DC137

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

CASE NO 269 of 2000

BETWEEN

BEKA MALAGAN
Complainant

AND

KEDAI ESRON
Defendant

MADANG: C Bidar
3, 17 & 23 November 2000

Defamation - Spoken words - Are words reasonably capable of bearing defamatory meaning - The meaning - "Your scrotum Testicles" capable of. Defamatory imputation - Defamation Act Ch. No. 293) ss. 2 and 3.

CASES CITED
Sim v Stretch (1936) 2 ALL ER 1237
Mr B. Tabai for Complainant. Defendant appeared in person

JUDGMENT

17 November 2000

BIDAR, PM: Complainant's claim is for damages consequent to publication of certain words, which are alleged to be defamatory.

The facts are simple and straightforward.

Complainant is a villager and a married man from Kranget Island, Madang. Defendant is also a villager and married woman from the same island. Paragraph 2 of his statement of claim he says that on the 23 June 2000 at Kranget Island, Madang, the defendant unlawfully insulted the complainant by swearing at him in the following words "Bol bilong yu inogat kiau. (Your scrotum has no testicles).

By paragraph 3 he says, the words were spoken in local vernacular and was heard and understood by people who were present at the time.

By paragraph 4 he says by reason of matters aforesaid, the complainant has suffered loss and damages.

And the Complainant claims:-

a.	Damages in the sum of K5000.00 for frustration, shame and inconvenience. 
b.	Costs of the proceedings 
c.	Such further or other orders as the court deems fit.

THE LAW

The claim is based under the provisions of Defamation Act (Ch. No. 293). S.2 of the Act defines defamatory matter as, "an imputation concerning person which

a.	the reputation of that person is likely to be injured 
b.	 . . .
c. 	other persons are likely to be induced to shun, avoid ridicule or despise him is a defamatory imputation.

S. 2 (3) says whether any matter is or is not capable of bearing a defamatory meaning is a question of law.

S. 3 says that a person who by spoken words publishes a defamatory imputation concerning a person defames that person within the meaning of the Act.

The issue to be decided in this case is, are the words, "bol bilong yu negat kiau" (Your scrotum has no testicles) an imputation which complainants' reputation is likely to be injured or other persons are likely to be induced to shun, avoid, ridicule or despise him? Do these words tend to lower complainant in the estimation of right thinking members of the society generally? See Sim -v- Stretch (1936) 2 ALL ER 1237 at p. 1240 the test is an objective one.

On the material before me, I find no evidence of any likelihood of complainant's reputation being injured or other people are likely to be induced to shun, avoid, ridicule or despise him, nor is there evidence to show such words tend to lower complainant in the estimation of right thinking members of the society. I find that the words complained of are not capable of bearing a defamatory meaning under s. 2 (3) of the Defamation Act.

The least that can be said about the words used by the defendant is that, such words are insulting or swearing words, which are not necessarily capable of bearing defamatory imputation. The Complainant's action therefore fails and I enter judgment for defendant. I dismiss the claim. I also refuse defendant's counter claim. I order that parties meet their own costs.

Orders accordingly.

Lawrence Acanufa Lawyers: The Complainant
Defendant appeared in Person: The Defendant