Pato v Pupu [1986] PNGLR 310 (28 November 1986)

Papua New Guinea Law Reports - 1986

[1986] PNGLR 310 - Rimbink Pato v Umbu Pupu 

[1986] PNGLR 310

SC329

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

RIMBINK PATO

V

UMBU PUPU

Waigani

Woods Los Wilson JJ

25 August 1986

28 November 1986

APPEAL - Findings of fact - Functions of appellate court - General principles - Manner of re-evaluation of trial evidence - Inferences to be drawn - Defamatory matter - Whether published in good faith - Defamation Act (Ch No 293), ss 10, 11, 12.

DEFAMATION - Defences - Publication in good faith - Not actuated by ill-will or improper motive - Where more than one motive - Dominant motive to be determined - Defamation Act (Ch No 293), s 11(2)(c).

Under s 10 of the Defamation Act (Ch No 293) 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, and under s 11(2) it is a lawful excuse for the publication of defamatory matter if the publication is made in good faith and s 11(2)(c)(i) provides that a publication is made in good faith if the person by whom it is made is not actuated by ill-will to the person defamed or by any other improper motive; and, does not believe the defamatory matter to be untrue.

On appeal from the dismissal of defamation proceedings and against findings that certain published matter was true and other matter false:

Held

(1)      The following principles apply when the Supreme Court is asked to disturb findings of fact made by a trial Judge:

(a)      The court may draw its own inferences from undisputed facts or facts established by the trial Judge’s findings;

(b)      allowance should be made for the trial Judge’s advantage in evaluating conflicting oral testimony and the credibility of witnesses; and

(c)      in assessing circumstantial evidence the court must rely upon reasonable and definitive inferences, not conjecture, speculation and guesswork.

Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207, adopted and applied.

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, considered.

(2)      Where there are two or more competing motives for making a statement of a defamatory nature for which protection is sought under the Defamation Act (Ch No 293), s 11(2)(c), the court must determine which is the dominant motive.

(3)      The appeal should be allowed in respect of certain of the findings.

Cases Cited

Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435.

Fisherman’s Island, Re [1979] PNGLR 202.

Horrocks v Lowe [1975] AC 135.

Karo Gamoga v The State [1981] PNGLR 443.

Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207.

South Pacific Post Pty Ltd v Nwokolo [1984] PNGLR 38.

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531.

Appeal

This was an appeal from a dismissal of a claim for damages for defamation.

Counsel

D Colquhoun-Kerr, for the appellant.

J R Steele, for the respondent.

Cur adv vult

28 November 1986

WOODS J: I agree with the reasons and conclusion of Wilson J and have nothing to add.

LOS J: The facts and circumstances leading to the appeal have been clearly set out in the judgment of Wilson J with which I agree.

The only point that I wish to dwell upon is his Honour, the trial Judge’s finding in relation to the respondent’s dominant motive in writing the letter and distributing its copies. In my view little or no comfort at all can be drawn from the evidence produced before his Honour that the dominant motive of the respondent in writing a letter to the Minister for Education and distributing its copies was to protect Pausa High School. I see little basis upon which the respondent could believe that the appellant was behind the alleged criminal activities of his group. To me the message is loud and clear: The respondent was so upset that a young man could challenge his authority as a village leader and a Provincial Minister. Traditionally a leader was a leader in all respect and his power was almost without limit. In my view the respondent acted in this spirit and so he was quick to act on the gossips; he did not pause to seek advice as to what powers he really had and what actions he could take in accordance with these powers. It has now become common among the local and the national leaders to act in the manner of big men rather than act in a manner consistent with their duties and only in accordance with the powers they actually have.

In paragraph one of his letter to the Minister for Education the respondent says the appellant “wrote a threatening letter and demanding the DOIC from Wapenamanda not to listen to me and demanded the school grounds to be given back and finally closing the high school” (my emphasis). In the last paragraph the respondent asks that the appellant’s scholarship be terminated so that “he can stay home and not cause trouble” (my emphasis).

According to witness David Reto who was at a meeting called by the ADC on 21 January 1981, the respondent referring to the appellant said, “I am the big man in the village and Minister for Education. I have powers. But this little child usually gets trouble at the village. I will kick him out of the University”. The respondent was heard to say, “This plaintiff is giving me a lot of headache. Is not my father Pupu the big man of this place. I have written a letter to the national Minister for Education asking him to terminate his scholarship. Sooner or later (we) will see him coming home and digging Kaukau around the place” (my emphasis).

It appears clearly from the foregoing that the real motive of the letter was to get even with the appellant for questioning the respondent’s authority and lowering his dignity and status and not to save the school.

The letter by the appellant conveys clear messages to the District Officer at Wapenamanda:

(1)      As far as he knew the land was returned to the Pyapin clan. The matter was between the Church and Pyapin; it had nothing to do with the respondent.

(2)      On the basis of (1) the respondent had no reason to interfere.

(3)      If the respondent had personal interest in the land, he should put forward his interest through an independent and legitimate Channel, ie, Provincial Land Board or Land Court.

(4)      The letter asks the District Officer-in-Charge to ensure that respondent goes through the independent authorities to decide the title to land.

(5)      If the respondent who had personal interest in the matter tried to intervene people who would see it as serving his own interest. The other people would then take upon themselves to settle the matter. The warning was made with the knowledge that fights were no exception to the rule but as a rule in the area. The warning therefore had no bad faith or intent.

In my view therefore no reasonable inference could be drawn from the appellant’s letter that he was behind any criminal activities nor was he a “hambag” man acting against the interest of the school that educated him.

WILSON J: This is an appeal against a decision of the National Court where the appellant’s action for damages for defamation was dismissed.

Rimbink Pato brought his original action following the publication of a letter by Umbu Pupu in December 1980, who was at the time the Provincial Minister for Education in the Enga Province, directed to the Minister for Education in the National Government. The letter was sent to four other persons. The text of the letter and the names and positions of the other recipients are set out as follows:

“Provincial Minister for Education

Provincial Government

P O Box 28

WABAG. ENGA Province

Hon Minister for Education

PSA Haus

Private Mail Bag

P O BOROKO NCD

Terminate Scholarship for mr rimbink pato — 1st year law student at upng

Dear Sir

Concerning the above, I would like Mr Rimbinki Pato’s Scholarship to be terminated. He has supported fully his clan to steal from Pausa Provincial High School, to burn buildings in the High School, he personally wrote a letter threating and demanding the DOIC from Wapenamanda not to listen to me and demanded the school grounds to be given back and finally closing of the high school. He told his people that he is studying 1st year law and he can defend his clansmen.

As a result of this, his clan has already burned down three buildings, one chicken house, one piggery and a Home Science building. This incident occurred on 19th December, 1980. In several cases he has personally threatened the school Headmaster not to interfere with his clans activities.

Well I as an Education Minister for this Province don’t like big head students such as him. Mr Rimbink has forgotten the four years schoolings he got through this high school (Pausa High) and now ready to do his second year law studies. He is supporting his clan to continue this criminal activities which I think such a person of his calibre shouldn’t do. He is causing more damage to school, teachers morales and even started a fight which is not even finished yet with nearby clan, which is not good.

So therefore I would like you to terminate his scholarship before more trouble occur so that he can stay at home and not cause trouble.

Yours faithfully

Umbu Pupu

Provincial Minister for Education

cc Principal Education Secretary

Guidance & Scholarship PSA Haus

Department of Education Private Mail Bag

psa. Boroko boroko. ncd

Vice Chancellor Dean of Law

University of PNG Law Faculty

PO Box 4820 PO Box 4820

university. ncd university, ncd”

On the pleadings the defendant/respondent admitted that the letter contained defamatory material and sought to rely on the provisions of the Defamation Act (Ch No 293) dealing with statements that are true (s 10) and claiming qualified protection because the statements made were made in good faith. It is convenient here to set out in full the provisions of s 10, s 11 and s 12 of the Defamation Act:

“10.    Protection: Truth

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 for some private or public wrong or grievance from a person who has, or whom the 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 enquiry 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 comments, 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 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.

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.”

In his judgment the learned trial judge found four allegations in the letter true, and five other statements false. I set out his Honour’s findings in this respect:

“I find the following allegations in the letter true:

1.       That he fully supported his clan to burn buildings at Pausa High School. The buildings were a chicken house, a piggery and a home science building burnt on 19 December 1980.

2.       He supported his clan’s criminal activities in supporting the arson.

3.       That he wrote a threatening and demanding letter to the DOIC Wapenamanda. (The letter referred to is Exhibit B.) The threat is couched in vague terms.

e.g. ‘tremendous likelihood of an ongoing dispute that will possibly end up in clashes between the parties concerned.’

‘friendly advice ... of the possible consequences of his unwarranted actions.’

‘if you fail to convey the contents of this advisory letter, the consequences will be such that it will be beyond your capacity to control.’

e.g. ‘My hopes are that you will warn him of the possible and probable consequences ahead.’

I am satisfied that in the context of this very Engan dispute that it is a threat that the Pyapin will start a tribal fight against the Maimi.

4.       That his actions caused damage to the schoolteacher’s morale. I readily infer that from the circumstances.

I find the following statements in the letter false:

1.       That he fully supported his clan to steal from the High School. (There is no evidence of that.)

2.       That he demanded the school grounds to be given back. (That is too wide an assertion. The plaintiff wanted back a piece of land used by the school and occupied by the buildings that were burnt. The assertion in the letter suggests that the plaintiff demanded the return of all the land occupied by the school is far too wide of the remark.)

3.       That he demanded the closing of the High School. (There is no evidence of that.)

4.       That he personally threatened the headmaster not to interfere in his clan’s activities.

(To prove this the defendant would have had to have called evidence from the headmaster or someone who heard the conversation.)

5.       That he started a fight which is not finished yet with a nearby clan.

(This is too wide of the mark. It is true that the night the school buildings were burnt by the Pyapin a Paypin [sic] trade store was burnt down in retaliation. The trade store was managed by the plaintiff’s Pyapin clansman, David Reto, and the plaintiff had played a big role in getting it started. The allegation is false because it implies, in the Engan context, a tribal fight. The burning of the school buildings resulted in a payback arson, not in a tribal fight.)”

In respect to the statements found to be true, the learned trial Judge proposed the following questions of law:

“The legal issue on good faith in this case amounts to this under s 12(2)(c)(1), was the defendant actuated by ill-will to the plaintiff or by any other improper motive when he wrote the letter?”

A typographical error in the judgment shows s 12(2)(c)(1) whereas the correct provision is s 11(2)(c)(1).

His Honour went on to find that there were two clear motives behind the defendant/respondent’s letter. One was his concern for the fate of the school and the other was his animosity towards Mr Pato. Applying the principles in the case of Horrocks v Lowe [1975] AC 135, the learned trial Judge found that the dominant motive of the defendant was his concern about the school and accordingly he allowed qualified protection to the letter and dismissed the application for damages.

The appellant claims that the four findings against him were not open to a finding on the evidence as the evidence supporting these allegations was hearsay and on those where inferences were drawn the wrong inferences were drawn.

The appellant’s other submission, ably and accurately put by Mr Colquhoun-Kerr, was that even if this Court failed to disturb the findings of the trial Judge, his Honour erred by applying the principles in Horrocks v Lowe or alternatively, if his Honour was right in applying these principles, he erred in the way he applied them to the facts of this case.

The first submission invites this Court to disturb the findings made against the plaintiff in the trial.

Before embarking on this examination it is appropriate to consider the approach this Court should take and the guidelines in such an examination. In the nature of most cases direct evidence is not always available to settle what has been properly termed “the judicial wish for certainty”. In most cases there are conflicts to be resolved, and in the absence of direct evidence, inferences to be drawn.

In the recent case of Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207 at 209-211, Kirby P sets out three guiding principles. These three principles, which I respectfully adopt, are as follows:

“First, since Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551, it is clear law that this Court is to be taken as being in as good a position as the trial judge to decide upon the proper inferences to be drawn from facts which are undisputed or which, although disputed at the trial, are established by the judge’s finding. Respect and weight is to be given to the conclusions which the trial judge draws from the evidence. However, once having reached our own conclusion on the facts, we are not to shrink from giving effect to it: see also Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422 at 426. This approach, which reverses the previous approach to the evaluation of evidence, imposes additional burdens on this Court. They are illustrated in the present case. Detailed argument must be addressed to disputed evidence and competing, permissible inferences from that evidence, although this process of evaluation has already taken place before the trial judge. An appeal court is, to some extent, always at a disadvantage in conducting such a reassessment. It lacks the impression of witnesses, the opportunity to evaluate non-verbal communication and the immediacy and command of detail which is the proper province of the trial judge. It sees the evidence through a curtain, penetrated in selected parts by the reading of evidence, presented, often out of order and in an inevitably disjointed and selective way by the parties. This approach carries an inevitable risk of encouraging appellate wisdom after events. Without care, it may result in undue weight being given to words considered without the benefit of the full context.

None of these observations touch the legal duty of the court, which is that defined in Warren v Coombes. It is a duty that must be loyally fulfilled. ...

Secondly, appellate courts will normally show deference to the assessment of credibility made by the trial judge. This has traditionally been explained in terms of the advantage which the trial judge has in assessing credibility from seeing and hearing the witnesses. Lately, psychological and other research has tended to cast doubt upon this rationalisation of deference to the trial judge’s assessment: see L Re, ‘Oral v Written Evidence: The Myth of the “Impressive Witness”’ (1983) 57 ALJ 679. In Voulis v Kozary [1975] HCA 44; (1979) 50 ALJR 59; 7 ALR 126, the High Court of Australia referred to the special advantages of a primary judge over an appellate court on matters of fact. Particularly, the court referred to the advantages involved in evaluating conflicting oral testimony and the credibility of witnesses. Nevertheless, in that case, the court disturbed the conclusion of the trial judge, and the decision of the majority of this Court. It held that the judge’s findings were necessarily outweighed by the compelling inferences to be drawn from the conduct of witnesses. Accordingly, it set aside his decision. ...

Thirdly, the court, like the trial judge, in evaluating circumstancial evidence, is obliged to tread the narrow path which has been drawn between reliance upon reasonable and definitive inferences (which is permissible) and upon conjecture, speculation and guesswork (which is not). The principle was stated in Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352:

‘In an action for damages for negligence a finding that the negligence of the defendant occasioned the injury complained of may be supported — whether direct proof is not available — by circumstantial evidence if the circumstances appearing in evidence give rise to a reasonable and definite inference. They must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture; but if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought, then — though the conclusion may fall short of certainty — it is not to be regarded as a mere conjecture or surmise.’

See also Bell v Thompson [1934] NSWStRp 34; (1934) 34 SR (NSW) 431 at 436; 51 WN 138 at 139; Jones v Great Western Railway Co (1930) 47 TLR 39 at 41: cf Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 55 SR (NSW) 243 at 248; 72 WN 261 at 264 and Nominal Defendant v Owens (1978) 22 ALR 128 at 132-133.

It is doubtful that the suggested distinction between conjecture and inference is as plain as some of these authorities suggest. With greater knowledge of human psychology and greater understanding of probability theory, it is nowadays increasingly recognised that the one process of reasoning merges into the other. In order to draw inferences, it is often necessary to speculate. Whether the product of the speculation is a mere conjecture, guess or surmise or a ‘definitive inference’ depends on processes of evaluation and judgment that are not always susceptible to strict logical analysis. This has been recognised in decisions of high authority. The fact that competing inferences which are available cannot be positively eliminated does not render an inference derived from proved or accepted facts a mere conjecture surmise or guess: cf Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169.”

The principles set out in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 have been received into our law in a number of cases, see, for example, the decision of the Supreme Court in Karo Gamoga v The State [1981] PNGLR 443 (the judgments of Pratt J and Miles J) and the decision of Wilson J in Re Fisherman’s Island [1979] PNGLR 202 at 216.

THE FINDINGS UNDER APPEAL

In discussing these matters I shall refer to the finding as enumerated by the trial Judge and as set out earlier in this judgment.

IN RESPECT OF FINDINGS NOS 1 & 2

His Honour had before him evidence of one Yapau, who deposed to a conversation he says he had with the plaintiff in which the plaintiff made statements which implicated him. The plaintiff in his evidence denied making those statements. There was no other relevant evidence and his Honour was left with the task of deciding which version of the evidence he would accept. The decision was solely one of credibility and the learned trial Judge found that he disbelieved the plaintiff’s denial as to the conversation. Where findings were made on the basis of credibility the trial Judge will usually be in a superior position to an appellate court in making such a judgment and it would be rare for such a finding to be disturbed. I can find nothing wrong in the judgment on this point. I do observe, however, that findings 1 and 2 merge and really amount to one finding rather than two separate findings. I also observe that these findings cannot amount to a positive finding of criminal liability as that is a finding which is only available in the criminal jurisdiction on the appropriate evidentiary test. The plaintiff, it should be recorded, was never charged with any criminal offence in relation to these activities, although another person was tried and convicted.

IN RESPECT OF FINDING NO 3

I am unable to agree with the learned trial Judge. There is nothing on the face of the letter which the plaintiff wrote to the DOIC Wapenamanda that should have led his Honour to construe it against the plaintiff. Although some of the letter is illegible I set out the bulk of it, which is sufficient to assess its intent:

“Faculty of Law

University of Papua New Guinea

PO Box 4564

University Post Office

Waigani

The District Officer in-Charge (Mr Gumoi)

Division of District Administration

Sub-Provincial Office

Wapenamanda

Enga Province

Re: Land Dispute between the Pyapin Clan and Umbu Pupu over Pausa High School land: Your Intervention

Dear Sir,

It has been brought to my attention from reliable sources back at home that there is a unilateral dispute over some customary land surrounding portions 6, 10 and 56 on which is situated the Pausa High School. I am also told that there is a tremendous likelyhood of an ongoing dispute that will possibly end up in violent clashes — between the parties concerned.

The piece of land in issue was previously rented (not Government lease) to the Wabag Lutheran Church under a mutual agreement independent of any transaction of legal character or nature. Very recently, the land has been returned to the Pyapin who are the rightful owners of the customary land by the Church. I have checked the records at Wabag and Wapenamanda in person and thereby am absolutely certain that the land in ... Government lease. Therefore the transaction between ... the local customary land owners (the Pyapin) was one outside the existing legal framework. This connotes that if the Church has handed over the land voluntarily the owners have all the right in the world to do whatever they see fit in respect of their own ... Further, it means any third party has no right whatsoever to intervene whether he be an ordinary villager or a leader.

What is now happening is that Umbu Pupu who is currently Provincial MP and Maimi clansman (note: not Pyapin) claims to have some interest in the land. If that be so, then, the burden is on him to put forward his case through the proper legitimate channels.

It does not necessarily mean obstruction of the use of the land and at the same time pushing for a case. It merely means pushing for a case without having to interfere with the exercise of the land owners rights over his own land.

In any case, the essence of this claim revolves around not any personal interest in the land in issue but only a complaint of general nature in his capacity as a leader. Therefore, if you see it right to intervene then your intervention must be confined to matters within your jurisdiction which I take to be nothing more than an administrator meaning any matters concerning land is outside your scope of authority. The present case falls within that category. Accordingly, this matter should be dealt with by the proper authorities meaning the Provincial Land Board or Land Courts. If in any case, you see it right to intervene, your intervention is only justified in cases where there is a great point of confrontation between the two disputing parties.

Ignorance of this advise will be taken to connote that you have some personal interest, bias, or favouritism in the dispute under progress. Your task is to get the parties to the proper dispute settlement mechanism.

If Umbu Pupu sees it fit in his capacity as a leader to play a leading role in the interest of the school then he must be subject to the wishes of the land owners (the Pyapins) and the Church. In any case there is no such room for mediatory role in the present case because the matter has already been resolved by the Church and the Pyapins.

Again, it is within your function to ensure that Umbu Pupu goes through the proper channels in airing his grievances. This again does not involve the obstruction of the land owners from doing what they want to do with their land. If he otherwise, does so, that would constitute a criminal offence which I am quite sure you are aware of. Then it becomes a matter not between Umbu Pupu and the Pyapins but a matter between Umbu Pupu (MP) verses the State.

Please take this a friendly advise but more or less of a legal nature and that it is your duty to inform Mr Pupu of the possible consequences of his unwarranted actions. If you fail to convey the contents of this advisory letter, the consequences will be such that it will be beyond your capacity of control.

Apparently, Umbu Pupu has resorted to some unwarranted and irrational action. My hopes are that you will warn him of the possible and probable consequences ahead.

Please acknowledge receipt of this letter.

Yours bona fide,

...

Rimbink Pato

cc Mr Umbu Pupu — Maini Pausa Village

Wapenamanda

Messrs Tumu, Korimbao, & Andake Nanek, Reto Saigari, Pato Pauli,

Rangapu Lumaitta, Pinguina Pauli and other Pyapins concerned.”

A reasonable construction of the letter does not in my view lead to a finding that it was a threatening letter. I am re-enforced in this view by examining the reply by the DOIC Wapenamanda, which I now set out:

“Department of Enga

Division of Provincial Affairs

District Office

P O Box 179

Wapenamanda EP

Mr Rimbink Pato

Faculty of Law

University of PNG

P O Box 4564

UPNG Post Office

Waigani

re: Land dispute between Pyapin vs Main

I refer to your letter of 21st August 1980 with regards to various ... you have pointed out.

1.       There has been a Land Dispute arising between Pyapin vs Main Clans over the land known as yeis.

This will not subject to be dealt by Land Court for indefinate period.

2.       The question now stands is that the present land used by the Pausa High School for gardening. This land is in question and will be able to assist the school and the land owners to settle the problem.

However, the Mission has agreed to lease the land and application in respect of this lease has been sent to Natural Resources early 1979.

It would be a matter of asking the government to purchase the land to be used by the school.

I have stopped the land owners to develope this land till we sort things out smoothly.

U Gumoi

District Officer In Charge

cc The Minister for Education

Enga Provincial Government

Wabag EP”

cc The Secretary

Gut Nius Lutheran Church

Wabag EP”

It will be seen that the letter received a reasonable reply, with no suggestion of rebuke or concern as to its nature.

This Court is in as good a position to come to a conclusion on the intent and content of the plaintiff’s letter as the learned trial Judge. I uphold the objection to finding No 3.

IN RESPECT TO FINDING NO 4

I am unable to agree with the inference so readily drawn by the learned trial Judge. Indeed I am of the view that his Honour had no need to draw inferences as there was direct and unchallenged evidence on the matter. This comes from the third witness for the plaintiff, one Iki Leme, a Councillor and committeeman of the school in question, Pausa High School. I set out the two relevant questions and answers:

“Q:     The school ever come close to being closed because of this land problem?

A:       No.

Q:      The teachers ever complained of low morale because of this land?

A:       No.”

There was no cross examination of the witness on these answers and the statements stand untainted. I uphold the objection to finding No 4.

APPLICATION OF THE LAW

The appellant’s submission was that the Defamation Act was a complete statement of the law and the court should only look to the words and giving them their natural meaning interpret them according to the facts. This submission deals with the application by the learned trial Judge of the principles set out in Horrocks v Lowe, and s 11(2)(c)(1) of the Defamation Act.

I reject this submission. While the submission may be appropriate where there is only one motive in making a statement of a defamatory nature for which protection is sought, the Act is silent on the situation, as existed in the case under appeal, where there were two competing motives. One said to be concern for the school, which would be appropriate to s 11(2)(c)(1), and the other, personal animosity to the plaintiff, which would not be covered by the provision. In such cases it is appropriate to assess which is the dominant motive.

FINDING ON MOTIVE

In this case the learned trial Judge found that the dominant motive was the defendant’s concern for the school. However, I am unable to agree with his Honour’s reasoning on this point. Indeed I find that there is quite significant and convincing evidence, uncontested by the defendant, of his boasting as to what he would do to the plaintiff by sending the letter. He claims for example, that he wants to have the plaintiff expelled from Law School and “soon you will see him back in the village peeling Kaukau”. He made public statements to this effect at the market and on that occasion nothing was said of his concern for anything else, making it quite plain he was doing his best to injure the plaintiff’s career path.

The dominant motive of the defendant was to injure the plaintiff and in that he was activated by ill-will. I would reverse the findings on this aspect.

SECTION 11(E) OF THE DEFAMATION ACT

Mention was also made of s 11(e) in respect of the publication of the letter to the National Minister for Education and the other parties who received copies. His Honour, the learned trial Judge, considered the dissemination of the letter acceptable under the s 11(e) criteria. I would take the view that such dissemination was not justifiable. Indeed, particularly in view of the findings set out, the only authority to whom it would be reasonable to give such information would be the police. Such a course, however, was never taken by the defendant.

FRESH EVIDENCE

At the commencement of the hearing of the appeal the appellant sought to introduce fresh evidence. This application was refused.

The appellant sought to introduce evidence which amounted to rebuttal of evidence given for the defendant at the trial. As the course which was followed by the learned trial Judge resulted in the defendant giving evidence first, as the issue of the defamatory nature of the material was admitted and the only issue was whether any protection applied, the appellant/plaintiff was aware before commencing his case as to the evidence introduced. The plaintiff made no application to adjourn proceedings to enable the evidence to be called.

The evidence was available at the time of the hearing and is not “fresh” in the sense that it covered issues only discovered after the trial was completed.

The criteria for the acceptance of fresh evidence has been referred to on a number of occasions by this Court and recently in South Pacific Post Pty Ltd v Nwokolo [1984] PNGLR 38 at 42. Also see Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435 at 444. I see no reason in this case to depart from the settled law and I do not propose to do so.

SUMMARY

The appeal as it relates to findings 1 and 2 is dismissed.

The appeal in relation to the findings 3 and 4 is upheld.

The appeal as it relates to the finding that the dominant motive of the defendant/respondent was concern regarding Pausa High School is upheld, with the substitution of a finding that the dominant motive of the respondent was to injure the appellant and in that the respondent was actuated by ill-will to the appellant.

Order of the Court

Appeal upheld,

Matter remitted to the learned trial Judge to assess damages in accordance with this judgment.

Orders accordingly

Lawyer for appellant: Young & Williams.

Lawyer for respondent: Warner Shand Wilson Donigi Reiner.