N5917

[PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 1925 of 2005

BETWEEN

PAUL WAGUN
Plaintiff

AND

ROBERT PALME
First Defendant

AND

PACIFIC STAR LIMITED trading as "THE NATIONAL"
Second Defendant

Waigani: Kandakasi, J.
2013: 21st October
2015: 06th March

DEFAMATION – Meaning of - Defence against publication of – Protection – Report of matters in the public interest – Fair comment Truth, fair comment and qualified protection of excuse – Publication in good faith in the public interest and for the public's benefit – Publishing fair meaning of a report on a matter of public interest – Need to plead and establish bad faith – Failure to – Effect of - Issue precluded from being raised – Publication required in the public interest for the public benefit – Any bad faith publication secondary to the need to publish in the public interest for the public's benefit – Defamation Act (Chp 293) ss8 (2)(b), (d) and (f), 8 (3), 9(1) (c), 10 and 11 (h).

LEGISLATION – Defamation Act (Chp 293) – Central to a claim in defamation – Not a complete code – Common law and equity supply any lacking in the Act – Defences under the Act.

PRACTICE & PROCEDURE – Claim in defamation – Defence pleading publication in good faith in public interest and for public's benefit - Plaintiff taking issue with it – Requirement to specifically plead lack of good faith with particulars – Failure to so plead – Effect of - Plaintiff precluded from raising the issue – National Court Rules, Order 8, rr, 83 – 88. 

Cases cited:

National Provident Fund Board of Trustees v. Jimmy Maladina & Ors (2003) N2486 
Tony David Raim v. Simon Korua (2010) SC1062
Cyril Mudalige v Rabaul Shipping Ltd (2011) SC1132
New Britain Oil Palm Ltd v. Vitus Sukuramu (2008) SC946
Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694
PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126
 Joshua Kalinoe v. Paul Paraka; Hon Biri Kimisopa v. Paul Paraka (2010) SC…; Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others (No 1) [1988-89] PNGLR 355
Melina Limited trading as CN Mercantile v. Fred Martens (2001) N2183
PNG Aviation Services Pty Ltd & Ors v. Michael Thomas Somare & Ors (1996) N1493
Wyatt Gallagher Bassett (PNG) Limited v. Benny Diau (2002) N2277
Moresby Claim Adjustment Partners Ltd v. Wyatt Gallagher Basset (PNG) Ltd (2003) SC713
Yakham & Pacific Star Ltd v. Merriam (No 2) (1999) SC617
Arlene Pitil v. Rutis Clytus & Island Recruitment Management Services Enterprises Limited (2003) N2422 
Rabaul Shipping Limited v Cyril Mudalige (No 2) (2009) N3783

Counsel:

R. Saulep, for the Plaintiff
B. Frizzlle, for the Defendant

6th March, 2015

1. KANDAKASI J: Paul Wagun the Plaintiff is claiming that a write up by Robert Palme (first defendant) in one of the daily newspapers in the country, namely "The National" which is owned by the Pacific Star Limited, the second defendant (together referred to as "the Newspaper") defamed him. He claims in particular that the publication was malicious and misleading. The publication reads in relevant parts:

"Wagun should go"
"Curator incompetent, says Auditor-General's Office; and
"The Auditor-General's Office (AOG) has urged the Justice Minister and Attorney-General to replace the Public Curator Paul Wagun with someone competent."

2. This was based on a report by the Auditor General of PNG, headed "Auditor General's Report on Special Audit Investigation of the Public Curator." Paragraph 1.3 of that report is relevant and it reads:

"It is essential that the Minister of Justice and Attorney General act immediately to appoint someone with the appropriate background and capability to take responsibility for the reform of the Public Curator's Office. This person should, ideally, have experience in the operation and management of similar public trustee organizations and be empowered to make the many and hard decisions required to move the Office of the Public Curator forward."

3. The Newspaper admits publishing the material based on the Auditor's Report but denies the publication was defamatory. It claims the publication was fair comment published in good faith in the public interest for the benefit of the public. Mr. Wagun failed to take any issue with the Newspaper's defence of good faith, which the Newspaper argues means its defence is uncontested and should form the basis for judgment in its favour.

4. From the foregoing, the issues for this Court to determine are:

(1)	Should there be judgment for the Newspaper on account of Mr. Wagun not taking any issue with the Newspaper's defence of publication in "good faith"?

(2)	Was the publication defamatory?

(3)	If the publication was defamatory, was the publication in good faith and fair and published in the public interest for the benefit of the public? 

Failure to plead against good faith

5. Order 8 rr. 83 - 88 of the National Court Rules (NCR) govern pleadings in defamation cases. The most relevant provision here is r. 87, which reads:

"87. Pleading and particulars; Want of good faith

Where a plaintiff intends to meet any defence by alleging that the publication of the matter complained of was not in good faith – 

(a) the plaintiff shall plead that allegation by way of reply; and

(b) the particulars required by Rule 29 in relation to the reply shall include particulars of the facts and matters from which the absence of good faith is to be inferred."

6. This rule is very clear. Where a defendant to a claim in defamation pleads "good faith" and the plaintiff takes issue with that, he or she is required to plead with particulars in his reply to the defendant's defence setting out the basis for taking that position. In this case, there is no contest that Mr. Wagun did not meet this requirement and hence the Newspaper argues for a finding in its favour. 

7. As I said in National Provident Fund Board of Trustees v. Jimmy Maladina & Ors (2003) N2486 with the subsequent approval of the Supreme Court in Tony David Raim v. Simon Korua (2010) SC1062 (per Gavara-Nanu, Davani and Makail JJ):

"…the object of pleadings is to enable the parties to fully disclose in fairness the basis of their claim or a defence with particulars to avoid delay, trials by ambush, evasion and or attrition. They also enable the opposing party to know precisely the claim he or she is to meet and if need be, enable an out of Court settlement or a payment into Court. At the same time, pleadings enable the Court to know exactly what are the issues between the parties and what it is required to hear and determine."

8. It is settled law in our jurisdiction that, unless a matter is pleaded, a party cannot adduce evidence and seek to succeed on a matter or issue not pleaded. Specifically in defamation cases, on the question of pleading malice or bad faith, the decision of the Supreme Court in Cyril Mudalige v Rabaul Shipping Ltd (2011) SC1132, is relevant. There, without pleading malice or bad faith as is required by r.87, Rabaul Shipping Ltd tried to raise the issue. The Court per Davani J with whom David J agreed said:

"However, I find that the respondents should not have relied on malice as their way of saying that publication was not in good faith because they did not plead malice in a Reply. Malice must be specifically pleaded."

9. The only time a party may be permitted to venture outside his or her pleadings is in cases where, the Court is so persuaded and is minded to grant leave for an issue not pleaded to be litigated and give all of the parties to the proceeding an equal opportunity to properly present their evidence and if need be, address the Court on the issue. This would be a rarity because once pleadings have closed and the matter is progressed to trial, the Courts will be slow to abort a trial and hence cause a delay in reaching finality in litigation promptly. This would be consistent with worldwide judicial view against the ready grant of adjournments except in cases in which a case is properly made out for an adjournment.

10. In the present case, Mr. Wagun did not seek leave of the Court to raise and effectively argue against the import of not raising in his pleadings the argument against the Newspaper's claim of good faith. He is therefore precluded from raising any argument and succeed against the Newspaper on its claim of good faith in its publication of the material against Mr. Wagun. This should result in judgment for the Newspaper and render any further and other consideration unnecessary. However, given the claim of good faith publication in the public interest, I consider it necessary to consider the claim of defamation and the other points raised in the Newspaper's defence which are the subject of the substantive issues under the two remaining issues to make the judgment complete and to ensure that justice is done on the substantive merits of the case rather than allowing for a technical victory which the Newspaper is entitled to.

Was there Defamation?

11. We start with the question of whether the publication was defamatory. The law on defamation has its origin and deep roots in the common law. The relevant principles at common law were adopted into our jurisdiction effectively by the Defamation Act (Chp.293) and Sch. 2.2 of the Constitution. But the Act is not a complete code covering everything there is about defamation. Hence, in appropriate cases, it would be necessary to return to the common law for help in so far as they may be relevant and applicable in PNG. What should thus be clear is that, the Defamation Act is central to determining any question of defamation or not in any given situation and any defence that might be raised. Hence, the provisions of the Act in so far as they are relevant must be considered.

12. Allowing myself to be guided by the parties' submissions, it is necessary to start with s.2 of the Act which defines defamation in these terms:

"2. DEFINITION OF DEFAMATORY A MATTER.

(1) An imputation concerning a person, or a member of his family, whether living or dead, by which–

(a) the reputation of that person is likely to be injured; or

(b) he is likely to be injured in his profession or trade; or

(c) other persons are likely to be induced to shun, avoid, ridicule or despise him,

is a defamatory imputation.

(2) An imputation may be expressed directly or by insinuation or irony.

(3) The question, whether any matter is or is not defamatory or is or is not capable of bearing a defamatory meaning, is a question of law." 

13. According to s. 3, such imputation can be achieved or caused by:

"A person who—

(a) by spoken words or audible sounds; or

(b) by words intended to be read by sight or touch; or

(c) by signs, signals, gestures or visible representations,

publishes a defamatory imputation concerning a person defames that person within the meaning of this Act." 

14. Section 5 in clear terms prohibits the publication of any defamatory matter "unless the publication is protected, justified or excused by the law." Unless the publication is protected, justified or excused, publication of defamatory material against another amounts to a criminal offence. Sections 6 to 17 then stipulate a number of protections, justifications or excuses for the publication of any defamatory material. Sections 6 and 7 provide for absolute protection of the publisher if the defamatory material is in so far as is relevant here:

(1)	the course of an inquiry made under a law or the authority of the Head of State, or the Parliament; or

(2)	an official report made on the result of an inquiry under item (3) by the person appointed to hold the inquiry.

15. Then s. 8 (2) provides for justification of any defamatory publication if the publication is in "good faith for the information of the public" in a number of settings or from the following sources in so far as they are relevant for the present case: 

"(b) a copy of, or an extract from or abstract of, a paper published by order of or under the authority of the Parliament; or

 …

(d) a fair report of the proceedings of an inquiry held under a law, or by or under the authority of the Head of State, … or an extract from or abstract of any such proceedings, or a copy of, or an extract from or abstract of, an official report made by the person by whom the inquiry was held; or

 …

(f) a fair report of the proceedings of a local authority, board or body of trustees or other persons, duly constituted under a law, or by or under the authority of the Head of State, acting on advice, for the discharge of public functions, so far as the matter published relates to matters of public concern."

16.	Subsection (3) further clarifies that, a publication is made in "good faith for the information of the public" "if the person by whom it is made is not actuated by ill-will toward the person the subject of the publication 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."

17.	Section 9 of the Act then sets out a number of circumstances in which a publication could amount to "fair comment". In so far as is relevant for the present case this includes:

(1)	any matter declared under s. 8 as a publication as fair report in good faith for the information of the public; or

(2)	the public conduct of persons who take part in public affairs or their character if their character appears in the conduct; or

(3)	the conduct of public officers or public servants in the discharge of their public functions or their character appears in the conduct; or

(4)	a communication made to the public.

18.	Section 10 provides in simple and clear terms for a complete excuse or defence if the published defamatory material is true and is published for the benefit of the public. The next section, s. 11 provides for a number of circumstances in which the qualified defence of excuse could come to the aid of a publisher of a defamatory material. Included in the list is any publication:

"(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."

19.	Subsection (2) of s. 11 repeats the definition of "good faith" but in the context of what is provided for in s. 11 in these terms: 

"For the purposes 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."

20.	 Section 12 further provides for "good faith". But this time expressly placing the burden of establishing an absence of "good faith" in the publication of a defamatory material to a person claiming lack of "good faith", usually that would be the plaintiff. This applies in cases where it appears that the publication was "made in circumstances that would afford lawful excuse for the publication if it was made in good faith". 

21.	 Bearing the above relevant provisions of the Defamation Act in mind, I turn to a consideration of the relevant facts in the case before me. This requires a particular consideration of the material published of and concerning Mr. Wagun. The relevant material published by the Newspaper in its paper reads:

"Wagun Should Go"
"Curator incompetent, says Auditor General's Office"

"The Auditor General's Office … has urged the Justice Minister and Attorney General to replace the Public Curator Paul Wagun with someone competent."

22.	Learned counsel for Mr. Wagun submits these words are defamatory within the meaning of s. 2 of the Defamation Act because:

(1)	Auditor's report did not name his client;

(2)	The Auditor's report chose to report broadly rather than specifically against Mr. Wagun to avoid injuring him in his reputation;

(3)	Naming Mr. Wagun immediately conveys the message to the public at large that him alone and not any other Public Curator in the past, was professionally incompetent;

(4)	A simple observation of the words alone impute incapacity or lacking professional capacity of the worst kind – incompetence caused an imputation against Mr. Wagun, his profession, career, trade and employment opportunities. 

23.	Of course, the Newspaper, as already noted, denies defaming Mr. Wagun by the words published of and concerning him. 
 
24.	There cannot be much argument that, anything published of and concerning another person, carelessly or recklessly or maliciously which gives or is capable of giving the reader, if written or the hearer, if spoken an adverse or negative image or impression of that person, that can and does amount to defamation. The only exception to this will be in cases where there is factual basis for the publication and are protected or excused by law. In this case, I have no hesitation in finding that the words published by the Newspaper were defamatory. Counsel for the Newspaper has not pressed hard for a finding to the contrary. Effectively therefore, the Newspaper appears to concede that, the words it published were defamatory. 

Defence of truth, fair comment and publication in good faith

25.	That is however, not the end of the matter. We are instead left to turn to the remaining question of, whether the publication was in good faith, truthful, fair comment and was published in the public interest or for the public's benefit. A finding of good faith will be possible, if there is a finding of the publication was truthful and fair comment for or in the public interest. Given that, this case concerns a newspaper, I accept that, the Newspaper had a duty to report both about the fact that the Auditor released or published a report and state simply in clear terms as much as it was possible of what the report was saying. That they could do either by quoting the exact wording of the report or in terms of its meaning and effect. The Supreme Court in Yakham & Pacific Star Ltd v Merriam (No 2) (1999) SC617 made it clear that: 

"It is the function of the press, both the private and State-owned press, in a democracy, to provide its readers with news of current events of public interest. Likewise the public has a right to have access to that information. And it is the duty of the press to ensure as far as possible, that its reports on matters of public interest are reasonably accurate, fair, and objective. …

Our system of government is a constitutional democracy. Freedom of the press to communicate information of public interest to the public for the advancement of the general public welfare is fundamental to the development and sustenance of a free and thriving constitutional democracy. For this reason, Section 46 of the Constitution guarantees everyone the right to freedom of expression and publication."

26.	This does not however mean that the press or any person should publish material of and concerning another person or entity irresponsibly. Instead, as I noted initially in Wyatt Gallagher Bassett (PNG) Limited v. Benny Diau and Moresby Claims Adjustment Partners Ltd (supra) and later in Arlene Pitil v. Rutis Clytus & Island Recruitment Management Services Enterprises Limited (2003) N2422, anyone publishing any defamatory material against another must ensure that their publications are factually correct. Not only that, they need to be satisfied that a need for their publication under any of the permitted circumstances under the Defamation Act as outline earlier as arisen. Additionally, they also need to ensure that that they are not actuated by ill will or malice toward the person the subject of the publication or in other words in bad faith. I remind myself of what I said in the first of these two cases which I later endorsed and applied in the Pitil case as was done by his Honour, Makail J., in Rabaul Shipping Limited v Cyril Mudalige (No 2) (2009) N3783:
 
"Section 11 of the Defamation Act provides the circumstances in which a person may be excused from publishing defamatory material of another. These principles, as already noted, have been extracted from a large number of cases including some of the cases the parties have referred me to, such as Pullman and Another v. Walter Hill & Co., Limited (supra), and Adam v. Ward [1916-17] ALL E.R. Rep. 159. But underlying all of these is the requirement that the publication must be made in good faith. This means acting "honestly and on reasonable grounds" believing that what is published is true and necessary for the purposes of his redress of a wrong to him or her or for the public interest or good…."

27.	There is no contest between the parties that, the Auditor General of PNG published a report critical of persons who have occupied the office of the Public Curator up to the date of his investigation and report. As already noted, the most relevant part of that report was paragraph 1.3. In the following, I set out what was in the Auditor's Report in the left box and what the Newspaper published in the right box. 

Paragraph 1.3 Audit Report 	
Newspapers Publication	
"It is essential that the Minister for Justice and Attorney General act immediately to appoint someone with the appropriate background and capability to take responsibility for the reform of the Public Curator's Office. This person should, ideally, have experience in the operation and management of similar public trustee organizations and be empowered to make the many and hard decisions required to move the Office of the Public Curator Forward."
	"Wagun should go"

"Curator incompetent, says Auditor General's Office"

"The Auditor General's Office (AGO) has urged the Justice Minister and Attorney General to replace the Public Curator Paul Wagun with someone competent."	

28. The context in which these publications were made will give proper meaning and understanding and what can be correctly made out of them. So I turn to that now. There is no contest between the parties that, the Auditor General carried out an investigation into the operations of the Public Curators Office. There is also no contest that, based on that investigation, the Auditor General published a report critical of the how those then occupying the office of the Public Curator discharged their powers and functions as well as their duties and responsibilities. The report than amongst others, recommended what appeared at paragraph 1.3 of the Report as reproduced above. The Report had gone to Parliament and in particular the Parliamentary Public Accounts Committee. Further there is also no serious contest that, both at the time of his investigations and the publication of the Auditor's Report, Mr. Wagun was the Public Curator. 
 
29.	I accept Mr. Wagun's submissions through his learned counsel that the Auditors Report was wide enough to cover all of the persons who occupied the Office of the Public Curator. Since, Mr. Wagun was the Public Curator during the period of the Auditor's investigations and its report; he was covered and included in the Report and its recommendations. If he was an exception to what the Report was critical of and that he had the necessary credentials, experience and more so the competence and a person of integrity to deliver on the powers and functions of the Public Curator's Office, I have no doubt in my mind that the Report could have made that clear. The fact of the matter however is that, the Report made no such exception. If the Report was wrong as against Mr. Wagun, it was in Mr. Wagun's interest to have that corrected before the Report could be made public or soon thereafter by taking the appropriate steps. Mr. Wagun adduced no evidence of having done that. It therefore remains a fact that, the Auditors Report has been accepted as accurate or correct by all concerned or affected or had an interest in the Report, in absence of any evidence seriously challenging the accuracy of the Report. 

30.	I therefore find that, whilst there was no expressed language identifying Mr. Wagun in paragraph 1.3 of the Auditor's Report, the timing of the investigation and the release of the Report makes it easy to identify Mr. Wagun, then occupying the position of Public Curator as one being implicated and adversely affected by the Report. The wording in paragraph 1.3 was also capable of conveying the meaning or understanding or impression that the Public Curators, which included Mr. Wagun, were not appropriately qualified, experienced, competent and trustworthy enough to occupy the position. Hence, the position and or Office of the Public Curator needed a person, other those who have occupied the position up to time of the Report and one who has the necessary qualification, experience, competence and integrity, to properly carry out the powers and functions and duties and responsibilities of the Public Curator to restore confidence and integrity in the office. 

31.	The Newspaper's publication was nothing more than what I have stated. I find that a simple and reasonable reader of the Report and recommendation in paragraph 1.3 would have easily come to the same conclusion. Having become aware of the Report, the Newspaper had the duty and responsibility to bring that massage or information to the public. The public has a vested interest in requiring and wanting public servants and more so important offices like that of the Public Curator to operate efficiently and effectively but more so in a way that is transparent, accountable and above all with much integrity and respect in order to enjoy the confidence and trust of the people or public. The seriousness of what the Auditor found and the recommendations he made had to be communicated to the public as well as the decision makers in a way that was clear and forceful and capable of attracting immediate and appropriate action by the decision makers and institutions like the Ombudsman Commission and the Police Force. The Newspapers publication did just that. I further find that the publication was:

(1)	a fair comment which concerned the conduct of a public officer within the meaning of s. 9 (1) (c) of the Defamation Act; 

(2)	 truthful within the meaning of s. 10 of the Act;

(3)	in the interest of the public within the meaning of s. 8 (2) (b), (d) and (f) on a subject of public interest that required some attention and discussion and if I may add action within the meaning of s. 11 (h) of the Act; and

(4)	in good faith as provided for under s. 8(3) and elsewhere in the Act;

32.	As noted, Mr. Wagun through his learned counsel however argues that, the Newspaper published the material in bad faith because, its reporter, Mr. Robert Palme had a grudge against him over a prior employment issue. His submission on this point is these terms:

"From paragraphs 8-27 of Plaintiff's Affidavit (Plaintiff Exhibit "A"), the Plaintiff describes in some detail his relationship with the First Defendant. The Plaintiff goes on to allege that their relationship soured, when they discussed possible engagement of the First Defendant in a Public Relations capacity. In spite of several calls made by the Plaintiff to the First Defendant, these plans fell through because the required funding which Mr. Wagun was relying upon never eventuated. The First Defendant felt badly let down by the Plaintiff because at the time, he badly needed a job. The Plaintiff alleges that this provided the motivation for the First Defendant to write an article which he, the Reporter, knew would injure the Plaintiff in some way." 

33.	There are three serious problems with this argument. First, as already noted, Mr. Wagun was required to but he failed to raise this issue in his defence, in accordance with the requirements of O.8 r.87 of the NCR. He is thus, precluded from raising it. 

34.	Secondly, even if the issue was properly raised by Mr. Wagun, the subject matter of the Auditor General's investigation and report with its recommendation were serious and they needed to be drawn to the public's attention as fairly and as accurately as was possible in a way that would attract immediate attention and action from those required to act for the good of the Office of the Public Curator in the interest and for the benefit of the public. Unless there was immediate remedial action, the problems highlighted in the Auditor's Report could continue to remain and become chronic to the point of the people in PNG and others who would look up to that office would lose confidence in that office which has the potential of contributing to a lack of confidence in the overall system of government and hence confidence in our country. As far as I can see from the evidence placed before me, the Newspapers' publication did nothing more than, what was required of it as one having the duty and responsibility to draw matters of public importance and concern to the public's attention through appropriate coverage in its paper. As already noted by the Courts in our jurisdiction, the media as an important role to play in society and more so in our struggle to build and have a country that runs efficiently and effectively, through impartial competent, timely and appropriate applications of skills and knowledge by those in public offices from the heads of institutions to departmental heads through to cleaners or tea boys at the lowest end. It is the duty of the media to expose and highlight any mismanagement and corruption in all its shapes and forms so that those who have the responsibility like the Police Force and the Ombudsman Commission and decision makers such as the National Executive Council at the highest, can take the appropriate actions for the betterment of our country and hence our people. 

35.	 In this case, there is nothing to indicate that the publication was actuated merely by malice or ill will toward Mr. Wagun by the reporter and indeed the Newspaper. The news about the Auditor's investigation and his report was bound to come out given the public interest in it unless there was in place a restraining order or media ban. So it does not really matter who published it. I contrast this case with the way in which Benny Diau and his company published of the Wyatt Gallagher Bassett (PNG) Limited or as did Rutis Clytus & Island Recruitment Management Services Enterprises Limited against Pitil in those two cases. The publishers of the defamatory material there had no factual foundation or basis for their respective publications. They were both motivated by an obvious economic or commercial interest to publish what they respectively published, which made a finding of bad faith obvious and easier.

36.	Thirdly, the Newspaper was not able to call the reporter Mr. Palme, the First Defendant as he has since left his employment. If indeed there was a problem between Mr. Wagun and Mr. Palme which was nothing more of a friend trying to help another friend in need but for matters beyond their control, I cannot see how that alone caused Mr. Palme to publish adversely of Mr. Wagun. Even then, any such grudge or ill will cannot change the fact that the material published of and concerning Mr. Wagun was truthful, fair and needed to be published in that way in the interest and for the benefit of the public. I do not accept that malice or ill will has the power to undermine and override any truth and factual matter. Instead, I know and accept that a fact or a truth will always remain. Only coatings or colourings or clothing around them will fade, wear and tear away. Often times, an ill will or a malicious thought or intent attempts to change, twist, concoct, coat or otherwise undermine a truth or a fact. That is when a case of malice is established. In the present case, I am having difficulty trying find any changing, twisting, concocting, coating or otherwise any undermining or misrepresentation of what was in the Auditors Report, which to date remains unchallenged by Mr. Wagun.

37.	Ultimately, I find that Mr. Wagun has failed to establish his claim in defamation against the Newspaper. Accordingly, I order a dismissal of his claim and that he pays the Defendants' costs, which cost be taxed if not agreed within 14 days from today. 

________________________________________________________________
Saulep Lawyers: Lawyers for the Plaintiff.
Warner Shand Lawyers: Lawyers for Defendants.