N5844

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
 
WS NO. 213 OF 2011

BETWEEN:

ELIZABETH KIMISOPA
Plaintiff

AND:

DARRYL KAMEN
First Defendant

AND:

PETER KUMAN TRADING AS KUMAN LAWYERS
Second Defendant

Waigani: Davani J
2013: 30th September
2015: 9th January

DEFAMATION - Lawyer and law firm sued – Defendants are lawyers – letter sent by lawyer for possible plaintiff, to possible defendant – letter alleges fraud by possible defendant – letter give notice of court proceedings to be filed. 

DEFAMATION- Plaintiff alleges letter giving notice is defamatory – plaintiff sues lawyers for defendants – defamation by lawyers, alleged. 

DEFENCES -Fair comment, truth, qualified privilege, good faith- plaintiff alleges malice and falsity in subject letter – Defendants only performing duties as lawyers – Defendant's actions justified, protected and excused by law – ss. 9, 10, 11, 12 of Defamation Act.

Facts

The first and second defendant, an employed lawyer and employer respectively, are sued by the plaintiff who alleges that they defamed her when they sent a letter to her, copied to 3 others, informing her that they had recently received instructions from their client advising that she (the plaintiff) had colluded with 3 others, and fraudulently obtained title to property, s. 33, l. 10 Granville (Ela Makana), Lawes Road, Port Moresby, which title was to have been transferred to their client's late husband. 

Defendant lawyers say they are only acting on instructions from their client to file proceedings alleging fraud by her (the plaintiff) and 3 others.

The defendants raise the Defences of;

-	Fair Comment under s. 9 of the Defamation Act,
-	Truth under s. 10 of the Defamation Act,
-	Qualified Privilege under s. 11 of the Defamation Act
-	Good Faith under s. 12 of the Defamation Act.

Held

1.	The letter the subject of these proceeding was not made falsely or maliciously knowing the facts to be false and knowing that the publication would harm the plaintiff's reputation because it is a fair comment, carrying the protection of ss. 8 and 9 of the Defamation Act, the letter being a step a law firm briefed with instructions, will take, to put the prospective defendants on notice of the court proceedings to be filed by their client and the nature of those proceeding.

2.	That the instructions conveyed by the defendants to the plaintiff were based on their client's instructions, which were not refuted by other evidence, hence were true and that the Defence of Truth under s. 10 of the Act, is made out.

3.	That the subject letter was published in good faith and without malice because the plaintiff has not shown, on the balance of probabilities, that there was malice against her in the manner in which the defendants conducted their business, hence the Defence of Qualified Privilege and Good Faith under ss. 11 and 12 of the Act are made out.

4.	Lawyers are duty bound to convey their client's instructions to the prospective defendant/s, subject to the cloak of privilege.

Cases cited:
Papua New Guinea Cases

PNG Aviation Services Pty Ltd & ors v. Michael Thomas Somare & Ors (1996) N1493 
Wyatt Gallagher Basset (PNG) Limited v. Benny Diau (2002) N2277
Arlene Pitil v. Rutis Clytus (2003) N2422
David Lambu v Paul Paken Torato (2008) SC 593
Rabaul Shipping Limited v. Cyril Mudalige (No.2) (2009) N3783
Cyril Mudalige v. Rabaul Shipping (2011) SC 1132
SMY Luluaki Ltd v. Paul Paraka Lawyers (2011) N4360

Overseas Cases

Pullman and Anor v Walter Hill & Co. Ltd [1891] QB 524
Hunt v. Star Newspaper [1908] 2 KB309
Hansen v. Border Morning Mail Pty Ltd (1988) ATR 80, 188

Counsel 

Mr T. Injia, for the Plaintiff
Mr T. Boboro, for the First and Second Defendants

DECISION

9th January, 2015
 
1.	DAVANI .J: Before the Court for hearing on both liability and quantum is the Writ of Summons and Statement of Claim filed by Steeles Lawyers on 23rd March, 2011, for and on behalf of the plaintiff.

2.	Elizabeth Kimisopa, the plaintiff in these proceedings (the 'plaintiff'), sues the first and second defendants for defamation, alleging that a letter sent by the second defendant law firm Kuman Lawyers ('Kuman Lawyers'), was defamatory in content, as against the plaintiff.

4.	The defendant's Defence filed on 3rd May, 2011 by Kuman Lawyers pleads protection under Sections 9, 10, 11 and 12 of the Defamation Act. I will discuss these further below.

Background

5.	By a Statement of Agreed and Disputed Facts and Legal Issues for Trial filed on 31st August, 2012 and which was endorsed by both Steeles Lawyers for the plaintiff and Kuman Lawyers for the defendants, the following facts are agreed to;

i. the plaintiff is an adult female,

ii. the first defendant is a lawyer by profession and was at all material times, an employee of Kuman Lawyers, the named second defendant,

iii. Peter Kuman is the principal lawyer and proprietor of Messrs Kuman Lawyers, a private law firm carrying on business in Papua New Guinea,

iv. On 4th October, 2010, the first defendant Darryl Kamen, sent a letter to the plaintiff, which copies were also copied to the National Housing Corporation Limited to the attention of the Acting Managing Director Mr David Dambili; Secretary to the Department of Lands and Physical Planning Mr Pepi Kimas and Registrar of Titles of the Department of Lands and Physical Planning, Mr Benjamin Samson. The letter reads as follows;

4th October, 2010
Mrs Elizabeth Kimisopa
C/- PO Box 1176
GOROKA
Eastern Highlands Province

Dear Sir,

SECTION 33, LOT 10, GRANVILLE – (ELA MAKANA), LOWES ROAD, LATE SIR NOMBRI'S ESTATE

We refer to the above and confirm that we act for the wife and children of the late Sir Joseph Nombri.

We are instructed that on or about 16th July, 2008, you fraudulently obtained title to the above property.

We therefore request that you organize for the title to be transferred back to the wife and children of the deceased, whom we are instructed is your uncle, within the next 7 days, failing which we have instructions to institute legal proceedings against you.

Where legal proceedings are instituted you may also be ordered to pay costs. To avoid the usual embarrassment and inconvenience associated with legal proceedings we request that you organize for the title to be transferred to our clients. The payments you made can be reimbursed.

We further have instructions to refer you to the Police Fraud for possible charges to be laid against you for fraud, should you fail to settle the matter out of Court as requested.

Should there be any queries, contact Darryl Kamen of our office to discuss.
In the meantime, to preserve the status quo, we request that you do not deal with the property in any way, either to dealings or sell the property.
(signed)

Yours faithfully,
KUMAN LAWYERS

cc1:The Care –Taker Managing Director
 National Housing Corporation
 Koura Way, Tokarara BY HAND
 (PO Box 1550)
 BOROKO
Attention: Mr David Dambali 

cc2:The Secretary
 Department of Lands & Physical Planning
 Tower 2, Aopi Centre, 2nd Floor BY HAND
 WAIGANI
Attention: Mr Pepi Kimas

cc3:The Registrar of Titles
 Department of Lands & Physical Planning
 Tower 2, Aopi Centre, 2nd Floor BY HAND
 WAIGANI
Attention: Mr Benjamin Samson"

Issues

6.	The issues, are the following;

1. Whether the content of the letter is defamatory?

2. Whether the Defences pleaded in the defendant's Defence referred to above, are available to the Defendants?

Evidence

7.	The plaintiff relies on the following affidavits which were tendered into evidence and marked as exhibits; 

i. affidavit of Madeline Paulisbo sworn on 9th August, 2011 and filed on 11th August, 2011 marked exhibit 'A'.

ii. affidavit of Elizabeth Kimisopa sworn on 11th September, 2011 and filed on 11th September, 2011 marked exhibit 'B".

8.	The defendants rely on the following affidavits which were tendered into evidence and marked as exhibits;

i.	 Affidavit of Peter Kuman sworn on 15th August, 2011 and filed on 29th August, 2011, marked as exhibit '1',

ii.	 Affidavit of Roger Gileng Otto, sworn on 7th December, 2011 and filed on 8th December, 2011, marked as exhibit '2',

iii.	 Affidavit of Peter Kuman, sworn on 3rd October, 2012 and filed on 15th October, 2012, marked as exhibit '3',

iv.	 Affidavit of Lady Nikki Nombri, sworn on 15th October, 2012 and filed on 17th October, 2012, marked as exhibit '4'.

Analysis of Evidence and the Law

9.	The affidavits were tendered and marked as exhibits. Parties did not cross-examine on the contents of the affidavits.

Brief background

10.	For the defendants, it is not disputed that their client, one Lady Nicki Nombri, had given instructions to Kuman Lawyers in relation to property, the subject of these proceedings, described as Allotment 8, Section 33, (Ela Makana), Lawes Road, Port Moresby, (the 'Property').

11.	The plaintiff submits that the Property is one that was given to the late Sir Joseph Nombri, under what was then the State's executive housing scheme upon his return to Papua New Guinea from Japan after serving his term there as Ambassador.

12.	The plaintiff submits further that between 1991 to the time of his passing in January 2008, the late Sir Joseph Nombri followed up with the National Housing Corporation and the Lands Department for the issuance of Title to the Property to him but the National Housing Corporation did not take any steps to complete the sale to him.

13.	It is not disputed that the late Sir Joseph Nombri died in January 2008.

14.	The plaintiff submits that it was not until about 5 months later, on or about 6th June, 2008, that there was some action taken on the matter when the plaintiff offered to purchase the Property after sighting correspondence from the National Housing Corporation. 

15.	The plaintiff submits that the NHC approved the sale of the Property to her on 16th July, 2008 and that this was when Lady Nombri and her family found out about the sale/purchase and lodged a complaint with the National Housing Corporation. Notwithstanding that complaint, by its letter of 12th December, 2008, the National Housing Corporation proceeded with the sale to the plaintiff, by entering into the contract of sale with the plaintiff in February 2009. The conveyance commenced, then was later completed by transfer of title to the Property to the plaintiff.

16.	Aggrieved by this, Lady Nombri then briefed Kuman Lawyers to sue the plaintiff. The letter of demand, the subject of this defamation proceeding, demands that if title to the Property is not returned to Lady Nombri, then Lady Nombri would issue appropriate court proceedings, to have title in the plaintiff's name cancelled and that Lady Nombri be allowed to complete the purchase of the Property from the National Housing Corporation to her. The defendants submit that this was the reason why the letter was also copied to Mr David Dambali, the Acting Managing Director of the National Housing Corporation, Mr Pepi Kimas, the Secretary for the Department of Lands and Mr Samson Benjamin, the Registrar of Titles.

Plaintiff's claim in defamation

17.	The plaintiff alleges that the letter contains statements that are defamatory or damaging to her reputation as she is a well respected person in her community, being a leading business woman and a Christian leader. She submits that the allegations are unfounded, hurtful and have weighed heavily on her both emotionally and professionally.

18.	The plaintiff submits that because the letter was copied to high ranking people in the public service, and because she deals with some of these officials daily in both her business and other activities, that this has caused her much embarrassment.

19.	The plaintiff also submits how she was able to acquire the Property and how she was assisted, at that time by Madeline Paulisbo, then the National Housing Corporations Assistant General Manager Property Management. The plaintiff submits because the late Sir Joseph Nombri had failed to pay the balance purchase price of K65,128.00 and because this had been outstanding for more than 17 years, that she was successful in purchasing that Property in an "open market".

20.	Miss Paulisbo giving evidence for the plaintiff, deposes in her affidavit that she had served several notices upon the late Sir Joseph Nombri through his agents seeking that he pay the balance purchase price but did not receive any response. To this, the defendants submit that Miss Paulisbo does not provide any evidence of those several notices, the only evidence being a notice dated 6th May, 2008 and that when this notice was served, the late Sir Nombri was already deceased (in January 2008).

21.	The plaintiff submits that the contents of the letter demonstrated the following imputations, which are to be inferred from the statements made in that letter at paragraphs 8 (a) (b) (c). The plaintiff submits that the statements in the letter in their ordinary and natural meaning meant and were understood to mean;

i. that the plaintiff acted fraudulently in acquiring title over the Property;

ii. that the plaintiff committed a criminal offence when she fraudulently acquired the Property;

iii. The plaintiff does not have good title to the Property and is not the owner of the Property.

22.	The plaintiff pleads in the statement of claim that because Peter Kuman is Darryl Kamen's employer, that he is liable under the general common law doctrine of vicarious liability; that Darryl Kamen made those statements as an employee of Kuman Lawyers and in the course of his duties as an employed lawyer of Kuman Lawyers. (par. 9 of the statement of claim)

23.	The plaintiff pleads further that the most likely imputation that the Court may also infer, in addition to those pleaded in the statement of claim, are that;

i. The plaintiff had through dishonest or fraudulent means obtained title to the Property on 12th July, 2008;

ii. the plaintiff colluded with the NHC's officers to disenfranchise a member of her family.

24.	The plaintiff submits further that the words contained in the letter of 4th October, 2009 and the likely imputations inferred from a reasonable person's point of view, is defamatory in that its natural effect is that it injured the good reputation of the plaintiff and satisfies section 4 of the Defamation Act (the 'Act'). S. 4 of the Act reads;

" 4. PUBLICATION.

For the purposes of this Act, publication is–

(a) in the case of spoken words or audible sounds, the speaking of those words or making of those sounds in the presence and hearing of a person other than the person defamed; and

(b) in the case of signs, signals or gestures, the making of those signs, signals or gestures so as to be seen or felt by, or otherwise come to the knowledge of, a person other than the person defamed; and

(c) in the case of other defamatory matter–

(i) exhibiting it in public; or

(ii) causing it to be read or seen; or 

(iii) showing or delivering it; or

(iv) causing it to be shown or delivered,

with a view to its being read or seen by a person other than the person defamed".

25.	The plaintiff submits that just by the fact that the letter was copied to two other persons apart from the care taker Managing Director of the National Housing Corporation, that the author of the letter intended that those persons read the letter and these persons therefore constitute third persons which therefore then falls within the definition of publication as was held in Wyatt Gallagher Basset (PNG) Limited v. Benny Diau (2002) N2277.

26.	The plaintiff also refers to Miss Madeline Paulisbo's affidavit, exhibit 'A' for the plaintiff, who deposed that when reading the letter, the plaintiff and others would have formed the view that the defendant had by implication, stated in the letter that the plaintiff and employees of the NHC had conspired with each other to illegally sell the Property. The plaintiff submits that this is also publication of the letter to a third party.

27.	The plaintiff submits that in Pullman and Anor. v. Walter Hill & Co. Ltd [1891] QB 524, the Court explained the phrase "ordinary course of business" in their reasoning as follows;

"Here a communication was made by the defendant's Managing Director to type writer. Moreover, the letter was directed to the plaintiff's firm and opened by one of their clerks. The defendants placed the letter out of their control and took no means to prevent it being opened by the plaintiff's clerks. In my opinion, therefore, there was a publication of the letter, not only to the typewriter but also to the clerks of the plaintiff's firm."

28.	The plaintiff submits that as was held in Pullman & Anor v. Walter Hill Co. Ltd (supra), the definition of "ordinary course of business" means that defamatory statements would have to be published to a third party. They submit that the said letter, in the ordinary course of things, has come into the hands of a third party being;

a. the letter is sent/served on the respective officers of those persons copied in the letter;

b. it is the ordinary course of business as a government department that the letter was served on all respective officers of those persons copied;

c. that as the letter is typed written/word processed, that the letter was published to the secretary of the defendant's office when it was drafted/typed;

d. that the letter was signed by the second defendant and in the ordinary course of business where the principal lawyer supervised his junior colleagues. Further, that the letter was published to the second defendant by the first defendant as a third party in the ordinary course of business in a law firm.

WS 1000 of 2011

29.	The defendants submit that they filed separate proceedings WS 1000 of 2011 where Lady Nicki Nombri is suing the care taker Managing Director of the National Housing Corporation as first defendant, the National Housing Corporation as second defendant, Madeline Paulisbo as third defendant and the plaintiff as fourth defendant. In those proceedings, the plaintiff pleads breach of contract and fraud, having been perpetrated by the named defendants.

30.	In relation to the claim for breach of contract, the plaintiff pleads that although the late Sir Joseph Nombri was ready and willing to execute and finalize the contract of sale, that Madeline Paulisbo and the plaintiff, without notice, unilaterally rescinded the sale and proceeded to sell the Property to the plaintiff on or about 16th July, 2008. The statement of claim in those proceedings pleads that the Property was transferred to the plaintiff, (fourth defendant in those proceedings), on 10th June, 2009. 

31.	In relation to the allegations of fraud against the plaintiff, (fourth defendant in those proceedings), Lady Nombri pleads in the statement of claim that the then Managing Director of the National Housing Corporation and Madeline Paulisbo fraudulently transferred title to the Property to the fourth defendant, (plaintiff in this proceedings). The particulars of fraud pleaded are, amongst others;

i. from paragraph 10(1) to paragraph 10 (17), under the heading "Particulars of Fraud", Lady Nombri pleads the instances when her late husband attended upon the Department of Lands and the many negotiations he had with officers of that department, during the period 6th November, 1991 to or about 2002.

ii. from paragraph 11 to 15 of that statement of claim, Lady Nombri pleads particulars of the NHC's dealings with the plaintiff in this proceedings, (fourth defendant in those proceedings), and the fact that at no time was Lady Nombri and her children informed of the impending sale/purchase of the Property.

32.	In those proceedings, Lady Nombri claims declarations that the contract of sale entered into between Madeline Paulisbo and the plaintiff (fourth defendant in those proceedings) regarding the Property, is void and of no effect.

33.	Lady Nombri seeks further orders to set aside registration of the transfer of the Property from the National Housing Corporation to the plaintiff (fourth defendant in those proceedings).

34.	Additional and further orders that she seeks also are that title to the Property registered in the plaintiff's name (fourth defendant in those proceedings) is null and void and of no effect on the basis of fraud. She also seeks orders for specific performance that the National Housing Corporation sell the Property to Lady Nombri at an agreed price under the "Give Away Scheme" or "Government Sale of Scheme".

35.	She also seeks interim injunctions, restraining all the defendants, their servants and agents from transferring, dealing, charging and disposing of the Property. 

36.	Finally, she seeks general, special, exemplary damages, costs and other orders.

37.	In relation to the status of WS 1000 of 2011, Mr Boboro submits that the proceedings were dismissed and that an appeal has since been filed in the Supreme Court and is pending.

Analysis of submissions by all parties including Defendant's Defence

38.	Defamation is a tort at common law. The Defamation Act Chapter 293 codifies the common law principles of defamation. However, where the Act is silent on a matter, then one must look to the common law. (see PNG Aviation Services Pty Ltd & ors v. Michael Thomas Somare & Ors (1996) N1493; Wyatt Gallagher Bassett (PNG) Limited v. Benny Diau (2002) N2277).

39.	Generally, a publication is unlawful, unless it is protected, privileged or excused by law. In Wyatt Gallagher Bassett (PNG) Limited v. Benny Diau (supra), the trial Judge held:

"the law on defamation and the defamation Act prohibits a person in effect from unlawfully publishing a defamatory matter against a person. It follows therefore that a defamatory publication is unlawful unless the publication is protected, privileged or excused by law…" 

40.	In David Lambu v Paul Paken Torato (2008) SC 593, the Supreme Court said that the elements of a cause of action in defamation are;

- the defendant made a defamatory imputation of the plaintiff;

- the defendant published it,

- the publication was unlawful that it was not protected, justified or excused by law)

41.	Upon perusal of the defendant's lawyers' written submissions, I note that the defendants do not dispute that the letter was published, however submit that they are entitled to the exceptions provided under s. 5 of the Act which reads;

"5. PUBLICATION OF DEFAMATORY MATTER PRIMA FACIE UNLAWFUL.

It is unlawful to publish defamatory matter unless the publication is protected, justified or excused by law."

42.	The defendants' Defence pleads Sections 9, 10, 11 and 12 of the Act. I will discuss each one together with the evidence and make conclusions and findings also.

(i)	Defence of fair comment under Section 9 of the Act

43.	The defendants plead at par. 3 of their Defence, the following;

"3. The Defendants admit the allegations pleaded in paragraph 6 of the Statement of Claim and moreover say:

(a)	 the alleged letter was written based on instructions given to the first defendant at all material times.

(b)	 the first defendant wrote the letter based on his instructions at all material times believing such instructions to be valid.

(c)	 the comments attributed to in the alleged letter by the first defendant are fair comments and the defendants plead protection under s. 9 of the defamation act 1962 as the comments were fair based on instruction son hand at the material time.

(d)	 the comments attributed to the plaintiff in the alleged letter written by the first defendant are true and therefore the defendants pleads protection under s. 10 of the Defamation Act 1962."

44.	Paragraph (c) more particularly relates to the Defence of fair comment, as provided in Section 9 of the Act. S. 9 of the Act reads;

9. PROTECTION: FAIR COMMENT.

(1) For the purposes of this Act, it is lawful to publish a fair comment–

(a) respecting any of the matters with respect to which the publication of a fair report in good faith for the information of the public is declared to be lawful by Section 8; or

(b) respecting–

(i) the public conduct of a person who takes part in public affairs; or

(ii) the character of any such person, so far as his character appears in that conduct; or

(c) respecting–

(i) the conduct of a public officer or public servant in the discharge of his public functions; or

(ii) the character of any such person, so far as his character appears in that conduct; or

(d) respecting–

(i) the merits of a case, civil or criminal, that has been decided by a court; or 

(ii) the conduct of a person as a Judge, magistrate, party, witness, lawyer or officer of the court, in any such case; or

(iii) the character of any such person, so far as his character appears in that conduct; or

(e) respecting–

(i) a published book or other literary production; or

(ii) the character of the author, so far as his character appears by the book or production; or

(f) respecting–

(i) a composition or work of art or performance publicly exhibited; or

(ii) the character of the author or a performer or exhibitor, so far as his character appears from the matter exhibited; or

(g) respecting–

(i) any public entertainment or sports; or

(ii) the character of a person conducting or taking part in any public entertainment or sports, so far as his character appears from the matter or the manner of conducting the entertainment or sports; or

 (h) respecting a communication made to the public.

(2) Whether a comment is or is not fair within the meaning of this Act is a question of fact.

(3) If a comment is not fair, and is defamatory, the publication of it is unlawful."

45.	In relation to the Defence of Fair Comment, the Supreme Court in Cyril Mudalige v. Rabaul Shipping (2011) SC 1132 held that the Defence of Fair Comment must be considered on its own before a consideration of the Defence of truth. I will do likewise, in this case.

46.	The defendants submit that the contents of the letter of 4th October, 2010 is a fair comment based on instructions they received from their client at the material time.

47.	In saying that, the defendants submit that the letter was sent to the plaintiff and the NHC relying on instructions from their client and that the letter was not published falsely, maliciously or recklessly but rather it was published in good faith for the purpose of seeking a remedy or redress in Court on behalf of (or for) the defendant's client namely Lady Nicky Nombri. That the letter only relayed instructions from their client which was that at all material times, the Property was to have been transferred to their client's late husband Sir Joseph Nombri but was transferred to the plaintiff under very dubious and fraudulent circumstances, by the NHC.

48.	The defendants submit further that although the plaintiff claims to have alleged equitable interest in the Property by the fact that the plaintiff's relatives had been resident in the house on the Property for some years, that notwithstanding, the NHC failed to inform Lady Nombri of the purported sale. Additionally, the defendants submit that the plaintiff misled the NHC by her expressed instructions to the NHC that it need not contact lady Nombri as Lady Nombri was aware of the sale and had agreed for the sale to proceed.

49.	The defendants also submit that although the NHC's evidence and submissions are that the Property was sold at "open market", that the evidence before the Court is that this was not the case. That the evidence shows that the only customer bidding for the Property, was the plaintiff.

50.	To determine whether that is a fair comment, I refer to SMY Luluaki Ltd v. Paul Paraka Lawyers (2011) N4360 where the trial Judge said;

"to qualify as a fair comment, a statement must have some purported factual basis, which is true; the rationale being that if a reasonable, unprejudiced reader is given the opportunity to form his or her own judgment on whether the comment is justified, the force of the defamatory statement is neutralized." (see also Hunt v. Star Newspaper [1908] 2KB309 adopted and relied on in Rabaul Shipping Limited v. Cyral Mudalige (No.2) 2009 NC3783)."

51.	Section 9 (1) (a) of the Act provides that the publication must have been done in good faith and for the information of the public for it to then be lawful, by section 8.

52.	It states further at section 9 (2) that to determine whether a comment is or is not fair is a question of fact.

53.	Section 8 (3) of the Act reads;

" 8. PROTECTION: REPORTS OF MATTERS OF PUBLIC INTEREST.
...

(3) For the purposes of this Act, a publication is made in good faith for the information of the public if the person by whom it is made is not actuated in making it by ill-will to the person defamed or by any other improper motive, and if the manner of the publication is such as is ordinarily and fairly used in the publication of news."

54.	In Mr Kuman's affidavit, he deposes that the letter the subject of these proceedings was written in good faith, as instructed by his clients and based on available and ongoing instructions.

55.	The question to then ask is, was the publication actuated by ill-will or by any other improper motive? re s. 8 of the Act. Additionally, did the letter have some factual basis to it?

56.	The facts, which are undisputed is that the first defendant, then the second defendants' employed lawyer, had carriage of the matter. In his day to day conduct of the matter, he received instructions from Lady Nombri, which instructions were to the effect that the plaintiff had fraudulently acquired the Property, in collusion with Ms Paulisbo, the National Housing Corporation and the Lands Department. So of course, as Lady Nombri's lawyer and acting on Lady Nombri's instructions, on her behalf, he put the plaintiff and the National Housing Corporation on notice, that she would shortly be filing court proceedings against them for the return of the Property to her based on her claims that the Plaintiff had acquired the Property, through fraudulent means.

57.	Based on the evidence before me, the plaintiff's contact with Lady Nombri in relation to her purchase of the Property, occurred after she gave her a letter dated 23rd October, 2008. (see par. 29 of the plaintiff's exhibit B, affidavit sworn on 11th September, 2011 and filed on 13th September, 2011). At paragraph 29, 30 and 31 of that affidavit, the plaintiff further deposes that she sent a letter dated 4th November, 2008 to the National Housing Corporation, informing the NHC that it need not contact Lady Nombri because "…I had already had discussions with Lady Nombri and there was no need for another …" (par. 31 of Plaintiff's exhibit 'B').

58.	Did the plaintiff speak to Lady Nombri, as she claims? We do not know because the plaintiff has not brought that evidence. This evidence is crucial because it tells the Court that the plaintiff dealt with the National Housing Corporation after Lady Nombri and her had reached agreement. Unfortunately, as far as I can tell, this agreement does not exist because the plaintiff did not lead any evidence on that aspect. The plaintiff's lawyers could have summonsed Lady Nombri to give evidence on that but they choose not to. Which means that the claim by the plaintiff that there was an "understanding" between Lady Nombi and herself is false. Which means then, that Lady Nombri believed fraud had been perpetrated in the sale of the Property to the Plaintiff. And that was the basis of her instructions to her lawyers.

59.	So, as to whether there was any ill-will or improper motive actuated by malice, when Lady Nombri gave instructions to Kuman Lawyers, I find that not to be the case because Lady Nombri's affidavit, which is exhibit '4' for the defendants, deposes to the instructions she gave to the defendants, that it was based on her belief that fraud had been perpetrated in the sale of the Property to the plaintiff, by the NHC.

60.	As for the documents and correspondence purportedly exchanged between the NHC and the plaintiff in relation to the Property, which are attached to Ms Paulisbo's affidavit, exhibit 'B' for the defendant, there is no evidence from Lady Nombri that she was privy to these documents or was aware of their existence when she gave instructions to the defendants to act for her. The existence of these correspondence has not been proven because they were not shown or put to Lady Nombri for her to verify and confirm their existence.

61.	Finally, as to fair comment, I have, as is the requirement under section 9 (2) of the Act, after consideration of the facts, determined that the comment or publication is fair because it was not made falsely and maliciously knowing it to be false and knowing that this publication would harm the plaintiff's reputation. 

62.	And, it is also a fair comment, because this is a step a law firm, briefed with instructions of that nature, would take, to put the prospective defendants on notice of the allegations their client is making against the prospective defendants and that they would shortly file court proceedings.

63.	Because the letter and its contents are fair comments, they are protected under Sections 8 and 9 of the Act.

(ii)	Defence of Truth

64.	The Defence of truth under S. 10 of the Act is pleaded at paragraph 3 (d) of the defendants' Defence. Paragraph 3 (d) of the Defence reads;

"(d) the comments attributed to the plaintiff in the alleged letter written by the first defendant are true and therefore the defendants pleads Protection under section 10 of the Defamation Act 1962"

65.	Section 10 of the Act reads;

"10. PROTECTION: TRUTH.

For the purposes of this Act, it is lawful to publish defamatory matter if it is true, and if it is for the public benefit that the publication complained of should be made."

66.	The Defence of Truth has 2 elements. The Court in SMY Luluaki Ltd v. Paul Paraka Lawyers (2011) N4360, set out these 2 elements when it said;

"(i) Firstly, defamatory matters in the article must be true (note that it is for the defendant to prove that the defamatory matter is true in substance and effect, and it is irrelevant whether the defendant had a genuine belief in the truth of the matter) (Hansen v. Border Morning Mail Pty Ltd (1988) ATR 80, 188): and

(iii)	Secondly, it must be for the public benefit that the matter be published (note that question whether the public discussion of a subject is or is not for the public benefit is, by virtue of Section 13 (b) of the Defamation Act, a question of fact)".

67.	Again, the defendants rely very much on instructions from their client, basically that what is contained in the subject article is prompted by Lady Nombri's instructions.

68.	The Court must review the evidence to decide whether the contents of the subject letter are true. It means that the Plaintiff must have conducted her case in such a way that would demonstrate that the defendant's letter contained false and misleading information.

69.	Having said that, I note that the plaintiff did not cross-examine the two named defendants. Which means the Defendant's evidence and the contentions they make remain undisturbed. Nor did the plaintiff's lawyer cross-examine Lady Nombri on the contents of her affidavit, to put to her the correspondence attached to Ms Paulisbo's affidavit, exhibit 'A' for the plaintiff, to then have Lady Nombri ascertain firstly, the existence of these correspondence then later, their veracity. Because that was not done, it means that the plaintiff has not proven on the balance of probabilities, that the National Housing Corporation did send correspondence to Lady Nombri about the impending sale of the Property.

70.	It means then that because neither Lady Nombri nor the plaintiff were shown Ms Paulisbo's correspondence, that their existence remains in doubt. It also means that I can conclude that the plaintiff NHC did not alert Lady Nombri, at any time, about the impending sale of the Property. 

71.	And, it was for the public benefit that the defendants sent the letter to the plaintiff and more particularly the NHC, because the plaintiff must be informed of the allegations of fraud leveled at her by Lady Nombri, which as defendants' counsel submits, is one of the many instances of fraud alleged against the NHC and the Lands Department, by members of the public.

(iii) Defence of Qualified Privilege

72.	The defendants rely on and plead S. 11 of the Act, the provision on qualified privilege. It reads;

"11. Qualified protection: excuse

(1)	For the purposes of this Act, it is a lawful excuse for the publication of defamatory matter if the publication is made in good faith-

(a) by a person having lawful authority over another in the course of a censure passed by him on the conduct of the other person in matters to which the lawful authority relates; or

(b) for the purpose of seeking remedy or redress for some private or public wrong or grievance from a person who has, or whom the person making the publication believes on reasonable grounds to have, authority over the person defamed with respect to the subject-matter of the wrong or grievance; or

(c) for the protection of the interests of the person making the publication or of some other person, or for the public good; or

(d) in answer to an inquiry made of the person making the publication relating to a subject as to which the person by whom or on whose behalf the inquiry is made has, or is believed on reasonable grounds by the person making the publication to have, an interest in knowing the truth; or

(e) for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed on reasonable grounds by the person making the publication to have, such an interest in knowing the truth as to make his conduct in making the publication reasonable under the circumstances; or

(f) on the invitation or challenge, express or implied, of the person defamed; or

(g) in order to answer or refute some other defamatory matter published by the person defamed concerning the person making the publication or some other person; or

(h) in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair.

(2)	For the purpose of this section, a publication is made in good faith if-

(a) the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; and

(b) if the manner and extent of the publication do not exceed what is reasonably sufficient for the occasion; and

(c) if the person by whom it is made-

(i) is not actuated by ill-will to the person defamed, or by any other improper motive; and

(ii) does not believe the defamatory matter to be untrue."

73.	According to Lady Nombri's evidence and the defendants' submissions, that the letter was sent to protect her interest and based on instructions she gave to her lawyer.

74.	Lady Nombri was very concerned that a house which had been allocated to her family by the National Housing Corporation and which her husband had been following up on for many years, was allocated to another person without her knowledge. And to obtain the protection of S. 11 of the Act, the publication must been made in good faith and without malice. As I said in Cyril Mudalige v. Rabaul Shipping (2011) SC 1132 in relation to S. 11 of the Act;

"To obtain the protection of S. 11 of the Defamation Act, the publication must be made in good faith, without malice, acting honestly on reasonable ground believing that what is published is true and necessary for the purposed of this redress of a wrong to him or her for the public good or interest."

75.	I find it is for the plaintiff to prove on the balance of probabilities that there was malice in the manner in which the defendants conducted their business and the eventual sending of the letter, the subject of these proceedings. They have not done that.

76.	The plaintiff's lawyers' submissions, that as lawyers, the defendants should have exercised caution before sending off the letter, are far from the truth. Indeed the defendants filed Court proceedings alleging fraud by the plaintiff, after the subject letter was sent to the plaintiff. Those proceedings are now the subject of a Supreme Court Appeal. Since then, the plaintiff's lawyers continue to assert and emphasize that the plaintiff purchased the Property after it was available on the 'open market'. That fact has not been proven, on the balance of probabilities. 

77.	The plaintiff has also not proven on the balance of probabilities, that her reputation as a business woman, a well respected person and Christian has been tarnished by the subject letter. Additionally, the plaintiff claims that she suffered emotionally and professionally however these claims have not been proven on the balance of probabilities, by independent evidence. There was no evidence at all.

78.	It is also undisputed that the late Sir Joseph Nombri was initially allocated the Property and had unsuccessfully been following up the title until his untimely death when the plaintiff asserted or claimed ownership to it. And that is the subject of the alleged fraud, now the subject of the National Court proceeding.

iv. Defence of Good Faith

79.	S. 12 of the Act places the burden upon the plaintiff to prove absence of good faith as in this case. The plaintiff asserts that the defendants' actions were malicious and not done in good faith. S. 12 reads;

"12. Good faith

Where a question arises as to whether a publication of defamatory matter was or was not made in good faith, and it appears that the publication of defamatory matter was or was not made in good faith, and it appears that the publication was made in circumstances that would afford lawful excuse for the publication if it was made in good faith, the burden of proof of the absence of good faith, is on the party alleging the absence."

80.	No doubt, the plaintiff must prove absence of good faith. As I have stated throughout, there is no evidence from the plaintiff that when the defendants wrote and sent the subject letter, that it was not done in good faith, as opposed to a situation where there was malice in the defendants' actions. This was found to be the case in Wyatt Gallagher Basset (PNG) Limited v. Benny Diau (2002) N2277, where the Court found that the defendant had exhibited malice and ill-will toward the plaintiff when he published certain defamatory materials.

81.	And the same occurred in Arlene Pitil v. Rutis Clytus (2003) N2422 where the defendants did not provide any evidence to show that the defamatory statements were not made in good faith.

82.	In this case, the National Housing Corporation does not take issue with the subject letter. And that could be brought about for many reasons, one of which is that this is just one of the many cases where fraud is alleged to have been perpetrated by the National Housing Corporation.

83.	Another feature most prominent is that the subject letter was copied only to the National Housing Corporation and the Department of Lands. There is no evidence from the plaintiff that there was a very wide circulation which would then form some foundation of the plaintiff's allegations that her reputation was tarnished.

84.	In my view, because the plaintiff has not confirmed or proven lack of good faith and malicious intent and ill will by the defendants, that I find the defendants exhibited good faith when the letter was drafted and sent.

Effect upon the plaintiff

85.	The plaintiff claims and pleads in her Statement of Claim more particularly at par. 7 that the subject letter "…was published falsely and maliciously of facts and matters concerning the plaintiff which the Defendants know or ought to have known to be false or in respect of the contents of which the Defendants had reckless disregard to the truth and which the Defendant intended to be published to public authorities knowing it would do harm to the reputation of the plaintiff".

86.	Apart from the fact this is very broad and not particularized, it is clear, based on this paragraph alone, that the evidence I have just canvassed, show that;

1.	the plaintiff has not proven on the balance of probabilities that the letter was falsely and maliciously published;

2.	That the plaintiff has not proven on the balance of probabilities that the contents of the subject letter, as pleaded "the defendants knew or ought to have known" were false.

3.	That the plaintiff has not proven on the balance of probabilities that the defendant "had reckless disregard" for the truth.

4. That the plaintiff has not proven on the balance of probabilities, that the defendants knew the publication of the subject letter "would do harm" to the plaintiff's reputation.

87.	In fact, although the plaintiff's submissions are that the subject letter has far reaching effects in that being a member of the business community that her reputation has been tarnished, that the plaintiff has not produced any evidence to show this, a fact I emphasized earlier.

Imputations

88.	The imputations the plaintiff claims to have suffered have not been proven on the balance of probabilities. These are;

i. that the plaintiff acted fraudulently in acquiring title to the Property.

ii. That the plaintiff committed a criminal offence when she fraudulently acquired the property.

iii. that the plaintiff does not have good title to the property and is not the owner of the property.

iv. That the plaintiff acquired the property on 12th July, 2008 through dishonest and fraudulent means.

v. that the plaintiff colluded with the NHC's officers to disenfranchise a member of her family.

89.	Indeed, the plaintiff still has title to the Property and is enjoying the benefits of the Property.

90.	Finally, I have not been assisted by plaintiff's counsel with relevant authorities or legal principles to show that a letter written by lawyers in the course of their business can be deemed to be or are defamatory material.

91.	It means I only have the known decisions and principles referred to above. And it of course leaves me with the conclusion that lawyers are duty bound to convey their client's instructions, subject of course to the cloak of privilege.

Conclusion

92.	Based on the above reasons, this Court finds that the plaintiff, not having proven any of the allegations pleaded and made in the Statement of Claim, leaves this Court with one conclusion and that is that the allegations of defamation have not been made out and that the proceedings must be dismissed.

Formal Orders;

93.	These are the formal orders of the Court;

1. The plaintiff's claim is dismissed in its entirety;

2. The plaintiff will pay the defendant's costs of the proceedings, to be taxed if not agreed.

______________________________________________________________
Steeles Lawyers: Lawyers for the Plaintiff
Kuman Lawyers: Lawyers for First and Second Defendants