N9860

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.  705 OF 2017

BETWEEN:
HUBERT SAREKE
- Plaintiff-

AND:
HIS WORSHIP MR MARK PUPAKA
in his capacity as the Deputy Chief Magistrate
-First Defendant-

AND:
HIS WORSHIP MR IOVA GEITA
in his capacity as the Deputy Chief Magistrate
-Second Defendant-

AND:
BARTHOLOMEW DENNIS
in his capacity as the Legal Officer to the Magisterial Service
-Third Defendant-

AND:
JACK AUGUST
in his capacity as the Chief Magistrate
-Fourth Defendant-

AND:
NERRIE ELIAKIM
in her capacity as the Chief Magistrate
-Fifth Defendant-

AND:
THE MAGISTERIAL SERVICE OF PNG
-Sixth Defendant-

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Seventh Defendant-

Waigani: Tamade AJ
2022: 25th April, 12th August

DEFAMATION – does incident in District Court Chambers amount to defamation – District Court Act Part XII – Defamation Act not pleaded in statement of claim – Defamation Act Sections 2, 3 and 25 – Section 4 of the Defamation Act – words spoken should be made in the presence of a person other than the defamed – administrative discussion within chambers – inadequate evidence to prove defamation –

Cases Cited:

The following cases are cited in the judgment:

Chauka v Baing [2012] PGNC 393  
Chibelle v Mafu [2015] PGNC 84; N5942 
Lambu v Torato [2008] PGSC 34; SC953 
Wyatt Gallagher Bassett (PNG) Ltd v Diau [2002] PNGLR 43

Counsel:
	
Mr Steven Dadada, for the Plaintiff
Mr Robbie Kebaya, for the Defendants

12th August, 2022

1.	TAMADE AJ: This is a decision on trial on both liability and quantum of damages. The trial was held on 25 April 2022 and a decision reserved.

2.	The Plaintiff is a former Magistrate previously employed with the Defendants in the Magisterial Services. The Plaintiff claims that on 23 December 2010, the First and Second Defendants summoned the Plaintiff in an unprofessional and harsh manner to their Office at the Port Moresby District Court and demanded that the Plaintiff reverse his decision in a Local Land Court matter described as LLC No. 007 of 2010- Max Maiago Madaha on behalf of Badiri Vamaga Clan of Kira Kira Village v Udia Boge and two others). The Plaintiff claims that whilst in the presence of the First and Second Defendant in their office, the First Defendant collaborating with the Second Defendant spoke in an unreasonable and improbable manner and said or published the following words towards the Plaintiff concerning his occupation and profession. The Plaintiff claims that the First Defendant said the following words:

“You do not know what you are doing go and reverse your decision…You are further stopped from hearing my land cases.”

3.	The Plaintiff alleges that the First Defendant whilst saying the above words made hand gestures by pointing his hand to his head and depicting the Plaintiff. The Plaintiff, therefore, claims that the above outburst from the First Defendant was done in the presence of one Mr Wep Ninau and Mr Tinut Kali who are two Registry Clerks and in front of the Complainant, Mr Max Maiago. There is no explanation of why and what the Complainant Mr Max Maiago was doing in the Magisterial Chambers or Offices when this altercation happened. 

4.	The Plaintiff, therefore, alleges that the defamatory imputation as uttered by the First Defendant is unlawful as it is not protected, justified or excused by law. 

5.	The Plaintiff alleges that the conduct and the words of the First Defendant aided by the Second Defendant in the presence of the Court staff were understood to mean and or imputed to mean by way of innuendo that:

i.	the Plaintiff fell into error when he set aside ex parte restraining orders in the land matter LLC 007 of 2010.
ii.	the Plaintiff does not know what he was doing when he dealt with the land matter LLC 007 of 2010.
iii.	the Plaintiff was an incompetent magistrate or has no experience and qualification as a magistrate.
iv.	because of the Plaintiff’s incompetence, he can not deal with land matters.
v.	the Second Defendant should take disciplinary actions as against the Plaintiff for being incompetent in dealing with land matters

6.	The Plaintiff, therefore, claims that the First and Second Defendants failed to offer any apology to the Plaintiff.

7.	 As a result of the defamatory imputations by the First and Second Defendants, the Plaintiff states that he suffered loss, injury, shame and embarrassment to his reputation and character from the various positions he held as the Chairperson of Bougainville Fellowship Group at Charles Luwanga Catholic Church, as a member of his local church and his various other standing in the community.

8.	The Plaintiff also claims that after making a decision on a case described as CPC 57 of 2009- Allan Aufa & Imala Incorporated Land Group v Catholic Mission Veif’a & Auofor Kuaggu by his next friend Biofa Oala Aveia Incorporated Land Group regarding benefits from  a Digicel mobile tower, the Defendants in those proceedings aggrieved by the decision granted on 11 November 2009 then raised serious corruption and bribery allegations on the Plaintiff which was pursued by Sister Marlene Dewe of Bereina Catholic Parish to the then Chief Justice, Sir Arnold Amet with copies to the parties of those proceedings.

9.	The Plaintiff was then subsequently suspended but on pay on allegations of corruption and bribery raised by Sister Marlene Dewe on 17 January 2011 and was reinstated on 26 May 2014 but was demoted in his position. The Plaintiff claims that he was never charged during the period of his suspension. The Plaintiff claims a breach of his Constitutional rights as a result of being suspended without being charged for breaches under sections 41, 37, 59 and 55 of the Constitution. The Plaintiff also claims leave airfares and recreational allowances during the period of his suspension that he says he did not receive.

10.	 The Plaintiff further claims that on 26 January 2015, the Third Defendant published by way of a letter to a Robert Gahare, the Clerk of the Central Provincial District Court that the Plaintiff had submitted Certificates for the Adoption of his Children under the hand of one Magistrate Jimmy Tapat but it appears that the documentation could be fraudulently obtained and therefore it was the subject of an investigation. 

11.	  The Plaintiff contends that the said letter is defamatory and is unlawful and therefore it is not protected, justified or excused by law.   The Plaintiff claims that the said letter in their natural and ordinary meaning meant that:

a)	the Plaintiff forged the signature of Magistrate Jimmy Tapat.
b)	the Plaintiff is a dishonest person who had unduly influenced Magistrate Jimmy Tapat.
c)	the Plaintiff is a dishonest person and a fraudster and therefore he is not fit to be a Magistrate.
d)	the Second and Fourth Defendants should take disciplinary action or suspend the Plaintiff for forging the said adoption documents. 

12.	 The Plaintiff therefore also claims that he has suffered loss, shame and embarrassment and or injury to his character and reputation as a result of the letter regarding the investigation into his children’s Adoption Certificates.

13.	 The Plaintiff claims that because of the conduct of the Defendants, he has been defamed and suffers injury to his character and his reputation and the State is vicariously liable for the actions of the Defendants. 

14.	  The Plaintiff’s claims can be divided and addressed into three causes of actions as follows:

 a) incident regarding LLC 007 of 2010

15.	Does the incident of LLC 007 of 2010 in the District Court Chambers of the Magistrates amount to defamation? 

16.	 Mr Kebaya of the Solicitor General’s Office for the State has submitted that the Defendants as Magistrates are immune from the discharge of their duties as Magistrates under Part XII of the District Court’s Act.  Mr Kebaya relies on the case of Chauka v Baing. 

17.	I am of the view that the incident the Plaintiff complaints of does not fall in the discharge of the Defendants duties whilst presiding over matters in Court which would attract immunity. 

18.	The incident the Plaintiff alleges happened in the Chambers of the Chief Magistrate and the Deputy Chief Magistrates in the Port Moresby District Court. To my mind, it appears to be an administrative meeting between the First and Second Defendant and the Plaintiff as to his performance and or carriage of a matter in Court in the LLC 007 of 2010. 

19.	 What is perplexing to my mind is the presence of a litigant a Mr Max Maiago, the Complainant in those proceedings, what was he doing in the Magistrate’s Chambers or within earshot of the meeting between the Plaintiff and his superiors? There is no explanation provided by the Plaintiff. 

20.	 Do the words uttered by the First Defendant in that incident, amount to defamation of character of the Plaintiff? The evidence of the Plaintiff is vague as to the full particulars of that meeting and or any other fact that may go against the Plaintiff. I am of the view that the Plaintiff has only disclosed facts that may go to only support his case and he has not put forth the complete scenario and or facts for the Court to fully assess the nature of the dispute between the Plaintiff and the Defendants and the words uttered by the First Defendant. 

21.	 The Plaintiff has not pleaded in his Statement of Claim a reliance on the Defamation Act but has pleaded slander. The Defendants have not filed a Defence to the claim and the matter has proceeded on to trial on liability. As to whether default judgment should be a consideration at the trial of the matter, this has passed the interlocutory stage as the matter has been set down for a trial on liability therefore the matter will be determined on merits as it is at the trial proper stage.

22.	 What then amounts to a defamation of a person’s character? 

23.	In the case of Wyatt Gallagher Bassett (PNG) Ltd v Diau  the Court said this:

“the Defamation Act (Ch 293) which consolidates the law on defamation protects the rights of individuals to their good reputation. It restates the essential common law principles in statutory form. It is the substantive law of defamation, but without provisions for such matters as procedure, damages or even the absolute protection of Parliamentarians for speeches in the House, the Act is not an exhaustive code in the way that Australian statutes on which it is modelled are said to be codes. Accordingly, where the act is not specific then common law not inconsistent with the Act is relevant. English decisions pursuant to schedule 2.2 of the Second Schedule of the Constitution are therefore authoritative, while Australian decisions and those of other jurisdictions maybe persuasive.

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

24.	 Section 2 and 3 of the Defamation Act define what is a defamatory matter and what is the definition of defamation.  These relevant provisions are:

 2. DEFINITION OF DEFAMATORY 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.
3. DEFINITION OF DEFAMATION.
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.

25.	 The definition of publication in the Defamation Act is:

4. PUBLICATION.
For the purposes of this Act, publication is–
(a) in the case of spoken words or audible sounds, the speaking of those words or making of those sounds in the presence and hearing of a person other than the person defamed; and
(b) in the case of signs, signals or gestures, the making of those signs, signals or gestures so as to be seen or felt by, or otherwise come to the knowledge of, a person other than the person defamed; and
(c) in the case of other defamatory matter–
(i) exhibiting it in public; or
(ii) causing it to be read or seen; or
(iii) showing or delivering it; or
(iv) causing it to be shown or delivered,
with a view to its being read or seen by a person other than the person defamed.

26.	 In the case of Chibelle v Mafu, the Court held that:

“The elements of a cause of action in defamation are that: the defendant made a defamatory imputation of the plaintiff; the defendant published it; and the publication was unlawful in that it was not protected, justified or excused by law (Defamation Act, Sections 5, 24; Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16)”

27.	The elements of the cause of action for defamation were discussed in the Supreme Court case of Lambu v Torato. Whether a matter is defamatory or not or is capable of bearing a defamatory meaning is a question of law.

28.	 I find that the words uttered by the First Defendant in relation to the proceedings LLC 007 of 2010 in the Chambers of the respected Magistrates did not come within the meaning of “publication” within the meaning of the Defamation Act. Section 4 of the Defamation Act therefore requires that the words spoken should be made in the presence and hearing of a person other than the person defamed. It was also not exhibited in public with a view to it being read or seen by a person other than the person defamed. The Plaintiff was present with the First and Second Defendant and there was a discussion about a case that the Plaintiff handled. This discussion happened in the Chambers of the Magistrates at the Port Moresby District Court. To my mind, it was a discussion that happened behind closed doors, or should be taken as a discussion in confidence and privileged which discussed the business of the District Court administratively behind closed doors. There were two District Court Registry staff present and there was the Complainant in the subject case which there is not enough evidence from the Plaintiff to ascertain whether he was actually in the room or outside in the corridor within ear shot of the conversation. 

29.	 I therefore find that the words spoken by the First Defendant as alleged by the Plaintiff in relation to the LLC 007 of 2010 were not published as it does not fall within the meaning of it being ‘published’’ as under the Defamation Act and I dismiss this aspect of the claim.

The letter by Sister Marleen Dewe in relation to CPC 57 of 2009- Allan Aufa & Imala Incorporated Land Group v Catholic Mission Veif’a & Auofor Kuaggu

30.	 The second cause of action identified in the Plaintiff’s claim is that a Sister Marleen Dewe of the Bereina Catholic Parish wrote to the then Chief Justice Sir Arnold Amet on bribery and corruption allegations against the Plaintiff. The Plaintiff claims that these allegations resulted in his suspension and subsequently his demotion and amounted to a breach of the Plaintiff’s Constitutional rights as he was never formally charged. 

31.	 The Plaintiff, therefore, claims a breach of section 41, that his suspension was harsh and oppressive, that he is entitled to the full protection of the law under section 37 of the Constitution and that there was a breach of natural justice in the manner in which he was suspended pursuant to section 59 of the Constitution and he also claims a breach of section 55 of the Constitution for being treated unfairly. 

32.	  The Plaintiff as a consequence has sought unpaid benefits in leave allowances and air fares from the time he was suspended.

33.	 In the Plaintiff’s Affidavit tendered as Exhibit P2, the Plaintiff states that he denies the allegations by Sister Marlene Dewe. On 4 June 2010, the Judicial Legal Services Commission directed the Chief Magistrate to investigate the allegations of bribery and corruption against the Plaintiff in relation to the complainants raised by Sister Dewe.

34.	 On 6 June 2010, the Chief Magistrate then, Mr Jack August complied with the direction for an investigation into the allegations against the Plaintiff and commenced an investigation into the matter.

35.	 On 7 July 2010, the Deputy Chief Magistrate Mr Stephen Oli wrote to the Plaintiff to provide his response to the allegations by 13 July 2010. The Plaintiff responded accordingly and subsequently, he was suspended from office in a letter dated 19 January 2011. The letter from the Chief Magistrate Mr Jack August says that he now has the report into the allegations against the Plaintiff which recommended disciplinary charges to be taken. Mr August also makes reference to briefs from Magistrates Mr Geita and Mr Pupaka, the First and Second Defendants in these proceedings, stating that he is alarmed by the reports of the Plaintiff’s unorthodox and questionable conduct in other cases. I draw the conclusion that this is a reference to the case of LLC 007 of 2010 referred herein. Mr August states further that even after the Plaintiff was directed to cease doing cases pending the completion of the investigations against him, he continued to act contrary to the directive and continued to hear cases. Mr August states that the Plaintiff’s conduct was unacceptable in the Court’s mandate to administer impartial justice and therefore the Plaintiff was to be sidelined for duties. 

36.	 On 12 May 2014, the fifth Defendant wrote to the Plaintiff reinstating him to duties. In the letter by the Fifth Defendant, Ms Eliakim stated that she has decided not to proceed with the disciplinary process as the Plaintiff’s lengthy suspension has caused inconvenience to the State and that the findings of the Investigation Report were not sufficient for appropriate charges to be laid and that another investigation will be difficult considering the length of time involved in the evidence going stale.  The Plaintiff’s suspension was lifted with strict conditions as to his employment. There is an interesting point in the letter by Ms Eliakim that the Plaintiff was cautioned not to entertain in his Chambers at any time any person who is not an employee of the Magisterial Service. I, therefore, draw this conclusion that the Complainant in the LLC 007 of 2010, a Mr Max Maiago was in the Magisterial Chambers when the altercation between the First and Second Defendants and the Plaintiff ensued. The only conclusion to be drawn from this is that the Plaintiff had invited this Complainant to his Chambers and therefore the outburst from the First and Second Defendants. I find that the Plaintiff is not honest and forthright in these proceedings. He has been selective in the evidence he puts before the Court as to only paint a good picture of his case whilst he has not given full disclosure of all matters that the Court should take into account, even matters that exist that go against his case. The Plaintiff was a judicial officer, he should have been cognisant of these matters and of the duty to give full disclosure to the Court. 

37.	 I find that the Plaintiff’s claims for the various breaches of the Constitution to be baseless and without merit and I will dismiss those claims accordingly. The Plaintiff has failed to prove on the balance of probability the claim for breach of constitutional rights and it leaves a lot wanting of the conduct of the Plaintiff in his capacity as a judicial officer then.

Certificates submitted by Plaintiff for adoption of his children

38.	 On 26 January 2015, the Third Defendant as a Legal Officer employed by the Magisterial Service sent to the Clerk of Court of the Central Province District Court an email enquiring on Certificates of Adoption submitted by the Plaintiff to claim for leave airfares for his four adopted children. The Third Defendant raised in his email queries that the Certificates of Adoption submitted by the Plaintiff appear to have handwritten alterations by the Plaintiff himself and raises questions of the possibility of it being fraudulently obtained. The third defendant was therefore enquiring with the Central District Court to verify whether Magistrate Jimmy Tapat as a Magistrate in the Central District Court had granted such orders for customary adoption for the Plaintiff’s children. 

39.	 The Plaintiff however claims that the email by the Third Defendant is defamatory of his character and reputation, that it imputes that the Plaintiff had forged the said Certificates of Adoption, that he is a dishonest person as a Magistrate and that he is a fraudster. 

40.	 I find that the email from the Third Defendant is an email enquiring on the veracity of the Adoption Certificates submitted by the Plaintiff to the Human Resource Division of the Magisterial Service for a claim for airfares over the adoption of the children of the Plaintiff. I find that the contents of that email do not fall within the definition of defamation within sections 2 and 3 of the Defamation Act as the subject of this email is enquiring or investigating the authenticity of the adoption certificates and it was not published to the public as within the meaning of the Defamation Act. The matters complained of also falls short of the elements of a matter to be defamatory as in the Lambu v Torato case. The contents of the email are not defamatory imputations, they are enquiries on the subject matter to the Central District Court. I will therefore dismiss this aspect of the claim.

41.	It follows that the Plaintiff’s entire claim has not been made out and renders these proceedings unsuccessful. 

42.	 I therefore make the following orders:

i)	These proceedings are dismissed in its entirety.
ii)	The Plaintiff shall meet the Defendants’ costs of these proceedings.

Orders accordingly.
_____________________________________________________________	
Kumbari & Associate Lawyers:	 Lawyers for the Plaintiff
Office of the Solicitor General:	Lawyers for the Defendants