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Mondo v Steamships Trading Company Ltd trading as Boroko Hotel [1992] PGNC 24; N1314 (5 July 1992)

Unreported National Court Decisions

N1314

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 245 OF 1993
TOBY MONDO
v
STEAMSHIP TRADING COMPANY LTD
TRADING AS BOROKO HOTEL

Waigani

Salika J
March 1995

JUDGMENT

DEFAMATION - Words Spoken Defamatory per se - Circumstances Words Spoken - Defence Under S. 14 of Defamation Act - words not actionable in the circumstances spoken.

Counsel:

Mr P Waine for plaintiff

Mr P Payne for Defendant

Cases Cited:

Baker v Lae Printing Pty Ltd (1979) PNGLR 16 at p. 24

March 1995

SALIKA J: This is a claim for defamation commenced by way of a Writ of Summons. The circumstances that brought about this claim are that:

“On Tuesday 21 January 1992 the plaintiff went and booked himself a room at the Boroko Hotel for a night. He says that at about 7.30pm he came outside and went to the reception area to leave his room key. When he was there two security men on duty and one off duty assaulted him. He alleges that other employees of the Hotel and the Security men pulled him outside and told him:

‘Yu wanpela pipia man

Yu nogat money

Yu rabisman

Yu kisim moni we na kam dring na spak na bikhet’.”

He says those words were repeated to him and that there were many bystanders. He then went and reported the matter to the Boroko Police Station.

The plaintiff then sued the defendant for assaults alleging that its servants and agents had assaulted him and that they had defamed him. The matter of assault was dealt with on the 5/7/92 at the Port Moresby District Court and the Court entered judgment of K636.60 against the defendant for assault. The defamation question was referred to the National Court thus this writ.

The plaintiff alleges that the words and gestures spoken and done by the servants and agents of the defendant were inferred to mean that the plaintiff was a worthless person with no means of support and that he was a dishonest and untrustworthy person.

The plaintiff alleges that the object of the defendant, its servants or agents in uttering those words complained of was to cause annoyance, inconvenience and distress to the plaintiff and to cause damage to the plaintiffs reputation in his community and business.

The plaintiff alleges that he has suffered damages as a result of the utterances.

The plaintiff claims he was defamed by way of slander in that the utterances amounted to:

a) Slander by words, and

b) Slander by way of actions, gestures and conduct.

The plaintiff further submits that the utterance of the words to the people present and later the Youth Group for which the plaintiff was president of had the effect that the plaintiff was a worthless person. As a result of that the members of the Youth Group have lost interest and that their confidence and trust in the plaintiff has diminished.

The defendant has denied the allegation claimed by the plaintiff.

The defendant says that the alleged defamatory statements were independent personal acts of persons alleged to be employed by the defendant and were not connected with or incidental in any manner to the work which the defendants alleged employees were either expressly or implied authorised to perform on behalf of the defendant. The defendant submits that the plaintiff must prove on the balance of probabilities that the person who defamed him were acting within the authority of the defendant.

The defendant further submits in the alternative that while the words allegedly uttered may be impleasant and perhaps vulgar, they cannot be words which at common law are actionable, having regard to the circumstances under which the words were alleged to have been said. The defendant submits that if the alleged words were uttered in a hotel in the presence of the patrons of the hotel the plaintiff was not likely to be injured by the publication because a hotel by its nature is a place where people go to consume alcohol and that it is generally a place where more vulgar words are spoken than in other places like offices, shops or church meetings.

I find that the words complained of that were allegedly uttered in their ordinary sense bear the following meaning.

a) The plaintiff is a rubbish man.

b) The plaintiff is a person with no money and should not be drinking and causing trouble.

I am of the view that the circumstances under which those words were allegedly uttered should be identified first. The plaintiff checked in at the hotel at 11.45 am on 21 January, 1992. He was evasive as to why he had gone to the Hotel and what he had done while at the hotel between 11.45am and 7.00pm. He was with a friend Peter Leo and some “one day friends”. He said he drank only 2 bottles of beer shortly before he said he was assaulted. He was evasive about telling the court the truth about what he did for the whole afternoon. One could almost guess taking into account that he was seen in the bar area by Peter Leo.

The evidence is that while he was talking to 2 duty security guards an off duty security guard assaulted him for no apparent reason. He said he was then dragged out and the defamatory words were spoken.

The words themselves in my view given their ordinary meaning are defamatory per se.

The next question is, are those words actionable. In common law defamation is a tort and is not actionable without proof of special damage except where the:

1) Words imputes a crime punishable with imprisonment.

2) Words impute contagious venereal disease.

3) Words impute reputation in office, profession, calling, trade or business.

4) Words impute unchastity to a woman.

In Gatley on Libel And Slander 8th Edition of paragraph 162 the learned author says:

“For mere general abuse spoken, no action lies. The manner in which the words were pronounced may explain the meaning of the words. It is also very relevant for the jury to consider in determining the sense in which the words were used and understood if they were spoken in the heat of passion or accompanied by a number of non actionable but scurrilous epithets, eg a rascal, a scoundrel or villain etc.”

The learned author goes on to say at paragraph 202 that at common law:

“no action will lie, in the absence of special damage, for calling a man hypocrite, a rogue or rascal, a cheat, a cad, a bastard, a swindler, a crook, a villain, a liar and fraud a gambler...unless the words are calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of publication.”

Those common law principles were recognised in the case of Baker v Lae Printing Pty Ltd [1979] PNGLR 16 at page 24 but the court in that case found that the words complained of were defamatory and actionable and not mere words of vulgar abuse and therefore not actionable.

Section 14 of the Defamation Act provides as follows:

“In any case other than that of words intended to be read, it is a defence to an action or prosecution for publishing defamatory matter to prove that the publication was made on an occasion when, and in circumstances in which, the person defamed was not likely to be injured by the publication.”

The defendant has pleaded that defence saying that the incident took place in a hotel and that the plaintiff was not likely to be injured.

I have heard the evidence from the plaintiff and his witnesses. There was no evidence from him and his witnesses how he had been injured. The plaintiff was the leader of a Youth Group and the group was in the business of identifying projects and seeking donations for funding from various companies and foreign embassies to do those projects. There is no evidence that the Boroko incident ruined his chances of obtaining funding for projects. The evidence is to the contrary. Evidence is that even after the incident at Boroko on 21/2/92 the plaintiff was receiving funding for various projects. For example his group received funding for sewing and screen printing projects in November of 1992 from the New Zealand High Commission of which the other members of the group knew nothing about. I also note that by that time the plaintiff was no longer the president.

The fact that he is no longer the president of the Youth Group is not because of the Boroko Hotel incident. There was a meeting for election of office bearers and a new President was elected. The members of the Youth Group who gave evidence said generally that before the incident they trusted and respected the plaintiff but because hey heard that he caused some trouble at the Boroko Hotel and that he had been assaulted and called names at the hotel they no longer respected and trusted him. They have not told the court how they were affected or the Youth Group was affected. There is no evidence from the donor or funding agencies that funded or donated money to his group to say that they had refused to provide funding for his group because of the incident.

I am of the view that the defence raised under s. 14 of the Defamation Act has been made out. I am of the view that the words if spoken were of vulgar abuse. If they were spoken they were spoken in my view at the spur of a moment when they were angry with him.

As I have found that the words were of a vulgar abuse I find that they are not actionable, in view of the circumstances they were spoken.

The plaintiffs claim is dismissed. I award costs to the defendants.

Lawyer for Plaintiff: Blake Dawson Waldron.

Lawyer for Defendant: Wal and Co Lawyer.