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Finlay v Steamships Trading Company Pty Ltd [1987] PGNC 30; [1987] PNGLR 238; N607 (8 July 1987)

N607

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

LEN FINLAY

V

STEAMSHIPS TRADING COMPANY PTY LTD

Waigani
Kapi DCJ

8 July 1987

DEFAMATION - Statements amounting to - Innuendo - Notice of cessation of employment and responsibility for expenses incurred - Whether imputing dishonest intent - In context and circumstances not defamatory.

The plaintiff, a former employee of the defendant company, left that company and set up business in competition. For some time thereafter correspondence, including bills for expenses of the former employee were directed mistakenly to the defendant. The defendant inserted the following notice in the local newspaper:

"LEN FINLAY

The abovenamed person is no longer employed by Engineering & Marine Services — Safety Services. No responsibility will be accepted for charges incurred since his departure from the company."

In an action for damages for defamation the plaintiff relied on legal innuendo alleging that the words "no responsibility ..." were understood to mean that the plaintiff was setting up and operating a business in competition with the defendant and dishonestly representing himself as being authorised to incur expenses on behalf of the defendant.

Held

That within the context of all the circumstances the words were not of themselves defamatory and could not be understood by a reasonable reader to be imputing the insinuation alleged in the pleadings.

Statement of Claim

These were proceedings in which the plaintiff sought damages for defamation.

Counsel

S Gollidge, for the plaintiff.
D Houseman, for the defendant.
Cur adv vult

10 August 1987

KAPI DCJ: The plaintiff was formerly employed by the defendant as manager of its Engineering and Marine Services Division. The plaintiff left the employment of the defendant in April 1986 and set up his own business known as Firesafe-Safety Services. Since leaving the employment of the defendant, certain correspondence belonging to the plaintiff has been sent to the defendant’s address. The first correspondence is a bill of costs dated 13 October 1986 from Coopers & Lybrand. This bill of costs related to services rendered to the plaintiff in setting up his new private business. The letter was addressed to Safety Services Pty Ltd, PO Box 1700, Port Moresby. The bill of costs was for a total of K937. The invoice for this bill was also sent, C/o—Safety Services, PO Box 1700, Port Moresby and is dated 30 September 1986.

Another invoice which is dated 17 October 1986 was sent by Coral Sea Travel Services which was addressed to Firesafe Pty Ltd, C/o— Engineering & Marine Services, PO Box 1700, Port Moresby. This was for an amount of K628 for air travel for the plaintiff and his wife within Papua New Guinea. All these invoices were addressed to the defendant’s address for payment. There is no dispute that all these costs were incurred by the plaintiff himself in connection with his own company, and that the correspondence was sent to the defendant’s address by mistake. In fact letters of apology and explanation were sent to the defendant by Coopers & Lybrand and Coral Sea Travel Services. In respect of this correspondence, the plaintiff was eventually contacted and they were collected from the defendant’s office. The evidence of Mr Woodward who gave evidence on behalf of the defendant is that they were under no misapprehension in paying for these bills. As a result of receiving the correspondence, the defendant then decided to put out the following publication in the "Post Courier" on 27 October 1986:

"LEN FINLAY

The abovenamed person is no longer employed by Engineering & Marine Services — Safety Services.

No responsibility will be accepted for charges incurred since his departure from the company."

The plaintiff claims damages from the defendant on the basis that the information published is defamatory, Defamation Act (Ch No 293). As far as I am aware this is the first case of this nature which has come before this Court on trial. The plaintiff does not complain about the words "The abovenamed person is no longer employed by Engineering & Marine Services — Safety Services".

He complains of the latter line in the publication "No responsibility will be accepted for charges incurred since his departure from the company". Counsel for the plaintiff has conceded that these words in their natural and literal meaning are incapable of bearing defamatory meaning. However, counsel relies on defamation by way of insinuation (legal innuendo). He alleges that the words were understood to mean:

(1) that the plaintiff in setting up and operating a new business in competition with the defendant, had incurred charges which he had wrongly attributed to the defendant;

(2) that after leaving the employment of the defendant and whilst setting up his own business he had attempted to represent that he was authorised to incur charges on behalf of the defendant; and

(3) that he had acted dishonestly and improperly in connection with the setting up of his new business.

The extrinsic facts upon which the plaintiff relies and which have been pleaded are as follows:

(a) The plaintiff was previously employed by the defendant as the manager of its Engineering and Marine Services Division;

(b) The plaintiff left that employment in or about April 1986;

(c) Following his departure from the defendant’s employment, the plaintiff set up his own business namely Firesafe-Safety Services;

(d) The plaintiffs new business operates in direct competition with the Engineering and Marine Services Division of the defendant company; and

(e) The plaintiff had incurred costs, charges and expenses in setting up his new business.

The question for the court to determine is whether the words complained of bear a defamatory meaning within the context of all the circumstances of this case?

The advertisement in the paper was motivated by two letters received from two firms which had rendered services to the plaintiff. Counsel for the plaintiff, during the hearing, cross-examined Mr Woodward who gave evidence on behalf of the defendant to the effect that the advertisement was intended to hurt the plaintiffs business since it was competing in the same field. This suggestion was denied by Mr Woodward. I have no reason to doubt his evidence. I find that the whole intention of the advertisement was to warn others who might mistakenly forward any correspondence but particularly for costs that were being incurred by the plaintiff in the course of his business. As I have already stated, the two bills that were sent to the defendant’s address were sent by mistake. It is significant that the correspondence was sent by mistake. The plaintiff had earlier been employed for a number of years with the defendant company doing similar type of work and that he was now running his own business in the same field. It would be reasonable for others to be mistaken about the plaintiff and to continue sending such correspondence to the defendant’s address. In my view, the defendant rightly published this notice to prevent any further mistakes in this regard. I find that in all the circumstances, no reader would infer that the defendants were imputing the insinuations alleged in the pleadings. I dismiss the action.

Proceedings dismissed

_______________________

Lawyers for the plaintiff: Kirkes.
Lawyers for the defendant: David Houseman.