PacLII Home | Databases | WorldLII | Search | Feedback

National Court of Papua New Guinea
You are here:  PacLII >> Databases >> National Court of Papua New Guinea >> 2018 >> [2018] PGNC 7

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

Soi v Korimbao [2018] PGNC 7; N7081 (5 February 2018)

N7081


[PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]


WS. NO. 607 of 2008


BETWEEN
SAREA SOI
Plaintiff


AND

DANIEL KORIMBAO-CHIEF EDITOR

NATIONAL NEWSPAPER

First Defendant


AND

JAQLENE KAPIGENO –CHIEF OF STAFF NATIONAL NEWSPAPER

Second Defendant


AND

ANDY NG-GENERAL MANAGER PACIFIC STAR LIMITED

Third Defendant


AND

PACFIC STAR LIMITED PUBLISHER OF NATIONAL NEWSPAPER

Fourth Defendant


Waigani: Kandakasi, J.

2016: 20th April

2018: 05th February


DEFAMATION – Meaning of - Defence against publication of – Protection – Report of matters in the public interest – Fair comment and truth, fair comment and qualified protection – 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).


DEFAMTION – Publication of defamatory material against an organisation – No cause of action accruing to an individual member – Against public policy and public interest for individuals to sue – Need for free discussions of matters of public interest must not be inhibited – Also it is most difficult to identify and conclude such a publication applies to an individual - Exceptions – Only if an individual can clearly show by appropriate evidence that the publication target and concerned only him and not the group he may be permitted.


DEFAMATION - Publication against commission of inquiry - Appointed by the people through the government – Funded by public funds - Purpose, duties and responsibilities – Subject matter to be investigated into - Public function –All officers or persons working with a commission of inquiry are discharging a public function - Public has an interest in knowing how a commission of inquiry is carrying out its duties and responsibilities – Newspaper publications of and concerning Commissions of Inquiry in the interest of the public - Publication not singling out and specifically target the plaintiff - No cause of action.


EVIDENCE – Rule in Brown v. Dunn (1879) R (HL) – Failure to observe and put own case to opponents witnesses – Claims made in submission not put to the opponents’ witnesses rejected.


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 the public interest and for public’s benefit - Plaintiff taking issue claiming lack of truth and publication actuated by malice – Plaintiff’s pleading must identify with appropriate particulars the malice or ill-will or harm, difficulty or injury intended against him or her - Pleadings must also plead with particulars the basis for inferring the sole or predominate motive or intend to cause the identified harm, difficulty or injury as well as the basis for alleging the publication was not for the purpose pleaded in a defendant’s defence – A plaintiff claim lack of truth must in his pleadings identify what the truth was, how the truth was misrepresented or not properly reflected in the publication, how the truth could have been ascertained or how it could reasonably be inferred and how there was no truth in the publication – In case of malice the pleadings must plead the essential elements of malice – Failure to so plead – Effect of - Plaintiff precluded from raising the issue, call evidence and succeed – National Court Rules, Order 8, rr, 83 – 88.


WORDS & PHRASES – “Secretariat” - Usually means an administrative unit or department of an organisation that is responsible for the maintaining of records, and other secretarial duties.


Cases Cited:

Papua New Guinea Cases


Paul Wagun v. Robert Palme and Pacific Star Limited Trading as “The National” (2015) N5917

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

Francis Chibelle v. Jack Mafu (2015) N5942

National Provident Fund Board of Trustees v. Jimmy Maladina & Ors (2003) N2486

Tony David Raim v. Simon Korua (2010) SC1062

MVIT v. John Etape [1994] PNGLR 596

Cyril Mudalige v. Rabaul Shipping Ltd (2011) SC1132

Joshua Kalinoe & Ors v. Paul Paraka & Ors; Hon Bire Kimisopa & Ors v Paul Paraka & Ors (2014) SC1366

PNG Deep Sea Fishing Ltd v. Critten (2010) SC1126

PNG Aviation Services v. Somare [1997] PNGLR 515

Demba Kalo v Cornnie Akaya and Sam Inguba, Commissioner of Police and The Independent State of Papua New Guinea (2007) N3203


Overseas Cases


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

Adam v. Ward [1916-17] ALL E.R. Rep. 159

Knupffer v. London Express Newspaper [1944] A.C. 166.

Philliponi v. Leithead (1958) 76 W.N.(NSW) 150

Pilato v. Metropolitan Water Sewerage and Drainange Board (1959) 76 W.N. (NSW) 364, at 365

Gordon v. ABC (1973)22FLR 181

Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147


Other Sources & Material:


A. Mullis & R. Parkers, Gatley on Libel and Slander, 12th Edition (2013), Thomas Reuters (Professional) UK Limited, at 274, para 7.9.


Counsel:


N. Kubak, for the Plaintiff

I. Molly and W. Frizzell, for the Defendants


05th February, 2018


1. KANDAKASI J: The plaintiff Mr. Sarea Soi, who is a senior lawyer by profession is claiming damages inclusive of exemplary damages for defamation with interest and costs. This arises out of six publications in The National Newspaper (the Newspaper) between 17th December 2007 and 25th February 2008, which included two cartoons. There is no denial of the publications but the arguments are around the meaning, effect and purpose of the publications.


Issues for Determination


2. Hence, the issues for this Court to consider and determine are the following:


(1) Are the articles and cartoons (pictorial messages) variously published by the Defendants in the Newspaper:

(a) Defamatory; and

(b) of the Plaintiff?


(2) If the first question is answered with a “yes’, are the publications, excused or justified by virtue of the protections accorded by ss. 8, 9 and 11 of the Defamation Act?


(3) Subject to a determination of the first two questions, what are the Plaintiff’s damages and how are they to be calculated?


Relevant Facts


3. Most of the facts are not in any serious dispute. The Plaintiff, is a lawyer who commenced private legal practice in 1993. On 10th November 2006, he was appointed as senior lawyer to a Commission of Inquiry into the Department of Finance (COI). Almost two months later on 12th January 2007, he was appointed counsel assisting the COI. Later, on 7th December 2007, his appointment as counsel assisting the COI was revoked and was replaced by Mr. Stephen Kassman (as he then was). Early in the New Year, on 16th January 2008, Mr Kassman’s appointment was revoked, and Mr. Soi was reappointed. That was however, short lived. On 28th February 2008, his appointment was yet again revoked and replaced by Mr Kassman.


4. A number of other persons were engaged or seconded to work at the COI. The total number of persons working for or with the COI was between 20 and 30 people. That included Mr. Soi and the Commissioner.


5. At all material times, the First and Second Defendants were employed by the Fourth Defendant (Pacific Star). They were respectively journalists holding the positions of editor in chief and chief of staff of the Newspaper published by the Pacific Star. The Third Defendant was employed by the Pacific Star as its general manager.


6. The Newspaper published the six articles, the subject of this proceeding. The first was on Monday 17th December 2007, with the heading “Inquiry Team sacked” at the front page and the second page stating amongst others, Mr. Soi and his team had been sacked and replaced by a new team “[d]ue to public outcry questioning the integrity of the inquiry” and the new appointment “would no doubt bring back the credibility of the inquiry.” The second was on Thursday 31st January 2008 with the heading: “Probe Shame” with a subheading “Disgraceful conduct uncovered in probe into Finance Inquiry” in the front page and continuing in the second page of the Newspaper. The third and fourth publications were cartoons. The first of these was a cartoon published on Monday 8th February 2008, appearing at page 15 of the Newspaper depicting a man with both of his hands stretched out with flies around and on his hands, walking away and being watched by a National Executive Council (NEC) member and a man from the Performance Monitoring Unit (PMU) of the Department of Prime Minister (PM) and NEC with the NEC representative saying “he’s too arrogant, he should be sacked” and the PMU staff saying “he’s hands are dirty and smelly too”. The second was a carton published in the Newspaper on 25th February 2008, appearing at page 20, depicting a man from COI walking away with a bag of money and a PNG Trade Union Congress (TUC) representative saying to another person from TUC that the COI is “overpaid”. The fifth publication was on Friday 22nd February 2008 by way of an editorial appearing at page 22 of the Newspaper with the heading: “Who wants to be a millionaire?” The final publication was on Monday 25th February 2008 in the front page and most of page 2 of the Newspaper with the heading “Finance probe to resume”.


7. In his statement of claim and his submissions, Mr. Soi claims each of these publications were baseless, they tarnished his reputation and they therefore, form the basis for his claim in defamation. Accordingly, he argues for a finding of liability against the Defendants and damages assessed against them up to a maximum of K1, 162,600.00.


The Relevant Law


8. As I observed in a number of cases already with the latest being my judgment in the matter of Paul Wagun v. Robert Palme and Pacific Star Limited Trading as “The National”[1], the law on defamation has its origin and deep roots in the common law. Through the Defamation Act (Chp.293) and Sch. 2.2 of the Constitution, we adopted the relevant principles. However, the Act is not a complete code covering everything there is about defamation. This means it would be necessary to return to the common law where there is a lack of any local case authority for guidance and to assist in appropriate cases.[2] No doubt, the Defamation Act is central to determining any question of defamation in any given situation and any defence that might be raised.


9. A good starting point is s.2 of the Act which defines defamation in terms of an “imputation concerning a person, or a member of his family, whether living or dead ... by which the reputation of that person is likely to be injured in his profession or trade ... or other persons are likely to shun, avoid, ridicule or despise him.” Then according to s. 3, a defamatory “imputation can be achieved or caused by spoken words or audible sounds ... or by words intended to be read by sight or touch, signs, signals, gestures or visible representations.” Section 5 then prohibits the publication of any defamatory matter “unless the publication is protected, justified or excused by the law.” The same provision makes it an offence for anyone to publish any defamatory material, unless the publication is protected, justified or excused.


10. The next lot of provisions from ss. 6 to 17 then provided for a number of protections, justifications or excuses for the publication of any defamatory material. In particular, ss. 6 and 7 provide for absolute protections if a publication of a defamatory material is in the course of an inquiry made under a law or the authority of the Head of State, or the Parliament; or in an official report made on the result of an inquiry by the person appointed to hold the inquiry. Section 8 (2) provides for justification for any defamatory publication if the publication is in “good faith for the information of the public” in a number of settings.


11. Subsection (3) 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.” Then in so far as is relevant for the present case, s.9 of the Act sets out a number of circumstances in which a publication could amount to “fair comment”. This includes:


(1) any matter declared under s. 8 as a 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.


12. Section 10 then 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.”


13. 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.”


14. Finally, s.12 further provides for “good faith”. This time however, it expressly places the burden of establishing an absence of “good faith” in the publication of a defamatory material to a person claiming lack of “good faith”. In my view, this would no doubt be a plaintiff claiming damages for defamation. 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”.


15. As I noted in Wyatt Gallagher Bassett (PNG) Limited v Benny Diau,[3] the principles enshrined in the Defamation Act came from a large number of common law cases such as Pullman and Another v. Walter Hill & Co., Limited[4] and Adam v. Ward.[5] I then noted that “underlying all of these is the requirement that the publication must be made in good faith”. What this means is that, a person who publishes a defamatory material must do so “‘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”. I noted further that:


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


16. From this brief discussion of the law on defamation, it should be apparent that in order for a plaintiff suing for damages for defamation to succeed, he or she must establish certain essential elements. These are namely that, the words or material complained of were:


(a) published to a third party by the defendant;

(b) of and concerned the plaintiff;


(c) false;


(d) likely to injure the plaintiff’s reputation, profession or trade and other persons are likely to shun, avoid, ridicule or despise the plaintiff;


(e) actuated by bad faith or ill will toward the plaintiff; and


(f) without any excuse or justification.


The Present Case


17. In the present case, there is no dispute that the material complained of where published to third parties by the Defendants. The rest of the elements are in dispute. Hence, the first two main issues before the Court. The first issue covers elements (b) to (d) while the second issue covers the remaining elements. We will deal with these issues in that order.


Are the publications defamatory and of Mr. Soi?


18. Counsel for Mr. Soi argues that each of the publications were highly defamatory and were of and concerned his client. In so arguing, counsel points out that, the publications were based on a report by a Mr. Gerald Dogimap (the Dogimap Report) of the PMU of the PM’s Department, which was riddled with half-truths, falsehood and not balanced in that the person standing to be affected was not interviewed. He goes on to argue that, the report contains imputations that the previous COI members, which included Mr. Soi, had been involved in outright, illegal, unlawful, immoral, corrupt, and unprofessional practices which destroyed the integrity of the COI and by reason of which, the whole inquiry should be disbanded. Further, learned counsel for Mr. Soi submits that, the Newspaper merely adopted the Dogimap Report and made the publications without checking and verifying the truth of the report’s content. It is further submitted that the Newspaper’s failure was to facilitate its wish to persistently push an agenda to discredit Mr. Soi and the other staff of the COI and have the COI disbanded.


19. On the other hand, the Defendants submit that the publications do not do any of the things Mr. Soi claims. Instead, they argue that, the claims in the submissions for Mr. Soi are exaggerations and unreasonable inferences drawn from the publications. In so arguing, the Defendants point out that, five out of the total six publications do not name or suggest at the slightest Mr. Soi personally but a group or organisation, namely the COI, which does not give him any valid cause of action in defamation. In the alternative, the Defendants argue that, if despite their submissions, the publications are defamatory of Mr. Soi, then they published them in good faith in the public interest and are therefore protected, privileged or otherwise excused by law as provided for under the Defamation Act.


20. These competing arguments necessarily dictate a close and careful consideration of each of the publications, consider if they are defamatory of Mr. Soi and if so, consider if they are protected or privileged or otherwise excused by law. Before going into that exercise, I remind myself that, the test is what meaning the words published and complained of could convey to a hypothetical reasonable person which is more an objective and not a restricted subjective test.[6] Applying this test, it does not matter what the person the subject of a publication or the publisher thinks or says but what a hypothetical reasonable objective person would think or would say of and about the publication.


21. I also remind myself that, if any defamatory material is published against a group or class of persons, it does not give rise to a cause of action to an individual member of the group, unless the person the subject of the publication can clearly show that the publication targeted and concerned only him. The leading case at common law is the decision of the House of Lords in Knupffer v. London Express Newspaper.[7] There, a war-time newspaper article accused a Russian group of being instruments of Hitler. The group numbered 24 members in England and about 2,000 in the world. The plaintiff was the head of the British branch. Although the plaintiff’s witnesses said their minds went to the plaintiff when they read the article, the House of Lords held that as a matter of law the words were incapable of referring to the plaintiff as an individual. This comes from the difficulty of identifying and concluding that the publication concerned only of and concerned a particular member of the group or class. It also comes from a public interest view point. Finding for defamation of a particular individual who is part of a group covered in a publication would inhibit the need for free discussion of matters of public concern or interest.[8]


22. Bearing the above discussions of the law in mind, I now turn to a consideration of the question of whether each of the publications are defamatory of and concerning Mr. Soi first. I will then turn to a consideration of the Defendants’ defence to each of the publications jointly since the Defendants’ defence to all of the publications is the same, namely claiming protection of excuse and justification under ss.8 to 11 of the Defamation Act for all of the publications.


First Publication – 17th December 2007


23. The first publication I consider is the first of the 6 publications, which was the news article published on 17th December 2007. A close examination and consideration of this publication clearly does or does not do a few things. Firstly, it announces a sacking of the COI team. Secondly, it announces that those sacked included Mr. Soi. Thirdly, the publication does not state the reasons why the COI were sacked. Fourthly, though the publication mentions Mr. Soi by name, it does not suggest anything adverse to him or single him out from the rest of the members of the COI apart from its Chairman. Fifthly, the publication is based on a media release from the Department of the PM and the NEC, part of which are being quoted. Sixthly, in the absence of any evidence to the contrary, it is clear that the purpose of the publication is to inform the public of the sacking of the COI except only for its Commissioner and being replaced by a new one. Finally, I note that the publication was directed at a group or an organisation, namely the COI by reason of which no cause of action personal to Mr. Soi accrues.


24. Learned counsel for Mr. Soi’s written submissions does not present any argument against this publication. Given that, I cannot see what the argument is for Mr. Soi and how this publication is defamatory of Mr. Soi. Consequently, there is no argument for Mr. Soi as to why and how the Court could ignore the matters highlighted in the preceding paragraph. If however, Mr. Soi wishes this Court to draw the kind of adverse inferences he generally wishes this Court to infer, there is no submission to that effect and in any case, is not supported by what was in fact published in the first article. Further, if despite the particular wording in the publication and its natural fair and ordinary meaning, there were persons who took adverse meanings, Mr. Soi was required to call independent witnesses to testify to that effect. The witnesses that were called for Mr. Soi apart from himself were a former client of his, a Mr. Dickson Popo, Tessie Soi his wife and Lawrence Kalinoe, the current Secretary for the Department of Justice and Attorney General, who has been a friend of his. By no means are these independent witnesses. Even if they were, they have each failed to specifically comment on the effect of this publication and how it is defamatory of Mr. Soi in terms of amongst others of what they thought of him after reading the publications.


Second Publication – 31st January 2018


25. The second publication is the news article published on 31st January 2008 with the heading “Probe Shame”. It is argued for Mr. Soi that, in this publication the Defendants asserted as opposed to alleging that Mr. Soi who was counsel assisting the COI and others were involved in serious corrupt practices, nepotism and double – dipping. It is further submitted for Mr. Soi that , this article also asserted that a report published by Mr. Dogimab “highlighted the conduct of the members of the secretariat of the COI how much they earned, the wantoks and mistresses they employed, and instances of drinking after the inquiry adjourned”. It is further submitted for Mr. Soi that, the Defendant’s failed to interview him and other staff of the COI and or failed to conduct any investigation to establish the truth or otherwise of the allegations prior to the publication. Further, the submissions for Mr. Soi, seeks to connect the first publication to the second publication to argue that Mr. Soi is identified and targeted from the first publication and is continued in the second one.


26. I have difficulty accepting these submissions for four reasons. Firstly, whilst it is true that the first publication named Mr. Soi, it did not however single out Mr. Soi. Instead, it was apparent then and continues to be so under the second publication that he was part of a group of people who were the subject of the publications, which does not give him a valid cause of action in defamation. I discussed the relevant legal position at paragraph 21 above. There is no meaningful submission on the relevant law and its application to this particular publication and hence the case at hand for Mr. Soi.


27. Secondly, the publication in relevant parts, refers to the conduct “of members of the secretariat of the inquiry”. The word “secretariat” usually means an administrative unit or department of an organisation that is responsible for the maintaining of records, and other secretarial duties. Applying this to the present case, it would mean the administrative unit of the COI. The COI, according to the uncontested evidence, had some 20 to 30 persons employed or engaged to support its operations. In these circumstances, a hypothetical objective person with knowledge of the COI and its set up or how an organisation with a secretariat functions, would not possibly consider counsel assisting the COI as a member of the secretariat. This would thus exclude Mr. Soi.


28. Thirdly, the source of the material published was Mr. Dogimap. He was called as a witness. He was in the witness box and was cross examined. According to his testimony, he was surprised to see the headline to the publication but otherwise able to say the content of the publication fairly reflected what was in his report. With respect, learned counsel for Mr. Soi did not put to Mr. Dogimap, his client’s claims of the Dogimap Report being riddled with falsehood and adverse imputations against Mr. Soi. Similarly, Counsel did not put to the witness Mr. Soi’s version of the true and correct facts and how they were misstated or misinterpreted. Going by the well accepted rule in Brown v. Dunn (1879) R (HL), it was incumbent on Mr. Soi’s Counsel to put his client’s claim to the witness and the author of the report. If the matters stated in the publication were riddled with half-truths and falsehood as is argued for Mr. Soi, he was duty bound to state what the truth was and what was false by raising the relevant questions and putting his version of the facts to the author of the report. This was not done for reasons only known to Mr. Soi and his counsel.


29. Fourthly, the serious imputations claimed by Mr. Soi has no foundation in the publication itself. I find the suggestions in Mr. Soi’s claims are misstatements, or are exaggerations and or misinterpretation of what is actually in the publication. Further, I am of the view that no hypothetical objective reasonable person would come to the same view as Mr. Soi. Finally, if indeed the contents of the report were such as he alleges and meant as he suggests, Mr. Soi had the burden to establish these claims by appropriate evidence after putting his case to the most relevant witness Mr. Dogimap. As with the first publication, Mr. Soi adduced no evidence to support his claims of half-truths and falsehood and the kinds of views or inferences he wishes the Court to draw from this publication. Whist he did call witnesses as already noted, none of them specifically address this publication and state what the true facts were and how they may have been twisted by the publication.


The Third and Fourth Publications - Cartoons


30. As noted, the third and fourth publications are the two cartoons. According to Mr. Soi’s evidence, the first cartoon publication appeared at page 15 of the Newspaper on 8th February 2008. That cartoon related to the COI depicting a man with both of his hands stretched out with flies around and on his hands walking away and being watched by a NEC member and a man from the PMU of the Department of PM and NEC with the NEC representative saying, “he’s too arrogant, he should be sacked” and the PMU staff saying “he’s hands are dirty and smelly too”. The second cartoon was published on 25th February 2008, appearing at page 20 of the Newspaper. This cartoon depicts a man from COI walking away with a bag of money and a PNG Trade Union Congress (TUC) representative saying to another person from TUC that the COI is “overpaid”.

31. It is argued for Mr. Soi that both these cartoons were of and concerned him. In making that submission, counsel for Mr. Soi points to the earlier publications especially the second publication of 31st January 2008, as making it easy to identify the character with the smelly fingers in the first cartoon as Mr. Soi. In particular, reliance is placed on the first publication making the point that nothing adverse was found of the Commissioner, retired Judge Maurice Sheehan . It is submitted for Mr. Soi that, this strongly suggests that Mr. Soi is the person with the adverse findings. Proceeding on this basis, it is further argued for Mr. Soi that, the cartoons especially the one published on 8th February 2008, gives the clear imputation that Mr. Soi “is a nasty unpleasant rogue with foul smelly fingers resulting from his engagement in shadowy and illegal, immoral, unprofessional and outright unlawful activity whilst employed as Counsel Assisting ... and previously Senior lawyer to the COI...” Furthermore, it is argued for Mr. Soi that such imputation is undoubtedly going to have the effect of injuring the reputation of Mr. Soi in his profession as a lawyer engaged in private law practice. Still further, it is argued for Mr. Soi that, the publications particularly, the cartoons’ caricatures are malicious and in bad faith.


32. I make the following observations on the submissions for Mr. Soi in respect of the publications through these cartoons:


(1) The submissions do not seek to make a case in defamation out of the cartoon that was published on 25th February 2008;

(2) These publications do not specifically name and target Mr. Soi to grant him a cause of action to sue upon. Instead, it is clear they are directed at the organisation namely, the COI and the decision maker, the NEC and other characters who are responsible administratively for the COI;

(3) The submissions assumes the reader of these cartoons have kept copies of the earlier publications and were able to make the connection between the first publication and the rest of the publications up to the cartoons. Ordinarily, most people read the newspapers or magazines once and then discard them unless there is something that concerns them and they want to keep them or, they are persons who have a habit of keeping all newspapers. In this case, Mr. Soi and the persons who were involved and part of the COI could have kept copies of the publications. All others may or may not have. It was therefore necessary for Mr. Soi to make out a case for all other hypothetical objective reasonable persons being able to keep copies of all the publications and drew the kinds of inferences he is asking this Court to draw. Further, given that Mr. Soi was part of a whole group of people he was required as a matter of law to demonstrate that he was singled out from the rest of the group. This he failed to do;

(4) The kind of inferences Mr. Soi wants the Court to draw are dramatic and are far removed from what is stated and could not reasonably be inferred from the cartoons;

(5) As with the earlier publications, Mr. Soi has not adduced any evidence from any independent sources disclosing other reasonable and fair mined persons took a similar view of the publications as he had. In the absence of such evidence, the claims remain the views only of Mr. Soi, his wife and his lawyer, a friend and a former client, which are highly subjective and not from the objective view point of a hypothetical objective reasonable person. In any case, none of the witnesses called by Mr. Soi have been able to demonstrate how Mr. Soi was defamed and more so what adverse views they formed of him. All they say is Mr. Soi was defamed without demonstrating how that was done according to each of them.

Fifth Publication – Editorial 22nd February 2008


33. The next publication I turn to is the publication made on 22nd February 2008, with the heading “Who wants to be a millionaire?” That was an editorial by the Defendants, published that day. It is submitted for Mr. Soi that the Defendants through the article were asserting amongst others that, Mr. Soi and others working with the COI paid themselves huge fees. The submissions go on to say, this they did without the approval of the relevant authorities and without meeting tax requirements, which made it “unprecedented.” It is further submitted for Mr. Soi that, this publication was contrary to the fact that he and the other staff of the COI were paid in accordance with statutory instruments and a National Gazettal lawfully authorized by the then Prime Minister Michael T. Somare, which fact the Newspaper failed to ascertain.


34. I have had a close look at the publication and note a few things about it. Firstly, this publication does not mention Mr. Soi’s name. Secondly, it is clear that the editorial is focused on the COI and the extravagant public expenditure associated with it, which could be better spent in public expenditure items like health and education. Thirdly, there is nothing adverse particularly against Mr. Soi or indeed any particular person at the COI. Fourthly, the particular allegations in the pleadings and submissions for Mr. Soi especially in terms of paying himself is not anywhere in the publication. Clearly therefore, Mr. Soi has misstated and misrepresented or exaggerated what is in the publication under consideration.


Sixth Publication – News Article 25th February 2008


35. The final publication to consider is the news article published on 25th February 2008 with the heading “Finance probe to resume.” The submissions for Mr. Soi claim that the Defendants, through this publication were saying amongst others that the COI members had been paid “hefty fees” for doing nothing especially when they have not presented any report. In so publishing, Mr. Soi’s submissions further claim that, the publication suggests that, Mr. Soi and others working for the COI have not earned what they have been paid and should not have been paid. Further, the submissions for Mr. Soi add a reference to the establishment of a stationery company to supply stationary to the COI, which was not true. Had the Newspaper made inquiries or carried out investigations before publishing the article, it would have ascertained the truth and would have refrained from publishing this part of the publication.


36. As I have done with the other publications, I had a close examination of the relevant publication. Based on that examination, I make a number of observations. Firstly, the paper announces the resumption of the COI. Secondly, neither Mr. Soi’s name is mentioned nor is there anything mentioned that could easily cause a hypothetical objective reasonable person to easily identify Mr. Soi with. Secondly, the whole article is focused on and speaks of the COI as an organisation or a group. There are criticisms and allegations of substantial spending of public funds without any report. However, these are of and concern the COI and not against Mr. Soi or any other person in particular. Thirdly, Mr. Soi did not produce any evidence clearly showing the contents of the article are false and misleading and were intended only to injure his reputation. In other words, the publications were actuated by malice and ill-will against him.


37. A due and proper consideration and appreciation of all of the observations I have made in respect of each of the publications leads me to only one conclusion. That conclusion is this, Mr. Soi as the plaintiff had the burden to prove his claim has failed to establish a prima facie case of defamation against him in each of the publications by the Newspaper because each of the publications:


(1) were not of and concerned Mr. Soi personally and him alone but was of a group of people together making up the COI;

(2) do not convey the kind of imputation and or meanings Mr. Soi alleges in his pleadings and in his submissions; and

(3) These publications were necessary for and in the interest of the public which had an interest in knowing how the COI was doing and ultimately a delivery on the purpose for which it was established.

38. The claim should therefore, be dismissed on the basis of these findings. However, I consider it important that I should consider the second issue before the Court for completeness and just in case I am wrong (which I say not) in arriving at my decision on the first issue.


Are the publications, excused or justified by virtue of the protections accorded by ss. 8 - 11 of the Defamation Act?


39. Turning then to the second issue, I note Mr. Soi’s argument is for a negative answer to the second issue for a number of reasons. Firstly, the argument is that, the publications were made in bad faith and were actuated by malice against him. Secondly, the publications “were half-truths and falsehood”. Thirdly, Mr. Soi effectively argues that, he was not a “person taking part in a public affair” or “a public officer” when he was appointed by an instrument earlier as Senior Lawyer and later as Counsel Assisting the COI. Additionally he argues that the Dogimap Report was not a report that falls under any one of the categories of section 8(2) of the Defamation Act. The nearest the report could come to is a defence under sections 8(2)(e) and 8(2)(f). But the report was not a report concerning proceedings of the COI. Instead, it was an administrative investigation into the administration of the COI.


40. The Defendants’ response to these arguments is simple and straight forward. They first point out that, Mr. Soi as the plaintiff has failed to lay a proper foundation in his pleadings in reply to raise these arguments. Secondly, they argue that the evidence before the Court supports a finding that the publications were made in good faith for the benefit of the public based on media statements and the Dogimap Report. The publications concerned the COI which was a matter of public interest and the public had the right to know what the COI was doing and how it was carrying out its purpose and function, what was happening to or with it and news surrounding the COI as they unfolded until a conclusion of the inquiry and its findings and reporting. Additionally, the COI was funded by public funds and was required to discharge a duty placed on it by the public through the government of the day that appointed the COI and set its terms of reference. Given that, clearly and no doubt, Mr. Soi was appointed to discharge a public function in a matter the public had an interest in.


41. I consider it important that we should first remind ourselves of the kinds of defence accorded to a defendant in a defamation case. Briefly and as already noted, s. 8 of the Defamation Act provides a complete defence for the publication of any defamatory material if the publication is made “in good faith for the information of the public” and is not “actuated by ill-will toward 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.” To this, s.9 adds the element of “fair comment” or “fair report ...in good faith for the information of the public as defined in s. 8 or the publication is in respect of “the conduct of a public officer or public servant in the discharge of his public functions” or “the character of any such person, so far as his character appears in that conduct.” Section 10 further adds, “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.” Finally, s. 11 provides for the defence of lawful excuse provided the publication is not excessive and is fair comment made in good faith without ill-will for the purpose of:


(a) public good; or

(b) giving information to the persons having an interest in the subject matter who need to know the truth of the matters published; or

(c) discussing some subject of public interest for the public’s benefit.


42. The National Court Rules than provide as to how a defence to a claim in defamation should be pleaded. There is even a specific prescription on how a reply to a defence should be pleaded. As I held in the case of Paul Wagun v. Robert Palme & Anor,[9] a defendant to such a claim who is claiming the defence of excuse or justification granted by ss.8 -11 has the onus to plead the relevant defence. Where a defendant is able to discharge this onus, the onus then shifts to a plaintiff who claims a lack of excuse or justification to first plead by virtue of O.8, r. 87 and then establish what is pleaded with appropriate evidence.


43. Pleadings play a critical role in all matters required to be and commenced by writs of summons. The Rules provide as to how a cause of action and a defence to it must be pleaded. Additionally, in certain cases, as in case of claims based on the tort of defamation, the Rules even provide for how a reply to a defence filed in answer to such a claim must be pleaded. The relevant provision here is O.8, r.87 which reads:


“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.”


44. It is obvious that this rule requires a plaintiff to do two things if he wants to defeat a claim of a publication of a defamatory material in good faith. The first requirement is to plead a lack of good faith and secondly plead the “particulars of the facts and the matters from which the absence of good faith is to be inferred”. In my decision in the Paul Wagun case, I observed that this rule is very clear as to these two requirements. In the same case, I reminded myself of what I said in my decision in National Provident Fund Board of Trustees v. Jimmy Maladina & Ors[10] with the subsequent approval of the Supreme Court in Tony David Raim v. Simon Korua.[11] There I said generally:


“...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.”


45. Specifically on the requirement to plead with particulars, the law is also clear. The decision of the Supreme Court in MVIT v. John Etape,[12] presents this very well. There the Court adopted with approval the following statement of the law by O’Leary AJ in Philliponi v. Leithead:[13]


“besides requiring that certain matters be pleaded specifically, the rules also contain a number of provisions which require a party to furnish in or with his pleadings, particulars of his claim or defence or other matter pleaded. The function of particulars is ‘to let (a party) know what case he will have to meet and to enable him to know what evidence he ought to be prepared with’. The object is ‘to ensure as far as is practicable, that proceedings between parties would result in a determination of the rights of the parties according to law and to limit if not eradicate the number of cases in which technologies can cause the proceedings to miscarry. Generally speaking justice will be more readily and speedily attained if each party is fully aware of the precise nature of the allegations made by the other’”


46. The Court then commented “[p]articulars are in fact an extension of the pleadings - they control the generality of the pleadings” and went on to quote with approval McClemens J in Pilato v. Metropolitan Water Sewerage and Drainange Board,[14] who said:


“Pleadings define the issues in general terms. Particulars control the generality of the pleadings and restrict the evidence to be led by the parties at the trial and give the other party such information as may enable him to know what case he will be met with at the trial and prevent surprise. Evidence enables the tribunal within the ambit of the general definition of the issues, affected by the pleadings and limited by the particulars, to decide where the truth lies”.


47. It is now trite law in our jurisdiction that, a party cannot adduce evidence and seek to succeed on a matter or issue not pleaded. Specifically in respect of defamation cases, what the Supreme Court said in Cyril Mudalige v. Rabaul Shipping Ltd,[15] is on point. 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.”


48. Repeating what I said in the Paul Wagun case at paragraph 9 of my judgment, in appropriate cases, the Court can on proper application grant a party leave to go outside his pleading. Only then, can a party be permitted to venture outside his or her pleadings. Where such leave is granted, it will enable the successful applicant to plead the matter or issue and the opposing parties given the opportunity to answer it before trial and final judgment. However, this would be a rarity because once pleadings have closed and the matter is progressed to trial, the Courts will be slow to aborting a trial and hence cause a delay in reaching finality in litigation. This is consistent with current worldwide judicial view against the ready grant of adjournments except in cases in which a case is properly made out for an adjournment.[16]


49. In the present case, under paragraphs 4 and 5 of the Defendants’ Amended Defence,[17] they raise the defences of their publications being excused or justified by the legal protections available to them under the relevant provisions of the Defamation Act. Except for the reference to paragraph numbers of the amended defence, Mr. Soi in his reply pleads at paragraphs 4 and 5 in identical terms as follows:


“The Plaintiff replies that the publications were not made in good faith nor were they made for the information of the public, as pleaded in paragraph 4 (a) and (b) of the Defence (as particularized thereunder), as such publications were actuated by considerations irrelevant to the interest of the public but the substantial interest of the persons either implicated in the inquiry or whose implication was very imminent, and to that extent all publications cumulatively did not amount to fair comment.”


50. Before anything else, I note this pleading raises more questions than answers and in so doing, fails to plead a clear statement of fact. Some of the questions raised are:


(1) Who were the persons implicated?

(2) Who were the persons whose implication were imminent?


(3) How were the persons implicated or those whose implication were imminent implicated?


(4) What was the Defendants separate or collective relationship with each of the unidentified persons implicated or whose implications were imminent?


(5) What was the gain or benefit to the Defendants for publishing the various articles?


(6) What was or could be the reason for the Defendants publishing the various articles?

51. Answers to the above questions had to be in the pleadings first. If this happened, that would have helped in determining the evidence to be called and most importantly, help reveal the Defendants’ motive for publishing the defamatory material. If for example any of the Defendants had a special relationship with each of the persons implicated (not disclosed) or those who were soon to be implicated (also not disclosed), that would support an inference that the Defendants had a motive other than to publishing the material for the information and benefit of the public. Similarly, if the Defendants stood to gain in a way other than its usual price for a sale of a newspaper, that would have supported an inference of the Defendants being actuated by a wrong motive or purpose than what the Defendants’ pleaded in their defence. In other words, such pleadings are required to demonstrate that the Defendants’ published the various articles for reasons other than its normal business as a newspaper reporting on an event in which the public had an interest and was entitled to know about.


52. The public being the people of Papua New Guinea and those who were following the establishment and functioning of the COI had a right to know what was happening to and with the COI and how it was carrying out its purpose, duty and or obligation. Contrary to the arguments for Mr. Soi, there can be no argument that Mr. Soi was appointed to carry out a public function vested in the COI. His function was to assist the COI to carry out the function vested in the COI. Through each of the publications, the Defendants were simply informing the public about the sacking of the COI team minus the Commissioner and what the government was saying about the sacking and what was going on with the COI generally. The comments and or the contents of each of the publications, in my view, fairly reflected what in fact occurred and were warranted. Seen in that light, the Dogimap Report and its implications was a matter that had to be reported for the benefit of the public. Accordingly, I reject the submissions for Mr. Soi which question the public nature of the COI and those assisting it in the discharge of its functions, duties and or responsibilities. Similarly I reject the arguments against the use of the Dogimap Report for the benefit of the public who had an interest in the COI and all things concerning and affecting it once that document got outside the confines of the Department of the PM and NEC to the Defendants. The public nature of the COI and the public having an interest in knowing all things happening and or concerning the COI outweighs any need for confidentially as long as it did not constitute a compromise of our country’s national security. Given these, I cannot see how a hypothetical reasonable person could infer the kind of adverse meaning in the way Mr. Soi and his counsel argue for. In my view, Mr. Soi and his counsel’s views and arguments are highly subjective and not how any hypothetical reasonable objective person could reasonably arrive at.


53. If however, the publications were in bad faith actuated by malice against Mr. Soi, he had the duty to plead that with particulars. The pleadings under consideration are saying the publications were not in good faith and were not for the information and benefit of the public but was for “considerations irrelevant to the interest of the public and were instead for the “substantial interest of the persons implicated in the inquiry or whose implication was imminent.” This pleading in my humble view, could hardly be considered an appropriate pleading in reply to the Defendants’ defence. As noted, the pleadings and the kinds of evidence required in the present case is a case of the defendant publishing allegedly defamatory material out of ill will or malice against Mr. Soi. The kind of pleadings required should amongst others, cover the essential elements of bad faith or malice. Further if they “were half-truths and falsehood” as is submitted for Mr. Soi, there ought to be clear statements in the reply as to the factual foundation for such a claim. Indeed, I note Mr. Soi’s own submissions accept the correct legal position on how to plead truth, The arguments for Mr. Soi refers to the decision in Gordon v. ABC,[18] which was cited with approval by Sheehan J in the PNG Aviation Services v. Somare.[19] Reliance is placed specifically on Sheehan J’s judgment in PNG Aviation Services case, where His Honour made the point that a “separation of facts and comments is vital”. This, Mr. Soi’s counsel argues must be taken care of in the pleadings failing which a defence of publication in good faith must fail. The submission goes on to make the point that a defence of fair comment can only succeed if the facts on which a publication is based are true. Based on that argument, he further argues that the Defendants’ defence does not identify and separate comments from assertion of facts.


54. With respect, Mr. Soi’s arguments here are flowed. It is Mr. Soi in his arguments who is raising the issue of the publications being “half-truths and falsehood”. The Defendants do not specifically plead truth in their defence. Given that, the duty or obligation was on Mr. Soi to plead the absence of truth in his reply but he failed to do that. In his pleading, he had the duty to clearly identify what the truth was, how the truth could have been ascertained or how the truth could reasonably be inferred and how there was no truth in the publication.


55. As to pleading malice, I am not able to find any case that discusses the essential elements that must be first pleaded then proven by evidence. In these vacuum I find the decision in Demba Kalo v Cornnie Akaya and Sam Inguba, Commissioner of Police and The Independent State of Papua New Guinea[20], useful. That was in the context of malicious prosecution. From that judgment the following comes out clearly:


(1) “malice” is defined to mean a desire to cause harm or difficulty to others, ill-will or harmful intent;


(2) malice may be inferred where the defendant has a purpose other than bringing an offender to justice;


(3) the defendant did not believe that the plaintiff was probably guilty of the offence;


(4) a person of ordinary prudence and caution would not conclude, in the light of the facts in which he honestly believed, that the plaintiff was probably guilty.”


56. The Court also refers to the following passage from the Australian case of Trobridge v Hardy.[21] That was a case of wrongful arrest and false imprisonment, in the context of which, the Court had to consider the meaning of the word ‘malice’ as used in the Police Act 1892 – 1953 (WA). There Kitto .J at page 162 gave a wider meaning to the term in this way:


“‘The word ‘malice’ must... mean what has been variously called express malice, actual malice or malice in fact as contrasted with malice in law which is no more than the unlawful intent whenever an injurious act is done intentionally and without just cause or excuse. Malice in the latter sense is not a separate matter of proof. In the former sense, however it forms the subject of a separate issue of fact on which the party alleging it must establish that the conduct of which he complains was actuated solely or predominately by a wrong or indirect motive. This means, where that conduct could only be justified by reference to an authority possessed by the actor to perform functions for the enforcement of law, that he acted ‘from an indirect and improper motive, not in furtherance of justice’ (Abrath v North Eastern Railway Co [1883] UKLawRpKQB 122; (1883) 11 QBD 440 at 455). That is to say, from some desire other than ‘to discharge his duty to the public’ (Cruise v Burke (1919) 2IR 182 at 186)... (p)roof of motive is always and necessarily a matter of inference, except where a party whose motive is to be ascertained makes a direct admission on the point after the event either in or out of court. Even proof of statements made by him before the event and showing a clear intention to do for an improper reason the acts which thereafter he did, would not be direct proof of malice, for they could provide no more than a ground, when considered with all other relevant circumstances, for drawing an inference that the improper reason persisted at the material time and provided that the defendant at that time with his actuating motive’.

...

Malice can be proved either by showing what the motive of the defendant was and that it was wrong, or by showing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor (Brown v Hawkes [1891] UKLawRpKQB 123; (1891) 2 QB 718 at 722; approved by Kitto and Taylor JJ in Trobridge v Hardy (supra) at 163, 174).”

(Emphasis supplied)


57. Taking guidance from this, we can identify several essential elements for the purposes of a plaintiff properly replying to a defence of good faith publication of a defamatory material. The essential elements are:


(1) the publication was actuated by a desire to cause an identified harm, difficulty or injury to the plaintiff;


(2) the desire to cause the harm, difficulty or injury against the plaintiff solely or predominately actuated the publication and not for the purpose pleaded by the defendant;


(3) the defendant did not believe in the truth or had reason to know that the material published did not have any truth in them;


(4) a person of ordinary prudence and caution or an hypothetical objective person having due regard to the relevant facts and the circumstances in which the material was published would reasonably conclude that the publication was solely for the purposes of causing the harm, difficulty or injury to the plaintiff and not for the purpose pleaded by the defendant;


58. Merely pleading in these terms is not sufficient. A plaintiff’s pleading must identify with appropriate particulars the harm, difficulty or injury intended against him or her. The pleadings must also plead with particulars the basis for inferring the sole or predominate motive or intend to cause the identified harm, difficulty or injury as well as the basis for alleging the publication was not for the purpose pleaded in a defendant’s defence. Further, a plaintiff’s pleading must identify what the truth was, how the truth was misrepresented or not properly reflected in the publication, how the truth could have been ascertained or how it could reasonably be inferred and how there was no truth in the publication.


59. A careful consideration of the pleadings of the parties in this case against the relevant law and their respective arguments, I find that the Defendants have sufficiently pleaded their defence with particulars. This placed an obligation on Mr. Soi as the plaintiff to plead with particulars in his reply the basis for his claim and submissions that the publications were in bad faith actuated by a specified or named malice, by way of an ill-will, difficulty or harm or injury intended against him and cover essentially the elements of the malice or ill-will. He also had the duty and obligation to plead with particulars his claims of the publications being “riddled with half-truths and falsehood.” This he failed to do. He has instead, pleaded in a way that raises more unanswered questions rather than pleading a clear case of bad faith publication that were actuated by an identified malice, or ill-will, difficulty, harm or injury intended against him. This forms a strong basis to reject Mr. Soi’s submission and dismiss his claims.


60. There is a further reason to find that the various publications were justified or excused by law. This is centred on the evidence before the Court. Relevantly, the following facts are uncontested or could not be contested:


(1) The NEC appointed and revoked Mr. Soi’s appointment as senior lawyer initially and later as counsel assisting the commission on more than one occasion for various reasons as were given by the Department of the PM and NEC;


(2) A media release from the Department of PM and NEC and the Dogimap Report formed the basis for the publications;


(3) All the publications were directed at the COI and not specifically against Mr. Soi;


(4) The COI concerned the Finance Department and how public funds were paid out to various people by reason of which it was a matter of public interest; and


(5) Given the public interest, the public had reason to know how the COI was functioning and all and everything concerning about it.


61. Subject to laying proper foundation in his pleadings, Mr. Soi as the plaintiff had the burden on the balance of probabilities to establish his claims of bad faith and that the publications were “riddled with half-truths and falsehood.” Regarding his claim of bad faith publication, Mr. Soi did not call any witness other than himself or members of his family or friends to give evidence to establish his claim of bad faith publication. One of the authors of the various publications was Mr. Daniel Korimbao who was called as a witness by the Defendants and was in the witness box. According to Mr. Korimbao, he knows Mr. Soi well. Given that, he testified that, he contacted Mr. Soi and alerted him to the story that was going to be carried by the Newspaper. To that, all Mr. Soi could say was he knew nothing about the information to be published. This presented Mr. Soi an excellent opportunity to prevent the alleged defamatory material from being published and or ensure only the truth according to him was published. He would have for example pointed out that the contents of what were to be published were false or inaccurate and point out or state what the truth was from his perspective or put his version of the story through the Defendants. Instead of doing that, he chose by his actions not to engage in such communication and thus let the opportunity for him to prevent the publications or ensuring only the truth was published pass by. Having thus failed in this way, I do not consider Mr. Soi can be at any liberty to claim defamation as he is through these proceeding. Additionally, whilst Mr. Korimbao was in the witness box, Mr. Soi through his learned counsel had the perfect opportunity to fully cross-examine and put his case to the witness but this Mr. Soi failed to do. Clearly therefore, the Defendants defence and evidence stands unrebutted.


62. This leaves us to deal with Mr. Soi’s argument that the publications were based on “half-truths and falsehood”. Reliance is placed on the fact that a copy of the Dogimab Report was not tendered into evidence by the Defendants which Mr. Soi argues denied him the opportunity to test the veracity of the facts contained in the report. Whilst it is true that a copy of the report is not in evidence, the author of the report was called as a witness. He was in the witness box. In his evidence in chief, he testified that, aside from the headlines, the publications were based on his report. In other words, he testified that apart from the headlines, the various publications accurately reflected his report, based on his own investigations. The author of the reports presence in the witness box gave Mr. Soi a perfect opportunity to cross examine the witness, put his case or his version of the story to the witness and thereby test the veracity of the Dogimap Report. Also, Mr. Dogimap’s presence in the witness box gave Mr. Soi an excellent opportunity to put to the witness that the witness had a malicious intent against him (Mr. Soi) and the publication was to single him (Mr. Soi) out and have him removed from the COI. Unfortunately, for reasons only known to Mr. Soi and his lawyer this was not done. Consequently, Mr. Dogimap’s evidence stands unchallenged and unrebutted with no ill will or malice suggested or established as that which caused the publications.


63. Additionally, Mr. Soi called no evidence establishing the basis for his submissions. He had the necessary duty and obligations to call evidence and establish the following kinds of facts to succeed in his submissions or claims:


(1) Mr. Dogimap did not carry out any investigations;

(2) If Mr. Dogimap did carry out any investigations, such investigations did not produce any evidence of the matters stated in his Report;

(3) Mr. Dogimap’s Report was without any factual foundation;

(4) The real facts represented a scenario favourable to Mr. Soi which was different from what was disclosed in the Dogimap Report and produce the real facts;

(5) The Dogimap Report was actuated by an identified malice or ill-will aimed at Mr. Soi; and

(6) Mr. Dogimap had a certain motive or purpose to publish such an adverse report against Mr. Soi and not in the public interest of the COI performing its task competently in a manner that was costs effective and in a timely manner.


64. In these circumstances, I find that in addition to his failing to plead, Mr. Soi as the plaintiff has also failed to adduce any evidence to support his claims of the Dogimap Report being “riddled with half-truths and falsehood. Proceeding on this basis I find there is no basis or reason to reject Mr. Dogimap’s evidence and what that evidence stands for. Based on this evidence, I reject Mr. Soi’s claims of the Dogimap Report being “riddled with half-truths and falsehood.


65. Further, Mr. Soi has not adduced any evidence of anyone “shunning”, “avoiding” or “ridiculing” him. He did call a Mr. Popo a former client, Mr. Kalinoe a friend and his wife, Tessie Soi. Mr. Dickson was a person behind one of Mr. Soi’s clients, the Toaripi Cooperative Society. This witness gave clear evidence of him taking his organisation’s instructions and or case away from Mr. Soi on Mr. Soi’s saying he was so busy with the COI and therefore was not in a position to continue to provide legal services to the society. Neither this witness nor the others have given any evidence of Mr. Soi being shunned at or ridiculed in any manner or form. Also despite being served with a summons to produce his practice records, Mr. Soi did not produce them. A production of such records with or with a summons would have shown if indeed his clients, shunned and or avoided Mr. Soi because of the publication of the alleged defamatory material. Such records could have also shown, if indeed Mr. Soi suffered economically to warrant an award of the substantial sum of K1, 162,600.00 he is claiming without any foundation in the pleadings.


66. Based on the foregoing reasons, I find that the Plaintiff, Mr. Soi has failed to establish his claim in defamation against the Defendants. I would thus dismiss the claim with costs.


67. The above findings and decision renders any consideration of the remaining issue of damages unnecessary. Accordingly, I decline to give any consideration to the third and final issue before the Court.


Formal Orders


68. Accordingly, I make the following formal orders:

  1. This claim is dismissed.
  2. The Plaintiff shall pay the Defendants’ costs to be taxed if not agreed.

________________________________________________________________
Nobert Kubak & Associates: Lawyers for the Plaintiff
Warner Shand Lawyers: Lawyers for the Defendants


[1] (2015) N5917.
[2] See 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
[3] (2002) N2277.
[4] [1891] 1 QB 524.
[5] [1916-17] ALL E.R. Rep. 159
[6] See for example of an authority for this proposition: Francis Chibelle v. Jack Mafu (2015) N5942
[7] [1944] A.C. 166.
[8] A. Mullis & R. Parkers, Gatley on Libel and Slander, 12th Edition (2013), Thomas Reuters (Professional) UK Limted, at 274, para 7.9.
[9] (2015) N5917.
[10] (2003) N2486
[11] (2010) SC1062 (per Gavara-Nanu, Davani and Makail JJ).
[12] [1994] PNGLR 596.
[13] (1958) 76 W.N.(NSW) 150.
[14] (1959) 76 W.N. (NSW) 364, at 365.
[15] (2011) SC1132.
[16] See for authorities setting out the relevant principles on adjournment: Joshua Kalinoe & Ors v. Paul Paraka & Ors; Hon Bire Kimisopa & Ors v Paul Paraka & Ors (2014) SC1366 and PNG Deep Sea Fishing Ltd v. Critten (2010) SC1126
[17] Document number 73 filed on 05th June 2014.
[18](1973)22FLR 181.
[19] [1997] PNGLR 515.
[20] (2007) N3203.
[21] [1955] HCA 68; (1955) 94 CLR 147.

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2018/7.html