely broadcasted within the province.


The mitigating factors in that case were that the statements were made in the heat of the moment, they were not premeditated and were not repeated.


ii. Theresa Joan Baker v. Lae Printing Pty Ltd [1979] PNGLR 16 National Court,Wilson .J.


In that case, the defendants sent a letter to the Editor which published in a regional newspaper and which referred to the defendant's visit to a Fashion Boutique in Rabaul, where he defamed the proprietor of the Boutique by stating..., "I walked into Theresa's last week and the most odious, revolting creature greeted me, but it was with sarcastic criticism from behind the counter... when I realized I was trying to be fed, I realized that the creature was the owner itself".


The Court noted that an apology was published two weeks later but was a meager one and that the article was circulated widely in the local areas. Although the statements were not expected to be taken seriously, the plaintiff, a reputable business woman, became an object of ridicule.


The Court awarded the plaintiff K6,000.00.


iii. Wayne Cross v. Wess Zuidema [1987] PNGLR 361 National Court Bredmeyer .J.


This was an action for defamation brought by a prominent, successful and respectable business man in Kimbe. The Provincial Works Minister had written a letter to him, copied to four other people accusing him of using "mafia tactics", to get a sewerage pump at the hotel fixed.


The letter was circulated to a number of government authorities. Although the defamatory statements were not published in the mass media, the plaintiff's complaint was that his reputation, standing and business interests were affected.


The Court awarded K4,000.00 in damages.


iv. PNG Aviation Services Pty Limited v. Michael Somare [1997] PNGLR 5. A defamation case where the plaintiffs sued the defendants for damages arising out of the defendants' publication in daily newspapers, using the Government crest, an article which stated that the plaintiffs were criminals. This publication ran for 3 days.


After consideration of principles relating to human and non-human plaintiffs, amongst others, the Court held at page 516 of the decision that the injury to the plaintiffs' reputation, its conduct, the nature of the defamatory allegations made and the extent of the publication, the absence of retraction or apology by the defendant and the whole conduct of the defendant from the time of publication of the libel to verdict, warranted awards.


The Court took into account seven factors and awarded K100,000.00 each to the human plaintiffs Mendoza, Valentine and Lussick. It awarded to the plaintiff company K50,000.00.


  1. In other jurisdictions, the following cases decided accordingly, were;

1. John Fairfax Publications Pty Ltd. O'Shane (no.2) [2005] NSWCA 291

In this New South Wales case the Respondent/Plaintiff Magistrate claimed damages for defamation based on an article published by the Appellant. In the New South Wales Court of Appeal, some of the imputations were found to amount to a defence of fair comment. Damages in respect of other imputations were then re-assessed. The imputations were:


(a) The respondent, when acting as a Magistrate, is biased;

(b) The respondent is biased against the police;

(c) The respondent, in breach of her duty as a Magistrate to consider criminal charges in accordance with the law, knowingly dismissed charges against four women who pleaded guilty to defacing a billboard when she should have found them guilty and awarded costs and damages against them.

(d) The respondent, in breach of her duty as a Magistrate to consider criminal charges in accordance with the law, knowingly dismissed offensive language charges against Aborigines because she believed the charges were a habitual form of police harassment.

The Plaintiff Magistrate was awarded AUD$175,000.000 in damages.


(2) Konstantinidis v Foreign Media Pty Limited and Ors [2004] NSWSC 835

The Plaintiff who was a Solicitor, was awarded AUD$200,000.00 damages for two radio broadcasts that were defamatory of him.


(3) Rogers v. Nationwide News Pty Ltd [2003] HCA 52

A doctor was awarded AUD$250,000.00 damages for defamation.


(4) Carson v. John Fairfax & Son Ltd & Slee [1993] HCA 31

A partner in a legal firm was awarded AUD$200,000.00 in respect of the first article and AUD$400,000.00 in respect of the second defamatory article published by Fairfax in the Sydney Morning Herald in 1987 and 1988. The jury returned verdict were however set aside by the New South Wales Court of Appeal.


(5) Crampton v. Nugawela [1996] NSWSC 651

A doctor was awarded AUD$600,000 in damages for defamatory statements "as representing an undifferentiated sum of compensation for the lost opportunity to earn income and as a solution for distress, damage to reputation and vindication of the reputation."


In this case, Mahoney ACJ, said


"In my opinion the law should place a high value upon reputation and in particular upon the reputation of those who work and life depend upon their honesty, integrity and judgment".


  1. Mr Malaga for the plaintiff made submissions on the seven imputations that are set out above and pleaded at par. 6 of the statement of claim.
  2. Mr Frizzell for the first, second and third defendants (the 'defendants'), submits that the article, the subject of the defamation proceedings, is about a custody hearing before the National Court and reports the mother's frustration concerning three children, the subject of the Court proceedings, the estranged father, the removal of the children from the mother, the subject of the proceedings and a custody dispute/proceeding, before the National Court of Justice, Waigani.
  3. Mr Frizzell further submits that the second paragraph of that article qualifies the first paragraph in that it is assumed that the plaintiff has or will disqualify himself if the first paragraph is correct. Mr Frizzell submits that taking both paragraphs together, the assertion in the first is clearly qualified. Mr Frizzell submits that it is a question of fact to be decided by the Court as to whether the imputations pleaded in paragraph 6 (a) to (g) of the statement of claim can be made out.
  4. It is further submitted by Mr Frizzell that paragraphs 6 (b) (c) (d) (e) and (g) cannot be made out from the two paragraphs of the article which refer to the plaintiff. He submits that paragraph 6 (a) of the statement of claim concerning the word "corrupt" does not, as a matter of fact, apply to the plaintiff as an imputation on any reading of the two paragraphs of the article.
  5. Mr Frizzell points out that the only two paragraphs in column 3 of the article which relates to the plaintiff are the following:

"my checks with the National Court Registry have continuously revealed that the file is with Justice Gibbs Salika, a church member and friend of the defendant".


"Surely if this is the case, the Honourable Judge would have disqualified himself and get someone else to hear the case". Mrs Aruai claimed".


  1. Mr Frizzell submits, that considering the submissions he raised above, that the decided cases show that the "high water mark" for personal defamation awards is PNG Aviation Services Pty Ltd v. Michael Thomas Somare (supra) where, a public advertisement in the daily newspaper using the Government Crest of Papua New Guinea signed by the then Prime Minister, making statements inter alia that the plaintiffs were criminals, did warrant an award of K100,000.00.
  2. Mr Frizzell pointed out that at the end of the scale, cases such as Abal v. Parau [1976] PNGLR at 25 and Baker v. Lae Printing Pty Ltd [1979] PNGLR16, the first case involving a political meeting and the second a letter to the editor, warranted awards of K1,000.00 and K6,000.00 respectively. Mr Frizzell reminded the Court that this case is referred to in PNG Aviation and not seen as relevant.
  3. In the later case of Coyle v. Henao (supra), the Supreme Court confirmed that K50,000.00 as a personal defamation award was within the discretionary range. In Pitil v. Clytus (supra) the Court followed the same line of reasoning in Coyle v. Henao (supra) and awarded K50,000.00 for personal awards.
  4. The Courts have not made any awards in a defamation claim where a Judge is a plaintiff. But this Court will be guided by cases from other jurisdictions to assist me in determining what is a suitable award.
  5. At the time the proceedings were filed in 2007, the plaintiff was a Judge. He was recently elevated and is presently the Deputy Chief Justice of the National and Supreme Courts of Papua New Guinea. Also, at the time the proceeding were filed, the plaintiff had served more than 10 years on the bench.
  6. Mr Frizzell submits that the allegations deposed to in paragraph 5 of Chesley Avou's affidavit is self serving and does not assist the plaintiff in any way. He submits further that paragraph 6 of that affidavit shows the plaintiff's reputation was restored immediately in a conversation and that paragraphs 7 and 8 are hearsay and of no relevance.
  7. In relation to Andy Ng's affidavits, Mr Frizzell submits:

- on the circumstances in relation to the defendants seeking to apologise;


- that since publication, the plaintiff has been appointed Deputy Chief Justice of the National Court and Supreme Courts of Papua New Guinea.


  1. As for Isaac Sechere's affidavit, Mr Frizzell submits that the statements therein are self serving. Mr Frizzell did not elaborate any further.
  2. The plaintiff's affidavit is not challenged by either objections or cross-examination which means that Mr Frizzel's submissions on the veracity or not of the contents of the affidavits filed by the plaintiff and the defendants have no basis, because they have not been tested by cross-examination. It is not for the Court to make conclusions based on assumptions. In fact, both parties consented to the tendering of affidavits and then made submissions which means that it is for the Court to give these affidavits the appropriate weight each deserved.
  3. At paragraph 2 of his affidavit, the plaintiff deposes that he was first appointed to the bench on 30th November, 1989 as an acting Judge. The position was made substantive on 30th May, 1990. As at today's date, the plaintiff has been a serving Judge for 25 years.
  4. At paragraph 37 of his affidavit, the plaintiff deposes that he has a significant and prominent reputation and is known to all Judges in Papua New Guinea and many Judges internationally in the Pacific Region, the Commonwealth and Australia through his association with the Pacific Judicial Development Programs and through his chairmanship and membership of the Judicial Education Committee ('JEC') and several various attendances at international conferences and workshops.
  5. When the plaintiff read this article he said he "felt deeply hurt, injured, embarrassed and humiliated" (par. 17). He also felt "angry" that such allegations were made for no good reason (par. 21).
  6. After double checking with his Associate and Secretary to ensure that he had not presided over the case the subject of the publication, the plaintiff telephoned the National Newspaper and talked to the author of the publication who admitted that she had not checked the story with the plaintiff's associate before going to print (par. 24 to 33).
  7. He reiterates that he has been chairman of the JEC since 2003. Judges from the Pacific, the Commonwealth and Australia communicate with him regularly on matters concerning judicial education and training (par. 38).
  8. He is also known to a lot of NJSS Staff and Court officers and many Papua New Guineans as a Judge and a leader in his village (par. 39 and 40).
  9. He is known by many people as an elder of the Seventh Day Adventist Church (par. 41).
  10. I was referred to several cases by both counsel, some of which I have set out above. One case I consider most relevant is that of John Fairfax Publication Pty Ltd v. O'Shane (No. 2) [2005] NSWCA 291 (31st August 2005). This matter was heard by the New South Wales Supreme Court of Appeal, which was an appeal from the Supreme Court Common Law Division. This was a case where a Jury found that an article published by the appellant carried imputations (a) to (h), defamatory of the respondent. Smart .AJ found against defences of fair comment and qualified privilege and assessed damages in respect of the imputations. The Supreme Court of Appeal upheld the defence of fair comment in relation to imputations (c) (f) (g) and (h). Damages in respect of imputations (a) (b) (d) and (e) therefore had to be reassessed and the parties agreed that the same Supreme Court bench in the Court of Appeal should re-assess them. The imputations from that article where that:

a. the respondent, when acting as a Magistrate, is biased;


b. the respondent is biased against the police;


d. the respondent, in breach of her duty as a Magistrate to consider criminal charges in accordance with the law, knowingly dismissed the charges against four women who pleaded guilty to defacing a billboard when she should have found them guilty and awarded costs and damages against them;


e. the respondent, in breach of her duty as a Magistrate to consider criminal charges in accordance with the law, knowingly dismissed offensive language charges against Aborigines because she believed that the subject charges were a habitual form of Police harassment.


  1. Young CJ in EQ said at pg 3:

"3. The purpose of the damages is to console the respondent for her hurt and distress suffered as a result of the publication of the article to compensate her for harm to her reputation, and to provide vindication of her reputation; see Carson v. John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 69. There is no market value for reputation, hence, it is often said that the damages are "at large". In Crampton v. Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176 Mahoney ACJ said at 195 that the law should place a high value upon reputation, and in particular upon the reputation of those whose work and life depend upon their honesty, integrity and judgment. These words apply to the respondent. The damages must also be a sufficient amount to make clear the vindication of her reputation, see Carson v. John Fairfax & Sons Ltd at 61; Crampton v. Nugawela at 195".
(my emphasis)


  1. The respondent in that case enjoyed a very high profile. After a teaching career in Queensland she studied and graduated in law. She was admitted to the bar and practiced her profession and held a number of senior government appointments, culminating in her appointment as the permanent head of the ministry of Aboriginal affairs under the Wran Government. In 1986 she was appointed a Local Court Magistrate and continued in that office.
  2. She was also active in many areas of public life. She held senior position with various organizations and official bodies. She was awarded an Honorary Doctorate of Law from three universities in New South Wales. She was Chancellor of the University of New England. She worked hard for the advancement of Aboriginal communities and their rights. She was a vigorous and outspoken campaigner. She received glowing references from Ms Ryan, former Federal Minister for Education and President of Superannuation Trustees, Mr E.G Whitlam, former Prime Minister and Ms J Milledge, a Magistrate since 1996 and Senior Deputy State Coroner.
  3. The Court held that as a senior magistrate, the plaintiff's lifestyle, indeed depended on her honesty and integrity. Damages were awarded to compensate her for harm done to her reputation.
  4. The majority of the High Court in Carson v. John Fairfax & Sons Limited [1993] HCA 31; (1993) 178 CLR 44 at 60-1 said;

"Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that 'the amount of a verdict is the product of a mixture of inextricable considerations. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business. First two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant; the sum awarded must be a least the minimum necessary to signal to the public the vindication of the appellant's reputation. (See Carson (1991) 24 NSWLR at pp 296 -299)."


23 The High Court adopted with approval the statement that currently appears in Fleming, Law of Torts, 9th ed (1998) p 658 as to relevant matters in assessing the quantum of damages necessary to vindicate the appellant; "The gravity of the libel, the social standing of the parties and the availability of alternative remedies...".


However, as Lord Hailsham said in Broome v. Cassell & Co. Ltd [1972] UKHL 3; [1972] AC 1027 at 1072, "The whole process of assessing damages is essentially a matter of impression and not addition."


It has often been said that "... the law should place a high value upon reputation and in particular upon the reputation of those work and life depend on their honesty, integrity and judgment, see eg Mahoney ACJ in Crampton v. Nugawela [1996] NSWSC 651; (1996) 41 NSWL 176 at 195 and recently applied by Budd J in Konstantinidis v. Foreign Media Pty Limited [2004] NSWC 835.


In Rogers v. Nationwide New Pty Ltd [2003] HCA 52; (2003) 216 CLR 327, Callinan and Heydon JJ paid some regard to previous verdicts in defamation cases and noted that it was not unknown for doctors to receive awards in the $200,000.00 to $600,000 range. Assuming that this is now a valid approach, I might note that, although most of the successful plaintiffs in such cases were doctors, large verdicts were awarded to solicitors in Carson and in Konstantinidis and to a doctor who was principally defamed as a company director in John Fairfax & Sons Ltd v. Vilo (2001) 52 NSWLR 373".
(my emphasis)


  1. Hayne J, with whom Gleeson CJ and Gummow J agreed with on the question of damages, observed in Rogers v. Nationwide News Pty Ltd [2003] HCA 52; (2003) 77 ALJR 1739, that there are three purposes to be served by an award of damages for defamation. His Honour said that they are;

(i) consolation and hurt caused to the plaintiff by the publication;


(ii) reparation for harm done to the plaintiff's personal, and in this case, professional reputation; and


(iii) the vindication of the plaintiff's reputation. As pointed out in Carson the first two purposes are frequently considered together and constitute consolation for the wrong done to the plaintiff; vindication looks to the attitudes of others (at 1705)


  1. Hayne .J said later;

"First damage to reputation is not a commodity having a market value; Reputation and money are in that sense incommensurable. Secondly, comparisons between awards for defamation are difficult. Every defamation and every award of damages for defamation, in necessarily unique. Thirdly, because the available remedy is damages, courts can and must have regard to what is allowed as damages for other kinds of non-pecuniary injury." (at 1751)
(my emphasis)


  1. In Carson v. John Fairfax & Sons Ltd [1993] HCA 31; (1992-3) 178 CLR 44, Brennan J said;

"The chief purpose of the law in creating a cause of action for defamation is to provide vindication to counter the injury done to the plaintiff in his or her reputation...


The sufficiency of the amount awarded is not to be determined by reference solely to circumstances past and present; the amount must be sufficient to vindicate the plaintiff's reputation in the relevant respect in the future. Thus Lord Hailsham in Broome v. Cassell & Co. said;


"Not merely can [the plaintiff] recover the estimated sum of his past and future losses, but in the case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge".


  1. Upon consideration of all the above, the Court will be guided by the principles upon which awards were made in the above Australian cases.
  2. This was a case where the matter proceeded to assessment of damages after the entry of default judgment. Although none of the parties questioned the propriety or legality of entering default judgment or requested that the Court revisit the entry of default judgment (William Mel v. Coleman Pakali & Others (2005) SC 790), the Court still had wide discretion whether or not to enter default judgment.
  3. The effect of the entry of default judgment is that although default judgment has been entered, it does not mean that the Court should just award damages without properly scrutinizing the statement of claim. In David Lambu v. Paul Paken Torato (2008) SC 953, the Supreme Court comprising Gavara Nanu, Davani and Cannings .JJ discussed whether default judgment can be entered in defamation claims and the peculiarities of an action for defamation.
  4. In that case, I discussed the peculiarities of defamation claims and where, the practice in other Commonwealth Jurisdictions including Australia, is for the statement of claim to be carefully screened by a Judge and directions issued on the manner in which the litigation will be conducted.
  5. In this case, although the evidence on the defamatory statements made by the defendants were not tested before judgment was entered, I can do so now, because those statements must be weighed out to determine whether the plaintiff did in fact suffer the damages he claims to have suffered. Which of course means that it is pointless entering default judgment when such a process would still have to be undertaken in an assessment of damages exercise.
  6. I have set out above the effect the publication has had upon the plaintiff. The plaintiff, as a Judge of the National and Supreme Courts, did indeed find himself in a situation where, as he said in his affidavit sworn on 14th December, 2009 and filed on 23rd December, 2009, that he was very "...hurt, humiliated, ridiculed, and angry at the same time...". The affidavit deposes that on the morning of Friday, 24th November, 2006, the plaintiff had not read the paper but had heard that such an article was in the newspaper. When he did read the newspaper, as he said in his affidavit "I found the article on page 6 of the National newspaper and read it and as I read it, I felt deeply hurt, injured, embarrassed and humiliated because of what I was reading. I questioned myself whether I had dealt with the matter." (Par. 17)
  7. The plaintiff said that he tried to remember and recall if the complainant Vagi Aruai had appeared before him that month. He said he checked his note book and looked for the name and the originating summons number as reported in the article in his notebook but did not find any such reference. He also checked with his Associate and Secretary and to find out if the reporter Harlyne Joku from the National newspaper had called his office or whether anyone by that name had called to speak to him that week or on Thursday, 23rd November, 2007. Being hurt and humiliated, he rang the National Newspaper and was put through to the reporter, Harylne Joku. The plaintiff enquired with her as to why she published such a story. She said she did so based on humanitarian grounds. She admitted that she had not checked out whether such an allegation was correct or not but that she just published the article.
  8. The plaintiff said after his conversation with her, he could not sit down because he was humiliated and hurt by this report. That he kept pacing up and down his chambers, cursing and talking to thin air, as to how the reporter would allow such a story to go to print without checking the plaintiff's side of the story or checking with his staff or the Registry.
  9. He was also aware that hundreds and thousands of people in Port Moresby and the country would right now had read the story through the internet and the newspaper.
  10. To make matters worse, he deposed that his daughter at that time, a 4th year law student, had read the article and that her class mates had referred to him as the "corrupt Judge". He noted from what his daughter had told him that the general impression was that he was very unethical in the performance of his duties and that he was also an incompetent and corrupt Judge.
  11. As to whether the defendants apologized for their actions, there is before me evidence attached to Andy Ng's affidavit, a form of a statement of apology from the defendants. However, Mr Ng's affidavit does not state whether such an explanation was advertised, as was the request by the plaintiff, that the defendants publicly apologize in the media for their actions. The undisputed evidence is that the defendants did not publish the apology.
  12. Indeed, the hurt and humiliation suffered by the plaintiff would have been enormous at that time. Of course, I take into account the fact that the plaintiff has now been elevated to the position of Deputy Chief Justice. And I also take note of the defendant's lawyer's submissions that this elevation demonstrates that the newspaper article had no bearing on the plaintiff's ability to progress in life. Notwithstanding, my view is that the defendants had been very casual in their defence of the claim and also in their application to set aside default judgment both in the National Court and the Supreme Court. The defendants more particularly, did not make any effort to either publicly retract the article or publicly apologise. It demonstrates the defendant's complete "don't care attitude" and a blatant disregard for the damage or hurt and humiliation caused to the plaintiff. Of course, one can conclude, that the defendant's attitude would have been basically, 'as long as the newspaper sells that story'.
  13. I accept that the plaintiff did indeed suffer and is entitled to damages. I note also that the damage to reputation does not have a market value and also that reputation and money in that sense, are incommensurable. (Rogers v. Nationwide New Pty Ltd (supra). The purpose to be served by an award of damages for defamation is, to console the hurt caused to the plaintiff by the publication; to repair the harm caused to the plaintiff's personal and professional reputation; and vindication of the plaintiff's reputation which is basically, the attitude of others (see Rogers v. Nationwide News Pty Ltd (supra)).
  14. I looked to the above Australian cases as a guide, to assist me in determining the kind of damages that should be awarded to a Judge. I agree, as was stated by Mahoney ACJ in Crampton v. Nugawela that "...the law should place a high value upon reputation and in particular upon the reputation of those who work and life depend upon their honesty, integrity and judgment".
  15. A Judge's reputation is indeed one that must be zealously, closely and safely guarded. He or she must have integrity and credibility because his work and his life depends on that. Imputations of bias will arise, obviously if his integrity and credibility is tainted. And this publication did indeed cause such a blemish to the plaintiff's character and reputation.
  16. The highest amount ever awarded was PNG Aviation Services Pty Ltd v. Michael Somare where the sum of K100,000.00 was awarded to the human plaintiffs and K50,000.00 to the corporate plaintiff.
  17. In this case, to assess an amount to be paid, I will weigh the imputations which are effectively, the aggravating factors as against the mitigating factors.
  18. I should also state at the outset that although there is freedom of information in this country which is a constitutionally guaranteed right, in instances where both the print media and television including radio, are to air articles about the incompetency of a Judge, the proper thing to do under the circumstances is for the reporter to firstly confirm that his sources are correct and to do so he must ascertain from the Court Registrar and from the Judge's Associate, what the actual, and accurate status of the case is. Cases before the Courts are and contain very sensitive information, information that should not be divulged without the consent and approval of the National and Supreme Court Registrar. To publish without first verifying, means that the media, and their reporters, are publishing what may be inaccurate, sensational and misleading information.
  19. The following conclusions can be drawn from the evidence when considered together with the imputations;

(a) the plaintiff was deliberately and corruptly delaying the delivery of Justice to Vagi Aruai. He did so by keeping the Court file OS 654 of 2006 in his chamber and not allocating a hearing date especially where the article states;


"...Since the filing of the Writ of Summons at the National Court last September, Ms Aruai has yet to get a hearing date ..."My checks with the National Court Registry have continuously revealed that the file is with Justice Gibbs Salika, a church member and friend of the defendant. "Surely, if this is the case, the Honouable Judge would have disqualified himself and get someone else to hear the case," Ms Aruai claimed...


(b) Isaac Sechere said in his affidavit, at par. 6; "When I read this article, I just could not believe it. I read and re-read the article. What the words of the article meant to me was that Justice Salika had sat and continued to sit on a case in he was a friend of and member of the same church as the defendant in that case. Further, that Justice Gibbs Salika was sitting on a case in which he knew he had a conflict of interest and was deliberately and corruptly delaying the delivery of Justice to Ms Aruai. In short, Justice Salika was not fit and worthy to be a Judge..."


This confirms imputation no. 2.


At par. 7 of the same affidavit, Isaac Sechere said "...the article was saying something very bad about him."


(c) Chesley Avou, than a pastor at the Korobosea Seventh Day Adventist Church, deposes in his affidavit that when he read the Article, he "was very concerned" (par. 5 of affidavit) because the plaintiff was a senior member of the SDA church at Hohola. He said he "...felt very bad" (par. 5 of affidavit).


(d) In his affidavit, Loani Henao said that although he demanded a full retraction and apology from the second and third defendants for and on behalf of the plaintiff, done by way of correspondence dated 15th December, 2006, and that although the plaintiff had requested that the defendants publish a full retraction and apology, that the defendants did not do that.


(e) the plaintiff deposes in his affidavit, amongst others, that;


- He did speak to the reporter Harlyne Joku but that she was arrogant and very casual about the whole matter even though the plaintiff specifically requested that she publish an apology; (par. 31)


- that he told the reporter Harlyne Joku that he did not know the man Sam Pepena and that Sam Pepena was not a member of the same SDA church he attends at Hohola (par. 33)

- When the plaintiff spoke to Harlyne Joku, he asked her, "what about my side of the story, do you have a duty to check it out, to be fair or words to that effect." (par. 31) Harlyne Joku was very casual in her response (par. 31).
  1. I must accept the plaintiff's lawyers' submissions that when read together, all the affidavits, including the Article, all alleged the imputations have been made out, which are;

In relation to the last imputation, I can conclude or, any person reading the Article, can conclude, that because the plaintiff sat on the case and did not allocate a hearing date, that the children of that relationship will continue to be without their mother and are indeed suffering.


  1. Although the article was published only once, it did have a wide circulation. As confirmed by the third defendant reporter, she published the Article without first checking and verifying the facts, a very irresponsible act indeed. It means, the publication was malicious and without consideration of the effects to be suffered. It was also insulting to the plaintiff.
  2. Even after the plaintiff spoke to the reporter, she did not show any remorse. Neither did her employer. There was total, complete apathy and indifference by the defendants.
  3. As was held in Coyle v. Henao (supra), the mitigating and aggravating factors must be scrutinized and balanced. In this case, I find again that the aggravating factors far outweigh the mitigating factors. In fact, there are no mitigating factors, at all.
  4. Without creating a market for excessive damages, I remind myself that the plaintiff is a Judge of the National and Supreme Courts. The article has definitely tainted his character, that he is an unfair and biased Judge. He must be compensated for that.
  5. The case of John Fairfax publication v. O'Shane (No. 2) (supra) is indeed a useful guide. The damages of AUD$175,000.00 was awarded in August 2005. It is now 2014. Indeed, considering the effluxion of time, the amount of K100,000.00 awarded in the PNG Aviation case to 3 businessman, each in 1997, must be increased, as inflation must be taken into account. Also, the Court takes into account the Australian exchange rate as against the PNG Kina which is stable at .41, meaning AUD$175,000.00, in 2005, is the equivalent of K426,829.26. No doubt, an increase is warranted under the circumstances.
  6. I find the sum of K250,000.00 in damages, is adequate compensation.
  7. As to the claim for aggravated damages, I find that this must be paid. As was held in Cassel & Co. Ltd v. Broome [1972] UKHL 3; [1972] AC 1027 and Rooks v. Barnard [1964] UKHL 1; [1964] AC 1129 where Lush .J said at 526;

"From these authorities one is entitled to conclude that aggravated compensatory damages may be awarded in defamation if the defendants conduct aggravates the subjective hurt to the plaintiff. They cannot be awarded merely for reasons of indignation felt by the fury, but only if the evidence points to the conclusion that the blow to the plaintiff's pride, however it may be called, has been or must have been worsened by what was done".


  1. A journalist and reporter has a responsibility to the public to publish accurate and correct reports meaning they must conduct their own investigations to ensure that what they are reporting is correct. The practice of reporting what you hear is unfortunately common in this country. As to whether journalists are answerable to a code of ethics is a matter to be seriously considered by the Association of Journalists, if there is one.
  2. Indeed, as a serving Judge, the article was a blow to the plaintiff's pride. He was completely disillusioned. The fact that Andy Ng, the Pacific Star's General Manager and the reporter Harlyne Joku, did not publish an article retracting the Article and to publicly apologise, is a conduct that seriously aggravated the plaintiff's hurt (Rooks v. Bernard (supra) and obviously, deflated the plaintiff's pride as a Judge, I find an award of K50,000.00 in aggravated damages, to be just under the circumstances.
  3. Of course, the Court will also award interest at 8% pursuant to s. 1 of the Judicial Proceedings (Interest on Debts and Damages) Act. Assessing from when the cause of action arose on 24th November, 2006 to date of judgment on 10th January, 2014, on the sum of K300,000.00, over the period 7 years 1 month and 21 days, the total assessed interest over that period is K171,143.00.
  4. The amount to be paid is K471,143.00, the break-up of which is;

1. Damages K250,000.00

2. Aggravated Damages K50,000.00


3. 8% Interest K171,143.00

__________

4. Total (damages and interest) K471,143.00

___________


5. All the defendants to pay the costs of the proceedings, to be assessed and taxed.


Formal Orders


These are the formal orders of the Court:


  1. The defendants will pay the plaintiff the sum of K300,000.00 in damages;
  2. Interest is awarded at 8% on K300,000.00 from when the cause of action arose to date of judgment, assessed at K171,143.00;
  3. The defendants will pay the plaintiff's costs of the proceedings, to be taxed if not agreed.

_____________________________
Henaos Lawyers: Lawyer for the Plaintiff
Warner Shand Lawyers: Lawyer for the Defendants

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2014/325.html