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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA. NO. 161 OF 2009
BETWEEN:
CYRIL MUDALIGE,
ACTING PRINCIPAL SHIPS SURVEYOR & SAFETY OFFICER
Appellant
AND:
RABAUL SHIPPING LIMITED
First Respondent
AND:
PETER ROBERT SHARP
Second Respondent
Waigani: Davani J, David and Sawong, JJ.
2010: 26 October
2011: 2nd September:
DECISION
DEFAMATION – Defences – Fair comment – Truth – Qualified privilege: Publication made in good faith for the public benefit – Defamation Act (Ch. No. 293), Section 9 (1)(b), Section 10, Section 11(1)(h).
Facts
In November 2002, the first respondent purchased a 30 year old steel vessel MV Morobe Queen in Japan and sought provisional registration from the Papua New Guinea Shipping Registry. In response, the Appellant wrote to the relevant Japanese authorities saying inter alia and concerning the respondents that "the owners had very bad records in maintaining vessels...this authority is short of surveyors to survey such vessels...It is requested ...Inspector in Hiroshima to check and verify condition of the vessel before it departs Japan..."
The respondents claim that this was defamatory of them. In the proceedings, the defendants claim defences of fair comment under Section 9(1)(b), of truth under Section 10 and that although the statements were prime facie defamatory, the statements were privileged under Section 11(qualified privilege) of the Defamation Act.
The trial judge found these statements prime facie defamatory of the respondents and found that the statutory defences of fair comment, truth and privilege were not proved by the appellants. The appellants have appealed against that finding of liability.
Held:
Cases Cited:
Papua New Guinea Cases:
David Lambu v Paul Paken Torato (2008) SC593
Henzy Yakam v Steward Hamilton Merriam and Carol Merriam (No.2) (1999) SC 617
PNG Aviation Services Pty Ltd v Sir Michael Somare [1996] PGNC 62; N1493
Rimink Pato v Umbu Pupu [1986] PNGLR
Wyatt Gallagher Bassett (PNG) Ltd v Diau [2002] PNGLR 51
Overseas Cases Cited
Adam v Ward [1916-17] All ER Rep 159
Eyre v New Zealand Press Association Ltd [1978] NZLR 736
London Artist Ltd v Littler [1968] 1 WLR 607
Pullman & Anor v Walter Hill & Co Ltd [1890] UKLawRpKQB 193; (1891) 1 QB 524
Watt v Longsdon [1930] 1 KB 130
Text referred to:
Gatley on Libel and Slander (8th Ed. 1981)
Supreme Court Practice 1985
The Law of Defamation in Australia and New Zealand
Statutes
Defamation Act (Ch. No. 293).
Counsel:
Mr Keith Iduhu, for the Appellant
Ms Jacqueline Marubu, for the Respondents
2nd September, 2011
Background
(pgs.202 to 204 of Appeal Book).
Grounds of appeal
Analysis of evidence and the law
"As for defamation, the elements required to sustain a cause of action are that:
Issues
(i) Whether or not in the exercise of his discretion, His Honour the trial judge should have;
- (a) independently considered the first appellants evidence more carefully when considering the Defence of Truth independent of his conclusion in the Defence of fair comment;
- (b) disregarded the respondents contentions of malice in the absence of proper pleadings in the form of a Reply.
"85. Protection, justification and excuse
A defendant shall specifically plead any defence of protection, justification or excuse of law."
"86. Particulars of Defence
(1) Where a defendant pleads fair comment (whether by way of rolled – up plea or otherwise), the particulars required by rule 29 shall include –
- (a) if, as the basis or part of the basis for the comment, he relies on facts not stated in the matter complained of – particulars stating those facts; and
- (b) if, as the basis or part of the basis for the comment, he relies on facts stated in the matter complained of - particulars stating which words in the matter complained of, he alleges are statements of fact and on which of those alleged statements he so relies; and
- (c) particulars of the facts and matters on which he relies to establish the truth of the facts on which he relies as the basis for the comment.
(2) Where a defendant pleads truth and public benefit, the powers of the Court under rule 36 shall extend to orders in relation to particulars of the facts and matters on which he relies to establish –
- (a) that the publication was made for the public benefit; and
- (b) that the matter complained of was true."
"8. Protection: reports of matters of public interest
(1) In this section, "public meeting" means a meeting lawfully held for a lawful purpose, and for –
- (a) the furtherance or discussion in good faith of a matter of public concern; or
- (b) the advocacy of the candidature of a person for a public office, whether admission to the meeting is open or restricted.
(2) For the purposes of this Act, it is lawful to publish in good faith for the information of the public –
- (a) a fair report of the proceedings of the Parliament or of a Committee of the Parliament; or
- (b) a copy of, or an extract from or abstract of, a paper published by order of or under the authority of the Parliament; or
- (c) a fair report of the public proceedings of a court, whether the proceedings are preliminary, interlocutory or final, or of the result of any such proceedings, unless –
(i) in the case of proceedings that are not final – the publication has been prohibited by the court; or
(ii) in any case – the matter published is blasphemous or obscene, or publication is prohibited by law; or
(d) a fair report of the proceedings of an inquiry held under a law, or by or under the authority of the Head of State, acting on advice, or an extract from or abstract of any such proceedings, or a copy of, or an extract from or abstract of, an official report made by the person by whom the inquiry was held, or
(e) at the request of –
- (i) a Department of the Public Service; or
- (ii) a prescribed instrumentality of the Government; or
- (iii) a commissioned officer of the Police Force,
a notice or report issued by the Department, instrumentality or officer for the information of the public; or
(f) a fair report of the proceedings of a local authority, board or body of trustees or other persons, duly constituted under a law, or by or under the authority of the Head of State, acting on advice, for the discharge of public concern; or
(g) a fair report of the proceedings of a public meeting, so far as the matter published relates to matters of public concern.
(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.
(4) In the case of a publication of a report of the proceedings of a public meeting in a periodical, it is evidence of want of good faith for the purposes of this Act if the proprietor, publisher or editor has been requested by the person defamed to publish in the periodical a reasonable letter or statement by way of contradiction or explanation of the defamatory matter, and has refused or neglected to published it."
27. Section 9 of the Defamation Act 1962 provides for the Defence of fair comment. It reads;
"9. Protection: fair comment
(1) For the purposes of this Act, it is lawful to publish a fair comment –
- (a) respecting any of the matters with respect to which the publication of a fair report in good faith for the information of the public is declared to be lawful by Section 8; or
- (b) respecting –
- (i) the public conduct of a person who takes part in public affairs; or
- (ii) the character of any such person, so far as his character appears in that conduct; or
- (c) respecting –
- (i) the conduct of a public officer or public servant in the discharge of his public functions; or
- (ii) the character of any such person, so far as his character appears in that conduct; or
- (d) respecting –
- (i) the merits of a case, civil or criminal, that has been decided by a court; or
- (ii) the conduct of a person as a Judge, magistrate, party, witness, lawyer or officer of the court, in any such case; or
- (iii) the character of any such person, so far as his character appears in that conduct; or
- (e) respecting –
- (i) a published book or other literary production; or
- (ii) the character of the author, so far as his character appears by the book or production; or
- (f) respecting –
- (i) a composition or work of art or performance publicly exhibited; or
- (ii) the character of the author or a performer or exhibitor, so far as his character appears from the matter exhibited; or
- (g) respecting –
(i) any public entertainment or sports; or
(ii) the character of a person conducting or taking part in any public entertainment or sports, so far as his character from the matter or the manner of conducting the entertainment or sports; or
(h) respecting a communication made to the public.
(2) Whether a comment is or is not fair within the meaning of this Act is a question of fact.
(3) If a comment is not fair, and is defamatory, the publication of it is unlawful."
28. The Defence of Truth is set out in s.10 of the Defamation Act 1962 chapter 293. It reads;
"10. Protection: Truth
(c) For the purposes of this Act, 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."
"11. Qualified protection: excuse
(1) 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 –
- (a) by a person having lawful authority over another in the course of a censure passed by him on the conduct of the other person in matters to which the lawful authority relates; or
- (b) for the purpose of seeking remedy or redress from some private or public wrong or grievance from a person who has, or whom the person making the publication believes on reasonable grounds to have, authority over the person defamed with respect to the subject matter of the wrong or grievance; or
- (c) for the protection of the interest of the person making the publication or of some other person, or for the public good; or
- (d) in answer to an inquiry made of the person making the publication relating to a subject as to which the person by whom or on whose behalf the inquiry is made has, or is believed on reasonable grounds by the person making the publication to have, an interests in knowing truth; or
- (e) for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has or is believed on reasonable grounds by the person making the publication to have, such an interest in knowing the truth as to make his conduct in making the publication reasonable under the circumstances; or
- (f) on the invitation or challenge, express or implied, of the person defamed; or
- (g) in order to answer or refute some other defamatory matter published by the person defamed concerning the person making the publication or some other person; or
- (h) if 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.
(2) For the purpose 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
- (i) does not believe the defamatory matter to be untrue."
"12. Good faith
Where a question arises as to whether a publication of defamatory matter was or was not made in good faith, and it appears that the publication was made in circumstances that would afford lawful excuse for the publication if it was made in good faith, the burden of proof of the absence of good faith is on the party alleging the absence."
(i) Defence of truth
(my emphasis)
"MV MOROBE QUEEN/KOFUJU MARU 25
Above vessel is reportedly purchased by PNG ship owner and is in the process of bringing same to the country.
We had asked him to class the vessel before he bring it to this country due to:-
Owner has disagreed on our advice. It is requested to advise the Port State Control Inspector in Hiroshima to check and verify the condition of the vessel before it departs Japan. Owner has not produced thickness gauging of the vessel or last dry dock report.
Expecting your fullest co-operation in this regard.
(Signed)
CYRIL MUDALIGE
A/Principal Ships Surveyor
& Safety Officer."
"It is the imputation contained in the words which has to be justified, not the literal truth of the words, nor some other similar charges not contained in the words."
"In England, it is a complete answer to a civil action that the defamatory matter complained of was true. The reason upon which this rule of law rests, as I understand, is that, as the object of civil proceedings is to clear the character of the plaintiff, no wrong is done to him by telling the truth about him. The presumption is that, by telling the truth about a man, his reputation is not lowered beyond its proper level, but is merely brought down to it...".
(my emphasis)
"...my knowledge and experience in this field, and also with the general knowledge in maritime field, that a vessel's life up to 30 years and above, the cost of maintaining grows rapidly as it deteriorates, the hull condition of the vessel rapidly. That is why we were deciding this about 30 years old. About or during Mr. Frank Wales 10 year of service, vessels were brought to the country only – he was allowing only 15, 20 years old.
...
At that time due to the country's economical situation, the country and the industry and also request from Mr. Sharp, we decided that we must get the bar lowered to a level where it is comfortable for ship owners. And that is why and had no other reason. So, yes, had that vessel been 20 years old for that, for example, we would not have queried anything. We would just say, please come. Because of the fact that the age of the vessel after 30 years deteriorates so fast that its element of risk is there."
(See pgs.341 and 342 of Appeal Book and pgs.33 and 34 of National Court Transcript of proceedings).
"Q: ...So your letter of 26th November 2002, in light of those purchases did not have a negative impact or did it?
A: No, not to my knowledge.
Q: Thank you. And when writing the letter, obviously in your line of work, you are a professional seaman. Is it true that your principle concern is the safety of crew.
A: Yes, safety of the passengers and crew.
...
Q: ...Mr. Mudalige, what was the objective of this letter of 26 November to the Japanese authority? What did you want to achieve?
A: The only thing I want to achieve is to avoid disasters on passengers. That is all and nothing else. And I have no malice against Mr. Sharp and that is all I can say.
Q: So based on these reports and these other incidents of these other ships, did you honestly believe in the substance of what you wrote?
A: Yes I do believe and by doing that, I find that the standard of Mr. Sharp's fleet especially passenger fleet has increased. This is what we want. And that is why – although I had traumatic situations, my conscious was clear. I was very happy with what has transpired and after that many improvements have been done for the ships and its operations."
(my emphasis)
(See pgs.344 and 345 of the Appeal Book and pgs.36 and 37 of the National Court Transcript of proceedings).
(ii) Defence of Fair Comment
(iii) Qualified protection: excuse
Malice
"87. Pleading and particulars; Want of good faith
Where a plaintiff intends to meet any defence by alleging that the publication of the matter complained of was not in good faith –
(a) the plaintiff shall plead that allegation by way of reply; and
(b) the particulars required by Rule 29 in relation to the reply shall include particulars of the facts and matters from which the absence of good faith is to be inferred."
"But if the libel or slander is published without lawful excuse the law conclusively presumes that the publisher is actuated by that malice which gives the injured party a cause of action and accordingly (notwithstanding O.18 R.12(1)(b)) the plaintiff need not give particulars of the facts on which he relies in support of the allegations of malice. This is sometimes called "Malice in law". But if there is a lawful excuse for the publication (as for example, where it is an occasion of qualified privilege) by which the inference of law is prima facie rebutted, the onus is thrown upon the plaintiff of proving the existence as a fact of the malice necessary to maintain the action. The latter is sometimes called "malice in fact" or "express malice" (see e.g Harris v. Arnott (No.2) (1890) 26 L.R. lr p.75; Jones V Hutton [1909] UKLawRpAC 57; [1909] 2 K.B 444 p.477) and the plaintiff must serve a Reply pleading malice and giving the particulars referred to in para.3 of this rule. The effect of malice in relation to a defence of a qualified privilege, for comment which may be fair in the mouth of one person may be actionable if published by a person actuated by malice (Thomas v Bradbury & Agnew Ltd [1906] UKLawRpKQB 98; [1906] 2 K.B. 627)".
(my emphasis)
"31. Condition of mind
(1) A party pleading any condition of mind shall give particulars of the facts on which he relies.
(2) In Subrule (1), "condition of mind" includes any order or disability of mind, any malice and any fraudulent intention, but does not include knowledge."
(my emphasis)
62. Obviously, O.8 R.31 and O.8 R.87 of the NCR must both be read together in this instance. Any Trial Court should not venture into consideration of "malice" if it is not before it as "malice in fact" or "malice in law", either as specific pleading in a Statement of Claim or in a Reply.
63. I find the trial judge erred in both law and fact when he held that the appellant's actions were actuated by malice.
Conclusion
Formal Orders
66. DAVID, J: I have had the opportunity to peruse the draft judgments and reasons for decision by both Her Honour Davani .J and Sawong .J. I agree with the conclusion reached and the reasons for this, and have nothing further to add.
67. SAWONG, J: This is an appeal against the decision of the National Court sitting at Kokopo on 23rd October, 2009 which found the appellants liable for defamation.
68. The first appellant Mr. Mudalige is the acting principle ships surveyor and safety officer with the Department of Transport and Civil Aviation's Maritime Division. The second appellant is the State who employed the first appellant.
69. The first respondent is a company duly registered under the Companies Act 1997 and carries on business in the shipping industry by operating a number of passenger and cargo vessels in Papua New Guinea. The second respondent is the Managing Director of the first respondent.
70. They sued the defendants for an alleged defamatory statement made by the first appellant and published in a letter to the Ministry of Land Infrastructure and Transport in Japan. This letter is dated 26th November, 2002.
71. Prior to the 26th of November, 2002, the appellants learnt that the first respondent was purchasing a vessel named MV Morobe Queen formerly known as Kofuju Maru 25. They asked the second respondent to class the vessel before bringing it back to Papua New Guinea. The appellants request was impossible to comply with because the vessel was over 30 years old and if it was not classed, it would not be able to sail out of Japan under Papua New Guinean registration.
72. On 26th November, 2002, the first appellant in his capacity as acting Principal Ships Surveyor and Safety Inspector within the Department of Transport and Civil Aviations Maritime Division wrote the subject letter to the Japanese Ministry of Land, Infrastructure and Transports Maritime Bureau to seek its assistance in conducting an inspection, verification and certification with regards to its sea worthiness before it departed Japan for Papua New Guinea. The subject letter is the centre of the controversy between the parties in this action and is set out below in his entirety. It reads:
"MV MOROBE QUEEN/KOFUJU MARU 25:-
Above vessel is reportedly purchased by PNG Ship owner and is in the process of bringing same to the country.
We have asked him to class the vessel before he brings it to this country to:
Owner has disagreed on our advice. It is requested to advise the Port State Control Inspector in Hiroshima to check and verify the condition of the vessel before it departs Japan. Owner has not produced thickness gauging of the vessel or last dry dock report. Expecting your fullest cooperation in this regard. Signed Cyril Mudalige a/forward Principal Ships Surveyor and Safety Officer".
73. Paragraph 2.2 of the letter is the most contested of all. In the National Court the respondents said that because the statement carried the following imputation which were said to be defamatory. First that the plaintiffs had a very bad history of operating unsafe vessels, secondly that they had endangered lives of their employees and passengers by failing to maintain their vessels in a safe condition and thirdly, that they were reprehensible ship owners against whom the Japanese Authorities should take action and finally, that they proposed to sail from Japan to Papua New Guinea the MV Morobe Queen, knowing it to be unsafe thereby endangering its crew.
74. In their defense, the appellants claimed that the statement made in the letter was a fair comment, justified, truth and for public good, in that they were true and represented the character and the style of business operations of the plaintiffs. The appellants defended their statements based on certain defences provided in the Defamation Act (Ch. No. 293) namely, fair comment, truth and qualified privilege. However, the Trial Judge found that these defences were not proven by the appellants and found them liable for defamation. They have now appealed against this decision.
The grounds of appeal
75. There are two grounds of appeal and I set them out below in full:
(1) In respect of the Defence of Truth, the learned trial judge erred:
- (a) In fact and in law in finding that there was no evidence establishing the statement complained of as "fact" when there was sufficient evidence to substantiate or alternatively reasonably infer the truth of the appellant's statement that the respondents "had a very bad record in maintaining vessels."
- (b) In his application of the law in omitting to consider the Appellant's submissions in respect of the Defence of Truth independent of the arguments raised in support of the Defence of Fair Comment and in effect wrongly holding that the former was dependent upon the latter, thereby failing outright to consider the Defence of Truth on its own merits.
(2) In respect of the Defence of Qualified Privilege: Excuse, the learned trial judge erred in fact and law in finding that:
- (a) there was no factual foundation or basis for the appellant's "allegations" when he was required to and ought to have merely ascertained whether the appellant was acting upon an honest and reasonable belief that the subject of the publication was true and necessary for the purposes of addressing a public interest or good; and
- (b) the statement made by the appellant had been by malice made notwithstanding that the respondents had failed procedurally to file and serve the prerequisite Reply pleading particulars of the facts and matters from which the malice ought to have been inferred thereby pre-empting the appellant from adequately responding to any allegations of malice.
76. The grounds of appeal raised issues of law and facts. The principles governing the appalled court's power to review findings of fact made by the trial judge in a defamation case are found in a decision of this court in Rimbink Pato –v- Umbu Pupu [1986] PNGLR 3110 which was referred to in Henzy Yakam –v- Steward Merriam (1999) SC 617.
77. The grounds of appeal raised two essential issues. It appears to me that the only issue before the trial judge and before me is whether any of the defences raised at the trial were proved. I therefore posed the question as follows were the defenses of fair comment, truth or qualified privilege made out by the appellants.
78. I deal with ground 2 of the Notice of Appeal first for reasons that will become obvious. Ground 2 of the appeal is directed at the trial judge's rejection of the defense of qualified privilege under Section 11 of the Defamation Act No. 293.
79. Section 11 reads:
"Qualified Protection – Excuse
(1) 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:-
- (a) by a person having lawful authority over another in the course of a censure passed by him on the conduct of the other person in matters to which the lawful authority relates; or
- (b) for the purposes of seeking remedy or redress for some private or public wrong or grievance from a person who has, or whom the person making the publication believes on reasonable grounds to have, authority over the person defamed with respect to the subject-matter of the wrong or grievance, or
- (c) for the protection of the interests of the person making the publication or of some other person or for the public good; or
- (d) in answer to an inquiry made of the person making the publication relating to a subject as to which the person by whom or on whose behalf the inquiry is made has, or is believed on reasonable grounds by the person making the publication to have, an interest in knowing the truth; or
- (e) for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed on reasonable grounds by the person making the publication to have, such an interest in knowing the truth as to make his conduct in making the publication reasonable under the circumstances; or
- (f) on the invitation or challenge, express or implied, of the person defamed; or
- (g) in order to answer or refute some other defamatory matter published by the person defamed concerning the person making the publication or some other person; or
- (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.
(2) 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 the defamatory matter; and
(b) if the manner and extent of the publication and 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."
80. The leading authority of this defence is the Supreme Court decision in Henzy Yakam & others v Stuart Merriam & others (1999) SC 617. Therefore the Court said at pp: 17 -19.
"c). Qualified excuse: Statements made in Good faith for the public good (S.11 (1)(h).
The nature of the defence of qualified excuse or privilege under S. 11(1)(h) is succinctly summarized by Sheehan J in PNG Aviation Services Pty Ltd –v- Sir Michael Somare [1996] N1493 at p.29:
"It is for a Defendant to prove that the publication was made on a protected occasion and that the duty or interest relied on by the defamation excuse not just any publication he might make by the specific publication activities made. If the occasion is privilege or protected then prima faces any defamatory statements are excused.
"The first task of the Court is to determine whether publication was made on such a protected occasion. This is largely a question of law, and what is actually said or the truth of it will not usually be relevant in determining whether the occasion was one of qualified protection.....But consideration of the facts and circumstances of publication including some which are also aspects of good faith, such a relevance or extent may also be necessary to determine if the occasion is protected.
Essentially the Court upon deciding such facts as may be necessary, must decide whether an occasion carries protection or not, before proceedings to consider the challenge of lack of good faith. Such a procedure follows the common law and the intent of section 11."
At the outset we consider that the trial judge failed to consider the first issue of whether the occasion was privileged.
This is a fundamental error. This error alone is sufficient to overturn the verdict but for purpose of clarity of the law on the subject of qualified protection or privilege, we will discuss the subject in some detail. (my emphasis).
In order for the occasion to be privileged, the communication must be made in pursuance of a duty or on a matter in which there was a common interest in the party making and the party receiving the communication: Adam –v-Ward [1916 -17] ALL E. R Rep. 157 at 162. Whether the communication is made in pursuance of a duty, the duty may be "legal, social or moral duty, to communicate it to the general public and it is the interest of the public that the publication should be made": London Artist Ltd –v-Littler [1968] 1 W.L.R 607 to 619. Where the duty is legal, it is not difficult to ascertain and this means the judges must do the best he can. As Scrutton L. J said in Watt –v- Longsdon [1930] 1 K.B 130 at 144:
"Also to legal duty, the judge should have no difficulty; the judge should know the law; but as to moral or social duties of imperfect obligation, the task is far more troublesome. The judge has no evidence as to the view the community takes moral or social duties. All the help the Court of Appeal can give him is contained in the judgment of Lindley L. J. in Stuart v. Bell [1891] 2Q.B. 341, 350:
'The question of moral or social being for the judge, each judge must decide it as best he can for himself. I take moral or social duty to mean a duty recognized by English people or ordinary intelligence and moral, principle, but at the same time not a duty enforceable by legal proceedings, whether civil or criminal, 'Is the judge merely to give his own view of moral and social duty, though he thinks a considerable portion of the community hold a difference opinion? Or is he to endeavour to ascertain what view 'the great mass of right- minded men' would take? It is not surprising that with such a standard both judges can be drawn. The judge must, accordingly, do his best in the light of such evidence as he has, coupled with his own views as to what the defendant's duties, moral or social, were in the circumstances."...
Where the communication is made on a matter in which there was a common interest in the party making and the party receiving the communication, it is often said that there exists a community of interest between government officials and press to communicate information or public interest to the public and a reciprocal interest in the public to receive that information.
Similar views are expressed by McGregor J in Eyre-v-New Zealand Press Association Ltd [1978] N.Z.L.R 736at 740 in these words:
"In determining what is a privileged occasion all the circumstances under which publication is made need to be considered for the purpose of determining whether privilege attaches or not (London Association for Protection of Trade-v- Greelands Ltd [1908] UKLawRpAC 38; [1908] A.C. 390; [1908-10] ALL E.A Rep; 164). It is necessary that it should be shown that both the givers and receivers of the defamatory information as a matter of public policy in the general interests of the whole community that it should be made with impunity notwithstanding its defamatory nature (Ardreyevich –v-Kosovich [1974]47 (S.R.) N.S.W. 357 per John C.J at p. 363)"
81. In my view and according to the authorities set out above, the Trial Court must determine two matters in relation to this defence. The first is for the Trial Judge to make a determination if the defamatory statement was protected or privilege. If he finds that it was, then he must proceed to determine the next issue, that is, whether the defamatory statement was made in good faith or otherwise.
82. The authorities are clear that there are two parts to this defence. In the first part the trial Court is required to determine if the defamatory statement is protected or not, that is the first issue that must be determined. Failure to do so may be fatal to the judgment. See PNG Aviation Services Pty Ltd v. Michael Somare (supra); Henzy Yakam v. Stuart Merrian (supra).
83. In the Court below, the Trial Judge after setting out s.11 of the Act and after referring to some authorities proceeded and said at pp.34 -36:
"In relying on this defence, the defendant's argument is that, the letter was given to the Minister of Lands Infrastructure & Transport in Japan to advise them of the plaintiffs' conduct in so far of maintaining their vessels are concern and for protection. I have no difficulty in accepting the argument that such authority, responsible for safety of ships' operations and its passengers is entitled to receive such a complaint from the defendants in their office capacity. But the question is, does this necessarily mean that they are or should be provided with complains that have no factual foundation or basis? In other words, does the right in a person to complain to such an authority entitled him or her to bring false and highly defamatory follow that people who provide such information are protected from criminal and or civil liabilities.
In the present case, there is no dispute that the second plaintiff is a very experienced sailor having sailed and worked in the shipping industry for over 30 years in Papua New Guinea. There is therefore no doubt in my mind that the plaintiffs have built a good reputation and name in the shipping industry of this country. As I noted above, the statements that, the "Owner had very bad records (sic) in maintaining vessels", carried the following imputations which were defamatory. First, that the plaintiffs had a very bad history of operating unsafe condition, thirdly, that they were reprehensible ship owners against whom the Japanese authorities should take action and finally, that they proposed to sail from Japan to Papua New Guinea to MV Morobe Queen, knowing it to be unsafe, thereby endangering its crew.
In my opinion, these are very serious and very damaging allegations. But there is not a shred of evidence as I have found above establishing these allegations. There is therefore, no factual foundation or basis for these allegations??.......
84. Here the appellants submitted that the defamatory statement was made in good faith and for the public good. It was submitted that the learned trial judge erred in law and in fact in rejecting the appellant's defense when there was evidence by the appellants supporting their defenses.
85. The respondents on the other hand submit that the learned trial judge was correct in the way he found that the publication was not made in good faith but that the appellant was actuated by malice. It was submitted that his Honor having seen and heard the appellant, was well entitled to come to the conclusion as he did.
86. After careful reading of the relevant part of his judgment which I set out in paragraph 18 shows that the trial judge did not determine the first leg of the defence of qualified privilege. In other words, he did not determine if the defamatory statement is protected or the occasion was privileged. This is a fundamental error of law.
87. It follows that the National Court judgment can not stand. I would therefore allow the appeal and quash the decision of the National Court.
88. In view of my conclusion, it is unnecessary to consider ground 1 of the grounds appealed.
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Fairfax Legal Group: Lawyers for the Appellant
Warner Shand Lawyers: Lawyers for the Respondents
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