Rimua v Kolma [2021] PGNC 638; N9895 (18 October 2021)

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DEFAMATION – newspaper publications – publications of report tabled in parliament by Public Accounts Committee - whether publications defamatory – availability of defences – fair report, s.8 Defamation Act – qualified protection, s.11 Defamation Act

The plaintiff, the head of a government department, sued a newspaper company and the journalist responsible for publication of several articles in a daily edition of the newspaper. The articles were based on a report tabled in the parliament by a parliamentary committee. The report was in relation to the administration of the department. The plaintiff claimed damages alleging the published articles were defamatory of him – that they implied he was corrupt and had benefitted from illegal dealings, and that he was incompetent and did not have control over his department. The allegations were denied by the defendants.

Griffin v Australian Broadcasting Commission (No 2) [1974] PNGLR 152
Yakham v Merriam [1999] PNGLR 592
South Pacific Post Ltd (trading as Post Courier) v Tame (2020) SC2042 Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16

Mr G Manda & Mr J Siki, for the Plaintiff
Mr I Molloy & Mr W Frizzell, for the Defendants

1. KARIKO, J: The plaintiff claims that journalist Frank Senge Kolma wrote articles published in The National newspaper on 20^th May 2010 that were defamatory of him.

2. The publications related to a report by the Permanent Parliamentary Committee on Public Accounts (the PAC) on an inquiry the Committee conducted into the fund allocation, general administration, and operations of the Department of Petroleum and Energy (the DPE), particularly in relation to the Konebada Petroleum Park Project (the Konebada Project).

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

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

(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.

18. The defendants do not deny the third element, admitting that the National is vicariously liable for articles written by its employed journalist.

19. As to the third element, the defendants argued that there is no reference to the plaintiff by name or position in Article 4, so no cause of action is established in respect of that publication. I consider otherwise. The four articles were published alongside each other in a way that they were obviously meant to be read together. By necessary inference therefore, Article 4 also implicated the plaintiff.

21. The defamatory imputations alleged by the plaintiff are set out in paragraph 13 of the Statement of Claim which reads:

In their natural and ordinary meaning, the said articles can be construed and understood that:.

22. As noted earlier, Section 2(1) of the Defamation Act provides that an imputation concerning a person by which the reputation of that person is likely to be injured, or he is likely to be injured in his profession or trade, or other persons are likely to be induced to shun, avoid, ridicule or despise him, is a defamatory imputation.

23. Article 1 contained statements that implied the plaintiff. After the Article referred to the Report, it was stated that the PAC accepted certain findings of the Auditor General’s Office, including:

24. Article 2 discussed the PAC’s finding in the Report that the plaintiff failed to address obvious problems in the handling of public money, property and supplies by officers of the DPE. The Article concluded by noting that the PAC put to the plaintiff that he had no control over his staff or the accounting and recording systems, to which the plaintiff generally agreed.

25. Article 3 noted that in the Report, the PAC described the DPE as a “failed department” after finding that the Department had not properly discharged basic duties such as bank reconciliation and lodgment of statutory reports. The PAC noted several areas of concern regarding proper management and accounting of public monies, including the plaintiff and his senior managers’ failure or refusal to assist and co-operate with the Auditor General.

26. Article 4 related to the PAC’s findings that about 80% of the expenditure out of the Konebada Project trust account was spent on consultants.

27. The plaintiff submitted that the imputations pleaded corresponded to certain statements in the articles:

Imputation	Article	Statement
Failed to establish and maintain effective check and balance mechanisms	1 (paragraph 1)	Public funds totaling K8million has disappeared without a trace through the government’s Konebada Petroleum Park Authority.
Was corrupt	1 (paragraph 4)	The park concept received and spent K29million, one third of it without trace, 83% went to consultants
Was incompetent and had no control in managing the DPE	2 (heading)	Rimua agrees to ‘no control’ at DPE
Was incompetent	2 (paragraph 2)	From the PAC report, it seemed Rimua appeared to have accepted all criticisms and findings of illegality, weakness and incompetence but claimed that he only accepted responsibility for those failures from the time of his appointment in April 2007.
Did not have integrity	2 (paragraph 2)	From the PAC report, it seemed Rimua appeared to have accepted all criticisms and findings of illegality, weakness and incompetence but claimed that he only accepted responsibility for those failures from the time of his appointment in April 2007.
Sanctioned and benefitted from illegal dealings	4 (paragraph 4)	“Consultants” seemed to have been chosen by the individuals concerned with the management of the project with no lawful competitive selective procurement conducted.
Allowed consultants to run the DPE	4 (paragraph 1)	The Public Accounts Committee (PAC) discovered that K80 out of every K100, allocated for the Konebada Petroleum Park, was spent on consultants.

28. The defendants argued that Article 1 did not suggest any of the meanings pleaded by the plaintiff, and because Article 4 made no mention of the plaintiff, there were no imputations concerning him.

29. However, the defendants acknowledged that Article 2 was capable of being understood to mean that the plaintiff had no control over the DPE and was incompetent in managing the Department, and that Article 3 suggested the plaintiff was incompetent and lacked control in managing the DPE.

30. I repeat my view that each article should not be read separately and apart from the others and therefore considered as a distinct publication. They all related to the Report and were intended to be read jointly as they were grouped together. The common message of the articles was the adverse findings of the PAC in relation to management of the DPE and the accounting for the funds allocated to it, particularly regarding the Konebada Project.

31. Foremost, I reject the plaintiff’s submission that in their natural and ordinary meaning, the publications conveyed the meanings that the plaintiff was corrupt and that he sanctioned and benefitted from illegal dealings. The articles do not suggest these meanings, nor can they be understood in that way.

32. I agree that the publications could be understood to convey the meaning that the plaintiff as the head of the DPE was incompetent and did not have control over his department. No doubt, such accusations could injure his reputation. The publications were therefore prima facie defamatory of the plaintiff on those bases.

34. I also consider that the alleged imputation that the plaintiff allowed consultants to run the DPE is a part of the alleged imputation that he had no control over the department.

35. In their defence, the defendants first raised Sections 8 of the Defamation Act contending that the prima facie defamatory publications:

36. The defendants relied on circumstances described by Section 8(2)(a)(b) and (d):

(2) For the purposes of this Act, it is lawful to publish in good faith for the information of the public-

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

37. The defendants submitted the articles related to an inquiry of the PAC which is a Permanent Parliamentary Committee established by the Constitution (Section 215) charged with the power to investigate public accounts under the Constitution (Section 216) and the Public Finance (Management) Act 1995 (Section 86) and accordingly may conduct inquiries for this purpose.

38. It is also noted that under Section 17 of the Permanent Parliamentary Committees Act 1994, the PAC may conduct such an inquiry on its own initiative. The Committee is obliged under Section 82 of the Public Finance (Management) Act to table its report to the Parliament.

Excerpts from the report on the inquiry – a final report not an interim report.

39. Accordingly, it was argued that the publications were a fair report “for the information of the public”:

40. In response, the plaintiff urged the court to find that neither of these elements are proven. The publications were not a fair report as the Report was interim in nature, awaiting a response from the plaintiff. Also, the publications were based on untrue assertions. It was stressed that the Parliament had yet to accept the Report as final and that its release to the defendants was unauthorized.

42. The evidence is clear that the Report is “the Final Report of the Public Accounts Committee into the Department of Petroleum and Energy and the Konebada Petroleum Park Project”. That is how it was labeled by the Chairman of the Committee in his Foreword to the Report. The invitation to the plaintiff to explain within thirty (30) days, was not for answers to matters under investigation in the inquiry but for advice on remedial steps or measures to be taken to correct the failures and deficiencies already determined by the inquiry. There was never another report issued regarding the inquiry.

43. In respect of the claims that Parliament had not yet accepted the Report as final and that it had not authorized it to be released, the plaintiff produced no evidence to support the claims. The evidence by Kolma that he obtained the Report from the Bills and Papers Section of the National Parliament as could any other member of the public following its tabling in the Parliament, was not properly rebutted.

44. I am also not satisfied that the plaintiff duly established that the defendants were motivated by ill-will in publishing the articles. He agreed there was no animosity between he and Kolma. He also acknowledged that the National was under no obligation to publish his Press Release criticizing the publication of the articles on the Report, yet the newspaper obliged.

45. The meaning of “fair report” was considered in Griffin v Australian Broadcasting Commission (No 2) [1974] PNGLR 152. That case dealt with a report by radio broadcast of court proceedings containing defamatory imputations against a lawyer. The court held that while minor inaccuracies in reporting on the proceedings were acceptable, there were major inaccuracies that rendered the broadcast as not a fair report. In the present matter, the plaintiff only contested that the findings in the Report against him were not true, and he did not suggest that the defendants inaccurately published the findings of the PAC contained in the Report.

46. Upon due consideration of the evidence and the applicable law, I am persuaded to accept the defendants’ proposition that the prima facie defamatory publications are justified or excused by Section 8 of the Defamation Act. For this reason, I am obliged to dismiss this proceeding.

47. While it is then not necessary to consider the other pleaded defence of qualified protection under Section 11 of the Defamation Act, I will nevertheless discuss it briefly.

48. In particular, the defendants relied on the privileges provided by Section 11(1)(c), (e) and (h):

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

50. The defendant bears the onus of only proving the first element of the defence of qualified privilege, that a situation of a privilege existed, while the plaintiff bears onus of disproof, that the publication was not in good faith; Yakham & Pacific Star Ltd v Merriam (No 2) (1999) SC617, South Pacific Post Ltd (trading as Post Courier) v Tame (2020) SC2042.

51. In my opinion, the publications were made in circumstances of qualified protection:

52. As I noted earlier, the plaintiff failed to properly establish that the defendants were motivated by ill-will in publishing the articles and therefore did not make the publications in good faith.

53. The claim for defamation must also be declined based on qualified protection under Section 11 of the Defamation Act.

_____________________________________________________________
Greg Manda Lawyers: Lawyers for the Plaintiff
Warner Shand Lawyers: Lawyers for Defendants

National Court of Papua New Guinea

Rimua v Kolma [2021] PGNC 638; N9895 (18 October 2021)