Kahorela v Dobbe [2024] PGNC 369; N11040 (15 October 2024)

N11040

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 215 OF 2014 (IECMS) (CC4)

BETWEEN:
MARTIN KAHORELA
Plaintiff

AND:
PETER DOBBE- IN HIS CAPACITY AS MANAGER BISHOP BROTHERS EQUIPMENT HIRE LTD
First Defendant

AND:
BISHOP BROTHERS EQUIPMENT HIRE LIMITED
Second Defendant

Waigani: Coates, J
2024: 15^th October

TORT – Malicious prosecution – identification of defendant/s – proper defendant - public policy – no evidence dismissal.

TORT – Defamation – assertions made – no witnesses identified – dismissal.

Counsel:
Mr Stephen Kuli, for the Plaintiff
Mr Giyomwanauri, for the Defendants

DECISION

14^th August 2024

1. COATES, J: Before the court is an action for malicious prosecution and defamation, the plaintiff seeking monetary damages.
   
2. There are two defendants, Mr Peter Dobbe and Bishop Brothers Equipment Hire Limited, but the original Writ named four defendants, being David Kevin Fenoglio in his capacity as managing director of C & M Engineers Limited (first defendant), C & M Engineers Limited (second defendant), Peter Dobbe in his capacity as the manager of Bishop Brothers Equipment Hire (third defendant) and Bishop Brothers Equipment Hire Limited (fourth defendant).
   
3. The background to the case is that the plaintiff worked for the construction company C and M Engineers Limited (originally named as the second defendant).
   
4. He began work around August 2008 as a driver and plant operator in Port Moresby and resigned on 20 February 2009.
   
5. He said that a month and a half later, on the 3rd of April 2009, he saw an advertisement in Port Moresby's Post Courier newspaper, a copy of which was attached to his affidavit filed on 18 November 2014, under the logo of C&M Engineers, stating: "We wish to advise the general public that Baroa Lakani & Martin Kahorela are no longer employees of C&M engineers Ltd. Any purchase order or business dealings will not be honoured by the company." A telephone number for the company was also published.
   
6. He said the next day, he awoke when three truckloads of men accompanied by Mr Peter Dobbe and escorted by security guards arrived at his mother's house where he was residing.
   
7. He said the men were screaming, abusing him and calling him names using foul language, which I do not need to produce here, but also calling him a conman.
   
8. He said this caused a commotion in the neighbourhood, and everybody rushed out to see what the noise was about. For this action, he did not identify any person he claimed to have rushed to see what the noise was.
   
9. He said he walked down to the road to see what the noise was about, and Mr Peter Dobbe, who did not introduce himself, said he must return the machinery he had stolen from Bishop Brother's hire division.
   
10. He said Mr Dobbe held papers in his hand and said it was evidence, although he was not shown the documents.
    
11. Apparently, they were false purchase orders for equipment hire from Bishop Brothers Hire Limited by C & M Engineers.
    
12. He said he did not present purchase orders to Bishop Brothers Hire Limited or steal equipment from the firm.
    
13. He said Mr Dobbe called him a thief in front of everyone present, but I stress, that he did not identify anyone present other than in general terms of three truckloads of workers, family and neighbours.
    
14. He said he went to Bishop Brothers Hire Limited to say he had not stolen anything, and he said Mr Dobbe said it was now in the hands of police.
    
15. On 24 June 2009, the plaintiff was arrested and charged with three counts of obtaining goods worth K60,258 (a plate compactor, two wacker packers and a water blaster) by false pretence and faced trial, and was acquitted on 26 October 2012.
    
16. The trial judge found that the offences had occurred, but that proof that the plaintiff was the thief was not evident.
    
17. The plaintiff gave much evidence in this proceeding of the distress and the cost to him and his health for the three years the prosecution was lingering over him, and he now says such was a malicious prosecution and defamation of his good name, as he had no previous convictions.
    
18. There is no reason why evidence of such distress would not be accepted, although in the manner the case was run, it was not an issue that needed to be determined in relation to damages.
    
19. During case management, it became clear that Mr Fenolglio and C & M Engineering were parties who could no longer be contacted, leaving only Mr Dobbe and Bishop Brothers Hire Limited.
    
20. On 8 August 2024, leave was granted to remove Mr Fenolglio and C & M as parties.
    
21. That should have been when the plaintiff's evidence needed to be assessed, by the plaintiff, as to parties required to prove both malicious prosecution and defamation.
    
22. On the day of trial, 1 October 2024, Mr Dobbe did not appear and the court was told that his former lawyers, the Public Solicitor's office, lost contact with him two years ago. It appears that he may have left the country, but in any case, he could not be secured for the trial against him.
    
23. That left Bishop Brothers Hire Limited as the only defendant.
    
24. That should have been the second time when the plaintiff's evidence needed to be assessed, by the plaintiff on advice from his lawyer, as to what was being claimed and how he was going to discharge his onus of proving his claims, given that Bishop Brothers in its defence stated that police conducted investigations and arrested the plaintiff as a consequence of their investigations.
    
25. It was akin to claiming there was no case to answer. I will come back to this aspect of the case.
    
26. The basis of the plaintiff's claim is seen in paragraph 18 and 19 of his Amended Statement of Claim filed 15 June 2014, at the time when the defendants, in order were: first defendant - David Kevin Fenoglio, second defendant C & M Engineers, third defendant Peter Dobbe and fourth defendant Bishop Brothers Hire Limited. His case actually required all the defendants to be present before the court in the manner the case was run, especially Mr Fenoglio and Mr Dobbe, because they were the people he named as being capable of being tested in cross-examination. The companies could not be so tested on the case presented.
    
27. As to malicious prosecution, the plaintiff claimed that C & M Engineers and Bishop Brothers Engineers, through and with Mr Fenoglio and Mr Dobbe were responsible for the malicious prosecution by failing to identify him as the thief, failing to withdraw a complaint to the police and failing to withdraw criminal proceedings from the court. This is a difficult position to argue since the roles of Fenoglio and Mr Dobbe were not referred to in submissions – an important segment of the trial process to have the court consider how the law should be applied to the facts.
    
28. As to defamation, the plaintiff claimed that allegations that he was a thief became public knowledge because C & M Engineers and Bishop Brothers Hire Limited conducted what were called investigations through Mr Fenoglio and Mr Dobbe. His name became public when offences were reported to the police. He also said there was publicity from the offices of C & M Engineers and Bishop Brothers Hire Limited and the defendants brought the knowledge of the allegations to his immediate family members, friends and associates.
    
29. The reason that the case should have been reassessed is that there was no person before the court to cross-examine, or in other words test, other than the company Bishop Brothers Hire Limited whose culpability was said to be vicarious. There were also no witnesses to support the plaintiff's case other than the plaintiff confirming his assertions.
    
30. Bishop Brothers Hire Limited made it clear it was not calling evidence, thus, my comment earlier that their defence was akin to a no case to answer. There were no submissions on that aspect by the plaintiff, although submissions were made on behalf of Bishop Brothers Hire Limited in terms that there was no evidence against it.
    
31. As I stated, the allegations were made while there were four defendants, and while the plaintiff was asked in the witness box whether he had any amendments to make to the materials he put before the court, he answered no.
    
32. That made it a little difficult to follow his case, but in extending absolute fairness in hearing his matter, I attempted to follow the plaintiff's case, realising that he probably did not consider that amendments would have assisted the court immensely. It should have occurred to his lawyer.
    
33. Both parties, in written submissions referred to cases and the elements required to prove malicious prosecution and defamation.
    
34. I will not repeat them here as there was no real dispute that what was submitted did not represent the law to be considered as to these matters.
    
35. As to a malicious prosecution, such is a prosecution which should not have taken place for whatever reason, with insufficient evidence of any particular offence a person is charged with, resulting in a lack of cogent and admissible facts which would go to maliciousness.
    
36. The basis of the plaintiff's case is that when it was apparent that items had been stolen through false invoices being presented to Bishop Brothers, he was blamed by staff members, and C & M sent his photograph to Bishop Brothers and an advertisement was placed in Port Moresby's Post Courier newspaper stating that the plaintiff no longer worked for H & M Engineers and invoices would not be honoured. The advertisement did not make an accusation but is relied on as defamation by inference.
    
37. As to the photographs, whether that was either a malicious act or a defamatory act is not the immediate issue – the issue is that Bishop Brothers received them only, and there is no evidence that the firm circulated them to the general public. If they were part of the information given to police, that then becomes an evidential issue for police as police investigated an offence allegedly committed.
    
38. Whoever formed the view that the plaintiff was the thief and distributed the photographs, and on the plaintiff's case Peter Dobbe may have given photographs to staff, that cannot be a cause of action against Bishop Brothers Hire Limited by way of vicarious liability for either malicious prosecution or defamation as particulars of what occurred are not known.
    
39. As I stated, without parties, cases cannot be tested and simply that parties do not appear does not automatically result in them being held responsible for a claim against them.
    
40. The other issue of course, is that distribution of the plaintiff's photograph must be shown in the evidence to be a defamatory act, that is, in general terms, lowering his character in the eyes of the public. There is no evidence of that, just mere assertion.
    
41. As to the advertisement, that was placed by H & M Engineers, not Bishop Brothers Hire Limited, and Bishop Brothers cannot be held culpable for that act.
    
42. The plaintiff claims that the defendants left in this matter, Mr Peter Dobbe and Bishop Brothers Hire Limited, were responsible for the malicious prosecution because they failed to identify him as the thief, failed to withdraw their complaint and failed to withdraw the criminal proceedings.
    
43. The plaintiff was questioned about not identifying people or calling witnesses on specific issues in this matter but that he relied on general statements referring to groups of people. I accept that he did not adequately identify people or call them to prove maliciousness or defamation, but his claim that the remaining defendants are answerable needs assessment.
    
44. When an offence occurs, some type of assessment occurs initially, and whether that is called an investigation or not matters little, but once a person is satisfied that an offence has occurred, they become a complainant when they report the offence to the police.
    
45. They are questioned by police and their sworn statements are taken.
    
46. The statements contain factual matters they can give evidence of, not opinions which would only be admissible in extremely limited circumstances, none of which were apparent in this case.
    
47. Any opinion they may express, for example, as to a culprit, where such is not an eye-witness account, is not evidence, but it is information police may act upon.
    
48. That Mr Dobbe may have reported the plaintiff to police, and that is not certain, would only have been his opinion and police are entitled to pursue lines of investigations as to evidence.
    
49. After the complaint is made, the complainant does not control the investigation.
    
50. The plaintiff was questioned about his attendance at the police station and confirmed he saw statements by a complainant or complainants.
    
51. He did not make their identity available to this court by way of sworn evidence, and that is why I stated above that the court does not know that Mr Dobbe was the complainant.
    
52. While the court was taken to the written criminal judgement on a singular point, the plaintiff's lawyer did not use the opportunity to point to any evidence Mr Dobbe as the complainant may have given. The plaintiff exhibited the judgement to his affidavit. Mr Dobbe is not recorded as giving evidence in the criminal trial in 2012.
    
53. It is not up to a complainant to withdraw a charge before a court, and it is not known if in fact Mr Dobbe was the complainant, but assumably the complaint laid said false invoices were presented by someone and goods handed over had disappeared.
    
54. It is up to the prosecutorial authorities to assess the evidence, in fact, they have a duty to do so, and formally discontinue a prosecution not supported by evidence.
    
55. Before trial, prosecutorial evidence needs to reach that point, untested, which, if accepted, could properly support a guilty verdict.
    
56. Further, if it does not, and I have already referred to the criminal judgment where the trial judge found that offences had occurred but that the prosecution could not prove it was the plaintiff, then any malicious prosecution is on the shoulders of prosecutorial authorities and the State, not as claimed here, on the defendant.
    
57. I was told that the plaintiff did not bring any claim against the prosecution or the State within the limitation time after acquittal and launched these proceedings against the defendants two years after being acquitted.
    
58. There is also an important question of public policy involved in assessing whether a prosecution is malicious or not, and that is that an acquittal does not mean that a prosecution was malicious.
    
59. If that were the test, all acquittals would mean that the prosecutions were malicious.
    
60. Each case must be taken on its merits as to whether the elements of a malicious prosecution – especially the element that proceedings were instituted without reasonable cause and maliciously – and the vast majority of criminal acquittals are not accompanied with such allegations.
    
61. As to defamation, as I stated, I have no doubt that, at least the words spoken when three truckloads of workers arrived outside the plaintiff's house that he was a thief, were words which could lower his reputation in the public.
    
62. However, here is the problem for the plaintiff on this issue.
    
63. Firstly, he produced no witnesses who could possibly support his claim that he was defamed, that is, that his reputation was lowered in the public realm.
    
64. His family and friends did not come forward to say that while he faced false pretence charges they would have nothing to do with him or thought less of him.
    
65. Nor did he produce evidence that members of the public took the same view, for example, by rejection of job applications, despite claiming that he had been unable to get a job because of the criminal proceedings.
    
66. That he stated that should have been the queue that he needed to have a possible employer give evidence that he was shunning and avoiding him and did not trust him because of the criminal proceedings.
    
67. Without such evidence, he makes a mere assertion without proof.
    
68. His claim that three truckloads of unidentified workers accompanied by Mr Dobbe shouting insults does not identify members of the general public, but in the circumstances, appear to be mere agents of defendants, either Mr Fengolio or Mr Dobbe, who may be bent on intimidation, but if so, that is far removed from the malicious prosecution or defamation claimed.
    
69. The proof of defamation is evidence, either direct or by circumstances, whereby a person can prove that their reputation is such that it is lowered in the public forum or that it is such that people shun or avoid him.
    
70. Without such evidence, the claim must fail because it is the basic element of what has to be proved.
    
71. Further, that the defendant Bishop Brothers Hire Limited could be the cause of such defamation through vicarious liability is a long stretch, especially when it became clear to the plaintiff's lawyers that he could not secure the three other defendants, robbing him of opportunity to put necessary questions to them to prove his claims.
    
72. As I stated, when it became clear, at least on the day of trial, that Mr Peter Dobbe could not be found, the basis of the plaintiff's claim, if he had one, disappeared.
    
73. Although named as the first defendant who did not appear, I am not in a position to make findings against Mr Dobbe because of the paucity of the evidence generally. Nor was I asked to do so in oral submissions.
    
74. It is unfortunate for the plaintiff that the three defendants, but especially Mr Fenoglio and Mr Dobbe, could not be located, as they are the people who could have been in the position of answering relevant questions, their answers becoming evidence perhaps supporting the plaintiff.
    
75. Finally, I need to say that when defamation is claimed, the onus falls on the defendants to prove that they did not defame the plaintiff. In the manner the case was run, and with Bishop Brothers Hire Limited running a case akin to having no case to answer – which I accept – the company is wrongly named as a defendant in both matters.
    
76. In summary, the plaintiff's case fails because there was insufficient evidence to support either claim, in that he called no witnesses, failed to particularise vital elements going to maliciousness and defamation, failed to prove his case by circumstances and failed to give cogent submissions on how the law was to be applied to the evidence before the court.
    
77. Consequently, I will dismiss both cases.
    
78. I was asked to make a costs order, and I will. The matter should have been discontinued, at least on the day of trial when it was clear that the first defendant would not be appearing.

ORDERS

79. The claims for malicious prosecution and defamation stated in the Amended Writ of Summons filed 15 June 2014, are dismissed.
    
80. The Plaintiff pay the costs of Bishop Brothers Hire Limited on a party-party basis as agreed or as taxed.

________________________________________________________________
Public Solicitor: Lawyer for the Plaintiff
Young & Williams Lawyers: Lawyers for the Defendants